Center for International Trade Law of National Law University Odisha (India) proposes to bring out an edited book comprising of papers reflecting the views of different authors on the issue of trade facilitation under WTO. The papers may critique the Agreement on Trade Facilitation or any aspect of the same or highlight developments / problems in various jurisdictions on the issue.
The book would be edited by Prof Jane Winn and Prof. Sheela Rai. Prof Jane Winn is a Professor of Law at the University of Washington School of Law, Seattle, Washington since 2002. She is a leading international authority on electronic commerce law as well as regulatory governance issues arising from technology innovation in global markets.
Prof. Sheela Rai is a Professor of Law at National Law University Odisha. Apart from papers in leading national and international journals she has authored three books; Recognition and Regulation of Antidumping Measures Under GATT/WTO(Eastern Book Company, 2004).
Papers can be submitted at email@example.com. Papers should be within 6000 words, typed in Times New Roman. For footnoting OSCOLA citation style may be adopted. Papers should be accompanied by an abstract of 150 words.
2. International Law News, ABA Section of International Law
Theme: Trade Partnerships,mincluding the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP)
International Law News (ILN) publishes high-quality submissions on topics of interest to international law practitioners, researchers, and students. ILN editors are interested in articles addressing each issue’s theme, but articles on other topics are also appreciated.
To submit an article or ask questions about the process, e-mail Contract Editor Lori Lyons at firstname.lastname@example.org
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This summer, I attended a four-week long summer school in international trade law because it seemed like a fun way to gain expertise in another area of law and a good getaway from the Chennai summer.
Every year, the Centre for WTO Studies (an independent think-tank on WTO law which is housed at the Indian Institute of Foreign Trade, Delhi) conducts a one month intensive academy on International Trade Law & Policy. The Academy is conducted by CWS jointly with the World Trade Institute in Berne, Switzerland.
This year the Academy was conducted from 23rd May to 17th June. What drew me to the course was the eclectic mix of modules on offer: Basic Principles of GATT/WTO; Agreement on Agriculture; SPS & TBT; Trade & IPR; Trade Remedies; Investment Law; and Trade in Services. The faculty that was reigned in for this module comprised international trade experts, policy-makers, lawyers, WTO staff and economists; many of the resource persons teach the Master of International Law & Economics (MILE) programme and the International Economic Law & Policy (IELPO) programme at WTI and the University of Barcelona respectively; both these programmes are highly coveted among persons looking to specialize in International Trade.
The course accommodates 30 students and law professionals every year and the process for short-listing candidates is through an essay on a topic related to International Trade. The course fee is 10,000 for students and 25,000 for legal professionals. There were two modules offered every week (except for Week 3 which was solely devoted to Trade Remedies) from Monday to Friday, with each module covered in 2-3 days. Legal professionals had the option to choose which weeks they want to attend the course (depending on which module was of interest to them) and alternately pay 7000 per week instead of attending the full course. Radhika & I decided to attend the entire duration of the course.
We arrived in Delhi a day before the course was to begin; participants who were not from Delhi were provided accommodation in the IIFT hostel on a twin/triplicate sharing basis on an additional payment of 5,000 per person. Radhika & I had a room to ourselves which was actually quite spacious with an en suite bathroom shared between two hostel rooms.
My first day was quite memorable…we arrived in Delhi on 22nd afternoon in the midst of infernal summer heat (it had actually been raining in Chennai a few days before we were to leave for Delhi) and I found myself wondering whether we had indeed made the right decision to take a month-long break from our work to attend the summer school.
When I look back, I think that my apprehension at that time stemmed from the change that those 30 days would prove to be in my life…this was another instance when I was moving out of my comfort zone to venture in the unknown…I didn’t know at the time that the summer school was the best thing that could have happened to me!
While in my hostel room, I already started feeling home-sick for Chennai and I missed the familiar warmth of my place in Chennai…it was then that I saw a poster which was stuck in my hostel room:
Sometimes the right words at the right time can be very powerful. It struck me in that moment that I could choose to either continue feeling down, or I could use my time at IIFT to do something purposeful…
A few days before the Academy was to start, participants were given access to a ‘Virtual Classroom’ where the readings for each module had been hosted. Participants were expected to read and come to class (this is the teaching pedagogy which is adopted in most universities abroad, where students do compulsory readings before a topic is discussed in class). I spent the remaining day doing my readings for the class on 23rd…at night, the weather grew stormy and it rained…this really lifted my mood and things really started to look up.
When I got up the next morning, I went for a short walk in the IIFT campus. While the campus itself is quite small, it is quite green and there is a beautiful garden in IIFT. I was much more positive about the course and I looked forward to my first class that morning.
When I entered the hall where the classes were to be conducted, I was really amazed to see that it was nothing of the sort of classrooms that we are so accustomed to in college…the hall was more like a conference room arranged to seat course participants in two concentric semi-circles, facing the lectern. It made us feel even more important to see our name plates at our seat.
The Academy opened with the first module on ‘Basic Principles of GATT/WTO’. The resource person for the module was Mr. Jan Bohannes, who has worked previously at the WTO, and is currently a lawyer at the Advisory Centre on WTO Law in Geneva. Half way into the first class, I knew that I was going to enjoy my time in the summer school. Unlike the lecture method of teaching that we are used to in Indian universities, classes in the summer school were quite interactive. The participants were a diverse mix of law students & professionals…there were students from various law schools in India (while most were pursuing their undergraduate studies, there were also students who were pursing their Masters or M.Phil). The class also had two participants from Afghanistan and one from Poland, making it “international” in the true sense. For some people, their previous exposure to International Trade Law was quite elementary while there were others who were specializing in the subject after studying it at the Masters level or having done fairly well at international trade law moots like ELSA and GIMC.
The classes would normally begin at 9:30 in the morning, with four classes scheduled in a given day. There were tea breaks and lunch during the day, where we were served gourmet-style Indian dishes. The lunch was a grand affair and the participants ate with the resource persons…it was a wonderful experience to be taught by persons who are considered experts in their field; some have even directly negotiated at the WTO and are part of the ongoing negotiations for some of the free trade agreements. Classes would be over by 4:30 every day and on some days, trade talks would be scheduled after classes where resource persons would speak on a contemporary topic in International Trade.
We also had a Career Talk during the summer school where we learned about the different career options in India & abroad for those who interested in pursuing a career in International Trade Law.
I enjoyed every day of the summer school. The classes were quite intensive given that each module had to be covered over a short span of 2-3 days, and I would read for the next day’s class every night. The IIFT library was open on weekdays and weekends. The Centre for WTO Studies has a section to itself in the library and has arguably the best books available in WTO Law and International Trade Law.
I also have fond memories of going to Sanjay Van (an urban forest located right opposite IIFT) where I would run on weekends.
Time really flew and before I knew it, the summer school had come to a close. In that one month, I had learnt far more in International Trade Law than I ever had in college, and I was convinced after doing the course that International Economic Law is a field that I definitely want to explore further and maybe even specialize in some day.
I would highly recommend the course to anyone with an interest in International Trade Law. It is every bit worth your time and money. While we were given participation certificates on the last day itself, we were also given a take-home exam at the end of the course which we had to complete within a month’s time. The idea behind the exam is that if you perform well, your course fee would be refunded (subject to a minimum class attendance requirement).
I got to meet wonderful people through the course and personally too, the summer school was an experience of moving out of my comfort zone. While most people choose to travel to take a break from the stress of their working life, the summer school invigorated me in a way that no holiday could. It introduced me to the wide and exciting field of International Economic Law & gave me better sense of where I want to go in my career.
For more information about the CWS-WTI Joint Academy, click here.
This alliteration refers to the dreaded ‘Special 301’ report which was published by the United States recently, putting India on its ‘Priority Watch List’ (PWL) for the 22nd year in a row. The Special-301 is an annual review of the status of IPR protection and enforcement worldwide and categorizes countries according to the level of IPR protection which they offer. PWL is an honour that is bestowed upon a trading partner, which in the opinion of the US, has “serious intellectual property rights deficiencies” that require the attention of the United States Trade Representative (USTR).
The PWL countries stand the risk of being elevated to Priority Foreign Country (PFC) which refers to countries where the most egregious violations of IPR exist and which harm competition to the US market abroad. The Special 301 derives its name from Section 301 of the US Trade Act of 1974 which gives power to the US to impose unilateral trade sanctions on PFCs.
The Special 301 report has expressed much angst against India for its so-called weak IP protection laws such as compulsory licensing of patented drugs, pre-grant opposition to patent applications and section 3(d) of the Indian Patents Act (a provision to check ever-greening of pharmaceutical patents). India, which is currently a PWL country, stands the risk of being designated a PFC if it does not mend its IP laws in favour of stronger protection for rights holders.
The Special-301 has been criticized worldwide since it violates the WTO obligations of member countries to refrain from exercising unilateral trade sanctions. The proper recourse for the US to take against countries, which thwart US trade, is to file a WTO complaint. Section 301 of the Trade Act allows the US Congress to take action against a country even where the trading partner otherwise fulfils its obligations under the WTO.
While the US cannot impose trade sanctions on PWL countries, the PWL has served as an effective instrument to get countries to toe the line. In 1993 when Taiwan was designated a PWL country it quickly passed the Cable TV law to prosecute video piracy in order to avoid being listed a PFC.
India has maintained a cold response to the Special 301 so far and refused to negotiate with the US over its IP laws. However, the recent developments in patent law practices in India cause one to wonder whether India has indeed stuck to its guns. In March this year, there were allegations that India had privately assured the US against issuing compulsory licences over patented US drugs. These allegations were quickly brushed aside by the Indian government. On 9th May, the Indian Patent Office granted the patent application over Gilead’s blockbuster Hepatitis-C drug, Sovaldi, although it had in an earlier decision rejected the same application on the ground that it failed section 3(d) requirements under the Patents Act. The Sovaldi application has been the subject of much controversy in India due to the lack of transparency in the Sovaldi pre-grant opposition proceedings. India has also been toying with a draft IP policy which has been severely criticised as serving the interests of the US.
It appears that India is gradually caving in to the duress by Big Brother, US. The US approach of putting countries on the PWL can be likened to carrying a stick to have one’s way without actually using the stick. By putting countries on the PWL, the US warns its trading partners that it would ‘use the stick’ (i.e. impose unilateral sanctions by designating the countries as PFC) if they do not change their IP laws to favour the US.
The WTO Dispute Settlement Understanding prohibits not only unilateral trade sanctions but also determinations by member countries that a trading partner has violated its obligation under the WTO. Putting a country on the PWL constitutes a determination by the US that the trading partner does not provide for effective IP laws and such a determination can be challenged in the WTO. The PWL therefore is as illegitimate under the WTO as the PFC list.
The US might argue on a technical ground i.e. that it placed India on the PWL list not because India violated its TRIPS obligations but because of India’s weak IP laws (section 301 allows US to impose sanctions against countries even where they fulfil their TRIPS obligations). To me, this argument is fundamentally flawed because the purpose of having an institution like the WTO in place is to preclude countries from exercising unilateral trade sanctions unless countries have entered into free trade agreements (FTAs) allowing such an action.
India should consider challenging its PWL status under Special 301 in the WTO instead of waiting for the US to designate India a PFC. India’s unique IP laws are consistent with its minimum obligations under the WTO and India should not let the US bully it into changing its IP laws as this might harm access to medicines in India.
For an excellent analysis of arguments that India can use if it challenges the Special 301 in the WTO, read Suzanne Zhou’s article.
The recently leaked Intellectual Property chapter of the Regional Comprehensive Economic Partnership has garnered much attention worldwide. Given the imminent negotiations over the free-trade agreement between India and 15 other Asia-Pacific countries, the leaked draft gives a direct insight into the stand that participating countries would be taking over IP protection, one of the major concerns of the FTA. The provisions relating to copyright protection are particularly worrisome, since they call for stringent measures, in excess of India’s current IP law obligations under the WTO.
Under the RCEP, each party must ratify or accede to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT and the WPPT (together known as WIPO Internet Treaties) protect the rights of authors and performers/producers of phonograms respectively.
A unique feature of the WIPO Internet Treaties is that they provide effective legal remedies against the circumvention of technological measures taken by authors and performers/producers of phonograms to protect their works on the internet (also known as Digital Rights Management or DRM measures). For instance, certain apps enable internet users in India to watch shows on video-streaming website Netflix even though the content is not available in India. They achieve this by circumventing technological measures put in place by Netflix to restrict the downloading of its content in a particular region.
Under the WIPO Internet Treaties, the internet user who circumvents the technological measure would be liable for circumventing the DRM measures irrespective of whether the internet user downloaded the content for their personal enjoyment (without the intention to make the content available commercially).
The WIPO Internet Treaties have been criticised by internet activists for imposing substantial costs on the public without any real benefits to the artists. Additionally, the DRM measures threaten free speech and access to information online.
The RCEP itself contains many provisions of the WIPO Internet Treaties, including the DRM measures.
While India is not a signatory to the WIPO Internet Treaties and is as such not obligated to conform to them, India incorporated many of the provisions of the WIPO Internet Treaties including DRM measures when it amended its copyright legislation in 2012. Since India is not bound by the WIPO Internet Treaties at present, it can repeal the over-arching provisions anytime it wishes on the ground of public policy. However, this would be impossible if the RCEP in its current form becomes a reality.
The DRM measures are a TRIPS-plus measure which means that under the WTO, India is not obliged to abide by them. If India agrees to the current copyright law provisions in the RCEP and accedes to the WIPO Internet Treaties, India would necessarily have to honour its obligations under the FTA. If this happens, it is likely that India would pass a law similar to the Digital Millennium Copyright Act (DMCA) in the US to strictly enforce measures against the circumvention of digital rights management. The DMCA, which criminalises production/dissemination of technology, devices and services intended to circumvent DRM measures, has been widely criticised for chilling scientific research and freedom of speech and expression online.
The WIPO Internet Treaties also lack a fair-use exception for circumvention of technological measures. While the Indian law does not expressly provide for fair-use exception in the protection of technological measures, it allows acts committed to circumvent the technological measures if they are “not expressly prohibited” under the Indian law. Unless the RCEP allows for fair-use exceptions (for private or personal use, including research), the freedom of the internet in India stands to be threatened due to the RCEP.
Given that the DRM provisions in RCEP will negatively impact internet users in the country, India must take a hard stand when negotiating the IP chapter of the RCEP.
– Written by Radhika Agarwal & Devika Agarwal
[This op-ed was originally published in The Hindu Business Line on 4th May, 2016.]
One of the criticisms of the international investment arbitration system is that it is far from being the neutral adjudicatory forum that it was envisaged to be. Critics find that the arbitral awards in investor-state disputes are often skewed in favour of the investors, with the effect that host nations are often directed by the arbitration panels to pay millions in damages to the investors. Typically, investor-state disputes under the Investor State Dispute Settlement (ISDS) clauses in free trade agreements are brought for adjudication before private arbitrators instead of being adjudicated before the national courts like other disputes. This has led to a system of “privatization of justice” wherein sovereign states are made amenable to private arbitrators, with no provision of appeal against the arbitrators’ decisions.
While the investment arbitration system evolved to protect the rights of investors by adjudicating investor-state disputes in a seemingly neutral manner, it is witnessed that the ISDS mechanism is adversely impacting the sovereignty of host nations. This is because investors can initiate arbitration to challenge the domestic laws of host states where the investors feel that their investment is not adequately protected. In most cases, the arbitrators render an award favouring the investors, and host nations are called upon to pay millions in damages to the investors; as most nations cannot afford the exorbitant amount of damages payable by them to the investors, they are often compelled to amend their regulatory laws to suit the investors. ISDS proceedings entail legal expenses in millions of dollars and the financial liability may itself suffice to bring the host nation to the negotiating table.
Critics fear that the ISDS mechanism has evolved as a tool for investors to badger host nations into amending their laws to favour the investors. Foreign investors have been known to use the ISDS mechanism to change the host State’s IP laws.
Investment treaties generally define ‘investment’ to include ‘intellectual property’. If investors feel that their IP is not adequately protected in a host nation, they often initiate arbitration proceedings claiming ‘expropriation’ of their IP.
In 2010, Philip Morris sued Uruguay for $25m dollars over its anti-tobacco laws which require that 80% of the cigarette packaging should bear warning signs about the hazards of cigarette smoking. Philip Morris brought the arbitration case under the Switzerland-Uruguay BIT (Philip Morris being headquartered in Switzerland) and claimed that Uruguay expropriated its IP because the company has effectively no space to advertise its trademark on the cigarette packaging. The case is awaiting a ruling on merits by the arbitral tribunal.
Potential investor-state disputes can also deter countries from enacting public-health legislation. When the Canadian Parliament wanted to introduce plain packaging rules in 1994, tobacco company, R.J. Reynolds, wrote to the Canadian government threatening to bring an investor claim for illegal appropriation of its trademark. Canada eventually succumbed and the plain packaging law never saw the light of the day.
The independence of arbitrators has become a contentious issue in investment arbitrations- since arbitration under the ISDS clause can be initiated only by the investor, arbitrators have an incentive to rule in favour of the investors who later hire those arbitrators as lawyers in other investment arbitrations involving the investors.
A likely model for ISDS can be the replacement of the investment arbitration system with an Investment Court System (ICS), as is currently being proposed by the European Union in the Transatlantic Trade and Investment Partnership (TTIP) Agreement with the United States. The ICS seeks to ensure the impartiality of adjudicators by establishing a permanent tribunal comprising Tribunal members who “shall refrain from acting as counsel or as party-appointed expert or witness in any pending or new investment dispute“. Additionally, the ICS would also include an Appeal Tribunal. If the ICS is adopted into the TTIP, other developed and developing nations are expected to follow suit to preclude the “privatization of justice” under the current investment arbitration regime and to protect their domestic laws.