WTO DISPUTE SETTLEMENT MECHANISM AND

RECENT INDIAN CASES

SUBMITTED BY: SUBMITTED TO:

DHARU RAM MR. BIPIN KUMAR

B.A. LL.B. (SEMESTER VI) ASSISTANT PROF. OF

ROLL NUMBER: 1434

NATIONAL LAW UNIVERSITY, JODHPUR

SEMESTER- VI

(JAN-MAY, 2019)
India at the WTO Dispute Settlement Body

India has consistently used the WTO dispute settlement body to secure its trade interests. To
date, India has been involved in 25 disputes as a complainant, 27 disputes as a respondent,
and 130 disputes as a third party.1 Nedumpara classifies India as a ‘repeat player’ in terms of
recourse to the WTO dispute settlement mechanism.2 The majority of the cases filed by and
against India concern measures adopted by the EU and the US, highlighting the high stakes
involved with these trading partners. An important point that Das and Nedumpara illustrate in
respect of India’s approach, is that ‘India has not hesitated to file disputes even against
countries with which it shares friendly political ties’ in order to secure its trade interests.3

The Brazil – Jute Bags dispute is an illustration in point, where India requested consultation
with Brazil regarding the latter’s decision to continue imposing anti-dumping duties on jute
bags made in India. This was done at a time when both India and Brazil were working closely
at the WTO as well as within the BRIC framework.4 Similarly, in EC – Tariff Preferences
India challenged tariff concessions that were given by the EU to ACP countries as well as
Pakistan, all of which are developing countries. This move might have jeopardised the
interests of these countries with whom India is collaborating in the Doha round of trade
negotiations.5 Other examples include EC – Sugar Subsidies, where India chose not to
intervene as a third party in favour of Mauritius despite having strong political, historical, and
cultural ties with this country.6 Even internal political pressures have not dissuaded India
from litigating a dispute at the WTO dispute settlement body.7

Despite the above, it should be noted that India prefers to settle WTO disputes rather than
litigate.8 For instance, India requested consultations with Poland on the issue of preferential
tariffs being granted to the EU for automobiles, which was settled by a mutually agreed

1
See, WTO, Cases involving India https://www.wto.org/english/thewto_e/countries_e/india_e.htm
Accessed on 18 March 2019
2
James J Nedumpara, ‘Naming, Shaming and Filing’: Harnessing Indian Capacity for WTO Dispute
Settlement’, (2013) V (1) Trade, Law, and Development 68, 96
3
Abhijit Das and James J Nedumpara, WTO Dispute Settlement at Twenty – Insiders’ Reflections on India’s
Participation (Springer 2016) 10
4
ibid
5
ibid
6
Baglihar Hydroelectric Plant, Expert Determination on points of difference referred by Government of
Pakistan under the provisions of Indus Water Treaty (‘Baglihar Dispute’)
http://siteresources.worldbank.org/SOUTHASIAEXT/Resources/223546-
7
ibid
8
Abhijit Das and James J Nedumpara, WTO Dispute Settlement at Twenty – Insiders’ Reflections on India’s
Participation (Springer 2016) 8
solution, without taking recourse to the establishment of a Panel.9 Similarly, a dispute with
the EU regarding the imposition of definitive anti-dumping measures on imports of certain
flat-rolled products of iron or non-alloy steel from India was settled by way of an agreement,
as the EU agreed to terminate the disputed measure.10 Following the Turkey – Textiles report,
as Turkey was unable to implement the rulings and recommendations of the DSB, India
concluded a mutually acceptable solution with this country by way of an agreement.11

India indeed requested authorization to retaliate only in the case of US – Byrd Amendment.12
This request however, as explained by Das and Nedumpara, should be seen as an exception
and in the larger context of the ‘overwhelming sentiment of the several WTO members
against the failure of the US to comply with the recommendations of the DSB’.13

As a respondent, India’s preference for settlement by agreement was reflected by its ability to
arrive at a mutually agreed solution in India – Quantitative Restrictions with Australia,
Canada, New Zealand, Switzerland, and the European Union. The exception was the United
States, where India followed the decision of the DSB.

Further, India has complied with all the decisions of the DSB, even when such compliance
led India to make substantive changes to its domestic laws and policies. Cases such as India –
Patents (US) and India – Quantitative Restrictions are a testimony to this fact. After India lost
the latter case, it did away with quantitative restrictions on imports in respect of all items,
thus marking a major change to its existing trade policy. Similarly, as a result of the decision
of the Appellate Body in India – Patents (US), India amended its patent legislation in 1999
and provided for the system of mailbox applications for pharmaceutical and agricultural
chemical products with retrospective effect from 1995, the date on which India was supposed
to have instituted a mailbox facility under TRIPS.14

India has also resisted certain proposed reforms in the DSU, emphasising the State-centric
nature of this framework. In the US – Shrimp,15 the Appellate Body held that the DSU

9
See, WTO, Poland – Import Regime for Automobiles (11 September 1996) WT/DS19/1
10
See, WTO, European Communities — Anti-Dumping Duties on Certain Flat Rolled Iron or Non-Alloy Steel
Products from India (27 October 2004) WT/DS313/2.
11
See, WTO, Turkey — Restrictions on Imports of Textile and Clothing Products (19 July 2001) WT/DS34/14
12
See, WTO, United States — Continued Dumping and Subsidy Offset Act of 2000 (11 November 2004)
WT/DS217/40
13
Das and Nedumpara (n 52) 12
14
See, Shamnad Basheer, ‘India’s Tryst with TRIPS: The Patents (Amendment) Act 2005’ (2005) 1 The Indian
Journal of Law and Technology 15, 27.
15
See, WTO, United States — Import Prohibition of Certain Shrimp and Shrimp Products WT/DS58/AB/R
accorded a Panel ample and extensive authority under art 13 to accept non-requested
information from non-governmental sources in a dispute, which was objected to by India.16
As a result of the experience in US – Shrimp, in the context of amicus curiae briefs, India
later asserted that ‘allowing non-members to participate and submit amicus curiae briefs
would undermine’ the intergovernmental character of the WTO dispute settlement,17 and
raised a cautionary note regarding the possibility of non-governmental entities advancing
their sectoral interests.18 India also asserted that allowing non-governmental entities to
influence the process and outcome of disputes, would severely erode the Member
governments’ authority and ability to participate effectively in the dispute settlement
process.19 India also suggested that if non-governmental entities are allowed, such entities in
the developing and the least developed countries would not be able to effectively participate
for lack of resources.20

On the other hand, several procedural proposals have been made by India. For example, India
proposed to fix the timeline for notification of mutually agreed solutions within 60 days and
in sufficient detail,21 and to adjust the terms of Appellate Body members as non-renewable
for a period of six years, so as to ensure that they do not have to depend upon WTO
membership in order to secure a second term.22 India has also advocated for greater rights for
third parties at the appellate stage. It has asserted for the right of third States having
substantial interest and having so notified the DSB, to make written submissions and to be
heard by the appellate body, which shall be reflected in the report of the appellate body. 23
India has also proposed to give a complaining party which is a developing country ‘the right
to seek authorization for suspension of concessions or other obligations with respect to any or
all sectors under any covered agreements’.24

16
Ibid
17
See, WTO, Negotiations on the Dispute Settlement Understanding, Proposals on DSU by Cuba, Honduras,
India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe, TN/DS/W/18 (7 October 2002),
http://commerce.gov.in/international_nextDetail_WTO.aspx?LinkID=31&id=43 accessed 10 March 2019.
18
Ibid
19
Ibid
20
Ibid
21
Ibid
22
Ibid
23
Ibid
24
Ibid