International Law and diversity

There was this refreshing piece in the Intlawgrrls blog by Mereille Delmas-Marty titled "Internationalisation of Law - Diversity, Perplexity, Complexity".

Regarding the Diversity in International legal systems she said:

“Diversity of legal orders” may be considered by reference to different levels of organization, different fields of legislation, and different speeds of evolution.The different levels of organization are the national, regional, and global legal orders. The relationship among these orders is vertical. Yet it is not linear. To the contrary, it is discontinuous, incomplete; there are many gaps between these levels of law. ... 

In recent years, Pascal Lamy (below right), Director-General of the WTO, has spoken of the “triangle of global governance.” (photo credit) In his words:       

'On one side of the triangle lies today the G-20, replacing the former G-8 and providing political leadership, policy direction and coherence."

'The second side of the triangle is the United Nations, which provides a framework for global legitimacy through accountability.

'On the third side lie member-driven international organizations providing expertise and specialized inputs be they rules, policies or programmes.'

I do not fully agree with Lamy’s metaphor.

In my opinion, global governance is even more complex than Lamy admits. It involves not only the triangle to which he refers, but also at least one other – a triangle of nonstate actors, actors who have quite a bit of political power.

► On one side of this triangle may be found multinational corporations, many of them more powerful than small states.

► On the second side are civic actors; for example, non-governmental organizations and trade unions.

► On the third side lie scientific experts.

Explaining that the impact of this diversity is on creating a perplexity, she continues:

"If we focus on one of its effects, fragmentation, the answer likely will be “disruption.” Diversity seems unhealthy, a disease of the previous legal order. By this view, diversity causes legal disorder – conflicts and inconsistency, as evidenced by the debate over the relation between the WTO and the ILO. It even may be seen to cause arbitrariness, in that it gives judges more discretion to choose the legal principle on which they will rely – a discretion to engage in what we might call, not “forum-shopping,” but rather “legal-order-shopping.”

 But if we focus on another aspect of diversity – its fostering of a plurality of sources of law – our answer likely will be “irruption”; that is, the bursting forth of a new model. Diversity may be good for us, necessary in a transitional period. It opens the way to combining different objectives in a pluralistic and open-minded spirit – something we have seen in the emergence of sustainable development. Diversity prepares legal orders for metamorphosis."

 The piece finally says that the complex legal systems must be transformed into a pluralistic legal order. One sees complex international systems pertaining to the environment, human rights, labour, currency manipulation and trade coalescing together with jurisdictional and ideological overlaps. How does one reconcile these seemingly conflicting forces in the rubric of international law? Is this a melting pot or atleast a meeting point? Altogether some fodder for thought!

India takes on the U.S in relation to high Visa fees

Reports of a trade dispute between India and the U.S. were reported (here and here) regarding the hike in US Visa fees for H-1B and L-1 Visas. The WTO website has not yet  reported any request for consultation from India under the Dispute Settlement Mechanism. Nevertheless, the issue of the hike in Visa fees has been one of the prickly points in India-US trade relations. This US Congressional Research Study Report cites the issue of H-1B visas as one of the key trade issues between the countries.


The US law in question is the Public Law 111-230 enacted in August 2010 which raises the visa fees in the case of non-immigrant foreign skilled workers for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant's employees are nonimmigrants.

"SEC. 402. (a) Notwithstanding any other provision of this Act or any other provision of law, during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)) shall be increased by 2,250 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to section 101(a)(15)(H)(i)(b) of such Act or section 101(a)(15)(L) of such Act. 

(b) Notwithstanding any other provision of this Act or any other provision of law, during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) shall be increased by $2,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act."

The WSJ had covered the issue well in 2010 with this piece. Not surprisingly, Indian Technology companies are the most affected because of the percentage of employees from India in the U.S.

The main legal issue is whether the US law which increases the visa fees is in violation of US obligations/commitments under the General Agreement on Trade in Services (GATS). The GATS outlines the multilateral rules for trade in services. Apart from general provisions that all members are committed to, there are country specific commitments in various sectors and modes of supply of services.

The Preamble to the GATS, inter alia, states :

"Wishing to establish a multilateral framework of principles and rules for trade in services with a view to the expansion of such trade under conditions of transparency and progressive liberalization and as a means of promoting the economic growth of all trading partners and the development of developing countries"

Article VI (1) of the GATS states that "In sectors where specific commitments are undertaken, each Member shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner."

Further, as regards, U.S' commitments under the GATS with respect to this sector, they allow  the temporary admission of nonimmigrant specialty workers under the H-1B and L-1 visa provisions.  Specifically, the U.S. GATS Schedule states that the United States has no commitments  (i.e., the U.S. is “unbound”) with respect to Mode 4, except for specified market access commitments relating to the temporary entry and stay of certain categories of individuals.

 These commitments include: 

-  Intra-corporate transfers of managers, executive and specialists for a period of up to 5 years (three years initially, with the possibility of a two-year extension); 
-  Managers or executives engaged in establishing a commercial presence, with operations to begin within one year; and 
-  Entry of up to 65,000 persons annually (worldwide) who are engaged in “specialty occupations” as set out in 8 USC § 1101(a)(15)(H)(i).  


This policy brief by Stephen Claeys of the National Foundation for American Policy details out the possible violation of US commitments under the GATS due to the increased fee on specialised visas.

"Significantly increasing the fees for certain H-1B  and L-1 visas may be likely to violate U.S. obligations under GATS.  As discussed above, the United States specifically committed in its GATS schedule to allow the temporary entry and stay of individuals under the H-1B and L-1 visa provisions, as they existed when the United States joined the GATS in 1994.  Accordingly, additionally restricting the availability of H-1B and L-1 visas could violate this commitment. 

An important issue is whether increasing the fees for L-1 visas by $2,250 and for H-1B visas by $2,000 does indeed restrict the availability of these visas.  Before this legislation, the anti-fraud fee was $500 for both L-1 and H-1B visas, and remains so for all employers except those targeted in this legislation.

 Thus, with the new fees, the fees for certain and H-1B and L-1 visas increases by approximately four times. These are significant increases in the fees required for L-1 and H-1B visas and arguably reduce their availability. 

Moreover, reducing the availability of L-1 and H-1B visas to certain employers was the only reason expressed by Congress for increasing the fees. Senator Schumer’s floor statements in support of the higher fees explicitly indicated that the fees would restrict the availability of certain L-1 and H-1B visas.  Thus, Congress certainly intended for the increased fees to reduce the availability of L-1 and H-1B visas. 

Supporters of the increased fees may argue that these increases can easily be borne by those companies applying for the visas, so they do not constitute much of a restriction.  If a WTO Member alleges that the increased fees violate the United States’ GATS commitments, whether or not the higher fees have such a commercial impact as to constitute an additional restriction could be an issue that the WTO Dispute Settlement Body will need to decide.  However, the fact that the increased fees were explicitly imposed to restrict the availability of certain L-1 and H-1B visas makes such a commercial effects analysis less relevant. 

The additional visa fees may also violate the United States’ general commitments under GATS.  GATS Article VI requires Members to ensure that “all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.”   The term “affecting” trade in services has been interpreted broadly.Thus, the increased visa fees could be found to affect the provision of services through the presence of natural persons, or the establishment of a commercial presence.  Such a restriction could be allowed if it has a reasonable justification, but the justification for the fees given on the Congressional floor of restricting the availability of L-1 and H-1B visas is unlikely to be found reasonable."

A more detailed legal analysis is found here by Jochum Shore & Trossevin, PC. While the jury is still out on the violation of GATS violation by the U.S (there is a long way to go before a panel is set up on this issue), the issue raises issues of immigration control, trade and domestic policy space.

1.While the U.S. has committed to certain obligations under GATS, does an increase in fee tantamount to a measure that is unreasonable and partial in its application? Is it disguised "protectionism"? If the US maintains its commitment numerically in terms of the number of visas granted inspite of the rise in fees, would it be a violation of its obligations? 

2. Further, would the evidence of decreased number of visas granted as well as increased rejection of visas be a ground to challenge the law as being violative of its GATS obligations. 

3. Is the request for consultations from India also a sign of increasing readiness to engage with the WTO to seek trade remedies?

4. Going by the time frame of some of the other disputes, it is highly possible that no decision can be expected (including the Appellate Body) before 2013. Would post election America have a different policy on this? 

Since the measure (increased fees) is to stay till September 2015, it would be worthwhile for India to take it to its logical conclusion in the DSM. It will atleast enrichen the interpretation of the GATS Agreement as well as interpretation of country specific commitments and have repercussions for the "outsourcing" controversy that has plagued Indo-US relations for sometime now.

Looking forward to this debate on the WTO

Opinio Juris and Virginia Journal of International Law have an interesting online symposium which has, inter alia, two articles on the WTO to be discussed:


1.Interpretation and Institutional Choice at the WTO - By Gregorry Shaffer and Joel Trachtman (I had blogged about this article here)


2. Beyond Rationality: A Sociological Construction of the World Trade Organisationtion by Sungoon Cho (I had blogged about it here)


Will be looking forward to hearing responses from Rachel Brewster, Robert Howse and Joost Pauwelyn on these articles. Promises to be an interesting debate.

India, China and Antidumping - A few thoughts

The Harvard International Law Journal recently had an incisive and scholarly piece titled 'Antidumping in Asia's Emerging Giants"  on the antidumping measures adopted by China and India. In this article Mark Wu explains that the increasing adoption of antidumping measures by China and India was a sign of "protectionism" and the U.S and EU should consider spearheading the reform of antidumping law within the WTO.

"Therefore, if we are to reform the international law on antidumping, now is the time to do so. The United States and EU are understandably reluctant, as the existing antidumping rules work to their producers’ advantage today. But this study cautions that, without reforms, this will unlikely be true in the long-run as India and China expand their use of antidumping sanctions against the United States and EU. Instead of being myopically focused on near-term interests, as Congress has been, U.S. policymakers need to recognize that U.S. long-term interests are best served by a less-permissive international legal standard governing the imposition of antidumping sanctions. Moreover, from a negotiating standpoint, it makes sense to seek reforms now. While the rules are perceived to be to their advantage, the United States and EU can extract concessions in other areas in return for agreeing to reforms. And in negotiating from a position of strength, the United States and EU will be better able to dictate the outcome of the reform proposals.

The case for reform becomes even more convincing once one considers national welfare, more fully defined, as well as general global welfare. Antidumping, as an economically-inefficient instrument, is not welfare-maximizing, either at the national or global level. On the domestic front, public choice theory explains why antidumping trade policy has been captured by producers. But if consumer welfare is brought back into the picture, then enacting reforms that further restrict countries’ ability to levy antidumping sanctions becomes a welfare-enhancing move, even today, when the existing standard works to U.S. producers’ advantage. From a global standpoint, antidumping duties trigger welfare-distorting effects that are often most harmful to developing countries. Frequently, the sanctions result in not only overall welfare loss, but welfare transfers from producers in developing countries to those in developed countries. Even countries not directly targeted are affected by trade-distortion effects. Reforms serve to minimize such distortions, increase global welfare, and increase distributive justice."

Making a detailed analysis of antidumping measures adopted by China and India, Mark Wu indicates that there is cause for concern in the use of these measures and an urgent need of reform in rules of trade concerning antidumping.

"In shaping the international law on antidumping, the United States and EU embraced a permissive legal standard, divorced from economic theory, which legitimized their own protectionist use of antidumping laws. Until recently, that standard served their industries well, albeit often at the expense of consumers. The rules legitimized their efforts to protect domestic industries from increased foreign competition when there was not necessarily an economic basis for doing so. However, others have learned to play this harmful game. Over the course of a decade, China and India—two longstanding targets of antidumping sanctions—have rapidly emerged as antidumping powerhouses. These two countries are now the source of more antidumping cases than the United States and EU combined. To date, the United States and EU have not treated this shift as cause for alarm. I suggest that this is a mistake. True, there may not be an immediate cause for concern. India and China are playing within the bounds of international law, and the current global antidumping rules continue to work in favor of American and European producers. But there is reason to believe that, contrary to the prevailing view, India and China’s use of antidumping measures will continue to grow and outpace the United States and EU’s use in the years ahead.

Scholars and policymakers have assumed that India and China’s recent rising use is a fleeting anomaly, triggered by historic tariff cuts and a need to retaliate against other countries that are targeting them. In fact, this is not fully correct. Many industries in India and China have yet to discover the utility of antidumping laws. China has not yet fully embraced a strategy of using antidumping sanctions as a retaliatory instrument. And retaliation does not explain why India continues to use antidumping sanctions aggressively, even after others have ratcheted down their use of antidumping sanctions against India. These signs suggest that India and China’s use of antidumping sanctions as a protectionist instrument will not level off in the years to come. Instead, as their domestic markets grow, American and European exporters will likely incur larger costs from antidumping duties imposed by India and China. 

For the United States and EU, if the current rules remain unchanged, then one day in the not-too-distant future, the net advantage that they currently enjoy will disappear. Therefore, while India and China still remain supportive of the notion of antidumping reform, the United States and EU should work to reshape the rules governing the imposition of antidumping sanctions. Rather than blocking reform efforts, as they have done, the United States and EU should be actively championing proposals in the Doha Round negotiations that will make it more difficult to enact antidumping duties for protectionist purposes. In other words, the United States and EU should be dismantling the permissive legal standard that they helped put in place. If they do not, they risk the danger that the standard will soon come to serve other countries’ protectionist interests more than their own."

Opinio Juris carried a response from Scott Kennedy on this piece as well as a rebuttal from Mark Wu.

I am not an expert in international law nor antidumping jurisprudence. However, several questions come to my mind:


1. Is the use of antidumping measures perse "protectionist" if they are within the limits of WTO law? Is not the legitimate use of antidumping measures within international law? Is the legal utilisation of antidumping rules in the WTO a "protectionist" tool?


2. While the western world has earlier extensively used antidumping measures to protect domestic industry, is it illegal or unethical now for the developing world to do so? Is protecting one's domestic interest (albeit producer's interest) as per permissible multilateral rules being "protectionist"?


3. Is it not legitimate to use trade rules within permissible boundaries to ensure domestic interests are protected? Why is there a need for reform when developing countries begin to understand and use the system while the rules are "fair" when the developed world uses it?


4. As long as India and China are playing by the rules of the game, should it not be perfectly legal to use these measures? After all the WTO Agreements permit such actions. This is not to suggest that the developing world never misuses antidumping measures to unfairly protect its domestic industry. However, does this justify the rethink to the rules themselves?


5. While there may be an economic rationale against the use of antidumping measures or the methodology involved in coming to a conclusion about dumping, should this be a ground for challenging the rules only when the developing world begins using the measures?


6. Reform of the rules may be a requirement. However, is it justified to attribute the need for reform to the extensive use of antidumping measures by the developing world?


7. While the developed world has used the same standards in the past why is it alarming now when the same standards are being used by the developing world. Are international trade rules only for the developed world to further their national interest?

8. I had earlier blogged about Alvaros Santos' article on domestic policy autonomy and the developing countries exercising their rights within the WTO. Does the reliance on antidumping within the limits of WTO rules signify the legitimate use of domestic policy space by India and China? is it not effective use of legal strategy to meet "developement goals"?

Seeking answers.

Of Cigarettes and domestic policy space - WTO overrules the U.S.

The Cloves Cigarette dispute is in the news again. The Appellate Body recently in the matter relating to the US ban of clove cigarettes upheld the decision of the Dispute Panel of the WTO, albeit for different reasons. It held the measure of the ban of clove cigarettes while allowing menthol cigarettes as inconsistent with US' obligations under the TBT Agreement. 

The summary of conclusions is found here on the WTO website. The essential finding of the Appellate Body (AB) was that clove cigarettes and menthol cigarettes we "like products" under Article 2.1 of the TBT Agreement and that banning the former (imported product) while not banning the latter (domestic product) was according a less  favourable treatment to clove cigarettes and thus violating Article 2.1 of the TBT Agreement. The ruling also analyses various other issues relating to the TBT Agreement that I am not going into here. Suffice it to say that the ruling discusses in detail the jurisprudence surrounding the "like product" test as well as the limits to domestic policy space n the context of the TBT Agreement. The IELP blog has a very lively discussion on the "like product" analysis here.

The AB came to the conclusion on "like products" thus:

"                 Conclusion on "Like Products"

156. We have disagreed with the Panel's interpretation of the concept of "like products" in Article 2.1 of the TBT Agreement, which focuses on the purposes of the technical regulation at issue, as separate from the competitive relationship between and among the products.  In contrast, we have concluded that the context provided by Article 2.1 itself, by other provisions of the TBT Agreement, by the TBT Agreement as a whole, and by Article III:4 of the GATT 1994, as well as the object and purpose of the TBT Agreement, support an interpretation of the concept of "likeness" in Article 2.1 that is based on the competitive relationship between and among the products and that takes into account the regulatory concerns underlying a technical regulation, to the extent that they are relevant to the examination of certain likeness criteria and are reflected in the products' competitive relationship.

157. As a consequence of our interpretative approach to the concept of "like products" in Article 2.1 of the TBT Agreement, we have also disagreed with the Panel's decision to examine the extent of substitutability of clove and menthol cigarettes from the perspective of a limited group of consumers, that is, young smokers and potential young smokers.  We have, nevertheless, considered that the Panel's error does not vitiate the conclusion that there is a sufficient degree of substitutability between clove and menthol cigarettes to support an overall finding of likeness under Article 2.1 of the TBT Agreement.  We have also determined that the Panel's decision that it could not rely on certain evidence submitted by the parties did not amount to an error under Article 11 of the DSU.

158. In respect of end‑use, we have disagreed with the Panel's conclusion that the end‑use of clove and menthol cigarettes is simply "to be smoked".  Nevertheless, we have considered, based on the Panel's findings, that both clove and menthol cigarettes are capable of performing the more specific end‑uses put forward by the United States, that is, "satisfying an addiction to nicotine" and "creating a pleasurable experience associated with the taste of the cigarette and the aroma of the smoke".[1]  We have thus concluded that the different end‑uses of clove and menthol cigarettes support the Panel's overall finding of likeness.

159. Finally, we observe that the United States has not appealed the Panel's findings regarding the physical characteristics and the tariff classification of clove and menthol cigarettes.  The Panel found that clove and menthol cigarettes are physically similar as "they share their main traits as cigarettes, that is, having tobacco as a main ingredient, and an additive which imparts a characterizing flavour, taste and aroma, and reduces the harshness of tobacco"[2];  and that they are both classified under subheading 2402.20 of the Harmonized Commodity Description and Coding System.[3]

5.                  In the light of all of the above, while we disagree with certain aspects of the Panel's analysis, we agree with the Panel that the "likeness" criteria it examined support its overall conclusion that clove and menthol cigarettes are like products within the meaning of Article 2.1 of the TBT Agreement.  Therefore, we uphold, albeit for different reasons, the Panel's finding, in paragraph 7.248 of the Panel Report, that clove cigarettes and menthol cigarettes are like products within the meaning of Article 2.1 of the TBT Agreement."

The purpose of this blog piece is not to discuss the legal aspects of the ruling in detail. That is for another day. A few other thoughts on the impact of this decision:

1. The US administration as a domestic policy choice with a stated objective (dissuade smoking in younger populations) wanted to treat certain kinds of cigarettes differently. Both domestic and imported cigarettes of "these categories" were treated the same. Yet, the interpretation of international trade rules nullified this measure on the ground that this categorisation was not sufficient since other categories of cigarettes constitute like products and hence cannot be treated less favourably. Hence, though all clove cigarettes whether domestically produced or imported were treated on par (banned) since menthol cigarettes could be produced domestically, this amounted to a less favourable treatment to imported clove cigarettes even though the US, in its domestic policy wisdom, treated them differently. This is a classic case of a constraint on domestic policy space in the context of multilateral trade rules wherein certain measures can be challenged in the WTO which otherwise seemingly appear to be well within national domains.

2. The decision of the AB would be viewed in the US by some quarters as an assault on American domestic policy space and power. The DSM once again establishes its supremacy as a rule based system not whittled down by the power of trading partners. Decisions are based on legal interpretations of rules and jurisprudence. 

3. It would be interesting to see how the US reacts to this decision in terms of compliance - would it bring its domestic law in conformity or would it prefer to pay compensation or would it continue with non-compliance? In the last instance, Indonesia would have the authority to retaliate. How feasible is that keeping in view the trade relations as well as  the political economy realities of international trade between the US and Indonesia?

4. Another interesting aspect of the AB decision was the non-reliance on amicus curiae briefs as well as the help offered by the World Health Organisation. Deliberate avoidance of institutional overlap in the case of the latter?

Parag Khanna on the Future of Globalisation

I found this interesting talk by Parag Khanna on the future of globalisation here. He talks about the triad of geo-politics, geo-economics and geo-technology. An interesting listen!

Dispute Settlement at the WTO

The Dispute Settlement mechanism at the WTO has been considered as one of  the cornerstones of the multilateral trading system due to it's rule based approach, predictability and effective way of handling complex, trade issues between countries. It's effectiveness has been recognised across the board and the increasing use of the forum for dispute settlement is evidence of its success.

Deputy Director General of the WTO Alejandro Jara while addressing ways to improve the Dispute settlement process suggested a number of steps namely double-briefing, early questions for the panel briefing, time limits on oral submissions, agenda for the pane meetings, page limits for executive summaries, reduction on annexures and electronic filing of submissions to improve the DSM process. The aim is to reduce delays in the system in order to ensure timely settlement of disputes. National judicial systems across the world are normally plagued by inordinate delays in settlement of disputes due to a variety of reasons. That would be disastrous for the WTO since the effectiveness of the dispute settlement mechanism would be severely affected. Some disputes at the DSM are showing signs of prolonging beyond a reasonable time - the Airbus Boeing case is a classic example.This does not augur well for the DSM process.

I found this interesting statistic from Jara's address on the costs of litigation at the WTO:

" Dispute settlement currently costs an estimated $30 million annually.  Let me provide just a few examples:

• The cost of engaging experts in a single dispute has ranged from CHF 3,000 to CHF 88,800;

• The average annual cost of shipping printed documents to panelists, parties and experts is CHF 60,000;

• The cost of translation is estimated at CHF 300 per page;

• Five Appellate Body proceedings conducted in 2011 (excluding the two large civil aircraft disputes), resulted in the production of 8,244 pages.  Just work out the numbers!"

The costs and complexity of dispute settlement at the WTO is one of the inhibiting factors for developing and least developing countries to engage as actively as the developed world in the forum. While steps to improve the process must be immediately undertaken, countries should build internal capacity as well as competence to use the DSM to protect one's legitimate rights in the context of international obligations. As a country gets integrated into the world economy and its percentage of trade with the outside world increases, the possibility of being either dragged into a dispute or the need to use the dispute settlement mechanism to protect one's interests will rise. There would be a need to consciously devise a strategy to utilise this mechanism in a way permitted by the international obligations.