India and the Dispute Settlement Process
Chapter One Hundred Twelve
Syllabus topic 5, "Dispute Settlement Process"
Pages 512 to 516 of 533
In one line
India litigates a great deal, wins on rules and loses on industrial policy, complies after every adopted report against it, and since 2019 has three cases that cannot end.
In exam wording: India's participation in WTO dispute settlement is to be assessed by its record as complainant, respondent and third party, by the character of the measures it attacks and defends, by its compliance after adverse reports, and by the effect on it of the appellate deadlock.
The record
| Capacity | Approximate number | Character |
|---|---|---|
| Complainant | about 25 disputes | Mostly trade remedy measures of the United States and the European Communities |
| Respondent | about 30 disputes | Mostly industrial and agricultural policy instruments |
| Third party | well over a hundred | The cheapest form of participation, and the training ground |
| Appeals pending in the void | 3 | DS541, DS579 to DS581, DS582 |
Read the first two rows together and the pattern is plain. As complainant India challenges the way other members apply their trade remedy laws to Indian exporters, so its wins are about method: zeroing in the calculation of dumping margins, the standard for treating a State owned enterprise as a public body, the conditions on which preferences may be differentiated. As respondent India defends instruments of development policy: local content requirements, export incentives, import restrictions, sanitary bans and minimum prices for farmers. Those it has almost always lost.
The victories and the defeats are worked in [India and the WTO], and this chapter does not repeat them.
Why India wins on rules and loses on policy
Because the two categories of measure sit differently in the agreements.
A trade remedy dispute is about method, and the Anti-Dumping and SCM Agreements prescribe method in detail: how to compare prices under Article 2.4.2, when facts available may be used under Article 12.7, what makes an entity a public body. A complainant that can show a departure from a prescribed method wins without having to argue about the respondent's policy at all.
A development policy dispute is about an obligation with no development exception. Article III:4 of GATT and Article 2.1 of the TRIMs Agreement do not care why a local content requirement was imposed; Article 3.1(a) of the SCM Agreement prohibits export contingency outright; Article 7.2(b) of the Agreement on Agriculture prohibits support above de minimis whatever it is for. The general exceptions in Article XX contain no development head, and special and differential treatment in these agreements is transitional rather than permanent. So when India defends an instrument that is doing exactly what it was designed to do, the legal question is usually only whether the instrument exists.
Compliance
India has complied after every adverse report that was adopted, and the mechanism has varied.
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