LLM Group 2 Business Law Global Trade Under World Trade Organisation 2024 Question Paper with Solutions

Why a new round was needed

By the early 1980s GATT was succeeding at what it did and failing at everything it did not do. Seven rounds had cut industrial tariffs in the developed world from about forty per cent to under seven. But protection had migrated. Voluntary export restraints, orderly marketing arrangements and other grey area measures now covered a large share of trade in steel, automobiles, machine tools and electronics, and they sat outside Article XI because they were formally imposed by the exporter. Agriculture stood almost wholly outside the disciplines, protected by the American waiver of 1955 and by the European Community's variable levies and export restitutions. Textiles were governed by the Multi Fibre Arrangement of 1974, a licensed derogation from Articles I and XI.

Three further pressures were building. Services had become the largest sector of developed economies and were being traded, but GATT covered goods only. Counterfeiting and the absence of pharmaceutical product patents in countries like India were a first order commercial grievance in the United States, which had begun to use section 301 of the Trade Act of 1974 unilaterally. And the dispute procedure could be blocked at will, which meant the rules were unenforceable against a determined respondent.

Montreal, December 1988: the mid term review. Agreement was reached on the framework for services, on a trade policy review mechanism and on improvements to dispute settlement, and deadlock was declared on agriculture, textiles, intellectual property and safeguards. The agricultural stalemate was between the United States and the Cairns Group, which wanted deep cuts, and the European Community, which would not accept binding reductions in domestic support. The review was suspended and resumed in Geneva in April 1989.

Brussels, December 1990: collapse. The Round was to have ended. It broke down entirely on agriculture, the European Community refusing the reduction commitments demanded. Latin American delegations walked out. The Round was declared to be in crisis and the deadline abandoned.

15 December 1993: the Round concludes at Geneva, after the United States negotiating authority deadline forced closure. 15 April 1994: the Final Act is signed at Marrakesh by one hundred and twenty three participants, together with the Agreement Establishing the World Trade Organization and the Ministerial Decisions and Declarations. Entry into force was 1 January 1995.

What the Round produced

A new organisation with legal personality, a Ministerial Conference, a General Council and three sectoral Councils. A restated GATT, GATT 1994, with six Understandings and the Marrakesh Protocol carrying the Schedules. Twelve specific agreements on goods, of which the new ones were Agriculture, Sanitary and Phytosanitary Measures, Trade Related Investment Measures, Safeguards, Rules of Origin, Preshipment Inspection and Textiles and Clothing, and the revised ones Anti-Dumping, Subsidies, Customs Valuation, Technical Barriers and Import Licensing.

Two new pillars, GATS and TRIPS. A new dispute settlement system with negative consensus and an Appellate Body. A Trade Policy Review Mechanism. And, in numbers, tariff reductions averaging about a third, tariffication of agricultural protection with reduction commitments, and the phase out of the Multi Fibre Arrangement quotas by 1 January 2005.

Third, the dispute settlement reform required an organ. Negative consensus needs a body that meets, has a chairman, and can be deemed to have decided. The DSU therefore had to be annexed to a constituent instrument creating such a body, and Article IV:3 supplies it by making the General Council sit as the Dispute Settlement Body. A single integrated procedure covering goods, services and intellectual property also required a single forum, which is Article 1.1 and Appendix 1 of the DSU.

Fourth, the idea was not new and its history should be given. The Havana Charter of 24 March 1948 had provided for an International Trade Organization, and GATT was only its detached commercial policy chapter, brought into force provisionally in 1948 because the Charter was awaiting ratification that never came. Canada proposed a Multilateral Trade Organization in April 1990; the European Community supported it; the United States resisted until late in the Round and secured the change of name to World Trade Organization. So the WTO is the completion of an unfinished design of 1948, and Article XVI:1 of the Marrakesh Agreement, binding the new organisation to GATT's decisions and customary practices, is the drafting that makes the continuity legal.

The case that decides what the Round actually created, worked out

The Uruguay Round's legal effect was litigated within three years of its entry into force, and the answer is not the obvious one.

Brazil: Measures Affecting Desiccated Coconut, WT/DS22/AB/R, Appellate Body report adopted 20 March 1997.

The facts. Brazil imposed a countervailing duty on desiccated coconut from the Philippines. Both the investigation and the imposition predated 1 January 1995. The Philippines complained after that date and argued that, because the duty remained in force, it had to be tested against the new SCM Agreement and GATT 1994, which contain disciplines the Tokyo Round Subsidies Code did not.

The issue. Did the Round replace GATT 1947, so that everything in force on 1 January 1995 fell to be judged under the new agreements, or did it enact a new instrument applying only prospectively?

Conclusion. The Uruguay Round ran from the Punta del Este Declaration of 20 September 1986 to the Marrakesh Final Act of 15 April 1994, through the Montreal mid term review of 1988, the collapse at Brussels in December 1990, the Dunkel Draft of 20 December 1991 and the Blair House accord of November 1992. It was called because GATT could not reach grey area measures, agriculture, textiles, services or intellectual property, and could not enforce what it did reach.

It created the WTO because the three central innovations of the Round each required an institution: the single undertaking needed one instrument to annex the package to, the new pillars needed a common roof under Article II:2, and negative consensus needed a standing body to decide automatically under Article IV:3. In creating it the Round completed the design of the Havana Charter of 1948, which is why the Marrakesh Agreement reads in part like a succession instrument and why the substantive rules of world trade law are still, in their text, the rules written in 1947.

Its cause was a diagnosis of the interwar collapse, and the diagnosis is what the institutions were built against. After 1929 states abandoned the gold standard, devalued competitively, imposed exchange controls, entered bilateral clearing arrangements that discriminated against third countries, and raised tariffs, the Smoot Hawley Tariff Act of 1930 being the standing American example. The value of world trade fell by about two thirds between 1929 and 1934. The planners believed that this "beggar my neighbour" sequence had produced unemployment, then political extremism, then war, and that the remedy was institutional rather than exhortatory.

The conference was organised into three Commissions and that structure explains the outputs. Commission I, on the International Monetary Fund, was chaired by Harry Dexter White, Assistant Secretary of the United States Treasury. Commission II, on the Bank for Reconstruction and Development, was chaired by John Maynard Keynes, leader of the British delegation. Commission III dealt with other means of international financial cooperation. Keynes had drafted the British plan and was given the Bank, which was regarded as the lesser subject, while the American Treasury kept the Fund.

India's participation is worth a paragraph in an Indian answer. India attended in its own name though not yet independent, its delegation led by Sir Jeremy Raisman, Finance Member of the Viceroy's Council, and including Sir Chintaman Deshmukh, Governor of the Reserve Bank, and A. D. Shroff and Sir Shanmukham Chetty. India's principal objective, the liquidation of the very large sterling balances Britain had accumulated in wartime purchases from India, was pressed on the conference and refused as a bilateral matter. India did secure the fifth largest quota among the original members and became a founder member of both institutions.

The agreements that resulted

The Final Act of the Conference, signed 22 July 1944. It is the umbrella document. It contains the two Articles of Agreement as annexes and, importantly for this subject, a set of recommendations, of which the third recommends that the participating governments seek agreement as soon as possible on ways to reduce obstacles to international trade. That recommendation is the seed of the Havana Charter and, at long remove, of the WTO.

Its machinery. Quotas, determining subscription, drawing rights and voting power, with major decisions requiring eighty five per cent so that the largest shareholder has an effective veto. A Board of Governors, an Executive Board of twenty four and a Managing Director. Par values expressed in gold or in United States dollars of the weight and fineness of 1 July 1944, alterable only for a fundamental disequilibrium and, beyond a narrow margin, with the Fund's concurrence, with the dollar convertible into gold at thirty five dollars an ounce. Article VIII obliged convertibility for current transactions; Article XIV permitted transitional restrictions, which India used until 1994.

The Articles of Agreement of the International Bank for Reconstruction and Development. Its purposes are to assist in the reconstruction and development of members' territories by facilitating investment of capital for productive purposes, to promote private foreign investment by guarantee or participation, and to promote the long range balanced growth of international trade and the maintenance of equilibrium in balances of payments. Its method is entirely unlike the Fund's: it borrows on private capital markets against callable capital subscribed by members, and lends to governments or under a government guarantee, project by project. Voting is weighted by shareholding.

President Truman declined to submit it to the Senate once ratification became hopeless in 1950. Meanwhile its commercial policy chapter had been detached and brought into force on 1 January 1948 as the General Agreement on Tariffs and Trade, under a Protocol of Provisional Application, so that the tariff concessions negotiated at Geneva in 1947 would take effect immediately. The result was that two of the three intended institutions existed and the third was replaced by a provisional agreement for forty seven years, until the Marrakesh Agreement of 15 April 1994.

What became of the settlement, and why a trade lawyer still cares

The par value system ended between 1971 and 1973. The United States suspended gold convertibility on 15 August 1971; the Smithsonian Agreement of December 1971 devalued the dollar and widened the bands; by March 1973 the major currencies floated. The Second Amendment to the Fund's Articles, in force 1 April 1978, abolished the par value obligation, demonetised gold and substituted surveillance of members' exchange rate policies under a revised Article IV. Special Drawing Rights had been created by the First Amendment in 1969, and the largest allocation in the Fund's history, about six hundred and fifty billion dollars, was made on 23 August 2021.

One case makes the link concrete. In India: Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, India defended import restrictions on more than two thousand seven hundred tariff lines under Article XVIII:B. The Fund's assessment that India's reserves were adequate was accepted by the panel, India's argument that only the Balance of Payments Committee and the Fund could decide the question was rejected, and India lost; the restrictions were phased out by 1 April 2001 under a bilateral agreement with the United States. The monetary institutions of 1944 therefore decided a trade case in 1999, which is the best available demonstration that the three pillars were designed as one system.

The case in which the Bretton Woods institutions decided a trade dispute

This question is usually answered without a single authority. There is one, and it is the case in which a finding by the International Monetary Fund ended an Indian trade regime.

India: Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999.

Why it bears on the agreements that came out of the conference. The Articles of Agreement of the Fund were drafted to police exchange rates, and they ended up policing a trade regime, because the trade pillar, when it was finally built in 1995, was written to defer to the monetary one. Article XV of GATT and Article III:5 of the Marrakesh Agreement, requiring the WTO to cooperate with the Fund and the Bank for greater coherence, are the drafting; this case is the drafting in operation. The Indian coda is that it was the 1991 balance of payments crisis and the resulting Fund programme which began dismantling the very licensing system the Fund's finding would later condemn.

Conclusion. The Bretton Woods Conference was the United Nations Monetary and Financial Conference of 1 to 22 July 1944, at which forty four nations, India among them, sat in three commissions under White and Keynes and settled the post war economic order on the American rather than the British design. It produced a Final Act, the Articles of Agreement of the International Monetary Fund, the Articles of Agreement of the International Bank for Reconstruction and Development, and a recommendation that trade barriers be tackled separately; the first three in force on 27 December 1945 and the last leading to the Havana Charter of 24 March 1948 and its failure.

For full marks, cover: the four instruments as one scheme rather than four definitions. GATT's basic policy is that protection may be given by a bound tariff and by nothing else; quantitative restrictions are therefore prohibited, and the three remedies are the narrow, conditional exceptions through which protection may lawfully be restored. Give each its article, its conditions, one case and its Indian statutory provision.

The organising idea, and it should be the first thing on the page. GATT expresses a preference among instruments of protection. A tariff is transparent, it is bound under Article II, it raises revenue, and its effect is proportionate to price. A quota is opaque, it hands a rent to whoever holds the licence, it severs the link between world and domestic prices, and it is administratively discriminatory. Article XI therefore prohibits quotas outright while Article II merely caps tariffs. The three trade remedies are the exceptions: they permit a member to raise protection above its bound level, but only after an investigation, on stated conditions, for a limited time, and, in the case of a safeguard, at a price.

Article XIII requires that any permitted restriction be applied non discriminatorily, with allocation among supplying countries approximating the shares they would have had without it. Article XIV allows limited exceptions to Article XIII. Article XX and Article XXI apply to quotas as to anything else. And the Agreement on Agriculture required tariffication: Article 4.2 forbids members to maintain measures of the kind that had to be converted into ordinary customs duties.

India's history under Article XI is the local illustration. India maintained import licensing on thousands of tariff lines for decades under Article XVIII:B. In India: Quantitative Restrictions, WT/DS90/AB/R, adopted 22 September 1999, the panel and Appellate Body held that the balance of payments justification had ceased to be available on the Fund's assessment of reserves, and that the DSB was competent to decide the question. India lost. The restrictions on 2,714 tariff lines were phased out by 1 April 2001, and section 3 read with section 5 of the Foreign Trade (Development and Regulation) Act, 1992 remains the domestic power under which import prohibitions and restrictions are notified.

Article 2.4 requires a fair comparison at the same level of trade, with adjustments; Article 2.4.2 governs the calculation of margins and is the source of the zeroing litigation, in which the practice of treating negative margins as zero was repeatedly condemned, notably in United States: Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, and in the softwood lumber and EC: Bed Linen line of cases.

Three findings are required before a duty may be imposed, and Article 9.1 makes the duty permissive rather than mandatory: dumping, material injury or threat of material injury to the domestic industry or material retardation of its establishment, and a causal link. Article 3 governs injury, requiring examination of volume, price effects and the impact on the industry, and Article 3.5 requires other causes not to be attributed to the dumped imports.

Safeguards: Article XIX and the Agreement on Safeguards

A safeguard is protection against fair trade, and because nobody has done anything wrong it is the most conditional of the three. Article XIX:1(a) permits a member, if as a result of unforeseen developments and of the effect of its obligations a product is being imported in such increased quantities as to cause or threaten serious injury to domestic producers of like or directly competitive products, to suspend the obligation or withdraw or modify the concession. Serious injury is defined in Article 4.1(a) of the Agreement as a significant overall impairment of the position of the industry, which is a higher bar than material injury.

The conditions. A published investigation with notice and hearing, Article 3. Causation on objective evidence with non attribution, Article 4.2(b). Application irrespective of source, Article 2.2, so a safeguard cannot be targeted. Four years, extendable to eight, ten for a developing country, Article 7. Progressive liberalisation, Article 7.4. No repeat on the same product for a period equal to the last, minimum two years, Article 7.5.

In India the power is section 8B of the Customs Tariff Act, 1975 with the Safeguard Duty Rules, 1997, and section 8C provided the special China safeguard. India's best known use was the safeguard duty on solar cells and modules imposed in July 2018 for two years, which is a good illustration of the trade off, since it protected domestic manufacturing while raising the cost of the solar capacity the same government was promoting.

Countervailing measures: Articles VI and XVI and the SCM Agreement

A countervailing duty is a remedy for another member's wrongful conduct, which is why, unlike a safeguard, it costs nothing to use. Article 1.1 of the SCM Agreement defines a subsidy as a financial contribution by a government or public body, or income or price support, conferring a benefit; Article 2 requires specificity. Article 3 prohibits export subsidies and local content subsidies outright. Article 5 makes other specific subsidies actionable where they cause injury, serious prejudice or nullification. The Article 6.1 presumptions and the Article 8 green box of non actionable subsidies lapsed on 31 December 1999 and were never renewed.

The scheme seen whole

Conclusion. The importance of these four instruments is that together they define how far a member may go beyond its bound tariff. Article XI makes the quantitative restriction the prohibited instrument, because a quota is opaque, rent creating and inherently discriminatory, and India's own defeat in India: Quantitative Restrictions shows how narrow the balance of payments escape has become.

For full marks, cover: the background compactly, because the marks in this stem sit in the second half; then the impact, mode by mode, with the case law and the numbers; and finish with what has happened to services negotiation since Doha, because the impact of GATS today includes the fact that it has stopped developing.

Historical background, compactly

Services were excluded from GATT in 1947 because they were thought not to be tradable: they had to be produced where consumed, many were state monopolies, and GATT's machinery of tariffs and border measures assumes a physical good that customs can inspect. Technology, deregulation and the shift of developed economies towards services destroyed that assumption between 1970 and 1985.

The framework in one paragraph, since the impact cannot be explained without it

Article I:2 defines trade in services by four modes: cross border supply, consumption abroad, commercial presence and presence of natural persons. Article II imposes most favoured nation treatment on all members in all sectors, subject to listed exemptions taken at entry into force. Article III imposes transparency. Market access under Article XVI and national treatment under Article XVII apply only where a member has scheduled a commitment, sector by sector and mode by mode, with limitations. Article XX makes Schedules integral to the Agreement, and Article XXI allows withdrawal of a commitment after three years with compensatory adjustment. That positive list structure is the opposite of GATT, where national treatment is automatic, and it is the single fact from which every consequence below follows.

The Appellate Body held that the scheduled entry "Other recreational services (except sporting)" did include gambling on the ordinary meaning of the term read with the classification instruments, that the prohibition was a zero quota contrary to Article XVI:2(a) and (c), and that although the measures fell within the Article XIV(a) public morals exception they failed the chapeau because the Interstate Horseracing Act allowed domestic remote betting on horse racing. Antigua won. For an Indian reader the holding is doubly important: technological neutrality favours remote suppliers, and Antigua's later authorisation to suspend TRIPS obligations of about twenty one million dollars a year has never been exercised, so a small winner may hold an unusable remedy.

The telecommunications infrastructure obligations gave Mode 1 its practical content. The Annex on Telecommunications requires that suppliers of scheduled services be given access to and use of public telecommunications transport networks on reasonable and non discriminatory terms, and the Reference Paper on regulatory principles, annexed to many schedules including India's, requires competitive safeguards, cost oriented interconnection, an independent regulator and transparent licensing.

In India the practical position is that domestic legislation has been more liberal than the schedule. Foreign direct investment ceilings in insurance were raised by amendment of the Insurance Act, 1938 rather than by rescheduling; banking, telecommunications and retail were opened by policy under the Foreign Exchange Management Act, 1999. The lesson for the examiner is that a schedule is a floor of legal certainty, not a ceiling of policy: a member may be more open than it has promised, and Article XXI is what makes going back expensive.

The leading case on Mode 3 and on the relationship between the modes is China: Publications and Audiovisual Products. In China: Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010, the Appellate Body held that China's restrictions on the right to import and distribute reading materials, sound recordings and films breached its trading rights commitments in its Accession Protocol and its GATS distribution services commitments, and that the measures could not be justified under Article XX(a) of GATT as necessary to protect public morals because less restrictive alternatives were available.

India's own grievance has been litigated only once and never decided. In United States: Measures Concerning Non-Immigrant Visas, DS503, India requested consultations on 3 March 2016 over the large fee increases on H-1B and L-1 visas, the special charges on companies with a high proportion of visa holders, and numerical limits, alleging breaches of Articles II, XVI and XVII and of the United States' Mode 4 commitments. A panel was requested but the dispute has never been carried through, and the underlying problem is unresolved. The realistic conclusion is that Mode 4 liberalisation is treated by importing countries as immigration policy, and immigration policy is not negotiated in Geneva.

Impact on regulation, and on the direction of travel

In committed sectors GATS imports procedural discipline. Article VI:1 requires measures of general application to be administered reasonably, objectively and impartially; Article VI:2 requires tribunals or procedures for review; Article VI:4 mandated the development of disciplines on qualification requirements, technical standards and licensing, which produced accountancy disciplines in December 1998 and, in December 2021, a Reference Paper on Services Domestic Regulation agreed by sixty seven participants and incorporated into their schedules from early 2024. Note the form: plurilateral, not multilateral.

Finally, the state of the negotiation is part of the impact. Article XIX obliged successive rounds of liberalisation beginning within five years of 1995. The Doha services negotiations produced nothing; the plurilateral Trade in Services Agreement talks were suspended in 2016; and the Fourteenth Ministerial Conference at Yaoundé from 26 to 30 March 2026 closed without a ministerial declaration, with the moratorium on customs duties on electronic transmissions expiring on 31 March 2026 for the first time since 1998, while sixty six members endorsed an E-Commerce Agreement outside the multilateral framework. For a services exporter that matters directly: cross border supply of digitally delivered services now faces the legal possibility of customs duties for the first time in almost thirty years.

Conclusion. GATS exists because services became tradable and because the opposition India and Brazil organised in 1982 was accommodated at Punta del Este in 1986 and bought off at Marrakesh with textiles and agriculture. Its architecture defines trade in services by the four modes, imposes MFN and transparency on all members, and leaves market access and national treatment to be scheduled, which makes each member's real obligation a matter of its own Schedule rather than of the Agreement.

For full marks, cover: this answer is best organised as what India lost, what India kept and what India gained, because that is the shape of the story and it forces the candidate to say something rather than to list statutes. Within each, name the TRIPS article, the Indian statutory provision and the case.

One sentence of framing. TRIPS did not merely raise Indian standards; it reversed a settled national policy that had been adopted deliberately after two official inquiries, and Parliament amended the Patents Act three times, in 1999, 2002 and 2005, to comply. What makes India's compliance interesting is that it was accompanied by the most systematic use of TRIPS flexibilities attempted by any member.

India also lost a WTO case for not doing the one thing it had to do at once. Articles 70.8 and 70.9 required, from 1 January 1995, a means of filing product patent applications preserving novelty and priority, the mailbox, and exclusive marketing rights for eligible products. India relied on an administrative practice under the 1970 Act.

In India: Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, brought by the United States, the Appellate Body held that Article 70.8 required a sound legal basis and that an administrative arrangement inconsistent with the governing statute could not provide one, and that India was also in breach of Article 70.9. India lost. The Patents (Amendment) Act, 1999 was passed with retrospective effect from 1 January 1995. This is the clearest demonstration in the Indian statute book of what the TRIPS enforcement mechanism did that the Paris Convention never could.

Novartis AG v Union of India, (2013) 6 SCC 1, worked. Novartis sought a patent on the beta crystalline form of imatinib mesylate, marketed as Glivec, for chronic myeloid leukaemia; the application had been filed in the mailbox in 1998 and was taken up after 2005. The Patent Office at Chennai refused it, the Intellectual Property Appellate Board agreed, and a separate challenge to the constitutionality and TRIPS compatibility of section 3(d) had already failed before the Madras High Court in 2007. Before the Supreme Court, Novartis argued that efficacy included physicochemical advantages and thirty per cent greater bioavailability.

The appeal was dismissed. Aftab Alam and Ranjana Desai JJ. held that for a medicine efficacy means therapeutic efficacy, that improved bioavailability does not by itself establish it, and that the free base imatinib had already been disclosed in the Zimmermann patent, so what was claimed was a new form of a known substance. The consequence was that generic imatinib remained available in India at a small fraction of the price, and that the pharmaceutical industry worldwide had to take Indian patentability standards seriously.

Two further flexibilities complete the picture. Section 25(1) pre grant opposition, which any person may file and which patient groups have used to great effect, has no counterpart in many jurisdictions and is expressly permitted by TRIPS, which says nothing about opposition procedures. And section 92A, inserted in 2005, implements the Doha Declaration on the TRIPS Agreement and Public Health of 14 November 2001 and the decision of 30 August 2003 by allowing a compulsory licence for export to a country with insufficient manufacturing capacity; that decision became permanent as Article 31bis when the amending Protocol entered into force on 23 January 2017, the first amendment ever made to a WTO agreement.

A domestic case worth naming for balance, because India also enforces patents. In F. Hoffmann-La Roche Ltd v Cipla Ltd, the Delhi High Court refused an interim injunction in 2008 on public interest grounds where the patented erlotinib was priced far above the generic, and on final decision in 2015 held the patent valid but not infringed, a judgment substantially varied on appeal. The point for the examiner is that Indian courts have not treated patents as unenforceable; they have treated the balance in section 83, which states that patents are granted to encourage inventions worked in India on a commercial scale and not to enable monopoly of importation, as a real interpretive principle.

The Indian courts had moved first, and the later case law is more cautious. In N.R. Dongre v Whirlpool Corporation, (1996) 5 SCC 714, the Supreme Court upheld an injunction protecting the WHIRLPOOL mark on transborder reputation although it was unregistered in India and the goods were not sold here, and Milmet Oftho Industries v Allergan Inc., (2004) 12 SCC 624, applied the same approach to a pharmaceutical mark.

But in Toyota Jidosha Kabushiki Kaisha v Prius Auto Industries Ltd, (2018) 2 SCC 1, the Supreme Court declined to protect the PRIUS mark in India, holding that reputation must be shown in the Indian market and that spillover of advertising into a market where the product was not sold was not enough, and that the burden lay on the claimant. Toyota lost on the Prius mark. The pair, Whirlpool and Prius, is the best short illustration that Indian trade mark law after TRIPS is neither reflexively protective of foreign marks nor reflexively hostile to them.

The Geographical Indications of Goods (Registration and Protection) Act, 1999, in force 15 September 2003, created a Registry at Chennai; defined a geographical indication in section 2(1)(e); allowed application by an association of producers or an organisation representing their interest under section 11; prohibited registration of a geographical indication as a trade mark under section 25; and, in section 22(2), empowered the Central Government to notify goods of special significance to which the higher, Article 23 style protection applies, which is India's domestic answer to an international asymmetry it could not remove. Darjeeling tea was the first registration, in 2004, and there are now over six hundred and fifty registrations, including Basmati rice, Alphonso mango, Kancheepuram silk, Pochampally Ikat, Banarasi brocade, Nagpur orange and Odisha Rasagola.

The statute was written after three losses that should be named. The turmeric patent granted in the United States in 1995 was revoked in 1997 after the Council of Scientific and Industrial Research produced Sanskrit and Urdu prior art. The European patent on a neem based fungicide was revoked in 2000 and the revocation upheld in 2005. The Basmati claims of RiceTec in the United States were largely abandoned in 2001 after opposition.

In geographical indications it gave India an instrument it had wanted, and the Geographical Indications Act, 1999 has produced over six hundred and fifty registrations beginning with Darjeeling tea, while the Article 23 asymmetry that protects Champagne better than Darjeeling survives twenty five years after the Doha mandate to consider it. The distinguishing feature of India's compliance is that it took every flexibility TRIPS allowed: section 3(d), vindicated in Novartis; section 25(1) pre grant opposition; and section 84, under which Bayer lost Nexavar to Natco at all four levels.

The panel finds the facts and applies the law. Three persons, or five by agreement, from an indicative list of well qualified governmental and non governmental individuals, serving in their individual capacities, never nationals of a party without consent, appointed by the Director General under Article 8.7 if the parties cannot agree within twenty days, which removes the ability to stall a case by refusing names. Article 8.10 entitles a developing country member to insist on at least one panellist from a developing country when its opponent is a developed member. Article 11 imposes the duty of an objective assessment; Article 13 gives the right to seek information and expert advice.

The Appellate Body reviewed the law, and it no longer sits. Seven persons of recognised authority appointed for four year terms renewable once, sitting in divisions of three, confined by Article 17.6 to issues of law and legal interpretation, able to uphold, modify or reverse but not to remand. It ceased to function on 11 December 2019 when its numbers fell below three, and the last member's term expired on 30 November 2020.

What the complainant must establish is worth stating, because the procedure is only a container for it. The burden lies on the party asserting inconsistency to make out a prima facie case, after which it shifts, as the Appellate Body held in United States: Measures Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, a case brought by India, whose lasting contribution is that procedural holding rather than its result. The panel request must present the problem clearly, and a defect in it goes to jurisdiction. Nullification or impairment of benefits is presumed once a breach is shown, under Article 3.8.

Adoption, then implementation. The recommendation under Article 19.1 is that the member bring the measure into conformity; a panel may suggest ways of implementing, and the choice of means otherwise belongs to the member. Compliance is monitored under Article 21.6 at every DSB meeting from six months after the reasonable period is fixed. If the parties disagree about compliance, an Article 21.5 panel decides in ninety days. The unresolved relationship between Article 21.5 and Article 22, the sequencing problem, is managed by ad hoc bilateral procedural agreements.

It has also lost the cases that mattered most to its domestic policy. India: Patents, WT/DS50/AB/R, adopted 16 January 1998, forced the Patents (Amendment) Act, 1999. India: Quantitative Restrictions, WT/DS90/AB/R, adopted 22 September 1999, ended the balance of payments defence for import licensing on 2,714 tariff lines. India: Autos, WT/DS146/R and WT/DS175/R, adopted 5 April 2002, struck down indigenisation and trade balancing conditions. India: Solar Cells, WT/DS456/AB/R, adopted 14 October 2016, struck down the domestic content requirement of the National Solar Mission.

And twice India has used the gap that the Appellate Body vacancy created. On 11 January 2022 India appealed the panel reports in the sugar and sugarcane disputes brought by Brazil, Australia and Guatemala, DS579, DS580 and DS581, in which the panel had found that India's mandatory minimum sugarcane prices exceeded its Agreement on Agriculture limits and that its sugar export schemes were prohibited export subsidies. On 8 December 2023 it appealed the second panel report in the information technology tariff dispute brought by the European Union, DS582. In both, the appeal was filed to an appellate tier with no members, so the reports have never been adopted and no obligation to comply has arisen.

The procedure runs consultations, panel, adoption or appeal, reasonable period, compliance panel, authorised suspension, all under continuing surveillance, with a design limit of nine to twelve months that is in practice more than doubled. India's record shows both faces of the system: it has won against the European Union and the United States on preferences and on countervailing duties, it has been made to amend its Patents Act and to abandon its import licensing, and since 2022 it has twice suspended proceedings indefinitely by appealing to a tribunal that does not exist.

The prudential carve out is the provision that matters. Paragraph 2(a) of the Annex provides that nothing in the Agreement prevents a member from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed, or to ensure the integrity and stability of the financial system, provided such measures are not used as a means of avoiding the member's commitments.

There is still no WTO ruling construing it, and after the crisis of 2008 it became the standard answer to the claim that GATS constrains financial regulation. Paragraph 1(b) further excludes central bank and monetary authority activities, statutory social security and public retirement plans, and other activities for the account or with the guarantee of the government, unless a member allows them to be conducted in competition with private suppliers.

Conclusion. In financial services GATS takes with one hand and gives back with the other: the Annex draws the entire sector into the Agreement, the prudential carve out in paragraph 2(a) then restores regulatory freedom on terms no panel has yet had to define, and the real market opening came from the Fifth Protocol of 1997 rather than the Uruguay Round schedules. For India the operative constraints on foreign participation in banking and insurance have always been domestic statutes rather than Geneva, which is why the sector illustrates the shallowness of GATS obligations better than any other.

(ii) Custom Valuation

Customs valuation matters because a tariff binding is worthless if the value to which the rate is applied can be set at will. A member which has bound a duty at ten per cent can double the burden by valuing the goods at twice the price paid. The Agreement on Implementation of Article VII of GATT 1994, in Annex 1A, therefore prescribes the method, and it replaced the optional Tokyo Round Customs Valuation Code of 1979, which bound only its signatories.

The five fall back methods must be used in strict sequence, which is the examinable point. Article 2, the transaction value of identical goods exported at or about the same time. Article 3, the transaction value of similar goods. Article 5, the deductive value, being the unit resale price in the importing country less commissions, transport, duties and taxes and profit. Article 6, the computed value, being the cost of materials and fabrication plus an amount for profit and general expenses plus transport.

Article 7, the fall back or residual method, using reasonable means consistent with the Agreement's principles and available data, and expressly forbidding seven bases: the selling price in the country of exportation, the higher of two alternatives, arbitrary or fictitious values, minimum customs values, the price of goods in the domestic market of the country of export, cost of production other than a computed value, and the price for export to a third country. The importer may request that Articles 5 and 6 be reversed in order.

In India the machinery is section 14 of the Customs Act, 1962 with the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, which reproduce the Agreement's sequence, and the corresponding export rules. The Supreme Court has enforced the primacy of transaction value strictly. In Eicher Tractors Ltd v Commissioner of Customs, (2001) 1 SCC 315 the Court held that the value must be the price actually paid unless one of the exceptions applies, and that a discount arrived at commercially is part of the price. In Commissioner of Customs v South India Television (P) Ltd, (2007) 6 SCC 373 it held that the burden of proving undervaluation lies on the department, that a declared value can be rejected only on evidence and not on suspicion, and that contemporaneous imports relied on must be genuinely comparable.

What was challenged. Two things. First, India's system of mandatory minimum prices for sugarcane: the Fair and Remunerative Price fixed by the Central Government under the Sugarcane (Control) Order, 1966 and the higher State Advised Prices fixed by several States, which sugar mills are legally obliged to pay to growers. The complainants said this was market price support to be counted in India's Aggregate Measurement of Support under the Agreement on Agriculture. Second, India's export schemes: the Duty Free Import Authorisation scheme and, principally, the Maximum Admissible Export Quantity scheme with assistance for marketing, handling, upgrading and internal and international transport, and the buffer stock and production assistance schemes.

What the panel held. On domestic support, India's support to sugarcane growers exceeded the ten per cent de minimis level permitted to a developing country member by Article 6.4(b) of the Agreement on Agriculture, in every year from 2014-15 to 2018-19, and India was therefore in breach of Article 7.2(b), which requires a member with no Aggregate Measurement of Support commitment not to provide support in excess of de minimis.

What happened next, and this is the part that makes the note current. On 11 January 2022 India notified an appeal to the Appellate Body. Because the Appellate Body has had no members since 30 November 2020, there was no division to hear it. The reports have therefore never been adopted, no DSB recommendation exists, and India is under no legal obligation to comply. India also announced that it had in any event moved its sugar policy towards diversion of cane to ethanol under the Ethanol Blended Petrol Programme, which supports growers without export subsidy, and export subsidies for sugar were discontinued from the 2020-21 season.

Why it is set as a question. First, it is the clearest Indian illustration of the Agreement on Agriculture actually biting: the ten per cent de minimis and the Article 9.1 list are not theoretical constraints, and a domestic minimum support price for a crop is a WTO obligation whether or not the exchequer pays it.

India appealed on 11 January 2022 to an Appellate Body with no members, so the reports stand unadopted and unenforced. The case is therefore three lessons at once: that domestic price support is a trade obligation, that India's public stockholding demand at every Ministerial is defensive rather than rhetorical, and that the collapse of the appellate tier has made even a decided case indefinitely inconclusive.