James J. Nedumpara

India—Agricultural Products : Defending India’s First SPS Dispute

This chapter examines the legal issues that arose in India—Agricultural Products, which dealt with certain import restrictions maintained by India on the grounds of Avian Influenza (AI). India’s defence predominantly depended on the conformity of its measures with international standards prepared by the World Organization of Animal Health. The case touches upon several critical issues including the interpretation of international standards, centrality of risk assessments in adopting SPS measures and the requirement for regionalization while implementing such measures, and the allocation of burden of proof. While the case has created new jurisprudence on areas such as the relationship between Articles 5.1 and 5.2, and Article 2.2 of the SPS Agreement, the interlinkages between various paragraphs of Article 6, it also left behind ambiguities, especially in the interpretation of the terms of international standards specifically mentioned in Annex I of the SPS Agreement.

Injury and Causation in Safeguard Investigations: Experience of India and Other WTO Members

While the developed Members within the WTO have slowed down their recourse to safeguard measures, a number of developing countries such as India, Indonesia, Argentina and Turkey have become active users of such remedies. This chapter examines the practices and the tools developed by these emerging users in safeguards investigations. In particular this chapter seeks to examine whether the new users are conducting the injury and causation tests in conformity with the thresholds laid down by the WTO agreements and the jurisprudence developed by the panels and the Appellate Body.

Injury and Causation in Trade Remedy Law: An Introduction to the Enquiry

Trade remedy laws predicate their foundation on the very existence of “injury” to the domestic industry. While the nature and degree of causal relationship is unspecified in the WTO trade remedy agreements, the WTO panels and the Appellate Body have crafted certain treaty specific standards on injury and causation in all three categories of trade remedies. This introductory chapter examines the currently available literature on the application of appropriate injury and causation standards in WTO trade remedy law. This chapter sets out the key focus of enquiry of this book and the desirability of achieving coherence in evaluating injury and the causal link.

Historical Evolution of Injury and Causation in Trade Remedies Under GATT/WTO

This chapter traces the history of trade remedy legislations and the evolution of various international instruments that were developed to discipline the misuse and proliferation of trade remedy measures. In particular this chapter lists out the key developments in the United States which emerged as a major user of trade remedies. This chapter also examines the key developments that led to specific trade remedy provisions under the various negotiating rounds of the GATT.

Injury and Causation in Antidumping Investigations: Experience of India and Other Jurisdictions

This chapter provides a detailed examination of the practices of the key users of antidumping instruments in conducting injury and causation by treating India as the prototype of a major developing country user. Central to this enquiry is the need for an analysis of the key practices and developments among the traditional and new users of antidumping. This chapter enquires whether the injury and causation assessment among the major users is carried out in accordance with the requirements established by the WTO rules and the observations of the panels and the Appellate Body. In addition, the following analysis has attempted to find out whether any of the key users is resorting to sophisticated economics or quantitative tools while assessing injury and causation.

Injury and Causation in Trade Remedy Investigations: An Analysis of the WTO Jurisprudence

This chapter provides a comprehensive examination of the injury and causation standards developed by the WTO panels and the Appellate Body in trade remedy disputes. The chapter, in particular, examines the utility of the trends analysis and the non-attribution test. The chapter examines whether the investigating agencies are required to adopt quantitative tools as opposed to qualitative tools in the causation determination. This chapter also explores the role of factors other than imports in the causation enquiry and stresses the role of a meaningful identification of all known factors, as opposed to only examining the statutory list of other causes which are causing injury to the domestic industry.

General Principles of Law on Causation: Application in the Field of Trade Remedy Investigations

This chapter explores the possibility of formulating the causation standard in trade law based upon the general theories of causation in law. In particular, this chapter also explores the suitability of the “necessary element of a sufficient set” (NESS) test which incorporates a weak necessity and strong sufficiency element. The chapter also compares the efficacy of the NESS test vis-a-vis the “but-for” test in the context of trade remedy investigations.

Injury and Causation in Trade Remedies: Developments Under the Doha Round

This chapter examines the various proposals concerning the improvement to the treaty language on injury and causation under the Rules negotiations of the Doha Round. The proposals are made specifically in relation to the Antidumping as well as the Subsidies and Countervailing Measures Agreement. This chapter analyses the key proposals by the negotiating countries and whether there is any convergence of views among the WTO Members on any of the outstanding topics of injury and causation.

WTO, State and Legal Capacity Building

This chapter examines the background and the key WTO disputes which triggered a policy shift in India towards the State playing a more proactive role in encouraging the building of trade-related legal capacity. The chapter examines the features of the unique trade-related capacity model chosen by India and how it differs from the alternate models established by other major developing countries that have an active profile in WTO dispute settlement. The chapter explores how the Indian model is more geared towards hybrid policy making in contrast to alternative trade-related legal capacity models employed by other WTO Members.

Findings and Conclusions

This book explored the evolution of injury and causation standards in trade remedy investigations covering a time span of almost a century. While there is no exact science on the choice of the appropriate standard for injury and causation in trade remedies, the historical evolution and negotiating history emphasise the policy dependent character of such remedies. While quantitative tools may be desirable in estimating injury and causation, this study makes a finding that in addition to the trends analysis, a well-reasoned descriptive analysis of the effects and role of other causal factors could satisfy the applicable injury and causation standards uder the existing WTO rules. In addition, the book highlights the utility of the “necessary element of a sufficient set” (NESS) test which incorporates a weak necessity and strong sufficiency element in making the injury and causation standards more robust and reliable.