State Transformation and the Role of Lawyers: The WTO, India, and Transnational Legal Ordering

Abstract

This article explains the impact of India's engagement with the law of the World Trade Organization (WTO) on both the Indian state and on the WTO itself. In each case, it explains the role of Indian lawyers within the larger transnational context. In engaging with globalization and the WTO, India has transformed itself. The Indian state has moved toward a new developmental state model involving a stronger emphasis on trade, greater government transparency, and the development of public-private coordination mechanisms in which the government plays a steering role. The analysis shows that it has done so not as an autonomous policy choice, but rather in light of the global context in which the WTO and WTO law form an integral part. Reciprocally, the article displays the ways that India has built legal capacity to attempt to shape the construction, interpretation, and practice of the trade legal order. Indian private lawyers play increasing roles, although they remain on tap, not on top.Thi s article looks simultaneously at the Indian state in the context of the World Trade Organization (WTO), and at the WTO in the context of India. In each case, we explain the new role of Indian lawyers. The normative stakes are significant: how does a large developing country become not only a rule taker but also a rule shaper in a transnational legal order (TLO), including to preserve its policy space. The theoretical stakes are equally important and are twofold: first, what is the impact of the trade legal order on the Indian state; and second, how autonomous is the WTO, including from Indian influence?First, unlike those who contend that the world is moving toward a postnational order where the state has been weakened (Strange 1996), we show that the enmeshment of India in Please direct all correspondence to Gregory Shaffer,

Opening‐up labor mobility? Rising powers' rulemaking in trade agreements

“…In addition, Indian negotiators also addressed politically sensitive points such as flexibility regarding the wage parity condition and labor standards (Interviews 24, 25, and 33), thus clearly overstepping the limited technocratic scope of GATS "mode 4" commitments. The neglect of legal constraints corroborates the observation that in India trade policy has hitherto been dominated by economistsboth in the government and government-sponsored think tanks, and that the build-up of legal expertise and capacity has been pursued with less emphasis (Shaffer et al 2015).…”

India, Brazil, and public health: Rule‐making through south–south diffusion in the intellectual property rights regime?

“…Following Cafaggi and Pistor (2015) and the framework article of this Special Issue, we understand regulatory capability as the ability to recognize one's interests and articulate regulations that advance those interests. As we show later, in India and Brazil, regulatory capability has been strongly shaped by the support of transnational networks of activists and an epistemic community of Southern intellectuals and legal scholars (see also Scott 2015;Shaffer et al 2015). We also show that this capability has been more resilient in India than in Brazil, where recent political turmoil has had its toll and lead to a decreased regulatory capability.…”

“…A main initiative in this sense has been the creation of the Centre for WTO Studies, a government-sponsored think-tank also supported by the United Nations Conference on Trade and Development (UNCTAD). Through the center, and sometimes directly, the Ministry of Commerce has worked closely with Indian private lawyers, who as consultants have increased the legal capacities of the state in trade negotiations, as well as promoted legal innovation (Shaffer et al 2015). These legal scholars are mostly concentrated within five major law firms: Luthra & Luthra, Lakshmikumaran & Sridharan, Economic Laws Practice, Law Offices of Krishnan Venugopal, and Clarus Law Associates.…”

Theorizing Transnational Legal Ordering

“…Braithwaite and Drahos (2000) stress the need of civil society actors to focus on principles to frame global business regulation. Shaffer et al (2008Shaffer et al ( , 2015 and Santos (2012) emphasize the importance for developing countries to build legal capacity if they are to participate in shaping the drafting, interpretation, and application of international rules. Networks from the Global South, including those that can be viewed as "counter-hegemonic" (Santos 2002), can play increased roles as economic and ideational power shifts, whether regarding human rights or economic development (Baxi 2012; Rodríguez-Garavito 2014; Rodríguez-Garavito and Santos 2004;Rajagopal 2003;Darian-Smith 2013;Trubek et al 2013).…”