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

• Published date: 01 September 2015
• Date: 01 September 2015
• DOI: http://doi.org/10.1111/lasr.12149

State Transformation and the Role of Lawyers:

The WTO, India, and Transnational Legal Ordering

Gregory Shaffer James Nedumpara

Aseema Sinha

1

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 mecha-

nisms 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. Recip-

rocally, 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.

This article looks simultaneously at the Indian state in the con-

text 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, University of California, Irvine

School of Law, Irvine, CA; e-mail: gshaffer@law.uci.edu.

1

Gregory Shaffer is Chancellor’s Professor at the University of California, Irvine School

of Law; James Nedumpara is Associate Professor and Executive Director, Centre for

International Trade and Economic Laws, Jindal Global Law School; Aseema Sinha is

Wagener Chair in South Asian Politics and George R. Roberts Fellow, Associate Professor

at Claremont Mckenna College.

Law & Society Review, Volume 49, Number 3 (2015)

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C2015 Law and Society Association. All rights reserved.

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transnational legal ordering has spurred the strengthening of

new state capacities through the state’s greater engagement with

private stakeholders and professionals to mediate between inter-

national legal constraints and the pursuit of development strat-

egies, while at the same time the position of the private sector

and private professionals have been enhanced. The state taps

into new expertise that private actors provide, while aiming to

steer the process as it pursues its economic policies. The develop-

mental state is not a casualty of globalization, but rather responds

to it in new ways.

Second, we show how the WTO is not an autonomous, neo-

liberal power, but is rather, in large part, what states and stake-

holders make of it, both in the negotiation of the rules and in

their interpretation and practice. The United States (U.S.) and

European Union (E.U.) were the most influential in setting WTO

rules. Yet emerging economies increasingly have built new legal

capacity, engaging both foreign and domestic lawyers, with the

aim to shape the rules through negotiation, interpretation, and

practice.

This case study of India complements others on Brazil

(Shaffer, Ratton, and Rosenberg 2008), and China (Shaffer and

Gao 2015) as part of a larger scale project on emerging economies

and transnational legal ordering. The Indian case study is central,

since India is gaining greater prominence on the global stage as a

prominent member of the G-20, and it represents a rival develop-

ment model to that of China in having a democratic parliamen-

tary system and a highly competitive services sector, especially in

information technology. Moreover, India is known for its empha-

sis on self-reliance and its resistance to external influence, and is

thus a “least likely” case for assessing the WTO’s impact.

In terms of methodology, we respectively have conducted

fieldwork on Indian trade law and policy for over a decade, from

2003 to 2014. The article builds from this extensive field

research, which includes over 150 semistructured interviews with

Indian officials and stakeholders. The interviewees included for-

mer Ambassadors and members of the WTO Mission in Geneva,

members of the Indian bureaucracy in New Delhi, private law-

yers, private trade association and industry representatives, offi-

cials of international organizations, researchers in think tanks,

academics, representatives of non-governmental organizations

(NGOs), and news reporters. The interviews began with an open-

ended question regarding the development of Indian legal infra-

structure and capacity and the challenges the country faces and

then covered a list of questions, although the interviews were

conducted in a relaxed, conversational style. The interviews

lasted from 1 to 2 hours each. We asked similar questions to

596 State Transformationand the Role of Lawyers

actors with different interests to check and make sure that we

received consistent information. We complemented the interviews

with observation in Geneva and in New Delhi. One of the authors

(Shaffer) was a three-month visitor inside the WTO’s premises on

a research grant and another (Nedumpara) periodically worked

for the Indian government on trade issues both as an independ-

ent consultant and through a major UNCTAD project. We have,

wherever possible, cross-checked and corroborated information

gleaned from interviews in other primary and secondary sources,

including government documents and policy reports. We also

compiled quantitative data on the use of experts and interaction

with the private sector.

The article is in four parts. Part I grounds our study in three

sets of theoretical arguments regarding TLOs, the new develop-

mental state, and the building of trade-related legal capacity to

recursively shape TLOs. Part II provides background on the pre-

WTO, inward-looking Indian developmental state and the cata-

lysts of change. Part III addresses the transformation of Indian

trade institutions and bureaucracy and the building of public-

private coordination mechanisms that include private lawyers.

Part IV assesses the new role of Indian lawyers in three areas: (1)

in trade negotiations, litigation, and domestic implementation of

WTO obligations generally, (2) in antidumping and other import

relief laws in light of WTO agreements, and (3) in patent regula-

tion in connection with the WTO Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPs).

Theoretical Argument and Terrain of Debate

A large body of literature contends that with the intensity,

extensity, and velocity of economic and cultural globalization

(Held et al. 1999), law and societies can no longer be viewed in

purely national terms, but rather should be viewed transnation-

ally (Calliess and Zumbansen 2010; Darian-Smith 2013; Dezalay

and Garth 2002; Halliday and Shaffer 2015; Santos 2003; Sassen

2006; Twining 2009). In this vein, we investigate the impact of a

particular body of international law—that of the WTO—on India,

and the reciprocal implications of India’s practices on that body

of law. We argue that the WTO and Indian trade law and policy

are best viewed as forming part of a TLO, as opposed to a purely

international one.

Terence Halliday and Gregory Shaffer (2015) define a TLO

as “a collection of formalized legal norms and associated organiza-

tions and actors that authoritatively order the understanding and

practice of law across national jurisdictions.” The concept has

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