International IP, RTI and India’s Legal Representation at the WTO

I recently got back from National Law University, Jodhpur, after attending the Indian Ministry of Human Resource Development’s Roundtable on IP protection. The event was fantastic: from the concept of the roundtable itself (something not very popular with Indian law schools yet), to the organization, and the very interesting discussions. My session, with Mr. Anand Grover and Prof. Madhukar Sinha, on international IP protection was quite useful and provoking. From a pedagogical perspective, this was my first roundtable discussion (as opposed to conference presentations) and I personally think it is a much more engaging and meaningful format of dialogue for the participants and the audience.  I believe the organizers will be putting up videos and a podcast of the event — I will post a link as soon as I have one.

My talk at the roundtable was on unilateralism in international IP regulation, where I also revisited the generics seizures dispute. I will not go on to discuss that here, but just wanted to note a post by Prashant Reddy over on Spicy IP. Prashant had filed a right to information request regarding India’s legal repersentation and strategy for the WTO seizures dispute (DS409). I found the information he received from the government to be quite useful and telling. Here are some excerpts from the responses and his comments (the full RTI response is here):

(i) The first question pertained to the names of the lawyers/law-firms/law-professors engaged by the Government to advise it on the dispute: 
Ans. The Government had engaged the professional services of two Supreme Court lawyers and one foreign law professor to advise it on the dispute. The names and the fees charged by these lawyers are as follows:
(a) Mr. Krishnan Venugopal, Senior Advocate, Supreme Court.
Fees charged: Rs. 8.375 lakhs (Approx. US $ 16,500)
(b) Mr. Uday Nath Tiwari, Advocate, Supreme Court.
Fees charged: Rs. 2.01 lakhs (Approx. US $4,000)
(c) Professor Frederick M. Abbot, Professor of International Law at Florida University, College of Law.
Fees charged: Rs. 25.22 lakhs (Approx. US $50,000)
(ii) The second question pertained to the process adopted by the Government to select the above lawyers/law-professors: 
Ans. “The Department obtained opinion about the legal aspects of the case from the Advisory Centre for WTO Law (ACWL), Geneva and Indian law firm on the panel of the Dept. of Commerce. Dept. consulted the Permanent Mission of India (PMI), Geneva in selecting the foreign expert based on the recognized expertise in the IPR matters.
From amongst the Indian law firms/advocates the Deptt. considered their expertise in handling the WTO disputes and trade law matters. After short-listing the legal experts the Dept. took the approval of the Dept. of Legal Affairs for their engagement and payment terms.”
Comment: While Prof. Abbot is definitely a renowned expert on IP and WTO law, one does wonder why the Indian Government does not engage any Indian professors to advise it on such issues. For example Professor N.S. Gopalakrishnan, CUSAT has in the past advised the government on the TRIPs & ‘data exclusivity’. I don’t see the U.S. Government engaging Indian academics and their only hope of developing an expertise in the area is if their own government decides to engage them for advisory work. I do not understand the Indian Government’s obsession with foreigners. Aren’t Indians smart enough people? Moreover, even while selecting amongst Indians, the Government has to adopt a more transparent mechanism to select Indian lawyers.
(iii) The third question pertained to copies of the legal opinions submitted by the above lawyers to the Indian government. 
Ans. The Government denied us this information on grounds that it would hurt India’s economic interests. Please note that the Government has given us access to files pertaining to the 1999 Indo-E.U.-U.S. pharma trade dispute. I do not understand how these files suddenly become confidential especially when the Govt. claims that the dispute has been settled.
(iv) The fourth question pertained to the status of the dispute and as to why India was not pressing the dispute on the WTO stage. 
Ans. The Government replied with the answer that they had reached an ‘interim settlement’ with the E.U., as mentioned in the beginning of the post. Are ‘interim settlements’ allowed for under WTO law? I have no clue. The politics over this dispute are slightly complicated since India is in the middle of negotiating its biggest trade Free Trade Agreement (FTA) with the E.U. If the FTA does go through, it will be one of the biggest of its kind especially since the E.U. is already India’s largest trading partner. Since the door is still open, India should push ahead with the dispute and attempt to clarify the law on seizure of ‘in-transit’ consignments before such a provision is brought to the ACTA negotiating table.
I completely agree with Prashant on the availability of Indian experts in the field. Again, this is not to say that this is about Prof. Abbott — an excellent scholar in the field of WTO and international IP law. But this simply isn’t about that. The issue here involves the legal capacity of India, which can only truly be developed by engaging domestic lawyers and academics, for there is no such learning as experiential learning for international and WTO lawyers. I also agree with Prashant on the need for greater transparency in the selection of Indian lawyers, as well — I am sure that we’d be surprised by the talent we can find amongst a billion plus. Finally, I am surprised by the huge gap between the fees paid to the Indian lawyers versus Prof. Abbott. Here too, Prof. Abbott’s fee is rather reasonable by international standards, but what strikes me instead is the low fee of the Indian lawyers. I am sure WTO litigation does not form a bread and butter practice for these lawyers, and so there may be a sense of national service and prestige involved in such cases. Nevertheless, I see no cogent reason for such a discriminatory financial treatment between Indian and foreign experts. Of course, if Prof. Abbott was doing considerably more work and the Indian lawyers were only assisting, this could have been justified. But we don’t know if that was the case.

NLU Jodhpur Roundtable on IP Protection

National Law University, Jodhpur (India), is organizing a roundtable discussion on “[t]he Emerging Legal and Policy Landscape of Intellectual Property Protection for Pharmaceuticals in India” on 17th and 18th March 2012 at its campus in Jodhpur. Needless to say, the roundtable is a laudable effort.

For those interested in the international legal aspects of IP protection, the roundtable features a session on trade and international intellectual property on 17 March at 3.45 PM. Discussants for the session include Mr. Anand Grover, UN Special Rapporteur on the Right to Health, and Yours Truly. Mr. Grover will be talking about the implications of the emerging paradigm of IP protection in TRIPS-Plus FTA’s for access to medicines. I shall attempt to define the space for unilateral action under WTO law, with reference to the enforcement of IP rights. The Panel will be chaired by Prof. Madhukar Sinha of the Indian Institute of Foreign Trade.

The other sessions promise to be extremely interesting, as well. The full program of the event can be accessed here.

The roundtable is a part of the annual activities of the Ministry of Human Resource Development Chair for IP rights at NLU Jodhpur.

Those interested in attending the roundtable should send an email to or contact Prof. Yogesh Pai on +91-95 87 436 425.