WTO’s engagement with National Law: three illustrations from India

Abstract

The WTO has significantly engaged with Indian law in at least three WTO contexts covering three covered agreements. In the first case, the Indian executive’s instructions were not accepted as corroborative of India’s compliance on the ground that these created “a certain degree of legal insecurity” and were devoid of “sound legal basis” under Indian law. On the second occasion, the WTO did not accept the impact of the statement of an Indian official on an Indian Statutory Order as evidence of compliance with India’s WTO obligation despite the fact that the statement had corroborated the Indian executive’s exercise of the legislative discretion. And, finally, it was found immaterial for the WTO whether executive or legislature internalizes or domesticates international law but not whether it has a sufficient degree of normativity or bindingness for the purposes of admissibly affording an affirmative WTO defence despite the fact that the Indian executive took action pursuant to international instruments. Thus, while these engagements of the WTO with Indian law are not without discernible contribution to its jurisprudence on engagement with national law, it would be hard to say that they are wholly without comparable measures of discernible divergence discernibly pointing to a progressive degree of doctrinal deference to the state.