General Issue
Vol. VI, No. 2
(Winter '14)

Comparative legal analysis, which was once deemed to be an esoteric and peripheral academic and professional activity, has significantly grown in scope and sophistication. However, its progress has not manifested itself equally across the board. Comparative law still lacks a solid methodological foundation and does not systematically address this gap by borrowing appropriate tools from other disciplines. There is no dearth of predominantly qualitative social science techniques that are suitable for the task. Some are more robust than others but, as the dissection of the Southern China governance regime for combating transboundary pollution illustrates, recourse to even the most rudimentary ones may yield valuable insights.

Taking a historical narrative as a departure point, this article begins by telling the story of how food security has traditionally been understood in the international community and has become intertwined with the rise and fall of agricultural trade under GATT/WTO rules. The different approaches towards food security over the past six decades have ranged from the supply- side to the entitlements-based approach, through the human security and rights-based approaches. It is further argued in this article that trade-related food security operates on two distinct and sometimes unrelated levels. Externally, despite a prevailing view among some Member governments that food security is outside the scope of the WTO and should be kept that way, the Secretariat has pursued food security-related trade links on behalf of the WTO in various international fora. Increasingly, food security is conceived of by the broader international community as a global public good, which calls for a more comprehensive, multi-stakeholder approach towards its regulation and governance, which is a view that is not unanimously held in the WTO. Internally, the WTO legal and policy framework for trade-related food security remains fragmented, inchoate and subject to regulatory capture by Member governments. The current state of trade-related international food security in the multilateral trading system is explored through the incomplete agricultural reform programme, the resort by some key WTO developing and transitional economy Members to public stockholding for food security purposes and domestic food aid, and the disjuncture between some Members’ policy on domestic support measures/export restrictions and their participation in global agricultural trade.

The standard of compensation for expropriation of alien property continues to remain one of the most contentious issues in international law. Despite persistent objection from the developing countries, the Hull formula and its variants have become an integral part of international investment jurisprudence. This paper examines the global discourse on the continuing relevance and the resurgence of the Hull standard in investment law and practice, with specific emphasis on the evolving Indian practice. The author views that the international processes have overwhelmingly favored the Hull standard and paid lip service to ‘appropriate’' standard, relegating the discourse to a remnant of a bygone era. The author urges that the contemporary relevance of ‘appropriate’ compensation is not at all lost, and the development of an international consensus should be the way-forward, rather than leaving the matter at the mercy of bilateral engagements dictated by the power imbalance or at the pleasure of the arbitration tribunals’ interpretations, whose legitimacy is already suspect. Reviving the debate for seeking a universal standard is a crucial option available to the new Third World - Africa and other less developed countries.

Developed countries, led by the EU and the US, have consistently called for ‘deeper integration’ over the course of the past three decades i.e., the convergence of ‘behind-the-border’ or domestic polices and rules such as services, competition, public procurement, intellectual property (“IP”) and so forth. Following the collapse of the Doha Development Round, the EU and the US have pursued this push for deeper integration by entering into deep and comprehensive free trade agreements (“DCFTAs”) that are comprehensive insofar as they are not limited to tariffs but extend to regulatory trade barriers. More recently, the EU and the US launched negotiations on a Transatlantic Trade and Investment Partnership (“TTIP”) and a Trade in Services Agreement (“TISA”), which put tackling barriers resulting from divergences in domestic regulation in the area of services at the very top of the agenda. Should these agreements come to pass, they may well set the template for the rules of international trade and define the core features of domestic services market regulation. This article examines the regulatory disciplines in the area of services included in existing EU and US DCFTAs from a comparative perspective in order to delineate possible similarities and divergences and assess the extent to which these DCFTAs can shed some light into the possible outcome and limitations of future trade negotiations in services. It also discusses the potential impact of such negotiations on developing countries and, more generally, on the multilateral process.

The Agreement on the Trade Related Aspects of Intellectual Property Rights (“TRIPS”) was a landmark event in the efforts for global harmonization of intellectual property standards. The TRIPS marked a significant departure from the status quo in many member countries that had till then denied product patents to pharmaceuticals. Though developing countries have since amended their patent laws to comply with the TRIPS mandate, the process of reform is ongoing. An emerging area of reform is to restrict the patentability of pharmaceuticals that do not offer therapeutic benefits as compared to known drugs. This article analyzes whether reform with respect to such drugs is warranted and if so, whether patent law is the appropriate model for such reforms. The paper concludes that while a balanced restructuring of incentives in pharmaceutical innovation is needed, the patent system is not an appropriate model for carrying out these reforms.