Sheela Rai | National Law University Orissa (original) (raw)

Papers by Sheela Rai

Foreign Trade Review, 2007

WTO has certain protective clauses which allow the Members to provide their domestic industry tem... more WTO has certain protective clauses which allow the Members to provide their domestic industry temporary respite from the rigors of free market. Provision for safeguard measures under Article XIX of the GATT 1994 and the Agreement on Safeguards is one such provision that allows Members to restrict imports if there is serious injury to the domestic industry because of increase in imports. However, as held by the Appellate Body, it needs to be proved that increase in imports has been the result of unforeseen developments. The article critically analyzes the provision of unforeseen developments as interpreted by the Appellate Body and then examines whether the decision of the Appellate Body was correct in the light of the negotiating process.

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SSRN Electronic Journal, 2016

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SSRN Electronic Journal, 2014

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Social Science Research Network, 2017

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With dumping of goods becoming a serious threat to the Indian economy, this book is most appropri... more With dumping of goods becoming a serious threat to the Indian economy, this book is most appropriately timed. Thoroughly researched and updated, the work explores the rights available to countries to take anti-dumping measures to protect their domestic industries in the current shift towards open economies and free trade movement between countries. The book further goes on to discuss the role played by the Panel and the Appellate Body constituted under GATT, in regulating the exercise of this right by the countries, and control protectionism and promote free trade between countries. The procedural norms have gradually been tightened to reduce the discretion otherwise available to members in deciding whether a case fell within the scope of Article VI of GATT or not. This development has changed the nature of anti-dumping provisions under GATT from being a blanket provision enabling the Contracting Parties to impose anti-dumping measures under Article VI, to a closely scrutinized prov...

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Business Law Review, 2015

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It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austi... more It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austin but most of the legal experts agree that the version of legal positivism given by H.L.A. Hart is the most appropriate one for the modern constitutional system. Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. For Hart, legality is not something which is politically imposed but is evolved through a growing complex system of different kinds of rules.

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PSN: Human Rights Networks (Topic), 2017

Globalization has redefined the position and role of the State. Internal and external constraints... more Globalization has redefined the position and role of the State. Internal and external constraints on the powers of State have prompted some writers to declare end of the Westphalian concept of sovereignty and some writers have renamed sovereignty as ‘sovereignty modern’. Human Rights are an important constraint on the power of State both internally in the form of constitutionally guaranteed rights and externally in the form of human rights. Problem with human rights is that one set of human rights constraint the powers of State, another set of human rights on the other hand impose positive obligations on the State. These positive obligations combined with other set of external and internal constrains like international trade and financial agreements and resultant liberal markets pose a big challenge to the State. Limitations on the power of State to regulate its economy are continuously increasing but at the same time the State is asked to guarantee to its citizens certain amenities...

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Indian Journal of International Law

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Foreign Trade Review, 2001

While the need for FD! has necessitated a tremendous increase in Bilateral Investment Treaties al... more While the need for FD! has necessitated a tremendous increase in Bilateral Investment Treaties all over the world, there are different opinions about the desirability for Multilateral Investment Treaty. While the “globalisation school” advocates for the conclusion of MAI, the “internalisation school” is against it advocating policy autonomy for the sovereign countries and pointing to development needs of the developing countries. Earlier these agruments in investment area were put forward in relation to issues like expropriation, stability of contract, compensation, etc. which have now got settled in international law. But there are new issues like right to market access to foreign investors, extent of regulatory powers of host country, performance requirements and investment incentives and code of conduct for multinational corporations which are yet to be settled and will be important issues in any negotiation for MAI. The paper studies the trend of international law on foreign investment as it is growingfrom customary international law developed by bilateral investment treaties and various legal writings into a more legislative law by various regional investment agreements and endeavours for a Multilateral Investment Treaty now under WTO. Various suggestions regarding a prospective MAI under the WTO have been discussed.

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Foreign Trade Review, 2003

International Trade has witnessed a simultaneous growth in electronic commerce and trade in servi... more International Trade has witnessed a simultaneous growth in electronic commerce and trade in services. Absence of requirement of physical delivery of goods makes trade in services through electronic means easier in comparison to trade in goods by the use of electronic medium. The World Trade Organisation seeks to liberalise trade in services in a gradual manner. The General Agreement on Trade in Services identifies four modes of supply of trade in services of which the first two are relevant for e-commerce. The present paper identifies the issues involved in trade in services through electronic means and examines how the framework under the General Agreement on Trade in Services regulates and affects e-commerce and is in turn also affected by it. Some suggest greater liberalisation in services trade as a possible solution to many of the problems involved. However, now both developing and developed countries have reservations about it guided by their policy consideration and economic compulsions.

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Journal of World Trade, Oct 1, 2006

The article Extent of protection via Anti-dumping Law: a Case Study of Vitamin C Industry in Indi... more The article Extent of protection via Anti-dumping Law: a Case Study of Vitamin C Industry in India, by Sumeet Gulati et al. (Journal of World Trade 39(5) (October 2005), pp, 925936) provides an interesting study of the effects of anti-dumping measures. The article points out that the anti-dumping cases of vitamin C in India were prompted by the sole dominant domestic producer but the anti-dumping measures benefited other exporters of vitamin C in India which might not have been visualized by the domestic industry.

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Economic and Political Weekly, Oct 19, 2002

This article highlights the main theoretical arguments given by the proponents and opponents of t... more This article highlights the main theoretical arguments given by the proponents and opponents of the reservation policy in India and the US. In the current era of neo-capitalism and globalisation, both countries are struggling to balance their humanitarian ...

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TRIPS is a reality and India has to rework its patent law to conform to it. But that does not mea... more TRIPS is a reality and India has to rework its patent law to conform to it. But that does not mean that we have a patent law that provides for TRIPS plus rules. Our interest lies in taking full advantage of any flexibility available in the agreement.

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Working Papers, 2007

The doctrine of precedent is getting established in WTO and seems to be there to stay however muc... more The doctrine of precedent is getting established in WTO and seems to be there to stay however much it is argued otherwise. Neglect of this fact means that we are overlooking some of the problematic developments in WTO jurisprudence. This is quite evident from ...

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Working Papers, 2007

The doctrine of precedent based on the system of stare decisis has its genesis in the common law ... more The doctrine of precedent based on the system of stare decisis has its genesis in the common law of England which was supposed to be customary law. Actually it was the decision of the courts which made up a body of common law which the proponents of the ...

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Foreign Trade Review, 2007

WTO has certain protective clauses which allow the Members to provide their domestic industry tem... more WTO has certain protective clauses which allow the Members to provide their domestic industry temporary respite from the rigors of free market. Provision for safeguard measures under Article XIX of the GATT 1994 and the Agreement on Safeguards is one such provision that allows Members to restrict imports if there is serious injury to the domestic industry because of increase in imports. However, as held by the Appellate Body, it needs to be proved that increase in imports has been the result of unforeseen developments. The article critically analyzes the provision of unforeseen developments as interpreted by the Appellate Body and then examines whether the decision of the Appellate Body was correct in the light of the negotiating process.

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SSRN Electronic Journal, 2016

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SSRN Electronic Journal, 2014

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Social Science Research Network, 2017

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With dumping of goods becoming a serious threat to the Indian economy, this book is most appropri... more With dumping of goods becoming a serious threat to the Indian economy, this book is most appropriately timed. Thoroughly researched and updated, the work explores the rights available to countries to take anti-dumping measures to protect their domestic industries in the current shift towards open economies and free trade movement between countries. The book further goes on to discuss the role played by the Panel and the Appellate Body constituted under GATT, in regulating the exercise of this right by the countries, and control protectionism and promote free trade between countries. The procedural norms have gradually been tightened to reduce the discretion otherwise available to members in deciding whether a case fell within the scope of Article VI of GATT or not. This development has changed the nature of anti-dumping provisions under GATT from being a blanket provision enabling the Contracting Parties to impose anti-dumping measures under Article VI, to a closely scrutinized prov...

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Business Law Review, 2015

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It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austi... more It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austin but most of the legal experts agree that the version of legal positivism given by H.L.A. Hart is the most appropriate one for the modern constitutional system. Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. For Hart, legality is not something which is politically imposed but is evolved through a growing complex system of different kinds of rules.

Bookmarks Related papers MentionsView impact

PSN: Human Rights Networks (Topic), 2017

Globalization has redefined the position and role of the State. Internal and external constraints... more Globalization has redefined the position and role of the State. Internal and external constraints on the powers of State have prompted some writers to declare end of the Westphalian concept of sovereignty and some writers have renamed sovereignty as ‘sovereignty modern’. Human Rights are an important constraint on the power of State both internally in the form of constitutionally guaranteed rights and externally in the form of human rights. Problem with human rights is that one set of human rights constraint the powers of State, another set of human rights on the other hand impose positive obligations on the State. These positive obligations combined with other set of external and internal constrains like international trade and financial agreements and resultant liberal markets pose a big challenge to the State. Limitations on the power of State to regulate its economy are continuously increasing but at the same time the State is asked to guarantee to its citizens certain amenities...

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Bookmarks Related papers MentionsView impact

Indian Journal of International Law

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Foreign Trade Review, 2001

While the need for FD! has necessitated a tremendous increase in Bilateral Investment Treaties al... more While the need for FD! has necessitated a tremendous increase in Bilateral Investment Treaties all over the world, there are different opinions about the desirability for Multilateral Investment Treaty. While the “globalisation school” advocates for the conclusion of MAI, the “internalisation school” is against it advocating policy autonomy for the sovereign countries and pointing to development needs of the developing countries. Earlier these agruments in investment area were put forward in relation to issues like expropriation, stability of contract, compensation, etc. which have now got settled in international law. But there are new issues like right to market access to foreign investors, extent of regulatory powers of host country, performance requirements and investment incentives and code of conduct for multinational corporations which are yet to be settled and will be important issues in any negotiation for MAI. The paper studies the trend of international law on foreign investment as it is growingfrom customary international law developed by bilateral investment treaties and various legal writings into a more legislative law by various regional investment agreements and endeavours for a Multilateral Investment Treaty now under WTO. Various suggestions regarding a prospective MAI under the WTO have been discussed.

Bookmarks Related papers MentionsView impact

Foreign Trade Review, 2003

International Trade has witnessed a simultaneous growth in electronic commerce and trade in servi... more International Trade has witnessed a simultaneous growth in electronic commerce and trade in services. Absence of requirement of physical delivery of goods makes trade in services through electronic means easier in comparison to trade in goods by the use of electronic medium. The World Trade Organisation seeks to liberalise trade in services in a gradual manner. The General Agreement on Trade in Services identifies four modes of supply of trade in services of which the first two are relevant for e-commerce. The present paper identifies the issues involved in trade in services through electronic means and examines how the framework under the General Agreement on Trade in Services regulates and affects e-commerce and is in turn also affected by it. Some suggest greater liberalisation in services trade as a possible solution to many of the problems involved. However, now both developing and developed countries have reservations about it guided by their policy consideration and economic compulsions.

Bookmarks Related papers MentionsView impact

Journal of World Trade, Oct 1, 2006

The article Extent of protection via Anti-dumping Law: a Case Study of Vitamin C Industry in Indi... more The article Extent of protection via Anti-dumping Law: a Case Study of Vitamin C Industry in India, by Sumeet Gulati et al. (Journal of World Trade 39(5) (October 2005), pp, 925936) provides an interesting study of the effects of anti-dumping measures. The article points out that the anti-dumping cases of vitamin C in India were prompted by the sole dominant domestic producer but the anti-dumping measures benefited other exporters of vitamin C in India which might not have been visualized by the domestic industry.

Bookmarks Related papers MentionsView impact

Economic and Political Weekly, Oct 19, 2002

This article highlights the main theoretical arguments given by the proponents and opponents of t... more This article highlights the main theoretical arguments given by the proponents and opponents of the reservation policy in India and the US. In the current era of neo-capitalism and globalisation, both countries are struggling to balance their humanitarian ...

Bookmarks Related papers MentionsView impact

TRIPS is a reality and India has to rework its patent law to conform to it. But that does not mea... more TRIPS is a reality and India has to rework its patent law to conform to it. But that does not mean that we have a patent law that provides for TRIPS plus rules. Our interest lies in taking full advantage of any flexibility available in the agreement.

Bookmarks Related papers MentionsView impact

Working Papers, 2007

The doctrine of precedent is getting established in WTO and seems to be there to stay however muc... more The doctrine of precedent is getting established in WTO and seems to be there to stay however much it is argued otherwise. Neglect of this fact means that we are overlooking some of the problematic developments in WTO jurisprudence. This is quite evident from ...

Bookmarks Related papers MentionsView impact

Working Papers, 2007

The doctrine of precedent based on the system of stare decisis has its genesis in the common law ... more The doctrine of precedent based on the system of stare decisis has its genesis in the common law of England which was supposed to be customary law. Actually it was the decision of the courts which made up a body of common law which the proponents of the ...

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