The LIDS Working Paper Series is a forum for practitioners and researchers to share practical insights on the intersection of law and international development.
2013 Working Paper Series:
For its 2013 Working Paper series, LIDS selected the following papers from among submissions from across the Harvard community and a number of other schools. Papers were chosen with an emphasis on addressing novel legal issues that affect development. The selected papers are:
1) L. Michael Hager, former Director General, the International Development Law Institute (IDLI), Italy. “Development Law Capacity Building: Training Legal Professionals for Development.” [paper available here]
2) Tae Jung Park, Visiting Researcher, Georgetown University Law Center. “The WTO as a Solution for Implementing ‘Right Institutions in Developing Countries.” [paper available here]
3) Cristián Rodriguez-Chiffelle, Harvard Law School, LLM 2013. “A Technical and Policy Analysis of Denunciation of the ICSID Convention.” [paper available here]
4) Dr. Suchita Shah, Harvard School of Public Health, MPH 2013, Oxford University (UK). “The globalization of intellectual property rights and traditional medicine.” (Pending.)
Our congratulations to the authors and thanks to everyone who submitted! As part of LIDS Live going forward, LIDS has an open request for writing on law and development issues, whether in the form of articles, white papers, or shorter formats such as editorials and blog postings. Please submit to LIDS Live!
1) Zubair Ahmad Dar – Power Projects in Jammu & Kashmir: Controversy, Law and Justice
The Indus Waters Treaty has come to be regarded as a model treaty for dispute resolution between countries that share rivers. However, it has come under serious attack due to its failure to answer questions over environmental security, water justice and joint working mechanisms in ensuring water security of all the peoples of the Indus basin. While diplomatic efforts are on to analyse what can be done to prevent these disputes from taking a violent turn, legal battles are being fought at different levels to settle the disputes. This paper analyses why power projects built in Jammu and Kashmir by India are engaging India and Pakistan in a legal battle. It also discusses the relevant provisions of the Indus Waters Treaty and how the dispute resolution mechanism of the treaty limits the cooperation between the two countries over water issues and why the people of Jammu and Kashmir feel marginalized by the treaty and the exploitation of water resources in Jammu and Kashmir for hydroelectricity generation. The paper also examines the Indus Waters Treaty in the light of the principles of non-navigational uses of water and makes recommendations to minimize conflict on water and maximize cooperation over the use of waters in the Indus basin.
The general opinion is that the World Trade Organisation’s Dispute Settlement System (DSS) has been a remarkable success. However, to focus exclusively on performance ignores the distributive aspects inherent in any legal system. Institutional performance needs to be measured not in its entirety but with reference to who gets what and whose costs get considered through analysis of the differential effects of these rules across members. I will attempt to establish the opportunity set of those states with lower levels of trade, geographical area, economic wealth and/or political power; those who are not key players in international relations. These characteristics are typically found in developing countries within the WTO membership. There are currently 32 least developed countries (LDCs) in the WTO, and to date only one of them has brought a dispute. We also need to look beneath these rules to the property rights of dispute settlement and the opportunity sets available to each member, as these are crucial to establishing the distributional implications of institutional structure. It is therefore necessary to examine whether members have the equal opportunity to make use of the system.
Multilateral development banks (MDBs) and national anti-corruption bodies have generally adopted what might be termed an ‘alliance model’ in forming international anti-corruption relationships. Under an alliance model, although the parties to the alliance work toward common goals, each participating party ultimately retains independence and control over decision-making. An alternative to the ‘alliance model’ is an ‘allegiance model’ under which a party relinquishes a level of independence by agreeing to allow another party to make decisions on its behalf. On April 9, 2010, the World Bank Group and four other MDBs moved from an alliance model to an allegiance model when they agreed to automatically recognize and enforce debarment decisions made by any participating MDB by entering into the Agreement for Mutual Enforcement of Debarment Decisions (“Cross-debarment Agreement”). Despite the existence of the Cross-debarment Agreement, there remains a gaping loophole in supply-side corruption in foreign aid funded projects. Contractors may often still bid for and gain contracts funded by national aid agencies, even if they have been debarred by an MDB. This paper contends that national aid agencies should adopt an allegiance model by entering into formal agreements with MDBs to automatically recognize and apply debarment decisions made by these MDBs. Although there are several potential risks in entering this proposed arrangement, by incorporating appropriate control mechanisms, such as a limited opt-out clause, on balance, the benefits of this arrangement outweigh the risks.
This paper argues that the implementation of the 2011 Draft Indian Micro Finance Institutions (Development and Regulation) Bill is fraught with challenges and complexities that are still to be borne out in the legislative process. Central to the ultimate success of the guidelines enshrined in the Bill will be the level of rigor exhibited by the Reserve Bank of India (RBI) with respect to interest rates, initial capital requirements and margin caps, and the ability of the RBI to safeguard consumers against usurious lending practices while also promoting growth, development and innovation in the microfinance sector. The paper reviews the Bill in relation to the goals of financial inclusion, consumer protection and the growth of microfinance in India and globally. It traces the origin of the current legislation by providing an historical overview of microfinance and microfinance regulation in India from both a supply and demand side. The Bill’s main principles are analyzed in the context of international best practice guidelines for microfinance regulation. The analysis is rooted in “social cost” theory developed by R.H Coase, which postulates that the problem of regulation is often a reciprocal one, in that A is harmed, and B is also harmed, and therefore the objective should be to reduce the more serious harm. This paper argues for a balanced and risk based approach to microfinance regulation in which no one actor is overly harmed by the provisions of the regulation.
5) Judith Onyebuchi Olloh – Chevron Nigeria: In-House Counsel
This case study explores the role of Chevron’s in-house legal team in Nigeria. It highlights the General Counsel’s experience in leading and managing his team, in addition to the approach he has adopted in dealing with various challenges that arise while operating in Nigeria. This case study raises questions and discussion points regarding the role of the in-house legal team of a major multinational energy company operating in Nigeria by emphasizing the need for alignment between a company’s strategies, culture, business environment and people. This is an important issue that every professional service firm must address, and the strategy which an organization’s management employs to tackle the issue can determine its success or failure.
Series Editors: Madison Condon, Joshua Gardner, and Erum Sattar
The views expressed in the LIDS Working Papers Series are those of the author(s) and do not necessarily reflect those of the Harvard Law and International Development Society, Harvard Law School, or Harvard University. Working Papers have not undergone formal review or approval, and are included in this series to elicit feedback and to encourage debate on important challenges at the intersection of law and international development. Copyright belongs to the author(s). Papers may be downloaded for personal use only.