India in the WTO

Here is a curiously interesting report from the Economic Times … the Indian Committee of Secretaries has advice for the Ministry of Commerce:

Apply WTO-approved curbs to ban imports, advises CoS
28 Feb 2009, 0102 hrs IST, Amiti Sen, ET Bureau

NEW DELHI: The commerce department, which restricted the import of a number of items from China this fiscal by allowing only actual users to import them through special licences issued by the government, may no longer be able to take the measure on its own.

The committee of secretaries (CoS), headed by the Cabinet secretary, is of the view that such restrictions could lead to violation of multilateral trading norms established by the World Trade Organization (WTO) and should be used sparingly. It suggested that the decision to impose such restrictions, when absolutely necessary, should be taken by the CoS, a government official said.

The commerce department should, instead, use the WTO-approved special safeguard mechanism (SSM)—where special import duties are imposed to prevent import surges—to help industry against cheap imports, the CoS proposed in a recent meeting.

The commerce department, in November last year, had put a number of items on the restricted list of imports like hot-rolled steel and radial tyres which are being mostly imported from China. Import of all items on restricted list is allowed only by actual users through import licences issued by the government.

The import of restricted products is, thus, totally in control of the government — a situation WTO may not tolerate. “If we are taken to WTO by an exporting country and found guilty of violating WTO rules, retaliatory sanctions can be imposed against our exports,” an official said.

The use of special safeguard mechanism, however, is allowed by WTO as it leads to imposition of additional import duties on products once it is conclusively proved there has been a surge in the import of an identified product leading to domestic market disruption and injury to the industry.

New Delhi has already imposed safeguard duties on four items, all chemicals. The directorate general of safeguards, set up under the department of revenue, carries out investigations following complaints made by the domestic industry against increased imports of a particular commodity.

Once it is satisfied that there has been a sharp increase in the import of a product and has led to losses for the domestic industry, it imposes 200-day temporary import duties on the product. The safeguard duty could be in place for up to three years if the domestic industry continues to be threatened by imports.

With the slowdown leading to contraction in global demand, the government is focusing on protecting the domestic industry against cheap imports.

Thoughts … turf wars?

Also, the Committee of Secretaries view might give ideas to Chinese trade officials about a potential WTO violation here on Indian restrictions on imports of hot-rolled steel and radial tyres. 

And with the global economic crisis and the slow-down in India, there seems to be general protectionist sentiment all-around. In an election year, the Indian government has not much option but to protect domestic industry and very little appetite for signing new FTAs and lowering any tariffs. See earlier post

This Economic Times story reflects Indian industry and policymakers sensitivity on the issue of any protectionist clamp-down on outsourcing. Though I think the Economic Times jumped the gun here a bit. Its too early to be talking about WTO contests especially since the whole story seems to be based upon this sentence in President Obama’s speech to Congress:

We will root out the waste, fraud, and abuse in our Medicare program that doesn’t make our seniors any healthier, and we will restore a sense of fairness and balance to our tax code by finally ending the tax breaks for corporations that ship our jobs overseas. 

The news report captioned “India may contest Obama’s move against outsourcing in WTO” seems to be based upon Minister Kamal Nath’s response on being asked whether India would respond to the suggestion in Obama’s speech. This is what Nath is reported to have answered:

We have to ensure what they (US) are doing is WTO compatible when we are talking about trade, movement of goods, movement of people and movement of services," Commerce and Industry Minister Kamal Nath said here.
"Yes, of course," he said when asked if India will take up the issue of outsourcing with the US administration.
…

Nath said, "One has to see how the US companies using India as a base for technological development respond to their own government." Outsourcing of technology development by large companies cannot be switched on and off, he added.

It should be interesting to see what shape the US measure on discouraging outsourcing takes. A PTI story has more:

Nearly 1,000 US firms, which have shipped their jobs overseas are anticipated to be affected with the proposed elimination of tax incentives. The plan mainly refers to one of the provisions in the tax code that allows companies to pay lesser taxes for profits earned from foreign shores.

Here’s another interesting aspect linking the outsourcing issue with H-1B visas. A Computerworld story discusses this:

The U.S. government’s H-1B visa usage data for fiscal 2008 shows that offshore outsourcing firms based in India are employing a growing number of H-1B workers — a hiring trend that is affecting the IT workforces in communities such as Oldsmar, Fla.

Oldsmar is the home of a technology center operated by The Nielsen Co., which measures TV audiences, consumer trends and other metrics for its clients. Nielsen last year began laying off workers at the facility after announcing in October 2007 a 10-year global outsourcing agreement valued at $1.2 billion with Tata Consultancy Services Ltd.

And while Nielsen cut employees, Mumbai, India-based Tata was increasing its hiring of H-1B workers. Tata received approval for a total of 1,539 H-1B visas during the federal fiscal year that ended last September, according to government data released this week. That was nearly double the 797 visas that the outsourcing and IT services vendor received in fiscal 2007

 

The new Annual Supplement to India’s foreign trade policy was released by commerce minister Kamal Nath on 26 February.

His speech on the occasion can be accessed here. It provides an interesting insight into the trade policy priorities of the Indian government. Incidentally there is no mention of the stalled Doha round and the WTO  finds mention only in passing (the Minister quotes the WTO to warn about how the growth rate in global trade in goods and services is expected to decline from 7.2% in 2007 to 4.6% in 2008 and further to 2.1% in 2009).

On Indian FTAs the Minister had this to say:

We concluded a Comprehensive Economic Cooperation Agreement (CECA) with Singapore in 2004. It is India’s first CECA with any country covering goods, services, investment and other areas of cooperation. We are in an advanced stage of negotiations with ASEAN, Korea and Japan and are engaging significantly with SAARC, EU, EFTA and Thailand. These efforts have increased our confidence for a deeper engagement with other trading partners and also to understand their markets for promotion of trade in both goods and services.

The annual supplement with the trade facilitation measures can be accessed here while the Foreign Trade Policy 2004-2009 can be accessed here.

A new full year policy for 2009-2010 will be issued by the new government constituted after elections this year.

The Business Standard has an article with an update on India’s FTA negotiations. The outgoing government has only signed 1 out of the 15 proposed FTAs on which it initiated talks.

Here’s the article in full:

UPA’s FTA success rate 1 out of 15

Rituparna Bhuyan / New Delhi February 25, 2009, 0:56 IST

The United Progressive Alliance (UPA) government, which initiated talks on about 15 free trade agreements (FTAs), could sign only one of them during its current tenure.

Opposition from the domestic industry lobby in some FTAs and inconclusive negotiations in other cases were reasons for slow progress in finalising FTAs with trade partners, experts said.

Government sources said that at least three of the proposed trade treaties, negotiations on which were concluded last year, would be cleared by the new government that takes charge at the Centre in a few months.

The present regime signed the Comprehensive Economic Partnership Agreement (CEPA) — which covers goods, services and investment — with Singapore in mid-2005.

* Talks Completed with Asean (FTA on goods), South Korea and Sri Lanka

* Ongoing talks with Japan, European Union, European Free Trade Association, Southern African Customs Union, Gulf Co-operation Council, Malaysia, Thailand and New Zealand

* Joint study group formed with China, Australia , Russia and Indonesia

“The fact that not many FTAs were sealed shows the cautious approach of the policy makers,” said Ram Upendra Das, fellow, Research and Information System for Developing Countries (RIS). “But India has recognised that these duty-free agreements are the order of the day as other countries are engaging in similar deals. Indian exporters will be left out if the nation does not engage in these type of agreements with its trading partners”, he added.

Government sources said that the ambitious FTA with the Association of South-East Asian Nations (Asean) and a CEPA with South Korea were unlikely to be cleared by the Union Cabinet. Talks on both these agreements were concluded successfully in 2008. After successful conclusion of talks, the agreement has to be approved by the Union Cabinet before it can be signed.

“The call on these two agreements is likely to be taken by the next government,” said a government official, adding the Cabinet had met probably for the last time on Monday before dates for the elections are announced next week.

There was no announcement on the South Korean and Asean duty-free agreements. Once elections are announced, the Cabinet will not be able to clear any proposals.

Sources added that the government was facing a lot of opposition from the industry on these two FTAs, as it is wary of any cheap imports at a time when the domestic economy is going through a downturn in the wake of the global economic crisis. The Asean FTA was to be signed in December 2008, but was postponed because of a domestic strife in Thailand, an Asean member.

Moreover, a separate CEPA with Thailand could not materialise as India first wants to sign the deal with Asean. “Thailand has also asked for some additional concessions,” officials said. Meanwhile, Both the countries have are trading through a Early Harvest Scheme (EHS), which translates to duty free trade of about 84 goods.

Experts maintain that given the present economic situation, FTAs could wait. “We do not know how things will shape up in the near future. It probably makes sense at times of uncertainty to calibrate policy to suit domestic needs,” said Bishwajit Dhar, head of centre for WTO studies at Indian Institute of Foreign Trade.

But Das feels that as the United States and Europe see a downturn, India needs to diversify its exports and imports.

Significantly, a CEPA with Sri Lanka could not materialise because of the political developments in the island nation. The agreement was to be signed on the sidelines of the SAARC meeting in Colombo in August 2008. Government officials maintained that Sri Lanka did not want the CEPA due to opposition by some political parties. Both the countries already have an operational FTA, covering goods, since 1998.

An agreement with Japan, which was scheduled to be concluded by the end of 2008, is also stuck. The bone of contention was the reluctance of the island country to allow easy market access of Indian pharmaceutical products.

Kamal Nath has clarified that the six-month ban on chinese toy imports into India was for public health and safety reasons. Reuters reports:

India’s trade minister said on Friday the government’s decision to ban imports of Chinese toys was taken on the grounds of public safety and the move was compatible with World Trade Organisation rules.

Last month, India banned imports of several types of toys from China for six months "in the public interest" but without giving further details of why, a move that pleased local manufacturers but shocked importers.

"The question of banning Chinese toys was on the grounds of public health and safety," Trade Minister Kamal Nath told reporters after a conference.

"It is a matter which is of public concern rather than commercial, and public concern has to be given priority over commercial concern," he added.

On Wednesday, the China Daily newspaper reported that China may ask the WTO to investigate the six-month import ban, citing a source close to the matter.

The Chinese government will probably ask the global trade regulator to look into whether the move violates its laws, the state-owned paper said, quoting a source who asked not to be named.

"Of course, it is for China to establish this," Nath said.

"We are fully compliant with WTO … Before we take any action we make it sure it is WTO compatible," he added.

To scotch any potential challenge or complaint from China, it would probably be advisable for the DGFT to issue a fresh notification imposing the ban but this time stating these reasons clearly in the notification. This would overcome any objection to the present notification on the ground that the absence of reasons violates principles of natural justice. Further, stating the public health interest in the notification itself will help counter allegations that the prohibition was issued for protectionist reasons. A fresh notification would pre-empt any challenge of the ban by way of writ petition by an Indian importer before a High Court or the Supreme Court of India. (Though the Foreign Trade Development and Regulation Act provides for appellate and revisionary jurisdiction, these provisions won’t apply here.) 

For some background on Indian administrative law and Supreme Court rulings on the obligation to give reasons in support of administrative action when such action affects rights or liabilities see here. The statute under which the notification has been issued [the Foreign Trade (Development and Regulation) Act, 1992] can be found on the DGFT website here under the notifications link.

This is what the notification states:

TO BE PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY

PART-II, SECTION—3, SUB SECTION (ii)

GOVERNMENT OF INDIA

MINISTRY OF COMMERCE AND INDUSTRY

DEPARTMENT OF COMMERCE

NOTIFICATION NO. 82 /(RE-2008 ) / 2004-2009

NEW DELHI, DATED 23 JANUARY, 2009

S.O. (E) In exercise of powers conferred by Section 5, read along with Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992, also read along with paragraph 2.1 of the Foreign Trade Policy, 2004-09, the Central Government hereby amends Schedule – I (Imports) of the ITC (HS) Classifications of Export and Import Items, 2004-09 as under:-

1. “Import of ‘Toys’ from China appearing under ITC Codes 9501, 9502, 9503 of Schedule – I of ITC(HS) Classifications of Export and Import Items is prohibited for six months with immediate effect and until further orders.”

2. This issues in public interest.

Sd/-

(R.S. Gujral)

Director General of Foreign Trade and

Ex-officio Additional Secretary to the Government of India

(Issued from F.No. 01/89/180/0053/AM01/PC-2(A)

It can be found on the DGFT website here

India made the following statement to the General Council of the WTO in its intervention on the seizure of Indian generics (bound for Brazil) by the Dutch authorities:

WTO General Council Meeting February 03, 2008

INTERVENTION by INDIA (under agenda item ‘Other Business’)

Mr Chairman,

In the last few months, Dutch customs authorities have seized several consignments of generic drugs of Indian companies on grounds of alleged IP violations. Seizure of the consignment of losartan potassium in December, 2008 was one such case of what is emerging as a clear pattern. Such instances cause us great concern due to their systemic and far reaching implications. In addition to going against the spirit of a rule based trading system and impeding free trade, such acts represent a distorted use of the international IP system and circumscribe TRIPS flexibilities. Repeat of such actions may have an impact on exporters’ choice of transit routes, which may affect the economics of trade of pharmaceutical products and consequently, have a deleterious effect on access to essential drugs and public health budgets of recipient countries.

Losartan Potassium, used in treatment of hypertension, is a perfectly IP legitimate generic drug in both India and Brazil. Trade of such a drug is also perfectly legitimate. The WTO rule based system provides for freedom of transit by the most economical and convenient routes and without unnecessary delays and restrictions. The act of seizure by the Dutch authorities is therefore, a denial of the rule based system which we seek to build and strengthen in the WTO. The concept of ‘territoriality’ is a key stone in the edifice of the TRIPS Agreement. There are no indications that the drug consignment was meant for the markets of the EC. Seizure, and initiating procedures for destruction of such consignments, violates this key principle. Members have always strived for a balance between public health concerns and protection and enforcement of IPRs. The decisions on Public Heath are a valuable part of the WTO acquis and need to be adhered to in letter and spirit. It is ironical that while on one hand WTO has taken steps to promote access to affordable medicines and remove obstacles to proper use of TRIPS flexibilities, on the other hand some Members seek to negate the same by seizing drug consignments in transit.

Mr. Chairman, the importance of generic drugs and their essentiality may vary in inverse proportion to the level of development of a country. Therefore, high importance is attached to generic drugs in developing countries and particularly in the LDCs. Barriers to legitimate trade of generic drugs will seriously impair the efforts of organizations like the Medecins Sans Frontieres (MSF), Clinton Foundation, Bill and Melinda Gates Foundation and a whole lot of other organizations engaged in providing medicines and improving public health in the least developed parts of the world.

I would also like to draw the attention of Members to another trend that is acquiring huge dimensions. This is the effort to implement the protection and enforcement of IPRs in a maximalist manner and thereby upset the delicate balance between rights of IPR holders and the public policy objectives under the TRIPS Agreement. A coordinated approach is being witnessed in several international fora like the World Customs Organisation, World Health Organisation, Universal Postal Organisation etc. to promote the IP maximalist agenda. We also note with dismay efforts by some Members to link safe and efficacious but low cost generics with counterfeit medicines, which is essentially an IPR issue. There is an attempt to enlarge the definition of counterfeits beyond its definition in the TRIPS Agreement, to set maximalist enforcement norms, and to include TRIPS plus provisions in RTAs. These are subtle and concerted ways of circumscribing the flexibilities of the TRIPS Agreement. They also run counter to the spirit of the TRIPS Agreement which is a minimum standards agreement. And, this is certainly counter to the understanding given to developing countries when the TRIPS Agreement was being negotiated.

Mr. Chairman, India attaches the highest importance to protection and enforcement of IPRs in accordance with the TRIPS Agreement. However, we do not see the Agreement as divorced from the Objectives and Principles set out in Art 7 and 8 of the Agreement. Efforts to enshrine new, maximalist TRIPS plus provisions in other forums will seriously undermine the delicate balance in the TRIPS Agreement and raise systemic issues.

I would like to conclude, Mr Chairman, by reverting to the issue of seizure of various drug consignments by the Dutch authorities. We have raised the issue here with the expectation that the EC will urgently review the relevant regulations and the actions of the national authorities based on such regulations, and bring them in conformity with the letter and spirit of the TRIPS Agreement and the rules-based WTO system.

For statements made by Brazil and the EU, see here.

See previous posts on this issue click here. 

Whats new?

The China Daily reports that the Chinese government is considering complaining to the WTO DSB against the recent Indian notification that banned imports of Chinese toys but omitted to specify the reasons for the ban.

The Chinese government is mulling a response to India’s recent ban on Chinese toy imports and will probably ask the World Trade Organization to investigate whether the ban violates WTO laws, said a person close to the issue on condition of anonymity.

This comes after a similar move in which China asked the WTO to investigate anti-subsidy and anti-dumping duties imposed by the US on four categories of imports from China in December.

Experts said it is a sign that China will be leveraging WTO rules to help protect its manufacturers from illegal trade barriers and punitive measures by its trading partners at a time when protectionism is growing amid the global economic recession.

…

"The ban cannot hold water. The Indian side is doomed to lose in the court if the Chinese government appealed to the WTO Dispute Settlement Body," said Fu Donghui, managing director of Allbright Law Firm Beijing, which deals with WTO-related cases.

…

"In the past, the Chinese government always kept silent. But the situation is changing, and resorting to the WTO is a right choice to prevent the trade partners from abusing the WTO regulations," said Fu.

The notification issued by the Directorate General of Foreign Trade should be here but is not. GATT article X calls for prompt publication of such notifications "in such a manner as to enable governments and traders to become acquainted with them" No doubt the notification has been published in the official gazette, but it is not on the DGFT website. How are traders to find the notification?

Correction dated 7 January 2008: The DGFT notification is on their website here.  For some reason did not find it before.

This report from a local mumbai news site has some more. Apparently, the notification mentions it is issued in public interest but gives no reasons as my earlier post had noted.

The notification "without reasons" clearly violates Indian administrative law as clarified by numerous Supreme Court decisions and could be challenged in an Indian Court by an importer or consumer of chinese toys. Further, even GATT article X:3(a) requires that WTO member governments administer their laws in a uniform, impartial and reasonable manner. The absence of reasons would seem to make out a case under this provision also.

There seems to be another problem with the notification. Apparently, and this is from news reports only, the notification bans direct imports from China but does not address imports of Chinese toys from third countries. This could also lay open the notification to legal challenge. The argument would be that the notification fails to achieve its objective of "safety" and the ban is being applied in a non-uniform manner.

Meanwhile, the Economic Times had reported earlier that the reason for the six month ban was to enable the government to formulate acceptable safety standards in this period. Why did the government not decide to issue emergency safety standards immediately? I suspect this was because many Indian toys would probably also have failed to comply. An Economic Times report noted that Indian toy manufacturers in the unorganized sector needed time to be able to comply with safety standards.

The background for this whole development seems to be a public interest litigation (PIL) that was filed before the Mumbai High Court by a consumer organization in 2007. The Maharashtra Pollution Control Board had apparently informed the Court in April 2008 that Chinese toys in India were found to contain unacceptable levels of toxins. See here. This PIL deals with both imported and Indian-made toys.

An outlook article has more on the lack of standards issue:

Following a report by Delhi-based NGO Toxics Link in 2006-07, highlighting the presence of toxic materials in a range of toys priced below Rs 150 ($3) found across the country, the Consumer Welfare Association of Mumbai filed the PIL. An added provocation was the government failure to check imports of ‘harmful’ toys. Says Rajiv Chavan, the advocate representing CWA, "There are two issues we have raised: the import of toys and the manufacturing of Indian toys." Indian toys meet around 50 per cent of the Rs 10,000-crore domestic market. According to Toxics Link, high levels of lead, cadmium and phthalates (a chemical used for softening plastics) can be found in most cheap toys—be they Indian or imported—bought by a majority of urban children. "How does the ban on Chinese toys protect consumers’ interest considering half the market is mostly cheap made-in-India toys with no control on quality," asks Ravi Agarwal of Toxics Link. "There is need for a mandatory standard to protect young consumers," he adds.

And spurred on by the judiciary, various ministries—consumer affairs, health, commerce, micro, small and medium enterprises (MSME)—have begun to study ways to enforce quality standards. The bad news: don’t expect safer toys in a hurry. Take, for instance, the norms put out by the Bureau of Indian Standards (BIS), which fall far short of global standards. While the European Commission had 11 safety standards for toys, India had only three—which deal with the mechanical and physical safety and flammability of toys. "The BIS calls these three standards equivalent to European standards…. But for other areas like organic, chemicals, paints and solvents used, we have nothing," complains A.M. Mascarenhas, secretary, Mumbai CWA.

Consumer affairs secretary Yashwant Bhave admits many issues are yet to be looked at. Though BIS has standards, "the issue is of making them compulsory", he says.The ministry is studying the legality of making the standards mandatory and whether it would require "mere notification or bringing in legislation", which would mean seeking Parliament approval. Pillai reveals there’s a proposal to make quality standards mandatory for certain products for young children. Simultaneously, the MSME ministry is studying ways to gradually introduce mandatory requirements to regulate toxicity of chemicals used in toys. "We have been told that in the first stage rules will be set for PVC and metal toys," says Ashok Jain, president, All India Toy Manufacturers Association. To support industry, more toy-testing labs will be set up (there are only four now).

Then, recently, the health ministry constituted a committee headed by Dr Y.K. Gupta of the AIIMS pharmacology department to study the veracity of the Toxics Link report. Says Dr R.S. Dhaliwal of ICMR and coordinator of the seven-member panel, "The health effects of metals are already known. What we are studying is the levels of toxicity in toys and its uptake or migration into the human body." While the domestic toy industry is ready to abide by better quality standards, this will take time: the court has been informed that the process to gauge levels of chemicals in toys can take up to two years.

Why can’t the government issue emergency safety and health standards under Article 2:10 of the agreement on technical barriers to trade?

Latha Jishnu of the Business Standard has a very well-researched article recently on what she calls the "policy of encirclement" in the way TRIPS plus and TRIPS plus plus obligations are being pushed through in new international and forums where developing country resistance is not as strong as in the WTO, WIPO and the WHO. She writes about SECURE, which are voluntary new customs standards and best practices for intellectual property rights enforcement and are being formulated by the World Customs Organization (WCO).

That is, if a group of developed countries and their rights holders are successful in pushing through a clever initiative at the World Customs Organization (WCO) to lay down global norms and model laws for heightened protection of IP rights. Unsurprisingly, the majority of developing countries have been caught off guard by the move to push SECURE (Standards to be Employed by Customs for Uniform Rights Enforcement) simply because they did not expect WCO to be looking at IP issues. Besides, SECURE was not a member-driven initiative but put together by the secretariat of the 174-member organisation based in Brussels. SECURE, says the WCO, will be a set of standards, procedures, and best practices to coordinate the “global effort to suppress all kind of IP rights infringements”.

The most lethal provision of SECURE is that rights holders are not obliged to provide adequate evidence to show that there is prima facie an infringement to initiate action. This is not to be wondered at since rights holders (private industry associations) have been driving the agenda. Viviana Muñoz Tellez, programme officer for the Innovation and Access to Knowledge Programme of the South Centre in Geneva, has highlighted the “cosy relationship and role of right holder groups at the WCO” who were participating in the meetings at the same level as member-states. Shockingly, they have their own vice-chair in the SECURE working group.

Latha Jishnu points out the lack of Indian participation in the WCO on this issue and is scathing in her commentary:

India is once again missing in action. Bureaucratic and political apathy have been characteristic of India’s approach to critical trade negotiations, the country usually waking to a fait accompli, allege trade watchers. This has been specially so in the case of IMPACT (International Medical Products Anti-Counterfeiting Taskforce), a WHO-sponsored agency whose proposed regulations for stamping out counterfeit medicines would have had a lethal impact on India’s pharmaceuticals industry (see ‘Choking India’s generics exports’, Business Standard, January 29, 2009). Dilip Shah, secretary-general of the Indian Pharmaceutical Alliance, points out that although there was clear notice that IMPACT was planning a dangerous change in its definition of counterfeit goods, India had not participated in many working groups of IMPACT, “denying itself an opportunity to influence the outcome and thus faced with a definition of counterfeits that would harm its interests”.

As a developing country with a putative reputation for tough bargaining at the World Trade Organization (WTO), India’s officialdom needs to have its pulse on the processes being initiated in different forums by rich countries. Forum shopping is the name of the game: The agenda that cannot be successfully pushed in one forum is shifted to the next and the next till an objective —or part of it — is reached. Even an informal agreement on certain standards can be dangerous because it is then imported into the subsequent forum as a new standard. And as the SECURE proposal shows, even the most unlikely organisations can be used to promote the interests of the developed world and its industries.

Jishnu refers to a report by Professor Susan Sell of George Washington University which documents how "IP maximalists" are engaged in a relentless and multifaceted campaign in multiple forums to ratchet up IP protection and enforcement worldwide. Professor Sell’s report dated June 2008 can be accessed here

Annette Kur and Henning Grosse Ruse-Khan have an interesting paper on this titled "Enough is Enough: The Notion of Binding Ceilings in International Intellectual Property Protection" available on SSRN here. Annette and Henning propose a concept of maximum rights ceiling rules under TRIPS which would protect the flexibility and policy space under the TRIPS agreement from TRIPS plus standards being advocated by IP maximalists in other international forums and under developed country national regulation. Here is the abstract:

Traditionally, international agreements on IP rights are built on the concept of minimum protection which members must implement in their national laws. The concept implies that members are free to provide more extensive protection. However, that observation needs to be qualified in certain regards. First some agreements do contain provisions which seem to impose ceilings, i.e. maximum rights, or mandatory limitations. Examples for this are the express anchoring of the idea/expression dichotomy in TRIPS and the WCT, and the citation right to be found in Art.10 (2) Berne Convention. Furthermore, pursuant to TRIPS Art.1:1, more extensive protection may only be granted "provided that such protection does not contravene the provisions of this Agreement". In spite of that, the general perception in international IP regulation so far has been that above the prescribed minimum standards there is no ceiling or limit other than the sky. This construction results in a spiral movement – driven by bilateral agreements – towards ever-increasing levels of protection, and reducing the flexibilities and policy space left open under the TRIPS Agreement.
In this situation, the concept of maximum rights or ‘ceiling rules’ which provide for a binding maximum amount of IP protection WTO Members can offer in their national laws gains in importance: It might offer a way to ensure and maintain a balanced approach towards IP protection, and to protect members states’ autonomy in preserving public policy goals vis-a-vis pressure exerted against them in bilateral trade negotiations. However, as appealing as the concept may be, it also has potential drawbacks that must be thoroughly explored. This concerns substantive issues – such as the risk that to espouse the principle of maximum rules might reduce instead of enhance member states’ flexibilities – as well as institutional and procedural questions – in particular, how this would fit with the current WTO/TRIPS system. The paper will address those issues. In addition, the meaning and possible impact of existing maximum rules will be set forth, and initiatives will be presented which may give the concept of ceilings a broader range of application than to-date.