Thursday, August 30, 2007
Andrew Wood, Pitt Law '08, files from Manila:
The Philippines has a number of laws on the books that are geared towards protecting the environment, but effective enforcement of those laws is another story. This fact is evident in the aquarium fishing industry. The Philippines is one of the world's leading exporters of ornamental fish. Destructive fishing and over-fishing, including the use of cyanide in collecting aquarium fishes poses a significant threat to the marine environment, which is extremely diverse in the Philippines.
For example, the Verde Passage Marine Corridor, located about 2 hours south of Manila, was recently found to contain the richest biodiversity of marine shorefish in the world. The Indo-Malaya-Philippines Archipelago (IMPA) has long been considered the area of highest marine biodiversity in the world. There is a higher concentration of marine species per unit area in the Verde Passage in the Philippines than anywhere else in the IMPA. Hence, the Verde Passage Marine Corridor, home to over 1700 marine species, has recently been dubbed the "center of marine shore fish biodiversity in the world" by a world renowned scientist and expert on marine fishes.
Still, the use of destructive fishing methods such as the use of cyanide and other toxic substances continues and threatens the marine environment. The toxins are spread among the corals, stunning the fish for easy collection. In the process, corals living organisms in and of themselves are damaged and killed. The problems posed by cyanide use are widely known, and laws exist that are intended to regulate the situation. For example, Section 88 of the Philippine Fisheries Code addresses cyanide and other noxious chemicals in the same manner as dynamite fishing. The most significant problem, however, is the lack of enforcement of the law.
An ineffective enforcement scheme exists on paper that requires fishermen to stop at a Cyanide Detection Test Center before they sell their fish to an exporter. Enforcement within this scheme requires better equipment as well as an enforcement strategy that continues a multifaceted approach but needs to emphasize regulation at the exporter level if enforcement is to succeed. Improved equipment, which the national government's Cyanide Detection Test Center has proposed they need, would enable cyanide testing in the laboratory to be significantly more effective. Even with adequate equipment, however, fishermen often bypass the legally required stop at the CDT center and go straight to the exporters. While enforcement is encouraged at all levels, the most effective way to remedy and manage these violations is at the exporter level because there are far fewer exporters than there are fishermen. The exporters are required to obtain a cyanide-free certification for every batch of fish they purchase, and if this requirement is enforced at the exporter level the fishermen will necessarily have to follow suit.
In addition to the emphasis placed on enforcement at the exporter level, a multifaceted approach should be continued and the best current model is that provided by the Marine Aquarium Council (MAC), an international NGO with a strong presence in the Philippines and the Verde Island Passage. An approach that integrates the various concerned stakeholders is necessary to achieve a successful legal framework. Identifying the problem the destruction caused by cyanide and raising awareness among the stakeholders including the fishermen who use cyanide is a start, but it is not enough. As noted before, most fishermen are aware of the problem. If the law is to act as a deterrent, an effective enforcement strategy is necessary.
Thursday, August 16, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
The cruel irony is that the most pressing diseases are the ones that don't make money. Multinational pharmaceutical corporations from the United States and Europe can rake in the profits selling drugs that treat rich world diseases like diabetes, hypertension, and, if it can actually be called a disease, erectile dysfunction. Even middle class Indians are now buying drugs for these diseases.
The drafters of independent India's patent laws have always had the poor in mind when drafting, yet even after sea changes in India's patent laws, getting drugs to the poor remains a challenge. Nearly every day a Mumbai lawyer confronts on his way to and from work someone crippled by what I usually guess was polio. The most painful to behold would probably be the men pushing themselves by their knuckles on ground-hugging carts along the pavement, their lifeless and skinny legs twisted over their shoulders. Luckier beggars can at least stand with the help of crutches.
Until the early 1990s India was famously protectionist, and an industry she jealously guarded was her generic drug industry. While pharmaceutical product patents had previously not been forbidden, the India Patents Act, 1970, made it so that the patenting of "substances intended for use, or capable of being used, as food or as medicine or drug" would receive no patent protection. Among the results of this patent law was the success of India's generic pharmaceutical industry where Indian companies copy drugs invented in the West and the lowering of drug prices in India.
It was expected that this generics industry would facilitate much-needed drugs reaching the poor Indian masses. An unintended result was that the brightest Indians did not stay in India to develop new drugs. They emigrated to the U.S. and Europe where their inventions were protected by enforceable patent laws. Indian pharmaceutical manufacturers ended up earning profits by selling their generic drugs to nations with lax IP enforcement like Yemen and Sudan. They also sold (and continue to sell today) their generics in Western nations, taking their chances with these legal systems, a high risk, high reward game. Another cruel irony is that the poor Indian masses were just apparently not profitable enough markets.
But fact was, as long as the drugs were consumed in India, sold to countries that did not recognize foreign pharmaceutical patents, or banned from importation into Western countries by their courts, India was not a pirate nation. She was living legally, and her scientists those whose brains hadn't drained west were becoming experts in reverse engineering and not in inventing original drug molecules.
The playing field for India's pharmaceutical industry is much altered today. India joined the WTO on January 1, 1995, and was thus obliged to amend her IPR laws to be in accordance with the TRIPS agreement by the end of a ten-year transition period. This meant pharmaceutical products would need to be patentable subject matter, and India amended the Patents Act accordingly in 2005.
There does not appear to be evidence that drug prices have skyrocketed or even risen since the patent law amendments. India's government has promised price controls so that prices of certain essential drugs do not rise too high anyway. It also doesn't appear that a wave of life saving drugs is sweeping the Indian countryside. It does appear that Western multinational drug companies are now more comfortable collaborating with Indian drug firms and more comfortable performing research and development in India. Furthermore, India's generic drug industry continues to function, manufacturing generics of drugs whose patents have expired, or by manufacturing generics and taking chances in foreign legal environments.
And amongst all the talk about new patent laws, India's poor have not been entirely forgotten. In hopeful sounding developments, non-profit groups underwritten by the Bill and Melinda Gates Foundation, Doctors Without Borders, and others, are working to develop drugs to fight the neglected diseases of the poor world. One of these groups, the Institute for OneWorld Health, has actually developed to fruition a drug called paromomycin that has proven to be an effective cure for black fever, the world's second largest parasitic killer after malaria. Paromomycin has been approved in India and could potentially eradicate the disease.
Thursday, August 02, 2007
Eric Linge, Pitt Law '09, files from Mumbai:
Currently I am a law student. In the future I want to be a lawyer that is, employed as a lawyer. There are a lot of voices, however, including my school's career services department, telling me the difficulty in this. Too many want to be lawyers, and there just aren't enough jobs (students: for a depressing read, check this site).
Now could it also be true that these supposedly scarce lawyer jobs are being outsourced to India? Well, yes, kind of. However, the risk India poses seems, in my Indian legal experience, more apocryphal than truly dire. Most outsourced jobs are of the paralegal and secretarial variety.
There's no doubt politicians play up outsourcing's threat to American jobs. John Kerry said business executives who outsourced work were "Benedict Arnold C.E.O.s" And there's no doubt that some U.S. legal work is being done in India. An appellate brief prepared in India by a legal processing outsourcing (LPC) company was submitted to the Supreme Court in 2005. The issue of the case was whether an I.R.S. provision violated the Fifth Amendment's Due Process Clause.
After all, outsourcing often does makes economic sense. Labor in India tends to be cheaper, and India offers tax breaks to foreign companies who outsource to her soil. The outsourcing of legal work began over ten years ago when law firms began establishing subsidiaries to scan and index documents in India. In 2001 General Electric established an in-house legal office in India where Indian lawyers handled issues with G.E.'s plastics and consumer finance divisions. There now exist even third-party vendors who can provide Indians to perform general legal office work. Some of these vendors even employ Indian lawyers, some even trained in the U.S.
Silicon Valley law firms have been hiring Indian companies to write and review patent applications. Complicated, high-tech patent applications can cost between $8,000 and $10,000 to file in the Midwest and up to $12,000 in Silicon Valley. The same job can be done in India for $5000 to $6000. Scientists and engineers, two fields where India is particularly skilled, do much of the work. Even in the U.S. this work is often contracted (or outsourced, if you will) to on-shore scientists and engineers.
A pitfall of this outsourcing model is how much training an Indian needs in order to perform American legal work. Even highly educated Indians need expensive training, even for relatively un-complex legal work. Professionals in the field have reported that elitely-educated Indian lawyers can take as long to train as non-lawyers from modest backgrounds.
Despite this one major pitfall, outsourcing to India sounds, on paper at least, enticing. Indian legal education is done in English. India's constitution and legal system are based on English common law, as is the U.S. The rule of law draws largely on U.S. constitutional principles with American case law often cited in court opinions. With the technology outsourcing boom already underway in India, India is a fairly wired country. Plus, Indian schools are generally producing more well-educated graduates than India can provide jobs.
And yet despite these enticements, there is just little evidence that the outsourcing of lawyer jobs to India is contributing to the legal job crunch that law school career services says exists. One study says there is "more smoke than fire,", and proof of this is the rate that the previously mentioned third party outsourcing firms are going out of business. Also there is no consolidation in this industry, which typically accompanies fast growth industries.
From my own experience, India's corporate sector is growing so fast, as are its needs for in house and out of house counsel, it is difficult for me to believe that this corporate growth would have any difficulty in swallowing (and paying well) the Indian law professionals who would otherwise be available to work as outsourced labor.
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