(excerpt) Social policy in Latin America has traditionally failed to benefit the poor. Throughout most of the twentieth century, the main redistributive efforts in the region went into building welfare states. Yet unlike their European counterparts, these Latin American welfare states are highly “truncated,” meaning that whatever their nominal degree of universality, in fact they only cover those with formal employment. The poor, being mostly outside the formal sector of the economy, are outside the ambit of the welfare state as well. Latin American social-insurance programs—maternity and family benefits, health insurance, old-age pensions, and disability benefits—typically began as emoluments meant for relatively small groups such as state employees, armed-forces personnel, and those working in certain favored industries. The welfare state’s coverage gradually expanded throughout the twentieth century until most formal workers came under its umbrella, though even then agricultural workers were almost always left out.

Once nominally financed by contributions, most of these programs are now in fact funded more or less directly by taxes. Because “the regressivity in social insurance schemes has not been helped by any significant progressivity in tax financing,” these schemes foster a “reverse Robin Hood effect” in which the poor are made to pay for the benefit of the rich. Latin American social policy, in other words, has mostly worked backwards, making preexisting economic and social inequalities wider rather than narrower.

Alberto Díaz-Cayeros is associate professor of international relations and Pacific studies and director of the Center for U.S.-Mexican Studies at the University of California, San Diego. Beatriz Magaloni is associate professor of political science at Stanford University. This essay is based on a paper presented at an April 2009 conference in Bratislava funded by the United Nations Democracy Fund.

Using new field-level and international survey evidence we highlight one channel via which weak legal institutions may lower Indian productivity and growth. We provide evidence that top executives in Indian firms are highly centralized and do not delegate functional responsibility and decision making to middle-management. Case-study evidence and large-scale firm surveys suggest executives fear that managers will misappropriate firm assets given the opportunity to do so, in part because the weak legal system is unlikely to successfully punish the culprits and recover the assets. As a result, firms' growth potential is limited because of the limited time and attention of the top executives. This can help explain why Indian firms are smaller on average than those in the US or Europe. It can also explain why there is less reallocation of capital and labor from low productivity to high productivity firms in India, since otherwise-successful firms find it harder to grow. As a result, weak legal institutions may play a potentially important role in reducing aggregate productivity and growth in India.

The significant increase in the role of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, rapid globalization of the economy and the resulting increase in competition has led to an increase in commercial disputes. At the same time, however, the rate of industrial growth, modernization, and improvement of socio-economic circumstances has, in many instances, outpaced the rate of growth of dispute resolution mechanisms. In many parts of India, rapid development has meant increased caseloads for already overburdened courts, further leading to notoriously slow adjudication of commercial disputes. As a result, alternative dispute resolution mechanisms, including arbitration, have become more crucial for businesses operating in India as well as those doing businesses with Indian firms.

Keeping in mind the broader goal of exploring links between the quality of legal performance and economic growth, this paper is an attempt to critically evaluate arbitration in India as a legal institution. To this end, this paper presents an empirical inquiry into the state of arbitration, as well as a more theoretical examination of the political economy and arbitration as developed and practiced in India. In sum, although the huge influx of overseas commercial transactions spurred by the growth of the Indian economy has resulted in a significant increase of commercial disputes, arbitration practice has lagged behind. The present arbitration system in India is still plagued with many loopholes and shortcomings, and the quality of arbitration has not adequately developed as a quick and cost-effective mechanism for resolution of commercial disputes.

In this paper, the evolution of arbitration law and practice in India has been explored. Part I of this paper lays out the basics of arbitration in India, with a brief discussion of its history, the statutes that govern arbitration, the types of arbitration practiced, the enforcement of arbitral awards, and the costs of arbitration as compared to those of litigation. Part II explores the working of arbitration in India, while Part III is a critical analysis of the success of arbitration under the 1996 Act. Part IV briefly examines arbitration practice across regions, and the relationship between arbitration and commercial growth. Finally, Part V offers a series of recommendations for improving arbitration practice in India.

The institutional context of economic activity in India has undergone tremendous change in the past 15 years. The Government of India's launch of market-based economic reforms in 1991 was a response to a macro-economic crisis emanating from a deficit in the balance of payments. The economic dynamism that ensued thereafter has surprised many observers. Though high economic growth rates have attracted the most attention, concurrent changes in economic institutions have been no less important. During the 1980s, the Indian economy was characterized by pervasive controls on all aspects of market- functioning of industrial enterprises-entry, capacity expansion, exit, pricing and distribution. During the initial phase of the reforms, policy attention focused on stabilization of the macro-economy. It would be fair to state that there was no coherent institutional road-map that Indian reformers had in mind when the process began. The overall policies were shaped by the "Washington Consensus" model. This meant focusing on reducing the fiscal deficit and downsizing the all-encompassing role of government in economy. The original intent of industrial and trade policies were abolition of controls and trade liberalization, and these were pursued vigorously. It was only during the mid-90s that institutional change relating to government-business relations came into the policy radar. The need for better regulation in several infrastructure sectors became apparent after the failure of efforts to disinvest in and to privatize some large public sector infrastructure enterprises. Policy makers began to refer to regulatory institution building and associated legislative enactments as "second-generation" reforms. Since then, there has been a steady focus on the institutional dimension-in particular with respect to the establishment of a number of regulatory institutions.

Our paper seeks to explain the ongoing process of regulatory evolution, and the crucial role of legal process. The institutional framework governing the regulation of business enterprises may well take a decade to attain mature stability. It is important to appreciate the fact that this process of institutional reform is not being driven by any particular political agenda. It has acquired a momentum of its own. Different political coalitions have ruled the Central government since 1991 without substantially reversing the direction of institutional evolution. This paper attempts to provide an explanation of the process of evolution of a regulatory framework. In this paper, we examine the case of the Indian telecommunications industry in detail, but we believe that our basic explanatory framework is valid more generally.