I OVERVIEW OF TRADE REMEDIES
Brazil is the ninth-largest economy in the world.2 The country coped well with the first years of the global economic crisis in comparison to other players, mainly owing to continuing domestic and foreign demand (especially Chinese demand for commodities). More recently, Brazil has had significant exports gains with agricultural products as a result of trade wars, especially the one related to the United States and China. Nonetheless, in the past couple of years, Brazil has been severely affected by an economic crisis and instability. In 2018, the country's trade balance reached a surplus of US$58,298 billon, 13 per cent lower than the trade balance of the past year. The World Bank's 2018 data and projections indicate that Brazil is expected to expand 2.2 per cent in 2019 'assuming fiscal reforms are quickly put in place, and that a recovery of consumption and investment will outweigh cutbacks to government spending'.3
The new President of Brazil is guiding the country to an economic liberal administration (2019–2022). The government expects to align trade and economic policies. To do that, the government has conducted a ministerial reform. The former Ministry of Treasure, the Ministry of Labour, the Ministry of Planning, and the Ministry of Industry, International Trade and Services form the new Ministry of Economy. That is, the Ministry of Economy has the 'control' of all factors of production.
Brazil has been a WTO member since its creation in 1995 and has adopted trade remedies provided in the WTO Agreements to take corrective action against imports that, in general, are causing material injury to a domestic industry.
Trade remedies are broadly divided into anti-dumping, countervailing and safeguard measures. The most commonly used in Brazil are anti-dumping measures, imposed in more than 382 cases from 1988 to 2018. In the same period, countervailing measures were imposed in 12 cases and safeguard measures in six.4
In 2014, Brazil ranked as the top imposer of anti-dumping duties according to the WTO, when the country initiated 45 anti-dumping investigations and imposed more than 40 anti-dumping measures. However, Brazil is experiencing a slowing down in trade remedy cases initiations, as the number of cases in 2015 decreased to 38 and in the following in year to 24. As at June 2019, only 22 cases have been initiated, four new investigations and 18 sunset reviews.
On the international front, Brazil was a target of 21 new trade remedies in 2018, which resulted in the application of 44 trade defence measures against the country's exports in the same year. The steel industry is still one of the most affected sectors with 24 measures applied against Brazilian exports. Brazilian poultry and sugar products have been targeted by China recently. The recent 'trade war' may affect other Brazilian exporter sectors.
Additionally, mechanisms designed to guarantee the effectiveness of trade remedies, such as anti-circumvention measures and investigations of origin, are being used more frequently.
According to the WTO report on G20 trade measures,5 from October 2018 to May 2019 there was a significant increase on import restrictive measures taken by G20 countries considering the value of trade. Nonetheless, Brazil is enforcing trade facilitation measures. Brazil is fulfilling its WTO commitments and implementing the Trade Facilitation Agreement to increase transparency and efficiency of customs and other procedures related to trade.
Brazil launched the Single Window web portal in 2017, which gathers online information that exporters and importers might need. It has significantly reduced time and paperwork necessary to complete customs procedures as it allows users to run simulations to get to know the administrative treatment, measures and tariffs applied to the product. The portal has been implemented in steps. In 2018, the portal was expanded to attend exports under the scope of drawback suspension. The country is also successfully implementing the authorised economic operator programme, which accredits operators that meet safety criteria and comply with customs requirements. Consequently, it triggers faster procedures and reduces the time necessary for port operations. The programme has been improved and is passing through some simplifications to expedite the certification process under the standard of international organisations.6
II LEGAL FRAMEWORK
i Anti-dumping measures
In Brazil, the imposition of anti-dumping measures is set out by Decree 8,058 of 2013,7 which abides by the rules set forth by Article VI of the GATT 1947 and the WTO Anti-Dumping Agreement.
The agency responsible for conducting anti-dumping investigations is the Subsecretariat of Trade Defence and Public Interest (SDCOM), part of the Secretariat of Foreign Trade (SECEX), both of which are subordinate to the Ministry of Economy. The SDCOM is the authority responsible for both dumping and injury examinations.
An anti-dumping investigation in Brazil starts when local producers or business associations file a written petition with the SDCOM setting out evidences of dumping, injury to the domestic industry, and the causal link between the dumped imports and the alleged injury.
The dumping period shall be of 12 months, ending in March, June, September or December. Regarding the period for injury analysis, it shall comprise 60 months, divided in five periods of 12 months, given that the most recent period must be the same as the dumping period. Exceptionally, it can be of up to 36 months but no less than that.
Once accepted, the merits of the petition are reviewed and the investigation is initiated. Investigations must be concluded within 10 months of the initiation date, subject to an additional eight-month extension under special circumstances.
During the investigation, known interested parties are notified and have sufficient opportunity to present in writing any related evidence. Upon prior authorisation, the SDCOM may conduct on-the-spot investigations at the facilities of all parties (domestic industry, importers, foreign producers and exporters) to verify the information submitted.
Parties may also request confidential treatment of special information, provided they present sufficient arguments and a non-confidential summary that allows a reasonable understanding of the information. The SDCOM stores all confidential documents in special files.
However, if a party fails to provide information in a timely manner denies its access or creates obstacles to the investigation, the preliminary and final determination shall be made based on the best information available.
Additionally, within five months of the initiation of the investigation interested parties may request hearings pointing out the specific themes to be discussed. Nevertheless, attendance of the hearing is not mandatory.
According to the decree, within 120 days of the initiation of the investigation, the SDCOM provides a preliminary determination about dumping, injury and causal link. The Subsecretariat may recommend to the Special Secretariat of International Trade and Foreign Affairs (SECINT), which is under the Ministry of Economy, the imposition a provisional measure on imports of the product under investigation, providing that: (1) all interested parties have had opportunity to express their opinions about the investigation; (2) dumping, injury and causal link to the domestic industry are affirmatively determined on a preliminary basis; and (3) authorities understand that such measures are necessary to prevent any injury during the course of the investigation.
In case the provisional duty is applied and certain criteria are met, such as the rapid increase of imports after the investigation, a retroactive collection of the anti-dumping duty of up to 90 days may be imposed on the imports.
During the investigation, exporters may undertake satisfactory obligations to adjust prices or to cease exporting at dumping prices. The SECEX should accept and SECEX must accept this price undertaking. In this case, the dumping proceeding may be terminated or suspended with no imposition of duties.
At the end of the investigation, the SDCOM issues a final determination regarding the existence of dumping, injury and the causal link between them, recommending or not to SECINT the imposition of a definitive duty. Such anti-dumping duties are not imposed under the following circumstances: (1) insufficient evidence of dumping or injury caused by the dumping; (2) the dumping margin is de minimis (less than 2 per cent); and (3) the volume of imports subject of actual or potential dumping, or injury is insignificant. In case of a positive recommendation from the SDCOM, SECINT can decide on the imposition of the duty.
According to the decree, companies that fully cooperated in the original investigation are entitled to a lesser duty that is, the anti-dumping duties imposed shall be less than the margin of dumping where such amount is sufficient to remove the injury to the domestic industry caused by the dumped imports.
Anti-dumping duties and price undertakings remain in force as long as needed to mitigate dumping and the resulting injury. However, these duties cease five years following imposition, subject to extension, through a sunset review procedure if there is evidence that its extinction could result in dumping and injury to domestic industry.
In addition to the sunset review, the regulation also provides for a change in circumstances review (interim review). Regarding the scope and collection of the duty, procedures for new shippers', anti-circumvention and reimbursement reviews are set forth in the decree. In addition, the legal text provides for product scope and redetermination review, in case the effectiveness of an anti-dumping measure is compromised.
ii Subsidies and countervailing measures
The application of countervailing measures in Brazil is governed by Decree 1,751 of 1995, which is based on the WTO Agreement on Subsidies and Countervailing Measures.
An investigation starts when local producers or business associations file a written petition with the SDCOM setting out evidences of subsidies, injury to the domestic industry, and the causal link between the subsidised imports and the alleged injury.
During the investigation, known interested parties are notified and have sufficient opportunity to present in writing any related evidence. Investigations must be completed within a year of the initiation date, subject to an additional six-month extension under special circumstances.
Prior to completion of the procedure, but never less than 60 days from initiation, the authorities may issue a preliminary determination and impose provisional measures on imports under investigation, provided that: (1) all parties have expressed their opinions about the petition; (2) actionable subsidies and injury to the domestic industry are affirmatively determined on a preliminary basis; and (3) authorities understand the measures are necessary to prevent any damage during the course of the investigation. Measures may be imposed by paying an additional amount to the import tax or granting a guarantee. Unlike the anti-dumping regulation, a preliminary determination is not mandatory.
Additionally, before the final report, which provides grounds for the final determination, there is a final hearing, whereby parties are informed of the essential facts under judgment. Afterwards, parties may submit their final arguments within 15 days.
During the investigation, the export country may, of its own decision, undertake satisfactory obligations to eliminate or reduce the subsidy, adopt an alternative measure to offset the effects and have exporters agree to a review of prices. Should the SECEX accept and approve such undertaking, the investigation may be terminated or suspended with no imposition of countervailing duties.
Countervailing duties are imposed when the SDCOM finds that an actionable subsidy, injury and causal link occurred; and the SECINT accepts the SDCOM's recommendation on the imposition. The amount of duty stipulated should never exceed the amount calculated of the actionable subsidy. Unlike the anti-dumping regulation, there is no provision on the obligation to apply the lesser duty rule.
On the other hand, definitive duties are not imposed under the following circumstances: (1) insufficient evidence of the occurrence of actionable subsidy or injury resulting therefrom; (2) the amount of actionable subsidy is de minimis; or (3) the volume of imports subject to actual or potential dumping, or injury is insignificant.
Countervailing duties remain in force as long as needed to mitigate or to prevent material injury. However, duties cease five years following imposition, subject to extension if there is evidence that the extinction of such could result in injury to national industry.
iii Safeguard measures
The imposition of safeguard measures in Brazil is governed by Decree 1,488 of 1995, which abides by the rules set forth by Article XIX of the GATT 1947 and the WTO Agreement on Safeguards.
A safeguard investigation submission shall be filed in writing with the SDCOM. The petitioner has to present sufficient elements of evidence regarding increases in imports, serious injury or threat of serious injury and causal link of both.
During a safeguard investigation, the interested parties have the opportunity to submit any evidence that might be relevant. Parties may request confidential treatment of special information, if they present sufficient arguments and a non-confidential summary that allows a reasonable understanding of the information. The SDCOM keeps confidential documents in special files. Moreover, hearings may be scheduled, but are not mandatory.
In critical circumstances, where a delay would cause damage that might be difficult to repair, it is possible to impose a provisional safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports have caused or are threatening to cause serious injury.
Consultations with countries involved must be initiated immediately after the provisional measures. It shall be applicable for 200 days at most and may be suspended once authorities decide before the 200-day period. In the case of definitive safeguard measures, the period applicable in the provisional measure shall be accounted for the first one.
Similarly to the proceeding for anti-dumping and subsidies investigations, the SDCOM issues a final determination recommending a safeguard or not. Then, if the SECINT accepts it, a safeguard is imposed.
Safeguard measures remain in force only to the extent necessary to prevent or remedy serious injury and facilitate adjustment of the domestic industry. It may take the form of an additional tariff, ad valorem or ad rem (specific), to the MERCOSUR External Tariff (TEC) or quantitative restriction. However, such measures cease four years following imposition.
Measures may be extended if there is evidence that: (1) they are still necessary to prevent or remedy serious injury; and (2) the domestic industry is not adjusting in accordance with the agreements settled with the government. Nevertheless, the entire duration of the measure will never exceed 10 years. Measures extended shall not be more restrictive than the ones that were in effect initially, and shall continue being liberalised.
iv Circumvention and non-preferential rules of origin
In order to guarantee the effectiveness of the trade measures in force, Brazil issued anti-circumvention rules: CAMEX Resolution 63 of 2010, SECEX Order 21 of 2010, SECEX Order 14 of 2011 and SECEX Order 42 of 2013. The anti-dumping decree and SECEX Order 42 of 2013 provide rules for anti-circumvention in anti-dumping cases. The anti-circumvention investigations are initiated at the request of any interested party of the original investigation, such as the domestic industry, producers, the government of the exporting country, Brazilian importers, companies responsible for the manufacturing operation or other parties as decided by the SDCOM or by the SECEX. Once accepted, the merits of the petition are reviewed and the investigation is initiated. The investigations must be concluded by the SDCOM within six months of the start date, subject to an additional three-month extension under special circumstances.
Brazil has established legislation for non-preferential rules of origin of trade policy, regulated by Law 12,546 of 2011, CAMEX Resolution 80 of 2010, SECEX Order 38 of 2015 and RFB Normative Instruction 1169 of 2011. The procedure certificates the origin of imported goods and intends to curb avoidance of anti-dumping measures through minor product modifications in third countries. As a general rule, Brazil applies the wholly obtained and tariff jump criteria, which aim to prevent fraud in the declaration of origin. Therefore, according to the legal text, the country of origin is the one in which the last substantial transformation was carried out. It also establishes a substantial transformation test as a change in tariff classification (four digits level) but excludes mere assembling, packaging, fractioning in lots, selecting, marking or diluting from being considered a substantial transformation even if they change the tariff classification. Since then, numerous investigations to examine the origin of products have been initiated.
III TREATY FRAMEWORK
Brazil is a member of the Latin American Integration Association (ALADI), which was instituted in 1980 through the Montevideo Treaty to 'promote economic and social development, harmony and balance throughout the region'.8
As an ALADI member, all Brazilian exports to other members are granted with a minimum tariff preference called the regional tariff preference. ALADI members are Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela.9 Additionally, Brazil has entered into free trade agreements and economic mutual assistance agreements (ACE) with several ALADI members, in which higher tariff preferences were negotiated.
Brazil also executed the Mercosur Treaty on 26 March 1991, in Asuncion, Paraguay, which intended to constitute a common market between the founders Brazil, Argentina, Paraguay and Uruguay. In August 2012, Venezuela became a full member, and in July 2015 Bolivia also joined Mercosur and is currently in the accession process. In December 2017, the Brazilian Representation in the Mercosur Parliament approved the accession. However, the analysis of the Brazilian Congress, which will finalise the process, is pending. The trade bloc associate members are Chile (since 1996), Peru (2003), Colombia and Ecuador (2004), and Guyana and Suriname (2013). Through ACEs, the goal is to establish a free trade zone throughout Mercosur and with all associate members.10
Since 1 January 1995, there have not been tariff barriers between Mercosur member countries. Therefore, products originating in one member country and sold in other countries are not subject to customs duties. Furthermore, a customs union was established to take effect on the same date. Mercosur members have adopted the common external tariff (TEC), based on the Mercosur common nomenclature (MCN) to unify the import duties levied on each MCN code and, consequently, prevent cash-flow deviations in trade. The TEC acts as the bedrock for the Mercosur integration process. This tariff covers the majority of products imported from non-member countries.
Mercosur and India signed a fixed tariff preference agreement in 2004, enacted by Brazil in June 2009. This agreement is currently being expanded, and the Brazilian government initiated a public consultation in 2013 to map the private sector's interests at stake. In 2009, Mercosur signed a trade preference agreement with the South African Customs Union, which entered into force in 2016.
Brazil, as a Mercosur member, enacted its first free trade agreement with a non-member, Israel, in 2007, which entered into force in 2010. It also signed an FTA with Egypt in 2010, and in the following year an agreement with Palestine. The agreement with Palestine is still under the internalisation process and Brazil already internalised the FTA with Egypt in 2015.11
New free trade agreements have become a priority in recent years, especially since the new presidency took office. Brazil now intends to gain greater access to markets through trade arrangements. On 28 June 2019, after 20 years of negotiations, Mercosur and the European Union reached an agreement for an FTA.
In 2015, Brazil opened public consultations to map out the industry's interest in new agreements to be negotiated with Mexico, Cuba, Canada, Lebanon, Tunisia and the EFTA (Iceland, Liechtenstein, Norway and Switzerland). In 2017, new consultations were opened for agreements to be negotiated between Mercosur and South Korea and Mercosur and Japan, focusing specifically on tariff reduction. Brazil and Mexico are negotiating the expansion of the agreement (ACE-53), focusing on market access, services, trade facilitation, rules of origin, sanitary and phytosanitary measures, technical barriers and dispute settlement. An expansion agreement with India is also being negotiated.
In March 2018, Brazil officially launched negotiations with Canada, and the first negotiation round occurred later that month. The CAMEX approved negotiations with Singapore in July 2018. In October 2018, Brazil and Chile concluded a free trade agreement negotiation under ACE-35. The agreement includes tariff reduction and other non-tariff subjects, such as services, digital trade, telecom, sanitary and phytosanitary measures; technical measures trade facilitation, intellectual property and small and medium enterprises. It is the first agreement in which Brazil assumes obligations on digital trade, good regulatory practices, corruption, global value chains, gender, environment and labour subjects.
IV RECENT CHANGES TO THE REGIME
Brazil is going through relevant structural and legal changes. New elected president Jair Bolsonaro shrunk the government structure, deeply affecting the international trade policy structure. In the new structure, the Ministry of Economy will play a major role in Brazil's foreign trade policy.
The Ministry of Economy will be responsible for, among others, the supervision, control, regulation and execution of programmes and activities related to foreign trade; the application of trade remedies mechanisms; participation in international negotiations on foreign trade and in economic and financial negotiations with governments and multilateral bodies; and the development of industrial, trade and services policy. These functions are largely concentrated in the new SECINT. The Special Secretariat encompasses the Executive Secretariat of the Foreign Trade Chamber, SECEX and the Secretariat of International Economic Affairs.
The SECINT is now responsible for imposing trade remedies. The SDCOM will be responsible for conducting trade remedies and public interest investigations. In the previous structure, the trade remedies investigations were conducted by the Ministry of Industry, Foreign Trade and Services, while public interest investigations were conducted by the Ministry of Treasury.
The SECINT is also responsible for determining import duty rates. The Subsecretariat of Trade Strategy will be responsible for the elaboration of a National Tariff Structure Review Proposal, including tariffs modifications.
V SIGNIFICANT LEGAL AND PRACTICAL DEVELOPMENTS
Decree 9,107 of 26 July 2017 establishes the deadline and requirements applicable to fragmented industries in trade remedies proceedings (dumping, subsidies and safeguards). A fragmented industry is composed of an exceptionally large number of domestic producers and usually comprises a significant number of small and medium-sized enterprises, which are granted preferential and differential treatment by the Brazilian constitution. For its turn, Ordinance SECEX No. 41 of 31 July 2018 regulates the qualification of a domestic industry of a particular product as a fragmented industry in the proceedings. Fragmented industries have softer criteria to prove standing to file a trade remedies case, and with this new regulation, it will have more time to file a case (at most, 10 months after the end of the period of investigation), while in a regular case, the petitioner has four months at most to file a case after the period of investigation.
A major change in subsidies investigations is also expected. The decree in effect was the subject of a public consultation at the beginning of 2014. The authority received several suggestions from industry associations, as well as from a lawyers' association and a consulting firm. However, no changes have yet been made. The same change is expected in the safeguards decree. In December 2017, the Brazilian government made a public consultation of a decree draft on safeguards. The main associations that use trade remedies presented their views. As part of the trade remedies' modernisation, the subsidies and safeguard proceedings were made electronic in June 2018.
On 17 April 2019, Ordinance No. 8 of 15 April 2019 was published, and it is already in force, providing the administrative procedures for the assessment of public interest in cases involving trade remedies. The Ordinance is under public consultation and the authority received contributions up to 31 May 2019. Jurisdiction for such assessments has shifted to organs included in SECINT, responsible for the decision on the existence of public interest, as well as the SECEX and SDCOM, responsible for technical analysis of the public interest. The establishment of the new Ordinance aims for the convergence of procedural deadlines for public interest and trade remedy assessments. As a result, the assessment of public interest will occur during investigations of anti-dumping, countervailing or reviews in progress. In other cases, if there is evidence that the circumstances justifying the application of the trade remedy have changed, an administrative review can be requested under the respective legislation in force. Preliminary public interest assessment is now mandatory in original dumping or subsidy investigations, but optional in the case of sunset reviews, at SDCOM's discretion, or based on a public interest questionnaire submitted by interested parties. A final version of the ordinance incorporating the contributions of the public consultation should be published in the second semester of 2019.
Additionally, the Superior Justice Court, by the Federal Jurisdiction Council, formally recommended that federal courts should have specialist competition and international trade law judges.12 Trade remedies measures may be challenged at a judicial level; however, they are usually challenged at an administrative level.
VI TRADE DISPUTES
Brazil is an active participant of the Dispute Settlement Body. In addition to being a complainant and respondent in several cases, the country participates as a third party in many cases.
Certain Brazilian measures concerning taxation and charges in the automotive, electronics and technology industries in Geneva, and other measures that potentially affect Brazilian exporters was challenged under the WTO. A first case against these measures was filed by the European Union in 2013 (DS472), and a second case was filed by Japan in July 2015 (DS497). The Appellate Body issued the final report on December 2018 to bring into conformity the measures related to electronics and automotive incentives. On the other side, the Appellate Body reversed the findings of subsidy related to programmes related to exporters (PEC and RECAP) and concluded that these programmes comply with WTO agreements.
In 2017, Brazil requested consultations with Canada regarding trade in commercial aircraft (DS522). As per the request, Canada granted substantial subsidies to aircraft producers in the form of loans and other financial contributions, which are prohibited and actionable subsidies. The consultations received requests to join by China, the United States, the European Union, Singapore, Russia and Japan. The panel was composed on 6 February 2018.
Most recently, Brazil requested consultations against China concerning the safeguard measure imposed by China on imported sugar, China's administration of its tariff-rate quota for sugar and China's import licensing system for out-of-quota sugar (DS568). The European Union, Thailand and Guatemala requested to join consultations.
Finally, Brazil requested consultations on 27 February 2019 against subsidies to producers of sugar cane and sugar in India (DS579). In March, Guatemala, Costa Rica, the European Union, Australia and Thailand requested to join consultations.
The European Union, the United States, China and Argentina remain Brazil's main partners in bilateral trade flow imports. Brazil is expected to remain a major player in the global trade of certain agricultural commodities, and it is expected that there will be an end to manufacturing sector's decline in its share of the GDP.
The manufacturing industrial sector expects to continue to face hard times in terms of competitiveness. Nonetheless, recent measures adopted by the companies to face crisis challenges, recently sanctioned amendments to the labour law, and possible other reforms under discussion on social security and tax may ensure the industry better conditions to compete in local and foreign markets. Government actions to facilitate trade and grant market access may also drive companies' strategies in the international trade area.
As a part of Brazil's new economic and trade policies, it seeks to accede to the Organisation for Economic Co-operation and Development. The new trade policy focuses on reducing some import duties, improving Brazilian exports competitiveness, facilitating trade, and negotiating free trade agreements. Trade remedies appears to have not been given the same priority as in past governments; however, it would possibly continue to play a relevant role, depending on the evolution of trade flows, especially the ones related to unfair trade. On the export front, Brazil has actively supported Brazilian exporters facing trade remedies investigations.
China's market economy status is still a major issue in the trade remedies area in Brazil. As other countries, Brazil currently does not recognise China as a market economy. After the expiration of the provision set forth in China's Protocol of Accession to the WTO on 11 December 2016, Brazil has placed itself in a position to wait for other countries' positions and is closely following challenges brought by China against the European Union under the WTO's Dispute Settlement Body. As at June 2019, it had initiated 16 sunset review and two new original cases against China. SDCOM is analysing China's market economy status on a case-by-case basis, considering evidence regarding whether the investigated product or sector is under a market economy environment or not.
1 Fernando Benjamin Bueno is a junior partner and Milena da Fonseca Azevedo is a lawyer at Demarest Advogados.
8 Preamble of the Montevideo Treaty.