The International Trade Law Review: Brazil

Overview of trade remedies

According to the World Bank, Brazil was the 12th largest economy in 2020, with a gross domestic product of US$1.445 million.2 The country has also been a World Trade Organization (WTO) Member since 1995, adopting all its multilateral agreements, including those on trade remedies. In 2020, the country's trade balance had a surplus of US$50.9 billion, which was an increase of US$2.9 billion compared with 2019.3

The election of right-wing politician Jair Bolsonaro as President in late 2018 brought about significant changes in Brazilian trade policy regarding the promotion of free trade and increasing Brazil's presence in the global economy and value chains. This agenda has been pushed through mainly by the Ministry of Economy, which intends (and has taken concrete action) to open up the Brazilian economy on different fronts, including the rationalisation and streamlining of Brazil's use of trade remedy mechanisms such as anti-dumping and countervailing measures.

The covid-19 pandemic has also presented challenges and demanded changes to adapt to the new reality. With respect to the main measures taken by the Brazilian government in the field of international trade and customs, there were acts to facilitate production and importation of goods necessary to combat covid-19, such as medical supplies and personal protective equipment. The government introduced a waiver for customs duties and allowed temporary exemption of taxes for imported and domestic products used to fight covid-19.

The Subsecretariat of Trade Defence and Public Interest (SDCOM) of the Ministry of Economy is responsible for conducting investigations regarding trade remedies in Brazil. It issues an annual report on the activities, indicating, for example, the number of proceedings initiated and concluded, as well as the number of measures applied, suspended or extended. In its latest annual report, relative to 2020,4 the SDCOM reported that 44 petitions were filed to request the opening of 40 anti-dumping investigations and four subsidies investigation. Of the 40 anti-dumping investigations, 32 were initiated. Eight were not initiated and those petitions were rejected. Sixteen of the petitions were still under analysis by the end of the year, and none of them were withdrawn.

The annual report also includes information on the proceedings against Brazilian exporters, indicating that, in 2020, the SDCOM monitored and intervened in 82 proceedings and trade defence measures, including 11 original proceedings (all closed without application of any measure on Brazilian exports).5

The SDCOM has expressed its commitment to increasing transparency, adopting several measures to give publicity to the rationale behind the decisions, for example by drafting one-page summaries for each final determination. The government body also issued three guidelines between January 2019 and March 2021 on:6 anti-dumping investigations; public interest in trade defence proceedings; and support to Brazilian exporters being investigated in foreign trade defence proceedings.

Two decisions in anti-dumping cases in the past year were in respect of (1) polyvinyl chloride resins obtained by the suspension process (PVC-S)7 and (2) vehicle rubber tyres.8 In these two cases, the SDCOM determined the extension of anti-dumping duties. However, the SDCOM also suspended application of the duties based on Article 109 of Decree No. 8,058/2013 because of doubts about the future evolution of the imports. These cases have been highlighted because they also demonstrate the government's intention to reduce the use of the trade defence mechanisms, as it is not typical to use Article 109 to justify the suspension of anti-dumping measures.

Legal framework

The SDCOM is part of the Secretariat of Foreign Trade (SECEX), of the Special Secretariat of Foreign Trade and International Affairs (SECINT) and of the Ministry of Economy. It is responsible for conducting investigations regarding trade remedies in Brazil. After concluding the investigation process, the SDCOM issues its final determination, recommending (or not) the application of trade remedies to the SECINT.

If the SDCOM recommends the application of trade remedies by the Executive Committee of the Foreign Trade Chamber (GECEX), the GECEX is the authority responsible for a decision to impose trade remedies. However, if the recommendation is not to apply trade remedies (negative decision), the final decision is handed down by the SECEX.

Brazilian legislation on trade remedies comprises the following laws and statutes:

  1. Decree No. 1,355/1994 enacts the Final Act that incorporates the results of the Uruguay Round of the Multilateral Trade Negotiations of the General Agreement on Tariffs and Trade (GATT) 1994;9
  2. Law No. 9,019/1995 regulates the application of the measures specified in the Agreement on Implementation of Article VI of GATT 1994 (Anti-Dumping Agreement) and in the Agreement on Subsidies and Countervailing Measures;
  3. Decree No. 1,488/1995 regulates the administrative proceeding concerning the application of safeguards;
  4. Decree No. 1,751/1995 regulates the administrative proceeding concerning the application of countervailing measures;
  5. SECEX Ordinance No. 21/2010 regulates anti-circumvention proceedings applicable to anti-dumping measures;
  6. Decree No. 8,058/2013 regulates the administrative proceeding concerning the application of anti-dumping duties;10
  7. Decree No. 10,044/2019 regulates the Brazilian Chamber of Foreign Trade;
  8. SECEX Ordinance No.13/2020 regulates administrative proceedings relative to public interest analysis with the objective of potentially suspending or altering anti-dumping duties and countervailing measures for public interest reasons; and
  9. SECEX Ordinance No. 21/2020: in response to the covid-19 pandemic, this changes the notification method, regulating communications with interested parties in trade remedies proceedings, which shall be made electronically.

The Ministry of Economy (which incorporates the former Ministry of Industry, Foreign Trade and Services) website provides further details of all the above-mentioned legislation.

The trade defence authorities in Brazil often praise the fact that the country is one of the few that have not been challenged in the WTO, even though it is ranked as one of the top imposers of anti-dumping measures, for example.11 This is an indication of the compatibility between the Anti-dumping Agreement and domestic legislation.

In accordance with WTO general provisions on trade remedies, to initiate a case in Brazil, the domestic industry must present a written and formal request before the SDCOM. A domestic producer will only be considered a 'domestic industry' if it is responsible for at least 25 per cent of the total production of the similar product and, once consulted by the SDCOM, the domestic producers of the similar product that expressed their support for the claim represent at least 50 per cent of total production in Brazil.

To trigger the initiation of an investigation, the domestic industry must demonstrate, through supporting evidence, the existence of:

  1. subsidised or dumped imports;
  2. alleged injury to the domestic industry; and
  3. a causal link between the subsidised or dumped imports and the injury suffered by the domestic industry during the period of investigation.

As regards the application of safeguards, according to Decree No. 1,488/1995, the authorities will consider:

  1. the volume and rate of increase of imports (in both absolute and relative terms);
  2. the share of the national market captured by imports;
  3. the prices of imports, and especially whether those imports were underpriced in comparison to the similar product produced in Brazil;
  4. the consequent impact of the imports on the domestic industry, including analysis of relevant economic factors (e.g., production level, inventories or sales); and
  5. the impact of other factors not related to the analysed imports on the domestic industry.

In exceptional circumstances, SECEX may initiate an investigation ex officio, provided that it disposes of significant evidence regarding the existence of the requirements that justify opening the proceeding.

With regard to anti-dumping investigations, Decree No. 8,058/2013 states that the authorities shall examine the petition within 15 days of being filed. Within five days, the SDCOM may request the presentation of additional information, which shall be examined within 10 days. If the SDCOM considers that no further information is required, the decision on whether to initiate the investigation shall be published within 15 days.

Once the SDCOM decides to initiate an investigation, a public notice from SECEX is published in Brazil's Official Gazette with a summary of all the relevant information of the proceeding, including a list of the known interested parties. All known interested parties involved in the proceeding (including foreign governments, foreign exporters and producers, importers and domestic producers) will receive an official letter informing them that an investigation has been initiated.

The interested parties (except foreign governments) will receive a questionnaire asking them to submit relevant information about the product, the market and internal economic indicators (e.g., sales and costs) to the SDCOM. The time limit to respond to the questionnaire is 30 days from acknowledgement of the issuance of the questionnaire (presumed to be on the next business day after the issuance of the questionnaire), which can be extended by an additional 30 days (in anti-dumping investigations). During the course of the administrative proceeding, the SDCOM may also request additional information or clarifications. The interested parties can represent themselves or delegate to legal representatives with adequate powers of representation.

In respect of anti-dumping investigations, the deadline for the parties to submit new information and evidence (the evidentiary stage) to the case files is 120 days from the date of publication of the preliminary determination by the SDCOM. After that, the parties will have the opportunity to submit their arguments based only on information already available in the case records. Brazilian regulations state that the SDCOM must finish the investigation within 10 months of its initiation, although it allows this time limit to be extended to 18 months, in line with WTO rules. Nevertheless, the final decision on the imposition of commercial remedies lies with the GECEX, after receiving the SDCOM's recommendation.

Treaty framework

Brazil is a Member State of the Latin American Association of Integration (ALADI) and of the Southern Common Market (Mercosur, composed of Brazil, Argentina, Paraguay and Uruguay), which are treaties signed by, respectively, Latin and South American countries, with the aim of promoting economic and social development, harmony and balance throughout the regions.

Historically, the Brazilian government has adopted a defensive stance in multilateral trade negotiations, focusing on regional approaches. In recent years, however, this has begun to change.

As mentioned in Section I, there have been several changes to Brazilian trade policy in the past few years. The Bolsonaro government has repeatedly announced its intentions (and also taken concrete action) to open up the Brazilian economy on different fronts, including: the systematic reduction of tariffs, particularly for capital equipment, technology and telecommunications products; the rationalisation and streamlining of Brazil's use of trade remedies mechanisms, such as anti-dumping and countervailing measures; and the promotion of microeconomic reforms to enhance companies' competitiveness and attract foreign investment.

Brazil has been adopting a set of strategic actions related to the foreign trade agenda to ensure a greater alignment with international standards, such as the adoption of electronic documents related to foreign trade, and the simplification and modernisation of the Brazilian customs system.

Although Brazil continues to be an active participant in multilateral discussions, and in the WTO in particular, the government has expressed and intensified its intention to prioritise bilateral trade discussions over multilateral agreements.

Certainly, the most significant development in terms of trade negotiations was the signing – after almost 20 years of negotiations – of the European Union–Mercosur trade agreement on 28 June 2019, which the parties described as an 'ambitious, balanced and comprehensive trade agreement'. The agreement has multiple chapters spanning customs facilitation, trade barriers, sanitary and phytosanitary measures, government procurement, intellectual property, trade and sustainable development, trade in services and dispute settlement, among other things. The agreement is in the process of being ratified by the different countries concerned.

Currently, negotiations to remove tariff barriers between the Mercosur countries and the European Union have reached a stalemate due to Brazil's environmental policy. It has been indicated that the European Commission intends to include an Annex of additional environmental commitments as a necessary condition for the European Union to conclude the ratification of the agreement, for instance. Thus, the ratification process of the agreement may still take a couple of years. Mercosur Member States also see as a priority the implementation of the trade agreement already signed with the European Free Trade Association (EFTA, comprising Iceland, Liechtenstein, Norway and Switzerland) and the negotiation of trade pacts with Canada, South Korea and Lebanon. The bloc aims to enter into comprehensive trade agreements with these countries, covering market access to goods, services, government procurement, non-tariff barriers, intellectual property rights and other strategic matters. Such agreements are expected to increase trade flow for Brazil.

In March 2021, the Foreign Trade Chamber (Camex) approved negotiating mandates for potential Mercosur free trade agreements (FTAs) with Indonesia and Vietnam, covering tariffs and other trade-related topics. Brazil will have discussions with the other Mercosur Member States on how to move forward in the next steps of trade negotiations.

Finally, in relation to ongoing international negotiations, Mercosur Member States signed a region-wide agreement on electronic commerce, to facilitate trade in goods and services through electronic means among the countries of the bloc. The provisions in the agreement deal with cross-border information transfer, personal data protection, tariff-free electronic transfers, electronic signature, location of computing facilities, online consumer protection and internet access and use, among other matters. This is a modern agreement, in line with the most advanced recommendations from international forums (such as the G20 and the Organisation for Economic Co-operation and Development (OECD)).

Acting on a bilateral basis, during 2020, the Brazilian government sought a general alignment with the US government on trade and other policy areas. It agreed to forego its least-developed country status under the WTO framework in exchange for US support of Brazil's accession to the OECD. Brazil formally requested its accession to the OECD in May 2017. The country is one of the largest and most engaged non-OECD members, having adopted nearly 100 OECD legal instruments. This is seen as a major part of Brazil's trade policy.

At the end of 2020, Brazil and the United States signed a new Protocol on Trade Rules and Transparency, which updates the 2011 Agreement on Trade and Economic Cooperation with new Annexes in three areas: trade facilitation and customs administration; good regulatory practices; and anti-corruption efforts. The Brazilian government expects that this Protocol will pave the way for a future trade and tax agreements with the United States. However, it remains to be seen whether such improvements in the bilateral trade relationship will continue in view of the new Biden administration, which since January 2021 has conditioned moving forward on Brazil improving its environmental policy.

Brazil is also facing a wait-and-see moment within Mercosur. Since Mercosur has been under the purview of ALADI, Brazil has been involved in several trade agreements with ALADI Members. Mercosur has FTAs in force with Bolivia (ACE No. 36/1997), Chile (Economic Complementation Agreement (ACE No. 35/1996), Colombia, Ecuador and Venezuela (ACE Nos. 59/2005, 69/2014 and 72/2017), Cuba (ACE No. 62/2007), Egypt (FTA, 2017), India (Preferential Trade Agreement (ACP, 2009), Israel (FTA, 2010), Mexico (ACE Nos. 54/2002 and 55/2002), Peru (ACE No. 58/2005), and South Africa, Namibia, Botswana, Lesotho and Swaziland (ACP, 2016).

Despite the common interest of the bloc's countries in the conclusion of the trade agreements between Mercosur and the European Union and EFTA countries, the Brazilian government has been advocating for the adoption of measures that enable Mercosur Member States to individually negotiate trade agreements. Brazil has also engaged in negotiating and adopting other types of international agreements, especially in respect of investment facilitation. Deviating from a traditional bilateral investment agreement, Brazil has entered into agreements on cooperation and facilitation of investments with Angola, Chile, Colombia, Ethiopia, Guyana, India, Malawi, Mercosur (Argentina, Paraguay and Uruguay), Mexico, Mozambique, Peru and Suriname.

Finally, Mercosur Member States are currently reviewing the Common External Tariff (TEC). The Brazilian government is advocating for the reduction of the TEC by 10 per cent with a view to boost the bloc's competitiveness and attract foreign investments. The Argentinian government has so far demonstrated its opposition to this proposal.

Recent changes to the regime

Decree No. 10,044/2019 of 7 October 2019 restructured Camex, the body responsible within the federal government for decision-making on trade matters at the international level. The Decree has brought significant changes in the structure and division of competences of Camex, re-establishing some of the powers that had previously been transferred to other government bodies. Camex's roles had been considerably reduced in a previous restructuring, also in 2019, which transferred much of the Chamber's competences to the SECINT.

Under the regulation, the Commercial Strategy Council replaced the Ministers' Council, the highest decision-making body chaired by the President of the Republic and composed of Ministers of State. The Ministers' Council reserved competence on strategic topics relating to the commercial and customs policy guidelines of Brazil. The GECEX continues as the executive branch of Camex and has important competences, such as setting trade defence measures (anti-dumping compensatory measures) and safeguards, and establishing import duty rates. GECEX is composed of the Minister of Economy and nine other members of different ministries and areas within the federal government.

Significant legal and practical developments

In respect of trade defence matters, as a result of the efforts to increase transparency in 2020, the SDCOM initiated public consultations in April 2020 on four new Ordinances. The aim of these is to regulate:

  1. the suspension of anti-dumping measures when there is significant doubt about the evolution of the imports under investigation;
  2. the determination of the probable export price in cases where the volumes of imports were not significant;
  3. the reduction of anti-dumping duties in review proceedings; and
  4. the pre-filling proceedings for anti-dumping pleadings, in which the domestic industry presents a potential pleading before making its formal request.

In 2020, events were held with SDCOM authorities and professionals in the public and private sectors to discuss the public consultations on trade defence, in which the commercial defence authorities expressed their commitment to providing greater transparency on the criteria applied in the analysis of the recurrence of dumping and the damage resulting from it in the review proceedings. In addition, the SDCOM also signalled the intention of the federal government to encourage a gradual reduction of the anti-dumping duties in force. In that regard, one of the proposals in the Ordinances is to apply a 25 per cent reduction of anti-dumping duties in the event that there were no exports from the country to which the SDCOM applies the measure or that there were only exports in unrepresentative quantities during the period under review. This development is significant in both legal and practical terms, as some of the provisions differ from domestic regulations in other WTO Member Countries, such as the United States and the European Union, which also are among the WTO Members that apply trade defence measures most often.

The importance of the changes discussed in the referenced Ordinances is such that several Brazilian associations and the Mixed Parliamentary Front for International Trade and Investment requested an extension of the deadline for interested parties to present comments to the proposed legal texts.12 In response, the Minister of Economy, Paulo Guedes, granted an extension of the deadline to 27 July 2020;13 however, the Ordinances are still under analysis at the time of writing.

Additionally, there are two open public consultations on trade defence regarding investigations on subsidies and countervailing measures,14 and the viability of the transitions of the processes to the Electronic Information System.15 Both aim for an upgrade of the SDCOM's procedures, with greater legal security, transparency and procedural efficiency.

As for trade negotiations, Brazil has expanded its position in the global market in recent years thanks to the extensive and vigorous efforts it has been making to promote an open trade policy. Several FTAs, investment agreements and treaties to avoid double taxation are currently being negotiated by Brazil – individually or as a Member State of ALADI or Mercosur – to ensure the widest possible participation of the country in the global economy.

However, it is important for Brazil to be aware of issues relating to the alignment of the interests of Mercosur Members in international trade negotiations. Possible divergences between the Members may lead to a rupture of the bloc, which would weaken the competitive position of the entity as a whole. Thus, it is important to seek flexibility in some rules to speed up progress in current trade negotiations.

Furthermore, in line with the measures being adopted by the federal government to facilitate international trade, it is essential to address the excessive bureaucracy in internalising trade agreements. Currently, there are about 35 trade agreements that have already been negotiated and signed between Brazil and other countries, which are still not in force because of bureaucratic issues concerning their internalisation. Nevertheless, it is important that the Brazilian government continues this process of promoting an open trade policy and takes this opportunity to seek greater access to innovation and technologies in global production chains. The opening of new markets will be essential for overcoming the severe effects of the economic crisis caused by the new coronavirus.

Trade disputes

Brazil is an active participant in the WTO's Dispute Settlement Body. To date, it has participated as complainant in 33 disputes, as respondent in 17 and as third party in 158.

The last case in which Brazil participated as respondent was DS596: Brazil –Measures Concerning the Importation of PET Film from Peru and Imported Products in General concerning the importation and commercialisation of biaxially-oriented polyethylene terephthalate (PET) film from Peru and imported products in general. The case is still under analysis; the latest development, in July 2020, included a request to join consultations made by Bahrain.16

As complainant, on 27 February 2019, Brazil requested consultations against subsidies to producers of sugar cane and sugar in India (DS579). The consultations were not fruitful, and a panel was composed by the Director General on 28 October 2019.17 At the time of writing, there are no updates on this case.

Finally, as a third party, Brazil participated in three disputes in 2020 and one in the first half of 2021. The latter case is DS598: China – Anti-dumping and countervailing duty measures on barley from Australia concerning a requested consultation with China on certain measures imposing anti-dumping duties and countervailing duties on barley imported from Australia.18 The other third parties involved are Canada, the European Union, India, Japan, Mexico, New Zealand, Norway, Russia, Singapore, Ukraine, the United Kingdom and the United States. On 16 March 2021, Australia requested the establishment of a panel by the Dispute Settlement Body, which occurred on 28 May 2021.

Outlook

The current federal administration demonstrated a clear position in favour of an increase in trade liberalisation and in the presence of Brazil in global value chains. As such, it has been seeking to promote important trade partnerships and limit the application of trade defence measures. Among the examples of initiatives in this context are the formalisation of the FTA between Mercosur and the European Union on 28 June 2019, and the efforts of Brazil in negotiating the support of the United States for its membership of the OECD.

The covid-19 pandemic, however, has brought uncertainty as to how these goals will unfold as the major economies generally closed their economies and disseminated a more nationalist discourse. In the past year, there was a clear shift in the government's priorities in Brazil, with most measures directed at combating the effects of the pandemic through the granting of emergency funds to the population and tariff reductions on the products needed for combating the virus, among other things.

Finally, the outcome of the public consultations on the new trade defence Ordinances will also be relevant as, if approved, they will bring significant changes to the system, such as making it easier for importers and exporters to obtain a reduction of the anti-dumping margin in review proceedings.

Footnotes

1 Mauro Berenholc and Renê Medrado are partners and Carol Sayeg and Cora Mendes are associates at Pinheiro Neto Advogados.

5 id.

10 See https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=
119452&CurrentCatalogueIdIndex=0&FullTextHash=371857150&HasEnglishRecord=
True&HasFrenchRecord=True&HasSpanishRecord=True.

14 Secex Circular No. 38/2021, available at https://www.in.gov.br/en/web/dou/-/circular-n-38-de-31-de-
maio-de-2021-323257853.

15 Secex Circular No. 36/2021, available at https://www.in.gov.br/en/web/dou/-/circular-n-36-de-21-de-
maio-de-2021-321538146.

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