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Business Guide to Trade Remedies in Brazil: Anti-Dumping, Countervailing and Safeguards Legislation, Practices and Procedures

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Business Guide to Trade Remedies in Brazil: Anti-Dumping, Countervailing and Safeguards Legislation, Practices and Procedures BUSINESS GUIDE TO TRADE REMEDIES IN BRAZIL ANTI-DUMPING, COUNTERVAILING AND SAFEGUARD LEGISLATION, PRACTICES AND PROCEDURES USD 70 ISBN 978-92-9137-370-3 EXPORT IMPACT FOR GOOD United Nations Sales No. E.09.III.T.4 © International Trade Centre 2008 The International Trade Centre (ITC) is the joint agency of the World Trade Organization and the United Nations. Street address: ITC, 54-56, rue de Montbrillant, 1202 Geneva, Switzerland Postal address: ITC, Palais des Nations, 1211 Geneva 10, Switzerland Telephone: +41-22 730 0111 Fax: +41-22 733 4439 E-mail: [email protected] Internet: http://www.intracen.org BUSINESS GUIDE TO TRADE REMEDIES IN BRAZIL ANTI-DUMPING, COUNTERVAILING AND SAFEGUARD LEGISLATION, PRACTICES AND PROCEDURES Geneva 2009 ii ABSTRACT FOR TRADE INFORMATION SERVICES 2009 C-33 076 BUS INTERNATIONAL TRADE CENTRE Business Guide to Trade Remedies in Brazil: Anti-dumping, countervailing and safeguards legislation, practices and procedures. Geneva: ITC, 2009. xv, 325 p. Guide to trade remedy procedures (anti-dumping, countervailing and safeguard), with particular reference to trade remedy legislation and practices in Brazil – provides a description of the WTO Agreements related to trade remedies; provides an overview of the procedural aspects of anti-dumping and countervailing investigations in Brazil; outlines elements involved in anti-dumping and countervailing investigations, as established by the Brazilian anti-dumping and subsidies and countervailing measures laws; reviews safeguard measures in Brazil, covering both substantive and procedural aspects; appendices contain overviews of anti-dumping and safeguard investigations; and decrees regulating the administrative procedures regarding the imposition of countervailing and anti-dumping measures; includes bibliography (p. 325). Descriptors: Brazil, Anti-Dumping, Safeguards, Countervailing Measures, Agreement on Safeguards, Agreement on Subsidies and Countervailing Measures, Anti-Dumping Agreement, WTO. English ITC, Palais des Nations, 1211 Geneva 10, Switzerland The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the International Trade Centre concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Mention of firm names and commercial products does not imply the endorsement of ITC. Digital image on the cover: © Jupiterimages Corporation. © International Trade Centre 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, electrostatic, magnetic tape, mechanical, photocopying or otherwise, without prior permission in writing from the International Trade Centre. ITC/P231.E/BTP/09-VIII ISBN 978-92-9137-370-3 United Nations Sales No. E.09.III.T.4 Foreword Under the WTO Agreements, Members have the right to apply trade remedies in the form of anti-dumping, countervailing or safeguard measures subject to specific rules. The importance of trade remedies was highlighted at the WTO Ministerial Conference in Doha, where Members agreed to negotiations aimed at clarifying and improving disciplines under the ‘Agreements on Implementation of Article VI of GATT 1994 and on Subsidies and Countervailing Measures …’ (Paragraph 28 of the Ministerial Declaration). From 1995 to 2008, more than 3,400 anti-dumping investigations were initiated worldwide. For almost three-quarters of these cases, exporters in developing and transition countries were the main targets. According to information from the International Trade Centre’s Business and Trade Policy programme, businesses in developing countries and transition economies engaged in the production and exportation of ‘sensitive’ products consider anti-dumping investigations, or the threat thereof, as a significant access barrier to a number of major markets. Parties involved in anti-dumping and other trade remedy proceedings, namely exporters, importers and domestic producers of the product in question, often know very little about the procedures and what they entail. They are unaware of the basic substantive rules of the relevant WTO Agreements or implementing national legislation, have very little knowledge of their rights, and are thus ill-equipped to defend their business interests. There has been a growing demand for publications explaining to business people the essential laws applicable and practices followed in such proceedings. It is in response to this demand that the International Trade Centre has published this series of Business Guides to Trade Remedies. The five publications of this series concern the relevant trade remedy rules and practices in Canada, the European Community, the United States of America, Brazil, South Africa and the Southern African Customs Union. The first three of these are the biggest traditional users of trade remedy measures. However, over the last few years, an increasing number of developing countries and transition economies have begun to implement trade remedy actions at an accelerated pace. This volume focuses on Brazil, which has over recent years increased the usage of trade remedy measures. Its main objective is to highlight those aspects of the law and practice of Brazil and the appropriate provisions of the relevant WTO Agreements that may be of practical interest to business managers, exporters and importers of developing countries and transition economies. The guide is not for specialists; particular emphasis is therefore given to practical definitions, problems and recommendations. Patricia Francis Executive Director International Trade Centre Acknowledgements Marcelo Calliari, Partner, and Vera Kanas and Fernanda Sayeg, Associates, at Tozzini, Freire, Teixeira e Silva Advogados, São Paulo, Brazil, wrote this publication. They are entirely responsible for the views expressed herein. Alison Southby edited the book. Layout was done by Isabel Droste. Contents Foreword iii Acknowledgements v Note xiii Chapter 1 The WTO trade remedy system 1 From GATT to WTO: a historical perspective 1 The evolution of the WTO trade remedy system 2 Building on the GATT trade remedy system 2 Anti-dumping 2 Subsidies and countervailing duties 3 Safeguard measures 3 The WTO Agreements related to trade remedies 4 Distinction between the trade remedy measures 4 The WTO Agreements in brief 5 The Anti-Dumping Agreement 5 The Agreement on Subsidies and Countervailing Measures 5 The Agreement on Safeguards 6 Procedures for anti-dumping and countervailing investigations 7 The investigation process 7 Complaint 8 Interested parties 9 Duration of investigations 9 Normal value and export price 9 Determination and calculation of the margin of dumping or the existence of a subsidy 9 Injury determination 10 Like product 10 Domestic industry 10 Provisional measures 10 Price undertakings 11 Imposition, collection of duties and retroactivity 11 Duration of the duties 11 Reviews 12 Interim review 12 Expiry review 12 Newcomer review 12 Refund 13 Transparency, access to information and confidentiality 13 Special and differential treatment for developing countries 13 Appeal procedures 14 Notifications 14 viii Procedures for applying safeguard measures 14 Relationship between the SG Agreement and Article XIX of GATT 1994 14 Unforeseen developments 15 Determination of serious injury or threat of serious injury 15 Domestic industry 15 Like product 15 Causation 15 Non-attribution 16 Parallelism 16 Provisional measures 16 Duration of the safeguard measure 16 Review and reimposition of the measure 17 Notifications and transparency 17 Transparency, access to information and confidentiality 18 Obligation to offer compensation 18 Procedures to appeal 18 Special and differential treatment for developing countries 18 Chapter 2 Investigations related to dumping and subsidies in Brazil – Procedural aspects 23 The use of trade remedies in Brazil 23 Historical background 23 The present use of the Brazilian trade remedies system: some figures 26 Use of the system by imposition of duties 26 Use of the system by exporting country 26 The use of the system by product 27 Regulatory framework 27 The trade remedies system as an administrative process 28 Administrative process in Brazil 28 Principles of the administrative process in Brazil, focusing on trade remedies 29 Legality 29 Impersonality 29 Morality 29 Transparency 29 Efficiency 30 Finality 30 Justification 30 Due process of law 30 Legal certainty 30 Public interest 30 Formalities 31 Active role 31 Right of review 31 Institutional framework 32 MDIC 33 CAMEX 33 Competence 33 Structure 34 GTDC 35 SECEX 35 DECEX 36 DEINT 37 DEPLA 37 ix DECOM 38 DECOM carries out investigations 38 DECOM supports Brazilian exporters in investigations abroad 38 DECOM has a role in international activities 39 Structure of DECOM 40 Institutional framework: chart 41 Preliminary issues 41 Precautionary measures 41 The importance of cooperation 42 The importance of legal counsel 43 The use of the pre-analysis formulary 43 The investigation 45 Interested parties 45 The role of the Administration 45 The complaint 46 Qualification of the complainant 46 The product to be investigated 47 Domestic production and representativeness of the complainant 48 The existence of dumping or subsidy 49 Injury 55 Causal link 57 Evidence and documentation 57 Currency 57 Confidentiality 58 Preliminary analysis of the complaint 58 Decision to start
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