Access to Justice in Multilevel Trade Regulation: Brazil, MERCOSUR and the WTO Stefan Staiger Schneider Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, June 2014 (submission) European University Institute Department of Law Access to Justice in Multilevel Trade Regulation: Brazil, MERCOSUR and the WTO Stefan Staiger Schneider Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Ernst­Ulrich Petersmann, EUI (Supervisor) Professor Petros C. Mavroidis, Columbia Law School and EUI (Internal Advisor) Professor Adriana Dreyzin de Klor, University of Cordoba (External Supervisor) Professor Thomas Cottier, World Trade Institute and University of Bern © Stefan Staiger Schneider, 2014 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Abstract As indicated in the title, this thesis examines access to justice in multilevel trade regulation with a focus on Brazil, the ‘Common Market of the South’ (MERCOSUR) and the World Trade Organization (WTO). Given that there is a direct link between the MERCOSUR and the European Union (EU), because the former is in several aspects comparable to the European Economic Community (EEC) and even the European Communities (EC), the research comprises a comparative legal analysis among four legal systems: (1) the Brazilian, (2) the MERCOSUR, (3) the EU and (4) the WTO. In order to achieve this goal, it employs legal texts, case law and scholarship in different languages (i.e., English, German, Portuguese and Spanish) and from different jurisdictions. While on the one hand it endeavours to explain the problems of access to justice in multilevel trade regulation and how they may be managed, on the other hand it intends to identify what access to justice and rule of law mean in the context of conflicts between the Brazilian, MERCOSUR and WTO jurisdictions. The thesis is structured into six main chapters, as follows: (I) the Constitutional Dimension of Access to Justice, (II) the Legislative Dimension of Access to Justice, (III) the Brazilian Dimension of Access to Justice, (IV) the MERCOSUR Dimension of Access to Justice, (V) the WTO Dimension of Access to Justice and (VI) the Final Conclusions. It begins by clarifying the author’s personal understanding of what access to justice is. Then, it argues that the background of multilevel judicial protection is essentially formed by the proliferation of international courts and tribunals in general and, specifically to trade, the proliferation of regional trade agreements and free trade agreements, which very often include some form of dispute settlement system. Accordingly, divergent or even conflicting rulings regarding the same dispute and/or the same or similar legal issue are possible. The research undertaken extends, therefore, Mauro Cappelletti’s world famous comparative legal research on access to justice. Furthermore, by expanding the work of the Italian jurist into the field of international economic law and establishing links to EU law, human rights, constitutional law, constitutionalism and rule of law, among others, this thesis also argues that constitutionalism is an effective mechanism for limiting abuses of power and protecting human rights, and is a way of connecting diverse regimes. 5 _______________ 6 _______________ For my parents 7 _______________ Acknowledgements I owe God as well as many people and institutions a debt of gratitude for those extraordinary years during which this dissertation has taken shape. Different from most Ph.D. researchers, I did not have one supervisor, but the honour of a very special trio: Professors Ernst­Ulrich Petersmann, Petros Mavroidis and Adriana Dreyzin de Klor. I am particularly grateful to Professor Petersmann, a pioneer in GATT/WTO law and in relating the law of human rights to multilateral and multilevel trade governance besides examining international economic law in a constitutional dimension. Ulli motivated and supported me to deepen my understanding of the complex world of interrelationships between multilevel trade regulation, human rights, legal pluralism, multilevel constitutionalism, constitutionalisation, rule of law and related national, regional and worldwide dispute settlement proceedings. I am also extremely grateful to Professor Mavroidis, one of the world’s leading experts in WTO law and its dispute settlement mechanism. He helped me in everything that I asked of him and in unconventional ways in order to develop my research topic. Always approachable, Petros is also the fastest responder of E­mails that I have ever met, even after 10 in the evening and before 8 in the morning. Professor Dreyzin de Klor, from the University of Cordoba in Argentina, was also crucial for the MERCOSUR perspective of my project due to her expertise in MERCOSUR law and its dispute settlement system. I will always admire my three supervisors for their wisdom, characters, and careers. All of them have been a great influence for how I perceive international economic law, WTO law and MERCOSUR law. Being a Ph.D. researcher at the European University Institute (EUI) was a privilege, as it is probably the best institution in the world to write a thesis on access to justice. The EUI has a unique environment that is due to its very high academic level, innovative thinking, excellent library and multicultural community. This thesis represents a very important part of my life and, besides being a professional exercise, allowed me to meet wonderful individuals who were important for my positive experience at the EUI and in Florence. Although it is difficult to name everybody, a special thanks to Evaldo Xavier Gomes, Lúcio Manuel Rocha de Souza, Fabiano de Andrade Corrêa, Laura Puccio, Lucas Lixinski, Andrés Malamud, Samantha Ribeiro, 8 _______________ Alba Ruibal, Rebecca Schmidt, Javier Habib, Ricardo García Antón, Ana Belem Fernández, Daniel Castañeda, Teimuraz Antelava, Gonçalo Miguel Banha Coelho and Salem Nasser for the support and enjoyable moments that we shared during my years at the EUI! Thanks also to the wonderful administrative staff members Anna Coda Nunziante, Siobhán Gallagher, Marlies Becker and Eleonora Masella, all of the Law Department, as well as Françoise Thauvin, Grants Welfare Officer of the Academic Service, for their assistance on several matters and at different occasions. I would also like to thank Machteld Nijsten, Information Specialist for law at the EUI library, for having purchased all the books that I had suggested and that have been indubitably very important for my thesis. Over the course of my project, I have also been a Gastwissenschaftler at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany, and a Visiting Research Scholar at the Institute for International Law and Justice of the NYU School of Law in New York, United States. My special gratitude, therefore, also extends to Professor Jürgen Basedow, Managing Director of the Max Planck Institute in Hamburg, for welcoming me there, and to Professor Robert Howse, Director of the Institute for International Law and Justice, for welcoming me at NYU. Being at these two institutions offered me gratifying experiences and I am also thankful to Holger Knudsen, Library Director at the Max Planck Institute in Hamburg, and Angelina Fisher, Program Director of the Institute for International Law and Justice, for the hospitality that I experienced and the facilities that were made available to me. I would also like to thank Judge Sidnei Beneti at Brazil’s Superior Court of Justice (STJ) for requesting his staff to organise a case law research for my thesis and sending me over 100 pages via airmail to Florence with decisions that go far beyond my topic. His package was like a Christmas present to me because it arrived in the month of December. The Agency for International Cooperation of the Ministry of Foreign Affairs and Cooperation of Spain (MAE­AEC) and the EUI generously provided financial support for the work on this thesis. I will always be grateful to them. 9 _______________ My biggest debt of gratitude is to my parents, Carla and Klaus, for their everlasting love, support and encouragement, not only during my Ph.D. research but throughout my entire life. They offered me numerous opportunities to grow and to expand my horizons. For this reason, I dedicate this thesis to my parents. 10 _______________ Table of Contents Introduction 15 1. Background 16 2. Focus of the thesis 17 3. Methodology 18 4. Structure of the thesis 19 5. Outline of the chapters 19 Chapter I – The Constutional Dimension of Access to Justice 22 1. Introduction to Chapter I 22 2. Access to Justice as a Human Right 23 3. Access to Justice as a Constitutional Right 42 4. Constitutionalism 47 5. Chapter Conclusion 61 Chapter II – The Legislative Dimension of Access to Justice 66 1. Introduction to Chapter II 66 2. Economic Justice 66 3. Access to Justice as a Legislative Right in Multilevel Trade Regulation 69 3.1. Market Freedom 77 3.2. Globalisation of Trade 94 3.3. Trade Law and Access to Justice 101 4. Multilevel Judicial Protection of Access to Justice in Trade Regulation? 104 5. Chapter Conclusion 108 Chapter III – The Brazilian Dimension of Access to Justice 111 1. Introduction to Chapter III 111 2. Historical Constitutional Analysis about Access to Justice in Brazil 112 2.1. Imperial Period 112 2.2. Constitution of 1891 113 2.3. Constitution of 1934 113 2.4. Constitution of 1937 115 2.5. Constitution of 1946 115 2.6. Constitution of 1967 116 2.7. Constitution of 1988 118 3. Infra­Constitutional Legislation about Access to Justice 121 11 _______________ 4. Brazilian Constitutional Law and International Treaties 122 5. Present Organisation of the Brazilian Judiciary 127 6. The Role of Judges in Brazil 130 6.1. Súmulas 138 6.2.