Trade & Customs - Brazil
January 22 2010
At a meeting on November 19 2009 the World Trade Organization (WTO) Dispute Settlement Body formally authorized Brazil to impose countermeasures against the United States in the context of the Cotton dispute. The value of the countermeasures will be adjusted annually pursuant to a formula that considers the effects of the subsidies found to be WTO-inconsistent with regards to Brazil. Brazilian government officials have provisionally estimated the total authorized retaliation amount for 2010 at $800 million.
The WTO authorization to retaliate has two main components. First, it acknowledges Brazil's right to retaliate on US-origin goods. Second, it grants Brazil the right to retaliate on US IP rights and services - provided that the retaliation amount for a given year exceeds an adjustable minimum amount of imports of US goods.
The authorization has intensified Brazil's quest for a domestic framework to implement the countermeasures. In order to begin the countermeasures on US goods, Brazil's Foreign Trade Chamber issued a preliminary list of more than 200 US product tariff lines that could be included in the retaliation programme. Imports of these products could be subject to an additional duty of up to 100 percentage points. A definitive list is expected to be published in late January or early February 2010. This list would take into account input from the private sector submitted during a notice and comment procedure that ended on November 30 2009.
The second prong of the retaliation programme would relate to sanctions on US IP rights. In this regard, a bill of law authorizing the Executive Branch to suspend IP rights under certain conditions is under analysis in Congress. The Brazilian government may also regulate the matter through a provisional measure.(1)At present, a technical committee within the Office of the Brazilian Foreign Trade Chamber formed of members of several Brazilian government ministries is working on possible propositions and scenarios for the application of retaliatory measures against the United States.
Given that the retaliation programme may involve sectors completely unrelated to the dispute, and in view of the possible effects on businesses in Brazil and abroad, IP owners should follow its development and progress closely. Any Brazilian retaliation programme must comply with Brazilian laws with regard not only to its creation, but also to its execution. The federal Constitution guarantees protection of IP rights and a set of laws is in force regarding such rights. Brazil is also a signatory to a number of international conventions and treaties regarding IP protection. Thus, in case retaliation on IP rights is implemented and, depending on the terms and conditions of the programme to be adopted by the Brazilian government, such retaliation may give rise to challenges under domestic law.
For further information on this topic please contact Carla Amaral De Andrade Junqueira Canero, Marina Amaral Egydio de Carvalho or Luiz Eduardo Ribeiro Salles at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados (BKBG) by telephone (+55 11 3897 0300), fax (+55 11 3897 0330) or email (junqueira@bkbg.com.br, carvalho@bkbg.com.br or rsalles@bkbg.com.br).
Endnotes
(1) Under Brazilian law, provisional measures are temporary orders which are equivalent to a law enacted by the president and which normally come into force immediately after their publication.
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fonte: http://www.internationallawoffice.com/Newsletters/Detail.aspx?g=b62de705-5bb6-4784-8b52-1d63e41abdd4 |