Volume 4, Number 30, Page 1

Brazilian Antidumping Laws

by Ligia-Maura Costa

Brazil's antidumping legislation is set out in Law 9019 of March 30, 1995, which implements antidumping and countervailing duties in Brazil according to the World Trade Organization (WTO). In addition, the former Customs Policy Committee issued resolutions 1227 and 1582 on May 14, 1987 and Feb. 17, 1989, respectively; these address administrative procedures related to antidumping investigations and have not been changed by Law 9019. Finally, Decree 1602 of August 23, 1995 regulates the rules and administrative procedures relating to antidumping rights.

In Brazil, the Foreign Trade Department (SECEX) of the Ministry of Industry, Commerce and Tourism is the authority in charge of determining the dumping margin, the injury or threat of injury and their causal connection (Law 9019/95, Art. 5).

The Investigation

An antidumping investigation may be initiated by the Brazilian authority or through a complaint filed by interested parties representing at least 50 percent of the domestic industry with respect to the product at issue. This complaint should be filed with the General Registry of the Ministry of Finance Department, in compliance with the guidelines prepared by the government authority (Council of Customs Policy - CPA 1227/87, Art. 4). This authority can request additional information. In such case, the petitioners would have a 20-day period to complete the complaint. Any documents related to the antidumping procedure must be sent to the competent authority in four counterparts (CPA Resolution 1582/89, Art. 1).

The antidumping complaint should include a clear description of the goods, identify their country of origin, and indicate the product selling price in the market where it came from and the volume of the imported product. It should also state the facts and provide supporting information. If the administrative authorities conclude that there are sufficient elements to open an investigation, the government of the exporting country will be consulted to clarify the facts and facilitate a satisfactory solution for the parties involved.

If these consultations are unsuccessful, an antidumping investigation (CPA Resolution 1227/87, Art. 8 and subsequent articles) will be initiated with the publication, in the Official Gazette, of a notice to both parties. This public notice should include the country of origin and name of the product under investigation, the date the investigation began, the basis for and facts underlying the allegation of dumping, the address for the submission of representations from the parties involved in the investigation, and the time periods governing the exercise of the parties' rights. Upon publication of the initiation of investigations, the interested parties will have 20 days to appoint their legal representatives (CPA Resolution 122/87, Art. 12).

The parties will also receive notices from the administrative authorities about the investigation's progress.

The interested parties may request preliminary hearings before the authority in charge of the antidumping investigation. If this request is granted, both parties have up to five days prior to the hearing to appoint their legal representatives. Arguments to be presented at the hearing should be submitted up to 10 days in advance (CPA Resolution 1227/87, Art. 19).

The maximum period for an antidumping investigation is technically one year. However, nothing prevents this term from being extended, provided the investigation does not exceed 18 months.

The commitment undertaken by the exporters or exporting country to eliminate the injurious effects of export dumping should be entered before the Foreign Trade Secretariat-SECEX and executed by the ministries of Finance and of Industry, Commerce and Tourism, jointly (Law 9019, Article 4 and Article 6).

If the investigation concludes with a determination that dumping was evidenced, the administrative authorities should establish definitive antidumping measures. The Ministry of Finance Federal Revenue Service is responsible for enforcing such rights (Art. 7). The maximum period for definitive antidumping measures is five years.

The maximum period for a provisional antidumping right is 120 days. Under special circumstances and upon the decision of the ministries of Finance and of Industry, Commerce and Tourism, this term may be extended to 180 days (Law 9019/95, Art. 9). After provisional antidumping rights are established, they may be suspended if the importer offers guarantees equivalent to the full amount of the obligation through a cash deposit of bank surety (Law 9019, Art. 3).

Both provisional and definitive antidumping measures will be established by the ministries of Finance and of Industry, Commerce and Tourism through a joint ordinance (Law 9019/95, Art. 6).

Ligia-Maura Costa is with the law firm of Alcides Jorge Costa e Advogados Associados in Sao Paulo, Brazil.