ministry of development, industry and foreign trade the development of brazilian anti-dumping system...

Ministry of Development,Industry and Foreign Trade

THE DEVELOPMENT OF BRAZILIANTHE DEVELOPMENT OF BRAZILIANANTI-DUMPING SYSTEMANTI-DUMPING SYSTEM

INTERNATIONAL SEMINAR ON 10TH ANNIVERSARY INTERNATIONAL SEMINAR ON 10TH ANNIVERSARY OF CHINA’S ANTI-DUMPING LEGISLATION AND PRACTICEOF CHINA’S ANTI-DUMPING LEGISLATION AND PRACTICE

BeijingBeijingJune 24-26, 2007June 24-26, 2007

FERNANDO DE MAGALHÃES FURLANFERNANDO DE MAGALHÃES FURLANDIRECTOR OF THE DEPARTMENT OF TRADE REMEDIES - DECOMDIRECTOR OF THE DEPARTMENT OF TRADE REMEDIES - DECOM

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Brazilian Trade Remedies System

Trade Remedies in Brazil: legal framework

Legislative Decree no. 30, December 15, 1994

Decree no. 1.355, December 30, 1994

Law no. 9.019, March 30, 1995

Antidumping regulationDecree no. 1.602, August 23,

1995

Subsidy regulationDecree no. 1.751, December 19,

1995

Law no. 313, July 30, 1948.Legislative Decree no. 20, December 5, 1986,

promulgated by Decree no. 93.941, January 16, 1987.Legislative Decree no. 22, December 5, 1986,

promulgated by Decree no. 93.962, January 23, 1987.

Safeguard regulationDecree no. 1.488,

May 11, 1995

Brazil adopts the provisions of GATT-1947.

Brazil adopts the Antidumping Agreement and the Subsidies and Countervailing Measures Agreement of the Tokyo Round (1979)

Brazil ratifies the Final Act embodying the results of the Uruguay Round

Brazil incorporates the results of the Uruguay Round into its legal system.

Provisions regarding the application of measures under the Antidumping Agreement and the Subsidies and Countervailing Measures Agreement

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Brazil’s Trade Remedies History:Legal Background and Regulations

General Law of Administrative Process

(Law no. 9.784, of January 29, 1999)

All Brazilian investigations must observe its provisions, as well as:

Principles of:

- Motivation

- Rule of reason

- Due process of law (broad defense & contradictory),

- Legal predictability

- Public interest, among others.

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Brazil’s Trade Remedies History:Legal Background and Regulations

Administrative Reviews

(Law no. 9.784, from January 19, 1999)

Brazilian legislation provides interested parties a mechanism of administrative reviews of any decision taken by federal

administration:

• Envisages the protection of rights of the parties and the correct application of the legislation.

• It is in accordance with article 13 of the ADA, by which members shall maintain independent judicial, arbitral or administrative procedures for the purpose of the prompt review of administrative actions.

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Changes and Developments in Regulations and in the Decision-Making Process

• 1987: It was the responsibility of the Customs Policy Commission (CPA), in the Ministry of Finance, to implement the newly Brazilian antidumping and safeguard regulations (Decrees no. 93.941 and no. 93.962, of January 1987).

Such regulations claimed improvements and were marginalized since Brazilian industry remained resorting to high tariffs and administrative import controls in order to gain protection.

• 1990: Extinction of CPA and creation of the Department of Foreign Trade, under the new Ministry of Economy, Finance and Planning.

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Changes and Developments in Regulations andDecision-Making Process

• 1992: Establishment of the Secretariat of Foreign Trade (SECEX), under the newly re-structured Ministry of Industry, Trade and Tourism (MICT).

• 1995: Creation of the Department of Trade Remedies (DECOM), under the scope of SECEX (simultaneously to the publishing of the Decrees that regulated the use of trade remedies instruments in Brazil).

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Decisions to impose provisional or definitive measures, and to approve price undertakings were taken jointly by the Ministers of

Industry and Trade and of Finance

Decisions were (and still are) based on the findings of DECOM, which was responsible for the conduction of investigations and for the determination of the existence of dumping/subsidies, injury and

causation, and the adequacy of safeguard measures.

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• 1999: Creation of the Ministry of Development, Industry and Foreign Trade (MDIC), replacing MICT.

>> Maintenance of structure

>> The responsibility for the conduction of trade remedies investigations remained with DECOM, under SECEX.

>> Change of decision-making process in trade remedies determinations.

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Trade remedies: decision-making

• Chamber of Foreign Trade (CAMEX):

• levies provisional or definitive antidumping and countervailing measures

• approves price undertaking

• approves safeguard measures.

• SECEX (based on DECOM’s recommendations):

• decision on the commencement of investigations

• decision on the termination of investigations

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CAMEX

• Ministerial level deliberating chamber created in September 1995.

• 7 Members: MDIC and Ministries of External Relations, Finance, Agriculture, Planning, Rural Development and the Presidency (other authorities may be invited when appropriate).

• Its competences include the draft, adoption, implementation and coordination of all policies and activities related to Brazilian foreign trade of goods and services.

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CAMEX

GTDC(Trade Remedies Technical Group)

GTDC examines DECOM’s recommendations on provisional and definitive measures as well as administrative reviews

GTDC members are technical level representatives from the same 7 ministries of CAMEX

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GTDC

• GTDC meetings discuss DECOM’s recommendations before they are presented for the Ministers final decision.

• GTDC sends DECOM’s recommendation, eventually with dissenting opinions, to GECEX.

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GECEX

(Executive Committee of CAMEX)

• Vice-Ministerial level body

• Prepares decisions for CAMEX

• GECEX decisions must be consensual

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Decision-Making Process

Injury to domesticIndustry andcausal link

GTDC meeting – technical decision by representatives of Ministries of: -Agriculture; -Development; -Finance; -External Relations; -Planning; -Rural Development; -Presidency.

Dumping;Subsidies;

Increased imports

Approval of DECOM’s recommendation

Agreement is not reached

Motivations of disagreeing member

New GTDC technical meeting

Executive Committee of

CAMEX(GECEX)

Chamber ofForeign Trade

(CAMEX)

DECOM: Investigation

Final Decision

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The Brazilian Department of Trade Remedies – DECOM

DECOM is one of the four departments within the Secretariat of Foreign Trade, of the Ministry of Development, Industry and Foreign Trade.

It was created in 1995.

SECEX

DECEX DEINTDECOM DEPLA

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The Brazilian Department of Trade Remedies – DECOM

DECOM is structured according to the concerned areas

DECOM

CGAN CGINCGAP CGMA

CGAN: Division of Exporter Support, Rules and International NegotiationsCGAP: Division of Agricultural Products

CGIN: Division of Intermediary ProductsCGMA: Division of Metal and Industrial Products

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ANTIDUMPING INVESTIGATIONS

IN BRAZIL

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Brazilian antidumping regulation

DECREE No. 1.602, from 1995

• Provides relevant and detailed rules for the conduction of antidumping investigations.

• Guidelines for the determination of dumping margin, injury to the domestic industry and causation, according to the provisions of the Agreement on Implementation of Article VI (Antidumping Agreement) of GATT-1994.

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• Complementary implementation rules:

• Circular SECEX no. 21, of April 2, 1996

Rules and instructions for the filing of applications

Strict requirements towards the necessary information for analysis of dumping, injury and causation according to the provisions of Decree no. 1.602.

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• Complementary implementation rules (continuation):

• Circular SECEX no. 59, of November 28, 2001:

Rules on confidential information

Time limits for the submission of information

Rules for electronic submission of information in order to guarantee deadline accomplishment by interested parties

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INITIATION AND SUBSEQUENT INVESTIGATION

• Application considered appropriate

• Initiation of investigation (Circular SECEX)

• Questionnaires (40 days + 30 days)

• Evaluation and request of complementary information (deficiency letters)

• On spot investigation (domestic producers, importers, exporters)

• Eventual preliminary determination

• A final public hearing is held wherein the interested parties shall be notified on the essential facts under examination. Interested parties are allowed to submit comments 15 days after the hearing

• Final antidumping determination (CAMEX Decision)

Antidumping in Brazil

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ANTIDUMPING DUTY

• Decree no. 1.602 provides that antidumping measure shall be calculated by imposing:

• ad valorem duty on the customs value of the merchandise, on a CIF basis or

• specific duties, either fixed or variable, set in US dollars and converted to Brazilian currency

• or a combination of both.

• Most recent Brazilian practice emphasizes the adoption of specific duties, fixed or variable


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ANTIDUMPING DUTY

According to the ADA, it is up to the authority of the importing member the decision whether the amount of the antidumping duty to be imposed is the full margin of dumping or less.

Brazilian practice:

LESSER DUTY

The duty is calculated in order to only neutralize the injury to the domestic injury.


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Antidumping in BrazilStatistics

1988 – April 2007

Investigations Initiated

200

Antidumping duties 81 40%

Price undertakings 11 6%

Negative determinations 91 45%

Ongoing investigations 17 9%

Reviews Initiated

55

Antidumping duties 38 69%

Price undertakings 0 0%

Negative determinations 11 20%

Ongoing investigations 6 11%

Total 255

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Antidumping in BrazilPositive Final Determinations, by country

1988 – April 2007

China 25

India 10

South Africa 6

Russia 6

Mexico 6

France 5Argentina 5United Kingdom 4

Spain 4

Uruguay 3European Union 3

Bangladesh 3

Cazaquistan 3

Germany 3

Venezuela 2

Romenia 3

Ucrania 2

Japan 2

Thailand 2

Chile 2

Denmark 2 Rep. Iugoslavia 1

New Zealand 2

United States 13

Others 12

Italy 1

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Ongoing investigations and measures in forcein Brazil, as of April 2007

Ongoing investigations Trade remedies in force

Antidumping* 23Antidumping 48

Price Undertaking 3

Subsidies/Countervailing Measures

1 1

Safeguards 0 1

TOTAL 24 53

* 6 reviews

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3 price undertakings (Argentina, Chile and Uruguay)

48 definitive antidumping duties

BrazilAntidumping measures in force (as of April 2007)

0 1 2 3 4 5 6 7 8 9 10 11 12 13 14

People's Republic of ChinaUnited States

ArgentinaMexico

South AfricaSpain

FranceIndia

United KingdomRomenia

European UnionRussia

GermanyBangladesh

ChileFinlandGreece

ItalyJapan

New ZealandRussia

ThailandUcrania

UruguayVenezuela

Ministry of Development,Industry and Foreign Trade

THE DEVELOPMENT OF BRAZILIANTHE DEVELOPMENT OF BRAZILIANANTI-DUMPING SYSTEMANTI-DUMPING SYSTEM

INTERNATIONAL SEMINAR ON 10TH ANNIVERSARY INTERNATIONAL SEMINAR ON 10TH ANNIVERSARY OF CHINA’S ANTI-DUMPING LEGISLATION AND PRACTICEOF CHINA’S ANTI-DUMPING LEGISLATION AND PRACTICE

BeijingBeijingJune 24-26, 2007June 24-26, 2007

FERNANDO DE MAGALHÃES FURLANFERNANDO DE MAGALHÃES FURLANDIRECTOR OF THE DEPARTMENT OF TRADE REMEDIES - DECOMDIRECTOR OF THE DEPARTMENT OF TRADE REMEDIES - DECOM

THANK YOU!

ministry of development, industry and foreign trade the development of brazilian anti-dumping system...

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brazils trade remedies

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