1. Ministry of Development, Industry and Foreign Trade THE DEVELOPMENT OF BRAZILIAN ANTI-DUMPING SYSTEM INTERNATIONAL SEMINAR ON 10TH ANNIVERSARY OF CHINA’S ANTI-DUMPING LEGISLATION AND PRACTICE Beijing June 24-26, 2007 FERNANDO DE MAGALHÃES FURLAN DIRECTOR OF THE DEPARTMENT OF TRADE REMEDIES - DECOM

2. Brazilian Trade Remedies System 2 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 regulation Decree no. 1.602, August 23, 1995 Subsidy regulation Decree 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 regulation Decree 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

3. Brazilian Trade Remedies System 3 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.

4. Brazilian Trade Remedies System 4 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.

5. Brazilian Trade Remedies System 5 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.

6. Brazilian Trade Remedies System 6 Changes and Developments in Regulations and Decision-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).

7. Brazilian Trade Remedies System 7 Changes and Developments in Regulations and Decision-Making Process 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.

8. Brazilian Trade Remedies System 8 Changes and Developments in Regulations and Decision-Making Process 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.

9. Brazilian Trade Remedies System 9 Changes and Developments in Regulations and Decision-Making Process 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

10. Brazilian Trade Remedies System 10 Changes and Developments in Regulations and Decision-Making Process 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.

11. Brazilian Trade Remedies System 11 Changes and Developments in Regulations and Decision-Making Process 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

12. Brazilian Trade Remedies System 12 Changes and Developments in Regulations and Decision-Making Process 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.

13. Brazilian Trade Remedies System 13 Changes and Developments in Regulations and Decision-Making Process GECEX (Executive Committee of CAMEX) Vice-Ministerial level body Prepares decisions for CAMEX GECEX decisions must be consensual

14. Brazilian Trade Remedies System 14 Decision-Making Process Injury to domestic Industry and causal 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 of Foreign Trade (CAMEX) DECOM: Investigation Final Decision

15. Brazilian Trade Remedies System 15 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 DECEXDEINTDECOMDEPLA

16. Brazilian Trade Remedies System 16 The Brazilian Department of Trade Remedies – DECOM DECOM is structured according to the concerned areas DECOM CGANCGINCGAPCGMA CGAN: Division of Exporter Support, Rules and International Negotiations CGAP: Division of Agricultural Products CGIN: Division of Intermediary Products CGMA: Division of Metal and Industrial Products

17. Brazilian Trade Remedies System 17 ANTIDUMPING INVESTIGATIONS IN BRAZIL

18. Brazilian Trade Remedies System 18 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.

19. Brazilian Trade Remedies System 19 Brazilian antidumping regulation 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.

20. Brazilian Trade Remedies System 20 Brazilian antidumping regulation 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

21. Brazilian Trade Remedies System 21 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

22. Brazilian Trade Remedies System 22 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 Antidumping in Brazil

23. Brazilian Trade Remedies System 23 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. Antidumping in Brazil

24. Brazilian Trade Remedies System 24 Antidumping in Brazil Statistics 1988 – April 2007 Investigations Initiated 200 Antidumping duties8140% Price undertakings116% Negative determinations9145% Ongoing investigations179% Reviews Initiated 55 Antidumping duties3869% Price undertakings00% Negative determinations1120% Ongoing investigations611% Total255

25. Brazilian Trade Remedies System 25 Antidumping in Brazil Positive Final Determinations, by country 1988 – April 2007

26. Brazilian Trade Remedies System 26 Ongoing investigations and measures in force in Brazil, as of April 2007 Ongoing investigationsTrade remedies in force Antidumping*23 Antidumping48 Price Undertaking3 Subsidies/Countervailing Measures 11 Safeguards01 TOTAL2453 * 6 reviews

27. Brazilian Trade Remedies System 27 3 price undertakings (Argentina, Chile and Uruguay) 48 definitive antidumping duties

28. Ministry of Development, Industry and Foreign Trade THE DEVELOPMENT OF BRAZILIAN ANTI-DUMPING SYSTEM INTERNATIONAL SEMINAR ON 10TH ANNIVERSARY OF CHINA’S ANTI-DUMPING LEGISLATION AND PRACTICE Beijing June 24-26, 2007 FERNANDO DE MAGALHÃES FURLAN DIRECTOR OF THE DEPARTMENT OF TRADE REMEDIES - DECOM THANK YOU!