The Relations Between International Trade Agreements and Domestic Courts in Brazil

Abstract

Traditionalism is the predominant approach in Brazil on the role of domestic judges regarding international law. Brazilian courts have generally granted private invocability of international rules in domestic litigation — or direct effect of international treaties as in the international trade law parlance. This is also the case in relation to international trade agreements, including the GATT. As Brazil allows private invocability of WTO agreements, there is high potential for litigation of corporations in domestic courts against international trade policies based on the implementation of international trade rules or dispute settlement rulings at the domestic level. Brazilian domestic constituencies, in defending their private businesses’ interests, are likely to challenge the merits of an existing government policy to implement a ruling from an international trade dispute settlement system. In case these constituencies are not able to change the government policy choices through government lobby, they may go to domestic courts to review the government measure that directly affects them. Domestic courts in Brazil can therefore be asked to decide on international trade policies at the domestic level. To assess the Brazilian perspective, Chapter 3 examines the constitutional arrangements at the national level on the domestic status of international treaties in Brazil and explores the traditionalist role of Brazilian courts with regards to the WTO agreements. It provides a qualitative research on leading cases decided by the Brazilian judiciary involving the GATT and the Antidumping Agreement, and analyzes the ways that the theoretical framework of traditionalism has actually operated in real cases, and appraises the empirical results.