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Brazil: Public interest assessment becomes optional for original trade defense investigations and sunset reviews

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In brief

The Brazilian Secretariat of Foreign Trade (SECEX) issued on 8 March 2023 a new ordinance that renders the assessment of public interest (API) an optional proceeding in original dumping and subsidy investigations. Under the previous regulation, the API was mandatory in such original investigations and thus initiated ex officio by the Brazilian Department of Trade Defense (DECOM), together with the opening of every new investigation.

In depth

The Brazilian Decrees on Antidumping and Subsidies (Decrees No. 8,058/2013 and No. 10,839/2021) authorize the suspension of definitive antidumping and countervailing measures, and the nonapplication of such measures on a provisional basis due to public interest reasons, under exceptional circumstances.

While SECEX Ordinance No. 13 of 29 January 2020 regulates the administrative proceedings concerning the API in the context of trade defense investigations, SECEX Ordinance No. 237 of 29 January 2023 (recently published) revokes Article 5 and alters Article 6 of SECEX Ordinance No. 13/2020.

The revoked Article 5 of SECEX Ordinance No. 13/2020 provided that the API in original dumping and subsidy investigations was mandatory, and thus had to be initiated by the SECEX via an administrative act concurrent with the opening of such investigations.

In turn, Article 6 of SECEX Ordinance No. 13/2020, stated that the API was optional in sunset reviews of antidumping and countervailing measures — interested parties could request the opening of an API proceeding by filing the Public Interest Questionnaire, or it could be opened ex officio by DECOM at its discretion. According to the new version of Article 6 introduced by SECEX Ordinance No. 237/2023, the API will be optional both in original investigations and sunset reviews. At DECOM’s discretion, an API proceeding may be requested by an interested party or opened ex officio.

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Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

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Author

Paulo Casagrande joined the Firm in early 2020 as the partner in charge of the Antitrust & Competition group. Mr. Casagrande has 20 years of professional experience, both in the private and the public sectors.

At the federal government, he was the first ever Head of the Bid Rigging Unit at the Secretariat of Economic Law of the Brazilian Ministry of Justice (SDE), the agency then in charge of investigating cartels before the reorganization of the Brazilian Competition Defense System in 2012. During his stint at the government, he conducted several investigations together with other enforcement agencies, and also represented the Secretariat at the meetings of the Competition Committee of the Organization for Economic Cooperation and Development (OECD) in Paris (France).

While in the private bar, Paulo was a partner at leading international and Brazilian Law firms, and has a deep knowledge of several industries and a broad business vision. He has been especially active in the representation of clients before CADE (the Brazilian antitrust agency) in complex merger reviews and investigations of alleged anticompetitive practices. Paulo also accumulates extensive experience in assisting infrastructure and tech companies active in dynamic digital markets.

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

Author

Francisco Niclós Negrão joined the firm in 2023, as co-head of our Antitrust and International Trade Practice. Negrão has over 20 years of experience in complex cases in both areas, being recognized for offering legal solutions to complex problems in addition to a sophisticated economic analysis, given his double educational background.

Negrão’s experience in both practices during two decades allows him to have a deep knowledge of the functioning of various markets, having had stellar results for his clients in antidumping investigations, subsidies/countervailing measures, public interest analyses, tariff changes, commercial disputes, among others.  In addition, in antitrust, Negrão has a solid background in complex merger reviews, investigations regarding vertical and horizontal practices, and a renowned track record in the designing and implementation of broad and deep competition compliance programs.  He also has experience in the public sector, as a public servant in the Brazilian National Treasury.

Francisco Niclós Negrão has been recognized for International Trade and Antitrust by the main legal rankings, such as Chambers, The Legal 500, Latin Lawer 250, Who’s Who Legal, Leaders League, Best Lawyers, and Análise Advocacia, among others.

In international Trade, according to clients mentioned by The Legal 500: “Francisco Niclós Negrão is currently one of the best lawyers, if not the best, in the area of international trade in the country. He has an incredible depth in his analysis and, at the same time, a great power of synthesis highly valued by those who are on the side of the company and need to pass the information to management in a clear and direct way. In addition, he is highly respected by the authorities for his knowledge. His fluency in English and Spanish, in addition to Portuguese, is a great asset, especially for companies with a presence in several countries.” (The Legal 500, 2022)

In antitrust, according to Chambers and Partners: “Francisco Negrão is commended by market sources for his solid expertise in competition law, being further recognised for his knowledge about trade law.” A client asserts: “He is a very skilled lawyer, understands a lot of economic regulation and goes beyond legal knowledge about the topic at hand,” and adds: “He has this additional economic expertise which part complements the work and adds a lot of value.” (Chambers and Partners, 2022)

In addition to his law degree from the University Center of Brasilia (UniCEUB), also holds Bachelor and Master degrees in Economics and International Economics and Finance from Brandeis University (USA), with a period at Università Bocconi (Italy). Negrão has also compliance training from Society for Corporate Compliance and Ethics – SCCE.

Francisco Niclós Negrão is the President for the Commission of International Trade from the Attorneys Institute of São Paulo (IASP) and has been, for two terms, Director of International Trade in the Brazilian Institute for Antitrust, Consumer Law and International Trade (IBRAC).  He is routinely a speaker in seminars involving International trade and antitrust.

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.”

Author

Andrea Da Cunha Cruz joined the Firm in 2022. She integrates the Antitrust practice group, with focus on providing legal assistance regarding a variety of matter concerning competition law and international trade. Andrea has a wide breadth of experience in the representation of clients before the Brazilian Competition Authority (the Administrative Council for Economic Defense or CADE) in administrative proceedings regarding both cartel investigations and unilateral anticompetitive practices. She also has a wide-ranging track record of commercial transactions filed with CADE. Her practice further includes preventive counselling concerning antitrust risks involved in commercial practices and contracts; handling internal investigations; and structuring and implementing antitrust compliance programs. As to international trade, she mainly advises representatives of the national industry and Brazilian importers in antidumping and subsidy investigations.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.”

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