13 - Procedures for the design and implementation of trade retaliation in Brazil

Summary

Introduction

Brazil is one of the most active participants in WTO dispute settlement proceedings and one of the few to ever have been granted authorization to suspend obligations under Article 22 of the DSU. However, it is also just one among the many WTO members that have never actually resorted to suspension of WTO obligations. Given this lack of experience, one might ask why it is important to expend ink to introduce Brazil's domestic procedures to that effect. Abstract intellectual curiosity aside, the justification for this exercise is twofold. First, although optimistic, Brazil's lack of experience in suspending WTO obligations will certainly not last forever: the ongoing arbitration in the Cotton dispute immediately comes to mind, for example. Indeed, the looming retaliation against the United States in the Cotton case has triggered a quest within Brazil for domestic instruments that would facilitate a response to non-compliance. In particular, legislators have been pushing forward a bill regulating retaliation under the TRIPS agreement which, to my knowledge, is unparalleled among WTO members. Hence, Brazil's endeavour provides an interesting test case on the creation of instruments to suspend intellectual property rights in domestic legal systems based on WTO rules. It also illustrates the strong connection between domestic law instruments and the ability to implement trade retaliation, a link all the more interesting when it comes to the uncharted waters of ‘cross-retaliation’.