SECEX ordinances increase the legal certainty of trade defense investigations

The Ministry of Economy’s Foreign Trade Secretariat (SECEX/ME) published four new ordinances on November 29th that aim to increase the predictability and legal certainty of commercial defense investigations. The rules govern practices already adopted by SECEX as the investigating authority, establishing objective and transparent criteria for the use of provisions not detailed in Decree No. 8.058/2013.

Pre-elections

The first ordinance provides for the optional pre-election phase within the scope of original investigations, reviews, and other commercial defense procedures provided for in Decrees No. 8058, of July 26, 2013; No. 1751, of December 19, 1995; No. 1488, of May 11, 1995; in SECEX Ordinance No. 41, of July 27, 2018, and in the trade agreements in force in Brazil.

Probable price

The second establishes procedures for the analysis of the probable price provided for in Paragraph 3 of Article 107 and in item III of Article 104 of Decree No. 8.058/2013, within the scope of end-of-period reviews or by changing circumstances.

Article 109 of Decree No. 8058/2013

Regarding end-of-period reviews, the third ordinance establishes parameters for recommending the extension of the anti-dumping duty with the immediate suspension of its application, based on art. 109 of Decree No. 8.058/2013. The regulation also defines the procedure for any recommendation to immediately resume the collection of the suspended anti-dumping duty.

Article 107 of Decree No. 8.058/2013

The fourth ordinance – also referring to end-of-period reviews of anti-dumping investigations – establishes parameters for recommending the extension of the anti-dumping right in an amount lower than the right in force, based on Article 107, Paragraph 4, of Decree No. 8.058/2013.

Civil society participation

In line with international best practices, the ordinances were subject to public consultation promoted from April 27 to July 24, 2020, with the objective of obtaining contributions from civil society regarding the proposals.

A regulatory impact analysis waiver was also carried out, as provided for in Decree No. 10,411/2020, pursuant to the Technical Note available on the Ministry of Economy website.

The ordinances will come into force on January 1, 2022, in accordance with the provisions of Decree No. 10.139/2019.

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