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Is the WTO TRIPS Agreement
valid and self-executing in Brazil?

The Brazilian Congress Advice and Consent
granted by a Legislative Decree

After the presidential message seeking approval for the WTO Agreement was received by the Brazilian Congress, the legislative branch created a bill for a Legislative Decree. This is the normal and established procedure followed by the Brazilian Congress when receiving any presidential messages requesting advice and consent for a treaty signed by the Administration and pending ratification.

Generally, a Legislative Decree is the instrument used by Congress to enact its decisions without the need of ratification by the President, who otherwise must sign or veto bills for statutes approved by Congress.  Thus, according to the Brazilian Constitution, Congress does not need the executive branch to enact the Legislative Decree by which it conclusively resolves matters concerning international acts, agreements or treaties involving charges or commitments against the nation, that is, gives or negate the advise and consent to a treaty.

A bill for the Legislative Decree follows a legislative process very similar to a regular pending bill that will become a statute once signed by the president, such as the 1996 Brazilian patent statute (hereinafter Statute #9,279/96). The bill for the Legislative Decree will have to be approved by specific committees in Congress and other committees that vary depending on the subject of the treaty.

However, it is important to remember that there are no discussions about any changes or proposals on the text of the Portuguese translation of the agreement itself. All the discussions in Congress relate to whether a Legislative Decree giving advice and consent will be approved or not. This makes all the enacted Legislative Decree to approve a very similar treaty. They are short documents, containing three or four articles only, and usually using the text. The only differences are the date, the number and the name of the treaty being approved. The Legislative Decree does not reproduce the Portuguese translation of the treaty being approved.

If approved, the advice and consent of the Brazilian Congress is made public through the enactment of the Legislative Decree by the president of the Senate. The only two functions of the Legislative Decree are: to authorize the executive branch to deposit the instrument of ratification of the treaty, finally binding the country according to the treaty specific provisions; and to give the executive branch the authority to incorporate the treaty provisions into Brazilian domestic law.