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

The Executive Order #1,355/94 Enacting
The WTO Agreement in Brazil

The explanations provided on the previous GATT rounds and codes might be enough to suggest or predict the application of the presidential Executive Order of enactment #1,355/94. However, there is specific authority to corroborate the comparative studies concerning the previous GATT rounds, as described in the next paragraphs.

As it was incorporated into domestic law, the TRIPS Agreement is fully valid in Brazil. The language found in Executive Order #1,355/94, which enacted the TRIPS Agreement, certifies in one of its considerata “that the Final version becomes valid for the Federal Republic of Brazil, on January 1, 1995” and orders its due observance. This Executive Order came into force on the date it was published, according to its article 2. It should be kept in mind that, according to the Vienna Convention, article #31.1, “When interpreting a Treaty, the contents include the preamble and annexes, as well as the main body of text.”30   

Several decrees, federal regulations, administrative decisions and administrative procedures were enacted, published or established after January 1995 based on the legislative authority given by the presidential Executive Order of enactment #1,355/94, as if it constituted a statute. Some examples of these documents expressly mentioning the WTO Agreement, as enacted by the presidential Executive Order #1,355/94 are:

• Executive Order #1,488, of May 11, 1995, on safeguarding measures;
• Executive Order #1,602, of August 23, 1995, on antidumping measures;
• Executive Order #1,751, of December 19, 1995, on countervailing duties.

These decrees should not be confused with the presidential decrees of enactment of a treaty. They are of a hierarchical nature lower than the decrees of enactment of treaties or statutes. They are issued to make the necessary determinations and establish procedures for the Administration in order to comply with a new statute.

30 JOSÉ FRANCISCO REZEK, Direito dos Tratados, Rio de Janeiro, Forense, 1984, p. 385, § 322, p.453.