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

Introduction to the Brazilian Legal System and Rule of
Law

The Federal Republic of Brazil is a former Portuguese colony1. Although it is a federal country, one of Brazil’s most striking features is its national unity. In fact, Brazilian federalism has a very different background from that of the United States. Brazil did not grow in increments, as occurred in the colonial United States. Rather, it was divided into federal states with its current collective dimensions long after winning independence from Portugal2.
Brazil’s centralization and division of powers as a republic developed soon after the military proclamation of 1889. The public administration predominated the legislative and judicial branches just as the federal government superseded the states. Thus, Brazil’s states never predated the republic and as a result did not develop substantive property rights. No issues of preemption arose between the states and the federal legal system. Accordingly, Brazil has never had any state laws regarding intellectual property such as trademark state law.
In colonial times, Portugal imposed its laws along with its cultural and political institutions on Brazil. This legal heritage in Brazil prevailed even beyond its independence in 1822 and, in the case of private law, through the first three decades of the Republic’s formation until 1917.
The Brazilian legal system took shape under the influence of the main European civil codes, especially those of France, Italy and Germany, being strongly impacted by the Napoleonic Code. The original Portuguese legislation left a considerable mark on the Brazilian legal institutions. Brazil was also influenced by the government structure and legal achievements of the United States in the sphere of public law3. The legal system adopted in Brazil is codified, usually referred to as Civil Law, and statutes are issued by the Federal Union, states and municipalities, with due regard to their individual spheres of authority4. In Brazil, only the Federal Union issues statutes on intellectual property, trade secrets, unfair competition and antitrust matters. Where there is no specific legal provision on a subject matter, the courts decide based on analogy, customs and general legal principles. Judicial precedents are applied under the principle of stare decisis, although they do exercise an important role in supporting the courts’ decisions.

1 Brazil was a Portuguese colony from the year 1500 to September 7, 1822. The James Monroe’s administration of the United States was the first to recognize Brazil's independence and the new government, followed by Portugal itself in 1825.
2 For information regarding the historical and political background see generally Jorge I. Dominguez, Order and Progress in Brazil, Ideology and National Competitiveness: An Analysis of Nine Countries, Boston, Harvard Business School Press, (1987).
3 Jacob Dolinger, foreword, in A Panorama of Brazilian law, Jacob Dolinger and Keith S. Rosenn eds. (1992) [hereinafter Panorama]. For more information regarding the influence of the Unites States legal system in Brazil, see Jacob Dolinger, The Influence of American Constitutional Law on the Brazilian Legal System, 38 Am. J. Comp. L. 803 (1990).
4 As Prof. Rosenn explains in his annotations to the 1988 Brazilian constitution, Municipality is usually used because the term in Portuguese is Município, but its administrative characteristics are actually closer to a county than a municipality, once it also includes the rural area surrounding an urban area. Keith S. Rosenn, 1988 Constitution of the Federative republic of Brazil, in Panorama p. 383.