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

The Nonexistence of Implementing
Legislation in the Brazilian Constitutional Law

In light of the previous chapters, it is clear that the Brazilian constitutional and administrative laws do not encompass the concept of a “specific implementing legislation” for a treaty, as it is found in many jurisdictions.

There will never be a statute specifically elaborated and approved to make the necessary changes to the country’s laws in order to comply with international obligations contracted in a treaty. Instead, the Brazilian jurisprudence considers the annex of the presidential Executive Order of enactment, as a federal statute, signed into law after a bill was approved in Congress, and deems it capable of creating legal rights or obligations directly enforceable by the administration and the courts. Intriguingly, the annex was never understood as a mere translation of the treaty contracted into the Portuguese language, giving publicity to the nation of the acts done by the administration in the international community.

A comparative approach can be taken using the specific legislation of the United States implementing the WTO Agreement, known by the acronym URAA (Uruguay Round Agreement Act, PL 103-465 (HR 5110) of December 8, 1994, 108 Stat 4809. 19 USCA s 3512). The Brazilian “URAA” is the Executive Order #1,355/94, as enacted by the President. Therefore, the articles of the TRIPS Agreement, as translated into Portuguese in the annex of the Executive Order are applied and construed as if they were articles and §§ of a statute.


of course, the Brazilian Executive Order of enactment has no article or § similar to § 102 of the Uruguay Round Agreement Act.22 Quite to the contrary, the self-executing nature of the annex of the Executive Order 1,355/94, is deemed capable of creating legal rights or obligations directly enforceable by the administration and courts. This has been the case with virtually all intellectual property treaties and conventions signed and ratified by Brazil, such as:

i) the Paris Convention and every revision thereafter, until the Stockholm revision of 1967 (presidential Executive Order #1,263 of October 10, 1994);

ii) the Berne Convention (presidential Executive Order #75,699 of December 6, 1975);

iii) the Patent Cooperation Treaty (presidential Executive Order #81,742 of May 31, 1978);

iv) the Strasbourg Agreement, of March 24, 1971, Concerning the International Patent Classification (presidential Executive Order #76,472 of October 1975).

This has also been the case with every previous GATT round of negotiations or code signed by the country.

22  Uruguay Round Agreement Act, PL 103-465 (HR 5110) of December 8, 1994, 108 Stat 4809. 19 USCA s 3512   SEC. 102. RELATIONSHIP OF THE AGREEMENTS TO UNITED STATES LAW AND STATE LAW. (A) RELATIONSHIP OF AGREEMENTS TO UNITED STATES LAW.--
(1) UNITED STATES LAW TO PREVAIL IN CONFLICT.--No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any  person or circumstance, that is inconsistent with any statute of the United States  shall have effect.

(2) CONSTRUCTION.--Nothing in this Act shall be construed-- (A) to amend or modify any law of the United States, including any law relating to--

(i) the protection of human, animal, or plant life or health,

(ii) the protection of the environment, or

(iii) worker safety, or