Transnational Notes

 I. Introduction

On October 16^th, 2014 the United Nations Convention on Contracts for the International Sales of Goods (“CISG”) was finally promulgated in Brazil by the Presidential Decree No 8.327/2014[1], exactly two years after the National Congress has approved the text of the Convention (which occurred on October 16, 2012).

The fulfillment of this requirement by President Dilma Rousseff puts an end to the existing discussion of whether the Convention was actually in force in Brazil after the deposit of the instrument of ratification by the Brazilian Government at the United Nations (which occurred on March 4^th, 2013) and the expiration of the twelve-month period set forth in article 99(2) of the CISG (which occurred on April 1^st, 2014).

Although no doubts existed as to the coming into force of the Convention with respect to Brazil’s international relations (that is, for other signatory countries, Brazil is a Contracting State as of a April 1^st, 2014), discussions emerged as to whether the Convention was also in force in Brazil internally, that is, whether it should also be applied by a Brazilian judge.

The purpose of these notes is to briefly explain the Brazilian ratification process of the CISG. Such purpose will be carried out by confronting the Convention’s rules with the Brazilian Constitution and Brazilian law requirements in light of relevant case law of the Brazilian Supreme Court.

II. Ratification and approval process

In order to enter into force in the Brazilian territory, an international treaty or convention is submitted to the following process: first, it is signed by the Brazilian President and then its text is approved by the Brazilian National Congress[2] with the issuance of a Legislative Decree; as the next step, the Federal Government (i) deposits the instrument at the competent country or international organization responsible for receiving the ratifications, accessions or approvals from Contracting States; and (ii) promulgates the legal instrument by a Presidential Decree[3].

However, the exact order and necessity that all those requirements be fulfilled before a convention or treaty comes into force in Brazil is subject to controversy among scholars and decision makers. One of the main reasons for such controversy is the absence of an express provision that requires the issuance of the Presidential Decree for an international treaty to come into force in Brazil.

According to the Brazilian Federal Constitution, the National Congress is competent to decide on the approval of international treaties and conventions (art. 49, I). On the other hand, article 84, VIII determines that the President is competent for the signature of international treaties. Consequently, a practice has been developed to consider the Presidential Decree as the final step towards the entering into force of an international treaty or convention in the Brazilian territory.[4]

As regards the CISG, its text was approved by the Brazilian Senate on October 16, 2012 and enacted by the National Congress on the same date by Decree no. 583/2012[5]. The deposit of the instrument of ratification by the Brazilian government occurred on March 4^th, 2013 and thus, according to art. 99(2) of the CISG, Brazil became a Contracting State as of April 1, 2014.

Some scholars celebrated the date of April 1^st, 2014, understanding it as the date in which the CISG entered into force in Brazil. However, other scholars raised doubts as to whether the CISG could already be applied by a Brazilian judge in light of the absence of promulgation by the President. This debate recalled the classic discussion of whether Brazil adopts a monist or dualist international law system.[6]

III. Monism or Dualism?

In a monist system, the international treaty or convention, once approved by the competent authorities, integrates the domestic law of the country and is considered hierarchically equal to an ordinary law. Both national and international systems form a unity.

On the other hand, in dualist systems, the international and national laws have different effects and hierarchy within the country’s jurisdiction. In such systems, international treaties have to be “internalized” in order to produce effects within the country’s territory.

Scholars debate as to whether Brazil should be considered a monist, a dualist or even a “moderate” monist system, in light of the specific procedure for the internalization of international treaties. Once treaties are internalized in Brazil, they become part of the Brazilian law and should be applied by the judges as any other ordinary law. Therefore, an international treaty may conflict or even derogate former ordinary laws.[7] Such internalization process would somehow resemble the process to promulgate an ordinary law in Brazil, that is, necessarily involving both the Legislative and the Executive branches, and the latter with the final act.[8]

The debate between monism and dualism has been fueled by recent case law of the Brazilian Supreme Court (STF) – which is the court with the final word in the interpretation of the Federal Constitution – for it has decided that this last act by the Brazilian President is necessary for a convention to come into force in the Brazilian territory.

IV. The Brazilian Supreme Court Position

Even though the Brazilian Federal Constitution grants power to the National Congress to approve and enact international treaties, the STF considered in more than one opportunity that the President formal act of promulgation should occur in order for the treaty to have effects within the Brazilian territory.

This position embraced by the Supreme Court strengthens the dualist argument which states that, although the treaty has entered into force in the international setting, the validity and effectiveness under Brazilian domestic perspective will only occur with its promulgation by the President, that is, when its text is finally and officially published.[9] This position follows article 1 of the Lei de Introdução às Normas do Direito Brasileiro (LINDB)[10] and was reflected in two remarkable cases.

The first case was the judgment of the Letter Rogatory No. 8.279[11] issued by Argentina invoking the application of the one provision of the Mercosur Protocol for Urgent Measures. At the time of the judgment by the STF, the Brazilian National Congress had already promulgated the Protocol by Decree No. 192/95, the instrument of ratification had been already deposited by the Brazilian Government and the 30-day period of “vacatio legis” had already expired. However, the promulgation by the President was still pending (only occurred approximately one year later). Based on the lack of this requirement, the STF denied the Letter Rogatory stating that the referred Protocol was not officially published and, therefore, was not yet in force in Brazil for the purposes of granting the requested urgent measure. This case illustrates the dualist position of the STF by recognizing that Brazil was internationally bound by the Protocol to the other Member States, but could not apply its provisions since it was not fully in force within the Brazilian jurisdiction. However, the STF did not state any legal provision that expressed the need for promulgation by the Brazilian President[12].

Another case is the Ação Direta de Inconstitucionalidade (ADI) nº 1,480[13] regarding the Convention No. 158 of the International Labor Organization, when the STF also decided that an international treaty should follow a complex procedure in order to enter into force in Brazil. Such procedure encompasses acts from both the National Congress (through the promulgation of the Legislative Decree under article 49, I of the Federal Constitution) and the President (through the issuance of the Presidential Decree under the article 84, IV and VIII of the Federal Constitution) and therefore the international treaty needs to be promulgated by the President in order to become effective in Brazil.

V.  Conclusion

In light of STF’s current case law, it can be concluded that the CISG entered into force in Brazil for the purpose of other Contracting States on April 1^st, 2014, but only became applicable in the domestic setting on October 17^th, 2014 by Presidential Decree n. 8.327/2014.

 

Rafael F. Alves

LL.M. New York University, Arthur T. Vanderbilt Scholar – Class of ’10.

Master of Laws, University of São Paulo. Senior Associate of the Arbitration Practice at L.O. Baptista Schmidt Valois Miranda Ferreira Agel Advogados. Director of the Brazilian Arbitration Committee.

Ligia Espolaor Veronese

Master of Laws Candidate, University of São Paulo. Visiting researcher at the Max Planck Institute for Comparative and International Private Law. Associate of the Arbitration Practice at L.O. Baptista Schmidt Valois Miranda Ferreira Agel Advogados.