Volume 3, Issue 2 - Special Issue (2010): New Voices from Emerging Powers - Brazil and India

The 1988 Brazilian Constitution contains a wide variety of social and economic rights and expressly embraces development as a fundamental goal. For the results to be effective, however, constitutional provisions of this type require permanent implementation and articulation of public policies that, in turn, are intensely mediated by the law. Assuming that the legal dimension of social policies ultimately matters for development, the article seeks to identify and discuss the distributive effects caused by some Brazilian welfare institutions and their legal arrangements. After describing the regressive outcomes produced by the tax and pensions systems and arguing that such effects reinforce Brazilian's historically rooted deep inequality, the article discusses Programa Bolsa Família, a conditional cash transfer in Brazil, and presents the preliminary findings of an ongoing research project on law and development (the LANDS project).

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.

This paper examines new ways of direct state intervention in Brazil's financial environment, which has a prevailing development bank (state-owned financial institution) – BNDES (National Economic and Social Development Bank). The main purpose of the article is to describe the new role and legal tools developed by BNDES to finance innovation and start up companies. The analysis shows that not only the financing of innovation has become paramount within the BNDES agenda, but also that this activity has been associated with a new rationale for intervention. Instead of taking the place of the financial market, BNDES tries to leverage the financial sector, mainly its venture capital sector. Particularly, it will examine four kinds of legal tools, which have been developed by BNDES since the beginning of the nineties to spur innovative companies. The legal tools are: (i) equity participations; (ii) credit contracts; (iii) indirect participation in private venture capital funds; and (iv) contract based on non-reimbursable resources. These legal tools not only represent a new contractual paradigm within BNDES financial operations, but also indicate a new way of public intervention. The paper claims that in financing a Brazilian knowledge based economy, BNDES has abandoned its top-down intervention strategy, adopting an iterative and dynamic kind of governance.

This article provides an original analysis about the unbalance present in the World Trade Organization from its very origin, taking the Agreement on Agriculture as an explicit example of it. The reflection is done through a case study on the distorting domestic subsidies in agriculture allowed by that Organization to the United States and Brazil, using as a reference of justice the toolbox provided by John Rawls' "Justice as Fairness" theory. The article explores alternative criteria for the establishment of multilateral commitments, based on Rawls' concepts. The reflection serves as a parameter or a starting point for thinking the reform of the multilateral trade system and the establishment of possible new commitments within it.

The biblical David vs. Goliath paradigm plays out very frequently in international trade disputes. In 2003, a tiny island state, Antigua and Barbuda (hereafter Antigua) took on the United States (hereafter U.S.) in a WTO (World Trade Organization) dispute, alleging that the U.S. violated the General Agreement on Trade in Services (hereafter GATS) obligations by effectively foreclosing its borders to overseas internet gambling services. It won at both the panel and the appellate levels. However, to this date, it has been unable to secure compliance by the U.S.This paper considers “cross retaliation" by suspending intellectual property rights under the Trade Related Intellectual Property Rights Agreement (hereafter TRIPS) as a viable remedy for developing countries such as Antigua that often find themselves at the receiving end of WTO inconsistent measures maintained by countries that are economically more powerful.Towards this end, it proposes a “Tiered IP suspension model," where certain kinds of Intellectual Property (hereafter IP) are targeted first for suspension before others, depending on the ease of objectively ascertaining the harm caused by the unauthorized use of such IP and/or the potential to induce compliance by the defaulting state. Illustratively, copyrights over sound recordings that have established rates for public performance are targeted first. If working with this tier of IP subject matter does not yield desired results, then the complaining state moves on to other IP where it is relatively more difficult to compute the loss caused to the IP owner (such as pharmaceutical patents) but which may be a more powerful tool to induce compliance. Such a model could be useful for a large number of developing countries, such as India and Brazil, that often find that, despite WTO victories, scofflaw states such as the U.S. and EU fail to comply. Towards this end, this paper offers a very concrete “development" oriented international trade law remedy.

This paper examines the nature of exceptions and limitations in copyright law for the purposes of the use of copyrighted materials for education. It looks at the existing national and international regime, and argues for why there is a need for greater exceptions and limitations to address the needs of developing countries. The paper contextualizes the debate by looking at the high costs of learning materials and the impediment caused to e-learning and distance education by strong copyright regimes.

The relationship between competition law and development continues to be a subject that excites many. The appropriate design of a competition law with developmental dimensions is a contentious issue. With the enactment of the Competition Act 2002, India joined the hundred odd developing countries that have adopted new competition laws over the last two decades. After a hiatus of seven years, substantive provisions of the Act have been notified recently. The Indian Act presents a perfect case study for the developmental dimensions of competition law. This paper explores the events that led to the enactment of the new law in India and analyses its provisions from a developmental perspective. The paper concludes that many of the provisions in the law may come in the way of the realization of developmental goals.

With the South Asian Free Trade Agreement, South Asian countries are now looking towards deeper integration of the region. In reality, South Asia is far from realizing its full trade potential. One of the critical factors preventing South Asia from achieving its full potential is the absence of regional transit. Unlike the European Union, South Asian countries do not have a regional transit arrangement, although partial transit exists for landlocked countries such as Afghanistan, Bhutan and Nepal. This paper highlights, among others, the importance of transit as a major source of advantage for regional as well as international trade in South Asia.

This paper tries to determine the long run equilibrium relationship between shareholder protection and stock market development and ultimately their relationship with economic growth in the context of India. A number of causality tests are employed to investigate the long run causal relationship in a system consisting of stock market development, legal development and economic growth. While developments in procedural law and investor protection cause market capitalization, the relationship between stock market and economic growth is ambiguous as the relationship is not consistent for different indicators of stock market development which is contrary to most of the existing literature.

In 2005, India amended its Patents Act, 1970 to introduce TRIPS compliant product patent regime. Generally speaking, law and policy makers in India during the time of the amendment were confronted with two major concerns viz. the future of the Indian pharmaceutical industry and access to affordable medicines in India and other developing countries. To address these concerns India along with many other developing countries attempted to incorporate TRIPS flexibilities in their domestic law. However, the success of the TRIPS flexibilities in addressing the question of access to affordable medicines mainly depends on three factors: a) the incorporation of flexibilities in the domestic law; b) the manufacturing capability of a country; and c) the political will to use the public interest safeguards provided in the domestic law. There are only a few countries like India, which satisfy the above-mentioned conditions to a certain extent. This article examines whether these premises hold true after five years into the implementation of the TRIPS compliant patent system in India. In this context the paper identifies and analyzes the legal, policy and institutional challenges that India is currently facing in the implementation of TRIPS flexibilities. It also identifies the main legal, policy and institutional disconnect in the implementation of TRIPS flexibilities in India. It argues that to effectively use TRIPS flexibilities to address access to affordable medicines require changes in three areas viz. law, policy and institutions. It clearly shows that mere incorporation of TRIPS flexibilities in the domestic legislation alone is not enough and the domestic legislation needs to be complemented with policy and institutional framework.