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Is there a relationship between PVP Law and agribusiness?

In the field of intellectual property, it is common to think in trademarks, patents and computer programs as its great representatives. Although that is true, there is a specific area that are both agribusiness and IP subject we are required to understand: the cultivated variety, or just “cultivar”.

Brazilian IP Law bars the protection of natural living beings, in whole or in part, and biological material, when found in nature or isolated, from patent system. Such provision was an option for each signatory of both Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) and International Convention for the Protection of New Varieties of Plants (the UPOV Convention from 1978). In this regard, plant variety such as sugarcane, cotton, banana, orange and corn, whose harvests were particularly responsible for increase in 3,81% the Brazilian agrobusiness GDP in 2019, have a sui generis protection system.

The Brazilian Plant Variety Protection Law (Law No. 9,456/1997) regards several criteria in order to distinguish the cultivar use and reproduce from another kind of plant. To do so, the article 10 presents actions that are not deemed to be breeder’s right infringement. For instance, a person who stores and plants seeds for his/her own use on his/her premises or on the premises of third parties shall not be considered a PVP infringer. Using the plant as a source of variation in genetic improvement or in scientific research is another exception.

A special treatment is given to small rural producers (familiar agriculture), who are allowed to multiply seeds for donation or exchange in dealings exclusively with other small rural producers, under programs of financing or support authorised by the Government.

But such general provisions do not apply to the cultivation of sugarcane. A specific list of provisions regulates cultivar. The producer who wants to multiply vegetative propagating material, for example, is obliged to secure authorisation from the owner of the right to the plant variety, even for his/her own use. It does not apply just in case the rural property the producer has possession or ownership has less than four modules, according to Law No. 4,504/1964.

To regulate and manage applications for protection, Brazilian PVP Law established the National Plant Varieties Protection Service (SNPC), under the authority of the Ministry of Agriculture, Livestock and Food Supply (MAPA). All responsibilities of this agency are listed at article 3 of Decree No. 2,366/1997, that implements regulations of the Plant Variety Protection Law.

Under article 9 of UPOV Convention, Brazilian PVP Law provides restrictions in the exercise of breeder’s right in two main cases: compulsory license and restricted public use.

The first restriction ensures the availability of the plant variety on the market, at reasonable prices, when the maintenance of a regular supply is being unduly hampered by the title holder. Any part having legitimate interest may request this measure if there is evidence that the requester has attempted, unsuccessfully, to obtain a voluntary license from the holder of the cultivar.

Conversely, the second restriction is declared ex officio by the MAPA, based on a technical opinion issued by the competent agencies. Article 36 of Brazilian PVP Law allows restricted public use declaration in case of national emergency, abuse of economic power or other circumstances of extreme urgency. The cultivar may be exploited directly by the Federal Union or by third parties designed by it.

According to article 6 of the law its provisions also applies to applications for PVP originating abroad and filed within the country by a natural or legal person whose protection is ensured by a treaty effective in Brazil. It is important to note that the person domiciled abroad shall appoint and maintain an agent with power of attorney domiciled in Brazil to represent him/her in dealings with the SNPC.

In addition, the term of protection under Brazilian law is basically the minimum settled at UPOV Convention: fifteen years. For vines and fruit, forest and ornamental trees, including their rootstock, the period is eighteen years. Both periods begin in the date of grant of the Provisional Certificate of Protection issued by SNPC, and at the end of such term the cultivar shall pass into the public domain.

The law also ensures that any person who infringes the rights of a protected plant variety shall be bound to indemnify the title holder as well as shall be deemed guilty of the crime of infringement of the rights of the breeder.

The increasing of agricultural activities depends on plant variety protection for planting and harvesting. Consequentially, nowadays intellectual property has a tight relationship and is becoming a more and more important issue for agribusiness.

Anvisa publishes guidelines for embarkation of crew

In order to set forth best practice on crew change in face of the pandemic, the National Health Surveillance Agency (Anvisa) published guidelines and necessary procedures for embarkation and disembarkation of crew members of vessels and platforms in Brazil.

The text compiles guidelines on screening crew members on a work schedule and preventive measures for embarkation and disembarkation of symptomatic and asymptomatic crew members. The following guideline has been published by Anvisa.

Care of the crew on vessels and platforms

One of the essential measures is the screening of the crew, before the start of the work schedule, to identify possible cases of individuals with symptoms of COVID-19, in order to prevent the spread of the disease.

The guideline states that crew members must therefore comply with a 14-day quarantine at home or in a hotel before embarking on vessel/platform. In those 14 days they will have their health monitored and, if they show respiratory symptoms or fever, they should be prevented from boarding.

The document also lists measures for the disembarkation of symptomatic and asymptomatic crew members, as well as the use of rapid tests, in addition to presenting tables with guidelines in the form of summary topics on home quarantine, quarantine in hotels, guidelines for mandatory isolation and hygiene procedures for the means of transport of those suspected or confirmed cases of COVID-19.

As already informed in our previous updates the disembarkation of foreing crewmembers in Brazil remains prohibited until the end of May, except in cases of direct repatriation or for medical assistance.

See the full text of the guideline here.

COVID-19: Repatriation of foreigners

Due to the pandemic of the new coronavirus, the arrival of foreigners in Brazil by sea is restricted until the end of May. Currently, the entry of foreigners is authorised in two situations: for emergency medical care or for return to the country of origin by air.

Landing for repatriation is subject to authorisation by the Ministry of Foreign Affairs (MRE) and must be accompanied by Anvisa and the Federal Police. Understand how the repatriation process works in these cases:

Company responsibilities

The company responsible for the vessel (such as carrier or shipping agent) shall be responsible for the stay of the foreigner in Brazil in addition of having to organise the repatriation proceedings.

The company will need to carry out a formal consultation with the MRE for disembarkation and repatriation and to arrange all that is related to flights, dates and times. According to Technical Note 86/2020, the entire travel, accommodation and air transportation procedure must be provided by the company.

How to apply for repatriation

The company must provide the MRE with basic information, such as the location of foreigners, with reference to the vessel or quarantine hotel, the number of people to be repatriated and the date of the operation, with indication of flights and departure times. On the other hand, with the closing of the borders, the MRE will confirm whether the country of destination of the crew member will allow his return.

Definition of communication flow for the repatriation of foreigners in the context of the COVID-19 Pandemic:

1. Report

Considering the implementation of restrictive movement measures, in the face of the new coronavirus pandemic (SARSCoV-2), it is necessary to define a specific flow to communicate the repatriation operations of foreigners who are in Brazilian territory.

2. Analysis

In this document we present the procedures for communication regarding the repatriation of foreigners who are on board vessels or remain in quarantine in hotels, after disembarking from vessels or connecting flights and/or stopover in Brazil.

The actions involving the repatriation operations were agreed in the Executive Interministerial Group on Public Health Emergency of National and International Importance – GEI-ESPII, instated by Decree nº 10.211, of January 30, 2020.

It is up to the company responsible for the stay and accompaniment of the foreigner, to organise the repatriation operation, solving the questions related to flights, dates and times. In addition, the company must consult with the Ministry of Foreign Affairs – MRE (Secretariat for National Sovereignty and Citizenship Affairs – Tel: + 5561-2030-8733, e-mail [email protected]).

The formal position of the MRE on the possibility of repatriation will be forwarded to Anvisa’s International Affairs Advisory (AINTE/Anvisa) through the electronic mail [email protected].

The authorisation for the repatriation operation, issued by the MRE, must contain, at least, the following information: location of the foreigners (with the name of the vessel and its berth or the name of the hotel where they remain in quarantine and their location), number of foreigners which will be repatriated and the date of the repatriation operation. The responsible company must also present more detailed information, signalling the airport of departure for the repatriation flight(s), with the times of the flights.

After receiving a formal response from the MRE on the repatriation operation, AINTE will forward it to the General Management of Ports, Airports, Borders and Customs Enclosures (GGPAF) and Infrastructure Management, Means of Transport and Traveller in PAF (GIMTV) for sending to Coordination of Health Surveillance in PAF (CVPAF) that will accompany the operation.

3. Conclusion

The defined communication flow aims to ensure the pace and security of the foreigners’ repatriation process.

New measures in Brazilian Public Ports

Provisional Measure No. 945/2020 was issued by the Brazilian Federal Government, which deals with temporary measures in response to the pandemic resulting from the Covid-19 in the scope of the port sector and on the assignment of yards under military administration.

This Provisional Measure, according to the Federal Government, aims to ensure a safer environment for dockworkers, in addition to recognising the essentiality of Port Operations.

The Executive Order from April 4, changes the Daily call for casual dockworkers, who carry out loading and unloading operations in Brazilian Public Ports.

Currently, these workers are called to engage amidst large agglomerations in the ports, which in times of pandemic is not recommended. The Provisional Measure establishes that the Manpower Management Agencies (OGMO) must carry out the call for casual dockwers by eletronical means only, so that the worker appears at the port only at the time needed and in order to avoid further agglomerations within port area.

The Provisional Measure provides that the Manpower Management Agencies will not be able to call or engage in operation any dockworker who:

  • a) present symptoms compatible with covid-19 (i. dry cough; ii. sore throat; iii. breathing difficulty);
  • b) have been diagnosed with covid-19;
  • c) who are pregnant or lactating;
  • d) aged 60 or over; and
  • e) who have immunodeficiency or respiratory diseases or chronic or severe pre-existing diseases.

In this context, the Provisional Measure assures workers in the above situations the right to receive a monthly compensatory indemnity of 50% of the monthly income average received between October 1, 2019 and March 31, 2020, as long as impediment persists.

It is worth mentioning that casual dockworkers, retired or enjoying any other benefit granted by the General Social Security Regime or their own social security regime, as well as those who perceive the assistance benefit for individual dockworkers, provided for in Law No. 9,719 of November 27, 1998, will not be entitled to the indemnity provided for in the Provisional Measure.

The payment of compensatory indemnities will be borne by Port Operators and will be calculated in proportion to the amount of the monthly service demanded.

The aforementioned amount will be calculated and collected by the Manpower Management Authority and later passed on to the casual dockworkers.

Port Operators will be entitled to a discount on port tariffs in the amount equivalent to the increase in cost, resulting from the payment of indemnity, or economic and financial re-balancing of their contracts, in cases where they have lease agreements with the public port.

In the Provisional Measure, it was also adjusted that the benefit to be paid to dockworkers may be excluded from net income for purposes of determining corporate income tax and Social Contribution on Net Income of legal entities taxed by taxable income.

The Provisional Measure establishes that in the event of unavailability of casual dockwers to meet the work demand, Port Operators may freely hire workers with an employment contract for a specified time to carry out services as foreman, block, stowage, cargo conference services, cargo repair and vessel surveillance.

The hiring of workers with an employment relationship based on unavailability cannot exceed the period of 12 months. In addition, it will possible to engage contract directly with workers that or not authorised or registred with the Manpower Management Authority (OGMO).

Said Provisional Measure, guarantees Port Operators flexibility in the exclusivity of hiring labour from the Manpower Management Authority (OGMO) system.

It is worth mentioning that the new rule issued by the Federal Government, considered unavailability of port workers as any cause that results in the immediate non-fulfilment of calls submitted by Port Operators to OGMO, such as strikes, shutdown movements and standard operation.

Finally, the Provisional Measure encourages multi-functionality, to ensure that port operations are not suspended or delayed due to a lack of qualified labour.

Thus, regardless of collective bargaining, new registration or past registration casual dockworkers may perform the activities of any of the categories (foreman, stowage, cargo checking, cargo repair, vessel surveillance, block), provided they have the necessary qualification for that purpose.

Contract renegotiation methods during COVID-19 pandemic

Since the coronavirus outbreak turned into a pandemic with global impacts, many companies turned their attention to the economic changes caused by several measures to contain the virus spread. In this regard, travel bans and orders for citizens to be quarantined, e.g., could affect great part of the obligations assumed in the contracts those companies are party to.

Several disruptions may still impair and cause breach of contract if the party (or parties) affected by the pandemic does not have a legal reason to refuse to perform its obligations, such as pay the price or deliver the goods in the date fixed by the contract. It can occur in many types of contracts, although it is commonly related to the ones whose subject is the sale of goods.

The internationally known principle of “pacta sunt servanda” admits some exceptionalities that allows a party to release itself from perform its obligation without being carried in liability. The force majeure clause is a great example of legal reason settled in a contract when it becomes difficult, onerous or even impossible to be performed by a party. Many discussions about considering COVID-19 pandemic as a force majeure event arises in both common law and civil law countries according to the examination of each contract’s content.

Pursuant to article 79 of the UN Convention on Contracts for the International Sale of Goods (Vienna Convention), a party may not be liable if its failure was due to an event out of its control. The same convention enforces in article 59 that the buyer “must pay the price on the date fixed by or determinable from the contract”. Regardless whether the contract may contain possibilities for finding a solution when the payment (or the obligation discharge) cannot occur in the fixed date, serious disagreements can be triggered.

Nevertheless, this scenario can be even worst if the business negotiation becomes a litigation, or even arbitration, issue. Besides expending money and time, the parties may miss the chance to set the best alternatives for their interests due to an event, again, out of their control. That is why recalling mediation as dispute resolution method in such case of unpredictable circumstances is important. By preserving either relationship or business from unnecessary discussion, the parties are free to set their strategic choice for preserving contract as well.

Thus, the Singapore Convention on Mediation enhances the paramount benefits of mediation to resolve commercial disputes. Such convention itself describes mediation as way to “reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution […]”. And maybe that is the great advantage of using business mediation: the parties can solve the issue together, by setting an amicable deal. The imposition of a solution without the participation of the parties could affect not just the current negotiation, but the future ones too.

The focus needs to be in solutions based on the preservation of both negotiation and relationship behind this while situations such as COVID-19 pandemic occurs. Hence, it is time to mediate, not to disagree.

Brazilian ports and navigation remain in operation, reports ANTAQ

In view of the worsening of the coronavirus epidemic in Brazil, the country’s port terminals have reinforced the security measures and containment of the spread of Covid-19, according to guidelines from health authorities and the federal government. However, there is already a concern about possible logistical bottleneck due to the crisis.

The first fear is the very need to dismiss employees. Industry officials and executives have reiterated that there is no forecast for any port terminal shutdown, as occurred in China. The standard measure has been to implement remote work for administrative areas, release employees from risk groups and expand precautionary measures for those who work directly in the port operation.

Agribusiness & Port Logistics

A letter signed by almost 50 entities representing agribusiness segment was addressed on Wednesday, 18, to the President of the Republic, Jair Bolsonaro, and to the Minister of Infrastructure, Tarcísio Gomes de Freitas, requesting support from the federal government to guarantee the functioning of the national port logistics amid the coronavirus crisis.

Public & Private Ports In Operation

The National Waterway Transportation Agency (ANTAQ) announced today, 20, that public (including delegates), private and other port facilities remain in operation, as well as coastal and long-haul transportation activities.

In a note, ANTAQ clarified that only the Union will be able to determine the closure of port facilities in all Brazilian states or the suspension of service provision on interstate and international waterway transportation lines. The legal basis is Article 22, item X, of the Federal Constitution, and Ordinance 125, of March 19th, 2020, of the Presidency of the Republic.

“At the moment, the unrestricted suspension of passenger transport is not a measure indicated by the National Health Surveillance Agency (Anvisa). The complete suspension of this service could harm access to medical care, the displacement of health professionals, the supply of vaccines , supplies and medicines for the Brazilian states,” added ANTAQ in its statement.

Cabotage

The Brazilian Association of Cabotage Shipowners (Abac) reported that the modal remains active. The companies associated with Abac have taken actions to protect their employees and contribute to the prevention of the contagion of Covid-19, following the guidelines of the country’s health authorities. The measures safely guarantee the continuity of cabotage services, always within the principles of preventing and maintaining the supply of products to society.

Santos Port

On Wednesday, operation in Santos Port was threatened due to a possible halt of the stevedores work, who even sent a letter to the authorities announcing their decision to stop working. The situation was, in principle, contained in a meeting between port authority, representatives of companies and unions.

The Santos Port Authority (SPA) published a note stating that maritime and road access are “open without any restrictions” and that it “acts to guarantee the full functioning” of the port. The agency has taken security measures since the beginning of the crisis.

Container terminals DP World, Santos Brasil and Brasil Terminal Portuário (BTP) have reinforced their security measures and dismissed employees, but said there is no impact on activities.

The port operation could also be impacted in other ways, in addition to an employee stoppage itself. One of the concerns, for example, is in relation to the release of the cargo by inspection agencies, such as the Federal Revenue Service, the Ministry of Agriculture or the National Health Surveillance Agency (Anvisa), which need to verify imports.

The fear is that, with the delay, a huge queue will be generated. For now, the operations proceeds normally.

According to the president of Portos do Paraná, Luiz Fernando Garcia da Silva (who manages Paranaguá and Antonina), there is no forecast of an impact on the operation in the State, “unless there are mobility problems, as there was in China”. At the height of the crisis in the Asian country, one of the bottlenecks for cargo transport was the restriction of truck drivers, who interrupted activities.

According to the National Association of Cargo Transport and Logistics, it is too early to say whether there will be an impact on cargo transport, which will depend on the worsening of the epidemic. In March, the assessment is that the movement has been positive, driven by the soybean harvest.

In general, the assessment of executives and analysts about the current scenario is highly uncertain, and the forecasts seem to change every day. The fear – and the main scenario to be avoided panic, that could lead to a complete halt in activities and logistical chaos in the country.