Jurists agree with Dino’s decision, but they fear increased conflict

The Supreme Court Minister (STF), Flávio Dino, clarified, on Tuesday (19) the decision in which he won the automatic effectiveness of laws and court orders in Brazil, stating that the determination does not reach international courts recognized by the country.

The minister wrote, in the new order, that the prohibition does not reach “the mandatory jurisdiction of international courts – once recognized by Brazil – and the immediate effects of its decisions.” However, Dino maintains that “in relation to aspects related to foreign laws and other foreign legal acts, there is nothing to add as clarification, the decision remaining full” of the previous day.

According to the Professor of Constitutional Law at the Fluminense Federal University (UFF), Gustavo Sampaio, explains that Minister Dino issued this decision in the course of a lawsuit of those environmental and human tragedies that took place in Minas, which is provided for in the Constitution.

Also read: Magnitsky, Moraes and Banks: What is known about Dino’s decision and the consequences?

“Minister Flávio Dino made this decision by saying what is evident, what is in the Constitution, but we live in times when obvious things need to be said and repeated,” he said. For Sampaio, what Minister Dino said was that foreign judicial decision was a decision of foreign sovereignty only applies to the Brazilian territory if approved by the Brazilian authority.

According to Sampaio, in fact, the Constitution establishes that the Superior Court of Justice is responsible for this approval of foreign judgments. “And Dino went further, also referred to foreign law: foreign law is a manifestation of foreign sovereignty and is valid in foreign territory, geophysical basis of the exercise of foreign sovereignty. In the Brazilian territory, it is worth the Brazilian law,” he added.

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For IBMEC’s lawyer and law professor in Brasilia, Tédney Moreira the decision of Minister Flávio Dino, that companies or organs acting in Brazil cannot apply restrictions or blockages based on unilateral decisions from other countries, “it is a reinforcement of the principle of national sovereignty, as they prevent foreign measures from being applied immediately in Brazil.”

For this reason, Moreira evaluates, Minister Dino has decided that only the Supreme Court can endorse the effects of foreign decisions – which extends to magnitsky law.

Financial institutions

According to Moreira, the decision, however, has restricted effects to Brazil, safeguarding Minister Alexandre de Moraes only to the national territory. “This indicates that banks, financial institutions and Brazilian companies cannot block goods or other financial restrictions solely based on magnitsky law.”

Professor Sampaio also stresses that “financial institution based in Brazil cannot fail to do the operations admitted and secured by Brazilian law such as maintaining a current account, accepting shipments, financial applications, credit operations, but at the same time the United States say, whether this institution that has American capital or somehow is under the control of US and US capital agencies and the US government.”

Sampaio warns that the decision can certainly include an element to the tension of diplomatic relations between Brazil and the US, especially in the context of the Trump administration, based on the idea of a global “imperalism”

“The decision certainly includes an element to the tension of diplomatic relations between Brazil and the US, but the maintenance of the measure can be anticipated, given the American practice of unilateral measures, especially in the context of the Trump administration, based on the idea of” imperalism “on a global scale,” added Moreira.