International Maritime Conventions in Brazil

In 2016/2017 Brazil lost 6 additional positions in the ranking of the most competitive economies in the world, falling to the 81^st place – the worst position ever reached in the competitiveness ranking prepared since 1997 by the World Economic Forum.

This performance is attributed, among other factors, to the inefficiency of the legal framework for conflict resolution and the regulatory framework, in addition to the lack of transparence in the elaboration of government policies and the burden of regulatory compliance.

This mapping of our deficiencies, however, should not be cause for discouragement, but an opportunity for the development of our country.

With this purpose, Leven Siano, Fabiana Martins and Marcos Martins offer a paper demonstrating that the International Maritime Conventions, once they are ratified or adhered to by Brazil, could, without much legislative effort, simplify and modernize the regulation of the sector, improving the business environment and, as a result, attracting more business to the country.

Noteworthy is the legislative effort to update the second part of the current Brazilian Commercial Code, which, although dating from 1850, is still a valuable instrument for the collation of maritime customs. However, updating this part of the Code may give rise to a new law of old methodology, without necessarily aligning the country internationally for some reasons:

First of all, it is important to understand that the scope of the practical application of Maritime Law has become much broader than commercial law alone. As a matter of fact, in this regard, our Constitution consecrates the autonomy of maritime law. However, the proposed reform of the Commercial Code excludes, for political reasons, matters pertaining to tax, consumer and environmental law, subjects that, among others, currently make up the necessary role of the subjects that any maritime regulation has to cover. Therefore, a Commercial Code reform that is totally commendable so as to correct the error, which was the confusion brought by the Civil Code by mixing what is civil with what is mercantile, should not touch the maritime with these restrictions, under penalty of causing an incomplete service for the Brazilian society.

As if it were not enough, it must be understood that the lex maritima is characterized by the fulfillment of pre-existing customs, different from other activities that admit legal fiction as a formula to adapt the codes of conduct. Such customs which, at the time of the Commercial Code, were recognized through the effort of the Napoleonic Code followed by the countries of Latin tradition, over the years, were finding shelter in international intergovernmental and private institutions which seek this international unity extremely necessary as regards the feasibility of the flow of foreign trade, which needs clear and uniform rules for the good understanding of all. Thus, countries that effectively aspire to be a model of legal security to attract international investment and generate income and employment need to understand that this international alignment is more than essential.

Therefore, taking care of the maritime by updating an internal law, even though more modern, still makes the country unsafe and unattractive in the eyes of the international maritime community, since the path followed and recommended is the adoption of the International Maritime Conventions discussed for years, sometimes for decades, by the entire community in appropriate and technical forums. No matter how good it may be, no national law will be of better quality than these international instruments, and even if it were, it would never inspire the trust necessary to attract the investments that are so important for our country.

Several countries traditionally aligned with the French Commercial Code, such as the case of Brazil, adopted another modernization methodology, through the adoption of these international instruments, so as to then, through a navigation law, adapt the domestic legislation to those Conventions. See, for example, Argentina, Venezuela and Spain, to name but a few.

By looking at the International Maritime Conventions they find out that we have adopted 65 Conventions from among 165, i.e., we are out of more than 60% of everything that was treated in the matter, as shown below:

Aware of what international experience shows as to how Brazil has been seen in the sector, worldwide, we have selected at least 16 International Conventions that, once adopted, will raise the country to another level of alignment in the activity.

II. International Maritime Law Conventions – work methodology

They identified through this study 165 Conventions related to the International Maritime Law and Law of the Sea (International Public Maritime Law).

After the identification, they noticed that of the 165 Conventions, 84 were not signed, whereas 9 were signed (but not ratified or adhered to), 7 were signed, ratified or adhered to (but not promulgated) and 65 were duly signed and promulgated.

However, if we subdivide and group such Conventions by theme, we will find out that the themes of Law of the Sea (International Public Maritime Law) have a much larger number of promulgation than the themes of International Maritime Law (Private Law), which confirms the perception of the Global Competitiveness Ranking in relation to the difficulty of doing international business in Brazil, as shown below:

The proposal, therefore, is to adapt the matters of International Maritime Law (Private Law) to the international practices, as already being done by Brazil in relation to the Law of the Sea (Public Law), filling this important gap in our legislation, aiming at improving the business environment in our country and consequently increasing international competitiveness, especially considering that maritime transport is the main type of international transport for the trade of products, being used by more than 80% of the merchandise sold in the world.

In order to do so, we selected, among the International Maritime Law Conventions that have not been ratified, those that we consider to be the most important, whether by the matter dealt with or by the international representation of the States that are parties to them.

To read the full article please follow the link: https://issuu.com/sianoemartins/docs/international_maritime_conventions_/63

	Luiz Roberto Leven Siano Partner at Siano & Martins Advogados Associados Master in International Law by Rio de Janeiro State University Bachelor of Science in Nautical Science  Member of CMI E-mail: levensiano@sianoemartins.com.br
	Fabiana Simões Martins Partner at Siano & Martins Advogados Associados Master in International Law by Rio de Janeiro State University President of WISTA Brasil E-mail: fmartins@sianoemartins.com.br
	Marcos Martins Associated at Siano & Martins Advogados Associados Master in Civil Procedure Law by Espírito Santo Federal University E-mail: marcos@sianoemartins.com.br