BRAZIL Law and Practice Contributed by: Godofredo Mendes Vianna, Camila Mendes Vianna Cardoso and Lucas Leite Marques, Kincaid | Mendes Vianna Advogados
force majeure, the party seeking to invoke the argument must demonstrate: • that there has been a force majeure event; and • how this event relates to the specific contract and the impossibility to comply with a con - tract obligation. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil As a signatory country of the International Con - vention for the Prevention of Pollution from Ships (MARPOL), Brazil implemented national meas - ures to meet with the guidelines of the IMO 2020 Regulation (IMO 2020). In view of this, the Brazil - ian National Agency for Petroleum, Natural Gas and Biofuels (ANP) undertook a review in its nor - mative resolutions and, in 2019, enacted Resolu - tion No 789/2019, imposing a cap of 0.5% sul - phur content of any oil used on vessels. Despite the limit, the resolution allowed a 3.5% sulphur cap for vessels using exhaust gas cleaning sys - tems (scrubbers), as long as the equipment is approved by a Classification Society and the scrubbers carry an approved plan for compli - ance with the guidelines set forth in IMO 2020. In 2020 and 2021, the ANP enacted new reso - lutions seeking the improvement of the use of biofuels and the control of the fossil fuels used. As an example, producers and importers of marine fuel must submit a sample of the fuel to be marketed for analysis in order to obtain the “Quality Certificate”, a document detailing the composition of the fuel. Most recently, in November 2022, ANP issued Resolution No 903, further detailing the quality and sulphur levels allowed in bunker fuel and marine fuel, as well as quality procedures, and allowing for vessels
with emissions control systems to use fuel with higher sulphur levels. For any violation of the ANP’s resolutions, administrative sanctions provided for by law shall be applied. These may vary from a mere application of a fine to the suspension or cancel - lation of activities in Brazil. In addition to admin - istrative sanctions, civil and criminal liability may be attributed to a party that violates the ANP’s resolutions. In accordance with the ANP’s regu - lations concerning the sulphur limit for marine fuel, the DPC also issued a normative resolu - tion with the guidelines of IMO 2020 (Circular 7/2019). The DPC is responsible for supervising vessels and verifying whether the fuel complies with IMO 2020, representing the Brazilian mari - time authority. 8.3 Trade Sanctions Brazil has not incorporated international trade sanctions as part of its domestic law. However, as many large Brazilian companies are listed in the US and/or UK, it is not unusual to see refer - ences to sanctions clauses in contracts. 8.4 International Conflict(s) Although Brazil exports commodities and imports a substantial quantity of fertilisers, sometimes connected with the regions at war, normally those carriages and contracts are subject to English law and there are no relevant cases dealing with legal aspects related to the war in Ukraine.
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