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Protocols First Additional Protocol - Approval - Full Text Of The Norm

Original Language Title: PROTOCOLOS PRIMER PROTOCOLO ADICIONAL - APROBACION - Texto completo de la norma

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image inicio sitio infoleg MInisterio de Justicia y Derechos Humanos
PROTOCOL Law 26.404 Approve the First Additional Protocol R Dispute Settlement Regime al to the Economic Complementation Agreement No. 59 signed between the Governments of the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, the States Parties of Mercosur and the Governments of the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela. Sanctioned: August 20, 2008 Cast: September 9, 2008

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:


ARTICLE 2 Contact the national executive branch.


# 26,404

JULY C. C. COBOS. EDUARDO A. FELLNER. . Enrique Hidalgo. . Juan H. Estrada.


First Additional Protocol




Article 1.- The Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States Parties to the Common Market of the South (MERCOSUR), the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela, Member States of the Andean Community, shall be called Signatory Parties. The "Contracting Parties" of this Regime are MERCOSUR and the Member Countries of the Andean Community that subscribe to the Agreement.

Article 2.- Disputes arising in relation to the interpretation, application or non-compliance with the provisions contained in the Partial Scope Agreement for Economic Complementation, between MERCOSUR and the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela (ACE No. 59), henceforth referred to as "Agreement" and the instruments and protocols signed or signed under the Protocol, shall be subject to the Agreement Procedure.

Article 3.- Notwithstanding the provisions of the preceding article, disputes arising in relation to the provisions of this Agreement, in matters governed by the Marrakesh Agreement establishing the World Trade Organization (hereinafter referred to as "WTO Agreement") and in the agreements negotiated in accordance with the Agreement, may be settled in one or another forum, at the election of the complaining party.

Once a dispute settlement procedure has been initiated under this Regime, or one pursuant to the WTO Agreement, the selected forum shall be exclusive to the other.

For the purposes of this article, dispute settlement procedures under the Understanding on the Rules and Procedures Governing the Settlement of Disputes of the World Trade Organization shall be deemed initiated when the complaining party requests the integration of a panel in accordance with Article 6 of that Understanding.

The dispute settlement procedures under this Regime shall also be considered initiated upon the application of direct negotiations. However, if the Administering Commission was to be consulted, the procedure would be initiated with the request for the latter.

Article 4.- For the purposes of this Regime, they may be parties to the dispute, henceforth called "parts", on the one hand, one or more MERCOSUR States Parties and, on the other, one or more CAN Member Countries that subscribe to this Agreement.



Article 5.- The parties shall seek to resolve the disputes referred to in Article 2, by conducting direct negotiations to enable a mutually satisfactory solution.

Direct negotiations shall be conducted, in the case of MERCOSUR, through the Presidency Pro Tempore or by the National Coordinators of the Common Market Group, as appropriate, and in the case of the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela by the national authority designated by each of the Member Countries, as appropriate, with the support of the General Secretariat of the Andean Community.

Direct negotiations may be preceded by mutual consultations between the parties.

Article 6.- In order to initiate the proceedings, either party shall request in writing the other party to conduct direct negotiations, specifying the reasons for them, the factual circumstances and the legal basis related to the dispute, with copy to the other signatory Parties, to the Presidency Pro Tempore of MERCOSUR and to the Presidency of the Commission of the Andean Community through the General Secretariat of the Andean Community.

Article 7.- The party receiving the request for direct negotiations shall respond within ten (10) days of receipt.

The parties shall exchange the information necessary to facilitate direct negotiations and provide such information with reserved treatment.

These negotiations may not be extended for more than thirty (30) days, from the date of receipt of the formal request to initiate them, unless the parties agree to extend that period to a maximum of fifteen (15) additional days.



Article 8.- If a mutually satisfactory solution is not reached in the third paragraph of Article 7, or if the dispute is resolved only partially, the complaining party may, either request in writing that the administering Commission meet, henceforth the "Commission", to deal with the matter or proceed directly to arbitration.

The written request should include in addition to the factual circumstances and legal grounds relating to the dispute, the provisions of the Agreement, Additional Protocols and instruments signed within the framework of the Agreement, which are deemed to be violated.

Article 9.- The Commission shall meet within thirty (30) days thereafter, counted from the date of receipt by the Presidency Pro Tempore of MERCOSUR and the Presidency of the Commission of the Andean Community through the General Secretariat of the Andean Community, of the request referred to in the previous article.

If within the time limit set out in this article it is not possible to hold the meeting of the Commission or it is not pronounced in accordance with article 11, the complaining party may terminate this stage, and request the commencement of an arbitral proceeding.

Article 10.- The Commission may accumulate by consensus two or more procedures relating to cases it may know, only when by its nature or eventual thematic linkages, it deems it appropriate to consider jointly.

Article 11. The Commission will assess the dispute and provide an opportunity for the parties to issue their positions and if necessary to provide additional information, with a view to reaching a mutually satisfactory solution.

The Commission shall make such recommendations as it deems relevant, for which purpose it shall have a period of thirty (30) days, from the date of its first meeting.

In its recommendations, the Commission shall take into account the legal provisions of the Agreement, the additional instruments and Protocols it deems applicable and the relevant factual and law grounds.

If the Commission does not reach a mutually satisfactory solution or does not issue its recommendation within the aforementioned time limit, the stage provided for in this Chapter shall be immediately terminated. The Commission, in its recommendation, shall set the time limit for its adoption, which, if it has not been accepted by the parties or has been granted only partially, may commence the arbitral proceedings.

When the Commission deems it necessary to advise experts to make its recommendations, it shall order their participation. In this case, you will have 15 additional days to the time limit provided for in paragraph 2 of this article to make your recommendation.

Experts should enjoy proven technical recognition and neutrality.



Article 12.- Where the dispute could not have been settled by the application of the procedures provided, in Chapters II or III, or the deadlines provided for in those Chapters would not have been met, either party may request the commencement of the arbitration proceedings for which the decision shall be communicated to the other party, with a copy to the other Signatory Parties, to the Pro Tempore Presidency of MERCOSUR and the Presidency of the Andean Community.

Article 13.- The parties declare that it is mandatory, ipso facto and without special agreement, the jurisdiction of the Arbitral Tribunal which in each case is constituted to know and resolve the disputes referred to in this Regime.

Article 14.- In the 90-day period following the entry into force of the Agreement, each of the signatory Parties shall communicate their list of arbitrators, together with the detailed resume of each of them, which shall consist of ten (10) arbitrators, two (2) of which shall not be nationals of any of the signatory Parties. The arbitrators shall be jurists of recognized competence in matters that may be disputed.

The Signatory Parties, within fifteen (15) days from the date of receipt of the communication indicated in the preceding paragraph, may request further information on the designated arbitrators, which shall be provided as soon as possible.

Once the fifteen-day deadline has been met, the list will be deposited with the ALADI General Secretariat.

The list of arbitrators submitted by a signatory Party may not be objected to by the other signatory Parties.

Further amendments to the list shall be subject to the provisions of this article.

Article 15.- The Arbitral Tribunal to which the procedure will be carried out shall consist of three (3) arbitrators and shall consist of the following:

(a) Within fifteen (15) days after the communication referred to in article 12, the parties shall designate an arbitrator and his alternate, chosen from the list referred to in article 14;

(b) Within the same period, the parties shall jointly designate a third arbitrator of the aforementioned list of Article 14, who shall preside over the Arbitral Tribunal. This designation shall be for persons who are not nationals of the parties;

(c) If the designations referred to in subparagraph (a) are not carried out within the specified time limit, they shall be drawn by lot by the General Secretariat of ALADI, at the request of any party, from among the arbitrators that make up the aforementioned list;

(d) If the designation referred to in subparagraph (b) shall not be made within the specified time limit, it shall be made by lot by the General Secretariat of ALADI, at the request of any party, from among the non-national arbitrators of the Parties that make up the list of Article 14; and

(e) In common agreement, the parties may designate arbitrators not listed in Article 14.

The list of arbitrators will be constituted at the time of the commencement of the dispute even if any of the Signatory Parties had not communicated their list. Without prejudice to this, any signatory Party may complete or modify it at any time but this will not affect the designation of the arbitrators of the disputes that are in progress.

The designations provided for in subparagraphs (a), (b), (c), (d) and (e) of this article shall be communicated to the Contracting Parties and, where appropriate, to the Secretary-General of ALADI.

The alternate members shall replace the holder in the event of incapacity, excuse, inhibition or recusal, the latter, in accordance with the terms set out in the Regulations of this Regime.

Article 16.- The members of the Arbitral Tribunal shall act in their personal capacity and not as representatives of the parties or of a Government. The parties will therefore refrain from instructing them and from exercising any kind of influence on matters before the Arbitral Tribunal.

Article 17.- In the same dispute, a number of Signatory Parties, whether as claimants or claimed, may act jointly or individually before the Arbitral Tribunal. In both cases, they should agree to appoint a single common arbitrator. If such a designation is not made, the provisions of article 15 shall apply.

Article 18.- At the request of a party, the Arbitral Tribunal may accumulate two or more procedures, provided that there is an identity on matters and claims.

Article 19.- The Arbitral Tribunal shall establish its headquarters, in each case, in the territory of any of the parties to the dispute. In all cases, the award shall be issued in the territory of the party to which it is to be enforced.

Article 20. The Commission shall establish the rules of procedure of the Arbitral Tribunals which it considers necessary for the best application of this Regime, which shall guarantee the parties the opportunity to be heard and shall ensure that the proceedings are conducted expeditiously. For the elaboration of the rules, the Commission shall take into consideration the following principles:

(a) The procedure shall at least guarantee the right to a hearing before the Arbitral Tribunal, as well as the opportunity to submit pleadings and replies or written replies;

(b) The hearings before the Tribunal, the deliberations and conclusions, as well as all writings and communications relating to the dispute, shall be reserved and shall be of exclusive access to the Signatory Parties, under the conditions set out in the rules of procedure of this Regime.

Documents qualified by the parties as confidential shall be of exclusive access to the arbitrators, who shall determine the provision of a non-confidential summary.

The awards of the Arbitral Tribunal, its clarifications and provisions on enforcement measures shall be public;

(c) The Arbitral Tribunal procedure should provide sufficient flexibility to ensure the quality of its work without improperly delaying the same.

In the event that the Commission has not adopted the rules of procedure referred to in this article and in generating in the event of emptiness or omission thereof, the Arbitral Tribunal shall establish its own rules taking into account the above principles. If necessary, the Arbitral Tribunal may agree on different rules, with the consensus of the parties.

Article 21.- The parties shall report to the Arbitral Tribunal on the instances before the arbitral proceedings and shall submit the factual and lawful grounds of their respective positions.

The parties may designate their representatives and advisers to the Arbitral Tribunal for the defence of their rights.

Article 22.- At the request of a party and to the extent that there are substantial grounds for believing that the maintenance of the disputed situation would cause serious and irreparable damage, the Arbitral Tribunal may unanimously provide for provisional measures.

Such measures shall be subject to the provisions of the Regulations of this Regime, which shall provide for the establishment of guarantees or channels; that the measures shall be proportionate to the alleged damage; and to safeguard the right of the parties to be previously heard.

Provisional measures shall not prejudge the outcome of the Award.

The parties shall immediately, or within the time limit that the Arbitral Tribunal determines, any provisional measure, which shall be extended until the award referred to in Article 26 is rendered, unless the Tribunal decides to lift them in advance.

Article 23.- The Arbitral Tribunal may require information from any governmental entity, natural person or public or private legal person of the Signatory Parties it deems appropriate. The Arbitral Tribunal may also, upon approval of the parties, avail itself of the expert or expert examination for the best sustenance of the award.

The Arbitral Tribunal may grant confidentiality to the information provided to it.

Article 24. The Arbitral Tribunal shall take into consideration the arguments presented by the parties, the evidence produced and the reports received, without prejudice to other elements it deems appropriate.

Article 25.- The Arbitral Tribunal shall decide the dispute on the basis of the provisions of the Agreement, its Additional Protocols and the instruments signed within the framework of the Agreement and the principles and provisions of international law applicable in the matter and the relevant factual and law grounds.

Article 26.- The Arbitral Tribunal shall issue its award in writing within sixty (60) days from the date of acceptance of the last of its designated members.

The deadline indicated above may be extended by the Tribunal for a maximum of thirty (30) days, which shall be notified to the parties.

The Arbitral Award shall be adopted by a majority, substantiated and signed by the members of the Tribunal. The vote may not be based on dissent and shall maintain the confidentiality of the vote.

Article 27.- The Arbitral Award must necessarily contain the following elements, without prejudice to others that the Arbitral Tribunal deems appropriate to include:

1. Indication of the Parties to the dispute;

2. The name and nationality of each member of the Arbitral Tribunal, and the date of its formation;

3. The names of the representatives of the parties;

4. The object of the dispute;

5. A report on the development of the arbitral proceedings, including a summary of the acts performed and the claims of each party;

6. The decision reached in relation to the dispute, achieving the basis of fact and law;

7. The deadline for compliance if applicable;

8. The proportion of costs of the arbitral proceedings to be covered by each party, as set out in article 33;

9. The date and place in which it was issued; and

10. The signature of all members of the Arbitral Tribunal.

Article 28.- When the arbitral tribunal ' s award concludes that the measure is incompatible with the Agreement, the party shall be obliged to take the necessary measures to implement it.

Article 29.- Arbitral awards are inapplicable, obligatory for the parties from the receipt of the respective notification and shall have for them the force of judgement.

The awards shall be fulfilled within sixty (60) days, unless the Arbitral Tribunal establishes a different time limit, taking into account the arguments presented by the parties during the arbitral proceedings.

The party obliged to comply with the award shall, within 10 days, notify the other Party of the measures it shall take to that effect.

Without prejudice to the provisions of article 31, if the party benefited by the award understands that the measures to be taken are not satisfactory, it may raise the situation for consideration by the Arbitral Tribunal. The Tribunal shall have a period of ten (10) days to rule on the matter.

The provisions of this article shall not suspend the time limit for the performance of the award unless the Tribunal decides otherwise.

Article 30.- Any party may request, within fifteen (15) days of the date of notification of the award, clarification of the award in respect of its scope or how to comply with it. The filing of this appeal shall not suspend the time limit for the performance of the award, unless the Tribunal decides otherwise, if the circumstances so require. The Arbitral Tribunal shall rule on the clarification within fifteen (15) days of its submission.

Article 31.- If the Arbitral Award had not been complied with within the time limit set forth in Article 29, or only partially fulfilled, the complaining Party may temporarily suspend the claimed party, concessions or other equivalent obligations, with a view to obtaining the performance of the Award, and must notify the claimant Party and the Commission of its written decision, clearly and accurately indicating the type of measures it will take.

These measures cannot be extended beyond the performance of the Award.

In the event that the requested party considers the suspension of concessions or obligations adopted by the complaining party to be excessive, it shall communicate its objections to the other party and to the Commission and may request that the arbitral tribunal which issued the award shall decide whether the measure adopted is equivalent to the degree of injury suffered. The Tribunal shall have a period of thirty (30) days for its pronouncement, counted from the date on which it is constituted for that purpose.

Article 32. The situations referred to in Articles 29, 30 and 31 shall be resolved by the same Arbitral Tribunal that rendered the Award; but if it could not be constituted with all the original members, the procedure provided for in Article 15 shall be applied to complete the integration.

Article 33.- The costs of the Arbitral Tribunal include the fees of the arbitrators, as well as the costs of passages, costs of transfer, via, whose reference values are established by the Commission, notifications and other erogations required by the arbitration.

The costs of the Arbitral Tribunal as defined in the first paragraph of this article shall be distributed in equal amounts between the complaining party and the claimed party.



Article 34. Communications between MERCOSUR or its States Parties and the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela should be submitted, in the case of the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela, to the national authority that each member country designates and to the General Secretariat of the Andean Community and in the case of MERCOSUR, to the Common Presidency of MERCOS, as appropriate to the National Coordinators.

The recommendations of the Commission, the Arbitral Award, its clarifications and statements on retaliation measures shall be communicated to all signatory Parties and entities indicated in the preceding paragraph in full text.

Article 35.- The time frames referred to in this Regime are expressed in calendar days and will be counted from the day after the act or fact to which it refers. When the deadline starts or beats in an unholy day it will begin to run or defeat the next working day.

Article 36.- The members of the Arbitral Tribunal, in accepting their designation, shall in writing assume the commitment to act in accordance with the provisions of this Regime.

This written commitment shall be addressed to the Secretary-General of ALADI and it shall manifest, by affidavit, independence from the interests of the dispute and obligation to act impartially by not accepting suggestions from third parties or parties.

Article 37.- At any stage of the procedure, the party presenting the claim may desist from the claim. The parties may also reach a transaction, with the conclusion of the dispute in both cases. Any withdrawal or transaction shall be communicated in writing to the Commission or the Arbitral Tribunal for the purpose of taking appropriate action.

Article 38. For the purposes of compliance with this Regime, the exchange of documentation may be carried out by the most expeditious means of shipment available, including facsimile and e-mail, provided that the original documentation is immediately forwarded.

Such original documentation shall give faith of a certain date unless the Tribunal or, where appropriate, the parties agree to give such character to the one indicated by the electronic or digital means used.

Article 39. Disputes between members of a Contracting Party shall be settled in accordance with the regulations governing the interior of such Contracting Party.

Article 40. None of the proceedings or documentation submitted in the course of the procedures provided for in this Regime shall prejudice the rights or obligations that the parties have under other Agreements.

The General Secretariat of the Latin American Integration Association (ALADI) will be the depositary of this Protocol, which will send duly authenticated copies to the Governments of the Signatory Parties.

IN WITNESDAY, the respective Plenipotentiaries subscribe to this Protocol in the city of Montevideo on the eighteenth day of October of two thousand four, in an original in the Spanish and Portuguese languages, both texts being equally valid.