Advanced Search

Agreements Approve The First Additional Protocol To The Economic Supplementation Agreement - Approval - Full Text Of The Norm

Original Language Title: ACUERDOS APRUEBASE EL PRIMER PROTOCOLO ADICIONAL AL ACUERDO DE COMPLEMENTACION ECONOMICA - APROBACION - Texto completo de la norma

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
image inicio sitio infoleg MInisterio de Justicia y Derechos Humanos
ACUERDOS Law 26.444 Approve the First Additional Protocol de Dispute Settlement Regime al to the Agreement on Economic Complementation Subscribed 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 Government of the Republic of Peru, signed on 30 November 2005. Sanctioned: December 3, 2008. Enacted: January 5, 2009.

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

ARTICLE 1 Appropriate the FIRST ADICTYMENTAL PROTOCOL DEREGIMEN OF REQUIREMENTS OF THE REPUBLIC OF THE ARGENTINA REPUBLIC, OF THE FEDERAL REPUBLIC OF BRAZIL, OF THE REPUBLIC OF PARAGUAY AND OF THE ORIENTAL REPUBLIC OF URUGUAY, STATES PARTIES OF MERCOSUR, AND THE GOVERNMENT OF THE REPUBLIC DEL PERU, signed in Montevideo on 30 November 2005, consisting of TREINTA and TRES (33) articles, whose authenticated photocopy is part of this law. ARTICLE 2 Contact the national executive branch.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE THREE DAYS OF THE YEAR TWO MIL OCHO.

_

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

SUSCRIPT ECONOMIC COMPLEMENTATION AGAINST GOVERNMENTS OF THE ARGENTIN REPUBLIC, OF THE FEDERAL REPUBLIC OF BRAZIL, OF THE REPUBLIC OF PARAGUAY AND OF THE ORIENTAL REPUBLIC OF URUGUAY, STATES PARTIES OF MERCOSUR AND THE GOVERNMENT OF THE REPUBLIC OF THE

First Additional Protocol

CONTROVERSAL SOLUTION REGIME

CHAPTER I

PARTIES AND ENVIRONMENT OF IMPLEMENTATION

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), and the Republic of Peru, shall be called signatory Parties. The Contracting Parties to this Protocol are MERCOSUR and the Republic of Peru.

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 Peru, henceforth referred to as "Agreement", and the instruments and protocols signed or signed within the framework of the Agreement, shall be subject to the dispute settlement procedure established in this Protocol.

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 Protocol, or one in accordance with the WTO Agreement, the selected forum shall be excluding the other.

For the purposes of this article, dispute settlement procedures under the WTO Agreement shall be considered as initiated when the complaining party requests the integration of a panel in accordance with Article 6 of the Understanding on the Rules and Procedures Governing the Settlement of Disputes as part of the WTO Agreement.

Dispute settlement procedures under this Protocol shall also be considered initiated upon the convening of the administering Commission in accordance with Article 8.

Article 4.- For the purposes of this Protocol, both Contracting Parties, i.e. MERCOSUR and the Republic of Peru, as well as one or more States Parties of MERCOSUR and the Republic of Peru, may be parties to the dispute, for the purposes of this Protocol.

CHAPTER II

DIRECT NEGOTIATIONS

Article 5.- The parties will seek to resolve the disputes referred to in Article 2 through direct negotiations, which will enable a mutually satisfactory solution.

Direct negotiations will be conducted, in the case of MERCOSUR, through the Presidency Pro Témpore or by the National Coordinators of the Common Market Group, as appropriate, and in the case of Peru by the Deputy Minister of Foreign Trade of the Ministry of Foreign Trade and Tourism.

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, the conduct of direct negotiations, specifying the reasons for them, the factual circumstances and the legal grounds relating to the dispute.

Article 7.- The party receiving the request for direct negotiations shall respond to the request within 10 (ten) 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 prolonged for more than 30 (treinth) days, from the date of receipt of the formal request to initiate them, unless the parties agree to extend that period up to a maximum of 15 additional days.

CHAPTER III

INTERVENTION OF THE ADMINISTRATIVE COMMISSION

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, any party may request in writing that the administering Commission meet, henceforth the "Commission", to deal with the matter.

This written request should include in addition to the factual circumstances and legal grounds related to the dispute, the provisions involved in 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 30 (treinth) days, counted from receipt by all signatory Parties of the request referred to in the preceding article.

For the purposes of the computation of the deadline set out in the preceding paragraph, the signatory Parties shall immediately acknowledge receipt of the request.

If within the time limit set out in this article it is not possible to hold the meeting of the Commission, the complaining party may overtake this stage by having to notify the signatory Parties.

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 linkage, it considers it appropriate to consider them together.

Article 11. The Commission will assess the dispute and give the parties opportunity to issue their positions and, if necessary, 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 30 (treinth) days, from the date of its first meeting.

If the Commission does not reach a mutually satisfactory solution within the above-mentioned period, the stage envisaged in this Chapter shall be immediately terminated.

When the Commission deems necessary the advice of experts to make its recommendations, it shall order, within 30 days, the formation of a Panel of Experts.

CHAPTER IV

ARBITRAL PROCEDURES

Article 12.- Where the dispute could not have been settled by the application of the procedures provided for in Chapters II and III; or the parties would not have exercised the rights set in their favour; or they would have exceeded the time limits provided for in those chapters without completing the relevant procedures, any Contracting Party may decide to submit it to the arbitral proceedings provided for in this Chapter, for which purpose it shall communicate that decision to the other party, and to the General Secretariat of ALADI.

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 Protocol.

Article 14.- Within 30 (treinta) days from the entry into force of the Agreement, each of the signatory Parties shall designate 10 (ten) arbitrators, 2 (two) of which shall not be nationals of any Contracting Party, to integrate the list of arbitrators. The list of arbitrators and their successive modifications shall be communicated to the other Contracting Party and to the General Secretariat of ALADI for the purpose of depositing it.

The arbitrators who make up the list referred to in the preceding paragraph shall be jurists of recognized competence in matters that may be disputed.

From the time that a party has communicated to the other party its intention to appeal to the Arbitral Tribunal as provided for in Article 12 of this Protocol, the list referred to in paragraph 1 of this article may not be modified for that matter.

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

(a) Within 15 (perhaps) days after the communication to the other party referred to in Article 12, each party shall designate an arbitrator and its alternate chosen from among the persons proposed by that party for 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 made 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 designated by the parties that make up the list.

(d) If the designation referred to in subparagraph (b) is not 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 Signatory Parties that make up the list of Article 14.

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

The alternate members shall replace the holder in the event of his inability or excuse to form the Arbitral Tribunal, either at the time of his or her integration or during the course of the proceedings.

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.

After accepting their designation and before starting their performance, the arbitrators will sign an affidavit, to be presented to them by the Secretary-General of ALADI.

Article 17.- The Arbitral Tribunal shall establish its headquarters, in each case, in the territory of Iguna of the Signatory Parties.

The Arbitral Tribunal shall adopt its own rules of procedure, taking into account 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 the writings and communications thereof, shall be confidential; and

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

In addition, the general rules and guidelines will ensure that each party has full opportunity to be heard, further ensuring that the processes are carried out expeditiously.

Article 18.- 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 19.- At the request of one of the parties and to the extent that there are substantial presumptions that the maintenance of the situation would cause serious and irreparable damage to one of the parties, the Arbitral Tribunal may take such interim measures as it deems appropriate, depending on the circumstances and conditions established by the Tribunal itself, to prevent such damage.

The parties shall comply immediately, or within the time period determined by the Arbitral Tribunal, any provisional measure which shall be extended until the award referred to in Article 22.

Article 20. 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.

The provisions of this article do not restrict the authority of the Arbitral Tribunal to decide the dispute ex aequo et bono, if the parties so agree.

Article 21.- 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 22.- The Arbitral Tribunal shall issue its award in writing within 60 (sixty) days of its constitution, which shall be formalized at 15 (perhaps) days of having appointed its President.

The specified deadline may be extended for a maximum of 30 (treinta) 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 23.- 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, conferring on the basis of fact and law;

7. The proportion of costs of the arbitral proceedings to be covered by each party, as set out in Article 28;

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

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

Article 24. 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 60 (sixty) days, unless the Arbitral Tribunal establishes a different time limit.

Article 25.- Any party may request, within 15 (perhaps) days of the date of notification of the Award, clarification of the award or interpretation of the manner in which it is to be fulfilled. The Arbitral Tribunal shall rule on the clarification within 15 days of its submission.

If the Arbitral Tribunal considers that the circumstances require it, it may suspend the performance of the Award until it decides on the application submitted.

Article 26.- If the Arbitral Award has not been complied with within the time limit set out in Article 24 or has been fulfilled only partially, the complaining party may in writing communicate its decision to temporarily suspend the claimed party, concessions or other equivalent obligations, with a view to obtaining compliance with the award.

In the event that the party complained of 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 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 30 (treinta) days for its ruling, counting on the basis that it is constituted for that purpose.

Article 27.- The situations referred to in Articles 25 and 26 shall be resolved by the same Arbitral Tribunal as rendered by 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 28.- The costs of the Arbitral Tribunal include the honorariums of the President and of the other arbitrators, as well as the costs of passages, costs of transfer, roads, 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 assumed equally by the parties.

CHAPTER V

GENERAL PROVISIONS

Article 29.- Communications between MERCOSUR and its States Parties and the Republic of Peru shall, in the case of Peru, be addressed to the Deputy Minister of Foreign Trade, the Ministry of Foreign Trade and Tourism; and in the case of MERCOSUR, to the Presidency Pro Témpore or to the National Coordinators of the Common Market Group, as appropriate.

Article 30.- The time frames referred to in this Protocol are defined in calendar days and will be counted from the day after the act or act referred to. When the deadline starts or expires on Saturday or Sunday, it will begin to run or expire on the following Monday.

Article 31.- The members of the Arbitral Tribunal, in accepting their appointment, shall in writing assume the commitment to act in accordance with the provisions of this Annex.

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

Article 32. All documentation and proceedings relating to the procedure set out in this Protocol, as well as the sessions of the Arbitral Tribunal, shall be reserved, except for the awards of the Arbitral Tribunal.

Article 33.- 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. The withdrawals or transactions must be communicated to the Arbitral Tribunal in the appropriate case, in order to take measures to achieve their compliance.

The General Secretariat of ALADI shall be the depositary of this Protocol, of which it shall send duly authenticated copies to the Signatory Parties.

IN WITNESDAY, the respective Plenipotentiaries subscribe to this Protocol in the city of Montevideo on the thirty days of November of two thousand five, in the Spanish and Portuguese languages, both of which are equally valid.

image