Key Benefits:
DECREE NO. 4,982, OF February 9, 2004.
Promults the Protocol of Olivos to the Solution of Controversies in Mercosur.
THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives it the art. 84, inciso IV, of the Constitution, and
Whereas the National Congress approved, by means of the Legislative Decree no 712, of October 14, 2003, the text of the Protocol of Olivos for the Solution of Controversies in the Mercosur, concluded in Olivos, Argentina, on February 18, 2002;
Considering that the Brazilian Government deposited the instrument of ratification, on December 2, 2003;
Whereas the Protocol entered into international vigour, and for Brazil, on 1º January 2004;
DECRETA:
Art. 1º The Protocol of Olivos for the Solution of Controversies in Mercosur, concluded in Olives, Argentina, on February 18, 2002, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.
Art. 2º Are subject to the approval of the National Congress any acts that may result in revision of the said Protocol or that carries charges or commitments engraved to the national heritage, pursuant to art. 49, inciso I, of the Constitution.
Art. 3º This Decree comes into force on the date of its publication.
Brasilia, February 9, 2004; 183º of Independence and 116º of the Republic.
LUIZ INACIO LULA DA SILVA
Celso Luiz Nunes Amorim
The Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, henceforth called the "States Parties";
Taking into account
The Treaty of Assumption, the Brasilia Protocol and the Ouro Preto Protocol;
Recognizing
That the evolution of the integration process within the framework of MERCOSUR requires the improvement of the solution system of controversies;
Considering
The need to ensure the correct interpretation, application and fulfillment of the fundamental instruments of the integration process and the ensemble MERCOSUR normative, in a consistent and systematic way;
Convinced
From the convenience of effecting specific modifications to the system of solution of controversies in a manner to consolidate legal certainty within the framework of MERCOSUR;
Acorns the following:
Chapter I
Controversies between States Parties
Article 1
Scope of Application
1. The controversies arising between the States Parties on the interpretation, application or non-compliance of the Treaty of Asuncion, of the Black Gold Protocol, of the protocols and agreements concluded in the framework of the Treaty of Asuncion, of the Decisions of the Council of the Common Market, the Resolutions of the Common Market Group and the MERCOSUR Trade Commission Guidelines will be subject to the procedures set out in this Protocol.
2. The controversies understood in the scope of this Protocol that may also be submitted to the World Trade Organization's controversies solution system or other preferential trade schemes of which they are part individually States Parties to MERCOSUR will be able to submit to one or other venue, to the choice of the applicant party. Without prejudice to this, the parties to the controversy may, by common agreement, define the venue.
Once a procedure for the settlement of controversies according to the preceding paragraph has been initiated, neither party will be able to appeal to mechanisms of solution of controversies set in the other fora with respect to a same object, defined in accordance with article 14 of this Protocol.
Notwithstanding, in the framework of the established in this numeral, the Council of the Common Market shall regulate the aspects concerning the option of venue.
Chapter II
Mechanisms Regarding the Technical Aspects
Article 2
Establishment of the Mechanisms
1. When it is deemed necessary, expeditious mechanisms may be established to resolve disagreements between States Parties on regulated technical aspects in common commercial policy instruments.
2. The rules of operation, the scope of such mechanisms and the nature of the pronouncements to be issued in them shall be defined and approved by Decision of the Common Market Council.
Chapter III
Consultative Opinions
Article 3
Request Regime
The Market Council Common will be able to establish mechanisms regarding the solicitation of advisory opinions to the Permanent Court of Review by defining its scope and its procedures.
Chapter IV
Negotiations Directs
Article 4
Negotiations
The States Parties in a controversy will seek to resolve it, before everything, upon direct negotiations.
Article 5
Procedure and Deadline
1. Direct negotiations will not be able, unless agreement between the parties to the controversy, to exceed a period of fifteen (15) days from the date on which one of them communicated to the other the decision to initiate the controversy.
2. States Parties in a controversy will inform the Common Market Group, through the MERCOSUR Administrative Office, on the issues that are held during the negotiations and the results of them.
Chapter V
Intervention of the Common Market Group
Article 6
Procedure Optional against the GMC
1. If by direct negotiations fail to reach an agreement or if the controversy is solved only partially, any of the States parties to the controversy could directly initiate the arbitration procedure provided for in Chapter VI.
2. Without prejudice to the established in the previous numeral, States Parties to the controversy may, by mutual agreement, submit it to the consideration of the Common Market Group.
i) In that case, the Common Market Group will evaluate the situation, giving opportunity to the parties in the controversy so that they expose their respective positions, requiring, when it deems necessary, the advising of selected experts from the list referred to in article 43 of the present Protocol.
ii) The spending on such advisement will be borne in equal amounts by the States Parties to the controversy or the ratio that determines the Common Market Group.
3. The controversy could also be brought to the consideration of the Common Market Group if another state, which is not a party to the controversy, justifiably requests such a procedure at the end of the direct negotiations. In such a case, the arbitral procedure initiated by the State Party shall not be interrupted, unless agreement between the States Parties to the controversy.
Article 7
Attributions of the GMC
1. If the controversy is submitted to the Common Market Group by the States Parties to the controversy, the latter shall make recommendations which, if possible, should be expressed and detailed, aiming at the solution of the divergence.
2. If the controversy is brought to the consideration of the Common Market Group at the request of a State that it is not party to, the Common Market Group will be able to formulate comments or recommendations regarding.
Article 8
Deadline for Intervention and Pronunciation of the GMC
The procedure described in this Chapter will not be able to extend by a term of more than thirty (30), days from the date of the meeting in which the controversy was submitted to the Common Market Group consideration.
Chapter VI
Ad Hoc Arbitration Procedure
Article 9
Arbitral Step Start
1. Where it has not been possible to remedy the controversy by the application of the procedures referred to in Chapters IV and V, any of the States Parties to the controversy may communicate to the MERCOSUR Administrative Office its decision to have recourse to the arbitral procedure set out in this Chapter.
2. The Administrative Secretary of MERCOSUR shall immediately notify the communication to the other or the other States involved in the controversy and the Common Market Group.
3. The Administrative Office of MERCOSUR will take charge of the administrative gissues that are required to you for the tramping of the procedures.
Article 10
Composition of the Ad Hoc Arbitral Tribunal
1. The arbitral procedure will trample before an Ad Hoc Tribunal composed of three (3) referees.
Referees will be assigned in the following manner:
i) Each State Party in the controversy shall designate one (1) arbitrator holder of the list provided for in article 11.1, within fifteen (15) days, counted from the date on which the MERCOSUR Administrative Office has communicated to the States Parties in the controversy the decision of one of them to resort to arbitration.
Concurrently, shall designate from the same list, a (1) alternate referee to replace the incumbent referee in the event of an incapacity or escuses from this in any step of the arbitral procedure.
ii) If one of the States parties to the controversy has not appointed its arbitrators in the deadline indicated in the numeral 2 (i), they shall be designated by draw by the Administrative Office of MERCOSUR within a period of two (2) days, counted from the maturity of that period, among the arbitrators of that State of the list provided for in the article 11.1.
3. The arbitrator shall be designated as follows:
i) States Parties to the controversy shall designate, by common agreement, the third arbitrator, who shall chair the Arbitral Ad Hoc Tribunal, of the list provided for in Article 11.2 (iii), within a period of fifteen (15) days, counted from the date on which the MERCOSUR Administrative Office has communicated to the States parties in the controversy the decision of one of them to resort to arbitration.
Simultaneously, they will designate from the same list, a substitute arbitrator to replace the titular umpire in case of disability or escuses from this in any step of the arbitral procedure.
The President and his suppler not may be nationals of States Parties to the controversy.
ii) If there is no agreement between the States Parties to the controversy to choose the third arbitrator within the time limit indicated, the Administrative Office of the MERCOSUR, at the request of any of them, shall carry out its designation by drawing from the list of Article 11.2 (iii), excluding from the same nationals of the States Parties to the controversy.
iii) The nominees to act as third party referees should respond, within a maximum of three (3) days, counted from the notification of their designation, about their acceptance to act in a controversy.
4. The Administrative Office of MERCOSUR shall notify the arbitrators of its designation.
Article 11
Lists of Referees
1. Each State Party shall designate twelve (12) referees, who will integrate a list that will be registered in the MERCOSUR Administrative Office. The designation of the arbitrators, together with the detailed curriculum vitae of each of them, shall be notified simultaneously to the remaining States Parties and to the Administrative Office of MERCOSUR.
i) Each State Party may request clarifications on persons designated by the other States Parties to integrate the list referred to in the preceding paragraph, within the period of thirty (30) days, counted from such notification.
ii) A MERCOSUR Administrative Office shall notify the States Parties to the consolidated list of arbitrators of MERCOSUR, as well as their successive modifications.
2. Each State Party shall propose, ademals, four (4) candidates for integrate the list of third arbitrators. At least one of the arbitrators nominated by each State Party for this list shall not be a national of any of the States Parties to MERCOSUR.
i) The list should be notified to the remaining States Parties, through the Presidency Pro Tempore, accompanied by the curriculum vitae of each of the proposed candidates.
ii) Each State Party shall be able to request clarifications on the persons proposed by the remaining States Parties or to present justified objections to the nominee candidates, as per the criteria set out in article 35, within the period of thirty (30) days, counted from the notification of these proposals.
The objections should be communicated via the Pro Tempore Presidency to the State Party bidder. If, in a time limit which may not exceed thirty (30) days counted from the notification, no solution is reached, the objection shall prevail.
iii) The consolidated list of third arbitrators, as well as their successive modifications, accompanied by the curriculum vitae of the arbitrators, will be communicated by the Presidency Pro Tempore to the Administrative Office of MERCOSUR, which will register it and notify the States Parties.
Article 12
Representatives and Advisors
States parties to the controversy will designate their representatives before the Ad Hoc Arbitral Tribunal and will be able to further designate advisors for the defense of your rights.
Article 13
Unification of Representation
If two or more States Parties support the same position in the controversy, they will be able to unify their representation before the Court Arbitral and shall appoint an arbitrator of common agreement, within the time limit set out in Article 10.2 (i).
Article 14
Object of Controversy
1. The object of the controversies will be determined by the presentation and response texts presented before the Arbitral Ad Hoc Tribunal, and may not be further extended.
2. The allegations that the parties submit in the texts mentioned in the preceding numeral will be based on the issues that were considered in the preview stages, contemplated in this Protocol and in the Annex to the Ouro Preto Protocol.
3. The States Parties to the controversy shall inform the Arbitral Ad Hoc Tribunal, in the texts mentioned in the numeral 1 of this article, on the instances complied with anteriorly to the arbitral procedure and shall make an exposition of the grounds in fact and of the right of their respective positions.
Article 15
Provisional Measures
1. The Arbitral Ad Hoc Tribunal may, by request of the interested party, and to the extent that there are substantiated presumptions that the maintenance of the situation could cause serious and irreparable damage to one of the parties to the controversy, dictate the provisional measures that it considers appropriate to prevent such damage.
2. The Tribunal may, at any time, render without effect such measures.
3. Should the laureate be the subject of review appeal, the provisional measures that have not been left without effect before the issuance of the same will remain until the treatment of the subject at the first meeting of the Permanent Review Tribunal, which is expected to address about its maintenance or extinction.
Article 16
Arbitration Award
The Ad Hoc Arbitral Tribunal will issue the laude within a period of sixty (60) days, extended by decision of the Court for a maximum period of thirty (30) days, counted from the communication effected by the Administrative Office of MERCOSUR to the parties and to the remaining arbitrators, informing the acceptance by the arbitrator President of its designation.
Chapter VII
Revision procedure
Article 17
Revision Feature
1. Any of the parties to the controversy may file a review appeal of the Arbitral Ad Hoc Tribunal's laude to the Permanent Court of Review, within not more than fifteen (15) days from the notification of the same.
2. The appeal will be limited to issues of law dealt with in the controversy and legal interpretations developed in the laude of the Arbitral Ad Hoc Tribunal.
3.Os lauds of the Ad Hoc Tribunals issued on the basis of the principles ex aequo et bono will not be susceptible to review feature.
4. The Administrative Office of MERCOSUR will be in charge of the administrative matters commissioned for it for the trames of the procedures and will keep informed the States Parties in the controversy and the Common Market Group.
Article 18
Composition of the Permanent Court of Review
1. Permanent Review Tribunal will be integrated by five (5) referees.
2. Each State Party of MERCOSUR shall designate one (1) arbitrator and its alternate for a period of two (2) years, renewable for at most two periods consecutive.
3. The fifth arbitrator, who shall be designated for a period of three (3) non-renewable years, unless otherwise agreed by the States Parties, shall be chosen, by unanimity of the States Parties, of the list referred to in this numeral, at least three (3) months before the expiration of the mandate of the fifth arbitrator in exercise. This arbitrator shall have the nationality of some of the States Parties to MERCOSUR, without prejudice to the provisions of numeral 4 of this Article.
Not there shall be unanimity, the designation shall be made by draw that will carry out the Registry Administrative of MERCOSUR, among the members of that list, within the two (2) days following the expiry of the said deadline.
The list for the designation of the fifth arbitrator will conform to eight (8) members. Each State Party shall propose two (2) members who must be nationals of the MERCOSUR countries.
4. The States Parties, by mutual agreement, will be able to define other criteria for the designation of the fifth arbitrator.
5. At least three (3) months prior to the termination of the arbitrators ' tenure, States Parties shall express themselves regarding their renewal or propose new candidates.
6. Should it expire the mandate of a referee who is acting in a controversy, this one should remain in function until its completion.
7. It applies, in the case of couber, to the procedures described in this article the provisions of Article 11.2.
Article 19
Availability Permanent
The members of the Permanent Court of Review, once they accept their designation, should be available permanently to act when summoned.
Article 20
Health of the Court
1. When the controversy involves two States Parties, the Tribunal will be integrated by three (3) referees. Two (2) arbitrators shall be nationals of each State Party in the controversy and the third party, which shall exercise the Presidency, shall be designated upon draw by the Director of the Administrative Office of the MERCOSUR, among the remaining arbitrators who shall not are nationals of States Parties to the controversy. The designation of the President shall give the day following the interposition of the review appeal, the date from which the Tribunal will be constituted for all purposes.
2. When the controversy involves more than two States Parties, the Permanent Court of Review will be integrated by the five (5) referees.
3. The States Parties, by mutual agreement, will be able to define other criteria for the functioning of the Tribunal established in this article.
Article 21
Contestation of the Revision and Deadline Resource for the Laudo
1. The other party to the controversy shall be entitled to challenge the interposed review appeal, within the time limit of fifteen (15) days of notified the submission of such an appeal.
2. The Standing Court of Review shall rule on the appeal within a maximum period of thirty (30) days, counted from the submission of the dispute to which reference the previous numeral or maturity of the period for the said submission is made, as the case. By decision of the Court, the period of thirty (30) days may be extended by a further fifteen (15) days.
Article 22
Reach of the Pronunciation
1. The Permanent Court of Review will be able to confirm, modify or revoke the legal rationale and decisions of the Arbitral Ad Hoc Tribunal.
2. The Standing Court of Review's laureate shall be final and shall prevail over the laude of the Arbitral Ad Hoc Tribunal.
Article 23
Direct access to the Permanent Court of Review
1. The parties to the controversy, culminated in the procedure laid down in Articles 4 and 5 of this Protocol, will be able to expressly agree to submit directly and in sole instance to the Permanent Court of Review, in which case the latter will have the same competencies that an Arbitral Ad Hoc Tribunal, applying, in what it corresponds to, Articles 9, 12, 13, 14, 15 and 16 of this Protocol.
2. Nthese conditions, the lauds of the Standing Court of Review shall be mandatory for States Parties to the controversy from the receipt of the respective notification, will not be subject to review appeals and will have, with respect to the parties, force of thing adjudicated.
Article 24
Exceptional and Urgency Measures
The Common Market Council will be able to establish special procedures to meet exceptional cases of urgency that may cause irreparable damage to the Parties.
Chapter VIII
Laudos Arbitrals
Article 25
Adoption of the Lauds
The lauds of the Arbitral Ad Hoc Tribunal and those of the Court Permanent Review will be adopted by a majority, will be substantiated and signed by the President and by the other arbitrators. The arbitrators will not be able to substantiate votes in dissent and should maintain the confidentiality of the vote. The deliberations will also be confidential and so will remain at all times.
Article 26
Obligation of the Lauds
1. The lauds of the Ad Hoc Arbitral Tribunals are mandatory for States Parties to the controversy from their notification and will have, in relation to them, force of thing adjudicated if, transcurring the time frame provided for in article 17.1 to interplay appeal review, this has not been brought up.
2. The Permanent Court of Review's lauds are unappealing, mandatory for States parties to the controversy from their notification and will have, with respect to them, force of a judging thing.
Article 27
Obligation of the Enforcement of the Lauds
The lauds are expected to be complied in the form and with the range with which they were issued. The adoption of compensatory measures pursuant to this Protocol does not exonerate the State Party part of its obligation to comply with the laude.
Article 28
XX_ENCODE_CASE_One clarification resource
1. Any of the States Parties to the controversy may request a clarification from the laudo of the Arbitral Ad Hoc Tribunal or the Permanent Court of Review and on how it is to comply with the laude, within fifteen (15) subsequent days to its notification.
2. The respective Court will be dispatched on the appeal in the fifteen (15) subsequent days to the submission of the said solicitation and will be able to hear an additional deadline for compliance with the laureate.
Article 29
Fulfillment and Fulfillment Modality
1. The lauds of the Ad Hoc Tribunal or those of the Permanent Court of Review, as the case may be, must be complied with within the time frame the respective Courts establish. If no time limit is set, the lauds must be met within thirty (30) days following the date of their notification.
2. Should a State Party interimpose review appeal, compliance with the laudo of the Ad Hoc Arbitral Tribunal will be suspended during the tramite of the same.
3. The State Party obliged to comply with the laude will inform the other party in the controversy, as well as to the Common Market Group, through the MERCOSUR Administrative Office, on the measures it will adopt to fulfil the laude, within the fifteen (15) day counted since your notification.
Article 30
Divergences over the Length of the Laudo
1. Should the State benefited by the laureate understand that the measures adopted do not comply with it, it shall have a period of thirty (30) days, starting from the adoption of them, to bring the situation to the consideration of the Arbitral Ad Hoc Tribunal or the Court Permanent Review, as the case.
2. The respective Court will have a deadline of thirty (30) days from the date it became aware of the situation to address the issues referred to in the previous numeral.
3. In case it is not possible to convene the Arbitral Ad Hoc Tribunal that you have known of the case, another will be conformed to the necessary or the necessary alternates mentioned in Articles 10.2 and 10.3.
Chapter IX
Compensatory Measures
Article 31
Faculty of Apply Compensatory Measures
1. If a State Party in the controversy does not fully or partially fulfill the laude of the Arbitral Tribunal, the other party to the controversy shall have the faculty, within the time limit of one (1) year, counted from the day following the expiry of the period referred to in the article 29.1, and regardless of resorting to the procedures of Rule 30, to initiate the application of temporary compensatory measures, such as the suspension of concessions or other equivalent obligations, with a view to obtaining the fulfillment of the laude.
2. The State Party benefited by the laureate will first seek to suspend the equivalent concessions or obligations in the same sector or affected sectors. Should you consider impracticable or ineffective the suspension in the same sector, you may suspend concessions or obligations in another sector, and you must state the reasons that substantiate that decision.
3. The compensatory measures to be taken shall be informed formally by the State Party that shall apply them, with a minimum advance of fifteen (15) days, to the State Party that shall comply with the laude.
Article 32
Faculty of Questioning Compensatory Measures
1. Should the State Party benefited by the laureate apply compensatory measures for considering insufficient compliance with it, but the State Party obliged to comply with the laureate considers that the measures adopted are satisfactory, the latter will have a deadline of fifteen (15) days, counted from the notification provided for in article 31.3, to bring this situation to the consideration of the Arbitral Ad Hoc Tribunal or the Permanent Court of Review, as the case may be, which will have a thirty (30) days since its constitution to rule on the matter.
2. Should the State Party obligate to comply with the laudo consider excessive the compensatory measures applied, it may request, up to fifteen (15) days after the implementation of such measures, which the Ad Hoc Tribunal or the Permanent Court of Review, as it corresponds, shall address, in a period of time not exceeding (thirty) 30 days, counted from its constitution.
i) O Court will pronounce on the compensatory measures adopted. It will evaluate, as the case may be, the statement of reasons given to apply them in a distinct sector of that affected, as well as its proportionality with respect to the consequences derived from the non-compliance of the laude.
ii) To the analyze proportionality, the Tribunal should take into account, among other elements, the volume and / or trade value in the affected sector, as well as any other injury or factor that has focused on the determination of the level or amount of the countervailing measures.
3. The State Party which has applied the measures shall appropriate them to the Tribunal's decision within a maximum period of ten (10) days, unless the Tribunal sets another deadline.
Chapter X
Common provisions to the Chapters VI and VII
Article 33
Jurisdiction of the Courts
The States Parties declare to recognize how obligatory, ipso facto and without the need for special agreement, the jurisdiction of Ad Hoc Arbitral Tribunals which in each case constitute to know and resolve the controversies referred to in this Protocol, as well as the jurisdiction of the Court Permanent Review to know and resolve controversies as per the competencies that gives it the present Protocol.
Article 34
Applicable law
1. The Ad Hoc Arbitral Tribunals and the Permanent Court of Review shall decide the controversy on the basis of the Treaty of Assumption, in the Black Gold Protocol, in the protocols and agreements concluded in the framework of the Treaty of Asuncion, in the Council Decisions of the Common Market, in the Resolutions of the Common Market Group and in the Guidelines of the MERCOSUR Trade Commission, as well as in the principles and provisions of International Law applicable to the matter.
2. This provision shall not restrict the faculty of the Ad Hoc Arbitral Tribunals or that of the Permanent Court of Review, when it attests as a direct and sole instance as per the provisions of Article 23, to decide the controversy ex aequo et bono, if the parts thus wake up.
Article 35
Qualification of the Arbiters
1. The arbitrators of the Ad Hoc Arbitral Tribunals and those of the Permanent Court of Review shall be a jurist of recognized competence in the subjects that may be the subject of the controversies and have knowledge of the MERCOSUR normative set.
2. The arbitrators shall observe the necessary impartiality and functional independence of the Central or direct Public Administration of the States Parties and have no interests of intimate any in the controversy. They will be assigned in function of their objectivity, reliability, and common sense.
Article 36
Costs
1. The expenses and fees occasioned by the activity of the arbitrators will be borne by the country that the designe and the spending and honorary of the President of the Arbitral Ad Hoc Tribunal will be borne in equal parts by the States Parties to the controversy, unless that the Court decides to distribute them in a separate proportion.
2. The expenditance and fees occasioned by the activity of the arbitrators of the Permanent Review Tribunal will be borne in equal parts by the States Parties to the controversy, unless the Tribunal decides to distribute them in distinct proportion.
3. The spending to which the previous incisos are concerned could be paid through the MERCOSUR Administrative Office. Payments may be made by means of a Special Fund that may be set up by the States Parties by depositing the contributions relating to the budget of the MERCOSUR Administrative Office, as per Article 45 of the Protocol of Black Gold, or at the time of initiating the procedures laid down in Chapters VI or VII of this Protocol. The Fund shall be administered by the Administrative Office of MERCOSUR, to which it shall annually render accounts to the States Parties on their use.
Article 37
Honoraries and too many Gastos
The fees, transportation spending, lodging, daily, and other spending of the referees will be determined by the Common Market Group.
Article 38
Sede
The seat of the Arbitral Permanent Court of Review will be the city of Asuncion. Notwithstanding, for reasons grounded, the Tribunal will be able to meet, exceptionally, in other cities of MERCOSUR. Ad Hoc Arbitral Tribunals will be able to meet in any city of the States Parties to MERCOSUR.
Chapter XI
Particular Complaints
Article 39
Scope of Application
The procedure set out in this Chapter will apply to the complaints effected by particular (physical or legal persons) on the grounds of the sanction or application, by any of the States Parties, of legal or administrative measures of restrictive effect, discriminatory or unfair competition, in violation of the Treaty of Asuncion, of the Black Gold Protocol, of the protocols and agreements concluded in the framework of the Treaty of Asuncion, of the Decisions of the Common Market Council, of the Resolutions of the Common Market Group and of the Guidelines of the Trade Commission of MERCOSUR.
Article 40
Start of the Tramite
1. Affected individuals will formalize complaints against the National Section of the State Common Market Group Party where they have their habitual residence or the headquarters of their business.
2. Private individuals are expected to provide elements allowing to determine the veracity of the breach and the existence or threat of injury, for the claim to be admitted by the National Section and to be assessed by the Joint Market Group and the group of experts, if it is summoned.
Article 41
Procedure
1. Unless the complaint refers to an issue that has motivated the initiation of a Control Procedure procedure in accordance with Chapters IV to VII of this Protocol, the National Section of the Common Market Group that has admitted to the complaint as per Article 40 of this Chapter should enter into consultations with the National Section of the Common Market Group of the State Party to which the breach is attached, in order to seek, upon consultation, an immediate solution to the raised issue. Such consultations shall be concluded automatically and without further traction if the matter has not been resolved within a period of fifteen (15) days counted from the communication of the complaint to the State Party to which the breach is attributed, unless the parties decide another time frame.
2. Finalized the consultations, without a solution having been reached, the National Section of the Common Market Group will raise the complaint without further tramour to the Common Market Group.
Article 42
Intervention of the Common Market Group
1. Received the complaint, the Common Market Group will assess the requirements set out in Article 40.2, on which it was based its admission by the National Section, at the first subsequent meeting to its receipt. If you conclude that you are not meeting the necessary requirements to give you course, you will reject the complaint without further tramour, and you should speak out by consensus.
2. If the Common Market Group does not reject the complaint, this shall be deemed to be admitted. In this case, the Joint Market Group shall immediately proceed to the convening of a group of specialists who is to issue an opinion on its provenance, within the impending deadline of thirty (30) days counted from its designation.
3. At that time, the group of experts will give opportunity to the particular claimant and the states involved in the complaint of being heard and to present their arguments, in joint hearing.
Article 43
Expert group
1. The group of specialists to which reference Article 42.2 shall be composed of three (3) members designated by the Common Market Group or, in the absence of agreement on one or more specialists, these shall be chosen by vote which States Parties will carry out among the members of a list of twenty-four (24) specialists. MERCOSUR Administrative Office shall communicate to the Common Market Group the name of the specialist or the specialists who have received the highest number of votes. In the latter case, and unless the Common Market Group decides otherwise, one (1) of the designated specialists shall not be able to be a national of the State against which the complaint was formulated, nor of the State in which the particular party formalized its complaint, pursuant to Rule 40.
2. With a view to constituting the list of experts, each of the States Parties shall designate six (6) persons of recognized competence in the matters that may be the object of complaint. This list will be registered in the Administrative Office of MERCOSUR.
3. The expenses derived from the group of experts ' acting will be borne in the proportion determining the Common Market Group or, in the lack of agreement, in equal amounts by the parties directly involved in the complaint.
Article 44
Opinion of the Expert Group
1. The expert group will raise its opinion to the Common Market Group.
i) If, in opinion of unanimous opinion, if it checks the provenance of the complaint formulated against a State Party, any other State Party may require it the adoption of corrective measures or the cancellation of the measures questioned. If the application does not prosper within a period of fifteen (15) days, the State Party which effectuates it may directly resort to the arbitral procedure, under the conditions set out in Chapter VI of this Protocol.
ii) Received an opinion that deems the complaint to be upheld by unanimity, the Common Market Group shall immediately give it for completion within the scope of this Chapter.
iii) Case the group of experts does not reach unanimity to issue an opinion, will raise its distinct conclusions to the Common Market Group that will immediately, immediately, complete the complaint under this Chapter.
2. The conclusion of the complaint by the Common Market Group, pursuant to points (ii) and (iii) of the preceding numeral, shall not prevent the State Party from disclaimer from initiating the procedures laid down in Chapters IV to VI of this Protocol.
Chapter XII
General Provisions
Article 45
Agreement or Desistance
At any stage of the procedures, the part that presented the controversy or the grievance may give up the same, or the parties involved in the case will be able to reach an agreement by giving up the controversy or the complaint, in both cases. Dismissals and agreements should be communicated via the MERCOSUR Administrative Office to the Common Market Group, or to the Tribunal that matches, as the case may be.
Article 46
Confidentiality
1. All the documents submitted in the framework of the procedures laid down in this Protocol are of character reserved to the parties to the controversy, to the exception of the arbitral lauds.
2. At the discretion of the National Section of the Common Market Group of each State Party and when this is necessary for the elaboration of the positions to be presented before the Tribunal, such documents may be given to know, exclusively, the sectors with interest in the issue.
3. Notwithstanding the established in numeral 1, the Common Market Council shall regulate the disclosure modality of the texts and presentations relating to controversies already concluded.
Article 47
Regulatory
The Common Market Council shall approve the regulation of this Protocol within sixty (60) days from its entry into force.
Article 48
Prazos
1. All deadlines set out in this Protocol are peremptory and shall be counted for days correct from the day following the act or fact to which they refer. Notwithstanding, if the maturity of the deadline for submitting a text or meeting due diligence does not occur on a business day at the headquarters of the MERCOSUR Administrative Office, the submission of the text or compliance of the due diligence may be made in the first working day immediately subsequent to that date.
2. Notwithstanding the one set out in the previous numeral, all the time limits provided for in this Protocol may be modified from common agreement by the parties to the controversy. The deadlines set out for the procedures laid down before the Ad Hoc Arbitral Tribunals and before the Permanent Court of Review may be modified when the parties to the controversy request it to the respective Court and this grant it.
Chapter XIII
Transitional Provisions
Article 49
Initial Notifications
The States Parties shall carry out the first assignments and notifications provided for in Articles 11, 18 and 43.2 within a period of thirty (30) days, counted from the entry into force of this Protocol.
Article 50
Controversies in Tramite
The controversies in tramite initiated in accordance with the regime of the Brasilia Protocol will continue to be governed exclusively by the same until its full completion.
Article 51
Procedure Rules
1. The Permanent Court of Review will adopt its own rules of procedure within thirty (30) days, counted from its constitution, which are to be approved by the Common Market Council.
2. The Ad Hoc Arbitral Tribunals will adopt their own rules of procedure by taking as reference the Model Rules to be approved by the Common Market Council.
3. The rules mentioned in the preceding numerals of this article will ensure that each of the parties to the controversy has full opportunity to be heard and to present their arguments and will ensure that the proceedings are carried out expeditifully.
Chapter XIV
Final Provisions
Article 52
Duration and deposit
1. This Protocol, an integral part of the Treaty of Asuncion, shall enter into force on the thirtieth day as of the date on which the fourth instrument of ratification has been deposited.
2. The Republic of Paraguay shall be a depositary of this Protocol and of the instruments of ratification and shall notify the remaining States Parties the date of deposit of such instruments, by sending duly certified copy of this Protocol to the other States Parts.
Article 53
System Review
Before culminating in the tariff convergence process common external, the States Parties shall take a review of the current system of solution of controversies, with views to the adoption of the Permanent Control Solution System for the Common Market referred to in numeral 3 of Annex III of the Treaty of Assumption.
Article 54
Accession or Denunciation Ipso Jure
Accession to the Treaty of Asunción will mean ipso jure the accession to this Protocol.
The denunciation of this Protocol shall mean ipso jure the denunciation of the Treaty of Assumption.
Article 55
Derrogation
1. This Protocol derogates from its entry into force, the Protocol of Brasilia for the Solution of Controversies, adopted on December 17, 1991 and the Regulation of the Brasilia Protocol, approved by the CMC Decision 17/98.
2. Notwithstanding, while the controversies initiated under the regime of the Brasilia Protocol are not fully completed and until they have completed the procedures laid down in Article 49, it will continue to apply, in that match, the Brasilia Protocol and its Regulation.
3. References to the Protocol of Brasilia appearing in the Black Gold Protocol and its Annex, shall be understood to be referred to, in what corresponds to this Protocol.
Article 56
Languages
Will be official languages in all the procedures set out in this Protocol the Portuguese and the Spanish.
Done in the city of Olives, Province of Buenos Aires, Argentine Republic at the eighteen days of the month of February two thousand and two, in an original, in the Portuguese and Spanish languages, being both texts being equally authentic.
By the Argentine Republic:
EDUARDO DUHALDE
CARLOS RUCKAUF
By the Federative Republic of Brazil:
FERNANDO HENRIQUE CARDOSO
CELSO LAFER
By the Republic of Paraguay:
LUIZ GONZALES MACCHI
JOSÉ ANTÔNIO MORENO RUFFINELLI
By the Eastern Republic of Uruguay:
JORGE BATTLE IBAÑEZ
DIDIER OPERTTI