Decree No. 7147, April 1, 2010.
Promulgates the First Additional Protocol to the agreement of Economic Complementation nº 59, signed between the Governments of the Republic of Argentina, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States parties of MERCOSUR, and the Governments of the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela, member countries of the Andean Community, signed in Montevideo on October 18 2004.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 84, section IV, of the Constitution, and whereas the Treaty of Montevideo of 1980, which created the Latin American Integration Association (ALADI) signed by Brazil on August 12 1980 and promulgated by Decree No. 87054, of 23 March 1982, provides the Economic Complementation Agreement mode;
Whereas the Plenipotentiaries of the Republic Argentina, of the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States parties of MERCOSUR and the Republic of Colombia, the Republic of Ecuador, the Bolivarian Republic of Venezuela, member countries of the Andean Community, on the basis of the Treaty of Montevideo of 1980, signed on 18 October 2004 the agreement on Economic Complementation No. 59 , promulgated by Decree No. 5361, of 31 January 2005;
Whereas the Plenipotentiaries of the Republic Argentina, of the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States parties of MERCOSUR and the Republic of Colombia, the Republic of Ecuador, the Bolivarian Republic of Venezuela, member countries of the Andean Community, on the basis of the Treaty of Montevideo of 1980, signed on October 18, 2004 in Montevideo , the First Additional Protocol to the agreement of Economic Complementation nº 59;
Whereas the National Congress approved, by means of legislative decree in 170, May 14 2009, the First Additional Protocol to the agreement of Economic Complementation nº 59, signed between the Governments of Argentina, Republic of the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States parties of MERCOSUR, and the Governments of the Republic of Colombia , of the Republic of Ecuador and the Bolivarian Republic of Venezuela, member countries of the Andean Community;
Considering that the instrument of ratification of this Protocol was signed on 27 May 2009, date on which the agreement entered into force for Brazil, in terms of its legal form;
DECREES: Art. 1st the First Additional Protocol to the agreement of Economic Complementation nº 59, attached by copy to this Decree, shall be executed and delivered as fully as it contains.
Art. 2 Are subject to the approval of the National Congress any acts that may result in a revision of the agreement or which entail charges or demanding commitments to national heritage, pursuant to art. 49, item I, of the Constitution.
Art. 3 this Decree shall enter into force on the date of its publication.
Brasilia, April 1, 2010; 189 of independence and 122 of the Republic.
LUIZ INACIO LULA DA SILVA Celso Luiz Nunes Amorim RECTIFICATION ATA FIRST ADDITIONAL PROTOCOL to the AGREEMENT of ECONOMIC COMPLEMENTATION nº 59, SIGNED between ARGENTINA, Brazil, Paraguay and Uruguay, STATES PARTIES of MERCOSUR and Colombia, Ecuador and VENEZUELA, member countries of the ANDEAN COMMUNITY in the city of Montevideo, the twenty-six days in the month of may of the year 2005 , the General Secretariat of the Latin American Integration Association (LAIA), in use of colleges which gives the resolution 30 of the Committee of Representatives, as would deposit agreements and Protocols signed by the Governments of the Member countries of the Association, and in accordance with the provisions in article Third, does the record: First-You found an error in the Portuguese version of the first additional protocol to the agreement on Economic Complementation No. 59 signed between the States parties of MERCOSUR and Colombia, Ecuador and Venezuela, on 18 October 2004, in which omitted to identify how? Article 7? the corresponding text.
Second-that was a mistake of transcription, this General Secretariat it, on page 2 of the Portuguese language version of the first additional protocol to the agreement of Economic Complementation nº 59. ? Article 7-? before the text that begins with? The part that receive the ...?.
For the record, this Secretariat-General plowing This rectification Ata in place and on the date indicated, in an original, in the Portuguese and Spanish languages.
ECONOMIC COMPLEMENTATION AGREEMENT SIGNED BETWEEN the GOVERNMENTS of the ARGENTINE REPUBLIC, the FEDERATIVE REPUBLIC OF BRAZIL, the REPUBLIC OF PARAGUAY and the EASTERN REPUBLIC of URUGUAY-MERCOSUR STATE PARTIES and the GOVERNMENTS of the REPUBLIC OF COLOMBIA, the Republic of ECUADOR and the BOLIVARIAN REPUBLIC OF VENEZUELA-ANDEAN COMMUNITY MEMBER COUNTRIES First Additional Protocol ARRANGEMENTS for DISPUTE SETTLEMENT chapter I PARTIES and scope Article 1-the Argentina Republic , the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, States parties of the common market of the South (MERCOSUR), and the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela, member countries of the Andean Community, will be named Parties. The? Contracting Parties? This scheme are Mercosur and the Andean Community member countries that sign the Agreement.
Article 2-the controversies that arise in relation to the interpretation, application or violation of the provisions contained in the agreement of Partial Scope of economic complementation between the MERCOSUR and the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela (ACE No. 59), hereinafter referred to as? Agreement? and instruments and protocols signed or sign under the same, will be subject to the dispute settlement procedure set out in this Protocol.
Article 3-Notwithstanding the provisions of the previous article, the controversies that arise in relation to the provisions of this Agreement, in the field covered by the Marrakesh agreement by which was created the World Trade Organization (hereinafter referred to as "WTO Agreement") and the agreements negotiated as the same, may be settled in either Forum, the choice of the complaining party.
Once started a dispute resolution procedure in accordance with this procedure or with the WTO agreement, the Forum selected shall exclude the other.
For the purposes of this article, shall be initiated dispute settlement procedures in accordance with the Understanding on the rules and procedures by which governs the dispute settlement body of the World Trade Organization when the complaining party to request the integration of a Panel under article 6 of this agreement.
Also, consider themselves started the procedures for the settlement of disputes in accordance with the present Regime, once presented the request of direct negotiations. However, if you use the Commission administrator, will be understood the procedure with the summons request.
Article 4-for the purposes of this scheme may be parties to the dispute, hereinafter? parts?, on the one hand, one or more States parties of MERCOSUR and, for another, one or more Member countries of CAN you sign this agreement.
CHAPTER II Article 5-DIRECT NEGOTIATIONS the Parties shall resolve the disputes to which refers article 2, by conducting direct negotiations making it possible to reach a mutually satisfactory solution.
The direct negotiations will be conducted, in the case of MERCOSUR, through the Presidency Pro Tempore or by the national coordinators of the Common Market Group, as the case may be, and in the case of the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela by the national authority that each of the Member countries designate, as appropriate, with the support of the General Secretariat of the Andean Community.
Direct negotiations may be preceded by consultations between the parties.
Article 6-to start the procedure, either party shall request in writing to the other party to conduct direct negotiations, specifying the reasons for the same, the circumstances of fact and the legal basis related to the controversy, with a copy to the other 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 part that receive the request to hold direct negotiations should answer it within ten (10) days after the date of its receipt.
The Parties shall exchange the information necessary to facilitate the direct negotiations and shall confer upon these treatment information.
These negotiations may not be prolonged by more than thirty (30) days from the date of receipt of the formal request to launch them, unless the parties decide to extend this period up to a maximum of fifteen (15) additional days.
CHAPTER III the COMMISSION ADMINISTRATOR
Article 8 within stated in the third paragraph of article 7 is not to reach a mutually satisfactory solution or if the controversy is resolved only partially, the complaining party may request in writing that the Commission administrator, from now on? Commission, meets to discuss the matter or that directly to arbitration.
The written request shall include, in addition to the circumstances of fact and the legal basis related to the controversy, the provisions of the agreement, Additional Protocols and instruments signed under the same, which consider themselves violated.
Article 9-the Commission shall meet within thirty (30) days from the date of receipt by the Pro Tempore Presidency of MERCOSUR and the Presidency of the Commission of the Andean Community, through the General Secretariat of the Andean Community, the request referred to in the previous article.
If within the time limit laid down in this article is not possible to conduct the meeting of the Committee or this not rule under article 11, the complaining party may consider this step completed and request the initiation of an arbitration procedure.
Article 10-the Commission may accumulate by consensus two or more procedures relating to cases that meet only when by their nature or any linking theme, consider appropriate to examine them together.
Article 11-the Commission will evaluate the controversy and give opportunity to parties to expose their positions and, if necessary, provide additional information, with a view to reaching a mutually satisfactory solution.
The Commission shall make the recommendations relevant to estimate the effect will have a period of thirty (30) days from the date of its first meeting.
In its recommendations, the Commission will take into account the legal provisions of the Agreement, Additional instruments and Protocols that consider applicable and the pleas of fact and law.
If you arrive in Commission to a mutually satisfactory solution or this does not issue its recommendation within the aforementioned time limit, it shall be considered immediately terminated the step provided for in this Chapter. The Commission, in its recommendation, it shall fix the deadline for their adoption, won which, if the same has not been accepted by the parties, or has been only partially approved, you can start the arbitral proceedings.
When the Commission estimate required the advice of experts to formulate its recommendations, will order the same. In this case, will have 15 days to the period referred to in paragraph two of this article to formulate its recommendation.
The experts should have proven technical recognition and neutrality.
CHAPTER IV ARBITRATION PROCEDURE Article 12-where it is not possible to resolve the controversy through the application of the procedures laid down in chapters II or III, or have expired the periods laid down in Chapters mentioned without having been completed the corresponding procedure, either party may request the initiation of the arbitration procedure, to the effect of this decision shall be communicated to the other party , with a copy to the other 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, and to the General Secretariat of LAIA.
Article 13-the Parties state that they recognize as compulsory, ipso facto and without special agreement, the jurisdiction of the Arbitral Tribunal that arise in each case to meet and resolve the controversies to which referred to this scheme.
Article 14-within 90 days from the entry into force of the agreement, each of the Parties will communicate to each other their list of referees accompanied by the detailed curriculum vitae of each of them, which will be composed of ten (10) referees, two (2) of whom shall not be nationals of any of the signatory parties. The referees must be jurists of recognized competence in matters that may be subject to controversy.
The Parties, within fifteen (15) days from the date of receipt of the communication referred to in previous paragraph, may request more information about the designated referees, which should be provided with as soon as possible.
Once completed the period of 15 days, the list shall be deposited in the General Secretariat of LAIA.
The list of arbitrators by a a party cannot be objetada by other Parties.
Further modifications of the list will be subject to the referred to in this article.
Article 15-the Arbitral Tribunal before which tramitará the procedure, will be composed of three (3) arbitrators and shall conform as follows: a) within fifteen (15) days after the communication to which referred to in article 12, the Parties shall designate an arbitrator and his Deputy, chosen among the list referred to in Article 14;
b) within this period, the Parties shall designate by common agreement a third arbitrator from the list of article 14, which will chair the Tribunal. This designation should fall on persons other than nationals of the parties;
c) designations to which refers the item to) does not perform within the period laid down, they shall be made by drawing lots by the ALADI General Secretariat, at the request of either party, one of the umpires in the mentioned list;
d) if the designation to which referred to in subparagraph (b)) does not perform within the period laid down, it will be effected by the drawing of lots by the ALADI General Secretariat, at the request of either party, one of the referees national parties not included in the list of article 14; and e) by mutual agreement, the parties may appoint arbitrators that are not included in the lists to which referred to in article 14.
The list of arbitrators shall be that established in the time of the beginning of the controversy, even if one of the Parties has not notified its list. Without prejudice thereto, any Signatory Party may complete it or modify it at any time without affecting the appointment of arbitrators of disputes that are ongoing.
The designations provided for in subparagraphs a), b), c), (d)) and e) of this article shall be communicated to the Contracting Parties and, in your case, the General Secretariat of LAIA.
The alternates will replace the holder in case of incapacity, excuse, impediment or suspicion, the latter, under the terms laid down in this regulation.
Article 16-the members of the Arbitral Tribunal shall act in a personal capacity and not as representatives of the parties or of a Government. Therefore, the parties will refrain from giving them instructions and to exercise on them any kind of influence with respect to the matters submitted to the Arbitral Tribunal.
Article 17-When speaking in the same controversy several Parties, either as plaintiffs or claimed, they can act before the Arbitral Tribunal jointly or individually. In both cases should wake up the designation of a single common arbitrator. If this designation does not perform, shall apply to article 15.
Article 18-at the request of a party, the Arbitral Tribunal may accumulate two or more procedures, where there is identity as the substance and pretension.
Article 19-the Arbitral Tribunal shall fix its headquarters, in each case, in the territory of one of the parties to the dispute. In all cases, the appraisal report should be issued in the territory of the party must stick to it.
Article 20-the Commission shall establish the rules of procedure of arbitral tribunals which it deems necessary for the better implementation of this scheme, which will guarantee the parties an opportunity to be heard and shall ensure that the procedure is carried out expeditiously. For the elaboration of the rules, the Commission will take into account the following principles: a) the procedure shall ensure that at least the right to a hearing before the Arbitral Tribunal, as well as the opportunity to present claims and replicas or written answers;
b) hearings before the Court, the deliberations and conclusions, as well as all the writings and communications related to the controversy will have reserved character and will be exclusive access to the signatory parties, under the conditions laid down in the rules of the present Regime.
The qualified documents by the parties as confidential will be exclusive access to the arbitrators, which shall determine the provision of a non-confidential summary.
The reports of the Arbitral Tribunal, his clarifications and provisions on implementing measures will have public character; and (c)) the procedure of the Arbitral Tribunal should provide for sufficient flexibility to ensure the quality of its work without undue delay.
If the Commission has not adopted the rules of procedure referred to in this article and, in General, in the case of a gap or omission thereof, the Arbitral Tribunal shall establish its own rules considering the principles before mentioned. If necessary, the Arbitral Tribunal may wake up different rules, with the consensus of the parties.
Article 21-the Parties shall inform the Arbitral Tribunal on the instances observed prior to the arbitration procedure and shall provide the grounds of fact and law of their respective positions.
The parties may appoint their representatives and advisors to the Arbitral Tribunal for the defense of their rights.
Article 22-at the request of one of the parties and to the extent that there are well-founded reasons to believe that the maintenance of situation object of controversy would serious and irreparable damage, the Arbitral Tribunal unanimously may determine the application of provisional measures.
These measures shall be subject to that, for this purpose, have the rules of the scheme, which should provide for the Constitution of guarantees or sureties, that measures maintain appropriate proportionality with the alleged damage, and safeguard the right of the parties to be previously heard.
The provisional measures do not prejulgarão the result of the report.
The Parties shall meet immediately, or within which the Arbitral Tribunal determine, any interim measure, which will extend until it is saying the Report referred to in article 26, except when the Court decides to suspend them in advance.
Article 23-the Arbitral Tribunal may request information from any government agency, individual or public or private legal entity of the Parties as it considers appropriate. The Arbitral Tribunal may also, after the approval of the parties, make use of specialists or experts to better support the report.
The Arbitral Tribunal may confer confidentiality the information is supplied.
Article 24-the Arbitral Tribunal will take into account the arguments presented by the parties, the evidence produced and the reports received, without prejudice to other elements to consider convenient.
Article 25-the Arbitral Tribunal shall decide the dispute based on the provisions of the agreement, its Additional Protocols and signed within the same instruments and on the principles and provisions of international law applicable to the matter and in the grounds of fact and law.
Article 26-the Arbitral Tribunal shall issue its Report in writing within a period of 60 (60) days from the date of acceptance of the last of its members appointed.
The above mentioned time limit may be extended by the Court for a maximum of thirty (30) days, which shall be notified to the parties.
The Arbitration Report will be adopted by a majority, shall be reasoned and signed by the members of the Court. This cannot justify votes in dissent and shall maintain the confidentiality of the vote.
Article 27-the Arbitration Report should contain the following elements necessarily, without prejudice to others that the Arbitral Tribunal considers appropriate to include: 1. indication of the parties to the dispute;
2. the name and citizenship of each Member of the Arbitral Tribunal, and the date of formation;
3. the names of the representatives of the parties;
4. the object of the dispute;
5. a report on the development of arbitral proceedings, including a summary of acts performed and of the allegations of each of the parties;
6. The decision reached regarding the controversy, consigning the pleas of fact and of law;
7. the deadline for compliance is applicable;
8. the proportion of costs of arbitral proceedings that will correspond to each Part cover, as set out in Article 33;
9. the date and the place in which it was issued; and, 10. the signature of all members of the Arbitral Tribunal.
Article 28-When the award of the Arbitral Tribunal to conclude that the measure is incompatible with the agreement, the party will be obliged to adopt the necessary measures to comply with.
Article 29-The arbitration reports are damning, mandatory for the parties from the receipt of the notification and shall have, in relation to the same, force of res judicata.
The reports should be completed within a period of 60 (60) days, unless the Arbitral Tribunal set a different period, taking into account the arguments submitted by the parties during the arbitration procedure.
The part required to comply with the appraisal report shall, within ten (10) days, notify the other party of the measures it will adopt for this purpose.
Without prejudice to article 31, if the party benefited by the Report to understand that the measures that will be adopted are not satisfactory, you can elevate the situation to the attention of the Arbitral Tribunal. The Court will have a term of ten (10) days to rule on the issue.
The provisions of this article shall suspend the time limit for the completion of the report, unless the Court decides otherwise.
Article 30-any party may request, within fifteen (15) days following the date of notification of the Award, the clarification of the same with regard to their scope or how to do it. The interposition of this resource for clarification does not suspend the time limit for the completion of the report, unless the Court decides otherwise, if circumstances so require.
The Arbitral Tribunal shall decide on the enlightenment within fifteen (15) days of its filing.
Article 31 within the time limit laid down in article 29 if there is fulfilled the Arbitration Report or this has been fulfilled only partially, the complaining party may suspend temporarily to the claimed equivalent concessions or other obligations, aiming to obtain the Report and communicate this and the Commission of its decision in writing, indicating with clarity and accuracy the type of measures they will adopt.
These measures may not extend beyond the accomplishment of the report.
If the Party complained of excessive consider the suspension of concessions or obligations adopted by the complainant, shall communicate their objections to the other party and to the Commission and may request that the Arbitral Tribunal that issued the Report to comment on whether the measure adopted is equivalent to the degree of injury suffered. The Court shall have a period of thirty (30) days for your announcement, counted from the date on which it is set up for this purpose.
Article 32-the situations to which articles 29, 30 and 31 shall be resolved by the same Arbitral Tribunal that dictated the Report, but if this cannot be established with all original members, to complete the integration will apply the procedure laid down in article 15.
Article 33-the expenses of the Arbitral Tribunal shall comprise the arbitrators ' fees, as well as the cost of tickets, transfer costs, daily, whose reference values shall be established by the Commission, notifications and other measures that require arbitration.
The expenses of the Arbitral Tribunal, as were defined in the first paragraph of this article, shall be distributed in equal amounts between the complaining party and the Party complained.
CHAPTER V GENERAL PROVISIONS Article 34-communications that come between the MERCOSUR or its States parties and the Republic of Colombia, the Republic of Ecuador and the Bolivarian Republic of Venezuela, should be taken, 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 the General Secretariat of the Andean Community and in the case of MERCOSUR, the Presidency Pro Tempore or the national coordinators of the Common Market Group, as the case may be, with a copy to the Secretariat of MERCOSUR.
The Commission's recommendations, the Arbitration Report, your clarifications and the pronouncements about retaliatory measures, shall be communicated to all the Parties and entities indicated in the previous paragraph in full text.
Article 35-the deadlines to which referred to this scheme are expressed in calendar days and will be counted from the day following the Act or fact to which they relate. When the term begins or win in non-working day, it will start counting or win the next business day.
Article 36-the members of the Arbitral Tribunal, to accept their designation, will take in writing a commitment to act in accordance with the provisions of the scheme.
Such written undertaking shall be addressed to the Secretary General of ALADI and it will manifest itself, by affidavit, independence from the interests of the object and the obligation to act with fairness, not accepting suggestions from third parties or of the parties.
Article 37-at any stage of the proceedings, the party that submitted the complaint may give up the same. In addition, the parties may reach an agreement, by completion of the controversy in both cases. The withdrawals or agreements should be communicated to the Commission in writing or the Arbitral Tribunal so that they adopt the appropriate measures.
Article 38-for the purpose of compliance with this Regime, the exchange of documentation can be made more expeditious means available, including sending the facsimile and electronic mail, as long as it is posted immediately the original documentation.
This original documentation will give faith to correct date unless the Court or, as the case may be, the parties, decide to give such character to that indicated by the electronic or digital medium used.
Article 39-the controversies between the members of a Contracting Party shall be resolved in accordance with the regulations which were in force on the inside of that Contracting Party.
Article 40-none of the performances held nor the documentation submitted in the course of the procedures referred to in this prejulgará Regime on the rights or obligations which the parties hold in the framework of other agreements.
The General Secretariat of the Latin American Integration Association (ALADI) will be depository of this Protocol, which shall send certified copies to the Governments of the signatory parties.
In WITNESS WHEREOF, the respective Plenipotentiaries signed this Protocol in Montevideo, Uruguay, to eighteen days of October 2004, in an original Portuguese and Spanish languages, both texts being equally valid. (a) by the Government of Argentina Republic: Rafael Antonio Bielsa; By the Government of the Federative Republic of Brazil: Celso Amorim; By the Government of the Republic of Colombia: Carolina Barco Isakson; By the Government of the Republic of Ecuador: Leonardo Carrión Eguiguren; By the Government of the Republic of Paraguay: José Martínez Lezcano; By the Government of the Eastern Republic of Uruguay: Didier Opertti; By the Government of the Bolivarian Republic of Venezuela: Jesus Arnaldo Perez.