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Draft:The Permanent Review Tribunal of Mercosur

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Permanent Review Tribunal of Mercosur
EstablishedFebruary 18th 2002 with the signing of the Olivos Protocol
TypeJudicial Branch of Mercosur
HeadquartersAvenida Mcal. López 1141 c/ Gral Melgarejo, Asunción,  Paraguay
Key people
Head arbitrators:

Dr. Mónica Pinto (Argentina), Dr. Rosa Weber (Brasil) (current President), Dr. Eladio Loizaga (Paraguay), Dr. Jorge Fernández Reyes (Uruguay)

Substitute Arbitrators:

Dr. Santiago Deluca (Argentina), Dr. Gisele Ricobom (Brasil), Dr. Ramon Díaz (Paraguay), Dr. Alejandro Pastori (Uruguay)

Additional Arbitrator: Dr. Guillermo Michelson Irusta (Argentina)

Secretary of the Tribunal: Dr. Natasha Suñe
Parent organization
Mercosur
Websitehttps://www.tprmercosur.org

The Permanent Review Tribunal – the TPR – is the jurisdictional organ of Mercosur, established in compliance with the Olivos Protocol of 2002 for Dispute Settlements, and put into effect in 2004. This Protocol established the finalized dispute settlement mechanism in Mercosur, alongside the Tribunal itself, as mandated in the provisional 1994 Brasilia Protocol.[1] The TPR is of arbitral and permanent character. In addition to settling disputes between the State Parties, it also guarantees the correct interpretation, application, and compliance with the law of Mercosur.[1] Furthermore, the Amended Protocol of the Olivos Protocol of 2018 facilitates the possibility of an expanded Mercosur of more than four member states, as well as changing the role of the fifth arbitrator to the role of the additional arbitrator.[2]

The current President of the TPR is Dr. Rosa Weber from Brazil, and the current Secretary of the Secretariat is Dr. Natasha Suñe from Argentina.

The Evolution of the Dispute Settlement System[edit]

The first Dispute Settlement System of Mercosur was established with the signing of the Asuncion Treaty March 26th 1991. This was intended to be a provisional system to solve disputes, characterized by direct intergovernmental negotiations. If a solution was not reached once the procedure had been initiated, the State Parties were expected to consult the Common Market Group (GMC) for a Consideration. The GMC will then formulate recommendations aimed to solve the discrepancy within 60 days. During this time span, the GMC could rely on technical advice by experts and panels of experts. In case a solution is not reached in this instance, the dispute will be transferred to the Common Market Council (CMC) for the adoption of pertinent recommendations.[3] As this system was provisional, the Annex III of the Treaty of Asunción states that the State Parties were obligated to adopt a definite system by December 31st 1994.[4] The result was the prolonged provisional initiative of the Brasilia Protocol, was signed December 17th 1991. This provisional system, which was in use until 2004, settled nine disputes between the State Parties on various issues. This system constituted the formal start of a procedural scheme of Ad Hoc Arbitral Tribunals (TAH). Since the ratification of the Modified Olive Protocol of 2018, the arbitral awards are in the custody of the Secretariat of the Permanent Review Tribunal (TPR).[3]

With the signing of the Olivos Protocol (OP) February 18th 2002, and the subsequent modification in 2008, the structure of the dispute settlement was finalized and constitutes the current system. A permanent body, the Permanent Review Tribunal (TPR) was established to guarantee the correct interpretation, application and compliance with the fundamental instruments of the integration process. The TPR can serve as the first and only consultation, but also as a tribunal of appeal at the request of the State Party involved in a dispute regarding the application of the law in a previous pronouncement in a TAH (art. 19, 23, and 17 PO).[3]

Finally, this modification also added the possibility of appealing to the TPR to request Advisory Opinions (Art. 3 OP) and for cases in which the State Parties activate the procedure established for Exceptional Emergency Measures (CMC/DEC Nº23/04).[5]

The Headquarters[edit]

The current Headquarters of the Tribunal, Villa Aucinera.
Photo of the first Headquarters of the Tribunal, Villa Rosalba.

The current Headquarters of the TPR is the “Villa Aucinera”, located in the Mariscal López Avenue 1141, in the City of Asuncion, the Republic of Paraguay.

The building known as “Villa Rosalba” was the first Headquarters of the TPR, from 2004 to December 2015. It is a small palace of sober architectural design placed in the Mariscal López Avenue, between General Santos and Vicepresidente Sánchez.

Competence[edit]

Active Subjects in the Dispute Settlement System.

Individuals – natural or legal persons – can solely intervene or initiate a reclamation that conforms to the Dispute Settlement System instituted by the PO as long as it is evident that their interests have been affected by the decisions adopted by the State Parties, contrary to regulations emanating from the Mercosur bodies (art. 39 OP) and through the respective national GMC section.[6]

General Procedure of the Dispute Settlement System[edit]

The procedure envisaged in the Olivos Protocol (PO) is arbitral, and the Dispute Settlement System has three stages: The first stage includes direct negotiations (obligatory instance), and the second includes mediation by the Common Market Group (GMC). Both of these stages form a pre-litigation instance, with the purpose to enable the State Parties to settle their disputed before submitting them to arbitration. Once the time limit has expired without a settlement, any of the State Parties may enter the third stage, where they initiate the arbitration procedure.[6]

This third stage is the jurisdictional stage, represented either by the arbitral Ad Hoc Arbitral Tribunal (TAH) or the direct intervention by the Permanent Review Tribunal (TPR). The State Parties involved can decide to submit the dispute directly to the TPR, provided there is a mutual agreement between the Parties in doing so. Conversely, in the case of the arbitral ad hoc process, once the Award has been issued by the TAH, it is possible to appeal the Award. If this is the case, the TPR acts as a court of appeal that can confirm, modify, or revoke the legal grounds and decisions made by the TAH. The eventual pronouncement will be – in the last instance – unappealable (art. 17, 22 and 26, paragraph 2 PO).[6] Since the Amended Protocol of the Olivos Protocol came into effect, any of the State Parties can communicate to the Secretariat of the TPR (previously the Secretariat of Mercosur) about their intention to resort to arbitration proceedings with the intervention of an Ad Hoc Arbitral Tribunal (TAH) – or they may also express agreement to submit directly and solely to the TPR (arts. 9 and 23 OP).[2]

Once the will to resort to arbitration has been communicated and the TAH (or the TPR) has been formed, the State Parties in question shall inform the TAH of the instance and shall make a brief statement of the factual or legal grounds for their respective positions. The Tribunal shall issue an Award that is binding – and non-appealable – for the State Parties involved (Arts. 14, 17, 26 PO).[6]

Within this stage of the dispute settlement, once the final Award has been issued, it is possible to enforce compliance with the Award if the State does not comply with it.[3]


The Arbitrators[edit]

The presidency and the additional arbitrator of the TPR rotate alphabetically between the State Parties. Each presidency has a duration of one year. In the event of inability to carry out the tasks, the chairmanship shall be held by whoever succeeds him/her in the alphabetic order.[7]

The current President of TPR (2024) is Dr. Rosa Weber, who is the head arbitrator from the Federal Republic of Brazil.[7] The Olivos Protocol (PO), with its modifications in the Amended Protocol, states in Article 18 that each State Party assign one head arbitrator and one substitute arbitrator for the Permanent Review Tribunal (TPR).[2] The arbitrators are assigned for a period of two years, with the possibility of renewing the mandate for no more than two consecutive periods.

There are currently five arbitrators on permanent availability, as the acceptance of the position of arbitrator entails an obligation to act whenever they are summoned. This means that they do not dispatch daily at the Seat of the TPR.

Head Arbitrators:

  • Dr. Mónica Pinto (Argentina)
  • Dr. Rosa Weber (Brasil)
  • Dr. Eladio Loizaga (Paraguay)
  • Dr. Jorge Fernández Reyes (Uruguay)

Substitute Arbitrators:

  • Dr. Santiago Deluca (Argentina)
  • Dr. Gisele Ricobom (Brasil)
  • Dr. Ramón Díaz Pereira (Paraguay)
  • Dr. Alejandro Pastori (Uruguay)

Additional Arbitrators

The Amended Protocol of the Olivos Protocol established the figure of the additional arbitrator, replacing the previous figure of the fifth arbitrator.[2] This arbitrator will be appointed whenever there is an even number of States Parties. Both the additional head arbitrator and substitute arbitrator shall have the nationalities of one of the Mercosur State Parties, and are voted in unanimously from a list that contains up to two candidates nominated by each State Party.

The current additional arbitrator is Dr. Guillermo Michelson Irusta (Argentina)

The subsequent additional arbitrators will be Dr. Cecilia Fresnedo (Uruguay), from January 1st 2026 to December 31st 2027.

The additional arbitrator from Paraguay, scheduled from January 1st 2028 to December 31st 2029, is yet to be determined.[7]

Advisory Opinion[edit]

The advisory opinions are non-binding founded pronouncements emitted from the TPR on legal questions with respect to the interpretation, and application of the laws of Mercosur in a specific case, with the purpose of safeguarding their uniform application in the territory of the Mercosur States.[8]

These pronouncements may be requested by the State Parties, the Mercosur decision-making organs (CMC, GMC, and CCM), the Supreme Courts of Justice of the Member States (art. 3 from the CMC/DEC. No5/22 Regulation of the Olivos Protocol “RPO”) and the Mercosur Parliament (art. 13 of the Constitutive Protocol of the Parliament of Mercosur).

The regulations of the request for Advisory Opinions are done by the Supreme Courts of Justice:

Argentina: Agreement no. 13/08 of the Supreme Court of Justice of the Argentine Nation

Brazil: Regimental Amendment no. 48/2012 of the Supreme Federal Court

Paraguay: Agreement no. 549 of the Supreme Court of Justice

Uruguay: Agreement no. 7604/07 of the Supreme Court of Justice

In these cases, the TPR is made up of all its members, who by mutual agreement assign an Arbitrator who will act as a Rapporteur (art. 7 RPO).[8]

The Secretariat[edit]

The Secretariat of the TPR (ST) is led by the Secretary from any of the State Parties, and is rotated every second year, with the possibility of extension up to two additional years. The Secretary is required to hold the title of a lawyer or to have a Doctorate with a specialization or practice in International Law or Regional Integration Law. Two further requirements are functional language skills in the Mercosur languages and ten years of experience in related areas of expertise.[9]

The current Secretary of the TPR is Dr. Natasha Suñe, from Argentina, appointed by the Common Market Council Decision CMC/DEC No10/23 until December 31st 2025.

The functions of the Secretary of the ST include (Resolution GMC/RES 15/15): To support the arbitrators of the TPR and to assist in the fulfillment of their functions when appropriate; Coordinate the tasks in the areas that pertain the Secretariat; Coordinate the relationships between the Secretariat with the TPR and the rest of the organs of Mercosur; Organize the participation of the personnel in courses, seminars and other types of events relevant to their performance, while respecting the budgetary limitations, the absolute prohibition of issuing opinions in the name of Mercosur and guaranteeing the effective fulfillment of the activities they are in charge of; Organize the logistical support for all of the meetings at TPR.

Further functions of the Secretary include drafting the budget of the Secretariat, to be approved by the Common Market Group (GMC). The Secretary shall also carry out all of the necessary tasks to ensure the correct execution of the Secretariat´s budget and control the corresponding accounting records; Prepare the Annual Accounts of the Secretariat, to be approved by the GMC; Execute the purchases and alienations of goods and contracting of services for the Secretariat; Make payment to the creditors, register and control the liquidations of the credits and debits, issue payment documents and receipts, make transfers and be responsible for the custody of the funds and securities of the Secretariat; Maintain an updated, correctly evaluated and identified inventory of the Secretariat´s assets, being responsible for its managements and custody; Maintain a supplier system and control system of the providers. Prepare the necessary documentation to proceed with the hiring of personnel; Ensure the full and effective compliance with the current personnel and disciplinary regulations, and to coordinate with the Secretariat of Mercosur (SM).[9]

Furthermore, The organizational structure of the ST is made up of 4 areas, as described in GMC/RES Nº66/05. The Secretariat also has a unit called the Mercosur Center for the Promotion of Rule of Law Unit (UCMPED).[9]

The Library and Archive Section

The Library and Archive Section is in charge of organizing and maintaining the Library of the TPR and the Mercosur Center for the Promotion of Rule of Law Unit (UCMPED). Likewise, this section organizes and updates the official archive of the Secretariat, and ensures the confidentiality of TPR documentation.[9]

The Library and Archive section coordinates with the IT and Database section in disseminating information from the TPR as well as publishing on the website. They are also jointly in charge of updating the Secretariat´s database.[9]

The IT and Database Section

The IT and Database Section is in charge of the maintenance of the TPR website and the UCMPED. Moreover, this section is responsible for the operation of the computer network of the Secretariat and UCMPED and creates, secures, and enhances the security of the database and the IT system.[9]

The Secretariat and Administrative Section

This section is in charge of receiving and distributing the communications and documentations of the Secretariat and UCMPED, assisting in issued related to the Protocol of the Secretariat and the UCMPED, collaborating with the secretary in the preparation of the draft budget, budget execution as well as the preparation of accounting records. Additionally, this section assists in the preparation of the annual accounts of the Secretariat and in the tasks related to payment of creditors, the maintenance of the supplier registration and control system and of the settlement of credits and debits. Further tasks relate to the issuance of payment documents and receipts as well as the transfers and custody of the funds and securities of the Secretariat. Finally, the section prepares the documentation related to the hiring of staff.[9]

The Juridical Section

The main function of the Juridical Section is to collaborate with the Secretary in assisting the arbitrators, and in the procedures related to the dispute settlements, emergency measures, and the Advisory Opinions. This section also organizes the archiving of these tasks, as well as filing and produce communications. Furthermore, it works alongside the Library Section in the acquisition of publications that are of interest to the UCMPED. The Judicial section also cooperates with the UCMPED in the preparation of research projects, courses, seminars, forums, publications, meetings with academics, government representatives, as well as representatives from civil society, exchange programs, among others. The Judicial Section also assists the Secretary in negotiating agreements between the Secretariat and other institutions.[9]

References[edit]

  1. ^ a b "Normativa". tprmercosur.org. Tribunal Permanente de Revisión del Mercosur. Retrieved 4 June 2024.
  2. ^ a b c d "Protocolo Modificatorio del Protocolo de Olivos Para la Solución de Controversias en el Mercosur" (PDF). tprmercosur.org. Mercosur. Retrieved 4 June 2024.
  3. ^ a b c d "Solución de Controversias". tprmercosur.org. Tribunal Permanente de Revisión del Mercosur. Retrieved 4 June 2024.
  4. ^ "TRATADO PARA LA CONSTITUCION DE UN MERCADO COMUN ENTRE LA REPUBLICA ARGENTINA, LA REPUBLICA FEDERATIVA DEL BRASIL, LA REPUBLICA DEL PARAGUAY Y LA REPUBLICA ORIENTAL DEL URUGUAY" (PDF). tprmercosur.org. Common Market Group of Mercosur. Retrieved 4 June 2024.
  5. ^ "MERCOSUR/CMC/DEC. N° 23/04" (PDF). tprmercosur.org. Council of the Common Market of Mercosur. Retrieved 4 June 2024.
  6. ^ a b c d "PROTOCOLO DE OLIVOS" (PDF). tprmercosur.org. Mercosur.
  7. ^ a b c "Árbitros". tprmercosur.org. Permanent Review Tribunal of Mercosur. Retrieved 4 June 2024.
  8. ^ a b "Opiniones Consultivas". tprmercosur.org. Permanent Review Tribunal of Mercosur. Retrieved 5 June 2024.
  9. ^ a b c d e f g h "La Secretaría". tprmercosur.org. Permanent Review Tribunal of Mercosur. Retrieved 5 June 2024.

External Links[edit]

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