1. Introduction
The Treaty of Asunción (hereinafter TA) in 1991 gave rise to the Common Market of the Southern Cone (MERCOSUR)Footnote 1 as a promising economic integration process in Latin America, including the basis for the establishment of a new legislative order.Footnote 2 The initial legal architecture was adapted to the dynamic of a pragmatic and inter-governmental integration process. As the legal personality of MERCOSUR was reinforced, there were also important changes in the law. International law and international economic law played a fundamental role in the development of MERCOSUR law as a new integration process.
Since then, the improvements in MERCOSUR law have been (and still are) closely linked to the evolution of economic integration. The development of this legal system depended to some extent upon the deepening of the integration and the achievement of the MERCOSUR common market.Footnote 3 Indeed, the evolution of MERCOSUR law shows the attempts of the member states to adjust it to each period of integration.
During the first phase, called the ‘period of transition’, which ran from the signature of the Treaty of Asunción (1991) until the entry into force of the Ouro Preto Protocol (1994), the sources of law in MERCOSUR were defined by the Treaty of Asunción. With the redefinition of the institutional setting operated by the Ouro Preto Protocol (OPP),Footnote 4 the MERCOSUR legal order was also modified. The OPP reformed not only the whole institutional set-up, but also the MERCOSUR legal system. Indeed, the Treaty of Asunción system has been ratified, developed, and improved by the OPP. The relaunching of the process in 2000 represented an incentive for the improvement of the MERCOSUR legal system.Footnote 5 This relaunching determined the introduction of the MERCOSUR Permanent Review Tribunal through the Olivos Protocol (OP) (adopted in 2002), and the dispute settlement system gained in certainty.
Over the past five years (2006–11), two important modifications with a clear impact on MERCOSUR law must be noted: the establishment of the MERCOSUR Parliament and Venezuela's request for accession to MERCOSUR as a member state (2006).Footnote 6 First, the MERCOSUR Parliament replaced the Joint Inter-Parliamentary Commission, bringing further modifications to the MERCOSUR legal system as seen below. Second, another recent modification to be acknowledged as relevant is the potential incorporation of Venezuela as a new member state, which implies the redefinition of the contours of the acquis communautaire of MERCOSUR.Footnote 7 In addition, the dispute settlement mechanism and the arbitration awards issued by the ad hoc arbitration tribunals (from 1999 up to the present)Footnote 8 and the Permanent Review Tribunal contributed to laying down the basis of MERCOSUR law.
In many respects, the current stage can be seen as crucial for the MERCOSUR legal system. The latest institutional changes and the addition of a new member state appear to suggest that a revision of the legislative procedure is required. The 20th anniversary of MERCOSUR offers a good opportunity to reflect on how MERCOSUR law has developed over the years in light of the relations between international law and the sources of MERCOSUR law.Footnote 9
The main aim of this article is to provide some insights on the current stage of MERCOSUR law, taking into account the evolution of the legal system, the dispute settlement mechanism, and the relationship with international law. In order to do so, the author examines various turning points in the case law of the arbitration tribunals constituted so far and the Permanent Review Tribunal established by the OP. In the following section, the author provides a brief outlook on MERCOSUR sources of law. The third section is devoted to an analysis of the main features of the current dispute settlement mechanism and its impacts on MERCOSUR law. In the fourth section, the author examines the influence of international law on MERCOSUR law. Finally, the author's position and reflections on the evolution of the MERCOSUR legal system are summarized in the fifth section.
2. Sources of law in MERCOSUR: an overview
As in other international organizations, in MERCOSUR, a first distinction to be made is between primary and secondary law.Footnote 10 The various sources of law in MERCOSUR comprise the constitutive treaties and the norms integrating the secondary law.Footnote 11
The institutional arrangements and main law-making process of MERCOSUR were established in the constitutive treaties (primary law).Footnote 12 As for MERCOSUR secondary law, from the outset, the Treaty of Asunción provided that the main bodies of this organization were endowed with legislative competencies to rule on various aspects of the achievement of the common market. Almost all binding MERCOSUR secondary norms must be transformed into national legislation before having legal effect. That is, most MERCOSUR norms integrating MERCOSUR secondary law must be internalized, with adequate implementing measures adopted by each member state.
2.1. MERCOSUR primary law
Like other integration processes, in MERCOSUR, the primary law consists of the founding treaties.Footnote 13 Article 41 OPP identifies the Treaty of Asunción, its protocols, and additional or supplementary instruments as primary sources of MERCOSUR law.Footnote 14
Among the key instruments integrating the MERCOSUR primary law (‘core MERCOSUR law’), one can include the:
• Treaty of Asunción and its five Annexes (1991);
• OPP (1994);
• Brasilia Protocol for the Settlement of Disputes (1991);Footnote 15
• OP for the Settlement of Disputes (2002);Footnote 16
• protocol establishing the MERCOSUR Parliament (2005);Footnote 17
• other protocols.Footnote 18
The domestic effects of MERCOSUR primary law depend on the approach to international law (dualist or monist) member states adopt. In MERCOSUR member states’ constitutional systems, the internal hierarchy of norms and the solutions adopted are diverse. Whereas Argentina and Paraguay reformed their constitutions in order to bring them in line with MERCOSUR law, the hierarchy of MERCOSUR law is still arguable in other member states.Footnote 19 This leads to so-called ‘constitutional asymmetries’ regarding the internalization of MERCOSUR law, which makes it quite difficult to ensure a uniform degree of compliance.Footnote 20 Moreover, reports issued by the MERCOSUR Administrative Secretariat revealed that an important number of secondary norms were not internalized by member states and, in some cases, norms were modified before their internalization.Footnote 21
In addition to these protocols, parallel agreements have been concluded with associate states.Footnote 22 These agreements are signed by MERCOSUR's acting as an international subject.Footnote 23 Commentators recognize these agreements as part of MERCOSUR law with limitations according to Article 41 II OPP being, therefore, under the same rules.Footnote 24
2.2. MERCOSUR secondary law
Whereas MERCOSUR primary law consists of international treaties, MERCOSUR secondary law is produced by its main bodies. Like other international organizations, in MERCOSUR, the allocation of legislative competencies and the form that these acts may take are defined in the founding treaties.
According to the OPP, three bodiesFootnote 25 are endowed with legislative powers: the Common Market Council (CCM);Footnote 26 the Common Market Group (CMG);Footnote 27 and the MERCOSUR Trade Commission (MTC).Footnote 28
The creation and implementation of the MERCOSUR Parliament have introduced a significant change.Footnote 29 According to the Protocol establishing the parliament of MERCOSUR (2005), this body has advisory as well as normative functions.Footnote 30 The regulation of the MERCOSUR Parliament foresees the participation of this legislative body in the law-making process. The MERCOSUR Parliament may intervene in decisions, resolutions, and directives issued by the CMC, the CMG, or the MTC, respectively, in the event that they require involvement of national parliaments in the implementation of standards. In addition to these legislative functions, the parliament may also request an advisory opinion from the Permanent Review Tribunal.Footnote 31 Moreover, in an advisory role, the parliament will give advice, prepare reports, and adopt statements and recommendations.
At this stage, the MERCOSUR Parliament has only formal legislative powers. To develop them, it is necessary to modify the legislative procedure and guarantee co-ordination with other MERCOSUR bodies such as the CMC.Footnote 32 To date, the relationship in terms of legislative powers is not very transparent. The constitution of the high-level group on the relationship between the CMC and the parliament (Grupo de Alto Nivel sobre la Relación Institucional entre el Consejo del Mercado Común y el Parlamento del MERCOSUR-GANREL) is the first step towards a more detailed definition of the different competencies among MERCOSUR bodies.Footnote 33
After considering the legislative competencies of different MERCOSUR bodies, it is worth analysing in detail the types of legal act of MERCOSUR. With regard to acts passed by these organs endowed with decision-making powers, we can distinguish between decisions, resolutions, and directives (Article 41 OPP):Footnote 34
a. Through decisions, the Council outlines general policies for the integration process. These norms are connected to the development of a MERCOSUR policy on a specific issue. They are addressed to all member states, which may need to modify their own laws in order to comply with them. Taking into account the various issues addressed in the different decisions, these comprise a vast range of issues such as the creation of ministerial meetings, negotiations with the European Union or the adoption of other protocols. Decisions are particularly useful when the aim is harmonising national laws within a certain area or introducing legislative changes.Footnote 35
b. Resolutions are adopted by the Common Market Group and are binding on all member states.Footnote 36 Resolutions cover an array of subject matter related to freedom of movement within the MERCOSUR area, such as commercial aspects and documents required for MERCOSUR citizens,Footnote 37 budgetary aspects and relations with third states.
c. Directives differ from decisions and resolutions in two important respects: they emanate from the MERCOSUR Trade Commission and regulate specific technical commercial issues.Footnote 38
All these different acts integrating MERCOSUR secondary law must meet certain requirements in order to be applicable. First, each member state must adopt the necessary measures to internalize the norm and notify the secretariat. Following internalization by all member states, the secretariat communicates this circumstance to each member state. As a final step, the MERCOSUR norm in question comes into force at the same time for all member states 30 days after the date of the notification by the secretariat.Footnote 39 It must be underlined that there are two exceptions: first, when all member states agree that the norm in question is related to the organization or internal functioning; and, second, when there is a domestic norm that contains the MERCOSUR norm in the same terms.Footnote 40 Various ad hoc arbitration awards confirmed that secondary law norms do not have a self-executing nature and therefore they need to be incorporated into internal legal orders.Footnote 41
3. The current MERCOSUR dispute settlement system and its implications for MERCOSUR law
The dispute settlement system established in the Brasilia Protocol consisted of the classic inter-governmental dispute settlement mechanisms: consultations, direct negotiations, conciliation, and, as a last resort, arbitration.Footnote 42 Up to the present, the main mechanism continues to be arbitration. The OP replaced the old dispute settlement system established by the Brasilia Protocol.Footnote 43 After the OP's entry into force in 2004, new changes were introduced in the arbitration procedure.Footnote 44 The main innovation was the creation of the Permanent Review Tribunal, with the possibility of appellate review. However, no significant modifications were made to individuals’ access to the arbitration procedure.
The following subsections briefly examine the salient features of the current system, providing a critical appraisal of controversial aspects that have a direct effect on the MERCOSUR legal system.
3.1. The dispute settlement system after the reforms of the OP
3.1.1. Disputes between member states
Disputes between MERCOSUR member states relating to the interpretation or application of, or non-compliance with, primary and secondary law can be submitted under the OP dispute settlement system.Footnote 45 Notwithstanding this, member states are not obliged to settle their claims in MERCOSUR arbitrations. In fact, member states can choose other international dispute settlement systems to which MERCOSUR member states are parties.Footnote 46
At present, dispute settlement procedures within MERCOSUR comprise preliminary direct negotiations (compulsory), conciliation before the CMG (optional), arbitration procedure, and Appellate Review Instance.
3.1.1.1. Preliminary direct negotiations (compulsory)
Member states involved in a dispute are obliged to attempt to resolve the dispute through direct negotiations and to inform the MERCOSUR Secretariat of the outcome of such negotiations.Footnote 47
3.1.1.2. Conciliation before the CMG (optional)
If the dispute is not resolved through direct negotiations (or if only partly resolved), both member states can reach an agreement and bring the dispute before the CMG.Footnote 48 The CMG will examine the parties’ arguments and issue non-binding recommendations.Footnote 49
3.1.1.3. Arbitration procedure
If the dispute persists, any member state involved has the right to file a claim before an ad hoc arbitration tribunal.Footnote 50 At this stage, provisional measures can be granted by the tribunal following the request of one party based on the presumption of grave and irreparable damages due to the persistence of the initial situation.Footnote 51
The award rendered by the ad hoc arbitration tribunal can be subject to a request for clarificationFootnote 52 and also to appellate review before the Permanent Review Tribunal.Footnote 53 If the award is not appealed, it is final, having the effect of res judicata between the parties.Footnote 54
3.1.1.4. Permanent Review Tribunal
The Permanent Review TribunalFootnote 55 not only performs review tasks (as seen above) but also can develop other important roles: as a unique instance of dispute settlement (by common agreement of the parties involved in the dispute),Footnote 56 as a unique instance of urgent and exceptional cases,Footnote 57 and as a consultative body.Footnote 58
According to the OP,Footnote 59 any party to a dispute can request an appellate review by the Permanent Review Tribunal against the award rendered by the ad hoc arbitration tribunal. The appellate review is limited to ‘points of law’ discussed in the controversy and to interpretations developed by the ad hoc arbitration tribunal.Footnote 60 The decision of the Permanent Review Tribunal will be definitive and will substitute the award issued by the ad hoc arbitration tribunal.Footnote 61
Another important role performed by the Permanent Review Tribunal is the consultative function. The Permanent Review Tribunal can issue consultative opinions on the interpretation of MERCOSUR law. Requests for consultative opinions can be made by member states, MERCOSUR executive bodies (the CMC, CMG, and MTC), and member states’ supreme courts with national jurisdiction.Footnote 62 Nevertheless, these consultative opinions do not have binding effects.
3.1.2. Disputes between a private party and a member state
Private parties (individuals and legal persons) to the dispute settlement system can submit a claim against the adoption or the application by any of the member states of legal or administrative measures with restrictive, discriminatory, or unfair competition effects, in violation of the Treaty of Asunción, the OPP, the protocols and agreements concluded in the framework of the Treaty of Asunción, the CMC's decisions, the CMG's resolutions, or the MTC's directives.Footnote 63
As a first step in the procedure, the claim must be submitted to the National Section of the CMG in the member state in which the claimants have their residence or the head office of the business is domiciled.Footnote 64 Once submitted, the claim will be analysed by the National Section. If it declares the claim admissible, it will contact the National Section of the member state alleged to have breached MERCOSUR regulations. This query aims at reaching an immediate settlement of the dispute.Footnote 65
In the event that the dispute is not settled, the National Section will submit the claim to the CMG.Footnote 66 At this stage, the CMG will examine whether it fulfils the requirements of Article 40(2) of the OP. In the worst-case scenario, the CMG will reject the claim.Footnote 67
If, on the contrary, the claim accomplishes the requirements, the CMG calls a group of experts that shall issue a legal opinion on the subject matter.Footnote 68 If the panel accepts the claim against one of the member states, issuing a unanimous opinion, any other member state may request the adoption of corrective measures or the repeal of the contested measures. In that case, if the request is not accepted within 15 days, the member state will have the right to start the arbitration procedure as noted above.Footnote 69
If the panel does not reach unanimity or holds that the claim is unfounded, the CMG will complete the procedure.Footnote 70 The last resort for the member state that has submitted the case to the CMG is to start the arbitration procedure.Footnote 71
3.2. Critical appraisal of the current dispute settlement system
Having analysed the current dispute settlement system, a critical appraisal of the reforms introduced by the OP is in order. The analysis underlines three main aspects in the functioning of the system that have direct implications for the development of the MERCOSUR legal system.
3.2.1. The absence of a court of justice in MERCOSUR
It is clear that an adequate and efficient dispute settlement system is essential not only to consolidate the regional integration process, but also to strengthen the rule of law.Footnote 72 The creation of a judicial body in MERCOSUR is a controversial issue that has been widely discussed by specialized commentators on MERCOSUR law. In this regard, some commentators have emphasized the need for a permanent court of justice in MERCOSUR guaranteeing the enforcement and uniform interpretation of community law.Footnote 73 Another part of MERCOSUR legal scholarship proposes to introduce different changes in the institutional arrangements to address the enforcement problems MERCOSUR faces and to ensure a uniform application, without going beyond the present inter-governmental machinery.Footnote 74
Scholars such as Perotti advance the main arguments for the creation of a regional court within MERCOSUR, underlying the basic requirements for this court to be operative.Footnote 75 Additionally, the Permanent Forum of Supreme Courts of MERCOSUR has insisted upon the need to include a court of justice in the institutional framework.Footnote 76 The main reasons for this inclusion are linked to the need to provide greater legal certainty to MERCOSUR law.
Despite these debates and proposals, MERCOSUR authorities have not yet decided on the creation of such a court. The reasons for this apparent reluctance can be found, on the one hand, in the main features of MERCOSUR and, on the other hand, in the refusal of member states for political reasons linked to the defence of national sovereignty.
Originally, MERCOSUR was conceived as a dynamic and pragmatic integration process. Accordingly, the diplomatic approach was selected as a way of dealing with disputes. As Gari explains:
during the early stages of the integration process, the diplomatic approach contributed to settle conflicts in a quick and cost-effective way, but in the long run when conflicts got more complex . . . the ‘presidential diplomacy’ strategy ended up overexposing top political leaders.Footnote 77
To a greater extent, this conception of MERCOSUR as an inter-governmental and pragmatic integration process (needless of a sophisticated bureaucracy) is still predominant.Footnote 78
As for the political reasons underlying the absence of a MERCOSUR court of justice, they are related to the imbalance of power among member states and the lack of political will on the part of key states. The author agrees with Gari's observation that:
the problem with proposals aimed at the supranationalisation of MERCOSUR institutions is their lack of political feasibility . . .. Due to the sharp structural asymmetries between State Parties, it is highly unlikely that Brazil would be willing to pay the costs of supranational institutions in terms of sovereignty curtailment in exchange for the type of benefits supranationality can offer.Footnote 79
Up to the present, MERCOSUR authorities have chosen the inter-governmental solution, with some ad hoc adjustments. The question that is raised again is for how long the current system (with its limitations) can ensure a steady progress of MERCOSUR law and the integration process itself.
3.2.2. Precedents, legal certainty, and uniform interpretation of MERCOSUR law
One of the main objectives pursued in the adoption of the OP was strengthening legal certainty. Indeed, Decision 25/2000 of the Reform of the Brasilia Protocol foresaw the inclusion of ‘alternatives for a uniform interpretation of MERCOSUR regulations’.Footnote 80 Consequently, the OP envisaged the Permanent Review Tribunal and the request of advisory opinions as main pillars of the new system.Footnote 81 Indeed, the introduction of the advisory-opinion procedure contributed to develop ‘a uniform, consistent and coherent interpretation and application of MERCOSUR Law’.Footnote 82
In order to assess the present system, we must be aware that, in MERCOSUR, the uniform interpretation of the regional integration law involves two different questions: on one hand, how to guarantee the uniform interpretation of MERCOSUR law in the arbitration procedure having different ad hoc tribunals whose composition varies and, on the other, how to reconcile the various interpretations made at the domestic level by national courts.
As for the first question, nothing in the wording of the OP appears to suggest that arbitration awards rendered by ad hoc arbitration tribunals are binding for succeeding tribunals. Despite the absence of an explicit mandatory precedent system, arbitration tribunals make constant references in their awards to previous decisions. Commentators have emphasized the creation of an acquis communautaire in MERCOSUR. In their analysis, Vinuesa underlined that ‘Mercosur arbitration awards constantly refer to previous Mercosur precedents to reinforce the idea of recognizing common patterns in the application and interpretation of Mercosur law’.Footnote 83 The grounds on which this process is based include the principles of pacta sunt servanda, good faith, and reasonableness.Footnote 84 Different ad hoc arbitration tribunals have drafted ‘doctrines’. In other words, MERCOSUR ad hoc tribunals have put forward different arguments laying down important interpretative criteria, for instance, regarding the mandatory nature of MERCOSUR rules or the need to incorporate secondary- law norms into national legal systems.Footnote 85 Taking this into account, the new advisory opinion system is contributing to foster this more or less sui generis uniform interpretation made by the ad hoc arbitration tribunals.
With regard to guaranteeing the uniform interpretation of MERCOSUR law in national courts, in the OP member states, supreme courts were entitled to seek an advisory opinion. As commentators underline, ‘advisory opinions can be particularly useful for national judiciaries facing litigation involving the interpretation of MERCOSUR rules, in that PRC (Permanent Review Tribunal) advice helps to prevent divergent rulings in different countries on the same legal issue’.Footnote 86 Despite this, supreme courts were initially excluded from the regulation of the advisory-opinions procedure.Footnote 87 In an exercise of what some scholars call ‘judicial diplomacy in MERCOSUR’, the Forum of Supreme Courts (referred to above) drafted a proposal, taking the initiative to provide an adequate regulation.Footnote 88 As a result, the Decision 02/2007 regulating the request of advisory opinion by supreme courts was adopted in January 2007.Footnote 89 This shows the proactive role played, in general, by supreme courts in MERCOSUR.Footnote 90 The advisory opinions issued so far demonstrate the interest of supreme courts in acquiring specific guidelines in the interpretation and application of MERCOSUR law.Footnote 91 This judicial activism could contribute to further develop the advisory-opinion system in the future.
3.2.3. The lack of effective access of private parties to the dispute settlement system
The reduced legal standing of private parties is one of the weaknesses of MERCOSUR's present system.Footnote 92 Like the previous mechanism, private parties (individuals and legal persons) have limited access to the arbitration procedure, even after the reforms introduced by the OP. As Olivera García points out, the distinction between the regime applicable to disputes between member states and that to private claims has been maintained.Footnote 93 Private parties can bring a claim to the National Section in question. Yet, they do not possess direct access to the arbitration procedure. For this reason, the author agrees with Cárdenas and Tempesta on their critique that:
the role played by individuals is quite limited because, although they can start the proceedings and will always be heard, they can do nothing if their claims are dismissed . . .. Member states are the ones who have, at all times, control of the proceedings and who, at their discretion, decide whether to resort to the Arbitration Tribunal if the controversy persists.Footnote 94
Furthermore, the limited availability of reliable judicial remedies at regional level also involves the protection of human rights. As Petersmann affirms, individuals’ access to international courts is a basic procedural guarantee in an international democratic context, also applicable in international economic law.Footnote 95 Private parties’ lack of access to the arbitration procedures is seen as part of MERCOSUR's ‘democratic deficit’. Indeed, the limited participation of non-governmental sectors is one of the features of the institutional arrangement: most of the MERCOSUR decision-making process mainly takes place behind closed doors.Footnote 96 The ‘opacity’ of the procedures is the rule. In the institutional and functional framework, there is little room left for private parties to actively participate. Despite the creation of the Advisory Forum and the MERCOSUR Parliament, the participation of individuals and private parties is minimal.
There is hope that, after the OP's reform, the advisory-opinion procedure could lead in the long run to an improvement in the position of private parties in the context of MERCOSUR.Footnote 97 Gari suggests that:
the procedure to request Advisory Opinions should play a pivotal role in the protection of private persons’ interests . . . for this to be possible it is essential to implement this procedure . . . when the issue about the interpretation of MERCOSUR law reaches the highest court, the request for an Advisory Opinion should be compulsory and it should have binding effects on the requesting domestic court.Footnote 98
In any case, addressing civil-society claims for participation and more democratic rule-making are two fundamental aspects for strengthening the rule of law at a regional level that cannot be overlooked for too long.
4. Relationships between international law and MERCOSUR law: so near, yet so far?
International law played an essential role in building MERCOSUR law. As a new regional integration process, MERCOSUR was created through a classical international treaty among states. Moreover, as Vinuesa recalls, ‘All awards were founded on pre-existing MERCOSUR law as well as general principles of international law’.Footnote 99
Besides, economic international law offered an appropriate legal framework for the establishment and development of MERCOSUR law. For the aims of this analysis, the author bears in mind the classical definition of international economic law provided by Petersmann that emphasizes its mixed nature. Indeed, this scholar identifies it with:
[a] conglomerate of private law (including ‘law merchant’ and ‘transnational commercial law’), state law (including ‘conflict of laws’) and public international law (including supranational integration law as in the EEC) with a bewildering array of multilateral and bilateral treaties, executive agreements, ‘secondary law’ enacted by international organizations, ‘gentlemen's agreements,’ central bank arrangements, declarations of principle, resolutions, recommendations, customary law, general principles of law, de facto-orders, parliamentary acts, governments decrees, judicial decisions, private contracts or commercial usages.Footnote 100
Commentators also agree on the underlying importance of the EU law in shaping MERCOSUR law. However, in the author's view, since MERCOSUR law is still an inter-governmental integration process, the EU law institutions and doctrines have limited application. Indeed, as Ventura clearly explains, in MERCOSUR law, the ‘Absence of the principle of direct applicability is linked to the complete lack of a principle establishing the primacy of community law over national ones’.Footnote 101
In the framework of the relationship between international law and MERCOSUR law, two initial features merit mention.
First, it must be emphasized that the main features of the dispute settlement mechanism selected by MERCOSUR member states determine the relationships between MERCOSUR law and international law. As seen above, it is unlike other integration processes in Latin America, such as the Andean Community or the Central American Integration System in which a judicial body was created. The dispute settlement system chosen by MERCOSUR member states is close to the classical system used in international economic law.Footnote 102 Indeed, the dispute settlement system of MERCOSUR was inspired by the prevailing regimes in the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO).Footnote 103
Second, from the beginning, there was a specific provision (Article 19.1 of the Brasilia Protocol, 1994) that included a general reference to international law, which stated:
1. The Arbitration Tribunal will decide the controversy based on the dispositions of the Treaty of Asunción, of the agreements concluded within its framework, on the decisions of the Common Market Council, the resolutions of the Common Market Group, as well as on the principles and dispositions of international law which are applicable to the matter.Footnote 104
The OP, with a slight difference, states:
[t]he ad hoc Arbitration Tribunals and the Permanent Review Tribunal shall settle the dispute on the basis of the Treaty of Asunción, the Protocol of Ouro Preto, the protocols and agreements executed within the framework of the Treaty of Asunción, the decisions of the Common Market Council, the Resolutions of the Common Market Group and the Instructions of the MERCOSUR Trade Commission, as well as the applicable principles and provisions of International Law.Footnote 105
Upon such articles, MERCOSUR arbitration tribunals have applied international law and international economic law provisions in different ways, as can be observed in various awards rendered.Footnote 106 With regard to the methodology of MERCOSUR arbitration tribunals in interpreting treaties, they have adopted the international-law approach to treaty interpretation reflected in Article 31 of the Vienna Convention on the Law of Treaties.Footnote 107 Accordingly, the terms of a treaty are to be interpreted in good faith in accordance with the ordinary meaning in context and in light of the treaty's objective and purpose. Commentators underline that this ‘teleological approach’ adopted since the I Arbitration Award has been confirmed by the subsequent awards, developing a doctrine in this respect.Footnote 108
To explain the evolution of the relationships between international law and MERCOSUR law, focus is placed on the analysis of relevant arbitration awards arising out of claims under MERCOSUR law, emphasizing the main aspects of these relations.Footnote 109
4.1. Establishing the basis for the new legal order: laying down MERCOSUR law
Under the Protocol of Brasilia system, various arbitration awards concerning different aspects of MERCOSUR law were laid down.Footnote 110 Principles and norms of international law have contributed to forming the basis for the development of the MERCOSUR legal order.
In the I Arbitration Award (1999), issued in the dispute between Argentina and Brazil concerning the application of restrictive measures to reciprocal trade, the ad hoc arbitration tribunal recognized the importance of international law for the sources of MERCOSUR law.Footnote 111
On that occasion, the arbitration tribunal stated:
In this context, the tribunal must find and identify the applicable legal rules, guided by the aims and objectives of the normative order established by the Parties . . . to regulate their mutual relations in order to achieve the shared goal of integration, within the scope of the purposes and principles of the Treaty of Asunción. In this sense, the dispute settlement system under the Brasilia Protocol anticipates that disputes require interpretative tasks at various levels (article 1).Footnote 112
Furthermore, the arbitration tribunal assessed the different nature of the norms forming part of the MERCOSUR legal system, in the following terms:
The architecture of the Treaty of Asunción and the documents clearly shows a combination of norms of a framework agreement with other self-executing norms . . .. There are, therefore, norms setting goals and principles as a permanent framework and guide to the activities of MERCOSUR member states. There are other provisions that create organs, through the activity of which the parties may shape the integration process. Finally, there are other provisions which are enforceable by themselves, imposing specific obligations on the parties, without further legal acts on the part of member states. These are mainly contained in the Annexes, instruments which play the role of facilitators of the integration process.Footnote 113
As Cárdenas and Tempesta point out, the approach taken by the tribunal in this award and confirmed subsequently is a ‘contextual method that preferred the analysis of the dispute from the perspective of the “MERCOSUR legal framework” to the adoption of any “specific and isolated” rule’.Footnote 114
In the III Arbitration Award (2000) concerning safeguard measures applied by Argentina against textile imports from Brazil, the ad hoc arbitration tribunal established that ‘dispute’ must be defined within the legal framework of MERCOSUR and secondarily by means of international law. On this matter, the tribunal assessed both the primary content of the agreements and different decisions and resolutions in the MERCOSUR legal system in order to find an adequate definition of ‘dispute’. The tribunal concluded that such a definition did not exist in the Treaty of Asunción or in the law arising from that treaty. Consequently, the tribunal relied upon international law to achieve an appropriate definition of ‘dispute’ following Article 19 of the above-mentioned Brasilia Protocol.
In addition, in this III Arbitration Award, the ad hoc tribunal underlined the character of the MERCOSUR legal system by referring to the liberalization programme and the main obstacles to integration processes in Latin America. The tribunal clarified:
The trade liberalization programme has a central role and is a strategic component in shaping MERCOSUR . . .. The authors of the TA ensured a rapid pace of trade liberalization. In this way, the trade liberalization programme . . . would constitute the critical mass needed to drive actions towards a common market.Footnote 115
Therefore, international law contributed in a significant way to developing the MERCOSUR legal system. Even if the ad hoc arbitration tribunals identified MERCOSUR law as the main source to solve disputes, in many cases, the core of the subject matter in dispute was regulated in international law.
4.2. Application of international law and international economic law as a way of filling a legal vacuum in MERCOSUR law
Another important role played by international law and international economic-law norms was to fill a legal vacuum (absence of MERCOSUR regulation on specific matters), as discussed below. Notwithstanding this recognition, some ad hoc arbitration tribunals were reluctant to apply international law when it was necessary to fill a legal vacuum or loophole.
In the III Arbitration Award (2000) rendered on the dispute between Argentina and Brazil referred to above, as part of its defence, Argentina invoked as legal basis the norms of economic international law. In this case, the controversial issue was the application of safeguard measures in the textile sector by Argentina – a subject not regulated by MERCOSUR from 1994 onwards. The issue here was whether the safeguard measures imposed by Argentina in the form of annual quotas on imports of cotton textiles from Brazil were in violation of legal norms of MERCOSUR. From 1991 until 1994, intra-MERCOSUR safeguard measures were regulated in MERCOSUR by Annex IV of the Treaty of Asunción. In 1995, the Marrakesh Agreements came into effect. Consequently, due to the absence of specific rules on textile safeguard measures in MERCOSUR, Argentina held that the WTO rules were applicable. Argentina argued that MERCOSUR member states were also subject to compliance with the rules of the WTO, since MERCOSUR norms did not preclude the application of multilateral arrangements, as follows:
If an issue has been the object of regulation between the countries of MERCOSUR deepening WTO commitments, these rules are compulsory for the members and take precedence over multilateral rules. However, if a matter is not regulated in MERCOSUR, then the member states have the right to apply WTO instruments.Footnote 116
Argentina relied upon the principle of speciality, under which a specific rule overrides a general rule. According to this principle, Annex IV of the Treaty of Asunción allowed the application of safeguard measures by the end of 1994. Since 1994, MERCOSUR has not adopted any legislation on this subject, thus creating a ‘legal vacuum’. Subsequently, the Marrakesh Agreement entered into force and established rules on textile safeguard measures that were incorporated into domestic legislation in Argentina (Law No. 24.425 and Decree 1059/96). These provisions set special rules that, confronted with the existence of the legal vacuum in MERCOSUR in the field of textiles, were entitled to be applied to intra-zone transactions (following the reasoning of the Argentine position).Footnote 117
The ad hoc tribunal analysed the legal context and objectives of MERCOSUR and rejected Argentina's arguments on the basis of Articles 1 and 5 of Annex IV of the Treaty of Asunción, which formulated a general prohibition on the application of safeguard measures to the intra-zone. According to the tribunal, this prohibition could be exempted only by a specific rule within the MERCOSUR system that legitimized the imposition of safeguard measures on textile products. Consequently, according to the tribunal, there was no such a ‘loophole’ in this matter. The tribunal stated:
The interpretation of the provisions of the MERCOSUR customs union should be made, unless there is express provision to the contrary, according to the object and purpose of economic integration; . . . As a general rule, it is possible to apply safeguard measures for the intra-MERCOSUR area if an explicit rule has authorized so. The tribunal finds no MERCOSUR rules that explicitly allow the application of safeguard measures on intra-zone imports of textile products.Footnote 118
4.3. The so-called ‘principle of autonomy’ of MERCOSUR law
In the dispute resolution process of MERCOSUR, the ad hoc arbitration tribunals affirmed the ‘principle of autonomy of the integration law’.Footnote 119 That is, the application of the principles and provisions of international law in the context of integration should be possible only in an alternative or subsidiary way, never directly and first.Footnote 120
This principle of autonomy has been quoted and confirmed in various awards, such as the VI Award (2002) of the ad hoc arbitration tribunal in the dispute between Uruguay and Brazil on ‘Prohibition of Import of Remoulded Tires from Uruguay applied by Brazil’Footnote 121 and the V Award (2001) of the ad hoc arbitration tribunal in the dispute brought by Uruguay against Argentina on ‘Market Access Restrictions on Bicycles Imported from Uruguay’.Footnote 122
The Permanent Review Tribunal, in its first award dealing with the review presented by Uruguay against the arbitration award in the dispute on ‘remoulded tyres’,Footnote 123 reinforced the idea of autonomy:
This Tribunal is aware that the principles and provisions of international law are referred to in the Protocol of Olivos as one of legal sources to be used (Art. 34), but they must always be subsidiarily applied (or, in the best-case scenario, in a complementary way), only when they are pertinent to the case, never in a direct and primary way, in accordance with the law of integration and from a community law perspective, as a legal order MERCOSUR aspires to develop [sic]. Overall, MERCOSUR law has and must have sufficient autonomy from other fields of law . . . otherwise the institutional and legal development of MERCOSUR would be undermined.Footnote 124
As a result of the application of the principle of autonomy, in different awards, certain principles or norms forming part of international law were declared inapplicable – for instance, in the first award rendered by the Permanent Review Tribunal and in the VIII Arbitration Award issued by the ad hoc tribunal within the framework of MERCOSUR law, both of which are examined in the following sub-subsections.
4.3.1. The principle of estoppel has a limited application in MERCOSUR law
The Permanent Review Tribunal, in its I Award (mentioned above), held that the principle of estoppel does not belong to primary or secondary MERCOSUR legislation. Consequently, it cannot be considered as a specific principle of MERCOSUR law and its application is only complementary. Furthermore, following the argument provided by the tribunal, when applicable, the estoppel should be tailored to the object and purpose of MERCOSUR ‘community law’. Hence, the tribunal concluded that the application of the principle was not required in that case.Footnote 125
Since this is a peculiar interpretation of estoppel, it must be stated that the Central American Court of Justice has recognized the full applicability of the principle of estoppel in the context of the Central American integration process.Footnote 126
4.3.2. Retortion measures are not applicable within the MERCOSUR legal framework
In the VIII Arbitration Award (2002), the ad hoc arbitration tribunal limited the adoption of the exceptio non adimpleti contractus among member states following the doctrine established in the European Union.Footnote 127 This limitation also applied to MERCOSUR member states in their reciprocal relations. The arbitration tribunal tried to provide examples of different situations and sectors of international law in which retortion measures were not legitimate. Indeed, the arbitration tribunal began by saying:
In certain multilateral treaties, such as those which deal with human rights, peace and disarmament, there are severe restrictions on the application of the exception, and, in the field of European integration, the institution is not applicable. In MERCOSUR, the nature of the founding treaty suggests the need for a restrictive interpretation.Footnote 128
The tribunal concluded:
The application of measures of retortion in an integration process is meaningless. For this reason, there are dispute resolution mechanisms that allow the legal implementation of appropriate sanctions. In the framework of a regional integration agreement the aim of which is to become a common market, the ‘exceptio non adimpleti contractus’ has more limited scope than . . . in public international law.Footnote 129
4.4. Environmental issues and human rights concerns as exceptions to the free-trade principleFootnote 130
In recent years, MERCOSUR Arbitration Tribunals and the Permanent Review Tribunal have analysed environmental matters and human rights issues invoked by member states before them in different disputes. In these cases, the arbitration tribunals solved the disputes from a traditional international economic-law perspective: the applicable principle was free trade, and environmental and human rights issues were considered as exceptions to this principle.
As for the environmental exception, the object of various awards on the prohibition of the importation of remoulded tyres was if the restrictions to free trade were admissible with the objective of protecting the environment and the right to health.Footnote 131
In Award 1/2005, dealing with the review of the award on ‘Prohibition on Remoulded Tires Imports from Uruguay’ (referred to previously), the Permanent Review Tribunal made it clear that:
[I]t is wrong to suggest that there are two principles in conflict or confrontation in the process of integration, as seems to be stated at paragraph 55 of the award under appeal. There is only one principle (free trade) to which some exceptions can be applied (such as, for example, the above-mentioned environmental exception). Furthermore, this tribunal does not agree with the arguments put forward at paragraph 55 (final part) of the award under appeal, according to which the tribunal should apply the application of the above-mentioned confronted principles (free trade and environmental protection) by defining the precedence of one over the other in accordance with the precepts of international law. For this tribunal, the relevant issue is the possibility of invoking the environmental exception under MERCOSUR rules and not under international law.Footnote 132
Award 1/2008 of the Permanent Review Tribunal on ‘Divergence on the Implementation of the Award 1/05’ (Uruguay v. Argentina) also concerned the relationship between the environment and trade. In the proceedings, Argentina argued that Argentine law (prohibiting the importation of remoulded tyres) ‘was not only consistent with MERCOSUR law, but also meant a step forward to achieve the welfare of the peoples of the region through the protection of the environment and health’.Footnote 133 The law at issue was presented as a preventive measure aimed at preventing potential harm originating from the use of remoulded tyres.Footnote 134
On the occasion of this award, the Permanent Review TribunalFootnote 135 recalled that ‘[t]here are not two principles in conflict or confrontation . . .. There is only one principle (free trade), and some exceptions to the principle’.Footnote 136 Nevertheless, the Permanent Review Tribunal determined that the exception based upon environmental issues was not applicable in that case, for the following reasons:
Argentina has submitted a long list and reasons related to problems from an environmental point of view arguing that ‘the importation of re-manufactured tyres (including remoulded ones) to Argentina, increases the threats for life and health of people, animals and plants.’ . . .. However, the view already expressed by the Award 1/2005 is not compatible with this position . . .. Adopting a rigid criterion on certain points raised by Argentina would allow the prohibition of importing a large amount of materials whose toxicity, compared with that of tyres, could be much higher, such as batteries, cell phones, MP3 players, cans, aluminium, telgopor [sic], plastics in general and, in particular, certain products such as polyethylene terephthalate (PET), just to mention some items which are frequent objects of commercial transactions; many of which . . . constitute to a greater or lesser extent . . . potential environmental damage.Footnote 137
The tribunal underlined that the environmental exceptions to free trade should be further discussed in the future by relevant bodies of MERCOSUR.
With regard to human rights issues, the XII Arbitration Award (2006) addressed the conflict between free trade and free movement of persons and goods and the protection of human rights. This award settled the dispute between Uruguay and Argentina concerning the interruption of international bridges between both countries provoked by demonstrations against the installation of pulp mills on the Uruguay River.Footnote 138
In its arguments, Uruguay mentioned that the free movement of persons is a principle to be respected and, consequently, the roadblocks ignored existing commitments between the parties under international legal instruments.Footnote 139 The obstruction of the free movement of passengers and goods affected transport operations under the agreement, not only between MERCOSUR member states, but also with regard to movements to or from third countries. In its claim, Uruguay also invoked WTO rules, such as those relating to treatment of most-favoured nation, freedom of movement, and access to markets, among others, which were affected by the measures already mentioned. Uruguay alleged that Argentina failed to adopt effective measures to stop this situation.
Argentina argued the existence of a conflict between the rights of free expression of thought and assembly, on the one hand, and the right to free movement of goods, on the other hand. In the proceedings, Argentina emphasized that international human rights standards had constitutional status in Argentina, while the integration rules were of legal status. In Argentina's view, human rights concerns may justify a restriction on the exercise of rights under a regional integration agreement. To support its argument, Argentina mentioned the precedent of the Schmidberger case in which the European Court of Justice gave priority to the right to free expression over the right to free movement of goods, affected by the closure of an international motorway by demonstrations.Footnote 140
In its reasoning, the ad hoc arbitration tribunal examined the conflict between the two rights, stating that:
In multilateral agreements on trade facilitation, with special reference to the WTO . . . the harmonization of the rights in conflict without considering the commitments made under such agreements is extremely difficult or impossible, because they relied on principles and values accepted by the international community. It is inevitable that the solution of safeguarding interests and values of higher rank should be chosen, because ‘legal rights’ are more valuable objects and could be classified hierarchically in a preferred position. However, the Tribunal considers that . . . this solution would allow some degree of restriction but not the absolute cancellation of the value which is considered minor, in the interests of another to be judged more important.Footnote 141
The arbitration tribunal underlined that international treaties on human rights with constitutional hierarchy recognize the relativity of individual rights, before the rights of other individuals, and the possibility of limiting them on the ground of general welfare. The tribunal quoted the main human rights instruments that would be applicable as follows: the preamble of the American Declaration of the Rights and Duties of Man (Bogotá, 1948), Article XXVIII; Article 29.2 of the Universal Declaration of Human Rights; and Article 32.2 of the American Convention on Human Rights (Pact of San José de Costa Rica).
On analysing the Argentinean position in light of these provisions, the tribunal stated:
It can be concluded that, even if according to Argentine law, the right to protest is absolute . . . it must be limited when it affects the rights of others as expressed in art. 29 paragraph 2 of the 1948 Universal Declaration of Human Rights, art. 32 paragraph 2 of the 1969 American Convention on Human Rights and, in particular, regarding freedom of expression, art. 19 paragraphs 2 and 3 and art. 21 of the United Nations International Covenant on Civil and Political Rights of 19 December 1966, which are an integral part of the Constitution of Argentina since 1994, having been incorporated into art. 75 paragraph 22.Footnote 142
Furthermore, the tribunal detailed:
The roadblocks . . . led to a restriction on the free movement within the integrated economic space. This could be tolerated provided that the necessary precautions were taken to minimize the inconvenience caused by them and that the demonstrations did not interfere or cause serious damage . . .. In this case, . . . Argentine internal courts delayed the adoption of a decision for more than three months . . . with serious consequences for both countries.Footnote 143
Accordingly, the tribunal considered that Argentina had not respected its obligation to limit demonstrations by adopting appropriate measures. Notwithstanding this, the tribunal left open the possibility that, in the future, human rights protection could represent a limit with respect to proportionality. For the very first time, a tribunal in the framework of MERCOSUR referred to human rights standards as a limit to free trade and free movement of people and goods.
4.5. MERCOSUR law and other legal systems of regional integration, namely EU law
It is without doubt that EU and European Community law serves as a model for most economic integration processes in Latin America.Footnote 144 In the case of MERCOSUR, legal scholars often compare European Community law with the MERCOSUR legal system, in the attempt to use the EU model for the transformation of an inter-governmental law into community law. This approach is also reflected in the various awards rendered up to the present.
Moreover, in the current system, the Permanent Review Tribunal undertakes within its main functions to guarantee the uniform interpretation of MERCOSUR law, which enhances the possibility to refer to previous awards and judgments adopted in other integration processes. Thus, the OP introduced a sort of preliminary ruling procedure. As seen above, the tribunal may issue advisory opinions (preliminary rulings) following a request by authorized bodies of MERCOSUR or member states jointly and also when requested by member states’ supreme courts.Footnote 145 Consequently, the tribunal can come to a decision on the scope of a MERCOSUR norm when there is a possible conflict with another domestic or MERCOSUR norm. However, in any case, the decision adopted is not binding on either MERCOSUR bodies, member states, or national courts.
The Permanent Review Tribunal had the occasion to clarify the interpretation of MERCOSUR law by exercising such advisory competence. In the first preliminary ruling issued in 2007, the tribunal specified the nature and the function of the preliminary ruling system, stressing that this is a mechanism to enhance co-operation between national and community judges, and aims to provide a uniform interpretation of community norms.Footnote 146 On that occasion, the tribunal also recalled that, unlike in the MERCOSUR system, both the EU and the Andean Community preliminary rulings are binding. In addressing the request, the tribunal examined carefully the prevalence of MERCOSUR law over domestic legislation and public and private international-law norms. Advisory Opinion 1/2008 emphasized the primacy of MERCOSUR law, recalling that MERCOSUR norms, once internalized in accordance with Articles 38–42 of the OPP and the constitutions of member states, take prevalence over domestic legislation.Footnote 147
Another interesting development is that the Permanent Review Tribunal has started to cite other economic integration law, such as Andean Community law. In particular, during the controversial ‘Prohibition of the Importation of Remoulded Tires from Uruguay’, the Permanent Review Tribunal adopted a clear position with regard to the violation of MERCOSUR law, laying down a minimum legal basis in order to assess the compliance of member states with the law of MERCOSUR. In its considerations, the tribunal analysed the compliance of member states with MERCOSUR law, emphasizing that, within the TJCA (Tribunal Andino de Justicia – Andean Court of Justice) and the European Court of Justice (ECJ), there have been several cases in which, once the infringement was demanded before the Community Court, the defendant member state had struck down the infringing rule and adopted a new rule aimed at responding to the challenge by the other member state.Footnote 148 Therefore, the tribunal has chosen the thesis about continued non-compliance.
5. Concluding remarks: what lies ahead for MERCOSUR law?
MERCOSUR law shows the evolution of a ‘step-by-step’ integration process. Over the first ten years, the law emanating from MERCOSUR adjusted to the goals of economic integration in a pragmatic way. During the past decade, after the relaunching of the process, MERCOSUR law made significant progress towards a more reliable and comprehensive legal system.
Despite the improvements, in the author's view, up to the present, MERCOSUR law represents an international law scheme in which the features of community law do not yet apply. On the one hand, MERCOSUR law-making relies on member states, and MERCOSUR norms require national implementation, which is easier in constitutional systems in which international law prevails. On the other hand, the dispute settlement system has evident limitations in guaranteeing compliance at a regional level. In fact, most attempts to compare the law of MERCOSUR to that of the European Union overlook their different natures, institutional arrangements, and procedures of adoption and enforcement of norms. However, this approach does not exclude the possibility of developing an authentic community law in MERCOSUR, as argued below.
As for the relationships between international law and MERCOSUR law, in the analysis of the various cases addressed in this article, one can see in some of them points of contact with international law, whereas in other cases one can perceive a different solution chosen in the framework of the specific rules applicable in MERCOSUR.
In light of the various arbitration awards rendered, the following reflections can be drawn up on the future of MERCOSUR law.
5.1. The nature of the MERCOSUR legal system
At this stage of the integration process, MERCOSUR law is neither ‘community law’ nor a completely autonomous legal system. Yet, one can refer to MERCOSUR law using the expression ‘law of integration’, which is, in other words, a special legal order within the broader framework of international law, but still rather dependent upon it. Could, then, MERCOSUR law be considered as a law ‘in between’ international law and community law? This seems to be the approach chosen by some arbitration tribunals: MERCOSUR law is still inter-governmental but can be seen as community law at a very early stage. Developments in recent years provide some hope that, in the future, MERCOSUR law will acquire the features of community law. In this regard, the contribution of the Permanent Review Tribunal to the emergence of an authentic MERCOSUR community law could be decisive.
5.2. Access of private parties to arbitration and legitimacy of MERCOSUR law
One of the main critiques of the current dispute settlement system regards the lack of direct resort to arbitration on the part of individuals and legal persons. Judicial protection and guarantees of judicial review at a regional level are of significant importance for transactions within the integrated space. The persistence of the obstacles to the access of private parties to MERCOSUR dispute settlement jeopardizes the legitimacy of MERCOSUR law. The improvements in the system should take into account granting them direct procedural jus standi. Direct access to the arbitration procedure and the availability of appellate review would confer more legitimacy to MERCOSUR integration law.
5.3. The autonomy of MERCOSUR law
The proclaimed ‘autonomy’ of MERCOSUR law (as arising from arbitration awards) has a specific connotation: MERCOSUR law is a specialized international legal order that is applicable (under certain circumstances) before international economic law or general international law. It is not feasible to speak of the principle of autonomy in the way it is understood and applied in the EU context. Nevertheless, this peculiar interpretation of the ad hoc tribunals has contributed to the idea of MERCOSUR law as a legal order that ‘claims’ to be independent, with clear implications for a further transformation into community law.
5.4. The evolution of MERCOSUR ‘case law’
The more or less random composition of each arbitration tribunal and, sometimes, the inconsistency of the ‘doctrine’ being applied in the different cases undermine legal certainty in MERCOSUR law. As a matter of interpretation, the absence of a permanent court of justice stricto sensu makes things even more difficult for MERCOSUR law to develop into a community-law scheme. However, at the moment, an independent, non-political, judicial body might be difficult to incorporate. There is also a concern related to the absence of a mandatory precedent system. MERCOSUR member states do not adhere to the doctrine of stare decisis, nor does the arbitration system encourage the establishment of binding precedents. Nevertheless, the dispute settlement mechanism (with its clear limitations) has contributed to some extent to foster a common interpretation of MERCOSUR law that has been followed by successive arbitration tribunals. Over this ‘case-by-case’ ruling, there are some common elements that can be put together to distinguish the main features of MERCOSUR law, setting up the basis for a uniform interpretation.
Appendix*
Table 1. MERCOSUR – arbitration awards – Brasilia Protocol – ad hoc arbitration tribunals
*These tables were elaborated on by the author on the basis of the information provided by SICE/OAS (www.sice.oas.org/dispute/mercosur) and official MERCOSUR sources: www.tprmercosur.org/es/sol_contr_opiniones.htm and www.mercosur.int. Information as of 11 May 2012.
*The first arbitrator is the president, the second arbitrator is appointed by the claimant, and the third arbitrator is appointed by the respondent.
Table 2. MERCOSUR – arbitration awards – Olivos Protocol – ad hoc arbitration tribunals
*Since this arbitration award was overturned, commentators often refer to the subsequent award as XI.
