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On institutions of credit and insurance companies. Foreigners are those who do not possess the qualifications set forth in Article. He shall be heard in his own defense, either personally or by counsel, or by both, as he may desire.
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Another important difference is the participation of individuals in the dispute settlement mechanism. There is no possibility under the PO to activate the dispute settlement mechanism directly, an option which exists in both the EU and CAN. The mechanisms in place in these integration systems allow individuals to submit their disputes before a permanent court of justice without the prior intervention of the respective Member State.
The procedure foresees that the complainants must provide elements of evidence confirming the authenticity of the breach as well as the existence or the threat of damage, so as to allow the complaint to be formally admitted by the National Section and assessed by the GMC and the group of experts summoned for this purpose.
The dispute settlement mechanism of Mercosur consists essentially of the following stages: When a dispute arises, the first step is to launch bilateral negotiations. Every ad hoc panel is made up of three members. Every Member State involved in the dispute shall designate one panel member respectively, while the third panel member, who chairs the panel and who may not be a national of either of the Member States, shall be designated by common agreement.
In the event that no agreement should be found on the choice of the chair, the PO provides that the Secretariat shall designate it on the basis of a list of candidates drawn up for this purpose. The Member States have the right to designate their representatives and legal counsel. As the name suggests, the ad hoc panel is a tribunal expressly created for the resolution of the dispute in question.
The panel must therefore limit itself to rule on the subject matter of the dispute, as determined by the written submissions and the pleadings of the parties. The parties must submit their factual and legal observations in support of their respective views. Article 17 PO provides that any of the Member States involved in the dispute may appeal the panel decision before the TPR within 15 days of the notification of the decision to the parties. The TPR is composed of five referees, designated by each Member State, and a replacing referee, who shall be elected by unanimous vote.
The referees must be permanently available. The TPR shall adopt a ruling within 30 days with a possibility of an extension for another 15 days. The TPR has the power to confirm, modify or revoke the legal reasoning and the decisions adopted by the ad hoc panel. The TPR's arbitral award will be final, overriding the ad hoc panel's decision. It is feasible to skip certain stages of the procedure foreseen by the dispute settlement mechanism, as Article 23 PO provides for the possibility for the parties to submit the dispute immediately and in last instance to the TPR, however, only once the direct negotiations have ended.
In this case, the TPR has the same competence as an ad hoc panel, with the consequence that its arbitral awards have the effect of res iudicata. They cannot be subject to revision. The importance of Article 23 PO gives the Member States the option of saving the time usually consumed by the regular dispute settlement mechanism created by the PB and refined by the PO. The regular procedure can last up to days including the possible extension of deadlines from the initiation of the direct negotiations.
The frequent use of the option laid down in Article 23 PO by the Member States involved might eventually favour turning the TPR into a permanent court of justice. However, for the time being, the Member States have shied away from taking this next, crucial step. The arbitral awards —of both the ad hoc panels and the TPR— must be adopted by a majority, contain an account of reasons, and be signed by the chair and the other referees.
The referees must keep their deliberation and the voting confidential. The parties to the dispute must comply with the arbitral award within the time limits specified. In the event that the Member State party to the dispute should not comply with the arbitral award, the harmed party is allowed to apply countermeasures in order to avoid any damages.
Where proof has been adduced of a situation likely to cause grave and irreparable damages, the parties may request interim measures.
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Before the entry into force of the PO, interim measures could be ordered until the ad hoc panel would adopt its arbitral award. Nowadays, the effect of interim measures cease when the TPR has adopted it arbitral award.
The mechanism is also applicable in circumstances in which it is necessary to verify the validity a specific legal act or provision of integration law. Secondary Mercosur legislation allows the supreme courts to extend this competence to other supreme judicial bodies of the Member States, 8 a competence that has not yet been used. Conversely, there is no legal provision in Mercosur law allowing lower national courts to refer questions directly to the TPR without the intermediary of the supreme courts.
In other words, lower national courts must submit their questions on interpretation of Mercosur law to their supreme court before a referral to the TPR is possible at all.
This is explicitly prescribed by secondary Mercosur legislation, 9 which requires the adoption of national implementing measures, a task that has been entrusted not to the parliaments but to the supreme courts. Request for referrals must originate in judicial procedures before national courts. The manner in which the implementing national legislation has been drafted in all Member States allows the conclusion that the interpretation of the Mercosur law in question must be deemed relevant for the resolution of the dispute.
Given the fact that only the supreme courts are allowed to refer questions directly to the TPR, while the role of lower national courts is rather limited to request a referral and to pre-formulate the questions, there is no distinction between facultative and obligatory referrals as is the case in the legal systems of the EU 11 and the CAN. The TPR has a period of 65 days to respond to the questions referred. The decision must state any dissenting votes. It is important to note that the opinion is neither binding nor obligatory.
Once the decision has been adopted, the procedure comes to an end, although Mercosur law foresees two scenarios, which go beyond the TPR's scope of competence: That mechanism is characterised inter alia by: The initial belief in the advantages of such a model has given way to serious doubts by legal scholars as to whether the lack of a robust institutional framework will manage to contribute to the further development of the integration process.
Lack of legal certainty is detrimental to the survival of an integration system in the long run. In order to depoliticise disputes and to strengthen Mercosur's legal system for the benefit of the citizens, the idea of creating a permanent court of justice of Mercosur was proposed by various legal scholars.
A major concern was the need to ensure the uniform interpretation and application of Mercosur law. It was feared that leaving it to the national courts to interpret Mercosur law in light of their own legal traditions and using their methodologies would lead to a situation, in which Mercosur law would not have the same validity or effect in each Member State.
It was also argued that the arbitration model appeared to be more appropriate for an association or a cooperation agreement rather than for an ambitious process, the objective of which is to achieve integration at legal, commercial, economic, social, and cultural level.
Indeed, Article 1 TA provides that the Member States agree to establish a common market, implying the free movement of goods, services and production factors, the creation of a customs union and the adoption of a common trade policy. It also implies the coordination of macro-economic and sectorial policies in the areas of foreign trade, agriculture, industrial development, taxation, monetary policy and capitals, services, customs, transport, and communication, as well as others to be agreed upon, apart from guaranteeing adequate conditions of competition in the Member States.
Mercosur law was expected to gradually evolve into community law and the arbitration model was considered inadequate, once Mercosur would have moved on from its foundational phase. The very nature of ad hoc panels was regarded as an obstacle to ensuring a uniform case law. The lack of established rules of procedure was deemed to undermine legal certainty, as it could not be ruled out that the ad hoc panels might rule differently in similar disputes.
Furthermore, it was argued that even though a mechanism foreseeing negotiation and arbitration might solve individual conflicts, it would not guarantee a uniformity of general resolution criteria applicable to all cases.