1 The fact that they have an active role during the oral phase of the proceedings, as well as in the active phase, would seem to contradict opinions to the effect that private parties are excluded from proceedings once their complaint is admitted. Not only is this inconsistent with procedural rules, but it is not what has happened in cases in which the procedure has been activated. In the first case where a private complaint reached the specialist group stage (the Fenapel case between Uruguay and Argentina), the claimant company played an active role, with support from the Uruguayan delegation. The same happened in cases in which the dispute was resolved during the negotiation phase or in the CMG. This can also be justified by the fact that most of the time the claimants have a broader and deeper knowledge of the issue than any other person, for obvious reasons.Google Scholar

2 Nonetheless, we find in the Annex to the Protocol of Ouro Preto, Articles 3 and 4, the expression “shall decide,” and Article 6 clarifies this as follows: If there is consensus that the complaint is justified, the defendant state party must take the measures approved by the MERCOSUR Trade Commission or by the Common Market Group. In each case, the MERCOSUR Trade Commission or, subsequently, the Common Market Group shall set a reasonable time limit for implementation of those measures. At the end of that period, if the defendant state has not observed the provisions of the Decision reached, either by the MERCOSUR Trade Commission or by the Common Market Group, the plaintiff state may resort directly to the procedures envisaged in Chapter IV of the Protocol of Brasilia. Google Scholar

3 When the experts group rendered its views, it did so as conclusions or opinions which, as one professor said, have the power to turn the state into “a passive subject that can be demanded by any other state party to take corrective measures or to annul those challenged, and if the demand is not satisfied within a period of 15 days, [it becomes] a passive subject within the arbitration system in the case where this is initiated directly (i.e. without consultations and intervention by the Common Market Group) by the plaintiff state” Ricardo Alfonso García, “Tratado de Libre Comercio”, MERCOSUR y Comunidad Europea, Madrid, McGraw-Hill, 1997, p. 85.Google Scholar