New amendments to the rules on cooperation and jurisdictional assistance in the Mercosur

On October 4, 2004, Law No 25,934 was published in the Official Gazette.Law No 25,934 ratified the approval of the Amendment to the Protocol for Cooperation and Jurisdictional Assistance in Civil, Commercial, Labor and Administrative Matters between the States Parties of MERCOSUR (the “Amendment”), signed in Buenos Aires on July 5, 2002.

The purpose of the Amendment is to harmonize the Protocol for Cooperation and Jurisdictional Assistance in Civil, Commercial, Labor and Administrative Matters, signed by the States Parties of MERCOSUR in Las Leñas, Argentina, on June 27, 1992 (the “Las Leñas Protocol”) and the Agreement for the Cooperation and Jurisdictional Assistance in Civil, Commercial, Labor and Administrative Matters signed between the States Parties of MERCOSUR, the Republic of Chile and the Republic of Bolivia during the XVII Meeting of Ministries of Justice of the States Parties of MERCOSUR.

The Amendment is in two parts: The first part modifies sections 1; 3; 4; 5; 10; 14; 19 and 35 of the Las Leñas Protocol and the second part harmonizes some sections of the official Portuguese version with the Spanish version.

The Amendment commits the States Parties to grant mutual assistance and extend cooperation in civil, commercial, labor and administrative matters.It specifically provides that assistance in administrative matters will refer, in accordance with the laws of each State, to administrative proceedings where appeals are admitted before a court.

The Amendment also provides that nationals, citizens and permanent or habitual residents of one of the States Parties will be granted access to justice in order to defend their rights and interests under the same conditions as nationals, citizens and permanent or usual residents of the other State Party.This provision is also applicable to legal persons incorporated or authorized in accordance with the laws of any State Party.Furthermore, the Amendment provides that no warranty or deposit may be imposed to nationals, citizens, permanent or habitual residents of another State Party.

The Amendment extended the purpose of the rogatory letters that each State Party may send to the judicial authorities of another State Party in relation to civil, commercial, labor and administrative matters, to include warnings (apart from subpoenas), notifications, and the reception or obtaining of proof which were already provided for by the Las Leñas Protocol.

Rogatory letters may be sent by diplomatic or consular means, by the central authority or by the interested parties in accordance to local law.If the rogatory letter is sent by means of the central authority or by diplomatic or consular means, legalization will not be required.If the rogatory letter is sent by the interested parties, it must be legalized before the diplomatic or consular agents of the required state unless the requirement of legalization has already been abolished by the concerned states.

The rogatory letter and related documents must be written in the language of the requiring authority and translated to the language of the required authority.

The documentation that proves fulfilment of the requirement will be returned in accordance with the provisions of the Las Leñas Protocol.Whenever the rogatory letter has not been completely answered, the reasons for this omission must be informed to the requiring authority.

In addition, the Amendment provides that the recognition and execution of judgments and arbitral awards will not only be requested by means of rogatory letters and the central authority, but may also be requested by diplomatic or consular means in accordance with local laws.Notwithstanding, the interested party may directly request the recognition or execution of the judgment.In that case, the judgment must be legalized in accordance to the laws of the state where recognition or execution is requested, unless the requirement of legalization has been abolished or replaced by another procedure by the state that rendered the judgment and the state where recognition or execution is requested.

Finally, the Amendment provides that the Las Leñas Protocol will not limit the provisions of the treaties or agreements on the same matter that the States Parties signed or ratified before, as long as they provide for wider cooperation.

The Amendment will be in force 30 days after the deposit of the fourth instrument of ratification.The Government of the Republic of Paraguay is the depositary of the Amendment and its instruments of ratification. To date only Brazil has deposited the instrument of ratification.