The Challenges of the Judicial Dialogue in Mercosur

Abstract

Since its inception, Mercosur has opted for a non-coercive and diplomatic dispute settlement system. State Parties still oscillate between institutionalization based on the European model and the maintenance of an arbitral system for the settlement of disputes. This choice is linked to the possibility and limits of judicial dialogue in Mercosur. In this context, this article aims to analyse the existing horizontal ‘dialogue’ between Mercosur judges and international judges, on the one hand, and the vertical dialogue between Mercosur judges and national judges, on the other hand. In terms of the horizontal ‘dialogue’, the objective is to evaluate the use of precedents and references to other international, regional, and sub-regional Tribunals. As for the supposed vertical ‘dialogue’ between Mercosur judges and national judges, this article analyses the interaction with national courts through the cooperation mechanism established by advisory opinions (which is similar to preliminary rulings under the auspices of the eu), as well as via judicial ‘dialogue’ with representatives of national supreme courts of Mercosur State Parties. The importance of the advisory opinion mechanism is well known, as is the preliminary ruling mechanism in the European Union. Similar to the eu, several important principles of Mercosur law have been laid down by advisory opinions.