International Tribunal Spotlight:
Court of Justice of the Andean Community
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The
Court of Justice of the Andean Community (Tribunal de Justicia
de la Comunidad Andina) is the judicial organ of the Andean
Community. The Andean Community is a community of four countries,
Bolivia, Colombia, Ecuador, and Peru, established to achieve
better economic integration for its members. It is a sub-regional
economic integration organization that seeks balanced and
effective regional economic development through the Andean
Integration System. The Court of Justice, one of the organs
of the Andean Integration System, is the supranational jurisdictional
body set up to adjudicate the application of Andean Community
law. Its jurisdiction extends to the territories of the
four member states.
The Court was created in 1979 as the Court of Justice of the Cartagena Agreement, which established the Andean Community in May, 1969. It was modeled after the Court of Justice of the European Community. The Trujillo Act of March, 1996 modified it into the Court of Justice of the Andean Community. The Cochabamba Protocol, known as the Protocol of Modification of the Treaty Establishing the Court of Justice of the Andean Community and signed on May 28, 1996, modified the statute of the Court. The Court, as it is today, officially came into force in August, 1999. Its permanent headquarters are in Quito, Ecuador.
The individuals who drafted the Treaty that created the Andean Community and subsequently the Court of Justice appreciated the importance of a judicial body to the effective implementation of Community law. The Preamble to the Treaty states “…the stability of the Agreement and the laws and obligations that derive from it should be safeguarded by a jurisdictional organ of the highest level, independent of the governments of the member states and of the other organs of the Agreement.”
The Court is comprised of four Judges, each of whom represents one of the member countries of the Andean Community. It is important to note however, that the judges are intended to do their work independently, without influence from their national governments. The judges are unanimously appointed by plenipotentiary representatives from the member states. Each member state submits a list of three candidates from which the judges are eventually chosen. Each judge is appointed for a six-year term and is only allowed one reelection. The current judges on the court are Dr. Jaime Villaroel Ferrer of Bolivia (President), Dr. Oswaldo Salgado Espinoza of Ecuador, Dr. Ricardo Vigil Toledo of Peru, and Dra. Leonor Perdomo Perdomo of Columbia.
The mission of the Court is threefold: (1) to ensure respect for Andean Community law and the legality of Community provisions; (2) to settle disputes that arise from Community law; and (3) to the interpret Community law in order to ensure uniform application. As a result, the Court is integral to the cohesion and functioning of the Andean Community.
The Court can exercise its jurisdiction by nullifying decisions of the Andean Community Commission, the policy-making body of the Andean Integration System, if it finds such decisions to conflict with Community law. The Court has the power to rule on a member state’s compliance with Community law if another member states brings a complaint before it. In addition, it has the power to deliver binding interpretations of Community law provisions as requested by national judges of the member states. The Court’s interpretation may address neither factual issues nor the scope of national law. If such an interpretation is requested and delivered, the national judge must adopt that interpretation in his/her ruling.
Other powers awarded to the Court include the capacity to hear labor disputes that may arise among the organs of the Andean Integration System. The judges on the court also have the power to settle disputes through arbitration. One of the most noteworthy aspects of the power of the Court is inscribed in Article 41 of the Court’s Treaty. It states, “In order to be carried out, the Court’s rulings and arbitration awards and the arbitration awards of the General Secretariat shall not require official approval or exequatur in any Member Country.” Thus, the decisions of the Court are self-executing and directly applicable under the national law of member states without further implementation.
After its creation in 1979, the Court was relatively inactive. However, the Trujillo Act and Cochabamba Protocol put new life into Court and it has been extensively used ever since. Most of the Court’s activity has dealt with intellectual property, specifically the interpretation of Decision 486 of 2000, which superseded Decision 344 of 1993 and is now the governing document for intellectual property in the Andean Community. The Court has “over 1000 rulings-- more than 85% of which involve intellectual property rights (IP) disputes.”i
Among the intellectual property issues addressed by the Court is trademark registration. The Court has ruled that upon registration of a trademark, the owner of the trademark is granted the right of exclusive use “"which includes the possibility of exercising positively and the power to prohibiting its utilisation without prior consent or authorisation (ius prohibendi).” The Court also declared that owners of trademarks registered in the Andean Community may do the following: use the trademark on the product and related contained for which it was granted; bring judicial action against illegal third party use of the trademark; commercialize the product identified by the trademark; and advertise the trademark while also preventing third parties from doing so.
The Court of Justice of the Andean Community is a highly
active international court. Of the total number of cases
the Court handles, “around 90% [are] related to prejudicial
interpretations and almost all of these concern the interpretation
of norms of the Common Regime of Industrial Property.”ii
As economic integration continues throughout the Andean
Community, the Court of Justice will undoubtedly become
more active as it faces the challenges that arise from the
development of a more complex intellectual property regime
in Latin America.
By: Christine E. White, Staff Reporter, International Judicial Monitor and Executive Assistant to the President, International Judicial Academy.
[i] Helfer, Laurence., Alter, Karen. and
Guerzovich, Maria. "Building an International Rule
of Law in Andean Countries: The Andean Court of Justice
and Disputes over Intellectual Property Protection" Paper
presented at the annual meeting of the ISA's 49th ANNUAL
CONVENTION, BRIDGING MULTIPLE DIVIDES, Hilton San Francisco,
SAN FRANCISCO, CA, USA, Mar 26, 2008 <Not Available>.
2009-02-03
<http://www.allacademic.com/meta/p251567_index.html>
[ii] Mantilla, Galo Pico. “The Intellectual
Property in the Andean Community Common Regime of Industrial
Intelelctual Property.” Quito – Ecuador, 12/04/07.
<http://www.internationaljudicialconference.org/PDF/15/Pico-Mantilla.pdf>
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