The Andean Tribunal of Justice

Reality and Perspectives

Prof. Dr. Luis José Diez-Canseco Núñez, MCL President Tribunal of Justice of the Andean Community The Andean Tribunal of Justice

I. Introduction II. Legal Framework III. Competences and Statistics IV. Problems and Self-reengineering V. Final remarks Introduction Andean Community

Member States (since 1969): • Peru • Colombia • Ecuador • Bolivia

Former Member States: • Chile (1969-1976) • Venezuela (1973-2006) Andean Community

A large population: 103 million in 2009

And a wide territory: 3.781.914 km²

Headquarters: Lima, Peru Andean Community

TOTAL REAL GROSS DOMESTIC PRODUCT (GDP) (Anual variation of constant values) COUNTRIES 2007 2008 2009 2010 2011 2012 ANDEAN COMMUNITY 6,6 5,9 1,6 5,5 6,4 5,3 BOLIVIA 4,6 6,1 3,4 4,1 5,2 5,2 COLOMBIA 6,9 3,5 1,7 4,0 6,6 4,0 ECUADOR 2,2 6,4 0,6 2,8 7,4 5,0 PERU 8,99,80,98,86,96,3 Source: General Secretariat of the Andean Community (SGCAN). Andean Community

INTRA-COMMUNITY EXPORTS (FOB) (Millions of US dollars) COUNTRIES 2007 2008 2009 2010 2011 2012 ANDEAN COMMUNITY 5.998 7.004 5.774 7.810 9.261 10.349 BOLIVIA 395 479 535 636 714 1.194 COLOMBIA 2.148 2.456 2.116 3.063 3.428 3.741 ECUADOR 2.243 2.491 1.586 2.127 2.770 3.066 PERU 1.214 1.579 1.538 1.984 2.350 2.348 Source: General Secretariat of the Andean Community (SGCAN). Andean Community

(Millions of US dollars)

Source: General Secretariat of the Andean Community. Integration processes and Custom unions CAN – EFTA – EU

• The first Cooperation Agreement EC- Andean Pact was signed in 1983 and covered issues of interest to both blocks through economic and trade cooperation • Cooperation Agreement EU-Andean Community, signed in 1993 • Agreement on Politic Dialogue and Cooperation, signed in December 2003 • General preferences system: 2005 • Colombia-EFTA: 2009 • Peru-EFTA: 2010 (Third exports destination) • Agreement between Peru & Colombia with the EU: 2012 • Agreement between Ecuador & EU: 2014 Legal Framework Legal Framework

Primary Law:

1. Andean Subregional Integration Agreement: The Cartagena Agreement (Adopted on May 26 1969. Amended by the Protocols of Trujillo in 1996, Cochabamba in 1996 and Sucre in 1997) 2. Treaty Creating the Court of Justice (Adopted in 1979. Amended by the Protocol of Cochabamba in 1996) Legal Framework

Secondary Law:

1.Andean Tribunal of Justice Regulations: Decision 500 2.Other Decisions and Regulations 3.Jurisprudence The Andean Tribunal of Justice

• Four members Court • President • No Advocate General • Each judge has his/her own cabinet: Cabinet system (1 assistant lawyer + 1 intern) • Publication of the Magistrat Rapporteur’s name • Judicial dialogue and academic citations • Language: Spanish President

• Appointed for 1 year • Rotating position • Honorary and administrative functions: Pares inter pares Judicial dialogue

The ATJ has cited:

• European Court of Justice (ECJ) • World Intellectual Property Organization (WIPO) • World Trade Organization • United Nations Educational, Scientific and Cultural Organization (UNESCO) • European Patent Office (EPO) • Office for Harmonization in the Internal Market (OHIM) • Constitutional Courts of Member States Over 90% of its caseload: IP

1. The Common Regime on Intellectual Property: Decision 486 2. The Common Regime on Copyright and Related Rights: Decision 351 3. The Common Regime on Plant Breeders’ Rights Protection: Decision 345 4. The Common Regime on Access to Genetic Resources: Decision 391 Competences and Statistics Competences of the ATJ

 Preliminary rulings: 3047  Actions for infringement: 115  Proceedings for annulment: 57  Proceedings for failure to act: 7  Community labour cases: 18  Arbitration (never used) 0 ------TOTAL: 3.244* * From 1984 to June 2015 Caseload

3,54% (Preliminary rulings) 0,21%

93,93% (Actions for infringement) (Proceedings for annulment)

0,55% (Proceedings for failure to act)

(Community labour cases) 1,76%

0,22% + 0,55%

* Source: ATJ (from 1984 to June 2015) Before the Protocol of Cochabamba (1984-1998)

* Source: ATJ (Andean Tribunal of Justice) Before the Protocol of Cochabamba (1984-1998)

184

(Preliminary rulings)

(Actions for infringement)

(Proceedings for annulment) 19 16

* Source: ATJ (Andean Tribunal of Justice) After the Protocol of Cochabamba (1999-2014)

* Until May 2015 the ATJ received 280 Preliminary ruling petitions “It is not widely known that the Andean Tribunal of Justice is the world’s third most active international court, having issued over fourteen hundred rulings to date. The ATJ is less active than the European Court of Human Rights and the European Court of Justice, but busier than the more intensively studied International Court of Justice, the institutions of the WTO dispute settlement system, and other international courts.

Although activity is not the same thing as effectiveness, the ATJ’s caseload suggests that the Andean legal system provides a tool for litigants to protect their rights and interests —particularly for disputes relating to intellectual property (IP)— a subject that dominates more than 90 percent of the ATJ’s docket”.

- HELFER, L.; ALTER, K. y GUERZOVICH, F., “Islands of effective international adjudication: Constructing an intellectual property rule of law in the Andean Community”, The American Journal of International Law, vol. 103:1, 2009. Problems and Self-reengeneering Problems (Criticism)

Political appointment of judges General unfamiliarity of the Andean legal system Cut and paste of previous decisions No “Act Clair Doctrine” (“Acte claire”) Lack of powers to impose fines Lack of initiative, lack of innovativeness Budgetary constraints Perspectives

 Judicial Advocacy  Cooperation Agreements  Self-reengineering Self-reengineering

 Reporting judge  Change in working methods with decision making process  Tied vote problem overcome  Dissenting opinions (eventually, its publication will be allowed)  Access to Justice in Preliminary Ruling procedure (broad interpretation of “national judge” concept in order to allow national offices to present PR)  Extrajudicial activities (forums, conferences, interviews…)  Intense dialogue with the General Secretariat Positive Agenda

1. Andean consumer protection rules 2. Competition rules: repression of unfair competition (advertising) and protection of free competition 3. Harmonization of registration procedures on appellations of origin 4. Protection of “Country Brands” Final Remarks Final Remarks

 We are a small court, which doesn’t mean we are unimportant  Judicial Advocacy  Repositioning / Self-reengineering  Guarantor of integration Prof. Dr. Luis José Diez-Canseco Núñez, MCL

President Tribunal of Justice of the Andean Community

[email protected]