Judicial Administration Structure for IP Disputes: Andean Community

National judicial procedure (in the member state)

In accordance with the essential complement principle, judicial proceedings relating to intellectual property conducted by the competent national judicial bodies of each member state are regulated by the national legislation of the Member State. Arbitrators and arbitration courts qualify as competent judicial bodies.

Common system for intellectual property in the Andean Community

The Andean Subreagional Integration Agreement Cartagena Agreement, provides for a common system for trademarks, patents, licenses and royalties in the subregion of the Andean Community that comprises Colombia, Ecuador, Peru, and the Plurinational State of Bolivia.^[1]

The common system is implemented by means of the following community regulations:

Decision 291 of the Commission of the Cartagena Agreement, establishing the Common Regime on the Treatment of Foreign Capital and Trademarks, Patents, Licenses and Royalties, issued on March 21, 1991, published in the Cartagena Agreement Official Gazette No. 80 of April 4, 1991.

Decision 345 of the Commission of the Cartagena Agreement, establishing the Common Regime on the Protection of the Rights of Breeders of New Plant Varieties, issued on October 21, 1993, published in the Cartagena Agreement Official Gazette No. 142 of October 29, 1993.

Decision 351 of the Commission of the Cartagena Agreement, establishing the Common Regime on Copyright and Neighboring Rights, issued on December 17, 1993, published in the Cartagena Agreement Official Gazette No. 145 of December 21, 1993.

Decision 391 of the Commission of the Cartagena Agreement, establishing the Common Regime on Access to Genetic Resources, issued on July 2, 1996, published in the Cartagena Agreement Official Gazette No. 213 of July 17, 1996.

Decision 486 of the Commission of the Andean Community, establishing the Common Regime on Industrial Property, issued on September 14, 2000, published in the Cartagena Agreement Official Gazette No. 600 of September 19, 2000.

Decision 632 of the Commission of the Andean Community, on the clarification of the second paragraph of Article 266 of Decision No. 486.

Decision 689 of the Commission of the Andean Community, on the adequacy of certain articles of Decision No. 486 (Common Regime on Industrial Property, to allow the development and deepening of industrial property rights through the internal regulations of the Member States).

Judgment delivered by the Court of Justice of the Andean Community (TJCA) in Case No. 14-AN-2001, published in the Cartagena Agreement Official Gazette No. 773 of March 18, 2002, declaring Article 1 of Decision No. 486 establishing the common regime on industrial property to be partially void.

The TJCA is the judicial body of the Andean Community. It is supranational, communal and permanent in nature, and has competence to implement Andean law and ensure its uniform interpretation and application across Member States. It settles disputes regarding the application of such law that may arise between member states, between community bodies, between member states and community bodies, and between the latter and natural or legal persons whose rights or legitimate interests have been affected.

The competence of the TJCA is outlined in Chapter III of the Treaty Creating the Court of Justice. Spheres of competence in which issues relating to intellectual property could arise are as follows:

1. Action for Annulment: In accordance with Article 17 of the Treaty Creating the Court of Justice and Article 101 of its Statute, the TJCA has competence to check the legality and validity of Decisions of the Andean Council of Foreign Ministers and the Commission of the Andean Community, and of Resolutions of the General Secretariat of the Andean Community (SGCA), that may have been issued in violation of regulations constituting the legal system of the Andean Community, including through abuse of power.

An action for annulment can be initiated by Member States, the Andean Council of Foreign Ministers, the Commission of the Andean Community, the SGCA, or natural or legal persons who have a legitimate interest in bringing such action or whose rights are affected by the regulation at issue.

It is evident that community regulations that can be the subject of an action of annulment can also regulate issues relating to intellectual property.

2. Infringement Proceedings: In accordance with Article 23 of the Treaty Creating the Court of Justice and Article 107 of its Statute, the TJCA is the guardian of the commitments and obligations of Member States recognized in the Cartagena Agreement and in other regulations constituting the legal system of the Andean Community, including those that regulate issues relating to intellectual property. In this connection, the SGCA, acting on its own initiative or at the request of a Member State, or of a natural or legal person whose right or interest is affected, can initiate the preliminary phase of infringement proceedings. This phase is concluded by the issuing of a reasoned opinion by the SGCA, which constitutes a non-binding technical opinion on a Member State’s status of compliance with its commitments and obligations.

Once the preliminary phase has been concluded, the trial phase of the infringement proceedings can, where appropriate, be initiated before the TJCA. The TJCA will render a binding decision on whether a Member State is in a state of noncompliance with Andean Community regulations. If a Member State is declared to have been in noncompliance, that Member State will be obliged to implement the resulting necessary measures within 90 days.

3. Preliminary Ruling: A preliminary ruling is the procedural mechanism by which the content and scope of the regulations constituting the legal system of the Andean Community are explained. It is oriented towards Member State judicial institutions with the aim of ensuring the uniform interpretation and application of the legal system in Member States.

In issuing a preliminary ruling, the TJCA is limited to determining the scope and content of community law and must not interfere in the content and scope of national legislation.

Competent judicial and administrative bodies request the TJCA, at their own initiative or that of a third party, to interpret the regulations of the Andean Community in cases where those regulations must be applied or are being challenged in an internal trial, in accordance with Article 33 of the Treaty Creating the Court of Justice and Articles 122, 123, 124 and 125 of the Statute.

There are two forms of preliminary rulings: mandatory^[2] and optional^[3]. Mandatory preliminary ruling is requested by judicial bodies of exclusive and final instance^[4]. Accordingly, where a judgment or arbitration award cannot be challenged, the judicial body must suspend proceedings and request an interpretation from the TJCA of the Andean Community regulation that is the subject of the dispute.

Optional preliminary ruling is requested by quasi-judicial administrative bodies, provided that the administrative act or decision that it concerns can be challenged under internal law^[5]. In this case, the administrative judge is not required to request a preliminary ruling in order to issue a decision.

During both, mandatory and optional consultations, the judge must include the preliminary ruling issued by the TJCA in their judgment, arbitration award or administrative decision.

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^[1] Cartagena Agreement, Article 55.
^[2] Article 123 of the TJCA Statute.
^[3] Article 122 of the TJCA Statute.
^[4] Second paragraph Article 33 of the Treaty Creating the Court of Justice.
^[5] Article 33 of the Treaty Creating the Court of Justice.