Summertime Reading : Andean Court

R. Helfer, K. Alter and M. Florencia Guerzovich, " Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community", American Journal of International Law 103 p.1-46 (2009)

https://scholarship.law.duke.edu/faculty_scholarship/2072/


Abstract
The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP).

The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties actively participate in regional litigation and conform their behavior to Andean IP rules.  In the vast seas surrounding this island, by contrast, Andean rules remain riddled with exceptions, under-enforced, and often circumvented by domestic actors.

" Few scholars and practitioners are aware that the Andean Tribunal of Justice is one of the most active international courts in a world increasingly populated by international courts and tribunals. This fact alone is striking. The ATJ interprets the laws and regulations of the Andean Community—a marginally successful regional integration pact created by five small developing nations on the mountainous western edge of South America. More unusual still are the cases on the ATJ’s docket, which is dominated by disputes relating to trademarks, patents, and other IP rights. Within the Andean Community, intellectual property is principally regulated at the regional rather than the national level." 

" We were surprised by the large number of IP-related cases that national courts refer to the Andean Tribunal. Even more striking, however, was our finding that the ATJ has contributed to building an effective rule of law for intellectual property in a region of relatively weak national legal systems. We measured effectiveness along three different dimensions. First, the Andean legal system and Andean litigation have created economically valuable and enforceable private property rights. Second, ATJ rulings have dramatically improved the decision-making procedures of domestic IP administrative agencies, bolstering their autonomy, increasing their fidelity to the rule of law, and balancing property rights against the public interest. Third, the ATJ has provided a mechanism for private parties, Andean officials, and domestic IP agencies to counter individual member states that seek to circumvent the region’s distinctive approach to IP protection."