Stakeholders Praise Andean Community Tribunal, Propose Improvements

Published: June 16, 2021

Judges, administrative authorities, and INTA members from the Andean region shared their views on the Andean Community justice system and its rulings at a recent event co-hosted by INTA.

The speakers from the four Andean Community states—Bolivia, Colombia, Ecuador, and Peru—praised the Court of Justice of the Andean Tribunal (TJCA), which generates and enforces legal and judicial integration for the Andean Community. But their presentations also made clear that after almost 40 years of operation, the system of Judicial Interpretation—a mechanism of international judicial cooperation—may need modifications to remain effective and relevant going forward.

The event, entitled “A Vision of the Mechanism of the Prejudicial Interpretation from the Perspective of the Member States of the Andean Community,” took place virtually on April 29 and 30 and attracted more than 170 attendees.

This year’s TJCA President, Gustavo Garcia Brito, opened the event, while TJCA Magistrate Hugo Gomez Apac provided the closing summary.

The first day of the event featured presentations on Bolivia and Colombia, and representatives from these countries confirmed the fundamental importance of the Community interpretation of decisions and resolutions, and they suggested that the interpretation could be perfected.

Rafael Rodrigo Soto Frías, director of Legal Affairs at the Bolivian Intellectual Property Office, said he considers the Judicial Interpretation to be a mechanism connecting the Community judiciary and the national judges in the pursuit of rulings that align with Community Law. He emphasized that all of the decisions made by the National Intellectual Property Service (SENAPI) are based on Community Rulings. Dr. Soto Frías voiced proposals for the improvement of the Community judicial system, such as the creation of binding precedent and the optimization of the referral process from national courts to the TJCA.

María José Lamus, deputy superintendent for Industrial Property of Colombia, agreed with Dr. Soto Frías on the need for binding precedents of TJCA rulings. She highlighted the importance of these cases by pointing out that a precedential question about nontraditional marks led the Colombian Trademark Office to change the requirements for the application of these marks.

Since around 40 percent of the Colombian Council of State’s cases have dealt with industrial property matters, the Judicial Interpretations have been relied upon consistently by the judges of the court, said Judge Hernando Sánchez, chair of the First Commission of the Colombian Council of State.

Julio Roberto Piza Rodríguez, justice of the Administrative Jurisdiction Commission of the Colombian Council of State, reported on a case that showed the effects and importance of the Andean rulings. He reminded the audience that these precedential questions have a great impact on taxation and digital trade.

Luis Enrique Vargas, assistant attorney at the Supreme Court of Bolivia, pointed out that the Judicial Interpretations contribute to the general process of integration, specifically judicial harmonization among Andean Community member states. They also convey judicial stability to investors and facilitate the creation and expansion of business activity in the Andean Community.

In sharing the perspective of Community attorneys who are the users of the system, INTA Unfair Competition Committee member Ximena Castellanos (CASTELLANOS & CO., Colombia) commended the Andean Court for the 5,600 rulings issued to date, which have enriched intellectual property (IP) law practice in the Community countries.

She also highlighted a contrast. The Judicial Interpretations are intended to interpret Community Law provisions without providing answers to a specific set of circumstances of a concrete case, she said. But there is a need for precedential guiding cases that may be applied across cases to increase predictability of national decisions and reduce the TJCA’s workload.

On the second day, representatives of organizations in Peru and Ecuador gave their perspectives.

Ronald Gastello, technical secretary of the Distinctive Signs Commission of the Peruvian IP Office (INDECOPI), highlighted the advantages of INDECOPI’s authority to request Judicial Interpretations from the TJCA. The Trademark Offices hold a quasi-judicial function on the topic of industrial property. In his opinion, improvements could be made by issuing rulings more quickly and creating a digital compilation of the most frequently decided referrals.

Santiago Cevallos Mena, director general of the Ecuadorian IP Office, explained how the relationship between TJCA magistrates and the national judges is characterized by subordination. This, he said, is because the TJCA’s rulings are binding on the national judges, and because of the coordination in the subsequent application of the TJCA decision to the specific case and the national judge. For Dr. Cevallos Mena, the TJCA Interpretations are tools to facilitate a process of integration.

Citing a case before his court, Ricardo Vinatea Medina, judge at the Superior Court of Justice of Lima, Peru, made the point that the TJCA Interpretation does not decide any specific cases and thereby does not alter or inhibit the independence and faculty of the national judges.

Bayardo Espinosa Brito, justice of the Administrative District Court of Quito, Ecuador, praised the power of harmonization of the Judicial Interpretation for the Community. But at the same time, he suggested that it may be time to consider whether the process needs modification to make it more effective and efficient. He also pointed out that the Tribunal requires the staff and economic and logistic resources to continue its excellent service.

INTA Copyright Committee member Juan Carlos Durand (Durand Abogados, Peru) confirmed that professionals appreciate the excellence of the TJCA rulings of the last 40 years, but also agreed with other speakers that the process should be simplified. There have been innumerable precedential questions in IP cases and professionals do not have access to a database to search and review any of them, he said. In addition, he suggested, the TJCA should develop a catalogue of uniform criteria aligned with the Judicial Interpretations, which might be applied to similar cases and used to create best practices for the national trademark offices.

INTA’s Latin America and the Caribbean Representative Office, based in Santiago, Chile, represents the Association’s members across the region. Working in collaboration with staff at INTA’s headquarters in New York City, the Latin America and the Caribbean Representative Office leads the Association’s policy, membership, marketing, and communications initiatives throughout this region. To learn more about INTA’s activities in Latin America and the Caribbean, please contact INTA Chief Representative Officer of the Latin America and the Caribbean Office José Luis Londoño.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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