Interview: Justice García Brito on the Unique Andean Legal System

Dr. Gustavo García Brito (Bolivia)

A unique regional legal system, the Court of Justice of the Andean Community (Tribunal de Justicia de la Comunidad Andina (TJCA)) settles disputes that arise under Community law between the four Latin American countries which are members of the Andean Community. In the 52 years of the Community’s existence, the common intellectual property (IP) regime has proven to be a positive example of cohesion and integration between public and private, national and community actors.

Andean Community Court of Justice Magistrate Gustavo García Brito serves as president of the TJCA. He is also a professor at Simón Bolívar Andean University, San Francisco de Quito University, both in Ecuador, and University of Nariño, in Colombia. Before assuming the magistracy, on January 24, 2020, he previously served as Secretary of the Court of Justice of the Andean Community and as Assistant Lawyer of the Legal Service of the General Secretariat of the Andean Community. He has also served as a consultant to the National Electoral Court of Bolivia and a lawyer in the Departmental Electoral Court of Chuquisaca, as Assistant Attorney of the Supreme Court of Justice of the Nation in Bolivia, and practiced law in several law firms in Bolivia, Brazil, and Ecuador.

In this interview with the INTA Bulletin, Justice García Brito explains in depth the supranational and community character of the Andean legal system, trends in recent court cases, and how the inaugural Andean Community Moot Court Competition, co-hosted by TJCA and INTA, will benefit the Latin American legal community.

Justice García Brito, please describe, from your perspective, the Andean Community’s IP landscape.
Intangible assets, regulated and protected by IP law, constitute an essential part of the patrimony of national and transnational businesses that operate in the expanded market of the Andean Community.

Micro, small, and medium-sized enterprises (MSMEs) represent 90 percent of businesses across the Andean Community’s member countries: Bolivia, Colombia, Ecuador, and Peru. MSMEs, together with large corporations that actively participate in the Latin American market and invest a large amount of time and resources to develop and position their brands, protect their innovation efforts in all fields of technology through a patent or exploit the patrimonial rights of the author. The latter is especially prevalent in those fields that are part of broader public strategies, such as the promotion of the Orange economy (the creative economy), or of the private initiatives that are developed in the virtual environment, such as video games or streaming platforms.

Historically, most IP rights holders in the Andean subregion have been foreign. However, in recent years, the number of national IP rights holders have increased considerably in Colombia and Peru, and to a lesser extent, in Bolivia and Ecuador.

In addition, more and more Andean nationals and companies are obtaining recognition and protection of their IP rights both in the subregion and in other countries.

Thus, the sum of the following three elements has generated the consolidation of a true integrated space in the legal, economic, and social spheres, which revolves around IP: (i) a common legal regime, strengthened by the jurisprudential heritage of the Andean Court; (ii) public initiatives aimed at promoting innovation and development, as well as guaranteeing consumer rights; and (iii) the interest of the private sector to protect its intangible assets.

In the 52 years of existence of the Andean Community, the common IP regime has proven to be a positive example of cohesion and integration between public and private, national and community actors. It provides irrefutable proof that it is possible to work together to achieve a shared objective and thus contribute to the purpose of the Cartagena Agreement, which is to seek the persistent improvement of the standard of living of the subregion inhabitants.

There are clear examples of the effectiveness of cooperation among countries, and public and private actions, in short, that generate more and improved integration in the Andean Community. Recent examples include the approval of Decision 876, which establishes the Common Regime on Country Branding; the implementation of the Can TMview system, a technological tool that will allow users to access information on trademarks registered in the subregion; and the work of the Andean Intellectual Property Committee to update Decision 486 on industrial property.

What sets the Andean legal system apart from others around the world?
The Andean Community is a supranational community of law, as it has a binding and autonomous legal system, which is immediately and directly applicable in its four member countries. The Andean provisions prevail over the internal norms and other international commitments adopted by the member countries. Regarding IP, the Andean Community has a Common Regime that is materialized in four norms—called Decisions—issued by the now-called Commission of the Andean Community: 486 on Industrial Property, 351 on Copyright and Related Rights, 345 on Rights of Plant Breeders, and 391 on Access to Genetic Resources.

For these legal norms to be interpreted and applied in a uniform manner in the four countries, the national administrative and judicial authorities act in close collaboration with the Andean Court, which establishes the interpretive legal criteria applicable in the subregion. That is, in response to the queries made by the national authorities, the Andean Court issues prejudicial interpretations of mandatory compliance. Through the prejudicial interpretations, the Andean Court defines the object, content, and scope of the Andean regulations (Decisions), and as supreme interpreter of these regulations (Decisions), provides guidance regarding the legal institutions recognized in these Decisions. National authorities resolve internal disputes by applying the legal criteria of these preliminary rulings.

Thus, there are two main differences with other legal systems around the world: (i) the recognition, protection, and procedural mechanisms related to the observance of IP rights, among others, are provided for in binding community regulations applicable in four countries; and (ii) guaranteeing the effectiveness of these regulations requires collaboration between the Andean Court and the national, administrative, and judicial authorities.

Since its creation, the Andean Court has issued more than 5,600 rulings, of which approximately 5,000 are related to IP. What trends is the court observing in terms of the type and volume of IP cases it hears?
Intellectual property cases constitute approximately 90 percent of all cases before the Andean Court. This trend has remained the same since the start of the court’s activities. However, the matters on which it has had the opportunity to pronounce itself have expanded in the last five years.

In relation to the consulting bodies, it is worth noting that, since 2014, apart from the traditional queries made by the judicial bodies, a significant number of optional preliminary inquiries have been received from the national administrative authorities in matters of intellectual property. This is both in the field of trademark registration applications and in proceedings initiated for the alleged infringement of copyright and industrial property rights, as well as in actions for unfair competition.

This new collaboration dynamic has been increasing over time and allows the Andean Law to be applied in a uniform manner from the first moment it is invoked at the national headquarters, thus reducing the discretion of the administration and generating a scenario of greater predictability and legal security.

What recent court decisions do you see as having the most impact on enforcement and protection of IP rights?
It is important to remember that the court’s interpretive legal criteria—for example, related to the grounds for the non-registrability of signs or those applicable in trademark registration opposition procedures, or in actions for infringement of rights—set the tone in the four member countries of the Andean Community regarding the observance and protection of intellectual property rights.

On the other hand, this year, the court had the opportunity to rule on a complex issue: compulsory licenses for pharmaceutical patents (Process 144-IP-2019). The ruling clearly defined the interpretive legal criteria that the national authorities must observe when, in application of Article 65 of Decision 486, they are going to establish a temporary and exceptional limitation to the rights of the owner of a patent, for reasons of public interest.

Likewise, in the field of copyright (Process 122-IP-2020), the court established an important distinction between the retransmission of an audiovisual work protected by copyright, and the retransmission of broadcasts from broadcasting organizations protected for related rights: on the basis of the principle of independence of rights, each mode of exploitation is independent of the others and requires the mandatory consent of the rights holders and the payment of the corresponding remuneration.

Similarly, the court heard cases covering: (i) the legal criteria that national authorities must apply to determine whether there is an infringement of a color mark delimited by a shape (Process 619-IP-2019); (ii) the filing of a precautionary measure and the interruption of the limitation period of the action for infringement of industrial property rights (Process 490-IP-2019); and (iii) how to prove legitimate interest when filing an Andean opposition (Process 76-IP-2020), among many others.

It is exciting for the Court of Justice of the Andean Community and INTA to be co-hosting the Andean Community Moot Court Competition, which is being conducted in Spanish and is now underway. How will the Competition benefit the Latin American legal community? In addition, what advice do you have for students participating in the teams in the Competition and considering a career in IP law?
The Moot Court Competition will open an important academic space for study, debate, and research for law students and recent graduates in the region and other countries. They will be able to demonstrate their knowledge of Andean Community law and IP, their skills in the design of legal strategies, their capacity for written and oral arguments, and their practical skills in solving complex legal problems that involve two or more jurisdictions.

We believe this exercise will allow participants to develop specialized professional capacities, both in the substantive aspects of Andean Community law and IP, as well as in the procedural mechanisms of the Andean dispute settlement system. In this sense, on the one hand, it seeks to promote the analysis of these matters in the region, and, on the other, to contribute to the training of high-level human resources with a view toward making them protagonists in the development and strengthening of the Latin American legal community.

In terms of advice for participating students, personal and professional training is a constant process, a continuous journey and a permanent search for purpose. Throughout life, we ​​find diverse paths that pose questions and challenges, and to a large extent, the results we obtain are a consequence of the decisions we make.

For those students who accept this challenge, to prepare and actively participate in the first Andean Community Moot Court Competition, their participation, added to their effort and dedication, will give them the opportunity to demonstrate their capabilities before an important group of experts, including members of INTA, postgraduate professors of the Simón Bolívar Andean University, and officials of the General Secretariat of the Andean Community. The two finalist teams will be able to present their arguments before the Plenary of the Court of Justice of the Andean Community. I am sure that this experience will enrich their personal and professional training process.

What is your vision for the Andean Court? How will it be different 10 years from now?
In the coming years, the subregion will face important challenges to overcome the negative effects of the COVID-19 pandemic. Thus, the countries will be focused on reducing poverty levels and inequalities of socioeconomic status, gender, ethnic-racial conditions, and migratory status, among others. They face the economic crisis anchored in low levels of growth, trade, and investment, with high rates of public debt; and an environmental crisis characterized by the effects of climate change, deforestation, and natural disasters.

In this scenario, characterized by uncertainty and insecurity, regional integration appears once again as the ideal way to achieve the convergence of public policies and business strategies toward common objectives based on unrestricted respect for the democratic values ​​and the rule of law.

The role of the Court of Justice of the Andean Community, holder of the jurisdictional function in the subregion, is essential to consolidate the objectives and purpose of the integration process; ensure compliance with the commitments and obligations assumed by the countries, bodies, and institutions of the Andean Integration System; and guarantee legal security and the rights of the member countries, businesses, and the Andean citizens.

Consequently, it is essential to strengthen the work of the court, provide it with greater economic, technological, and human resources; modernize its administrative structure; and optimize its operation. The vision for the coming years is to ensure the sustainability and economic independence of the institution; the reduction of procedural deadlines in the processing of cases through, for example, the implementation of the precedent of mandatory observance; the implementation of virtual platforms that make it possible to achieve interoperability with the national bodies that send preliminary inquiries; the availability to users of a renewed and modern virtual jurisprudence search system; the institutionalization of academic processes of continuous formation in the matter of Community law; and the consolidation of the court as a center for the resolution of disputes through arbitration, as provided for in the Treaty of Creation of the Andean Court of Justice.

Editor’s Note: The inaugural Andean Community Moot Court Competition successfully concluded on December 2, 2021. 12 teams—comprising 43 students—from nine schools participated in the competition. Students from Universidad del Rosario de Colombia; Universidad de Los Andes, Colombia; and Universidad Nacional Mayor de San Marcos del Perú were named the winners in the competition’s four categories.

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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