The Andean Community is an international organization composed of Peru, Colombia, Bolivia, and Ecuador, whose primary objective is regional integration. To achieve this, it has various bodies and institutions that form what is known as the Andean Integration System.
Intellectual property has always been a part of the Andean Community since its inception. In fact, it is currently one of the most highly developed areas within the Andean legal system.
The legal framework for intellectual property within the Andean system is governed by what are called Decisions, which are adopted by the Commission of the Andean Community. These Decisions are binding and supranational in nature for Peru, Colombia, Ecuador, and Bolivia. The Decisions currently governing intellectual property are as follows: Decision 486, which regulates the common regime on industrial property; Decision 351, which regulates the regime on copyright and related rights; and Decision 345, which provides protection for plant breeders’ rights.
Additionally, there are other important regimes, such as the common regime on access to genetic resources, governed by Decision 391; the common regime on country brands, regulated under Decision 876; and the common regime on the treatment of foreign capital, trademarks, patents, licenses, and royalties, governed by Decision 291.
Andean countries are obligated to directly apply Andean regulations, particularly Decisions, from the date of their publication or the date specified in the norm. This is known as the principle of direct application.
The non-compliance action is a mechanism designed to monitor compliance with the obligations established within the Andean legal framework by member states. In this regard, the Andean Community Court of Justice has jurisdiction to hear such actions. However, before initiating proceedings before the Court, a pre-litigation process is conducted, during which the General Secretariat of the Andean Community reviews the matter and provides the Andean country with an opportunity to correct its behavior.
What is a preliminary interpretation and the clarified act?
Prejudicial interpretation is a procedural mechanism that ensures the uniform and consistent application of Andean law. The Andean Community Court of Justice has jurisdiction to issue such interpretations of Andean regulations. National judges are obligated to request prejudicial interpretation from the Andean Court if they are acting as single-instance or last-instance judges and are resolving a dispute involving Andean law. However, under the concept of clarified act, a national judge is not required to request prejudicial interpretation if the Andean Court has already interpreted the relevant Andean law in connection with a prior domestic case. Additionally, if the judge is not a single or last-instance authority, the request for interpretation is optional. It is important to note that any judge who requests a prejudicial interpretation is required to incorporate the Andean Court’s interpretation into their ruling.
Finally, it is important to highlight that the definition of a national judge is broad and includes administrative authorities and even arbitrators performing a judicial function, i.e., resolving disputes between private parties.
For more information, contact Alejandro Castro (alejandrocastro@unionandina.com)