The Andean Tribunal of Justice and its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community

61 Pages Posted: 1 Feb 2009 Last revised: 2 Sep 2015

See all articles by Laurence Helfer

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Karen J. Alter

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

Date Written: January 29, 2009

Abstract

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system.

We find that the relationship between the ATJ and national judges differs significantly from the relationship between the ECJ and its domestic judicial colleagues. As in Europe, references from national judges account for the vast majority of cases on the ATJ's docket. But unlike in Europe, national courts are mostly passive intermediaries. Our coding reveals that national judges do not pose provocative questions to the ATJ, and that there is significant cross-national variation in referral patterns. Interviews corroborate what the data suggests: national judges have a circumscribed understanding of what Andean law requires of them. More than 90% of references involve technical issues of Andean intellectual property (IP) law and the registration decisions of domestic IP administrative agencies. National judges have embraced the ATJ's active role in IP disputes because of the support of these agencies, which seek the Tribunal's guidance to interpret vague areas of Andean law. Outside the area of IP, national judges are far more reluctant, contributing to the limited penetration of Andean law into national legal orders. We conclude by comparing the role of national judges in Europe to their role in the Andean context, extracting broader insights about the role of national judges in building international rules of law.

Keywords: Andean Community, Andean Tribunal, International Courts, International Tribunals, European Court of Justice, European Union, European Community, Intellectual Property, Regional Trade, Regional Integration, International Relations, Administrative State, Administrative Agencies, Judicial Politics

Suggested Citation

Helfer, Laurence and Alter, Karen J., The Andean Tribunal of Justice and its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community (January 29, 2009). N.Y.U Journal of International Law and Politics, Vol. 41, p. 871, 2009; Vanderbilt Law and Economics Research Paper No. 09-06; Vanderbilt Public Law Research Paper No. 09-01; Northwestern Public Law Research Paper No. 09-05; Northwestern Law & Econ Research Paper No. 09-04. Available at SSRN: https://ssrn.com/abstract=1334733 or http://dx.doi.org/10.2139/ssrn.1334733

Laurence Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Karen J. Alter

Northwestern University - Department of Political Science ( email )

601 University Place
Evanston, IL 60208
United States

University of Copenhagen, Faculty of Law - iCourts Center of Excellence ( email )

Karen Blixens Plads 16
Copenhagen, DK-2300
Denmark

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