Transplanting international courts the law and politics of the Andean Tribunal of Justice 1st Edition by Karen Alter, Laurence Helfer 0199680787 9780199680788

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ISBN 10: 0199680787

ISBN 13: 9780199680788

Author: Karen J. Alter; Laurence R. Helfer

Transplanting International Courts provides a deep, systematic investigation of the most active and successful transplant of the European Court of Justice. The Andean Tribunal is effective by any plausible definition of the term, but only in the domain of intellectual property law. Alter and Helfer explain how the Andean Tribunal established its legal authority within and beyond this intellectual property island, and how Andean judges have navigated moments of both transnational political consensus and political contestation over the goals and objectives of regional economic integration. By letting member states set the pace and scope of Andean integration, by condemning unequivocal violations of Andean rules, and by allowing for the coexistence of national legislation and supranational authority, the Tribunal has retained its fidelity to Andean law while building relationships with nationally-based administrative agencies, lawyers, and judges. Yet the Tribunal’s circumspect and formalist approach means that, unlike in Europe, Community law is not an engine of integration. The Tribunal’s strategy has also limited its influence within the Andean legal system. Transplanting International Courts also revists the authors’ path-breaking scholarship on the effectiveness of international adjudication. Alter and Helfer argue that the European Court of Justice benefitted in underappreciated ways from the support of jurist advocacy movements that are absent or poorly organized in the Andes and elsewhere in the world. The Andean Tribunal’s longevity despite these and other challenges offers guidance for international courts in other developing country contexts. Moreover, given that the Andean Community has weathered member state withdrawals and threats of exit, major economic and political crises, and the retrenchment of core policies such as the common external tariff, the Andean experience offers timely and important lessons for Europe’s international courts.

Table of contents:

I. Supranational Legal Transplants

1. Lessons from the Andean Tribunal of Justice: Thirty Years as a Legal Transplant

Comparing Staggered Twenty-Five-Year Periods of International Adjudication: The ECJ (1958–83) and the ATJ (1984–2007)

Lessons Learned from Studying the Andean Tribunal

A Roadmap of the Book

2. Transplanting the European Court of Justice to the Andes

Transplanting, Emulating, or Appropriating: The Diffusion of Supranational Legal Institutions

Copying the ECJ: Creating the Andean Tribunal of Justice

Adapting the ECJ Model

Conclusion: Supranational Transplants—Lessons from the Andean Tribunal of Justice

II. Law And Politics In The Andean Tribunal Of Justice

3. The Andean Tribunal of Justice and its Interlocutors: Understanding Litigation Patterns in the Andean Community

The Legal and Institutional Framework of the Andean Preliminary Ruling Mechanism

An Overview of Preliminary Reference Patterns in the Andes

Activating and Sustaining the Links Between National Courts and the ATJ

Domestic Intellectual Property Agencies as the Engine of Andean Preliminary References

Analyzing the Outlier Cases: A Review of Non-Intellectual Property Preliminary Rulings and Noncompliance Judgments

Broader Implications of the Differences Between the Andean and European Legal Systems

Conclusion: Energizing the ATJ’s Interlocutors

4. The Divergent Jurisprudential Paths of the Andean Tribunal of Justice and the European Court of Justice

The ATJ Demands Less of Member States than Does the ECJ

Doctrinal Divergences Regarding the Relationship between Community Law and other International Law Obligations

Conclusion: Balancing Respect for Andean Law with Deference to National Actors

5. Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community

The Legal and Institutional Framework of the Andean Community

Constructing an Effective IP Rule of Law in the Andean Community

Why Andean Litigation Has Not Spilled Over to Other Issue Areas

Conclusion: The Stability of the IP Rule-of-Law Island in Challenging Political Times

6. The Judicialization of Andean Politics: Cigarettes, Alcohol, and Economic Hard Times

The Andean Legal System Provides Multiple Access Points for Litigants to Challenge Regional and National Laws and Policies

Tobacco and Alcohol Litigation: Forcing Open National and Regional Markets

The ATJ and Mega-Politics: National Autonomy during Economic Hard Times

Conclusion: A Judicial Strategy to Navigate Fraught Political Terrains

7. The Authority of the Andean Tribunal of Justice in a Time of Regional Political Crisis

The ATJ in its Global and Regional Context

The Persistence of the ATJ’s de facto Authority in the IP Island During the Crisis Period

The ATJ Beyond the IP Island During the Crisis Period: Changing de jure and de facto Authority

How the Andean Legal System Channels Responses to Systemic Noncompliance

Conclusion: Reflections on the Power of the ATJ in the Andean Legal System

III. Reconsidering International Adjudication In Europe In Light Of The Andean Experience

8. Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice

Theories of Expansionist Judicial Lawmaking by International Courts

Does Active Mean Activist? ECJ and ATJ Lawmaking Compared

Explaining the Divergent Supply of Expansionist Lawmaking

Conclusion: Expansive Judicial Lawmaking at the Interface of Regional Law and Politics

9. Jurist Advocacy Movements in Europe and the Andes

What is a Jurist Advocacy Movement?

Founding National Euro-law Associations: 1952–75

The Impact of Euro-Law Advocacy Movements on European Legal Integration

Legal Integration Without Jurist Advocacy Support: The Andean Tribunal of Justice

Conclusion: Do International Courts Need Jurist Advocacy Movements to Flourish?

10. Reconsidering What Makes International Courts Effective

Revisiting Toward a Theory of Effective Supranational Adjudication

Conclusion: Toward Effective International Adjudication in a Developing Country Context

Appendix

Citations to Decisions of the Andean Tribunal of Justice

Andean Community Interviews

European Community Interviews

Andean, European, and Multilateral Treaties and Secondary Legislation (Decisiones)

Statistical Studies of the Andean Tribunal

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Tags: Karen Alter, Laurence Helfer, international, Transplanting, Andean