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Andean Community - Compatibility of Membership with International Agreements

As noted in the previous article, the Andean Tribunal has held that the obligations of the member states of the Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) override other treaties to which they are a party. In other cases before the tribunal, it has applied this principle to overrule the application in these countries of the most favored nation and national treatment provisions of TRIPs on the basis that Andean Community law specifically intended to give certain benefits to nationals of other Andean Community countries. In another ruling, the tribunal held that the Commission of the Andean Community did not have the power to include in Decision 486, the most recent decision dealing with intellectual property, a provision that member states could become parties to the Patent Cooperation Treaty (PCT). The ruling did not specifically hold that Colombia had breached its obligations to the Andean Community by joining PCT, but simply that Decision 486 should not have purported to endorse such an act, a decision on the propriety of which the tribunal apparently believes to be within its jurisdiction. There is, however, a case pending against Colombia for having joined PCT alleging that Decision 486 sets out the only way in which patents can be obtained in Andean Community countries and this does not include filing through the PCT.

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