The doctrine of clarifications in Ecuador: rules and procedures


DATE: 26-01-2024


Maria Cecilia Romoleroux


– WTR Daily

WTR Daily published an article written by our partner Maria Cecilia Romoleroux, in which she explains the rules and procedures related to the doctrine of clarifications in Ecuador. 

  • The doctrine of clarifications limits the cases in which last-instance judges are obliged to request a preliminary interpretation from the Andean Court of Justice

In her analysis, she points out that the Article 33 of the Treaty on the Creation of the Andean Community Court of Justice, Article 123 of the Statute of the Andean Community Court of Justice, and Resolution 14-2017 of the Supreme Court of Ecuador determine that last-instance judges must, in all cases where Andean communitarian rules are involved, forward the case to the Andean Court of Justice for a prejudicial interpretation of the content and scope of the Andean rules at issue.

She also explains that the Prejudicial Interpretations No 145-IP-2022, 261-IP-2022,350IP-2022 and 391-IP-2022 acknowledge that the doctrine of clarifications is fully compatible with such mandatory consultation, and conclude that there are cases in which the local court is not required to request a new interpretation if such rules have already been interpreted.

  • Mandatory consultation for a prejudicial interpretation is maintained in four cases

Maria Cecilia emphasizes that the mandatory consultation for a prejudicial interpretation is maintained in four cases, which may be summarized as follows:

  1. Where the Andean Court of Justice has not previously issued a prejudicial interpretation of the Andean rules at issue; this includes cases where the Andean rules have been modified and have not been subject to a preliminary interpretation;
  2. Where, although certain Andean rules have already been interpreted, others rules applicable to the case have not;
  3. If, although a preliminary ruling has previously been issued, the court considers that the Andean Court of Justice must clarify, expand or modify the legal interpretative criterion, explaining the reasons why it believes that the existing interpretation is not clear, the circumstances to be taken into account for the interpretation to be expanded, or the arguments that support the need to modify the jurisprudential line resolved through the preliminary ruling on this specific issue; and
  4. Where the court notices inevitable questions about hypothetical situations that, in the abstract, arise from, or are linked to, the corresponding Andean rules.
  • The Andean Court of Justice recently issued a Guidance Information Note in this respect, setting out a four-step process

Our partner outlines that, in order to determine the obligation to request a prejudicial interpretation, through Accord 06-2023 dated 7 July 2023, the Andean Court of Justice set forth a Guidance Information Note on the application of the legal criterion for the interpretation of the clarified act in requests for prejudicial interpretations, setting out a four-step process:

  • Step 1: Determine whether, in this specific case, an Andean rule must be applied or is in dispute, and whether it must request a prejudicial interpretation.
  • Step 2: Determine whether a clarified act exists. At this stage, make it clear that, according to the jurisprudence of the doctrine of clarifications, it is not necessary to request a new interpretation.
  • Step 3: Identify the prejudicial interpretation that contains the legal interpretative criterion for the corresponding rule.
  • Step 4: Determine whether the case at issue does not fall within the four circumstances in which a prejudicial interpretation is mandatory.

Finally, she points out that on its website, the Andean Court of Justice has developed two options to search for prejudicial interpretations that apply the doctrine of clarifications:

  1. rulings that recognise a clarified act; and
  2. an index of interpretative legal criteria that constitute a clarified act.

If you want to read the full article, click here.

This article first appeared in WTR Daily, part of World Trademark Review, in (January 2024). For further information, please go to