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Thomas
highest number of non-compliance reports, with 133 notes. Following at a
close second place was Venezuela, with 126 cases. Colombia stood in third
place with 112 non-compliance reports. At the lowest end of the spectrum
was Bolivia which accrued the fewest non-compliance concerns.
The 3rd and 4th columns in Table 1 display the number of these noncompliance cases that became disputes in the ACJ. Ecuador followed by
Venezuela had the highest number of ACJ cases. Column 5 shows the
percentage of each member-state’s non-compliance rulings that became
ACJ disputes. It shows that while Venezuela received the second largest
number of non-compliance rulings, it allowed the highest percentage of
these cases to become ACJ disputes. In general it is not surprising that both
Venezuela and Ecuador account for the largest proportion of ACJ cases,
given that both countries received the highest number of non-compliance
rulings by the Secretariat. The Table also shows that while Peru had
fewer non-compliance rulings than Colombia, it allowed the same number of non-compliance cases to go before the ACJ. This translated into a
higher percentage of non-compliance rulings becoming ACJ disputes for
Peru than for Colombia. In sum, the information presented in this Table
leaves us with an interesting puzzle that this article seeks address: What
accounts for the variation in non-compliance rulings that become ACJ
cases?
It is important to note that while 83 non-compliance reports became
ACJ disputes, there are possibly other non-compliance cases that the Secretariat General did not refer to the ACJ for a variety of reasons. In some
instances the Secretariat may believe that it lacks sufficient information
to present a convincing case to the ACJ. In other cases, given limited investigative resources the Secretariat may forgo persecution of some cases
even where non-compliance persists. This is especially likely if the Secretariat suspects that the member-state is not likely to adhere to an unfavorable ruling issued by the ACJ. Beyond this the Secretariat may conclude
that despite the persistence of non-compliance by the member-state, the
issue is not overly significant and does not cause substantial economic
harm to other members-states to warrant an ACJ case. Thus, the data
collected represents the universe of potential ACJ cases referred by the
Secretariat, not the universe of all potential ACJ cases. Nevertheless, the
recorded data are still useful in evaluating the factors that cause a case
that has been reviewed by the Secretariat to escalate to a dispute before
the ACJ.
The Literature on Trade Disputes
Current empirical studies on the AC do not explain the rationale for disputes that occur between member-states and the Community. The few studies that have focused on the interaction between member-states and the ACJ, evaluate the AC’s effectiveness in
providing prejudicial reference rulings to national courts (Alter and
Helfer 2009; Alter, Helfer and Guerzovich 2009). These studies, while
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