1. Winston Anderson, PhD (Cantab)
Professor of International Law
&
Executive Director
Caribbean Law Institute Centre
University of the West Indies
Xth OAS Workshop on International Law
San Jose, Costa Rica
February 2-5, 2010

2. Greetings:
Professor E Nigel Harris, Vice-Chancellor of the University of the West Indies (UWI)
UWI as a venue for future OAS Workshop on International Law

3. Some Aspects of Caribbean Community Law:
Convergence of regional law and of private and public international law

4. Outline of presentation
Caribbean Community Law
CARICOM Law and Public International Law
CARICOM Law and Private International Law
Role of Caribbean Court of Justice

5. The Caribbean Community : foundation Agreements
The Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economy (CSME), adopted July 2001, entered into force January 2006
The Agreement Establishing the Caribbean Court of Justice (CCJ), adopted February 2001, entered into force March 2002

6. The Caribbean Community: founding members
Article 3 (1), Revised Treaty:
Antigua and Barbuda (pop. 85,000)
The Bahamas* (pop. 309,000)
Barbados (pop. 285,000)
Belize (pop. 308,000)
Dominica (pop. 73,000)
Grenada (pop. 90,000)
Guyana (pop. 772,000)
Jamaica (pop. 2,800,000)
Montserrat* (pop. 5,097)
St. Lucia (pop. 160,000)
St. Kitts and Nevis (pop. 40,000)
St. Vincent and the Grenadines (pop. 105,000)
Suriname** (pop. 481,267)
Trinidad and Tobago (pop. 1,230,000)

7. The Caribbean Community: accession by Caribbean states
Article 3 (2), Revised Treaty:
Haiti, (2003)*** (pop. 9,000,000)

8. Map of the Caribbean Community

9. The Caribbean Community: Sources of Law (1)
Treaties
Acts of Member States
Revised Treaty
Protocols to be adopted (Article 239)
Agreements creating CARICOM Institutions
CARICOM Regional Organization on Standards and Quality (CROSQ)
CARICOM Fisheries Mechanism (CRFM)
Centre for Administration Development (CARICAD)

10. The Caribbean Community: Sources of Law (2)
Legislative Acts of Organs of the Community
Political institutions created by the Treaties
Conference of Heads of Government
Council for Trade and Economic Development (COTED)
Council for Foreign and Community Relations (COFCOR)

11. The Caribbean Community: Sources of Law (3)
Judgments of the CCJ
Article 221
Judgment of the Court to constitute Stare Decisis
“Judgments of the Court shall constitute legally binding precedents for the parties in proceedings before the Court...”

12. Agreement Establishing the Caribbean Court of Justice, 2001
Regional Judicial and Legal Services Commission (RJLSC)
Professionals from legal, business, public service, NGOs
Appoints Judges, recommends President
CCJ Trust Fund (separate agreement)
US$100 million raised on capital market by CDB
Transferred to trustees
Repayment of CDB by Member States

13. Jurisdiction of the Caribbean Court of Justice (CCJ)
Appellate jurisdiction
Replace the Privy Council
Barbados (2005), Guyana (2005)
Suriname?
Original jurisdiction
Revised Treaty, Articles ; CCJ Agreement, Articles XI-XXIV
“Compulsory and exclusive jurisdiction”
Use of CCJ by non-CARICOM States

14. Public International Law and Caribbean Community Law
CARICOM Law most trade and trade-related disputes between CARICOM countries
Revised Treaty interpreted and applied by CCJ
Apply “applicable” rules of international law
Article 38 (1), Statute of ICJ
Revised Treaty
Regional custom/practice
No finding of non liquet
Fill blanks with general international law

15. CSM: RIGHTS OF COMMUNITY NATIONALS
Ten (10) categories of skilled workers entitled to move to seek employment:
Graduates (holders of degrees);
Media workers;
Sportspersons;
Artistes;
Musicians;
Teachers;
Nurses;
Holders of associate degrees;
Artisans with a Caribbean Vocational Qualification (CVQ);
Domestic helpers
Freedom to establish businesses
Freedom to provide services
Freedom to move capital

16. Rights of ALL persons in the community
Nationals have “core” rights (above)
All persons in the Community have certain rights “peripheral” or “ancillary” to the core rights
Free movement of goods of community origin
Protection of the common external tariff (CET)

17. Trinidad Cement Limited v. The Community [2009] CCJ 2 (OJ)
Public International Law Disputes Resolved In the Original Jurisdiction
Trinidad Cement Limited & TCL Guyana Inc. v. Republic of Guyana, [2009] CCJ 1 (OJ)
Trinidad Cement Limited v. The Community [2009] CCJ 2 (OJ)

18. Unresolved issues at BORDER of public international law and CARICOM law
CCJ’s “Compulsory” and “exclusive” jurisdiction
Revised Treaty arrangements
Conference, Competition Commission, (Chap. 9)
Trinidad Cement Limited et al v. Guyana [2009] CCJ
World Trade Organization (WTO)
Mexico-Soft Drinks case, (US, Canada v Mexico), WTO, 24th March 2006
European Partnership Agreements (EPA)

19. MATTERS AT BORDER OF PUBLIC INTERNATIONAL AND CARICOM LAW
Issues falling within the scope of the Revised Treaty
Governed by regional law
Compulsory and exclusive jurisdiction of CCJ
Law of the Sea
Preamble (access to collective resources)
Articles 58 (natural resource management); 60 (fisheries management and development); 141 (special status of Caribbean Sea)
Caribbean Regional Fisheries Mechanism (CRFM)
Barbados/Trinidad and Tobago, (2006) PCIA under Annex VII, LOSC 1982
Guyana-Suriname, (2007) Tribunal under Annex VII, LOSC 1982

20. Issues continuing to be governed by rules of public international law?
Law of Sea
Labor disputes between staff and CARICOM Institutions (Doreen Johnson v CARICAD, [2009] OJ 3
Human rights
Unfinished Agenda: Revised Treaty, Article 239:
Electronic commerce
Government procurement
Treatment of goods produced in free zones
Free circulation of goods in the CSME
Contingent rights

21. A special Case: Bilateral free trade agreements
CARICOM-Venezuela (1992)
CARICOM-Columbia (1994)
CARICOM-Dominican Republic (1998)
CARICOM-Cuba (2000)
CARICOM-Costa Rica (2004)
CARICOM in discussion with Canada (2009)
CARICOM in discussions with MERCUSOR and with SICA

22. CARICOM / COSTA RICA, RTA, 2004
CARICOM - Costa Rica Free Trade Agreement
Signed March 2004.
Free trade or preferential access for a wide range of products
Sensitive products excluded
95% of tariffs are to be phased out when the agreement takes full effect.
A limited number of products will continue to attract duty.

23. Bilateral free trade agreements
Specialized legal rules/self-contained
CARICOM is contracting party
Consistency with CARICOM Principles
Less Developed Countries (LDC)
Ratification in accordance with constitutional principles
Potential role of CCJ

24. Caribbean community law and private international law
Sources of private international law
Common law
Legislation
Constitution

25. Sources of private international law cont’d
Relevance of Public International Law:
Dualism
Common law could recognize International law as “custom”
Revere Copper v. Overseas Private Investment Corporation (OPIC), 24 August 1978; 8 December 1978; 56 I.L.R.258

27. CENTRAL CONCEPTS IN PRIVATE INTERNATIONAL LAW
Choice of law
Party autonomy in commercial transactions: Robinson v Bland (1760)
Domicile in family law matters: Udny v Udny (1869)
Choice of courts
Presence (Maharanee of Baroda [1972])
Extended jurisdiction (Ord. 11; CPR)
Foreign judgment
Jurisdiction of foreign court
Final and conclusive

28. Importance of private int’l law
Financial and economic growth and development
Simpson v. McCallum (1869) Supreme Court of Jamaica
International trade
Offshore financial sector (BVI, The Bahamas)
Direct foreign investment
Transnational marriages
Succession

29. The English influence
Settlers brought “all such laws of England as would be necessary to their new condition” : Stulz v Wallace [1839] Supreme Court Jamaica
Caribbean statutes adopt legislative changes made by English parliament in private international law rules: Mills v Mills [1975] Supreme Court of The Bahamas
Recognition and enforcement of foreign and commonwealth judgments a codification of English position: Sardina v Johnson [1977] Supreme Court of Barbados

30. Limited reform of private int’l law
Forum non conveniens
Common law reform of jurisdictional rules
No distinction between Caribbean and ‘foreign’ cases
Continued application even with UK now in the EU
Domicile
Legislative reform
Approximate domicile with “home”
Adoption of alternative factors: residence, nationality
Foreign judgments
Legislation
Codification of common law

31. Impact of Caribbean community law 1
Choice of courts and the Caribbean Court of Justice:
Appellate jurisdiction
Ultimate supreme court
Unify rules of jurisdiction
Allocate competence in transnational cases
Original jurisdiction
‘compulsory’ and ‘exclusive’

32. Impact of Caribbean community law 2
Choice of Law and the Caribbean Court of Justice
Appellate jurisdiction
Apply national law from which the appeal comes
Persuasive value throughout Community
Joseph and Boyce v Attorney General [2006]
Original jurisdiction
‘applicable rules of international law’
Article 217, Revised Treaty, Article XVII, CCJ Agreement

33. Impact of Caribbean community law 3
Foreign Judgments and the Caribbean Court of Justice
CCJ judgment to be enforced in national systems
As if made by superior court of state
Power to punish for contempt
Article XXVI, CCJ Agreement
Rules of Court (CCJ)
Registrars of Supreme Court
Deputy registrar of CCJ
Article XXVII, CCJ Agreement

34. Private international law cases resolved in CCJ original jurisdiction
Trinidad Cement Limited & TCL Guyana Inc. v. Republic of Guyana, [2009] CCJ 1 (OJ)
Trinidad Cement Limited v. The Community [2009] CCJ 2 (OJ)

35. Conclusions (1)
Founding of Caribbean Community profoundly impacts Public Int’l Law
Creates specialized community of states with rules derogating from general PIL
Unresolved questions at intersection:
Some matters resolved by Caribbean Int’l Law
Forum is the CCJ
Potential for other states to use CCJ
Some matters remain to be resolved by general Public International Law

36. Conclusions (2)
Establishment of Caribbean Community has profound effects on Private International Law
Choice of courts
Choice of laws
Foreign judgments
In future, most private international law questions in the region will be resolved by Caribbean Court of Justice

37. Conclusion (3)
OAS contribution to reform of public and private international law should :
Consider implications of Community Law
Consider University of the West Indies as partner/conduit
Involve the CCJ

38. Muchas gracias!

39. Contact Details: winston.anderson@cavehill.uwi.edu
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©W. Charles Anderson