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Winston Anderson, PhD (Cantab) Professor of International Law & Executive Director Caribbean Law Institute Centre University of the West Indies Xth OAS.

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Presentation on theme: "Winston Anderson, PhD (Cantab) Professor of International Law & Executive Director Caribbean Law Institute Centre University of the West Indies Xth OAS."— Presentation transcript:

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2 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

3 G REETINGS : 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

4 S OME A SPECTS OF C ARIBBEAN C OMMUNITY L AW : Convergence of regional law and of private and public international law

5 O UTLINE OF PRESENTATION Caribbean Community Law CARICOM Law and Public International Law CARICOM Law and Private International Law Role of Caribbean Court of Justice

6 T HE C ARIBBEAN C OMMUNITY : FOUNDATION A GREEMENTS 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

7 T HE C ARIBBEAN C OMMUNITY : 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)

8 T HE C ARIBBEAN C OMMUNITY : ACCESSION BY C ARIBBEAN STATES Article 3 (2), Revised Treaty: Haiti, (2003) *** (pop. 9,000,000)

9 M AP OF THE C ARIBBEAN C OMMUNITY

10 T HE C ARIBBEAN C OMMUNITY : S OURCES OF L AW (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 )

11 T HE C ARIBBEAN C OMMUNITY : S OURCES OF L AW (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)

12 T HE C ARIBBEAN C OMMUNITY : S OURCES OF L AW (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...

13 A GREEMENT E STABLISHING THE C ARIBBEAN C OURT OF J USTICE, 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

14 J URISDICTION OF THE C ARIBBEAN C OURT OF J USTICE (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

15 P UBLIC I NTERNATIONAL L AW AND C ARIBBEAN C OMMUNITY L AW 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

16 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

17 R IGHTS 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)

18 P UBLIC I NTERNATIONAL L AW D ISPUTES R ESOLVED I N THE O RIGINAL J URISDICTION Trinidad Cement Limited & TCL Guyana Inc. v. Republic of Guyana, [2009] CCJ 1 (OJ) Trinidad Cement Limited v. The Community [2009] CCJ 2 (OJ)

19 U NRESOLVED ISSUES AT BORDER OF PUBLIC INTERNATIONAL LAW AND CARICOM LAW CCJs 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, 24 th March 2006 European Partnership Agreements (EPA)

20 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

21 I SSUES 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

22 A SPECIAL C ASE : B ILATERAL 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

23 CARICOM / COSTA RICA, RTA, 2004 CARICOM - Costa Rica Free Trade Agreement Signed March 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.

24 B ILATERAL 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

25 C ARIBBEAN COMMUNITY LAW AND PRIVATE INTERNATIONAL LAW Sources of private international law Common law Legislation Constitution

26 S OURCES 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

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28 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

29 I MPORTANCE 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

30 T HE E NGLISH 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

31 L IMITED 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

32 I MPACT OF C ARIBBEAN 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

33 I MPACT OF C ARIBBEAN 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

34 I MPACT OF C ARIBBEAN 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

35 P RIVATE 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)

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

37 C ONCLUSIONS (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

38 C ONCLUSION (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

39 M UCHAS GRACIAS !

40 C ONTACT D ETAILS : (246) (246) ©W. Charles Anderson


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