Role of the Caribbean Court of Justice in the CSME- an overview

St. Vincent & the Grenadines Grenada Suriname Guyana Trinidad & Tobago CSME Membership (13)- Market of 6 million people Antigua & Barbuda (Montserrat) Barbados St. Kitts & Nevis Belize St. Lucia Dominica St. Vincent & the Grenadines Grenada Suriname Guyana Trinidad & Tobago Jamaica

CSME - Definition The CSME is a single enlarged economic space created through the removal of restrictions and resulting in the Free movement of: Goods Services Persons Capital Technology It confers the right on CARICOM nationals to establish business in any CARICOM Member State and to be treated in the same manner as a national of that State

PILLARS OF CSME The five (5) main pillars of CSME are: Provision for the free movement of Capital Provision for the free movement of Goods, Services and People within the CSME The establishment of common trade and economic policy Harmonization of economic, fiscal and monetary policies A common currency

Rights to CARICOM Nationals Under the CSME Free Movement of Persons Freedom to provide Services Right to Establish a Commercial Presence Free Movement of Capital Free Movement of Goods

These produce contingent rights many of which we may not even conceive of now. -Non-discrimination -Social security policies and programmes -Double taxation issues -Cross-border intellectual property issues -Removal of restrictions on right of establishment

Freedom to Provide Services Free trade in services requires administrative arrangements which allow CARICOM nationals to provide services within any Member State without restrictions Article 37 of the Revised Treaty requires Member States to abolish discriminatory restrictions on the provision of services within the Community in respect of Community nationals

Right to Establish a Commercial Presence- (Do you see possible contingent rights???) Ease of entry to establish a commercial presence and indefinite stay to do so Ease of administration for the registering and/or incorporation of companies Access to capital in the receiving member state Access to land, building and other property for the purpose of establishing a business Freedom of entry for managerial, supervisory and technical staff, spouse and immediate dependent family members

Caribbean Court of Justice? What’s the role of The Caribbean Court of Justice?

2 courts in one!

Role of the CCJ Agreement establishing the Caribbean Court of Justice -signed on 14th February 20012 as inter alia “determinative…in the further development of Caribbean jurisprudence through the judicial process” and “that the establishment of the Court is a further step in the deepening of the regional integration process”. 14th February 2001 Antigua and Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St. Kitts and Nevis, Saint Lucia, Suriname and Trinidad and Tobago, 15th February 2003 Dominica and St. Vincent and the Grenadines. Montserrat awaiting UK entrustment before it can sign (initially rejected)

Jurisdiction – Appellate The Court is a superior court of record Replacing the Privy Council for Barbados (and the others who will join) Re-creation of the third layer for Guyana General Jurisdiction: Criminal Civil (including Family) Constitutional matters

Jurisdiction – Original The CCJ has Exclusive jurisdiction in: Disputes between contracting parties to the Agreement Disputes between contracting parties to the Agreement and CARICOM Referrals from national courts or tribunals of contracting parties to the agreement Applications by natural and juridical persons in certain circumstances, with leave. Advisory opinions (on request of Member states or the Community) Competition Commission issues.

Exclusive Arbiter The Revised Treaty of Chaguaramas provides for the establishment of the Caribbean Court of Justice to have exclusive and compulsory jurisdiction in interpreting and applying the provisions of the Treaty.

Why is the CCJ essential? The original jurisdiction of the Caribbean Court of Justice is essential for the successful operation of the CSME. The CCJ will provide legal certainty and member states will be compelled to adhere to the principles and obligations enshrined in the revised treaty Both the investor and consumer will have greater confidence in the predictability and fairness in the application of measures relating to the operation of the CSME

Why is the CCJ essential? Because, there will be disputes. Disputes must be settled. Courts settle disputes. …that is what courts do! Disputes must be settled with certainty.

Legal uncertainty is disastrous It is purple It is red It is pink It is brown Barbados Sup. Ct. TT Sup. Ct. Jamaica Sup. Ct. Suriname Sup. Ct.

The CCJ brings legal certainty We have studied and decreed that it is black and white And so everyone in the Caribbean Community now know that: It is black and white!

Accessing the Original Jurisdiction There are four (4) ways to access the original jurisdiction of the Court. They are: by way of originating application, referral, advisory opinion and applications made with respect to the Competition Commission.

1. The Originating Application The originating application used to commence proceedings arising out of disputes between Contracting Parties to the Agreement and disputes between Contracting Parties and the Community. Also if applicant is a person…..leave Then originating application

2. Referrals Article 214 of the Treaty deals with referrals as does Article XIV of the Agreement Establishing the Caribbean Court of Justice and Part 11.2(1) of the Original Jurisdiction Rules 2006. “Where a national court or tribunal of a Member State is seised of an issue whose resolution involves a question concerning the interpretation or application of this Treaty, the court or tribunal concerned shall, if it considers that a decision on the question is necessary to enable it to deliver judgment, refer the question to the Court for determination before delivering judgment.”

Referrals from other Courts Article 14 – Agreement Establishing the Court: National courts or tribunals e.g. - High Courts and Magistrates Courts also includes Tax Appeal Board, Industrial Court and the Environmental Commission could refer issues dealing with the interpretation or application of the Treaty of Chaguaramas to the CCJ. It must be before judgment is delivered. The interpretation of the Treaty or judgment of the CCJ is final.

Referrals… cont’d Must be a question concerning interpretation or application of the Treaty by a national Court or tribunal - High Courts and Magistrates Courts also includes Tax Appeal Board, Industrial Court, Environmental Commission, other tribunals. Matters could also be referred for clarification by the Competition Commission

3. Advisory Opinions This is a route which can be used for Member States to ascertain the situation where there is doubt.

Advisory Opinion The Member States parties to a dispute must make a joint request in writing for an advisory opinion. Article 212 of the Treaty : “1. The Court shall have exclusive jurisdiction to deliver advisory opinions concerning the interpretation and application of the Treaty. 2. Advisory opinions shall be delivered only at the request of the Member States parties to a dispute or the Community.” This request must be sent to the Registrar of the CCJ and must be accompanied by all documents germane to the issue.

Who can bring matters to the CCJ- original jurisdiction Courts or tribunals (by referral) Member states The Community Private Entities i.e natural or juridical persons of a contracting party IF ….

Cont’d (a) CCJ says that Treaty intended that a right or benefit should enure to benefit of persons directly; (b) the person show they have been prejudiced in respect of such a right or benefit; ( c) Country omitted or declined to espouse claim, or agreed that the persons may espouse claim; and (d) the court finds interest of justice requires it.

Competition Commission The Competition Commission was inaugurated in Parimaribo, Suriname on 18th January 2008. It is expected that the Single Market and Economy will open business to greater competition. It is necessary to establish ground rules for the conduct of business as some of these enterprises may engage in price fixing or dumping which may be harmful to competition and the needs of consumers.

The Competition Commission The Competition Commission is established by Article 171 of the Treaty and its functions set out in Article 173 (1). Articles 175 (11)5, (12)6 and 180 (3)7 provide that the Commission may approach the CCJ for certain Orders or for review of its determinations. The CCJ’s jurisdiction is final, there is no appeal from the Court’s decision. Again, this ensures legal certainty and uniformity. 5 Procedure set out in Rule 11.5 of the Original Jurisdiction Rules 2006 6 Procedure set out in Rule 11.4 of the Original Jurisdiction Rules 2006 7 Procedure set out in Rule 11.6 of the Original Jurisdiction Rules 2006

Competition Commission The Commissioners are appointed by the RJLSC for a term of 5 years: Dr. Kusha Harracksingh Patterson Keith Cheltenham Q.C. Dr. Trevor Farrell Hans Rudolf Lim A Po Dr. Maureen Paul Dr. Barton Scotland Ambassador A B Stewart Stephenson

Rights, slow beginnings and recognising treaty matters “The experience of most newly established courts is that during the first few years of their existence, business tends to be very slow… What is of greater concern to me is the possibility that persons with a right of access to the Court, may not recognize, when they occur, the circumstances in which that right could be used to their advantage.” 8 8 “The Role of the Caribbean Court of Justice in the Caricom Single Market and Economy”, address given by the Rt. Honourable Mr. Justice Michael de la Bastide, President of the Caribbean Court of Justice, Guyana (24th February 2007) http://www.caribbeancourtofjustice.org/papersandarticles/role_ccj_csme.pdf

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Where to find us: Port of Spain, Trinidad. Phone: 868-623-2CCJ (2225) 134 Henry Street, Port of Spain, Trinidad. Phone: 868-623-2CCJ (2225) www. caribbeancourtofjustice.org