While the CCJ marks its 14th year in 2019, only four Caribbean countries recognise it as their final court of appeal. Why is the number of matters brought before it so small? How can the court assist the private sector?
by Kissoon Sinanan, Attorney-at-Law
Published in CONTACT Magazine
The Agreement establishing the Caribbean Court of Justice (CCJ) was signed by ten Caricom member states1 in 2001. The court was inaugurated four years later, on 16 April 2005. It was established with both original and appellate jurisdictions, pursuant to Article III of the Agreement.
So far, only Barbados, Belize, Dominica and Guyana have replaced the Judicial Committee of the Privy Council with the CCJ as their final court of appeal.
In its appellate jurisdiction, the CCJ hears and determines appeals in civil and criminal matters, as detailed under Article XXV of the Agreement2. In certain matters, appeals lie as a matter of right to all natural or juridical persons3 (comprising individuals and companies); in others, the leave of the Court of Appeal in the respective member states is required before any matter can be taken to the CCJ.
Matters which can be appealed as a matter of right include property rights, dissolution or nullity of marriage, interpretation of the constitution of a member state, and issues related to the protection of fundamental rights.4 Appeals requiring the leave of the Court of Appeal of a respective member state include decisions in any civil proceedings involving a question of great general or public importance, and such other cases as may be prescribed by any law of the contracting party.5
Private sector participation
Under the original jurisdiction, the CCJ has exclusive jurisdiction to hear and deliver judgment on disputes in which member states are involved, referrals from national courts or tribunals of member states, and applications by all natural or juridical persons for special leave to appear as parties before the CCJ.6
The CCJ also has exclusive and compulsive jurisdiction to deliver advisory opinions concerning the interpretation and application of the Revised Treaty of Chaguaramas (RTC). 7It is also clearly stated in the Agreement and the RTC that when a judgment is delivered by the CCJ, any member state, Caricom bodies, organs, entities or persons to whom the judgment applies must comply with the judgment promptly.8
It is under the original jurisdiction of the CCJ therefore that one could anticipate the increased participation of the private sector in Caricom, if only to ensure that member states abide by their obligations under the RTC with respect to the Caricom Single Market and Economy (CSME).
It is not surprising therefore that the majority of the decisions under the original jurisdiction of the CCJ have involved the private sector. However, the number of matters that are brought to the CCJ under the original jurisdiction are still very small compared with the matters under the appellate jurisdiction.9
Some of the reasons for this phenomenon may include the preference for government-to-government negotiation, a lack of understanding of trade matters, and a lack of understanding of member states’ rights and obligations under the RTC as well as time and costs.
Challenges for business
Prior to the CCJ, member states only discussed their private sector problems and challenges at the Council of Trade and Economic Development (COTED), and bilaterally in between COTED meetings. This practice continued for years with generally beneficial results and at no cost to the private sector. In fact, when Trinidad Cement Limited (TCL) brought the first matter to the CCJ under the original jurisdiction, there was divided opinion throughout the region about whether the company adopted the proper approach.
Many in the private sector do not fully understand Caricom trade rules and are therefore more comfortable leaving their trade issues with government officials to address. There are also not many attorneys who are familiar with these rules and can assist private sector entities. There are also not many attorneys in the region who are versed in international law, which is applied by the CCJ in exercising its original jurisdiction10. Similarly, the rights of the private sector generally flow from the rights of the member states under the RTC.
Pioneering use in trade
Given the options available for negotiations through government channels, past experience in utilising the latter and the potential costs involved in making an application to the CCJ, many private sector entities may prefer not to approach the CCJ at all. In support of this position, both the RTC and the Agreement have a provision that encourages member states, to the maximum extent possible, to use arbitration and alternative dispute mechanisms to settle private commercial disputes11.
The first company to bring an application to the CCJ under the original jurisdiction was Trinidad Cement Limited (TCL). Other companies that have followed this trend include SM Jaleel and Company Limited, Humming Bird Rice Mills Limited, Rudisa Beverages and Juices NV, Arawak Cement Company Limited (a subsidiary of TCL), and Rock Hard Distribution Limited.
The TCL Experience
TCL v Guyana  CCJ 1 (OJ)
TCL v Guyana  CCJ 5 (OJ)
In the matter TCL v Guyana  CCJ 1 (OJ), the CCJ emphasised the historic nature of the proceedings and stated that it was the first matter in which the Caribbean Court of Justice had been called upon to exercise its original jurisdiction. It therefore had no precedents to follow in its interpretation and application of the RTC.
While the Court reserved its decision, it identified two issues for determination in the matter. Firstly, whether for the purposes of Article 222 it is sufficient for a company to be incorporated or registered under the domestic legislation of a contracting party and, secondly, whether Article 222 of the Treaty accords to one who is held to be a person, natural or juridical, of a contracting party the right to sue that contracting party.
Judgment was given on 15 January 2009 granting special leave to TCL.
Prior to TCL’s case against Guyana, that country on numerous occasions unitarily removed the 15% Common External Tariff (CET) on cement imported from outside of Caricom. After many failed attempts at settling the matter bilaterally, TCL took the matter to the CCJ. In the case, TCL V the Co-Operative Republic of Guyana  CCJ 5 (OJ), the Court ordered among other things that Guyana must re-impose the CET and that the Government must pay TCL two-thirds of its cost. While it was ordered that the CET be reimposed within 28 days of the Court Order of 20 August 2009, this was not done until 8 January 2010, after TCL filed a Contempt of Court application at the CCJ.
TCL v The Caribbean Community  CCJ 4 (OJ)
In TCL v The Caribbean Community  CCJ 4 (OJ), TCL sought clarification of the administrative procedures relating to the suspension of the CET. The Court in its judgment sought to address this issue while trying to strike a balance between the need for flexibility on policy issues and at the same time ensure the presence of “effective measures to curb the abuse of discretionary power”.
The CCJ stated that Article 82 of the RTC, which lists the conditions for suspending the CET, must be interpreted in a sensible manner. That is, the production of the product is only one part of the equation. The company must also be able meet the demands of the member states in a timely manner.
The CCJ also clarified Article 26 of the RTC and the responsibility of the Community Council to establish and maintain “an efficient system of consultation at the national and regional levels”, the object being to enhance the decision-making process in the Community.
This duty to maintain an efficient system of consultation, the CCJ indicated, would include a duty to monitor the operation of that system once it has been established, as well as a duty to try and correct any weaknesses that emerged in the system; and to ensure as far as possible scrupulous adherence to that system. It was emphasised that these are duties which rest primarily on the Community Council, but in the performance of which that Council is entitled to the assistance of the Secretary-General.
The CCJ also stated that member states have a duty to provide the Secretary-General and COTED with accurate, relevant and timely information. The Secretary-General must also do what they reasonably can in order to ascertain whether appropriate consultation has been held; and if it has not, to encourage the Competent Authority to remedy that omission.
TCL v the Competition Commission  CCJ 4 (OJ)
While the CCJ dismissed the application by TCL, clarification was provided on some of the rules and procedures of the Competition Commission.
The CCJ observed that it is difficult to see how an investigation of the regional Competition Commission could deal with cross-border anti-competitive business conduct by focusing on the infringement of national provisions. Moreover, it stated that this does not seem to be required by the RTC and, indeed, the question of which national provisions to concentrate on would almost certainly arise. In all the circumstances, the Court encouraged the Commission to review its rules so as to ensure that they are in concert with the RTC and reflect the appropriate standards of fairness.
1There are fifteen member states of Caricom listed on the Caricom website (www.CARICOM.org) and currently twelve of these member states have signed the Agreement. Member states of Caricom: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, St Kitts and Nevis, St Vincent and the Grenadines, Suriname, Trinidad and Tobago
2Currently, this only applies to Barbados, Belize, Guyana and Dominica
3The phrase “Persons, natural or juridical” is used in Article 222 of the Revised Treaty of Chaguaramas (RTC).
4Article XXV.2 of the Agreement
5Article XXV.3 of the Agreement
6Article XII of the Agreement and Article 222 of the RTC on the matter of special leave
7Article XIII of the Agreement and Article 212 of the RTC
8Article XV of the Agreement and Article 215 of the RTC
9The Honourable Mr Justice Saunders, Speech on the Revised Treaty of Chaguaramas: Conflicts and Contradictions for the Island State; delivered 16 May 2017
10The Hon. Mr Justice Saunders, op. cit.
11Article XXIII.1 of the Agreement and Article 223 of the RC