Transcript Role of the Court- what issues can be brought before the CCJ?

Role of the Caribbean Court of
Justice in the CSME- an overview
CSME Membership (13)- Market of 6 million people
Antigua & Barbuda (Montserrat)
Barbados
St. Kitts & Nevis
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Belize
St. Lucia
Dominica
Grenada
St. Vincent & the
Grenadines
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
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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
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Rights to CARICOM Nationals
Under the CSME





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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
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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
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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 andTrinidad andTobago,
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
pink
It is
purple
It is brown
It is
red
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 theTreaty.
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 CCJoriginal 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.
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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
“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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Your Court - Your Voice- Your Right
Where to find us:
134 Henry Street,
Port of Spain,
Trinidad.
Phone: 868-623-2CCJ (2225)
www. caribbeancourtofjustice.org