Anthony Haynes (right), CEO of Jamaica's Carib Cement Company Limited in discussion with Dr Rollin Bertrand, CEO of Trinidad Cement Limited, CCCL's parent company. - File

The Caribbean Court of Justice has held that private firms, who believe they are injured or wrongfully denied commercial benefits afforded under the Caricom treaty by the states in which they operate, have the right to seek redress directly from the CCJ.

The ruling rejects an argument from Guyana that treaty terms left companies no such recourse.

Last week's decision by the CCJ justices is at odds with official views Kingston that such claims should be pursued in domestic courts, with the Caribbean court being consulted on the interpretation of the treaty establishing the Caribbean Single Market and Economy (CSME).

"The domestic courts are best suited to interpret the domestic laws of the jurisdiction," Jamaica's attorney general Douglas Leys told the CCJ in a submission last November. "It is only after these have been interpreted and the courts perceive that there is an issue which requires its guidance, then it may at the invitation of the domestic courts adjudicate on the issues."

The broader impact of the CCJ's ruling is yet to be fully debated here, but already there were mumblings by Jamaican officials this week of "a creeping by the CCJ into the domestic commercial jurisdiction of Jamaica".

"There is the potential for overlap in dealing with such cases, the right of which the CCJ is now asserting," the official said. "This is a potential constitutional issue."

Seamless market

The CCJ was established earlier this decade by Caricom countries to operate on two fronts: to replace the UK-based Privy Council as the final court for regional states in criminal and civil matters; and secondly, in its original jurisdiction, to interpret the Revised Treaty of Chaguaramas, the framework under which the 15-member Caricom is seeking to establish a seamless market and economy.

Jamaica is not a member of the CCJ's criminal and civil jurisdiction because of a Privy Council ruling that the CCJ could not be established as a superior court over the island's Court of Appeal, which is deeply entrenched in the Jamaican constitution.

To do that would require a referendum.

Jamaica, however, as prerequisite for membership of the CSME, subscribes to the CCJ in its original jurisdiction.

The specific matter on which the CCJ ruled January 15 was brought by cement manufacturer Trinidad Cement Limited (TCL) and a Guyanese subsidiary, Trinidad Cement Guyana Incorporated.

It turned on whether under Article 222 of the Revised Treaty of Chagauramas they could make a claim in court for damages against Guyana, a member state in which they are registered.

Damages

The complaint against Georgetown - which apparently has not been denied - was it suspended the common external tariff on the importation of cement into Guyana without the approval of Caricom's council on trade and economic development.

The companies allege that Guyana's action prejudiced their business and caused them to suffer damages. The substantive matter is yet to be determined.

However, Guyana's attorney general, Dudnath Singh had contended that the TCL companies were not entitled to bring proceedings before the CCJ because they were not state parties to the Caricom treat, and further had not satisfied the conditions set up by the treaty for the institutions of proceedings by private entities.

Those conditions include:

the need for the court to determine that a right or benefit intended by the treaty to a member state would directly provide a benefit to the complainant;

the complainant to show that he had been prejudiced in the enjoyment of his right or benefit;

that the member state, which would normally be entitled to complain had either failed or declined to pursue the claim, or had expressly agreed for the private entity to follow through on it.

Having argued that treaty intended the private sector to have a pivotal role in the CSM and held that the TCL companies had properly met the treaty's standards for being "persons, natural or juridical" who can seek redress before the CCJ, the judges rejected as too narrow Georgetown's interpretation of Article 222 that "the contracting party of the private entity must always have the option of itself bringing anyproceedings that a private entity desires to bring".

In the event, Guyana held that since a party to the treaty could not simultaneously bring an action and be its defendant, then the entire article had to be read in a way, as the justices put it, "to yield the result that, as a matter of policy, the RTC (Revised Treaty of Chaguaramas) intends that a private entity cannot bring proceedings against its own state".

The justices rejected this argument, but conceding that some aspects of the agreement were ambiguous.

Unusual

This, they said, was unusual in multilateral treaties, demanding not merely a literal interpretation but its context and the intent of its framers.

Said the CCJ: "The interpretation of Article 222 supported by the Attorney General (of Guyana) would place an unduly restrictive limitation on the category of persons entitled to complain about the conduct of a contracting party or of the community. "The court concludes that it was not the intention of the member states to prohibit a private entity from bring proceedings against its own state."

Any such prohibition, the justices argued, would frustrate the goals of the treaty and also impact negatively "not only on nationals within the meaning of Article 32 (5), but also on companies owned by non-nationals (including nationals of other states of the Community) who chose to incorporate in an allegedly delinquent state".

Prejudice

Added the judges: "The latter could be encouraged to violate the RTC with impunity in circumstances where such persons were the only ones who suffered prejudice. Conversely, such persons would have imposed on them a serious fetter on the vindication of rights enuring to them pursuant to Article 222(a)."

Article 32 deals with the right of community nationals to establish services and move capital across the region and provides a more restrictive definition of a 'national', who have special privileges to operate within the CSME, than the wider embrace of 'person natural or juridical', who have access to the CCJ.

"If Guyana's contentions on this issue were to prevail then private entities could suffer a severe advantage on grounds of nationality only," the court said.

"Equal access to justice, a fundamental principle of law subscribed to by all the contracting parties, would be compromised."

Jamaica's Douglas Leys, while holding that wording of the wording of the treaty, from Jamaica's reading, precluded "a person from contracting party ... (suing) that contracting party directly before the court", agreed that to deny such a person access to the courts "would lead to an absurd result".

Hence, he had argued, article 222 had to be read in conjunction with Article 211(c), which allowed the CCJ to deal with referrals for treaty interpretation and applications from national courts.

"It would appear from that provision, and article 214, that a person belonging to a contracting party would not be denied justice as he would be able to pursue a claim against his contracting party in the local court of that contracting party and that that court would be under obligation to refer the matter if it considers that a decision on the interpretation or the application of the treaty necessary to enable it to render a decision," the Jamaican attorney general said in the presentation to the CCJ.

The Justices, in their ruling, did not specifically address Leys' argument, and insisted that the clause in Article 222 seemingly requiring a state approval for a private entity to pursue action before the CCJ, was a device to avoid "a state allegedly in violation being twice vexed, once by an injured private entity and again by the contracting party of that private entity".

"Article 222 cannot and does not apply where the state against which proceedings are to be brought is the contracting party of the private entity seeking to institute such proceedings," they ruled.

"In such a case, the private entity is not required to comply with the provisions of Article 222(c)."

business@gleanerjm.com