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

Winston Anderson, PhD (Cantab)

Professor of International Law&

Executive DirectorCaribbean Law Institute CentreUniversity of the West Indies

Xth OAS Workshop on International Law

San Jose, Costa Rica February 2-5, 2010

GREETINGS:

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

SOME ASPECTS OF CARIBBEAN COMMUNITY LAW:

Convergence of regional law and of private and public international law

OUTLINE OF PRESENTATION

Caribbean Community Law CARICOM Law and Public International Law CARICOM Law and Private International Law Role of Caribbean Court of Justice

THE CARIBBEAN COMMUNITY : FOUNDATION AGREEMENTS

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

THE CARIBBEAN COMMUNITY: 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)

THE CARIBBEAN COMMUNITY: ACCESSION BY CARIBBEAN STATES

Article 3 (2), Revised Treaty: Haiti, (2003)*** (pop. 9,000,000)

MAP OF THE CARIBBEAN COMMUNITY

THE CARIBBEAN COMMUNITY: SOURCES OF LAW (1)

TreatiesActs of Member StatesRevised Treaty

Protocols to be adopted (Article 239)Agreements creating CARICOM InstitutionsCARICOM Regional Organization on Standards and Quality (CROSQ)

CARICOM Fisheries Mechanism (CRFM)Centre for Administration Development (CARICAD)

THE CARIBBEAN COMMUNITY: SOURCES OF LAW (2)

Legislative Acts of Organs of the CommunityPolitical institutions created by the

TreatiesConference of Heads of GovernmentCouncil for Trade and Economic

Development (COTED)Council for Foreign and Community

Relations (COFCOR)

THE CARIBBEAN COMMUNITY: SOURCES OF LAW (3)

Judgments of the CCJ

Article 221Judgment of the Court to constitute

Stare Decisis“Judgments of the Court shall constitute

legally binding precedents for the parties in proceedings before the

Court...”

AGREEMENT ESTABLISHING THE CARIBBEAN COURT OF JUSTICE, 2001 Regional Judicial and Legal Services

Commission (RJLSC)Professionals from legal, business, public

service, NGOsAppoints Judges, recommends President

CCJ Trust Fund (separate agreement)US$100 million raised on capital market by

CDBTransferred to trusteesRepayment of CDB by Member States

JURISDICTION OF THE CARIBBEAN COURT OF JUSTICE (CCJ) Appellate jurisdiction

Replace the Privy CouncilBarbados (2005), Guyana (2005)Suriname?

Original jurisdictionRevised Treaty, Articles 211-222; CCJ

Agreement, Articles XI-XXIV“Compulsory and exclusive jurisdiction”Use of CCJ by non-CARICOM States

PUBLIC INTERNATIONAL LAW AND CARIBBEAN COMMUNITY LAW

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 ICJRevised TreatyRegional custom/practiceNo finding of non liquetFill blanks with general international law

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

RIGHTS 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)

PUBLIC INTERNATIONAL LAW DISPUTES RESOLVED IN THE 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)

UNRESOLVED ISSUES AT BORDER OF PUBLIC INTERNATIONAL LAW AND CARICOM LAW CCJ’s “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, 24th March 2006

European Partnership Agreements (EPA)

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

ISSUES 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

A SPECIAL CASE: BILATERAL 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

CARICOM / COSTA RICA, RTA, 2004

CARICOM - Costa Rica Free Trade Agreement Signed March 2004. 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.

BILATERAL 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

CARIBBEAN COMMUNITY LAW AND PRIVATE INTERNATIONAL LAW

Sources of private international lawCommon lawLegislationConstitution

SOURCES OF PRIVATE INTERNATIONAL LAW CONT’D

Relevance of Public International Law:DualismCommon 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

CENTRAL CONCEPTS IN PRIVATE INTERNATIONAL LAW

Choice of lawParty 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 courtFinal and conclusive

IMPORTANCE OF PRIVATE INT’L LAW

Financial and economic growth and developmentSimpson v. McCallum (1869) Supreme Court of Jamaica

International trade Offshore financial sector (BVI, The Bahamas) Direct foreign investment Transnational marriages Succession

THE ENGLISH 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

LIMITED 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

IMPACT OF CARIBBEAN COMMUNITY LAW 1

Choice of courts and the Caribbean Court of Justice:

Appellate jurisdictionUltimate supreme courtUnify rules of jurisdictionAllocate competence in transnational

cases

Original jurisdiction ‘compulsory’ and ‘exclusive’

IMPACT OF CARIBBEAN COMMUNITY LAW 2

Choice of Law and the Caribbean Court of Justice

Appellate jurisdictionApply national law from which the appeal

comesPersuasive 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

IMPACT OF CARIBBEAN 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

PRIVATE 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)

CONCLUSIONS (1) Founding of Caribbean Community

profoundly impacts Public Int’l Law

Creates specialized community of states with rules derogating from general PIL

Unresolved questions at intersection:Some matters resolved by Caribbean Int’l

LawForum is the CCJPotential for other states to use CCJSome matters remain to be resolved by

general Public International Law

CONCLUSIONS (2)

Establishment of Caribbean Community has profound effects on Private International LawChoice of courts Choice of lawsForeign judgments

In future, most private international law questions in the region will be resolved by Caribbean Court of Justice

CONCLUSION (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

MUCHAS GRACIAS!

CONTACT DETAILS:

[email protected]@hotmail.com(246) 417 4560(246) 417 4000

©W. Charles Anderson