Caribbean Court of Justice Makes Important Ruling
By: Ainsley Brown
Trinidad Cement Limited vs. The State of the Co-operative Republic of Guyana.
The Caribbean Court of Justice (CCJ) on January 15, 2009 made its first ruling as to its own original jurisdiction.
The CCJ has Appellate jurisdiction over Civil and Criminal cases referred to it from common law member states. It also has original jurisdiction as to the interpretation of the Revised Treaty of Chaguaramas (the Treaty), which transformed the Caribbean Community and Common Market (CARICOM) into CARICOM Single Market and Economy.
In the case, two companies, Trinidad Cement Ltd (TCL) and its subsidiary TCL Guyana Inc. (TGI) through which TCL manufactures, markets and distributes cement in Guyana attempt to bring suit against the government of Guyana. Both companies allege that the government of Guyana breached the Treaty by unilaterally suspending the Common External Tariff on cement imported from outside of CARICOM.
However, before court proceedings could be brought. Both companies had to prove they had standing. The relevant test for this being that they must be ‘persons, national or juridical, of a Contracting Party.’ The Court ruled that both companies satisfied this test and therefore had standing.
The ruling is significant in three ways:
- the court has firmly established and clearly articulated the test for standing when exercising its original jurisdiction. There is now little or no ambiguity for future litigants applying for standing;
- the court ruled that even though TGI is incorporated under the laws of Guyana and not another Contracting Party, Guyana was none the less a Contracting Party and the test for standing was therefore satisfied. The test did not require that the Contracting Party be another state, simply a member to the Treaty. In rejecting a literalist approach the CCJ has indicated that it will take a much more comprehensive approach when interpreting the Treaty. It could be argued that this the most significant aspect of the ruling; however I beg to differ;
- the final point though intimately connected to the second point above goes well beyond it. That is to say, by taking a much more comprehensive approach to interpreting the Treaty, the CCJ is taking in to account its overall policy objectives. The court in effect is saying that it will not be confined to a textural view of the Treaty and when called on to do so it will take a more contextual approach.
This contextual approach will in all likelihood result in a more activist court – not necessarily a bad thing. I personally prefer a contextual approach to both treaty and judicial interpretations, generally, to strict textual constructionist ones.
However, it will be interesting to see how far the CCJ will take this approach and how the CARICOM member states will respond to it?
