Monthly Archives: June 2016

Brexit wins: What possible implications for the Caribbean?

Alicia Nicholls

Last week while I was climbing the Mayan ruins in the beautiful Central American/Caribbean country of Belize, the British people were casting their vote on one of the most important questions regarding the future of their country’s involvement in the global economy. In response to the simple referendum question, “Should the United Kingdom remain a member of the European Union or leave the European Union”, British voters decided that the UK was better off outside of the 28-member bloc. Although I, like many others, expressed doubt that the Leave vote would have been triumphant, the British people by a 52 to 48% margin have decided that leaving the EU is in their best interest.

In a previous article on this matter, I noted the possible ramifications of this then hypothetical outcome for tourism dependent economies like Barbados which are highly reliant on the British market for tourist arrivals and for real estate investment. The current situation is uncharted territory.

In the wake of the Brexit vote, financial markets reacted violently while Sterling lost 10% of its value on currency markets within the days following Brexit, the lowest rate since 1985. Bear in mind that most Caribbean countries’ currencies are pegged to the US dollar and any depreciation of Sterling against the dollar makes the region less price competitive to British travellers. The increased volatility in the value of sterling and any slowdown in the British economy could dampen British demand for travel to the region and or reduce their level of spending during trips. It is a situation which tourism officials across the region have been closely monitoring. Moreover, the political uncertainty as Prime Minister Cameron prepares to demit office in October, the possibility of Scottish demands for another independence referendum, as well as the uncertainty over what impact Brexit will have on the UK economy will result in a wait and see approach by investors, which could impact private British investment in the region.

Against this background of uncertainty and messiness, what we in the Caribbean need to consider is what implication will the UK’s departure from the EU possibly have on our future trade and foreign relations with both the UK and the EU? Of crucial importance will be the possible impact it will have on the CARIFORUM-EU Economic Partnership Agreement, bearing in mind that once the UK officially is no longer a part of the EU CARIFORUM will no longer have preferential access to the UK market.

The truth is that although the EPA has not yet achieved the potential that it has been hoped to achieve, the EU is second only to the US in terms of its importance as a trading partner for the Caribbean. The main source market in the EU for Caribbean countries is the UK market. Once the UK is no longer part of the EU, Caribbean countries will no longer have preferential access to the UK market for their goods and services. Moreover, market access openings for services trade, particularly under Mode 4 (presence of natural persons) which is currently the most restricted mode, will have to renegotiated as part of any new trading arrangement which the UK decides to establish with Caribbean countries. As the UK sets about negotiating its own trade agreements with major partners, the Caribbean is unlikely to be anywhere near the top of the UK’s list of priorities. All that while, Caribbean exporters will face uncertainty in the UK market.

Prime Minister Cameron has already decided that it will be up to his successor, whomever he or she maybe, to invoke Article 50 of the Treaty of Lisbon which formally commences the UK’s secession from the EU. Until such time as a withdrawal agreement is negotiated and agreed to, or after the lapse of two years after the invocation of Article 50, the UK remains part of the EU and bound by its regulations and rules. However, during this time there will be great uncertainty as to what kind of relationship the UK will negotiate with the EU and what will be the impact of Brexit on the UK economy. British companies, services providers and traders need certainty of access to the EU single market. For this reason, it is clear that at the very least the UK will want an agreement which allows the same level of access to the EU single market. Whether the eventual withdrawal agreement involves the adoption of a Norwegian-like model, a free trade agreement, customs union or simply trade under WTO rules will not be known for some time. The EU leaders have already indicated their unwillingness to engage in any informal talks and the EU Parliament passed a resolution urging  the UK to invoke Article 50.

Colonial and historical ties and a shared language have made the UK our main ally in Europe. The UK will no longer be at the EU table once the withdrawal agreement is finalised which means the region will lose a powerful voice and ally in the grouping. This comes at a time when a confluence of important issues with severe development consequences requires the Caribbean to have as many allies in the room as possible. One of these issues is the whole problem of de-risking practices by international banks, a topic on which I spoke in Belize during my stay there last week.

Although it has been primarily US banks which have ended or restricted correspondent banking relations with local banks, some European banks have also done so. Another, and not entirely unrelated issue, is the whole matter of blacklists. One would recall that last year the EU compiled and released a list of all of its countries’ blacklists which included some Caribbean offshore financial centres, despite the fact that all of our countries have been given a clean bill of health by the OECD. Thirdly, the EU is currently in the process of redefining its relationship with the countries of the Africa, Caribbean and Pacific (ACP) group. Fourthly, there are important issues which need to be sorted out in regards to the EPA. One of these is the issue of the octroi de mer (dock dues) which serve as barriers to trade between the Caribbean and French West Indies.

An important issue is the whole matter of the European Development Fund (EDF), the main instrument through which the EU provides development aid to ACP countries and an important source of development funding for Caribbean countries. EU members directly contribute to the EDF based on contribution keys. Germany, France and the UK account for almost half of the contributions under the 11th EDF. This could result in the CARIFORUM countries receiving a smaller share of aid under EDF. On the bright side, the UK is one of the largest bilateral aid donors to the Caribbean and may decide to increase its aid in light of its withdrawal from the EU. However, more “well-off” countries like Barbados, the Bahamas and Trinidad & Tobago have often been excluded from some of this bilateral aid because of their relatively high GDP per capita, another issue which Caribbean countries have been fighting.

Another impact of Brexit is that it is refocusing the microscope on the future of the Caribbean’s own main integration project, the Caribbean Community (CARICOM).  There are already rumblings by some for there to be a similar referendum on CARICOM. Any such referendum now would be a bad idea. Recall the referendum which Jamaica did on September 19, 1961 which led it to leave the West Indies Federation. At a time when Caribbean countries are facing a wide range of global challenges, the region needs solidarity and unity now more than ever.

As I had concluded in my previous article, Brexit does have serious implications for future Caribbean-EU and UK trade and foreign relations. The depth and scope of the impact will depend on the length of time of uncertainty, the impact on the UK economy and the kind of trading relationship which the UK eventually negotiates with the EU. However, there are two things that must be emphasised. Firstly, the UK and the Caribbean share strong historical ties which the region should continue to strengthen even more so now that the UK is going solo. I have heard suggestions that the UK may decide to deepen its relationship with the Commonwealth. Secondly, this is an opportunity for the Caribbean to strengthen its ties with the rest of Europe now that the UK will no longer be at the table.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

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Agriculture key for fostering Sustainable Development in Caribbean Countries

Alicia Nicholls

Development in the Caribbean Community (CARICOM) can never be sustainable without building a sustainable agriculture sector. But don’t take my word for it. The need for improving the region’s food security and food sovereignty has been a recurrent theme in regional development discourse for decades. As a young girl growing up in Barbados, I remember the cookbook of traditional Barbadian recipes in our kitchen with the smiling face of its author, the late and legendary Barbadian  Mrs.  Carmeta Fraser, on the cover with the words to the effect of “Eat what we grow , and grow what we eat”. Years later, these words which former Senator Fraser echoed  tirelessly cross the length and breadth of Barbados are still in the realm of aspirations and not reality.

It is universally accepted that the best way to reduce Caribbean countries’ unsustainably high food import bills is by expanding agricultural production in an environmentally sustainable manner. However, as recognised by Sustainable Development Goal-2 which seeks to end hunger and achieve food security, plus improving nutrition and promoting sustainable agricultural practices, promoting a sustainable agriculture sector can help Caribbean countries address a number of cross-cutting developmental challenges besides food security.

The State of Caribbean Agriculture

Since the 1990s Caribbean economies have progressively shifted from mono-crop economies to services-based economies, mainly tourism and financial services. The main exceptions are the commodity-exporting countries of Guyana, Belize and Suriname which have more diversified economies and Trinidad & Tobago whose economy is based primarily on the oil/gas sector. A major reason for this shift was the loss of preferences in traditional export markets, particularly the European Union, and but also the recognition of the need to diversify their export-bases.

Agriculture is declining in its contribution to the GDP of most Caribbean countries, while the food import bills saddling our countries’ current accounts continue to rise. An FAO report entitled State of Food Insecurity in the CARICOM Caribbean revealed that CARICOM countries’ food import bill was in excess of USD $4.5 billion in 2011. Food imports are used not just for local consumption but also by the tourism sector. CaribbeanStats shows that Guyana, Trinidad & Tobago and Jamaica have relatively low import bills per occupant, while they are high in countries like Barbados, the Bahamas and Montserrat  Coupled with high food import bills is the growing scourge of non-communicable diseases (NCDs). Caribbean countries’ incidence of, and mortality rates from, NCDs such as diabetes and hypertension, are among the highest in the world. This is due not just to increasingly sedentary and high-stress lifestyles but also poor eating habits, which prioritise processed foods over more organic foods.

Although the agriculture sector is no longer the main foreign exchange earner or employer, family-based small-scale farming remains an important source of employment and earnings in rural communities. Indeed, a 2012 FAO report shows that the majority of farming in the Caribbean is done on smallholdings. Income from farming helps to maintain households, buy needed supplies and educate children.

Challenges facing Caribbean Agriculture

Most Caribbean people would agree that promoting local agriculture is beneficial for Caribbean development, by saving much needed foreign exchange and supporting the livelihoods of local farmers. Moreover Caribbean farmers do not use the level of chemicals employed by farmers in more developed countries.  Even with high tariffs on imported agricultural products, the lack of economies of scale and high costs of production often make local produce less price competitive than imported produce. This is coupled with the fact that Caribbean governments lack the financial means to subsidise their farmers to the extent that large developed countries like the United States and European countries do.

Local farmers therefore could never compete with the subsidised produce from farmers abroad whose inputs are much cheaper. Farmers in Barbados, for example, have complained about the import of some products like onions which are produced in sufficient quantities locally. There is also the perception, in many cases justified, about the dubious quality of imported produce. It is long suspected that produce which have been rejected by developed countries because they do not meet their standards are relegated to third world countries.

In some rural parishes in Barbados, particularly those which have good soils and receive the highest levels of rainfall, prime agricultural land has been granted permission for change of use to residential use and subdivision.

Praedial larceny costs farmers thousands of dollars in lost earnings each year. In Barbados, for example, farmers have taken to the newspapers to complain about crop theft or the heinous slaughtering of livestock for the meat. Another major problem for many Barbadian farmers is crop theft and destruction by the native Green Monkey which has been forced to forage outside of its natural environs because of habitat loss. Farmers also typically experience difficulty in accessing financing through traditional methods to replace lost crops or to invest in technologies and other activities.

One of the impacts of climate change is the  crop loss from natural disasters and extreme weather and crop pests and diseases like Black Sigatoka and Moko which destroy bananas and plantains. For an example of how severe weather could wreck havoc on local agriculture, just remember that in 2004 Hurricane Ivan wiped out Grenada’s entire nutmeg crop. Another facet of climate change is the drought-like conditions which have  plagued Caribbean countries for the past almost two years. The drought has caused reduced crop yields, caused malnourished or lost livestock, and forced some farmers to seek alternative sources of income.

In addition to these issues, there is also the reality that farming is generally not glamorous or financially attractive for many younger Caribbean people. On the flip side though, I know of a few young people who have chosen to get into farming due to their inability to find employment.

If one looks at the demand side, Caribbean people, through exposure to cable television, have become wedded to North American products and foods, to the detriment of reducing demand for some locally produced fruits and vegetables. After all, why limit oneself to local fruits like ackees, golden apples, dunks and fat porks, when one can have imported grapes, strawberries and pears? Part of the recourse for improving demand for local produce is extolling the benefits of these local products through research, innovation and incorporating their usage once more into traditional cuisine, in much the way Carmeta Fraser tried to encourage.

Going forward

A framework for the development of a sustainable agriculture sector through the sustainable improvement of food production must be aligned with wider national and regional policy goals aimed at promoting food security and poverty reduction, improving public health and fostering economic development. If we are speaking of improving agriculture, then permission for change of use should never be given for prime arable lands where crop yields would be higher than poorer quality lands.

Crop loss through praedial larceny can be reduced by strengthening praedial larceny laws through harsher penalties. Jamaica established a Praedial Larceny Unit  May 2015 which was reported in February 2016 to have resulted in a 14 percent reduction in praedial larceny over  10 months. This could be a model other Caribbean countries might want to consider.

There needs to be greater public-sector engagement and support for farmers including training in  business strategies, marketing and packaging, greater use of technology, as well as more sustainable farming practices, such as more efficient land and water use. Would it not be great to be able to have a mobile app where a customer could find out what crops are available for sale at any given time and place an order via his or her phone? I know personally of at least one farm which has used social media to market products. More farmers should make use of the virtual market place.

Improving farmers’ access to finance would also facilitate investment in more environmentally sustainable farming technologies. Getting younger people involved in farming can be achieved by improving the teaching of agricultural science in schools, while some of the arable lands which are currently idle and over-run could be leased to farmers similar to the Land for the Landless Programme in Barbados.

Turning to the theft of crops by green monkeys in Barbados, the loss of habitat from the debushing of natural woodlands and gullies for residential use has forced many green monkeys to raid the crops in farming and residential communities, particularly in the more rural parishes. Although there have been calls by some for a monkey cull, I think a better option may be to consider designating certain gullies and woodlands, particularly on Crown Lands, as special monkey protection areas. These would have the benefit of not just protecting the green monkey’s habitat and being natural greenspace (in keeping with our goal of reducing our carbon footprint), but could be low impact eco-tourism attractions where the native green monkey could be observed in its natural habitat.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is an international trade and development consultant. You can read more of her commentaries here or follow her on Twitter @Licylaw.

St. Kitts & Nevis ratifies WTO Trade Facilitation Agreement

Alicia Nicholls

St. Kitts & Nevis has become the latest Caribbean country to ratify the World Trade Organisation’s (WTO) Trade Facilitation Agreement (TFA). According to the WTO’s release, the country deposited its instruments of ratification on June 17, 2016, becoming the 82nd WTO member to do so.

The World Trade Organisation’s Trade Facilitation Agreement seeks to cut the red tape and reduce the transaction costs and delays in the movement, release and clearance of goods across borders through the harmonisation, simplification and acceleration of customs procedures. The Agreement was concluded at the WTO’s Ministerial in Bali, Indonesia in 2013. It  will come into force once two-thirds of  the WTO’s member countries ratify the agreement.

The TFA is not only the first multilateral trade agreement to be concluded since the WTO’s establishment in 1995 but is the first which links implementation to a member country’s ability to do so. In May last year St. Kitts & Nevis had submitted its Category A notification to the WTO indicating which provisions of the TFA it intends to implement upon entry into force of the agreement.  Countries also have access to the Trade Facilitation Agreement Facility (TFAF) which offers technical assistance. On June 8, 2016 the WTO held an experience-sharing event “to identify best practices and the challenges faced by WTO members in establishing or maintaining a national [trade facilitation] committee”.

The following Caribbean countries have also ratified the TFA:  Trinidad and Tobago, Belize,  Guyana, Grenada, Saint Lucia and Jamaica.

The WTO press release may be viewed here.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

CCJ Issues Ruling in Gay Rights Freedom of Movement Case

Alicia Nicholls

Test cases in law are a legal academic’s dream. They  help to map uncharted legal waters by establishing important legal principles and rights, which, as precedents, would be binding in subsequent cases whose facts are similar. The consolidated  test cases of Tomlinson v Belize, Trinidad & Tobago brought by prominent Jamaican attorney and LGBTI (lesbian, gay, bisexual, trans, and/or intersex) activist, Mr Maurice Tomlinson, before the Caribbean Court of Justice (CCJ) aimed to do just that.

Mr. Tomlinson challenged the consistency of discriminatory provisions contained in the Immigration Acts of the defendant states, Belize and Trinidad & Tobago, which classify homosexuals among the classes of prohibited immigrants. He claimed that the mere existence of those provisions infringed his right of entry as an LGBTI Community national under Article 45 of the Revised Treaty of Chaguaramas and the 2007 Heads of Government Conference Decision.

Article XII of the Agreement Establishing the Caribbean Court of Justice gives the Court exclusive jurisdiction, subject to provisions of the Revised Treaty, in matters concerning the interpretation and application of the Revised Treaty. Freedom of movement of CARICOM nationals has been a sore point in Community relations, with some States claiming that their nationals are routinely discriminated against.  The Court rendered its landmark decision on the right of freedom of movement of CARICOM nationals in the case of Myrie v Barbados. The CCJ’s ruling in that case established definitively that CARICOM member states were bound by the 2007 Decision of the Conference of Heads of Government of CARICOM to allow all CARICOM nationals hassle-free entry into their territories and a stay of six months upon arrival. The only exceptions for refusing entry are where  the Member State deems a person to be “undesirable person” or where  it is believed the Community national seeking entry may become a charge on public funds.

The points of law raised in the instant case are unique as it is the first time that a CARICOM national has challenged the immigration laws of a CARICOM member state on the basis of infringing the right of entry of LGBTI community persons. Mr. Tomlinson also claimed infringement of his right under Article 7 of the Revised Treaty to not be discriminated against on the basis of nationality only and that being a UWI graduate and thus a Skilled CARICOM National, his rights under Article 46 of the Treaty would also be infringed.

The relevant sections from the two Immigration  Acts in question are as follows:

Belize Immigration Act (Cap 156):

5.-(1) Subject to section 2 (3), the following persons are prohibited
immigrants-

(e) any prostitute or homosexual or any person who may be living
on or receiving or may have been living on or receiving the
proceeds of prostitution or homosexual behaviour;

Trinidad & Tobago Immigration Act

8. (1) Except as provided in subsection (2), entry into
Trinidad and Tobago of the persons described in this subsection,
other than citizens and, subject to section 7(2), residents, is
prohibited, namely—

(e) prostitutes, homosexuals or persons living on
the earnings of prostitutes or homosexuals, or
persons reasonably suspected as coming to
Trinidad and Tobago for these or any other
immoral purposes;

As a matter of context for readers outside of the Caribbean, LGBTI rights are still not recognised in Caribbean countries. No one needs to look further than the many archaic and discriminatory laws still found on our statute books, which though not all enforced, still discriminate against members of the LGBTI community and are incongruous to the requirement of legal certainty.

Mr. Tomlinson argued that while he has never been himself denied entry into the defendant member states,  the mere existence of the provisions in question were inconsistent with his right of entry as to enter would amount to him being in breach of the law. As such, Mr. Tomlinson not only requested the Court to make declaratory orders declaring his right of entry to these states, but also that the provisions in question violated his right to freedom of movement and his right not to be discriminated against on the basis of nationality only. He also requested the court to order Belize and Trinidad & Tobago to remove homosexuals from the class of prohibited immigrants.

For their part, the defendant states argued, inter alia, that the existence of the provisions in question in their Immigration Acts  has not hindered Mr. Tomlinson’s entry into their territories. They also did not deny that Mr. Tomlinson was entitled to entry and stay of up to 6 months. The defendant states also agreed that they did not see Mr. Tomlinson, a homosexual, as an “undesirable person” within the meaning given in the 2007 Conference decision.

Judgment

The Court agreed that homosexuals cannot be categorised as ‘undesirable persons’ and concluded that homosexual CARICOM nationals have a right to freedom of movement on the same terms as any other CARICOM national. However, in regards to the central issue on whether the mere existence of the challenged statutory provisions constituted a breach of those States’ obligations, the Court had consideration for the state practice in Belize and Trinidad & Tobago. Interestingly, the Court accepted Belize’s interpretation of section 5(1)(e) of its Immigration Act that homosexuals are only prohibited from entering the country in cases where they are engaging in prostitution or benefiting from acts of prostitution performed by others.

Turning to Trinidad & Tobago, the Court found that unlike the Belize provision, the provision in the Trinidad & Tobago Immigration Act expressly prohibited the entry of homosexuals and not solely those seeking to engage in prostitution. The Court, however, accepted Trinidad & Tobago’s evidence of state practice that despite the existence of this discriminatory provision, it is not enforced.

Noting the inconsistency of 8(1)(e) of Trinidad & Tobago’s Immigration Act with the Revised Treaty, the Court, however, made reference to Article 9 of the Revised Treaty which provides that “in the event of any inconsistencies between the provisions of this Act and the operation of any other law, the provisions of this Act [the Revised Treaty] shall prevail to the extent of the inconsistency’. The Court also noted that the state practice of Trinidad & Tobago and Belize does not suggest any incompatibility with the Revised Treaty or the 2007 Conference Decision. The Court held, therefore, that Tomlinson had no valid reason to assume that his rights would not be respected by the States.

However, the Court further emphasised at paragraph 59 of the Judgment that it was not condoning the retention by member states of legislation which conflicts with Community Law and stressed that “[s]tates should ensure that national laws, subsidiary legislation and administrative practices are transparent in their support of the free movement of all CARICOM nationals”. The Court also dismissed Mr. Tomlinson’s claims that his rights under Articles 7 and 46 of the Revised Treaty were infringed.

Jurisprudential Impact

Although the defendant lost his claim and was denied the requested remedies, this test case achieved two main things. Firstly, the Court stated definitively that “the practice or policy of admitting homosexual nationals from other CARICOM States (not falling under the two exceptions mentioned in the 2007 Conference Decision) is not a matter of discretion but is legally required based on Article 9 of the RTC as this is an appropriate measure within the meaning of that provision”. Therefore, States cannot as a matter of practice deny entry of homosexuals into their territories. It is hoped, however, that member States will move with alacrity to repeal those discriminatory sections of their Immigration Acts, and also give greater importance to bringing their laws into conformity with Community rules.

Secondly, in so doing, the judgment has added to the Court’s growing jurisprudence, including on the contentious issue of freedom of movement.This significance was not lost on the Court. The justices stated at paragraph 65 of the judgment that the case “raised novel questions and has contributed to the clarification and development of Community law”. While litigation may be costly for member states against which claims are brought, the testing of issues of law by Community nationals helps to clarify points of Community law and ensure that member states are held accountable and uphold the rights which they agreed that Community nationals should enjoy.

Recognising the need not to discourage parties from bringing test cases, particularly in the Court’s current stage of development, the Court in its discretion found the current circumstances were “exceptional circumstances” under Part 31.1(3) of its Original Jurisdiction Rules 2015 and so ordered both parties to bear their own costs.

Copies of the summary, entire judgment and the video of the delivery of the judgment are available on the CCJ’s website here.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

 

Barbados’ Upcoming CFATF Mutual Evaluation: What’s at stake?

Alicia Nicholls

A robust regime for anti-money laundering and combating the financing of terrorism (AML/CFT) is critical for the integrity and stability of a jurisdiction’s financial sector. This is doubly critical in Barbados where the international business and financial services sector is the second largest foreign exchange earner. Any perceived gaps in Barbados’ AML/CFT framework could sully its international reputation as a place for doing legitimate business, with repercussions for local employment, foreign exchange inflows and tax earnings.

Barbados will shortly undergo its 4th Mutual Evaluation by the Trinidad-based Caribbean Financial Action Task Force (CFATF), the Caribbean regional associate member of the Financial Action Task Force (FATF). An intergovernmental body established in 1989, the FATF is the international standard-setter for AML/CFT and combatting the financing of proliferation. Last revised in February 2012, the FATF’s 40 recommendations plus its 9 special recommendations on Terrorist Financing and the Interpretive Notes are the internationally accepted standards for AML/CFT.

Read more of my article at the Broad Street Street Journal here.

Are AML (Anti-Money Laundering) requirements hindering SME access to trade finance?

Alicia Nicholls

Trade finance is the lubricant which facilitates the smooth conduct of international trade transactions. It allows traders to manage the commercial, country and currency risks inherent in cross-border trade transactions. In other words, trade finance is what helps importers pay for goods and services and ensures exporters are paid in full and on time for goods and services rendered internationally.

A recent World Trade Organisation (WTO) report highlighted that “up to 80 per cent of global trade is supported by some sort of financing or credit insurance”. Although bank-intermediated trade finance instruments, such as documentary letters of credit and documentary collections are major types of trade finance, inter-company credit is also of importance.

Trade Finance Gaps

Despite the centrality of trade finance to global trade, the above-mentioned WTO report entitled “Trade Finance and SMES: Bridging the Gap in Provision” found that access to trade finance was not geographically uniform. This is supported by the  Asia Development Bank’s 2015 Trade Finance Gaps, Growth, and Jobs Survey which highlighted that “the global trade finance gap stands at $1.4 trillion, $693 billion of which is in developing Asia (including India and the Peoples Republic of China)” and that “while availability of trade finance has improved, gaps have become more concentrated”.

Equally striking but not unsurprising is the large gap in access to trade finance between SMEs and MNCs. According to the WTO Report, “globally, 52 per cent of SMEs see requests for their trade finance rejected, against 7 per cent for MNCs”. Even more disconcerting is that “in some large developed countries, up to a third of SMEs face such challenges.”  In the aftermath of the Global Financial and Economic Crisis of 2008, small and medium sized enterprises (SMEs), particularly in Africa and Asia, have found accessing credit for trade increasingly difficult. The Caribbean was not mentioned in the WTO Report but 41.6% of respondents in Latin America identified ease of trade finance as a major obstacle to company’s exports, second only to Africa where 66% shared that view.

SMEs are important drivers of trade, as well as generators of employment and economic activity. An OECD report stated that SMEs account for 60 to 70 per cent of jobs in most OECD countries. In developing countries, particularly small island developing states like the Caribbean, the majority of businesses would be classified as SMEs. Advances in technology have made new opportunities possible for SMEs. They generate growth and employment, which means trade is not just the domain of multinational corporations (MNCs) anymore. Access to trade finance is vital for SMEs not just to engage in international trade but to expand and to capitalise on market access openings created by trade agreements.

In the aftermath of the Global Economic and Financial Crisis, banks have become a lot more conservative in their lending practices. SMEs lower access to “good collateral” and often shorter credit histories make them riskier prospects than established companies.  In cases where trade finance requests are rejected, SMEs either have to find an alternative source of financing the transaction or abandon it altogether. SMEs also often lack information on the trade finance options available to them.

AML/Trade Finance Nexus

According to the WTO Report, 41.4% of respondent banks cited anti-money laundering and know-your-customer (KYC) requirements as a barrier to providing trade finance. Moreover, the International Chamber of Commerce (ICC) identified the main regulations affecting Trade Finance as the Basel Accords on capital adequacy, liquidity and leverage, as well as regulations relating to AML/KYC/KYCC and sanctions.

There are three main methods of laundering illicit monies are through the financial system, physical movement of proceeds across borders and through the international trade system. In regards to the latter, the FATF in its 2006 paper raised the importance of combatting trade-based money laundering (TBML).

In its 2008 Best Practices Paper the FATF defined Trade-based money laundering and terrorist financing (TBML/FT) as:

“the process of disguising the proceeds of crime and moving value through the use of trade transactions in an attempt to legitimize their illegal origin or finance their activities.”

Common techniques include over or under-invoicing, multi-invoicing, false descriptions of goods and over and under-shipments if goods.

Regulators in developed countries have been punitive in the fines and sanctions meted out to banks found to be in violation of anti-money laundering (AML) and know your customer (KYC) regulations. One of the unintended consequences is that banks have started to de-risk, that is, instead of identifying and managing risks on a case by case basis, they have sought to avoid risk altogether through cutting off correspondent banking relationships with banks in high risk jurisdictions or refusing to provide trade finance to firms with higher risk profiles. While banks could reduce their exposure through higher levels of KYC/CDD, the increased costs they would incur often outweigh the profitability from these business lines.

One of the key findings from International Chamber of Commerce research shows that trade finance transactions have low risks of default, with an average default rate of short-term international trade credit of 0.021%, something which makes trade finance a lot less risky than one might originally think.

The bottom line

AML and KYC regulations are important for ensuring the stability and integrity of the global financial system and help to prevent trade-based money laundering which has negative consequences for both developed and developing countries. However, care must be taken that these regulations do not undermine SMEs access to trade finance, especially in poor countries. Denial of access to trade finance has implications not just for SMEs’ ability to engage in international trade, but to expand and to contribute to job creation and economic activity, with wider economic and sustainable development implications.

In regards to improving access to trade finance, the WTO Report made 6 recommendations, namely reducing the limitations in existing multilateral programmes and increase programme size where possible, set a realistic objective for total trade coverage, increasing capacity building support, maintaining an open dialogue with trade finance regulators, improving the capacity of the international community to read markets and predict problems.

Indeed, there is a role for closer WTO engagement with the Financial Action Task Force (FATF), the global standard-setter for AML/CFT rules, in dealing with the trade finance/AML intersection. Director General of the WTO, Roberto Azevedo, reiterated these sentiments in his speech at a meeting of the WTO’s Working Group on Trade, Debt and Finance where he opined that “greater cooperation between organisations could again lead to better market intelligence, which would enable us to be more responsive to problems as they emerge”.

According to the informal report published by the WTO Secretariat of the Expert Group on Trade Finance’s Meeting in April, 2016, a proposal was also discussed by the Expert Group in regards to tentatively increasing the amount of trade covered by existing trade finance facilitation programmes operated by multilateral development banks from the current $30 billion to $50 billion, as well as discussions on the need for improved capacity-building in trade finance in developing countries.

Besides this, official data on trade finance is lacking, and especially so in the Caribbean. As was noted by the Bank of International Settlements (BIS) in a 2014 report, there is no single or comprehensive source of statistics from which one can estimate the size or composition of trade finance markets. Further research needs to be done on financing challenges experienced by SMEs seeking to participate in international trade and on the impact that de-risking is having on trade finance. Such research will be critical in identifying the scope of the problem and in crafting strategies for monitoring and mitigation.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is an international trade and development consultant. You can read more of her commentaries here or follow her on Twitter @Licylaw.

What the debate on the Panama Papers forgets

Alicia Nicholls

No two words have evoked as much emotion and debate internationally in recent weeks as have the so-called “Panama Papers”. The moniker refers to the cache of over 11 million emails, invoices and other documents leaked by a whistle-blower and originating from the Panamanian international law firm Mossack Fonseca.The files reveal the firm’s use of offshore vehicles registered in several offshore financial centres (OFCs) around the world to help thousands of international celebrity, public official and otherwise wealthy clients worldwide in their tax and asset management. The potential fall-out of the Panama Papers for Barbados was one of the topics of discussion by a panel at the Barbados International Business Association’s very informative Update Seminar last week Thursday.

Read my full article in the Broad Street Journal here.