Revised Treaty of Chaguaramas to be amended to regulate M&A activity in CSME

Photo credit: CARICOM Secretariat

Alicia Nicholls

Competition policy within the CARICOM Single Market and Economy (CSME), particularly the need for merger control regulation, was one of the major items discussed at the recently held Forty-Fourth Regular Meeting of the Conference of Heads of Government of the Caribbean Community (CARICOM) in the Bahamas last week (February 15-17, 2023).

The lengthy communique issued from the meeting revealed a packed agenda. Of interest to this author, of course, were the components dealing with continuing the consolidation of the CARICOM Single Market and Economy (CSME), especially because July this year will mark the regional grouping’s fiftieth anniversary.

Heads agreed that the Revised Treaty of Chaguaramas (RTC) would be amended to provide for the regulation of mergers and acquisitions in the CSME. This would be done on the basis of an approved Community Policy. They agreed that Member States should complete their internal consultations and approval processes on the Draft Policy on Mergers and Acquisitions in the CSME in time for the Council for Trade and Economic Development (COTED) to consider and approve the Policy in April 2023.

The CARICOM Competition Regime, as elaborated in Chapter 8 of the RTC, presently has three objectives (1) the promotion and maintenance of competition and enhancement of economic efficiency in production, trade and commerce, (2) the prohibition of anti-competitive business conduct which prevents, restricts or distorts competition or which constitutes the abuse of a dominant position in the market; and (3) the promotion of consumer welfare and protection of consumer interests. The Suriname-based CARICOM Competition Commission, along with the national commissions, is therefore a key institution for the functioning of a competitive CSME which is not harmed by anti-competitive conduct by businesses. However, currently, the CARICOM Competition Regime only regulates cross-border anti-competitive business conduct and the abuse of a dominant position. It does not deal with merger control regulation, which is the third aspect of competition policy. The Heads were also updated on the progress towards creating a dual role for the CARICOM Competition Commission (CCC) at the national and regional levels.

Asides from competition policy, the subject of progress towards completing the Draft Policy on a Regional Capital Market was also discussed. The Heads “called upon the Council for Finance and Planning (COFAP) and the Legal Affairs Committee to take the necessary action to ensure that the infrastructure for the regional capital market is largely in place within eighteen (18) months”.

They also supported COFAP’s decision to amend the Intra-CARICOM Double Taxation Agreement (ICDTA), through a Protocol on Treaty Shopping and Exchange of Information. Other topics discussed included advancing the CARICOM Agri-food systems agenda, the 50th anniversary celebrations, Afri-Exim Bank, the Bridgetown Initiative, Climate Change and Climate Finance, among others.

The full communique may be accessed here.

Alicia Nicholls, B.Sc., M.Sc., LL.B. is an international trade and development consultant and the founder of the Caribbean Trade Law and Development Blog http://www.caribbeantradelaw.com.