Caribbean Trade Law and Development

Category: CARICOM

  • Jamaica tops Anglophone Caribbean on ease of doing business in Doing Business Report 2016

    Alicia Nicholls

    Jamaica can boast of being ranked as the easiest place to do business among countries of the English-speaking Caribbean, according to the World Bank’s Doing Business Report 2016. Jamaica has an overall rank of 64 out of 189 economies surveyed in the report, improving seven places from a ranking of 71 last year. Jamaica was not only the highest ranked of the English speaking Caribbean countries but was second only to Puerto Rico (57) out of all Caribbean countries. Jamaica was also the only Caribbean economy ranked among the ‘top 10 improvers’ in terms of performance on the Doing Business indicators in 2014/2015.

    Now in its 13th year of publication, the 2016 edition of the Report entitled ‘Measuring Regulatory Quality and Efficiency’ ranked 189 economies globally on the ease of doing business based on 10 indicators which measure and benchmark regulations which pertain to local small to medium-size enterprises throughout their life cycle. The indicators were: starting a business, dealing with construction permits, getting electricity, registering property, getting credit, protecting minority investors, paying taxes, trading across borders, enforcing contracts and resolving insolvency. Although presented in the economy profiles, labor market regulation indicators are not included in the aggregate ease of doing business ranking this year.

    On two of the indicators Jamaica ranked among the top 10 economies globally, namely ‘ease of starting a business’ (9) and ‘getting credit’ (7, tied with Puerto Rico). Its lowest rankings were in regards to ‘trading across borders’ (146), ‘paying taxes’ (146) and ‘registering a property’ (122).

    Several reforms introduced by Jamaica during the 2014/2015 period were deemed to have made business easier including, streamlining internal procedures for starting a business,  implementing a new workflow for processing building permit applications, by encouraging taxpayers to pay their taxes online, introducing an employment tax credit, just to name a few. However, the introduction of a minimum business tax, the raising of the contribution rate for the national insurance scheme paid by employers and increased rates for stamp duty, the property tax, the property transfer tax and the education tax were viewed less favourably.

    The average ranking of Caribbean economies on the ease of doing business was 104. After Jamaica (9), the next three top regional performers were St. Lucia (77), Trinidad & Tobago (88) and Dominica (91). Haiti had the lowest rank among CARICOM countries (182), followed by Grenada (135) and St. Kitts & Nevis (124). Of note is Barbados which slipped 3 places from 116 in last year’s ranking to 119 in the 2016 ranking, making it the fourth lowest ranked CARICOM economy by ease of doing business. In regards to the region as a whole, the Report commended the region’s continued “remarkable progress” on reforms to resolve insolvency, including the new insolvency laws adopted by Jamaica and St. Vincent & the Grenadines.

    It should be noted that although no Caribbean country made it into the top 50 economies on the list, the region did well compared to most SIDS globally, with the notable exception of Mauritius which ranked a laudable 32. On average the Caribbean region ranked highest on ‘getting electricity’ (74), ‘starting a business’ (87) and ‘enforcing contracts’ (90), while scoring lowest in ‘registering property’ (144), ‘resolving insolvency’ (114), ‘paying taxes’ (112) and ‘getting credit’ (112). However, individual countries’ performance on each of these indicators showed great variance.

    While it has its limitations, the Doing Business Report, a flagship report of the World Bank, remains one of the best comparative measures of countries’ business environments. After all, it touches on many of the indicators which companies consider when seeking to invest in a foreign market. As such these rankings are and should be used by countries across the region as a guide to measure the success of their regulatory reforms, identify strengths and weaknesses of their business environments, and compare their countries’ business environment ranking regionally, globally and over a time period as they compete which each other for global investment inflows. While Jamaica’s over all performance is praiseworthy, what these rankings demonstrate is that there still remains great room for improvement if Caribbean countries are to become globally competitive as choice destinations for doing business.

    The full Doing Business 2016: Caribbean States Regional Profile may be accessed here, while the full Doing Business Report 2016 is available 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.

  • Securing better statistical data for better Caribbean lives: Reflecting on the data problem in the Caribbean

    Alicia Nicholls

    Statistical offices and associations across the Caribbean will join those around the world this coming Monday October 20 in celebrating the annual UN World Statistics Day which aims to highlight the importance of statistics in shaping our societies. This year’s theme “Better data, better lives” caused me to reflect on two things which caught my eye in the news in recent weeks. The first was the non-inclusion of Barbados in the World Economic Forum’s Global Competitiveness Report 2015/2016 due to the lack of available data. This point was raised by one of our veteran journalists in an article. The second was the description by the Director of the Caribbean Export Development Agency of the lack of data for the region in order to assess the competitiveness of regional exports as “embarrassing”.They got me thinking yet again on this vexing data problem in the region and the serious development implications of this status quo.

    The Caribbean’s data scarcity problem

    A report coming out of an ECLAC workshop in 2003 succinctly sums up the data problem in the region:

    Generally, the Caribbean countries have been described as “data poor” and in the absence of data and information, policies adopted and implemented have been arrived at on the basis of little or no data and less information. The result is years of wandering in the wilderness of development – talking of visions of the promised land of development without the ability to measure proximity to that goal.

    Years later, the data problem repeats itself. Too many reports mention data shortages in regards to the Caribbean; data is often either missing for some indicators or some years. Barbados’ embarrassing omission from the Global Competitiveness Index ranking in the WEF’s Global Competitiveness Report for 2015/2016 due to the absence of data is just one of the latest examples.

    Obstacles to data availability

    The ECLAC report quoted above notes that obstacles to data availability in the Caribbean region include the following:

    • Lack of financial resources, ‰
    • Lack of qualified personnel, ‰
    • Lack of institutional capacity, ‰
    • Lack of coordination between departments, ‰
    • Low priority on the political agenda

    As a researcher, I can certainly add more than my two-cents’ worth of frustration at the difficulty and in many cases, futility, of trying to obtain data from official and private sector sources here in Barbados and elsewhere in the region in a timely fashion. This is not to cast aspersions on any of these actors. After all, there are occasions where I have gotten good data and assistance from willing staff in government departments/agencies, private sector  associations and from businesses for studies I have had the fortune of working on. But sad to say, there are many occasions where this is the exception and not the rule.

    Central Statistical Offices (CSOs) are financed primarily by government budget resources and in some cases have been receiving declining budget allocations as cash-trapped governments in the region seek to minimise government expenditure. As a result, the human resource and finance constraints of CSOs often limit their capacity to collect data or to process data requests from the public in a timely manner. This often leads to long waiting times for accessing data.

    Outside of initiatives like CARICOMStats, there are few online national or regional statistical databases to draw on. The few which exist are often outdated or limited in the datasets available. The best sources for online data in the region still tend to be international databases. There are good data-rich studies which have been conducted which have been commissioned by public or non-state entities but these findings are often not published or are disseminated only to select stakeholders.

    Data scarce or data scared?

    This brings me to a question I often ask; is it only that we are data scarce or are we also data scared? In the Caribbean there is a possessiveness with which we guard data. There is still the archaic mentality among some public and private actors that power requires cornering knowledge, while data sharing weakens power positions. Due to the silo mentality that pervades many of our civil services, there is often limited data sharing between government agencies and there are instances of more than agency collecting the same data. On the flip side, data collection by government agencies is often constrained by non-cooperation by some members of the private sector and the public in providing data to these agencies in a timely manner. Many businesses in the region do not like to complete surveys and/or are extremely guarded about what data they provide to third parties, with or without a confidentiality agreement.

    Often times, therefore, the only way to obtain data in the region is if one knows a contact in a government agency or has a personal rapport with the business owner from which data is requested. Indeed, what needs to be recognised is that data sharing empowers all. It empowers the data sharer, the data gatherer and the ultimate end users (e.g. the policy makers), as well as the beneficiaries of any policies which the data has been used to support and develop. While there are legitimate data security concerns particularly in regards to sensitive data, this should not be used as an excuse to deny data for legitimate goals.

    So what’s the big deal anyway?

    The data situation in the region is one that has many sustainable development implications. The main end users of data are not just governments, but businesses, NGOs and the citizenry in general. The availability of reliable, accurate and timely statistics is needed for evidence-based planning, evaluating and monitoring of policies and programmes at all levels of government, business and civil society, which ultimately impacts on the society at large. For instance, how can we formulate effective poverty eradication policies if we do not have accurate data on the scale, nature and complexity of the poverty problem? How do we know that the targeted interventions to grow premature sectors of our economies are working if we do not have enough data on which to conduct a proper impact assessment? In many cases, as pointed out in the quote above from the ECLAC workshop report, we are making policies, decisions and formulating plans in the dark. How often have you heard public officials give reports on policies or problems but caveat them by saying “(recent) data is not yet available” or something else to that effect?

    What needs to be done?

    We in the Caribbean region know and acknowledge we have a data problem. What then are the possible solutions?

    • Firstly, we need to strengthen the capacity of our national statistical systems and primarily our CSOs. Our governments must provide CSOs with enough financing and qualified staff so they can effectively and efficiently carry out their functions of collecting, interpreting and providing us the public with timely, accurate and reliable data.
    • Secondly, a frequent complaint is that there are not enough people in the Caribbean region trained in statistical methodologies and technologies. We need not only to continuously train existing CSO staff in these methodologies and technologies but to encourage young people to get into the field of statistics. Statistics is often not seen as a particularly “sexy” or lucrative field like say law or medicine. But this can be changed. Many countries offer national scholarships for development purposes. Why not identify statistics as one of the areas eligible for these scholarships?
    • Thirdly, a big problem in our civil service, and our societies, is the endemic phenomenon of silos; various government agencies collecting the same data or not sharing data with each other. We need an integrated data collection and sharing approach among the various government agencies, coupled with greater linkages with the industry stakeholders. Key to this is more communication about the kinds of data needed, agreed methodologies and standards, and the mechanisms for reporting findings to stakeholders.
    • Fourthly, we must change the fear, skepticism and power attitudes many of our government officials and private sector actors have regarding data sharing through greater statistical advocacy. And while we are still on the topic of changing attitudes, our policy makers need to appreciate the importance of evidence-based (and not gut-based) decisions and evaluations.
    • Fifthly,it would be good to know how many countries have actually amended their statistical legislation to take into account the changes as proposed in the CARICOM Statistics Model Bill.

    This World Statistics Day 2015 themed “Better Data, Better Lives” should be a catalyst for our governments, CSOs, private sector and all our people to reflect critically on the importance of statistical data for creating better lives for us all in the Caribbean region. We know the data problem, the implications of it, and we know the solutions. These proposed solutions herein stated are not novel. They have already been posited by many others.

    Looking at the regional landscape there are several initiatives at the CARICOM level which are quite encouraging and are aimed at tackling the previously mentioned data challenges. Many of these initiatives are being done through technical assistance and capacity building programmes with the help of regional and international development partners. In his speech marking the 7th CARICOM Statistics Day 2015 on October 15,CARICOM Secretary General Irwin LaRocque urged member states to invest in improving their statistical production in order to assist with development. He also outlined the work of the Standing Committee of Caribbean Statisticians which has reportedly recently endorsed an action plan identifying the support needs of the region’s central statistical offices. In his key note address at the Second High Level Advocacy Forum on Statistics, in May 2014, the Hon. Dr. Keith Mitchell, the Prime Minister of Grenada, highlighted not only that statistics should be seen as the voice of the people but also reiterated the importance of a regional approach to statistical development and of ICT in the data revolution.

    The data shortage problem is on the regional agenda. What we need to do is to get serious about implementing these solutions at the national level and a big part of that starts with political will and cooperation from stakeholders.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant with a keen interest in sustainable development, international law and international relations.

  • A step towards progress between Haiti and the Dominican Republic?

    Alicia Nicholls

    The news this week of progress in the talks at Jimani between Haiti and the Dominican Republic to address, inter alia, the long-standing migration issue between the two countries is welcomed news. The fragile diplomatic relationship between the Dominican Republic and Haiti took a sharp turn for the worse in the latter part of last year following a controversial ruling by the DR’s Constitutional Court  on September 23.

    The DR’s Constitutional Court had been called on to consider an application made by Ms. Juliana Deguis Pierre that the Electoral Office be ordered to issue her with a national ID card which she had been denied on the basis that she was the child of Haitian parents and not Dominican. Ms. Pierre was born and raised in Los Jovillos, an area in Yamasa municipality (in Monte Plata province) where many persons of Haitian origin live. Denying her request, the Court ruled that Ms. Pierre was not a Dominican citizen but a child born of ‘foreigners in transit’. Using the case as an opportunity to elaborate on Dominican nationality law, the Court applied the restriction on the jus soli principle per Article 18 of the 2010 Constitution, holding that under Dominican law birth on Dominican soil did not automatically confer citizenship on an individual and that for a person born after 1929 to be deemed a citizen of the Dominican Republic, he or she must have been born to at least one parent with legal status in the country. All other persons who did not meet this criterion would be classified as being ‘extranjeros en transito” (foreigners in transit) and therefore as never having had Dominican citizenship.  A copy of the court’s judgment can be read here (in Spanish).

    The principle in Dominican immigration law of “foreigner in transit” is not new as it was included in the Constitution of 1929 and in subsequent constitutional reforms, including as recently as in Article 18.3 of the reformed constitution of January 26, 2010. However, prior to the 2010 Constitution, citizenship in the Dominican Republic was conferred on an absolute jus soli basis as evidenced by the language used in previous constitutions, which excluded any reference to the requirement of being born of Dominican parentage. The Court’s retroactive ruling which applies the jus sanguinis principle, established in Article 18 of the 2010 Constitution, to those born after 1929 (and not just to those born after 2010) leaves several generations of Dominicans of foreign descent in a legal limbo as to their status. The retroactive application by the Court of Article 18 to this case seems especially harsh given that the 2010 constitution itself does not indicate that it is meant  to apply retroactively, evidenced by Article 18.2. which states that “Dominicans [also] include those who enjoyed nationality before the entry into force of the Constitution”. A copy of the 2010 Constitution may be found here (in Spanish).

    While persons born to parents of other nationalities will be affected, it is persons of Haitian descent who make up the overwhelming majority of persons to whom this ruling would apply.  Some human rights groups estimate that as many as 200,000 persons of Haitian descent may be affected by the ruling. Haiti and the Dominican Republic, which share the Caribbean island of Hispaniola, have always had a tense and complicated relationship which has its roots in the colonial era and in subsequent historical events. These events include the 22-year Haitian occupation of the Dominican Republic in the immediate post-colonial period before the latter attained its independence, and the slaughter of thousands of Haitians by the Trujillo dictatorship in 1937. The socioeconomic disparities between the two states and their cultural, religious, linguistic and racial differences, a legacy of colonialism, have only helped to further deepen the gulf between these two sister nations. A constant source of tension between the two states has been undocumented Haitian migration to the Dominican Republic. Ever since the 1920s when Haitian workers were actively recruited to work in the Dominican Republic’s sugar industry, the Dominican Republic has been an attractive employment market for seasonal and long-term Haitian workers searching for a better life for themselves and their families. Many of those affected by the ruling include Haitians who had been brought in to work on Dominican farms during the 1920s and their descendants born and raised in the DR.

    Haitian emigration to the Dominican Republic has helped to foment anti-Haitian sentiment among some Dominicans, a sentiment which is also boosted because of the Dominican Republic’s own racially stratified society where darker skin is still synonymous with being poor and uneducated.

    The immigration policy of states is always a touchy subject because of the importance it has for national security. Indeed, it is no doubt that inherent in being a sovereign nation is the right of the state to protect its borders. Both customary international law and the Montevideo Convention of 1933 provide that no state has the right to intervene in the internal or external affairs of another. Further, international law gives states the right to dictate their own policies in regards to conferring nationality.

    However, these rights are not absolute as they are subject, inter alia, to the various international human rights treaties which States, like the DR, have acceded to, and by which they agree to respect human rights and to be held accountable for any violation thereof. The human rights implications of the constitutional court’s ruling cannot be overlooked on the basis that the ruling is solely in the province of the DR’s internal affairs. The ruling has been condemned by CARICOM states (of which Haiti is a member) and by various human rights groups as being ‘racist’ and ‘xenophobic’ in nature and with potentially devastating human rights consequences.

    Although Dominican authorities deny that the ruling leaves anyone stateless and argue that a plan for naturalisation of affected persons would be implemented, the Court’s retroactive application of Article 18 of the 2010 Constitution does have the effect of stripping those affected of citizenship, depriving them of the rights inherent with nationality, such as the right to vote, the ability to get married and the right of access to basic services such as education, employment and health care, and bringing with it the possibility of expulsion from the land of their birth. Like Juliana Deguis Pierre, many of those three generations of Haitians who are affected were born in, and have lived in the Dominican Republic all their lives, have little or no ties to Haiti and speak no Haitian creole.  In light of the ruling, CARICOM has agreed to indefinitely defer consideration of the Dominican Republic’s longstanding application to accede to CARICOM.

    Happily, it appears tentatively that some progress is being made to address this unfortunate state of affairs. Both countries have agreed to establish a Joint Commission to discuss not just issues relating to migration, but also matters of trade, the environment, security, among others. The Dominican Republic has stated that it will as shortly as February 27th bring legislation to address the situation of those born in the Dominican Republic but who currently have no documentation. It is hoped that such legislation will undo the human rights injustice which this ruling portends, affirming the right of those affected to Dominican nationality and being a needed step towards addressing and correcting  the discrimination which many native born Dominicans of Haitian  descent continue to face.

    Alicia Nicholls is a trade policy specialist and law graduate. She can be followed on Twitter at @Licylaw. 

  • What does the Bali Package mean for Small Vulnerable Economies like CARICOM?

    Alicia Nicholls

    Five days of intense negotiations have given birth to the first major trade agreement to be agreed to by all WTO members since the WTO’s formation at the conclusion of the Uruguay Round. Termed “a leap forward for developing countries” by WTO Director-General Roberto Azevedo, the Ninth WTO Ministerial Conference held in Bali, Indonesia, in December of last year has been heralded as the injection of confidence needed to bring new life to a Doha Round which seemed to be tottering on the brink of failure.

    The Doha Development Agenda which, in the thirteenth year since its launch at the WTO’s Fourth Ministerial Conference in Doha, Qatar, has the unfortunate title of being the longest and most contentious multilateral trade round to date. It contains an ambitious work programme which covers about twenty areas of trade, including: agriculture, services, market access for non-agricultural products, trade facilitation, WTO rules, the dispute settlement understanding and trade and the environment. The disappointment with the lack of progress in the Doha Round since 2008 has led  many powerful WTO member states to turn their attention to bilateral agreements, including so-called “mega-trade deals” like the controversial Trans-Pacific Partnership (TPP). Entrenched interests and lack of political will have been blamed for the doldrums to which the Doha Round has been relegated since 2008. It is therefore no surprise that in his statement at the opening of the Bali Ministerial, Director General Azevedo noted that the future of the WTO and the Multilateral Trading System hung in the balance.

    Coming out of the Bali Ministerial Conference, the Ministers adopted the “Bali Package” on 7 December 2013, a package of ten agreements covering three of the more easily reconcilable cluster of issues of the Doha Agenda, namely trade facilitation, agriculture, cotton and development and LDC issues. CARICOM has always been a loyal supporter of the multilateral trade system, a sentiment reiterated by Guyanese Minister of Foreign Affairs, Carolyn Rodrigues Birkett, in her capacity as CARICOM’s Ministerial spokesman on WTO matters. The question to be explored in this article is what implications do the agreements and decisions contained in the Bali Package have for small vulnerable economies like those in CARICOM and the wider Caribbean?

    The Agreement on Trade Facilitation

    The Agreement on Trade Facilitation seeks to facilitate global trade by speeding up, and providing transparency and efficiency in customs procedures. The provision on goods in transit is of importance to landlocked countries which rely on ports in neighbouring coastal states for the import of goods. Keeping up with the times, there is also the requirement that information be placed online. The language of the Agreement is primarily ‘best endeavour’ for the simple fact that the ability of most states to abide by the provisions will be contingent on their receipt of funding to defray the costs of implementation. Indeed, the implementation of these requirements, while important for the multilateral trade system, will be costly for cash-strapped CARICOM states in terms of updating their existing infrastructure and training customs officials. The technical and financial assistance and capacity-building provided for in the Agreement,  in-keeping with the principle of special and differential treatment for developing states, will be vital to help CARICOM states meet these new obligations. The issue of the US’ illegal embargo on Cuba since 1960 threatened to hold up any agreement on trade facilitation. Cuba, Venezuela, among others objected to the removal of a provision relating to the embargo from the text. A compromise was struck by which a provision was added upholding the principle of non-discrimination on transit trade, which spoke  to the embargo situation.

    Agriculture

    The main contentious issue at the Bali Ministerial was the complex issue of public stockholding programmes for food security, a practice where governments purchase food from local farmers at favourable prices in order to guarantee food security and to support low income farmers.  The US was insistent on the expiry of the “Peace Clause” (Article 13 of the Agreement on Agriculture) which prevents support measures and export subsidies of a member which are legal under the Agreement on Agriculture from being challenged for their illegality under another WTO agreement. India, however, which operates MSPs programmes on a number of agricultural products, strongly objected to the proposed expiry of the ‘peace clause’ without provision being made for a permanent solution. A compromise was finally struck whereby the peace clause would remain in the interim until a more permanent solution was found.  The implication of this is that for now developing country members’ public stockholding programmes for food security in times of food crisis cannot be challenged under any WTO agreement even if they go over their Aggregate Measure of Support (AMS).

    Tariff Quota Administration

    With respect to the administration of under-filled tariff quotas, the agreement was reached that members would engage in a combination of consultation and providing information where such under-filling occurs. However, importantly several countries, including the CARIFORUM states of Barbados and the Dominican Republic, reserved the right not to apply the system after six years.

    Market Access for Least Developed countries

    Of particular concern to Haiti, the only LDC in CARICOM, are the four documents on market access for LDCS, which have remained unchanged from the versions negotiated at Geneva. These include decisions for granting duty-free, quota-access for least developed countries to export to developed country markets, simplified preferential rules of origin for goods from LDCs, a “services waiver for preferential treatment for LDC service providers” and a “monitoring mechanism on Special and Differential Treatment”.

    Of general interest to all countries of the region, decisions were also taken by the Ministers on five aspects of the WTO’s regular work. Members agreed not to bring “non-violation” cases in intellectual property to the WTO dispute settlement process, import duties would not be charged on electronic transmissions and special consideration would be given to the issues of small economies. Ministers also reaffirmed their commitment to Aid for Trade and affirmed that their Geneva delegations would be directed to continue examining the link between technology transfer and trade. However, the details of these latter decisions remain to be elaborated upon in future negotiations.

    Implications for SVEs like CARICOM?

    The conclusion of the Bali Package is a small but important step towards the achievement of the Doha Agenda for the simple fact that it gives a new infusion of confidence and credibility to the WTO as the pre-eminent forum for trade negotiations. This is only the beginning however. The Bali package focuses mainly on low hanging fruits, while negotiations on more contentious areas of interest to CARICOM, like services trade, remain. Other priority areas important for ensuring SVEs like CARICOM reap the benefits of the multilateral trading system are still to be finalised, including the work programme for SVEs,  Aid for Trade, the issue of appropriate flexibilities for SVEs in the NAMA negotiations, trade and technology transfer, more flexible accession for SVEs, and reforms of the dispute settlement process to take into account the difficulties faced by SVEs in ensuring compliance by larger states with dispute settlement body decisions.

    In their Ministerial Declaration, the Ministers instructed the Trade Negotiations Committee to prepare “a clearly defined work program on the remaining Doha Development Agenda issues” within the next twelve months, building on the Bali decisions and prioritising areas where binding decisions had been unable to be made. Director-General Azevedo has optimistically stated that the WTO hopes to have a full agreement by year-end.  Small developing economies like those in CARICOM have a lot riding on the outcome of the Doha Round and stand to lose the most should the round fail or not fulfill its mandate of being development-focused. However, the success of the Doha Round will depend on whether WTO member states, particularly the richer countries, are willing to set aside their entrenched political interests in the effort of delivering a truly development-centred final package.

    Alicia Nicholls is a trade policy specialist. She can be followed on Twitter at @LicyLaw.