Caribbean Trade Law and Development

Category: javier spencer

  • Could citizenship by investment be a homegrown solution to address loss and damage?

    Could citizenship by investment be a homegrown solution to address loss and damage?

    Javier Spencer, Guest contributor

    Javier Spencer

    “We have lost everything” is the harrowing cry you would hear from someone in the aftermath of a climate disaster. And ‘everything’ in this context is not a hyperbole but a stark reality. For instance, the paradise islands of Barbuda (part of Antigua & Barbuda) and Dominica were hit by catastrophic hurricanes in September 2017. The hard blow experienced by both islands resulted in permanent infrastructural damages, economic losses, and losses of lives and livelihoods. The onset of these disasters has been coming at an increased frequency with incomparable strength. Citizens of Caribbean Small Island Developing States (SIDS) have no choice but to toil forward in fear – not knowing when or how strong the next hit will be.

    After the catastrophe has departed, it leaves a dismal recovery for these Caribbean SIDS. These countries are characterized by small size, high debt burdens, and limited physical resources that make it particularly challenging to address the adverse impact of climate change disasters. This is what we call “loss and damage”. The consequences of climate change fast outpace the ability to adapt, coupled with the lack of resources to exploit in the face of a climate disaster. Out of curiosity, could Citizenship By Investment Programmes (CBI) in the Caribbean be one way to raise urgent finance to address loss and damage? This article considers whether these programmes could be one way to raise quick cash to address loss and damage.

    The binary view of loss and damage shows one side as economic losses and the other as non-economic, but both categories are often woven tightly together. On the one hand, economic loss and damage emanates from productive sectors being negatively affected by climate change. In contrast, non-economic loss and damage, on the other hand, is simply the unreckonable human casualties – that is, the loss of life, the human displacement, and even the proliferation of physical and mental illnesses.

    The writing on the wall is that Caribbean SIDS lack the requisite resources to build resilience and to merely implement adaptation and mitigation strategies equivalent to the extent of the resulting damage. Owing to this, developing countries, particularly SIDS, have for thirty years vociferously implored developed countries to agree to establish a multilateral fund that would assist them in tackling loss and damage.

    The key tenets of the multilateral fund, however, are ‘new’ and ‘additional’. This means that the funding arrangement should be separate and distinct from existing global financial structures marred by eligibility criteria checkboxes that would exclude most SIDS – the most climate vulnerable – from accessing these funds. Furthermore, a specific, fit-for-purpose multilateral funding arrangement that is governed under the oversight of the United Nations Framework Convention on Climate Change (UNFCCC) would guarantee access for vulnerable countries, establish legitimacy and enhance transparency.

    The logic is solid and cohesive. Yet, the road to a consensus to establish the fund was daunting and met with resistance from developed countries. Nevertheless, history was made by the sound of the gavel at COP27 in Sharm el-Sheikh, Egypt. Parties finally agreed to establish a long-awaited loss and damage fund for assisting developing countries that are particularly vulnerable to the adverse effects of climate change. This would compensate the most climate-vulnerable countries, which have contributed inconsequentially to the climate crisis.

    Now that there is an agreement, what’s next? The next hurdle is negotiating the operationalisation of the fund – what are the sources of finance? What will the fund look like? How will it be administered? And more importantly, how soon will beneficiaries be able to access the fund? With these looming questions and details to iron out, operationalising the fund could be lengthy. But time is a luxury that SIDS cannot afford.

    As cynical as this question may be, what if the fund takes another 30 years to operationalise? Some reports have indicated that the cost of weather-related events in 2021 is estimated at US $329 billion globally. In the context of Caribbean SIDS, out-of-the-box fundraising might have to be employed to fill the void and supplement a fund.

    Citizenship by Investment (CBI) Programmes have met favour with some Governments in the Caribbean in generating quick revenue outside of traditional revenue streams to repay debts, invest in development projects, and fund other initiatives. CBI Programmes grant investors citizenship for significant investment contributions to the economy. These programmes currently exist in Saint Kitts and Nevis, Dominica, Grenada, Saint Lucia, and Antigua and Barbuda.

    So far, these programmes are proving to be one way to generate foreign investment quickly. For instance, between 2016 to 2021, reports have shown that  the CBI programme generated an annual average for  Saint Lucia, XCD $ 30 million; Grenada, XCD $ 3 million; and Antigua Barbuda, XCD $ 33 million.

    Looking at the dollars and cents at the surface shows that CBI programmes could be a veritable income generator. Zooming in, with specific reference to the one in Antigua and Barbuda, the investment options for investors are the National Development Fund (NDF), Real Estate, Business Investment, and the University of the West Indies (UWI) Fund.

    In spite of the dollars and cents, these programmes have received negative global press – bringing into question governance, accountability and transparency. Ironically, the same carbon-emitting developed countries are the ones scrutinising CBI programmes in Caribbean SIDS. The increased scrutiny has certainly impacted these countries through blacklisting, tax haven labelling, and visa restriction for passport holders from these countries.

    Very soon, we could see a rapid decline or even a sudden halt in CBI programmes. But while they are still alive, now is the time to consider adding a new investment stream: Climate Resilience Fund. This new revenue stream would be exclusively used to address loss and damage. Establishing this would require the integration of relevant local and authorised environmental agencies and a robust transparency and accountability framework that governs these programmes. This article should not be misconstrued to replace the multilateral loss and damage fund but rather a speedy self-fundraising mechanism to supplement the fund. Is this feasible?

    Javier Spencer is an International Trade & Development professional with keen interests and specialization in Global Business, Communications and Diplomacy.  You are free to reach out to Javier via email at javier@javierspencer.com or on LinkedIn.

  • Antigua, Are you ready to Gamble?

    Antigua, Are you ready to Gamble?

    Javier Spencer, Guest Contributor 

    Javier

    –Did you know that in 2000, the Antigua and Barbuda’s Online Gaming Industry accounted for 61% of the Global Online Industry?(Global Betting and Gambling Consultants, 2007) This figure declined in 2001 onwards as the United States introduced statutes that limited Antigua’s supply of online gambling services in the US.

    The clock has been ticking and the Government of Antigua and Barbuda (Antigua) has now decided to take the necessary actions to retaliate against the United States (US) in its long-simmering case at the World Trade Organization (WTO) (See US Gambling DS285). The US Gambling case is the first case of its kind brought to the WTO in respect of interpreting and applying member states’ commitments under the General Agreement on Trade in Services (GATS). The GATS is a WTO Agreement that emanated from the Uruguay Round of negotiations in January 1995 and much like the General Agreement on Tariffs and Trade (GATT), the GATS’ remit is to substantially reduce barriers to trade within the services sector based on principles of Most Favoured Nation (MFN) and National Treatment (NT).

    Background & WTO Findings

    Antigua in 2003 filed a complaint to the WTO to challenge domestic legislation in the US that have significantly restricted the ability for service providers of Gambling and betting services in Antigua, to offer their services to customers in the US. The statutes brought into question were: ‘The Wire Act’, ‘The Travel Act’, and the ‘Illegal Gambling Business Act’; all of which Antigua claimed were de facto discriminatory and therefore in breach of the US’ market access commitments (Article XVI (I) GATS). In response, however, the US claimed that it had never made specific GATS commitments on the cross border supply of gambling services and further iterated that the statutes were passed with the main objective of protecting public morals and maintaining public order (Article XIV (a)).

     Much to the surprise of the US, a WTO panel ruled in favour of Antigua in 2004. This ruling was upheld by the Appellate Body in 2005 on the US’ appeal. The ruling found that regardless of the US’ intent to “protect public morals or to maintain public order” the US indeed made specific GATS commitment in respect of the supply of gambling services. Against the backdrop of the chapeau of Article XIV, the US failed to demonstrate that the pieces of legislation did not constitute “arbitrary and unjustifiable discrimination” in respect of the supply of online gaming.

     The US was given the deadline of until April 2006 to amend its legislation to be consistent with WTO law (DSU Article 21.5). Years later, the US has failed to comply with the ruling which prompted Antigua to file an enforcement case at the WTO. Fast forward to 2016 and the U.S. has still failed to comply with the WTO ruling. Therefore the Government of Antigua has recently announced its intention to implement remedies authorised by the WTO.

      The Remedy – Cross Retaliation

    In light of the US’ failure to bring its laws in compliance with WTO law, Antigua requested permission to retaliate against the US by suspending obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS Agreement is another result of the Uruguay Round of negotiations which seeks to “promote effective and adequate protection of intellectual property rights”. Ultimately, of course, the agreement regulates intellectual property rights (IPRs) in a manner that eliminates or reduces any barriers to trade.

    Further to Antigua’s request, the WTO granted Antigua (as a compensatory measure) the authorization to retaliate in January 2013. This means that Antigua could withdraw US $21 million worth of concessions in IPRs held by US firms, per annum. This cross retaliation strategy has proven to be the best strategy in getting a developed country to comply with WTO rulings. As a precedent, the WTO granted Ecuador the rights to suspend IPR concession against the European Communities (EC) in EC- Bananas III (See DS27). In the final analysis, Ecuador never suspended its TRIPS obligations, but used it as leverage to quickly negotiate with the EC on a mutually agreed solution. This case signals that suspending IPRs as a retaliatory measure gives developing countries a strengthened negotiating position that will serve as an impetus for the developed country to comply or to quickly negotiate a mutually agreeable settlement.

    For Antigua, the cross-retaliation remedy could redound to the greater good of its citizens. For example, pharmaceuticals could be legally produced and distributed in Antigua to fight diseases without paying the remunerations otherwise required under TRIPS.

    However, a closer look at the suspension of TRIPS obligations yearns a pertinent question. Does Antigua possess the clout and capacity to retaliate using this method? In order for this remedy to secure a great impact on the U.S., firms in Antigua ought to demonstrate that they have technological capacity for (large scale) domestic production of copies of IPR goods from the U.S. This example is further exacerbated if Antigua’s import of IP goods and services from the U.S. is insignificant.

    The suspension of IPRs held by US firms is confined to the borders of Antigua and Barbuda which means that goods that would have been created under the TRIPS suspension regime cannot be exported out of Antigua to any other WTO country. At this juncture, a careful examination of the ‘first sale doctrine’ or ‘international exhaustion’ should be applied.

    Additionally, Antigua ought to guard against the risk associated with the authorization to retaliate. For instance, suspending TRIPS obligations may cause Antigua to violate its obligations under the Berne Convention and the Paris Convention. Secondly, the authorisation to suspend TRIPS obligations is only temporary in nature (Article 22.8 DSU), although the authorization set out by the DSB has no time limit to implement. However the broader picture portends that Antigua could only suspend TRIPS obligations until the US has removed or amend laws to become WTO consistent. In this regard, Antigua ought to be mindful of new industries that could emanate from this suspension as it would be highly susceptible to a quick change in US laws. Furthermore, Antigua’s preferences under the Caribbean Basin Economic Recovery Act (CBERA) could be negatively affected as one of the criteria is respect for IPRs.

    Conclusion

    The US Gambling case is a peculiar case where a WTO ruling has been in favour of the developing country’s complaint against the developed country. In such cases, the authorization of TRIPS obligations as a strategy for a developed country to comply could be highly flawed and wreaks greater havoc for the developing country.  Antigua’s retaliation, as case in point, could be ineffective whereas in comparison to the effect that the US statutes had on the Antiguan economy. There are many risks involved in respect of being in breach of other international treaties. Ultimately, however, the measure is meaningless if developing countries do not have the capacity to implement such an authorization.

    After a keen assessment of the economic and political risks associated, what other cards are left for Antigua to play? Perhaps Antigua could consider transferring its rights to suspend its TRIPS obligations to another WTO Member State who has the capacity and the clout to successfully implement such a regime. The uncertainty of the outcome is high as there is no precedent of a developing country who has successfully cross-retaliated through a suspension of their TRIPS obligations. This is truly a gamble and Antigua, are you ready?

    Javier Spencer, B.Sc., M.Sc., is an International Business & Trade Professional with a B.Sc. in International Business and a M.Sc. in International Trade Policy. His professional interests include Regional Integration, International Business, Global Diplomacy and International Trade & Development. He may be contacted at javier.spencer at gmail.com.