Category Archives: Law

WTO Panel rules in Argentina’s favour in EU Biodiesel Anti-dumping Case

Alicia Nicholls

A World Trade Organisation (WTO) dispute settlement body panel has ruled primarily in Argentina’s favour regarding anti-dumping measures imposed by the EU on Argentine biodiesel exports to the EU. Inter alia, the panel found that the EU had contravened the Anti-dumping Agreement and the GATT 1994 by failing to calculate the cost of production of the product on the basis of the records kept by Argentine producers, and by imposing anti-dumping duties in excess of the margins of dumping that should have been established per the Anti-dumping Agreement and the GATT 1994.

Background

The dispute (DS473) European Union – Anti-dumping Measures on Biodiesel from Argentina surrounds two EU measures regarding biodiesel imports from Argentina and Indonesia, namely:

  • Article 2(5), second subparagraph, of Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (the Basic Regulation)
  • Anti-dumping measures imposed by the European Union on imports of biodiesel originating in Argentina and Indonesia.

The EU’s anti-dumping measures were implemented following an investigation by the European Commission after the European Biodiesel Board (EBB), which represents the interests of EU biodiesel producers, lodged a complaint on July 17, 2012, for anti-dumping against biodiesel imports from Argentina and Indonesia. The  EBB has argued that Argentine and Indonesian biodiesel producers were selling biodiesel at artificially low prices in the EU market thereby putting the EU biodiesel industry at a disadvantage, compromising jobs in the industry and the industry’s ability to contribute to sustainable green transport in the EU.

In January 2013, the Commission made Argentine and Indonesian biodiesel imports in the EU subject to registration. Following its investigation, the Commission imposed provisional anti-dumping duties on May 29, 2013 and definitive anti-dumping duties on 27 November 2013. In the Definitive Regulation No 1194/2013, it was calculated that the injury margins ranged from 41.9% to 49.5% . The EU applied anti-dumping duties of 22.0% to 25.7% which took the form of specific duties expressed as a fixed amount in euro/tonne.

Argentina, one of the world’s largest exporters of biodiesel, argued that the EU’s measures were protectionist and aimed at protecting inefficient European biodiesel producers. It has been reported in Argentine media that the measures are estimated to have cost Argentina almost the equivalent of 1,600 million dollars worth in biodiesel exports annually.

The Dispute

In December 2013, Argentina requested consultations with the EU and requested that a panel be established in March 2014. A panel was established in April 2014.

Argentina based its claims on various articles of the Anti-Dumping Agreement, the General Agreement on Tariffs and Trade (GATT) 1994 and the WTO Agreement, arguing that “as applied” the EU’s measures were inconsistent with various articles of these agreements. Argentina also asked the Panel to find that Article 2(5), second subparagraph of the Basic Regulation was  “as such” inconsistent with Articles 2.2, 2.2.1.1 and 18.4 of the Anti-Dumping Agreement, Article VI:1(b)(ii) of the GATT 1994, and Article XVI:4 of the WTO Agreement.

“As such inconsistent”, basically means that the measure is inconsistent in and of itself and is not solely inconsistent because of its application in a specific instance. “As such” challenges are therefore “serious challenges” as noted by the Appellate Body in US – Oil Country Tubular Goods Sunset Reviews particularly given the presumption that WTO Members act in good faith in the implementation of their WTO commitments.

Additionally, the ruling’s contribution to the WTO’s body of jurisprudence should not be overlooked. As noted by the panel, Argentina’s claims “raise[d] complex questions pertaining to the interpretation of Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994 that have not been addressed previously by panels or the Appellate Body”.

Ruling

In its panel report released yesterday (March 29), the panel found in favour of most of Argentina’s complaints. However, the Panel found that Argentina did not establish that Article 2(5), second subparagraph of the Basic Regulation was “as such” inconsistent with Articles 2.2.1.1 and 2.2 of the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994.The Panel also rejected  Argentina’s claim that the amount for profits established by the EU authorities (15% on turnover) was not based on a reasonable method  within the meaning of Article 2.2.2(iii) and also rejected Argentina’s claim that the EU had failed to meet the “fair comparison” requirement under Article 2.4 of the Anti-Dumping Agreement.

However, the Panel did find in Argentina’s favour on several key issues. Argentina claimed that the EU had failed to calculate the cost of production of biodiesel on the basis of the records kept by the producers/exporter under investigation and had therefore acted inconsistently with Article 2.2.1.1 of the Anti-dumping Agreement.

Article 2.2.1.1. of the Anti-dumping Agreement provides that:

For the purpose of paragraph 2, costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration.

One of the issues the Panel had to consider was whether an investigating authority’s belief that a producer/exporter’s records reflect costs that are artificially low due to an alleged distortion constitutes a legally sufficient ground under Article 2.2.1.1. for that authority to find that a producer/exporter’s records do not “reasonably reflect the costs associated with the production and sale of the product under consideration”.

The EU authorities had argued that Argentina’s Differential Export Tax had artificially depressed the domestic price of soybeans and soybean oil (the inputs for Argentina’s biodiesel) and had distorted Argentine producers’ production costs.  They argued that this cost distortion should be taken into account in constructing Argentine producers’ normal value and chose  to rely on the average reference price of soybeans published by the Argentine Ministry of Agriculture for export as opposed to the actual price for soybeans reported in the Argentine producers/exporters’ records.

The panel found that the EU’s argument for ignoring the producers’ costs  did not constitute a legally sufficient basis  for arguing that the producers’ records do not reasonably reflect the producers’ costs as required per Article 2.2.1.1 of the Anti-dumping Agreement.Because of its ruling on Article 2.2.1.1, the Panel did not see it necessary to rule on whether as a consequence, the EU had acted inconsistently with Article 2.2 of the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994 in this regard.

The Panel also found that the EU did not use a cost that was the cost prevailing in the country of origin (i.e. Argentina) in the construction of the normal value and had therefore acted inconsistently with Article 2.2 of the Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994.

The Panel ruling also supported Argentina’s claim that the EU had imposed anti-dumping duties in excess of the margin of dumping per Article 2 of the Anti dumping argument and had therefore also acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.

The Panel upheld Argentina’s claim finding that as it relates to production capacity and capacity utilisation, the EU had acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement. However, the Panel ruled that Argentina’s claims with respect to the EU authorities’ evaluation of return on investments fell outside of the Panel’s terms of reference.

The Panel concluded that “to the extent that the measures at issue have been
found to be inconsistent with the Anti-Dumping Agreement and the GATT 1994, they have nullified or impaired benefits accruing to Argentina under these agreements”. Pursuant to Article 19.1 of the DSU, the Panel recommended that the EU bring its measures into conformity with its obligations under the Anti-Dumping Agreement and the GATT 1994.

Both parties have 60 days in which to file an appeal against the panel’s decision.

Indonesia, which was also affected by these EU measures, was one of the third parties to this dispute. Indonesia also currently has a dispute pending against the EU on this matter (DS480 :  EU – Anti-dumping measures on biodiesels from Indonesia).

A summary of the panel report and  the full panel report may be accessed on the WTO’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.

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Barbados to allow for Incorporated Cell Companies

Alicia Nicholls

Barbados is on the verge of adding another product to its international business and financial services offerings. The Companies Act, Cap 308 is currently being amended to allow for the establishment of incorporated cell companies (ICCs).

Incorporated Cell Companies (ICCs)

An ICC is a robust form of corporate cell structure which was first introduced by Guernsey by virtue of its Incorporated Cell Companies Ordinance in 2006. Each incorporated cell (IC) of an ICC has a separate legal personality from the ICC and the ICC’s other ICs. ICs can enter into binding arrangements with each other and the ICC. ICCs are more cost-efficient than a parent-subsidiary structure due to economies of scale.

Cell company structures differ from traditional company structures. They allow for the creation of one or more underlying cells within the company so that the assets and liabilities of each cell are segregated from the assets and liabilities of the company’s other cells and of the cell company itself. This “ring-fences” the cellular assets allowing for enhanced asset protection and risk management. Cell company structures are particularly attractive for insurance activity (especially captive insurance), but also for other types of financial services activities like banking and mutual fund activity.

Incorporated Cell Companies vs Segregated Cell Companies

ICCs share similarities but also important differences with segregated cell companies (SCCs) which are also known as protected cell companies (PCC).  SCCs are an older type of cell company structure which were first established by the Guernsey through its Protected Cell Companies Ordinance in 1997. Unlike ICCs, an SCC is a single legal entity which means its underlying cells do not have separate legal personality from the cell company. Segregated cell companies and segregated accounts have been permitted in Barbados since 2011.

Key Features of the proposed Barbados ICC product

The key features under the proposed Companies Act (Amendment) Bill 2016 are as follows:

  • Naming – An ICC will be required to use the suffix  “Incorporated Cell Company” or the abbreviation “ICC” after its name. ICs must include the suffix “Incorporated Cell” or the abbreviation “IC”
  • Type of Business -any company incorporated or continued under the Act for the purposes of carrying on financial services activities, including insurance, banking and mutual fund activity, may incorporate as an ICC
  • Formation – A company may conduct business as an ICC in Barbados in four ways: (a) incorporation as an ICC, (b) the incorporation of an existing company (incorporated under the Act) as an ICC, (c) the registration of an external company as an ICC in Barbados and (d) the continuation of an external company as an ICC in Barbados.
  • Creation of ICs – An ICC may by special resolution create an IC.
  • Status of ICs – An IC is a legal person separate from its ICC.
  • Transactions – The ICC has no power to enter into transactions on the behalf of its ICs. Similarly, an IC has no power to enter into legal transactions on the behalf of its ICC or any of the other ICs of the ICC.
  • Separate Assets and Liabilities – Directors of an ICC are to keep the assets and liabilities of each IC separate and separately identifiable from those of the other ICs and the ICC.
  • Creditors’ Claims – A creditor of the ICC in respect of a transaction between the creditor and the ICC may not make a claim against the assets of the company’s ICs, while a creditor of the IC in respect of a transaction with that IC, may not make a claim against the assets of the ICC or its other ICs.
  • Constitution – The IC is to file its own by-laws within 21 days of being incorporated as a cell and it may not own shares in its ICC
  • Directors – An IC may have directors other than the directors of its ICC.
  • Registered Office – An IC is required to have the same registered office as its ICC
  • Record Keeping – An ICC is required to maintain separate records of the members of each of its ICs
  • Annual returns – An ICC is required to submit an annual return for each of its ICs and to ensure that its financial statements are not consolidated with the financial statements of its ICs
  • Expulsion – An ICC may apply to the court to expel an IC under one or several of the grounds elaborated in section 356.31(1) of the proposed amended Act.
  • Migration provisions– An IC of an ICC may be transferred to another ICC or to a SCC
  • Winding Up – The same provisions on winding up under the Act which apply to a non-cell company also apply to an ICC, except that an ICC that is being wound up is not to be dissolved until each of its ICs ceases to exist as an IC of the ICC and an ICC which is dissolved will not be struck off the Registry of Companies until each of its ICs has been incorporated independently, merged with a company, continued under the law of another jurisdiction, transferred to another ICC or SCC or wound up.

Advantages of the ICC Vehicle

ICCs are a very flexible vehicle and some of the advantages are the:

  • Ease of establishment of cells – Once the ICC is incorporated, it may by special resolution establish any number of cells as it so chooses
  • Portability – An IC of one ICC can be transferred to another ICC or to an SCC
  • Cost efficiency – ICC structures are more cost-efficient than parent-subsidiary relationships as economies of scale can be achieved through shared administrative frameworks
  • Tax liability – Each IC is separate from the ICC and the other ICs for income tax purposes
  • Ability of ICs to enter contracts with each other and with the ICC
  • Absolute protection of IC assets from the risks, liabilities and claims of creditors of the ICC or other ICs.
  • Segregation – The cell structure allows for the segregation of assets and liabilities, risk and investments
  • Unlike some jurisdictions, Barbados’ ICC product is not limited to the insurance sector, but to all financial services activities

The Companies Act (Amendment) Bill 2016 was debated and passed in the House of Assembly last Tuesday, February 2nd, and is currently before the Senate for debate.

The international business and financial services sector is one of Barbados’ main foreign exchange earners, accounting for a significant portion of corporation tax receipts and is a major employer.

Besides Guernsey where it originated, the ICC product already exists in a few other jurisdictions, for example, Jersey, Isle of Man, Malta and the Cayman Islands. The introduction of the ICC product to Barbados is expected to further boost the island’s competitiveness and attractiveness as a preferred domicile for international business.
The full text of the proposed amendment bill may be viewed here.

 
Disclaimer: This article is for general information purposes only and is NOT intended to provide legal, investment, financial or any other advice. The Author accepts no liability to anyone who relies on the information in this article. The information was taken from sources deemed to be accurate and correct at the time of publication.

 
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. The following information is for general You can read more of her commentaries and follow her on Twitter @LicyLaw.

Written History: The Classic Tale of the CCJ and Caribbean Jurisprudence

javierspencer

Javier Spencer

The 19th meeting of the Conference of Heads of Government of the Caribbean Community (CARICOM) agreed that a Caribbean court of appeal should be established to replace the Judicial Committee of the Privy Council (JCPC) – commonly known as The Privy Council- as the final appellate court for the Region. The overall goal of this decision was to increase access to justice that is applicable and unique to the socio-cultural environment of the People of the Region. In many instances, judgements passed down from the Privy Council have not been contextualized in the Caribbean reality. To this end, there has been an evident need for a court of appeal that considers the intricacies of the Region’s culture and reality. This article will briefly retell the tale of how the Court has improved the Region’s jurisprudence on decided cases in its appellate jurisdiction.

Purpose and Structure

The Caribbean Court of Justice (CCJ) has been described, by many, as a unique experiment with two courts in one. But its existence is one that is critical for bringing about independence, integration, and development for an indigenous jurisprudence in the region. Having regard to the aim of strengthening the Region’s economic integration, the Court’s remit is to hear and determine cases in its original and appellate jurisdictions. In its Original Jurisdiction, the CCJ interprets and applies the Revised Treaty of Chaguaramas (RTC) with compulsory and exclusive jurisdiction. On the other hand, its Appellate Jurisdiction hears appeals as the court of last resort in both civil and criminal matters. Since its inception in 2005, the Court has heard and determined complex cases which have contributed to the shaping and moulding of a Caribbean jurisprudence.

The Cases and Legal Principles

The Law of Human Rights

In 2006, the CCJ had the privilege of shaping the Region’s understanding of the law of human rights and further shaped its jurisprudence in this respect. For example, the exercise of the prerogative of mercy was brought to the fore in the case of Attorney General v. Joseph, [2006] CCJ 1 (AJ). The prerogative of Mercy was introduced in the Region when the Privy Council ruled against an execution delay in excess of 5 years. In such cases, all death sentences under this rule should be commuted to only life imprisonment. The Court’s judgement in the Joseph and Boyce refuted this principle upheld by the Privy Council, especially where the death sentence was mandatory in Barbados.

The prominent concern was whether the state (Barbados) should await the decision from the Inter-American Commission on Human Rights. The Court had to closely analyse precedent set out by the Privy Council and having regard to due process, the condemned has right to await the decision of the International Tribunal. However, the discrepancy existed where International Law differed from Constitutional Law of Barbados, and the onus was on the Court to strike a balance between the rights stipulated by the international body to that of the national law of Barbados. In its deliberation, the Court opined that it was unacceptable for the state to wait indefinitely for the completion of a foreign process over which it had no control. The undue delay in this process did not consider an extension of the 5 year time limit or by excluding it in computing that period. At this turning point, the Court had to duly interpret and apply the doctrine of legitimate expectation. However, if the decision-making of the Inter-American Commission on Human Rights was in excess of 18 months, within a 5 year period, the state should not be required to wait beyond a reasonable time.

Standard of Proof & Admissibility of Evidence

Standard of Proof became another jurisprudential subject in effectively shaping the legal system in the Region. The admissibility of evidence was challenged on the basis that sample evidence could not be proven since it came from the accused. In this regard, the Court’s interpretation of the Evidence Act Statute of Barbados determined that there had to be stricter standard of proof relevant to the proceedings. By way of the Evidence Act, oral admission by the accused lacked authenticity and reliability as illuminated in the case of Grazette v The Queen, [2009] CCJ 2 (AJ). In its interpretation of the Evidence Act Statute of Barbados, the Court had to jostle with the effective application of the Act since it was modelled from the Australian Law Commission.

Land Law

Jurisprudence throughout the Caribbean continues to have international influence as evidenced in Guyana’s land law. The legislation comprised of a hybrid between Roman-Dutch Law and the English Common Law; and to this end, peculiar interpretation was needed in respect of adverse possession (change of ownership). Espoused in Toolsie Persaud Ltd. v. James Investments, [2008] CCJ 5 (AJ), the Court had to determine whether there could have been a change in ownership when the title documents were declared invalid. Additionally, determining specific performance involving the sale of land in Guyana was captured in Ramkishun ad item Sukhree v. Fung-Kee-Fung, [2010] CCJ 2 (AJ) where the owner agreed to sell the land to the purchaser and died before conveyance. The owner’s administrator transferred it to the owner’s heir instead of the purchaser. Under the principles of English Common Law, the transaction would have been granted but the purchaser would have acquired an equitable interest. Differently, using the principles of Roman-Dutch Law, the system on equitable interest would have granted the transaction. The Court’s amalgamation of the two legal systems had formulated the Law of Immovable in Guyana, refusing specific performance. In this instance, the CCJ has demonstrated its capacity to devise appropriate and effective solutions regarding the land law principle in Guyana (Byron, 2011).

Right to a Fair Trial

The Court continued along its trajectory to contribute to the development of the Region’s jurisprudence by establishing the meaning of fairness concerning the constitutional right to a fair trial as exhibited in Gibson v. Attorney General, [2010] CCJ 3 (AJ). After Gibson pleaded not guilty to charge brought against him, he sought after expert evidence which was costly. In this regard, the Court was faced with the decision as to whether Gibson should have access to expert facilities funded by the state. The inequality of arms was so serious that denying access to expert advice could adversely affect the fairness of the trail. Therefore, Gibson was granted access to expert facilities. This case solidified and set precedent in respect of legal rights in the Region.

Accountability and Good Governance

Can a State bring an action in tort for misfeasance in public office? Florencio Marin v. Attorney General of Belize, [2011] CCJ 9 (AJ) highlighted that two former ministers were alleged to have transferred land to a company owned by one of them for something of sufficient value in return (consideration). Remedies include dismissal from office, disciplinary actions, prosecution, and the imposition of legislation for a breach of trust and integrity.

Access to Justice

Along with the development of a sui generis jurisprudence for the Region, one of the main tenets of the Court is to significantly improve access to justice in order to promote social stability and economic development. For instance, appeals at the Court have been heard in forma pauperis so as to facilitate the Court’s use by ordinary citizens of Member States. Ross v. Sinclair, [2009] CCJ 11 (AJ) allowed two very underprivileged ladies from Guyana to bring civil appeals to be determined by the Court. In support of the main aim of ordinary citizens to derive the benefits from the Court, Bar Associations in the Region have had Attorneys provide pro bono services so that important matters could be ventilated for persons who could not afford to have their own legal representation (Byron, 2011).

Access to justice at the Court is enhanced through the use of technology. Lawyers can make submissions and receive judgments electronically. The Court, to date, has been hearing interlocutory matters via audio video which are available on the Court’s website, at a minimal cost. Having regard to the effective use of technology, the Court is saving the Region large sums of money by providing quality access to justice (Gibson, 2012).
The Modern Day Conversation/ Conclusion

To date, many CARICOM Member States are debating whether the Court should be the final Court of Appeal in the Region to replace the Privy Council. The modern day debate stems from grounded criticism of political intrusion in the Court’s decision-making process and sustainable financing of its operations. The argument of political intrusion came about in respect of the selection of Judges for the Court. Originally, it was the Heads of Government to directly appoint Judges and in response, to mitigate the risk of political intrusion, the Regional Legal Services Commission (the Commission) was established in February 2001. The remit of the Commission is to appoint Judges, from the legal profession, through open applications received from throughout the Region. One possible downfall to this, however, is that the selection of the Judges for the Court is conducted by regional entities which are creatures of political influence. Therefore, is the Court truly insulated from political influence?

Out of the 15 Member States, Barbados, Belize, Dominica, and Guyana utilize the Court as the final court of appeal. Considerations to accede are being discussed in other Member States such as Antigua and Barbuda, St. Lucia, and Jamaica. However, to fully accept the Court as a replacement of the old colonial relic remains a daunting process and discourse continues throughout the Region. Some arguments in favour of the CCJ as the final court of appeal in the region are: 1) it is cost effective access to justice, 2) judgements will take into consideration the Caribbean reality, 3) it is a regional court that will implement specific rules and laws, which will augur well for good governance in the Region, 4) judgements on cases will be delivered faster, and 5) it will bode well for the Region as one that is independent and confident to determine its own fate.

This historic tale has proven the Court’s ability to replace the Privy Council. In this regard, there should not be any doubt lurking amongst our Member States about the Court’s rightful place as the final court of appeal. In closing, one should cogitate on this question asked by Dr. Kenny Anthony,

Why on earth should we compel the British to maintain the Privy Council, when the British have said to us time and time again to take your bundle and go?”

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.

Access to Justice as a Linchpin of the SDGs: The Sustainable Development Implications of Barbados’ Judicial Backlog

Alicia Nicholls

Access to justice has been recognised as a linchpin of the sustainable development goals (SDGs) which define the post-2015 global development agenda. Much ink has been spilt on Barbados’ crippling judicial backlog but very little has been said about the implications of this status quo for meeting sustainable development goals. Access to justice, recognised in SDG 16, is both an end and prerequisite for sustainable development as it is the means by which rights and development gains are enforced and protected. As a barrier to the access to justice, Barbados’ clogged court system has not only implications for the achievement of SDG 16 but can also undermine achievement of other sustainable development goals.

Barbados has a well-deserved and internationally renowned reputation as a constitutional democracy with strong institutions, respect for the rule of law and a high level of human development which far exceeds that of many fellow small island developing states. The endemic judicial malaise has been the subject of increasing concern and critique. The latest admonishment comes from the Caribbean Court of Justice, the country’s final court of appeal, in its judgment in Walsh v Ward et al, a dispute which originated in 1998. In what has become all too familiar, the CCJ at paragraphs 68 to 70 of the judgment criticised the length of time the case took and the hardships this delay has imposed on the litigants. The Court also noted that its frequent need to comment on Barbados’ excessive delays reveals that this is a “systemic problem”. On these points, there can be no disagreement.

The Nature of the Problem

In 2013 it was reported that there were over 3,000 cases awaiting trial and that there were 362 cases which were still undecided, some dating back to 1993. A plethora of reasons are usually posited for Barbados ’ backlog including late court starts and short court sessions, frequent adjournments, delays in judges’ delivery of written judgments, trial scheduling issues, misplaced files and/or incorrect filing of documents, lack of client/witness cooperation and the heavy workload of magistrates and judges. There is also no fixed time period for disposal of matters. In its 2008 judgment in Reid v Reid, the CCJ suggested “as a general rule no judgment should be outstanding for more than six months and unless a case is one of unusual difficulty or complexity, judgment should normally be delivered within three months at most”. There is no evidence that this suggestion has been adhered to.  These problems are further exacerbated by an increasingly litigious Barbadian society. In the above-mentioned report, it was estimated that between 1,700 and 2,000 new cases are filed each year.

The Sustainable Development Impact

Although there has been much criticism of Barbados’ judicial backlog, very little has been said about the sustainable development implications. Sustainable development, as defined in the Brundtland Report ‘Our Common Future’, is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Sustainable development depends on a tapestry of interconnected development issues, including poverty reduction, health and education and climate change. This diversity of issues is reflected in the 17 UN member agreed Sustainable Development Goals which succeeded the Millennium Development Goals (MDGs).

Access to justice was not explicitly part of the MDGs but has been recognised by UN Member States in the post 2015 development agenda as both an end and an enabler of sustainable development. Specifically, Goal 16 of the Sustainable Development Goals (SDGs) is to “Promote Peaceful and Inclusive Societies For Sustainable Development, Provide Access to Justice for All and Build Effective, Accountable and Inclusive Institutions At All Levels”.

Access to justice speaks to the populace’s ability to access and obtain redress through the institutions of justice in a manner that is fair, expeditious and equitable. It is fundamental to maintaining the rule of law and allows for the enforcement of rights, non- discrimination and accountability of decision makers. Judicial delays caused by a large judicial backlog limit the access to justice by ordinary citizens. Marginalised groups in society, such as the poor, elderly, disabled, children and victims of domestic violence and sexual abuse are disproportionately affected by judicial delays as they endure significant economic, social and mental hardship or in the case of the elderly, sometimes die before their matter has been satisfactorily settled. Each backlogged case therefore represents at least one victim for whom justice has been delayed and whose rights have not been protected.

Judicial delays also deny accused persons, who often have to wait on remand for years before their case is heard, their constitutional and human right to a fair trial in a reasonable time. According to Prison Studies, about 40% of Barbados’ prison population consists of persons awaiting trial. A large prison population puts a strain on the public purse, resources which could be better used for social development programmes.

Access to justice is also undermined where there is no public confidence in the system. If public utterances are anything to go by, the Barbadian public appears less than satisfied with the current state of the judicial system. Persons who do not have the confidence in the judicial system are more likely to take matters into their own hands.

The current backlog not only threatens the access to justice for citizens but can hurt economic activity and thereby undermine economic development (SDG 8). Expeditious case processing and resolution are important in a commercial context where time is money. Economic and reputational costs associated with lengthy delays in the settlement of matters are problematic not just for big firms, but are even more costly for small and medium sized businesses which may lack the revenues to stay in business while awaiting a decision. Any investor seeking to do business or invest in a country wants to be assured that it has prompt access to the local courts in order to enforce contractual rights and that it will not waste resources or possibly go out of business due to inordinately long waiting times. In the Doing Business Report 2016 Barbados currently ranks poorly (164 out of 189 countries) on the efficiency of the judicial system at resolving commercial contracts before the courts. These are indicators which investors consider and have implications for Barbados’ attractiveness as a place to invest.

What is being done?

There have been numerous attempts over the years to unclog the judicial backlog problem with very limited success. Among the initiatives have been the new Civil Procedure Rules, the requirement of case management conferences, the creation of special purpose courts, the on-going removal from the computer system of “dead” cases, the addition of three more judges and the Chief Justice’s practice direction on backlog reduction. There are also more recent on-going regional initiatives like IMPACT Justice and the JURIST project which seek to address the justice system as a whole, including facilitating much needed digital access to all the Laws of Barbados and court decisions.

But are the steps far enough? Alternative dispute resolution has been proposed as a possible solution, a suggestion supported by this Author in an article in 2012. The pre-action protocols provide that parties  to a dispute must engage in “genuine and reasonable negotiations with a view to settling the claim economically and without Court proceedings”. The Court Annexed Mediation Pilot project has been unrolled in the High Court and some of the magistrates courts. However, Barbados still has no Mediation Act or a mediation board. The solutions so far have not been enough to deal with the scale of the problem. Therein lies a critical issue; what is the scale of the problem?

Official judicial data is woefully lacking on critical indicators such as time to resolution of cases before each court, the size, age and composition of the backlog in each court, the number of outstanding judgments, the average time each judge takes to render a judgment, and average stay on remand. In an effort to allow for comparative measurement of progress for countries, the UN will be developing global indicators during the next year to facilitate data gathering for each goal and target. Countries are expected to formulate their own indicators based on their own unique circumstances. Data on these indicators would provide local authorities with a comprehensive understanding of the scale, nature and causes of the backlog problem which would assist in the formulation of performance goals and the type of interventions needed. Without this any changes would simply be cosmetic.

Additionally, we the Barbadian public have heard of many judicial reform initiatives but very little on what they have achieved thus far. Progress reports on the impact of these reform initiatives should be published to help restore public confidence in the system.

An efficient and effective judicial system is essential for upholding the rule of law, safeguarding rights and ensuring the smooth functioning of democratic processes, all of which are needed for sustainable development. The long shadow of Barbados’ case backlog creates pressures on the courts, delays the process of justice and redress, particularly to the disadvantaged, and erodes public confidence in the system. Delays in the settlement of commercial cases can hamper business activity, potentially undermining economic development. Targeted interventions based on a data-supported understanding of the nature and causes of the problem are needed, while public reporting on gains made should inspire public confidence that change is on its way.

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. The Author wishes to thank everyone who provided insight for this article but any errors or omissions are solely those of the Author’s. 

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. 

Alternative Dispute Resolution: A viable solution for reducing Barbados’ case backlog?

Alicia Nicholls

Burgeoning case backlogs have forced many Commonwealth Caribbean countries to take a harder look at the promotion of alternative dispute resolution techniques as opposed to litigation to solving disputes. This article discusses whether alternative dispute resolution (ADR) offers a viable solution for reducing Barbados’ large case backlog. Full article available here: ADR A viable solution for reducing Barbados case backlog_Nicholls.

Grenada leads the way by abolishing criminal libel – We all should follow suit

Alicia Nicholls 

The big legal news rippling across the Caribbean Sea this week is the revelation that the Tillman Thomas government in Grenada has made history by being the first Commonwealth Caribbean territory to abolish criminal defamation and thus bring its libel laws, at least on this front, in conformity with the exigencies of a twenty-first century democracy.

According to the International Press Institute (IPI), Grenada’s Criminal Code (Amendment) Act of 2012 abolished sections 252 and 253 of the Grenada Criminal Code which imposed criminal sanctions for libel. The repeal was a big victory for the International Press Institute which has been ardently campaigning for the abolition of criminal defamation in all Commonwealth Caribbean States, advocating instead the reliance on civil actions exclusively. Seditious libel however still remains on the books as a criminal offence under s 357 of the Criminal Code. For a full background on the work of the IPI on this front, see here.

Freedom of the press is held to be one of the central tenets of a functioning liberal democracy. The rationale behind press freedom is that a robust and independent press keeps public officials in check by informing the populace of their actions, calling them out on their shortcomings, while also providing information which would allow the public to make informed decisions in their own interest. However, the existence of antiquated defamation laws on the statute books of Commonwealth Caribbean countries has led many to criticize these vestiges of the colonial era as fetters on the efficacy of the fourth estate in scrutinizing our public officials, and thereby serving as a barrier to true democratic governance.

The zeal with which Commonwealth Caribbean territories have tended to cling to our pre-independence laws has been heavily criticized, but in the case of our libel laws, the situation becomes even more perplexing. While it is accepted that a delicate balance must be maintained between the much deserved need to protect a person’s reputation and the equally deserved right of the public to access information, the harshness of Commonwealth Caribbean countries’ libel laws can be contrasted with the iniquitously broad freedom of expression privileges granted to parliamentarians on the floor of parliament under the convention of parliamentary privilege.  Is the freedom of speech of parliamentarians therefore more valuable than that of those whose role is to serve as the watch dogs of our post-independence democracies?

Defamation legislation throughout the Commonwealth Caribbean ranges in vintage from semi-modern to archaic acts dating back to the mid-nineteenth century.  With sluggish statutory change, if any, it has been up to the common law to adapt the laws of defamation to the needs of modern twenty-first century democracies. The defence of qualified privilege is one which has not generally found much success in case law before the landmark House of Lords decision in Reynolds v Times Newspapers Limited [2001] which recognized the duty of the press to communicate to the world at large and also recognised a public interest defence which commentators have called the “Reynolds defence”. In Jameel v Wall Street Journal Europe, Lord Nicholls of Birkenhead further clarified the Reynolds defence by giving some guidance on the factors to be taken into consideration when deciding whether the defence of qualified privilege applies.

Criminal libel prosecutions remain alive and well in the Caribbean, although their frequency varies according to territory. In the recent Grenadian case of George Worme and Grenada Today v Commissioner of Police of Grenada (2004) which had been referred to the Privy Council, Lord Rodger importantly rejected submissions by counsel that then section 258 was too narrowly drafted to allow for the raising of the Reynolds defence. However, the court also regrettably held that criminal libel  was “a justifiable part of the law of the democratic society in Grenada”. Rulings such as this reinforce the cloud of fear hanging over regional journalists in execution of their ‘watch dog’ function.

Penalties for criminal libel vary across the region. Before its abolition, section 252 of the Grenada Civil Code provided that the penalty of conviction for negligent libel was imprisonment for six months, while two year imprisonment existed in the case of intentional libel. The Barbados Defamation Act (Cap 199) of 1997, one of the more ‘modern’ acts,  is a bit more lenient at Article 34(3) as it gives the Court the discretion to impose a fine of up to $2,000, imprisonment for a term not exceeding 12 months or both.Despite the talks and promises of libel reform decades after many of us have achieved independence, our journalists still have the risk of criminal prosecution as an ‘occupational hazard’ of their profession. It is little wonder therefore that self censorship by media houses is endemic in several Commonwealth Caribbean states, including Barbados. It is a practice which, though done to shield these entities from prosecution, is contrary to the public interest.

Moreover, stringent libel laws have tended to make the constitutional guarantee of right to access to information virtually nugatory, particularly where freedom of information acts do not exist. In Barbados, the proposed Freedom of Information Act which was supposed to buttress the constitutional guarantee of right to access to information under section 20 of the Constitution of Barbados by, inter alia, providing greater public access to information held by government bodies, has not yet been passed and neither have the proposed defamation reforms. On the contrary, the UK, from whom our defamation laws were inherited, abolished criminal libel and sedition per section 73 of the Coroners and Justice Act 2009 and is currently in the process of passing a new Defamation Act (currently HL Bill 41) which is aimed at modernizing that country’s defamation laws.

In countries which pride ourselves as democratic states, it is high time that we purge our statute books of these archaic and anti-democratic laws. As seen in Grenada, this is not a move most politicians would make without strong lobbying by local, regional and international civil society.  Despite this, Grenada’s big step towards the complete removal of criminal defamation should be applauded and one can only hope that other post-independence Commonwealth territories, including Barbados, would follow suit in the interest of greater democracy.

Alicia Nicholls is a trade policy specialist and law student at the University of the West Indies – Cave Hill. You can contact her here or follow her on Twitter at@LicyLaw.