Caribbean Trade Law and Development

Category: Trade

  • US Federal Appeals Court Upholds Suspension of Trump Travel Ban

    US Federal Appeals Court Upholds Suspension of Trump Travel Ban

    Photo credit: Pixabay

    Alicia Nicholls

    Less than a month after taking office, the Trump Administration received another judicial blow yesterday to one of its major policy actions. The United States’  Court of Appeals for the Ninth Circuit in its decision in State of Washington v Trump dismissed the Government’s motion for a stay pending appeal of an order of the US District Court for the Western District of Washington which had temporarily suspended the travel ban nationwide.

    Background

    The genesis to the legal dispute was an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” signed by President Trump on January 27, 2017. Inter alia, the order sought to ban for 90 days entry into the US of all nationals of seven predominantly Muslim countries, namely Iraq, Iran, Sudan, Yemen, Libya, Syria and Somalia, and indefinitely suspended entry of all Syrian refugees into the US. It also sought to suspend the US Refugee Admissions programme for 120 days, with further direction that on recommencement of the programme, the Secretary of State should prioritise refugees of a minority faith in their country (in this case it would be Christians) with claims of religious persecution.

    Upon its signature, the executive order’s impact was quick and brutal. Not only were thousands of visas cancelled but US greencard holders were among those who were either stranded at airports, separated from their families or being deported pursuant to the order. Protests erupted across the US and in several other countries. Several legal challenges were filed, including rulings by federal judges in New York and Massachusetts against the ban. Among the chaos, President Trump swiftly fired Acting Attorney General Sally Yates after she refused to defend the constitutionality of the order.

    The decisive blow to the travel ban came after the February 3rd ruling of Judge James Robart, federal judge in the United States District Court for the Western District of Washington. In State of Washington v Trump et. al , a challenge brought by the State of Washington, Judge Robart  held that certain actions of the executive order were ultra vires the constitution, enjoining the government from implementing those provisions and granting a temporary nation-wide restraining order. Thereupon, the Department of Homeland Security suspended implementation of the executive order, whilst the Government prepared its appeal.

    Issue 

    In the instant case, the Court was asked to consider the Government’s request for an emergency stay of the temporary nation-wide restraining order issued by Judge Robart. The Government requested the stay pending appeal of the order.

    Arguments

    The Government argued that the federal district court lacked authority to enjoin enforcement of the order because the President has “unreviewable authority to suspend the admission of any class of alien” and that his/her decisions on immigration policy and national security are unreviewable even where they contravene constitutionally-enshrined rights and protections. They further submitted that any challenge to such presidential authority by the judicial branch would be a violation of the principle of separation of powers.

    Counsel for the Government also argued that the States of Washington and Minnesota had no locus standi in this matter. However, the Court found that by showing the harm caused to their universities’ research and teaching because of the impact of the travel ban on those faculty members and students who are nationals of those countries, the states met the test for standing of “concrete and particularised injury” as was elaborated in Lujan v Defenders of Wildlife.

    In their arguments before the lower court, the states had argued that the executive order violated the procedural rights of aliens, including denying entry to greencard holders and non-immigrant visa holders without sufficient notice and without giving them an opportunity to respond. The states had also argued that the damage to their state economies and public universities were in violation of the First and Fifth Amendments to the US constitution and that they violated a wide range of Acts, including the Religious Freedom Restoration Act. Counsel for the states also reminded the court of President Trump’s words during the campaign as support for their argument that it was intended to be a “Muslim ban” and not an act to protect against terrorist attacks by foreign nationals.

    In the instant case before the federal appeals court, one of the things the Government had had  to show that it was likely to prevail against the due process claims made by the States.

    Judgment

    The learned judges, William C. Canby, Richard R. Clifton, and Michelle T. Friedland, considered four main questions in arriving at their decision: likelihood of the Government’s success on the merits of its appeal, whether the applicant would be irreparably injured absent a stay, whether issuance of the stay will substantially injure the other parties interested in the proceedings, and where the public interest lies.

    In an unanimous ruling (3-0), the Court denied the Government’s emergency motion for a stay, finding that the Government has neither shown a likelihood of success on the merits of its appeal nor has it shown that failure to enter a stay would cause irreparable injury.

    Moreover, in dismissing the Government’s central claim about the unreviewability of the president’s decisions on immigration policy, the court argued that there was no precedent to support this claim and that it is a claim which “runs contrary to the fundamental structure of our constitutional democracy”. The court rightly argued that it was merely exercising its role of interpreting the law. Relying on decided cases, the court held that while courts owe a deference to the executive branch in matters of immigration and national security, this does not mean that the courts lack authority to review compliance of executive branch actions with the constitution.

    So what next?

    True to form, President Trump used Twitter as his medium of choice to express his displeasure with the verdict. It is likely that the next step for the administration will be to appeal to the US Supreme Court.

    The full text of the Court’s judgment may be obtained 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.

  • CARICOM and Cuba reach agreement to expand market access preferences

    CARICOM and Cuba reach agreement to expand market access preferences

    Alicia Nicholls

    It has been a while in coming but today the Caribbean Community (CARICOM) Secretariat announced in a press release that CARICOM and Cuba have finally agreed to expand the level of preferential access to each other’s markets as part of efforts to update the Cuba-CARICOM Trade and Economic Cooperation Agreement.

    According to the Press Release, CARICOM and Cuba reached agreement at the end of the Tenth Meeting of the CARICOM-Cuba Joint Commission established pursuant to the trade and economic cooperation agreement. This meeting took place between January 30-31, 2017 at the CARICOM Secretariat in Georgetown, Guyana.

    The Press release notes the following outcomes agreed to:

    • Duty-free entry for a number of CARICOM agricultural products and manufactured goods, such as beer and fish into the Cuban market
    • Duty-free access for Cuban goods, including pharmaceuticals, into the markets of CARICOM member states
    • More Developed Countries (MDCs) of CARICOM (Barbados, Guyana, Jamaica, Suriname and Trinidad and Tobago) will also determine the level of preference they will grant to Cuba on a number of other items.

    The release also notes that exploratory discussions were held on trade in services and there has been agreement to continue the exchange of information and cooperation on services trade, particularly tourism.

    The Cuba-CARICOM Trade and Economic Cooperation Agreement is a reciprocal trade agreement between Cuba and thirteen member states of CARICOM. Bahamas and Haiti were not part of the negotiations. The agreement was signed in Canouan,  St. Vincent & the Grenadines. According to a Jamaican Gleaner article from July 2016, negotiations on updating the Cuba-CARICOM Agreement began in 2006 but have been protracted.

    It is a partial scope agreement as it mainly covers goods trade. However, the agreement contemplates expansion towards to a full free trade agreement and has a built-in work plan which includes working towards the adoption of double taxation agreements between CARICOM member states and Cuba, to commence services  trade negotiations, to adopt an agreement on intellectual property rights, to negotiate an agreement for the protection and promotion of investment, among other things. On the latter point, Cuba already has individual bilateral investment treaties (BITs) with several CARICOM states, including Barbados, Belize, Jamaica, Suriname and Trinidad & Tobago.

    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.

     

  • Caribbean Tourism Organisation (CTO) and Airbnb sign partnership agreement

    Caribbean Tourism Organisation (CTO) and Airbnb sign partnership agreement

    Photo credit: Pixabay

    Alicia Nicholls

    The Caribbean Tourism Organisation (CTO) has today signed a partnership agreement with one of the most visible faces of the global sharing economy, Airbnb. This is according to a Press Release on CTO’s website posted today February 7, 2017. According to the release, the agreement, which establishes a basis for mutual cooperation, is “to develop a set of policy principles and recommendations on the sharing economy for Caribbean governments and other stakeholders.”

    The Agreement was signed by CTO’s Secretary General and Chief Executive Officer Hugh Riley and Airbnb’s Shawn Sullivan, public policy director for Central America, the Caribbean at the CTO’s Headquarters in Barbados.

    Airbnb is a peer-to-peer online accommodation platform which was founded in 2008 in San Francisco, California, USA and has over 2,000,000 short-term rental listings in over 191 countries worldwide. A cursory search on Airbnb reveals thousands of listings from across the Caribbean, ranging from modest studio apartments to luxurious villas. Airbnb is just one of several virtual spaces where persons list for rent, or rent, vacation accommodation. Some other similar platforms are Homeaway, VRBO and Owner Direct.

    Based on the information outlined in the CTO press release, the prospects for mutual cooperation covered by the CTO-Airbnb partnership agreement appear quite promising and include:

    • Sharing of data and studies with policy makers
    • Identifying ways to make the sharing economy more inclusive
    • Broadening the benefits of tourism to non-traditional actors
    • Attracting new stakeholders and focus on providing amazing and unique travel and cultural experiences to visitors
    • Providing to the CTO an economic analysis of Airbnb’s positive impact on local economies.
    • Based on this, briefing key stakeholders on the value of a peer-to-peer review mechanisms

    Why is this timely?

    This formalised mechanism for mutual cooperation  between Airbnb and the Caribbean’s regional tourism development agency is an important development and is timely for several reasons. Firstly, peer-to-peer platforms like Airbnb have become important players in the global accommodation sector. As millennials comprise an increasing share of global travel demand, there has been a shift towards a more authentic tourism experience, with a preference for self-catering accommodation (such as villas, apartments and condominiums) being part of that shift.

    Secondly, it can be argued that peer-to-peer accommodation platforms allow for a more inclusive tourism model as they allow anyone from a retired person who has an extra room to rent to an expat with a vacation home to rent it for only a very minimal cost.

    Thirdly, this demand shift toward self-catering accommodation has not gone unnoticed by the traditional hospitality sector (hotels) which have blamed the shift for weaker revenues and occupancy figures. These concerns are not unique to the Caribbean. A 2013 study (last updated in November 2016), which sought to estimate the impact of Airbnb on the Texas hotel industry found, inter alia, that the impact on hotel revenue was non-uniform, with lower priced hotels and non-business traveller catering hotels being the most affected. As far as I am aware, no similar study has yet been done for the Caribbean. The data sharing pursuant to the MOU could make such a study a possibility.

    Fourthly,  traditional accommodation players complain that online market places are competing on an unequal footing. For instance, whereas a hotel has to comply with regulations and pay taxes, depending on the country a person who lists a villa or guest house on Airbnb for rent is not yet captured under the tax net and there may not be regulations for those types of accommodation.

    Fifthly, as villas and some other non-hotel accommodation remain unregulated, there are concerns about potential reputational risk to a tourism destination should a guest have a bad experience in a villa or apartment rented through Airbnb or through any other means for that matter.

    Given the above, this cooperation agreement is a welcomed and forward-thinking step as it will lay the framework for greater data-sharing to allow policy makers to estimate the size and contribution of the tourism sharing economy and to use this data to make evidence-based policy decisions for supporting and regulating the non-traditional accommodation sector. It will also set the framework for joint collaboration for promoting the Caribbean, bearing in mind shifting consumer tastes towards a more authentic tourism experience, and ensuring that the region’s tourism industry is inclusive and redounds to the benefit of all stakeholders.

    For further information, please see the CTO’s official press release.

    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.

  • IMF Staff Recommend St Lucia CIP Revenues be used Primarily to Reduce Debt

    IMF Staff Recommend St Lucia CIP Revenues be used Primarily to Reduce Debt

    Alicia Nicholls

    In the  Concluding Statement of their 2017 Article IV Mission to St. Lucia released February 6, 2017, International Monetary Fund (IMF) Staff recommended that revenues from the island’s Citizenship by Investment Programme (CIP)  be used primarily to reduce the island’s high public debt and that limits  be placed on the amount of CIP revenues used to finance high-priority expenditure. The recommendations were based on a country mission undertaken by IMF Staff during January 16-27, 2017 pursuant to Article IV of the IMF’s Articles of Agreement. The IMF’s Concluding Statement outlines the preliminary findings made by IMF Staff during their mission.

    In their commentary on St. Lucia’s macroeconomic performance, IMF Staff noted that although tourism activity was weak,  unemployment continued to fall. The Staff highlighted the economic reforms programme currently in the process of being rolled out by the Government. The Staff expect positive but moderate short-term growth. However, they cautioned that the island’s high public debt, which currently stands at 82% of GDP, and its “delicate fiscal situation”, require prompt attention. They also made suggestions on how the fiscal package  announced could better achieve its targets.

    St. Lucia’s CIP

    In January 2016, St. Lucia became the fifth Caribbean country to offer a CIP as an alternative tool for attracting foreign direct investment (FDI), joining fellow Caribbean CIP countries: Antigua & Barbuda, Dominica, Grenada and St. Kitts & Nevis. St. Lucia’s CIP offers four investment options: a monetary contribution to the National Economic Fund (NEF), a real estate investment, a Government bond investment or an Enterprise Project Investment, with qualifying investment amounts set for each type of investment. In an effort to add exclusivity to the programme, the number of applications which could be approved by the Board had been capped at 500.

    This was the IMF Staff’s first Article IV country mission to St. Lucia since the CIP’s first full year in operation. In their 2017 Concluding Statement, the IMF staff noted that the island received “relatively few applications in 2016” and that “the [St Lucian] authorities expect that the recent easing in the requirements and lowering of the costs to qualify for this program will encourage an increase in revenues.”

    Changes to St. Lucia’s CIP Regulations – 2017 

    Effective January 1, 2017, an Amendment to the Citizenship by Investment Regulations No. 89 of 2015  introduced several sweeping changes to St. Lucia’s CIP in an effort to boost its competitiveness. This includes, inter alia, a reduction in the qualifying contributions required, making it the most affordable programme in the Caribbean and the removal of the 500-application cap. A summary of the regulatory changes may be found on CIP St. Lucia’s website here.

    However, while the Government’s desire to make its CIP more competitive is understandable, some have legitimately argued that these changes may undermine the programme’s exclusivity and may lead to a “race to the bottom” in terms of competition on price and ease of accessibility among Caribbean CIPs. Indeed, with the number of CIPs in the Caribbean now at five and several other countries around the world also offering CIPs or some form of immigrant investor programme, Caribbean CIPs face stiff competition both inter se and abroad.

    As such, as I have argued before, increased cooperation among Caribbean CIP countries will be needed to ensure that high standards are maintained and that countries do not undercut each other in terms of price and robustness of their programmes. There seems to be some support for the need for greater cooperation, as St. Lucia’s Prime Minister, Allen Chastanet, earlier this year called for a joint OECS approach to CIPs.

    Moreover, while I strongly believe that CIPs can be legitimate tools for development once managed well through raising revenue, encouraging FDI, infrastructural development, job creation and attracting  High Net Worth Individuals (HNWIs), they should be used as an adjunct and not the main propeller for economic growth and development.

    IMF Recommendations

    In the Concluding Statement, the IMF Staff made several recommendations aimed at minimising St. Lucia’s risk of fiscal dependence on its CIP revenues, which can be volatile, and to reduce the impact of the global rise in interest rates. These recommendations included:

    • Using CIP revenues primarily to reduce the high debt.
    • Using a capped amount of CIP revenue for investment projects of primary importance
    • The importance of “transparency, appropriate governance, and careful due diligence” to reduce risks of sudden stops in CIP revenue inflows.

    More detailed information will be known when the full Staff Report is produced and released at a later date.

    The full IMF Staff Concluding Statement may be viewed here.

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