Caribbean Trade Law and Development

Category: Trinidad & Tobago

  • Belize v Trinidad & Tobago: Caribbean Court of Justice dismisses claim for lack of evidence

    Belize v Trinidad & Tobago: Caribbean Court of Justice dismisses claim for lack of evidence

    Alicia Nicholls

    In its ruling delivered on February 1, 2022, the Caribbean Court of Justice (CCJ) has dismissed the original jurisdiction claim filed by Belize against Trinidad & Trinidad over the latter’s alleged failure to apply the Common External Tariff (CET) on extra-regional imported brown sugar.

    In its claim filed on September 30, 2020, Belize contended that Trinidad & Tobago had over the period November 2018-July 2020 failed to apply the CET rate of 40% on extra-regional imported brown sugar from Honduras and Guatemala. This, Belize argued, had adversely impacted prices and sales made by Belize Sugar Industries Ltd, a State-owned entity which exports sugar to Trinidad & Tobago. In light of this alleged breach by Trinidad & Tobago of the Revised Treaty of Chaguaramas, Belize sought declarations and damages.  Inter alia, Trinidad & Tobago argued in its defense that it had not allowed for the importation of brown sugar from Guatemala and Honduras without applying the CET of 40% on that item.

    In dismissing Belize’s claim, the CCJ cited “severe shortcomings” in the evidence offered by Belize, in respect of the alleged failure of Trinidad and Tobago to apply the CET, and that these shortcomings “were not cured by reference to circumstantial evidence”.

    In its nearly fifty page judgment, the CCJ also took time to reaffirm and reiterate the importance of the obligation on Member States to impose and maintain the CET on the importation of extra-regional goods. Simply put, a CET refers to the uniform tariff rates applied by members of a customs union against imports from third countries, that is, non-parties to the customs union. Such a measure protects the exports of the members of the customs union within the union and aim to make them more competitive vis-à-vis products outside the customs union. Article 82 of the RTC requires member states to establish and maintain the CET, while Article 83 outlines the only ways in which the CET on an item may be altered or suspended.

    Citing its previous case law on the matter, the CCJ emphasized that the CET was a “fundamental pillar” in the establishment of the CARICOM Single Market and Economy (CSME) and its importance in encouraging and promoting the production of goods within the community.

    With regard to the specific case at hand, the CCJ noted at paragraph 122 of the judgment as follows:

    “In the present circumstances, this Court re-emphasises the importance of maintaining the CET especially in respect of a product such as brown sugar which is of demonstrable importance to Member States such as Belize which manufactures that product. No one disputes that Belize has made very significant investment in its agricultural sector in general and in sugar cultivation and production specifically. The CET does not guarantee producers of sugar in Belize an assured market, but those producers are entitled to the protection of the market that the tariff is intended to provide.”

    Additionally, the CCJ went on to urge the Community “to superintend the conclusion of the Monitoring Mechanism for Sugar as quickly as possible to ensure that the benefits intended to ensure to the regional sugar producers are not frustrated and impaired”.

    The CCJ in its original jurisdiction has compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the RTC between Member States parties and between the Member States parties and the Community.

    The full judgment may be read here.

  • Trinidad & Tobago receives largely positive feedback during latest WTO Trade Policy Review

    Trinidad & Tobago receives largely positive feedback during latest WTO Trade Policy Review

    Alicia Nicholls

    On May 22 and 24, 2019, the Republic of Trinidad & Tobago underwent the fourth review of its trade policies and practices under the World Trade Organization (WTO) Trade Policy Review Mechanism. Trade Policy Reviews are the process by which the trade practices and policies of each WTO member are collectively evaluated by the WTO Membership (acting as the Trade Policy Review Body) at periodic intervals. Trinidad & Tobago is reviewed every six years and previously underwent reviews in 2012, 2005 and 1998.

    In April this year, the Trade Policy Review Mechanism celebrated 30 years of existence. It is an important aspect of the WTO’s monitoring function and aims to periodically evaluate the impact of each Member’s trade policies and practices on the multilateral system, thereby ensuring accountability, predictability and transparency of the rules-based multilateral trading system.

    An independent report prepared by the WTO Secretariat and a report by the WTO member being reviewed form the basis of the review. Trade Policy Reviews are a detailed and lengthy process which begin many months in advance of the actual meetings in Geneva. In January 2019, a WTO Review team visited Trinidad & Tobago and consulted with various government and private sector stakeholders. This week a delegation from Trinidad & Tobago which was led by H.E. Senator Paula Gopee-Scoon, Minister of Trade and Industry of Trinidad & Tobago and comprised five technical members, was in Geneva, Switzerland for the period May 20-24 to attend the review meetings at the WTO.

    Trinidad & Tobago received largely positive feedback for the current review period (2012-2019). According to the concluding remarks by the Chairperson, more than 200 questions were submitted by 15 Members. The questions and answers are usually available six weeks after the review process is completed. The Chairperson’s concluding remarks noted that Trinidad & Tobago provided answers to all the written questions submitted in advance of the meeting.

    The Chairperson’s concluding remarks listed the areas in which WTO Members appeared to be pleased with Trinidad & Tobago’s performance, including the return to economic growth after a period of recession, the steps taken to improve its government procurement regime through the passage of the Public Procurement and Disposal of Public Property Act, the modernization of its customs infrastructure and the introduction of a single electronic window in 2012 and the introduction of a new online payment system for import tariffs and other taxes and fees in 2019. They also praised the twin island Republic’s active participation in the WTO, its acceptance of the Protocol Amending the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 2013 and its ratification of the Trade Facilitation Agreement in 2015.

    Trinidad & Tobago was encouraged by some Members to join the Information Technology Agreement (ITA) and to become an observer to the Agreement on Government Procurement. Other areas suggested for improvement include facilitation of access to visas and foreign exchange, improving the regime for Sanitary and Phyto-sanitary Standards (SPS) and providing further information on enforcement actions for intellectual property rights. Some Members also encouraged Trinidad & Tobago to notify its announcement of an import ban on plastics from 2019 to the Committee on Technical Barriers to Trade to allow comments from Members.

    Members, however, raised some areas of particular concern. On the issue of tariffs, they noted, for example, that the applied Most Favoured Nation (MFN) rate exceeded the country’s bound rate on 59 tariff lines in 2018, up from 50 in 2011 during its last review. Another area of concern for Members was while the import surcharges imposed in 1990 were supposed to be temporary, the Government had continued to apply new import surcharges. Members also noted that Trinidad & Tobago’s notifications were either not up to date or outstanding in some areas, but were pleased to learn that the country made a formal request for technical assistance on notifications.

    While Trade Policy Reviews are an often intensive exercise for the Member being reviewed, they are an important opportunity for WTO Members to query other Members’ trade policies and practices, as well as for Members themselves to receive objective periodic feedback on their adherence to rules, disciplines and commitments under the WTO’s agreements, as well as on their general trade and investment framework. This feedback could be useful to Governments seeking to make business and investment facilitation reforms to improve their competitiveness and investment attraction.

    The Secretariat’s detailed report contains extensive information on the overall business environment of the Member reviewed for the review period, including its macroeconomic environment, its legal and regulatory framework for trade and investment and trade policies and practices by measure and by sector. As such, trade policy review documents are often rich initial sources of information for businesses and investors interested in doing business or investing in a particular economy.  

    Once Trinidad & Tobago submits its replies within a month’s time to any follow up questions raised during the meeting, the Trade Policy Review will have been successfully concluded.

    The documents from Trinidad & Tobago’s latest review may be accessed here. Also visit the website of the Ministry of Trade and Industry for press releases related to the review here.

    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 trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

    DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.

  • Trump’s Trade Executive Orders target deficit and uncollected AD/CV Duties

    Trump’s Trade Executive Orders target deficit and uncollected AD/CV Duties

    Alicia Nicholls

    United States (US) President Donald Trump has sent a warning signal to those countries which he accuses of engaging in ‘unfair trading practices’ argued to be costing American manufacturing jobs. Proclaiming that the “theft of American prosperity will end,” the President concluded the work week by signing two trade-focussed executive orders aimed respectively at identifying the causes of the US’ reported $500 billion dollar total trade deficit and the $2.3 billion dollars (as at May 2015) in uncollected anti-dumping and countervailing duties owed to the US government. Ultimately, the twinned measures are to “set the stage for the revival of US manufacturing” as noted in the President’s remarks at the signing ceremony.

    Presidential Executive Order Regarding the Omnibus Report on Significant Trade Deficits

    Taking aim at the US’ trade deficit  blamed for a decline in American prosperity and jobs, President’s Trump executive order mandates the Secretary of Commerce, Wilbur Ross, and the United States Trade Representative (USTR), Robert Lighthizer (yet to be confirmed) to prepare and submit to him an Omnibus Report on Significant Trade Deficits. This is to be done in consultation with relevant departments and agencies. The Secretary of Commerce and the USTR may hold public meetings and receive comments from relevant government and non-governmental stakeholders.

    Primarily, this report is to examine the US’ trading relationships country by country. It will identify those foreign trading partners with which the US had a significant trade deficit in goods in 2016, and seek to ascertain the reasons for the deficits, including whether it is because of trade abuses (or what President Trump has termed “cheating”) by these countries, assess the effects of the trade relationship on US employment and wage growth and identify imports and trade practices that may be impairing US national security.

    Most Caribbean countries can perhaps breathe a sigh of relief as the US has a trade surplus with the Region, as at the last report on the operation of the CBERA. The exception is the oil-rich Trinidad & Tobago which enjoys a merchandise trade surplus with the United States. According to US Census Bureau data, in 2016, the US imported $2,961 million in goods from the twin-island republic and exported $2,334 million, resulting in a deficit of $617 million. Natural gas, crude oil and petrochemicals comprise the majority of US imports from Trinidad & Tobago as this table shows.

    While it may appear that Trinidad & Tobago might potentially be in the Administration’s cross-hairs as it has a trade surplus with the US, it should be noted that (a) the US’ deficit with Trinidad & Tobago in 2016 was not ‘significant’ and has been declining since 2011 (b) the Report is supposed to consider other factors as well, including whether the country engages in ‘unfair trading practices’ which Trinidad & Tobago does not. (c) As the Trump Administration will seek to increase US onshore petroleum production, its imports from Trinidad & Tobago (and its deficit with that country) will continue to decrease.

    Presidential Executive Order on Establishing Enhanced Collection and Enforcement of Anti-dumping and Countervailing Duties and Violations of Trade and Customs Laws

    In a warning salvo to China, President Trump’s second executive order targets US importers which evade anti-dumping/countervailing duties by improving collection of these duties at the border. Dumping in the trade context refers to where an exporter sells a product in an export market at a price lower than in the home market. Under the WTO’s Anti-dumping Agreement, a country may, after investigation, impose extra duties (anti-dumping duties) on a “dumped” product from another country to ensure the price is close to the “normal value” or to offset injury to its domestic industry.

    Specifically, the executive order mandates the Secretary of Homeland Security, through the Commissioner of Customs & Border Patrol (CBP), to “develop and implement a strategy and plan for combating violations of US trade and customs laws for goods and for enabling interdiction and disposal”.

    The order also seeks to ensure the timely and efficient enforcement of laws protecting intellectual property rights holders from the importation of counterfeit goods. It therefore requires the Treasury Secretary and the Secretary of Homeland Secretary to take all appropriate steps to ensure that the CBP can share any information with rights holders which is necessary to determine whether there has been an IPR infringement or violation, and regarding merchandise voluntarily abandoned, once such information is shared consistent with the law.

    Memo on NAFTA

    In other news, last week a leaked draft memo to Congress signed by the Acting USTR revealed what appeared to be the Administration’s orientation towards the renegotiation of the North American Free Trade Agreement (NAFTA), an agreement which Trump had called the “worst trade deal ever signed by the US”. However, during a daily press briefing the White House Press Secretary, Sean Spicer, has said the memo is “not a statement of administration policy”.

    Trade had been a major plank of President Trump’s platform, which aimed to stop ‘bad trade deals’ and eradicate the US’ trade deficit. One of his earliest executive orders was mandating the Acting USTR to withdraw the US from the Trans-Pacific Partnership (TPP).

    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.

  • The 2012 London Olympics: Rally around the Caribbean!

    Alicia Nicholls

    David Rudder’s famous calypso ‘Rally ’round the West Indies’ came to my mind as I watched the end of the track and field events of the 2012 London Olympics on television today with regional pride. This song, which has become the anthem of the West Indies cricket team, is about cricket but the regional pride and call to action which it exudes can apply to any facet of regional life.

    Of the two hundred and four countries represented at the games of the XXX Olympiad, twenty-two were from the Caribbean,  representing our unique melting pot of cultures and tongues. Since the region’s first showing at the Olympic Games in London in 1948, the way for our younger athletes today has been paved by several regional track and field legends, the likes of which include: Arthur Wint (Jamaica’s first Olympic gold medalist),  Rodney Wilkes (Trinidad & Tobago’s first Olympic gold medalist), Hasely Crawford, Donald Quarrie, Merlene Ottey, Ato Bolden,  just to name a few.

    I would be the first to admit that unlike previous years, I was not initially feeling the hype of the Summer Olympic Games this time around.  But by the second week of the games, the strong Caribbean presence, particularly in the track and field events, was enough to shake my apathy and keep me glued to my computer to hear the latest updates.

    The London Olympic Games were full of heart-warming, tear-inducing moments for all Caribbean people here and in the diaspora. Thanks to Jamaican athletes Usain Bolt and Shelly-Ann Fraser-Pryce’s lightning fast wins in their respective 100m events, the Caribbean can boast the fastest man and woman on earth. Smashing world record after record, Usain Bolt has been the first to successfully defend an Olympic gold medal in not one but two events (men’s individual 100m and 200m) and has undoubtedly sealed his place in history as the greatest sprinter of all time. Anchored by Bolt, the record-setting performance of the Jamaican quartet in the 4 by 100m relay brought a resounding end to the track and field events for the region.

    The 2012  London Olympics has been the best Olympic Games for the Caribbean in terms of medal tally and the distribution of medals. The region won 15 medals in Sydney, 15 in Beijing and now 18 medals in London, of which  7 are gold medals.  This is also the best Olympic performance by individual CARICOM countries, with Jamaica, Trinidad & Tobago, the Dominican Republic, Grenada and the Bahamas all winning Olympic gold in track and field events. Jamaica has finished third overall in the track and medal table, winning 12 medals, only behind the United States and Russia, but ahead of other big countries like the UK. While the English-speaking Caribbean’s medal success has been in track and field, Cuba represented the region well off-track by winning gold in judo, boxing, shooting and wrestling.

    Perhaps the most poignant moments  of the games for me were the successes of our young, first-time Olympians. Hitherto unknown and not yet twenty, Trinidad & Tobago’s Keshorn Walcott became the first person from the western hemisphere in over six decades to win Olympic gold in the javelin throw. Kirani James’ stunning win in the 400m dash gave Grenadians the world over their country’s first Olympic medal and the inspirational moment of hearing their national anthem being played at an Olympic Stadium for the first time.

    The Caribbean is traditionally used to world-dominance in cricket, producing some of the greatest cricketers the world has ever seen. Now our region’s world class track and field athletes have shown the rest of the world that the track dust which we stir up is larger than the dots that represent us on maps. The symbolism of the Caribbean’s domination of the track and field events in this year’s games cannot be escaped.  For the English-speaking Caribbean, being able to flex our athletic muscle and assert our dominance against seasoned athletes from metropolitan countries, in the capital city of our former mother country, was an empowering feeling. The performance of Jamaica and Trinidad & Tobago is particularly symbolic given that this August marks a half century of both countries’ independence from Great Britain.

    Nothing can compare to the pride I felt seeing the flags of Caribbean countries being hoisted in the air or the look of achievement and love of country and region on the faces of our athletes as they stood atop the podiums to receive their medals at the medal ceremonies. It is Caribbean athletes’ names that will be on the lips of all who speak of the London Olympics of 2012. Their prowess will be etched in our memories forever.

    In addition to this, the Caribbean pride I saw glowing from the status updates and comments of my Facebook friends, the impassioned cries of Caribbean unity and “one Caribbean” was truly encouraging particularly at a time when so many are bemoaning the apparent stagnation of CARICOM and the regional integration movement on a whole. Caribbean people both in the region and in the diaspora have been united in their celebration of regional athletes’ success at the London Olympic Games of 2012. The Caribbean pride that I saw during these games was not manufactured. It was genuine. Never again can anyone say that Caribbean integration is beyond our reach. Just as we have put parochialism and petty stereotypes about each other aside momentarily for the past days and rallied around our Olympic athletes, it is about high time our governments get serious about regional integration and rally together for the good of the region.

    The Caribbean could not have asked for a better performance from our ambassadors. All of our Caribbean Olympians, whether they medaled or not, are champions and deserve heartfelt congratulations from the region. You have made our people proud!

    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.