Caribbean Trade Law and Development

Category: Uncategorized

  • CARICOM-Canada trade talks shrouded in doubt – Sir Ronald Sanders

    Interesting commentary by Sir Ronald Sanders on the current state of the CARICOM-Canada trade negotiations:

    CARICOM-Canada trade talks shrouded in doubt 

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

    Alicia Nicholls

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

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

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

    The Agreement on Trade Facilitation

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

    Agriculture

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

    Tariff Quota Administration

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

    Market Access for Least Developed countries

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

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

    Implications for SVEs like CARICOM?

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

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

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

  • 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.