Caribbean Trade Law and Development

Tag: Caribbean

  • Is Brexit a risk for the Caribbean?

    Is Brexit a risk for the Caribbean?

    Alicia Nicholls

    In a few weeks’ time, June 23rd to be exact, the British people will vote in a referendum to determine the future of the United Kingdom of Great Britain and Northern Ireland’s 40-plus year formal relationship with continental Europe. The possibility of a UK vote for an EU exit, poignantly termed “Brexit” in popular parlance, was identified by the International Monetary Fund (IMF) in its recently released World Economic Outlook Update Report as a major risk to the global economy.

    The fear of a negative impact of Brexit on the UK and global economy has been echoed off the walls of practically every major economic and political forum within the last few months, with the recently concluded IMF/World Bank Group Spring Meetings  being the latest example.

    Though the US, Canada, and in some respects China, have surpassed the UK’s economic importance to the Caribbean region as a destination for Caribbean exports and as a source of foreign direct investment (FDI), the UK remains an important source market for tourist arrivals.  It is also the region’s closest ally in the EU and a partner in helping to ensure the region’s concerns are raised and considered. Therefore, there are possible economic and foreign policy implications for the Caribbean if the UK severs its ties with the EU.

    Background

    The UK joined the European Economic Community (EEC), the predecessor to the EU, in 1973 but has never joined the eurozone, opting instead to retain the Pound Sterling as its currency and set its own monetary policy. While it is outside the scope of this article to delve into the merits and demerits of either position or to render an opinion on such, those who support the “Vote Leave” cite immigration from poorer EU countries and the perceived impact on UK social services, as well as the loss of British sovereignty as the EU looks to create an “ever closer union”. They see the costs of EU membership (both financial and figurative) outweighing the benefits and point to Switzerland and Norway as examples of European countries successfully striving outside of the EU.

    Those in favour of the “Stay vote” highlight the EU as a final destination for nearly half of all British exports and the hypothetical havoc that would be inflicted on the UK economy should the UK cease to be a member of the single market.According to data published by the UK Office of National Statistics, the EU in 2014 accounted for 44.6% of UK exports of goods and services, and 53.2% of UK imports of goods and services.

    While Article 50 of the Treaty on the European Union (TEU) provides for withdrawal from the EU by any member state, the current UK situation is untested waters. In 1975 British voters opted to remain in the EEC. Although Greenland left the EEC in 1985 following a referendum, no state has ever left the EU.  Therefore, there is uncertainty about the impact of a potential Brexit on the EU and the global economy considering that the UK is the EU’s 2nd largest member by GDP and 3rd largest by population.

     A “leave” vote will not automatically mean the UK is out of the EU and there is a process to be followed which Article 50 of the TEU outlines once the UK notifies its intention to withdraw pursuant to Article 50(2). This includes negotiation and conclusion of a withdrawal agreement in accordance with Article 218(3) of the Treaty on the Functioning of the European Union (TFEU). Unless the European Council and the UK decide an extension, EU treaties would cease to be applicable to the UK once the withdrawal agreement enters into force or, failing that, two years after the UK has notified its intention to leave.

    Caribbean Implications – Trade, Tourism & Investment

    The UK still ranks as a major partner for many Caribbean countries’ exports and imports. For commodities-exporting economies like Guyana, Belize, Suriname, the UK is within their top 5 export markets.

    The UK is more importantly a main source of tourist arrivals for many Caribbean countries. Some 1.1 million UK tourists visited the Caribbean in 2015, according to the Caribbean Tourism Organisation’s State of the Industry Report in February this year. For those tourism-dependent countries in the Caribbean for which the UK is the major source market, their economic fortunes are tied to the health of the UK economy and strength of Sterling. This was clearly illustrated by the slowdown many tourism-dependent economies in the region suffered while the US and UK economies were in recession during the global economic and financial crisis and during the height of the Air Passenger Duty (APD) saga when British demand for travel to the region fell..

    Studies on the impact of Brexit on the UK economy are inconclusive and range the gamut from positive to disastrous. However, the IMF position is clear as seen in its most recent WEO Update Report where it cut its growth projections for the UK from 2.2% to 1.9% in 2016, representing a projected slowdown from the  2.3% growth the UK economy realised in 2015.

    In Barbados, British nationals are also an important source of real estate FDI. It was recently reported by local real estate agents in a news broadcast that the softening  in the  value of the Great Britain Pound has dampened demand for Barbadian luxury real estate by British second home buyers and affected the tenuous recovery the island’s second home market was experiencing.

    Trade Agreements

    There is some disagreement among academics as to the continuity of the UK’s participation in treaties which it signed as part of the EU with third states. These include the Economic Partnership Agreement signed with CARIFORUM states, which is considered a “mixed” treaty under EU law, that is, a treaty under which both the EU and its member states exercised competencies and thus  is concluded by both the EU and its member states. Some posit that the UK can avail itself of the principle of continuity of treaties, which is more likely in a “mixed” treaty than an “exclusive” scenario where the EU has exclusive competence.

    However, the principle of continuity actually applies in the context of state continuity and succession and there is no precedent of a scenario like this where a state ceased to be a member of a trading bloc in which capacity it had concluded a treaty. Even if the continuity principle applies, the UK would have to enter into some kind of negotiations with these states if it is to continue to benefit from treaties it signed as part of the EU which still means there will be uncertainty for CARIFORUM exporters and investors. In the worst case scenario, CARICOM or CARIFORUM would have to negotiate a separate agreement with the UK to maintain the level of preferences to the UK market to what they have with the EU under the EPA. As the EU treaties and directives would no longer apply to the UK after the date of entry of the withdrawal agreement, the UK would have the regulatory freedom to set its own standards, such as technical standards and sanitary and phytosanitary standards, which may or may not be as onerous as the EU’s.

    Foreign Policy Implications

    The UK is most Commonwealth Caribbean countries’ closest ally in Brussels. A British exit would mean the UK no longer has the power to directly influence EU policy and the Caribbean region would lose an important voice to raise and articulate its concerns in regards to the future of EU foreign policy. It is particularly critical now as the EU is contemplating its position on the future framework for cooperation with the countries of the African, Caribbean & Pacific (ACP) Group once the Cotonou Partnership Agreement expires in 2020.

    The situation becomes more complicated for UK dependencies in the Caribbean which are not officially a part of the EU but benefit from EU funding and preferences because of their relationship with their mother country, the United Kingdom. A “yes vote” would raise questions about what future relationship they have with the EU.

    According to this news report, a  poll by YouGov released on Friday “found support for “In” stood at 40 percent, while 39 percent intended to vote “Out”, 16 percent were undecided and 5 percent did not intend to vote”. Similar to the Scottish independence referendum where polls were close and ultimately the status quo prevailed, my personal view is that despite the growing anti-EU sentiment in the UK, the British people will not vote to leave the EU. Besides the uncertainty a Brexit would portend for the British economy and business, Prime Minister David Cameron was able to secure several sweeping changes from Brussels after two days of negotiations in February and which would go into effect if the “stay vote” wins. 

    However, in the event that the “out vote” prevails, it is likely that the UK will negotiate some kind of preferential arrangement, similar to what obtains between the EU and Turkey, given the strong trade and investment ties to the continent. This would ensure UK businesses and exporters are not disadvantaged and still have favourable access to the EU single market once the transition period ends.

    The Bottom Line

    Brexit would be a risk to Caribbean economies. The nature of the risk would depend on several factors, including the type of withdrawal arrangement the UK negotiates with the EU and the impact on the British economy during the period of transition.

    The uncertainty in the UK economy during the post-exit phase could have strong implications for countries like Barbados whose economic fortunes are closely tied to the strength of the UK economy, something which we are already seeing happening to some extent as uncertainty among investors has led to the weakening of Sterling in recent months.  Furthermore, the UK’s exit from the EU would mean uncertainty for Caribbean exporters in the UK market and the loss of the region’s closest ally within the trade bloc at a time when the EU is reconsidering its foreign policy and its post-Cotonou cooperative framework with ACP countries. As such, the Region must brace itself for whatever happens on June 23rd.

    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.

  • Global Trade and Socio-economic tides pushing Caribbean countries to the back of the shoal: Integrate or be left behind

    Alicia Nicholls

    A few days ago I had the pleasure of being on the Regional Integration panel at the 17th Annual SALISES Conference held this year in Barbados where I presented a paper co-authored with founder and president of the African, Caribbean and Pacific Young Professionals Network (ACP YPN), Miss Yentyl Williams. The consensus all the panelists had reached in our papers was that as small fish in a very large pond, Caribbean countries are facing a growing swell of global trade and other socio-economic tides which are deepening our marginalisation in the global economy.

    We argued that the region desperately needed to deepen and widen its integration process or face being further relegated to the back of the global shoal. Of course, what we were saying was not novel and indeed, has been one of the oldest and most compelling justifications for the regional integration project.

    The Good

    Caribbean countries have generally attained high levels of socio-economic and political development and high per capita incomes, which have put us “ahead of the pack” of other small island developing states (SIDS). An unfortunate side effect has been the graduation of several “high income” Caribbean countries like Barbados, the Bahamas and Trinidad & Tobago from accessing most concessional loans and grants, with a shift in aid focus towards Least Developed Countries (LDCs). We also have long traditions of stable democratic rule underpinned by respect for the rule of law which has been a source of comfort for investors seeking to do business in the region.

    The Bad

    Despite these very noteworthy accomplishments, Caribbean countries confront many challenges endemic to SIDS, including vulnerability to natural disasters and to international economic and financial shocks, open economies with a high dependence on imports and on a narrow base of exports and trade partners, a paucity of natural resources, unsustainably high levels of debt, low growth rates, wide fiscal and current account deficits, declining competitiveness, growing informal economies and unpredictable foreign direct investment (FDI) inflows.

    The potential shift in trade rule making from the multilateral level (Doha is practically dead post-Nairobi), to the regional and plurilateral levels means Caribbean countries will be subject to rule-taking on important trade issues such as services, competition policy, investment and government procurement, without having a seat at the negotiating table. Mega regional trade agreements like the recently concluded Trans-Pacific Partnership Agreement (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP) which is currently under negotiation and plurilaterals under negotiation like the Trade in Services Agreement (TISA), also have the potential to further erode the narrow margins of preference Caribbean countries’ exports enjoy in the US and EU markets respectively. Regional exports to these countries are not only below potential but remain heavily concentrated in commodities, namely, minerals and fuels and agricultural products,  and some textiles.

    Although low oil prices have benefited oil-importing countries of the region by lowering their fuel import bills, the region’s largest oil exporting economy, Trinidad & Tobago, has gone into recession.

    One bright spot is that Caribbean tourism appears to be on the rebound in the aftermath of the impact of the global recession. The latest Caribbean Tourism Organisation (CTO) State of the Industry Report indicates that in 2015, international arrivals to the Caribbean region grew 7%, outpacing global tourism growth of 4% in the same period. Tourist arrivals from within the Caribbean increased by 11.4%. Nonetheless, shocks like 9/11 and the global recession and possibly the current Zika outbreak, highlight the very sensitive nature of the industry, which has implications for countries like Barbados, the Bahamas and the Eastern Caribbean where tourism is a major foreign exchange earner and employer.

    The loss of correspondent banking relationships due to the de-risking practices of banks in metropolitan countries has the potential to undermine the region’s trade, investment and remittance flows, a lifeline for many communities within Caribbean countries. The view of the region as being a “risky” place to do business cannot be divorced from Caribbean countries’ constant need to fight their inclusion on arbitrary blacklists, with the EU being one of many latest examples. On the social front, there is rising unemployment and underemployment, which are particularly acute among young persons, as well as rising crime and security concerns.

    All of these challenges, many both national and regional in texture and scope, are injurious to regional development, including our progress towards achieving the 17 United Nations sustainable development goals (SDGs). These challenges necessitate harmonised national and regional responses. However, progress on the regional project remains lacklustre.

    Functional cooperation has been the pillar in which CARICOM has been most successful. There has also been some success on the foreign policy coordination front as exemplified by the Region’s cohesive position at the Paris Negotiations which led to the Paris Agreement. However, economic integration has been where the challenge lies. The implementation deficit, though spoken of ad infinitum, remains problematic given the long delays in domestic implementation of regional decisions and missed deadlines. The “E” of the Caribbean Single Market and Economy (CSME) is still in the realm of dreams as opposed to reality.

    CARICOM countries export the majority of their trade extra-regionally (mainly to the US, EU and Canada). Intra-regional trade remains low and under-exploited and dominated by CARICOM MDCs, particularly petroleum exports from Trinidad & Tobago.

    Without doubt, the lack of political will deserves a significant share of the blame for the current malaise. The fact that most CARICOM states have still not signed on to the appellate jurisdiction of the Caribbean Court of Justice is just but one example. At the same time, the slow process of integration in CARICOM can be juxtaposed to the deep level of integration among member states of the Organisation of Eastern Caribbean States, which have their own Eastern Caribbean Supreme Court, currency union, central bank and recently have granted Martinique, a French Caribbean Outermost Region, associate membership.

    Besides the lack of political will, other factors remain hindrances to regional integration as well, including human and financial capacity constraints at the national and regional levels, limited monitoring and evaluation of member states’ implementation of reforms and the inability of CARICOM to force compliance with regional imperatives due to its intergovernmental structure. Not to be overlooked are the fears, suspicions and nationalist sentiments we Caribbean people still harbour towards each other, as well as the very “inward looking” as opposed to “regional looking” approach by  many regional leaders.

    The options

    As the saying goes, Caribbean states are tiny fish in a very large pond but a shoal of fish is better than one if the region is to avoid being swept away by global tides and relegated to the back of the global shoal. Boosting intra-regional trade among Caribbean countries and trade with third states are priorities. For this, improving trade facilitation and ease of doing business in the region are a must.

    Caribbean countries have an average rank of ease of doing business of 104 out of 189 economies, according to the latest World Bank Doing Business Survey 2016. Though in ease of trading across borders, Caribbean countries had a average regional rank of 95 (higher than Latin America (108) and East Asia Pacific Islands (112), a lot more work needs to be done. Just compare our average to the comparable SIDS, Mauritius which topped Africa with a rank of 32 in 2016. The highest ranking Commonwealth Caribbean country was Jamaica (68).

    Doing business between Caribbean countries can be a frustrating exercise due to differing customs regulations and other regulatory standards, existing non-tariff barriers to trade (e.g: sanitary & phyto-sanitary standards and technical barriers to trade), foreign exchange controls, the high cost of regional transport and lack of access to timely information on documentary and other requirements. While the region has very liberal investment regimes, investors seeking to do business in multiple Caribbean countries have to navigate a complex web of different border and behind the border regulations. This increases the cost of doing business.

    A single economic and investment space as envisioned by the CSME, aided by fiscal, investment policy and regulatory harmonisation, would make intra-regional trade easier and also make the region a more attractive destination to extra-regional investors. To this effect, it is imperative that Caribbean countries follow through with the current reforms and the vision of the CARICOM Strategic Plan 2015-2019. Additionally, so far just a handful of Caribbean countries have ratified the World Trade Organisation’s Trade Facilitation Agreement, which while a global agreement, the reforms undertaken would also benefit intra-regional trade.

    What the  global financial and economic crisis has reinforced is the need for Caribbean countries to diversify their export profiles and trade partners. The latter is happening to some extent as both China and Venezuela have become major investors and development partners in the region, adding to the traditional partners of the US, EU and Canada. However, China’s economy has slowed as it transitions from export-led to more consumption-led growth. Venezuela faces significant socio-economic turmoils which call into question the sustainability of the Petrocaribe arrangement, under which most Caribbean countries receive oil from Venezuela on highly concessional terms. Some OECS countries are exploring deepening diplomatic and possibly economic relations with Middle Eastern countries. Antigua & Barbuda recently announced it was establishing an embassy in Iraq and lifted its ban on Iraqi nationals seeking to apply for its Citizenship by Investment programme.

    Like all trading economies Caribbean states have both offensive and defensive interests. There is the need to convert market access under existing trade agreements such as the CARIFORUM-EU Economic Partnership Agreement and preferential arrangements like the Caribbean Basin Initiative (CBI) and CARIBCAN into market presence. CARICOM should also explore the expansion of existing partial scope agreements the region has with the Dominican Republic (its CARIFORUM partner), Costa Rica, Cuba and  Colombia, as well as the possibility of concluding trade arrangements with other South and Central American countries.

    Additionally, there is the need to move into higher value products than just traditional commodities like cocoa, sugar and rice and also accelerate the development of possible growth sectors like the cultural industries, transshipment, ICTs and renewable energy (for domestic consumption and possible export). To this effect, the region needs to make optimum use of aid for trade initiatives.

    CARICOM countries must continue to speak with “one voice”, particularly on global trade, economic and social issues which have implications for the development of our economies and our peoples. This includes continued advocacy for the interests of small vulnerable economies (SVEs) in WTO negotiating groups and continuing to support the multilateral system to ensure its primacy, and not FTAs and plurilaterals, as the forum for trade rule making so that the Region has a say in the rules to which it is subjected.

    OECS countries have long seen the utility of maintaining joint representation in diplomatic capitals, such as the OECS Joint Mission in Brussels. It is time CARICOM consider the same.

    Any regional strategy requires continuity and continuity mandates engaging the future of the region – our young people. The region has to harness and unleash the energies of its young people, many of whom feel alienated from the regional integration process and from their societies in general. While the CARICOM Youth Ambassadors is a great step, I have always argued that CARICOM needs a Young Professionals Programme similar to the young professionals programmes of other organisations, where the region’s young people, many of whom have increasing difficulty finding jobs commensurate with their skills, can be systematically recruited into various regional institutions and inject new ideas and enthusiasm. As SIDS, our human resource has always been our greatest resource. It is time we exploit it to the fullest.

    In sum, the growing challenges facing the region means it cannot be business as usual. The time for talking is over. It is time for action. Countries with economies and populations larger than ours have seen the importance of deepening their integration. As small fish in a large pond, Caribbean countries need to do the same or face being left at the back of the global shoal.

    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.

  • US President Obama’s Trade Agenda 2016

    Alicia Nicholls

    The Office of the United States Trade Representative (USTR) has released President Obama’s Trade Policy Agenda for 2016 with the theme of “Trade that serves the American People”.

    As expected in an election year and the President’s final term, the agenda document mentions some of the accomplishments of the President’s trade agenda over his two-terms, including the conclusion of free trade agreements with Korea, Colombia and Panama, the signing of the Trans-Pacific Partnership Agreement, the bringing of 20 enforcement cases in the World Trade Organisation (WTO), renewing the Generalised System of Preferences (GSP) and the Africa Growth & Opportunity Act (AGOA) and “rejuvenating the WTO negotiation process”.

    According to the preface to the document by current USTR, Michael Froman, the President’s 2016 agenda is centred on promoting growth, supporting well-paying jobs in the US and strengthening the middle class. To this effect, a central thrust of the Agenda will be continuing work towards achieving the removal of foreign taxes on US exports and enforcing US trade rights.

    To further these goals, the administration in its remaining time has committed itself to continue its negotiation of free trade agreements which help promote jobs  for Americans and opportunities for US exporters. Mention was made of the on-going negotiations with the European Union on the Trans-Atlantic Trade and Investment Partnership (T-TIP) and deepening its relationship with Brazil through the Agreement on Trade and Economic Cooperation (ATEC). At the plurilateral level, there is commitment to conclude the Environmental Goods Agreement and the Trade in Services Agreement.

    So where does the Caribbean feature in all of this? It should be noted that in the document, the Caribbean was mentioned a grand total of only twice. The document made reference to the Caribbean Basin Initiative, the US’ only permanent preference programme, and also noted that in 2016, the US  will continue its engagement with the region to encourage even greater trade and investment”.

    It signals the US’ commitment towards preserving the preferential access Caribbean countries enjoy under the CBI for many of their merchandise exports. However, it also makes clear that the Region does not enjoy any real priority in Washington’s trade agenda. In contrast for example, the report notes that the US will “intensify engagement with trading partners in sub-Saharan Africa to advance key trade and investment initiatives” as US companies continue to see opportunities in Africa.

    In regards to Cuba, the President’s agenda states as follows:

    “Within the parameters for the new relationship with Cuba set by the Administration and the existing embargo, we will work in the WTO and bilaterally to explore ways to deepen our trading relationship with Cuba, and if conditions are right, advance the normalization of U.S.-Cuba trade relations.”

    While the current agenda reaffirms the embargo, it does hint at normalisation “if conditions are right”, whatever those right conditions are.

    In terms of the US’ multilateral engagements at the World Trade Organisation (WTO), the document confirms once and for all that Doha is dead as far as the US is concerned:

    “In 2016, WTO members have an opportunity to undertake new approaches to longstanding issues and take up new issues without being constrained by the strictures of the Doha Round architecture.”

    Instead, the President in his 2016 agenda has committed to “advancing a new form of pragmatic multilateralism that will tackle emerging issues important to developing and developed economies alike.” The agenda also states the US’ commitment to assisting the integration of Least Developed Countries into the global economy.

    It is an election year in the US with its infamous “lameduck period” which brings uncertainty about how much of the Agenda the President will actually be able to achieve in his remaining time in office. The Trans-Pacific Partnership Agreement (TPP), which is a “central part of the President’s broader economic strategy”, has received major resistance and opposition both in the US congress, among the general public and some presidential candidates. As expected, the President, therefore, has a major fight on his hands to obtain Congressional approval of the TPP before he leaves office. There is no guarantee his successor will support it.

    The full report may be accessed 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.

  • 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.