26 SEPT <strong>2019</strong> chamber.org.tt
Law and order The TCL Experience TCL v Guyana [2008] CCJ 1 (OJ) TCL v Guyana [2009] CCJ 5 (OJ) In the matter TCL v Guyana [2008] CCJ 1 (OJ), the CCJ emphasised the historic nature of the proceedings and stated that it was the first matter in which the Caribbean Court of Justice had been called upon to exercise its original jurisdiction. It therefore had no precedents to follow in its interpretation and application of the RTC. While the Court reserved its decision, it identified two issues for determination in the matter. Firstly, whether for the purposes of Article 222 it is sufficient for a company to be incorporated or registered under the domestic legislation of a contracting party and, secondly, whether Article 222 of the Treaty accords to one who is held to be a person, natural or juridical, of a contracting party the right to sue that contracting party. Judgment was given on 15 January 2009 granting special leave to TCL. Prior to TCL’s case against Guyana, that country on numerous occasions unitarily removed the 15% Common External Tariff (CET) on cement imported from outside of Caricom. After many failed attempts at settling the matter bilaterally, TCL took the matter to the CCJ. In the case, TCL V the Co-Operative Republic of Guyana [2009] CCJ 5 (OJ), the Court ordered among other things that Guyana must re-impose the CET and that the Government must pay TCL two-thirds of its cost. While it was ordered that the CET be reimposed within 28 days of the Court Order of 20 August 2009, this was not done until 8 January 2010, after TCL filed a Contempt of Court application at the CCJ. TCL v The Caribbean Community [2009] CCJ 4 (OJ) In TCL v The Caribbean Community [2009] CCJ 4 (OJ), TCL sought clarification of the administrative procedures relating to the suspension of the CET. The Court in its judgment sought to address this issue while trying to strike a balance between the need for flexibility on policy issues and at the same time ensure the presence of “effective measures to curb the abuse of discretionary power”. The CCJ stated that Article 82 of the RTC, which lists the conditions for suspending the CET, must be interpreted in a sensible manner. That is, the production of the product is only one part of the equation. The company must also be able meet the demands of the member states in a timely manner. The CCJ also clarified Article 26 of the RTC and the responsibility of the Community Council to establish and maintain “an efficient system of consultation at the national and regional levels”, the object being to enhance the decision-making process in the Community. This duty to maintain an efficient system of consultation, the CCJ indicated, would include a duty to monitor the operation of that system once it has been established, as well as a duty to try and correct any weaknesses that emerged in the system; and to ensure as far as possible scrupulous adherence to that system. It was emphasised that these are duties which rest primarily on the Community Council, but in the performance of which that Council is entitled to the assistance of the Secretary-General. The CCJ also stated that member states have a duty to provide the Secretary-General and COTED with accurate, relevant and timely information. The Secretary-General must also do what they reasonably can in order to ascertain whether appropriate consultation has been held; and if it has not, to encourage the Competent Authority to remedy that omission. TCL v the Competition Commission [2012] CCJ 4 (OJ) While the CCJ dismissed the application by TCL, clarification was provided on some of the rules and procedures of the Competition Commission. The CCJ observed that it is difficult to see how an investigation of the regional Competition Commission could deal with cross-border anti-competitive business conduct by focusing on the infringement of national provisions. Moreover, it stated that this does not seem to be required by the RTC and, indeed, the question of which national provisions to concentrate on would almost certainly arise. In all the circumstances, the Court encouraged the Commission to review its rules so as to ensure that they are in concert with the RTC and reflect the appropriate standards of fairness. courtesy the Caribbean Court of Justice chamber.org.tt SEPT <strong>2019</strong> 27
Change language