Winston Anderson, PhD (Cantab)
Professor of International Law
&
Executive Director
Caribbean Law Institute Centre
University of the West Indies
Xth OAS Workshop on International
Law
San Jose, Costa Rica
February 2-5, 2010
GREETINGS:
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Professor E Nigel Harris, Vice-Chancellor of the
University of the West Indies (UWI)
UWI as a venue for future OAS Workshop on
International Law
SOME ASPECTS OF CARIBBEAN
COMMUNITY LAW:
Convergence of regional law and of private
and public international law
OUTLINE OF PRESENTATION
Caribbean Community Law
 CARICOM Law and Public International Law
 CARICOM Law and Private International Law
 Role of Caribbean Court of Justice
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THE CARIBBEAN COMMUNITY :
FOUNDATION AGREEMENTS
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The Revised Treaty of Chaguaramas
Establishing the Caribbean Community,
Including the CARICOM Single Market and
Economy (CSME), adopted July 2001, entered
into force January 2006
The Agreement Establishing the Caribbean
Court of Justice (CCJ), adopted February 2001,
entered into force March 2002
THE CARIBBEAN COMMUNITY:
FOUNDING MEMBERS
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Article 3 (1), Revised Treaty:
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Antigua and Barbuda (pop. 85,000)
The Bahamas* (pop. 309,000)
Barbados (pop. 285,000)
Belize (pop. 308,000)
Dominica (pop. 73,000)
Grenada (pop. 90,000)
Guyana (pop. 772,000)
Jamaica (pop. 2,800,000)
Montserrat* (pop. 5,097)
St. Lucia (pop. 160,000)
St. Kitts and Nevis (pop. 40,000)
St. Vincent and the Grenadines (pop. 105,000)
Suriname** (pop. 481,267)
Trinidad and Tobago (pop. 1,230,000)
THE CARIBBEAN COMMUNITY:
ACCESSION BY CARIBBEAN STATES
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Article 3 (2), Revised Treaty:
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Haiti, (2003)*** (pop. 9,000,000)
MAP OF THE CARIBBEAN COMMUNITY
THE CARIBBEAN COMMUNITY:
SOURCES OF LAW (1)

Treaties
 Acts of Member States
 Revised Treaty
 Protocols to be adopted (Article 239)
 Agreements creating CARICOM
Institutions
 CARICOM Regional Organization on
Standards and Quality (CROSQ)
 CARICOM Fisheries Mechanism (CRFM)
 Centre for Administration Development
(CARICAD)
THE CARIBBEAN COMMUNITY:
SOURCES OF LAW (2)
 Legislative
Acts of Organs of the
Community
 Political institutions created by the
Treaties
 Conference of Heads of Government
 Council for Trade and Economic
Development (COTED)
 Council for Foreign and Community
Relations (COFCOR)
THE CARIBBEAN COMMUNITY:
SOURCES OF LAW (3)
 Judgments
of the CCJ
Article 221
Judgment of the Court to constitute Stare
Decisis
“Judgments of the Court shall constitute
legally binding precedents for the parties
in proceedings before the Court...”
AGREEMENT ESTABLISHING THE
CARIBBEAN COURT OF JUSTICE, 2001
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Regional Judicial and Legal Services Commission
(RJLSC)
 Professionals from legal, business, public
service, NGOs
 Appoints Judges, recommends President
CCJ Trust Fund (separate agreement)
 US$100 million raised on capital market by
CDB
 Transferred to trustees
 Repayment of CDB by Member States
JURISDICTION OF THE CARIBBEAN
COURT OF JUSTICE (CCJ)
 Appellate
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jurisdiction
Replace the Privy Council
Barbados (2005), Guyana (2005)
Suriname?
Original jurisdiction
 Revised Treaty, Articles 211-222; CCJ
Agreement, Articles XI-XXIV
 “Compulsory and exclusive jurisdiction”
 Use of CCJ by non-CARICOM States
PUBLIC INTERNATIONAL LAW AND
CARIBBEAN COMMUNITY LAW
CARICOM Law most trade and trade-related
disputes between CARICOM countries
 Revised Treaty interpreted and applied by CCJ
 Apply “applicable” rules of international law
 Article 38 (1), Statute of ICJ
 Revised Treaty
 Regional custom/practice
 No finding of non liquet
 Fill blanks with general international law
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CSM: RIGHTS OF COMMUNITY NATIONALS
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Ten (10) categories of skilled workers entitled to
move to seek employment:
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Graduates (holders of degrees);
Media workers;
Sportspersons;
Artistes;
Musicians;
Teachers;
Nurses;
Holders of associate degrees;
Artisans with a Caribbean Vocational Qualification (CVQ);
Domestic helpers
Freedom to establish businesses
 Freedom to provide services
 Freedom to move capital
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RIGHTS OF ALL PERSONS IN THE COMMUNITY
 Nationals
have “core” rights (above)
 All
persons in the Community have
certain rights “peripheral” or “ancillary”
to the core rights
Free movement of goods of community
origin
 Protection of the common external tariff
(CET)
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PUBLIC INTERNATIONAL LAW DISPUTES
RESOLVED IN THE ORIGINAL JURISDICTION
 Trinidad
Cement Limited & TCL Guyana
Inc. v. Republic of Guyana, [2009] CCJ 1
(OJ)
 Trinidad
Cement Limited v. The
Community [2009] CCJ 2 (OJ)
UNRESOLVED ISSUES AT BORDER OF
PUBLIC INTERNATIONAL LAW AND
CARICOM LAW
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CCJ’s “Compulsory” and “exclusive” jurisdiction
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Revised Treaty arrangements
Conference, Competition Commission, (Chap. 9)
 Trinidad Cement Limited et al v. Guyana [2009]
CCJ
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World Trade Organization (WTO)
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Mexico-Soft Drinks case, (US, Canada v Mexico),
WTO, 24th March 2006
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European Partnership Agreements (EPA)
MATTERS AT BORDER OF PUBLIC
INTERNATIONAL AND CARICOM
LAW
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Issues falling within the scope of the Revised
Treaty
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Governed by regional law
Compulsory and exclusive jurisdiction of CCJ
Law of the Sea
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Preamble (access to collective resources)
Articles 58 (natural resource management); 60 (fisheries
management and development); 141 (special status of
Caribbean Sea)
Caribbean Regional Fisheries Mechanism (CRFM)
Barbados/Trinidad and Tobago, (2006) PCIA under Annex
VII, LOSC 1982
Guyana-Suriname, (2007) Tribunal under Annex VII,
LOSC 1982
ISSUES CONTINUING TO BE GOVERNED BY
RULES OF PUBLIC INTERNATIONAL LAW?
Law of Sea
 Labor disputes between staff and CARICOM
Institutions (Doreen Johnson v CARICAD, [2009]
OJ 3
 Human rights
 Unfinished Agenda: Revised Treaty, Article 239:
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Electronic commerce
Government procurement
Treatment of goods produced in free zones
Free circulation of goods in the CSME
Contingent rights
A SPECIAL CASE:
BILATERAL FREE TRADE AGREEMENTS
CARICOM-Venezuela (1992)
 CARICOM-Columbia (1994)
 CARICOM-Dominican Republic (1998)
 CARICOM-Cuba (2000)
 CARICOM-Costa Rica (2004)
 CARICOM in discussion with Canada (2009)
 CARICOM in discussions with MERCUSOR and
with SICA
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CARICOM / COSTA RICA, RTA, 2004
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CARICOM - Costa Rica Free Trade Agreement
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Signed March 2004.
Free trade or preferential access for a wide range of
products
Sensitive products excluded
95% of tariffs are to be phased out when the
agreement takes full effect.
A limited number of products will continue to attract
duty.
BILATERAL FREE TRADE AGREEMENTS
 Specialized
legal rules/self-contained
 CARICOM is contracting party
 Consistency with CARICOM Principles
 Less Developed Countries (LDC)
 Ratification in accordance with
constitutional principles
 Potential role of CCJ
CARIBBEAN COMMUNITY LAW AND
PRIVATE INTERNATIONAL LAW
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Sources of private international law
 Common law
 Legislation
 Constitution
SOURCES OF PRIVATE INTERNATIONAL
LAW CONT’D
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Relevance of Public International Law:
 Dualism
 Common law could recognize International
law as “custom”
 Revere Copper v. Overseas Private Investment
Corporation (OPIC), 24 August 1978; 8
December 1978; 56 I.L.R.258
CENTRAL CONCEPTS IN PRIVATE
INTERNATIONAL LAW
Choice of law
 Party autonomy in commercial transactions:
Robinson v Bland (1760)
 Domicile in family law matters: Udny v Udny
(1869)
 Choice of courts
 Presence (Maharanee of Baroda [1972])
 Extended jurisdiction (Ord. 11; CPR)
 Foreign judgment
 Jurisdiction of foreign court
 Final and conclusive
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IMPORTANCE OF PRIVATE INT’L LAW
Financial and economic growth and development
Simpson v. McCallum (1869) Supreme Court of
Jamaica
 International trade
 Offshore financial sector (BVI, The Bahamas)
 Direct foreign investment
 Transnational marriages
 Succession
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THE ENGLISH INFLUENCE
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Settlers brought “all such laws of England as
would be necessary to their new condition” :
Stulz v Wallace [1839] Supreme Court Jamaica
Caribbean statutes adopt legislative changes
made by English parliament in private
international law rules: Mills v Mills [1975]
Supreme Court of The Bahamas
Recognition and enforcement of foreign and
commonwealth judgments a codification of
English position: Sardina v Johnson [1977]
Supreme Court of Barbados
LIMITED REFORM OF PRIVATE INT’L LAW
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Forum non conveniens
Common law reform of jurisdictional rules
 No distinction between Caribbean and ‘foreign’ cases
 Continued application even with UK now in the EU
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Domicile
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Legislative reform
Approximate domicile with “home”
Adoption of alternative factors: residence, nationality
Foreign judgments
Legislation
 Codification of common law
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IMPACT OF CARIBBEAN COMMUNITY LAW 1
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Choice of courts and the Caribbean Court of
Justice:
Appellate jurisdiction
 Ultimate supreme court
 Unify rules of jurisdiction
 Allocate competence in transnational cases
Original jurisdiction
 ‘compulsory’ and ‘exclusive’
IMPACT OF CARIBBEAN COMMUNITY LAW 2
Choice of Law and the Caribbean Court of Justice
 Appellate jurisdiction
 Apply national law from which the appeal
comes
 Persuasive value throughout Community
 Joseph and Boyce v Attorney General [2006]
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Original jurisdiction
 ‘applicable rules of international law’
 Article 217, Revised Treaty, Article XVII, CCJ
Agreement
IMPACT OF CARIBBEAN COMMUNITY LAW 3
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Foreign Judgments and the Caribbean Court of
Justice
CCJ judgment to be enforced in national systems
As if made by superior court of state
 Power to punish for contempt
 Article XXVI, CCJ Agreement
 Rules of Court (CCJ)
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Registrars of Supreme Court
Deputy registrar of CCJ
 Article XXVII, CCJ Agreement
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PRIVATE INTERNATIONAL LAW CASES
RESOLVED IN CCJ ORIGINAL JURISDICTION
 Trinidad
Cement Limited & TCL Guyana
Inc. v. Republic of Guyana, [2009] CCJ 1
(OJ)
 Trinidad
Cement Limited v. The
Community [2009] CCJ 2 (OJ)
CONCLUSIONS (1)
 Founding
of Caribbean Community
profoundly impacts Public Int’l Law
 Creates
specialized community of states
with rules derogating from general PIL
 Unresolved
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questions at intersection:
Some matters resolved by Caribbean Int’l Law
Forum is the CCJ
Potential for other states to use CCJ
Some matters remain to be resolved by general
Public International Law
CONCLUSIONS (2)
 Establishment
of Caribbean Community
has profound effects on Private
International Law
Choice of courts
 Choice of laws
 Foreign judgments
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 In
future, most private international law
questions in the region will be resolved by
Caribbean Court of Justice
CONCLUSION (3)
 OAS
contribution to reform of public and
private international law should :
 Consider
implications of Community Law
 Consider University of the West Indies as
partner/conduit
 Involve the CCJ
MUCHAS GRACIAS!
CONTACT DETAILS:
winston.anderson@cavehill.uwi.edu
anatakarma@hotmail.com
(246) 417 4560
(246) 417 4000
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©W. Charles Anderson