Hummingbird Rice Mills Ltd Applicant v Suriname First Respondent The Caribbean Community Second Respondent

CourtCaribbean Court of Justice
Docket NumberCCJ Application No AR 1 of 2011
Judgment Date27 Jun 2011
JurisdictionCaribbean States
Neutral Citation[2011] CCJ 1 OJ

[2011] CCJ 1 (OJ)

IN THE CARIBBEAN COURT OF JUSTICE

CCJ Application No AR 1 of 2011

Between
Hummingbird Rice Mills Limited
Applicant
and
Suriname
First Respondent

and

The Caribbean Community
Second Respondent
THE COURT,

composed of R Nelson, A Saunders, J Wit, D Hayton and W Anderson, Judges

Having regard to the application for special leave to commence proceedings filed at the Court on February 24, 2011, together with the annexures thereto, the written submissions of the Applicant filed on April 28, 2011, the written submissions filed on behalf of the First Respondent on May 20, 2011, the written submissions filed on behalf of the Second Respondent on May 20, 2011 and to the public hearing held on June 3, 2011.

and after considering the oral submissions made on behalf of:

  • the Applicant, by Mr Elvis Connor, Attorney-at-Law appearing in association with Ms. Linda Greene, Attorney-at-law

  • the First Respondent, by Mr Hans Lim A Po, Attorney-at-Law

  • the Second Respondent, by Ms Gladys Young, Attorney-at-Law appearing in association with Ms. Safiya Ali, Attorney-at-law

issues on the 27 th day of June, 2011 the following

Summary of facts
1

By a notice of application dated and filed on February 24, 2011 Hummingbird Rice Mills Limited (hereinafter referred to as “the Applicant”) applied to this Court pursuant to Article 222 of the Revised Treaty of Chaguaramas (“the Revised Treaty”) and Part 10 of the Caribbean Court of Justice (Original Jurisdiction) Rules 2006 (“the Rules”) for special leave to commence proceedings as a private entity against the State of Suriname and the Caribbean Community.

2

The dispute between the parties arises out of the importation into Suriname over the period January 2006 to June 14, 2010 (“the relevant period”) of wheat or meslin flour other than durum flour (hereinafter referred to as “wheat or meslin flour”) from the Kingdom of the Netherlands at a 0–5% rate of customs duty instead of the rate of 25% fixed by the Common External Tariff (“the CET”) of the Caribbean Community issued by the CARICOM Secretariat.

3

The Ministry of Trade and Industry of Trinidad and Tobago in February 2006 notified the CARICOM Secretariat of the non-imposition by Suriname of the CET on wheat or meslin flour. The Secretariat wrote to the government of Suriname in March 2006 concerning that intimation. The CARICOM Secretariat reported the matter to the Twenty-First Meeting of the Council for Trade and Economic Development (“COTED”) whose functions are spelled out at Article 15 of the Revised Treaty as including overseeing the operation of the Caribbean Single Market and Economy. At that meeting held on May 12–13, 2006, COTED gave Suriname time to investigate the matter and report to the Secretariat.

4

At the Twenty-Second meeting of COTED held from November 16–17, 2006 the CARICOM Secretariat reported that Suriname admitted importing flour from the Netherlands at a 0% tariff but that the flour so imported was classified under Tariff heading 1101.00.10 and that under that heading, based on the Harmonised System, the CET was 0–5%. Delegates queried whether the imported flour should have been classified as wheat or meslin flour which attracted a CET of 25%. Durum flour bore a CET of 0–5%. Suriname promised to investigate the matter further and report by November 25, 2006.

5

On or about December 29, 2006 Suriname requested from the Secretary-General authority to suspend the CET on wheat or meslin flour citing concerns about the quality of the flour supplied regionally, the fact that the price of bread was controlled and sustained by long-term arrangements with Dutch suppliers, and issues relating to the cost of living. By letter dated January 24, 2007 the Secretary-General denied Suriname's request. The Secretary-General's decision not to authorize the suspension requested was reported to the Twenty-Third Meeting of COTED held from May 16–18, 2007. The Twenty-Fourth Meeting of COTED in 2007 did not consider the non-imposition of the CET on wheat or meslin flour imported into Suriname.

6

At the Twenty-Fifth meeting of COTED on January 25, 2008 Suriname declared that it had charged no duty on flour from extra-regional sources, and requested that flour be placed on a list of items which were to be exempt from the CET. COTED denied this request but accepted an undertaking from Suriname to update the Secretariat within 14 days of the meeting (February 8, 2008) concerning the application of the CET on flour in Suriname.

7

In June 2008, the CARICOM Secretariat reminded Suriname of the February 2008 deadline, and in October 2008 Suriname advised the Secretariat that consultations were taking place in Suriname with a view to rescinding the Ministerial Decree of 1997 that allowed for duty-free imports of flour.

8

At the Twenty-Sixth Meeting of COTED held from November 24–25, 2008 Suriname announced that it would adopt a two–track approach to the problem of non-compliance, which would involve a change of policy that would have to be effected in Parliament. It would at the same time tackle the issue of quality with the assistance of CROSQ (the CARICOM Regional Organization for Standards and Quality) and of Trinidad and Tobago. COTED urged Suriname to reinstate the CET on imports of flour from third countries.

9

At the Twenty-Seventh Meeting of COTED held from May 11–12, 2009 COTED accepted the indication by Suriname that it would be in full compliance by December 31, 2009 following the budget debate in that country. At the Twenty-Eighth meeting of COTED held from October 5–8, 2009 Suriname repeated its undertaking of full compliance by December 31, 2009. Suriname did not meet that deadline. At the Twenty-Ninth meeting of COTED held from February 8–9, 2010, Suriname explained that the budget debate was still ongoing but that it anticipated the CET would be reinstated by June 15, 2010, a commitment which COTED accepted.

10

A Ministerial Decree dated February 21, 2010 imposed a tariff of 25% on “flour of wheat or mixed seeds” other than durum flour. A second Ministerial Decree dated June 8, 2010 revoked a Ministerial Decree of April 10, 1997 suspending the levying of import duties on “flour of wheat or mixed seeds” other than durum flour from June 15, 2010. Suriname was in full compliance with the CET on flour at the date of this application and has been so compliant from June 15, 2010 to the present time.

11

The Applicant intends, if special leave is granted, to contend that the non-implementation of the CET by Suriname over the relevant period constituted a breach of Article 82 and that it unlawfully failed to incorporate the CET into the laws of Suriname contrary to Article 83. The Applicant will further contend that the Secretary-General through COTED unlawfully accepted Suriname's undertakings and acquiesced in COTED's extensions of time granted for compliance with the CET. The Applicant will also contend that the Secretary-General illegally and irrationally made an implied decision to authorize the suspension of the CET over the relevant period. The Applicant intends to invite the Court to grant judicial review of the alleged unreasonable delay and failure of the Caribbean Community to impose sanctions against Suriname for its non-compliance over the relevant period. Further, the Applicant claims to have suffered substantial financial losses through the acts and/or omissions of Suriname and the Caribbean Community through the...

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4 cases
  • Hummingbird Rice Mills Ltd Claimant v Suriname The Caribbean Community Defendants
    • Caribbean Community
    • Caribbean Court of Justice
    • 11 April 2012
    ...Ltd v. Suriname and The Caribbean Community [2012] CCJ 1 (OJ) 2 See Hummingbird Rice Mills Ltd v. Suriname and The Caribbean Community [2011] CCJ 1 (OJ) 3 See Hummingbird Rice Mills Ltd v. Suriname and The Caribbean Community [2012] CCJ 1 (OJ) at ...
  • Hummingbird Rice Mills Ltd v Suriname Caribbean Community
    • Caribbean Community
    • Caribbean Court of Justice
    • 23 February 2012
    ...prescribed by Article 222 (a) and (b) were or could be met [See Hummingbird Rice Mills Limited v. Suriname and the Caribbean Community [2011] CCJ 1 (OJ) at [20] to [26]]. However, as this Court intimated in Trinidad Cement Limited v. The Caribbean Community [2009] CCJ 4 (OJ) [16] to [18], t......
  • Hummingbird Rice Mills Ltd Claimant v Suriname The Caribbean Community Defendants
    • Caribbean Community
    • Caribbean Court of Justice
    • 23 February 2012
    ...proceedings against Suriname as well as The Community. 4 See Hummingbird Rice Mills Limited v Suriname and the Caribbean Community [2011] CCJ 1 (OJ) at [20] to 5 [2009] CCJ 4 (OJ) [16] to [18] 6 The Revised Treaty was ‘provisionally’ applied from 2002, see: Protocol on the Provisional Appli......
  • Tamika Gilbert Lynnel Gilbert Royston Gilbert Glennor Gilbert v The State of Barbados
    • Caribbean Community
    • Caribbean Court of Justice
    • 20 May 2019
    ...Mme Justice M Rajnauth-Lee 1 [2009] CCJ 1 (OJ); (2009) 74 WIR 302 2 ibid at [33] 3 [2014] CCJ 2 (OJ); (2014) 84 WIR 239 4 ibid at [4] 5 [2011] CCJ 1 (OJ) at [26] 6 [2013] CCJ 3 (OJ); 83 WIR 104 7 ibid at [25]; Cabral Douglas v the Commonwealth of Dominica [2017] CCJ 1 (OJ) at [5] and [6] 8 ......