Trinidad Cement Ltd and TCL Guyana Incorporated v The State of the Co-Operative Republic of Guyana

CourtCaribbean Court of Justice
Docket NumberAR 1 of 2008
JudgeDe La Bastide, P.
Judgment Date15 Jan 2009
JurisdictionCaribbean States

Caribbean Court of Justice

de la Bastide, P.; Nelson, J.A.; Pollard, J.A.; Saunders, J.A.; Bernard, J.A.; Wit, J.A.; Hayton, J.A.

AR 1 of 2008

Trinidad Cement Limited and TCL Guyana Incorporated
and
The State of the Co-Operative Republic of Guyana

International law - Locus standi — Revised Treaty of Chaguaramas establishing the Caribbean Community — Whether applicants could successfully establish locus standi as private entities against a contracting party of the treaty.

EXECUTIVE SUMMARY OF JUDGMENT

[1] In this case two companies, Trinidad Cement Limited (TCL) and TCL Guyana Incorporated (“TGI”), are attempting to sue the Republic of Guyana in the Caribbean Court of Justice (“the Court). TCL manufactures cement and markets and distributes it in Guyana through its subsidiary, TGI. TCL is incorporated in Trinidad and Tobago and TGI in Guyana.

[2] Their complaint is that the Government of Guyana in breach of the Revised Treaty of Chaguaramas (“the Treaty”) unilaterally suspended the Common External Tariff (CET) on cement imported from countries outside of CARICOM.

[3] In order to bring proceedings in the Court, however, the two companies had first to obtain special leave of the Court and for this purpose had to satisfy certain conditions. They had to establish that they were “persons, natural or juridical, of a Contracting Party”, and in this connection an issue arose as to whether the fact of their incorporation in Trinidad and Tobago and Guyana respectively, was sufficient to satisfy this condition. By its judgment the Court has held that the incorporation of a company in a State which is a party to the Treaty is sufficient to qualify it as a candidate for special leave to bring proceedings in the Court.

[4] An even more important issue which arose in the case of TGI's application for special leave, was whether a national of a CARICOM State Party to the Treaty can bring an action in the Court against that State for breach by it of some provision of the Treaty. In determining this issue the Court rejected a literal interpretation of the relevant Article (Article 222) of the Treaty and took into consideration the policy and objectives of the Treaty as disclosed both in its preamble and its substantive provisions. In the result, the Court held that it is possible for an individual or a company to seek relief from the Court for breach of a Treaty obligation undertaken by a State whether or not that individual or company is a national of the offending State.

[5] The Court also held that on the material facts placed before it the applicants had established at least an arguable case that other requirements for special leave had been satisfied, but emphasised that it was making no definitive finding on those issues on which the ultimate success or failure of the proceedings might turn.

[6] The Court accordingly granted both applicants the special leave which they sought and which will enable them to pursue their action against the Government of Guyana.

De La Bastide, P.
1

On 30th June, 2008 the Court heard the parties to this matter (“the earlier proceedings”) and made an Interim Order on 22nd July, 2008. The Court continued the earlier proceedings with a public sitting held on 10th November, 2008.

2

The Interim Order fully described the parties, the nature of the claims made by the applicants and the respective contentions of the parties. To recap briefly, the applicants, Trinidad Cement Limited (referred to in this judgment as “TCL”) and TCL Guyana Incorporated (referred to as “TGP”), are seeking special leave to appear as parties in an action they propose to institute before the Court. The applicants are claiming compensation from and/or injunctive relief against the State of the Co-operative Republic of Guyana (referred to in this judgment as “Guyana”). They allege that, in breach of Article 82 of the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (“the RTC”), Guyana suspended the Common External Tariff (“the CET”) on cement imported into that State from third States. The applicants allege that as a consequence of this suspension they have been prejudiced and have suffered damage.

3

In the course of the earlier proceedings, Guyana, through its Attorney General, admitted the suspension. The Attorney also admitted that the suspension had not been authorised by the competent authority — the Council for Trade and Economic Development (“COTED”). He contended, however, that the applicants were not entitled to bring the proceedings because they were not States Parties to the RTC and they had not satisfied the conditions laid down by the RTC for the institution of proceedings by a private entity.

4

The question before the Court is whether the applicants have satisfactorily complied with the requisite conditions for private entities to establish locus standi. Those conditions are to be found in Article 222 of the RTC, reproduced below in full at [21].

5

In its Interim Order, the Court identified two critical issues that arose out of the question to be determined. The first was whether for the purposes of compliance with Article 222 it is sufficient for a company to be incorporated or registered under the domestic legislation of a Contracting Party. The second was whether the Article accords to one who is held to be a person, “natural or juridical, of a Contracting Party” the right to sue that Contracting Party.

6

The Court considered that these two issues were of great importance for the determination of the locus standi of persons generally. More importantly, their resolution in these proceedings would bind all the Contracting Parties (See: Article 221 of the treaty). Accordingly, the Court decided that it was reasonable, in this particular case, to reserve its decision on the application for special leave in order to afford the Community and the Contracting Parties not party to the proceedings the opportunity, if they so wished, to make written submissions on the two issues. By the Interim Order, the Registrar of the Court was therefore directed to serve on those Contracting Parties and on the Community appropriate Notices accompanied by relevant documentation inviting their participation in the making of such submissions.

7

The Community along with the States of Barbados, Jamaica, St. Vincent and the Grenadines and Trinidad and Tobago responded positively to the Court's invitation. In addition, on 10th November, 2008, at the public sitting of the Court held for that purpose, the Court was pleased to receive oral submissions from the Community's General Counsel on behalf of the Community; the Solicitor General of Jamaica on behalf of that State and Mr. E Prescott on behalf of the State of Trinidad and Tobago. At the conclusion of that public sitting the applicants and Guyana were granted a period of one week to enable them to make any further written submissions they desired to make. They did make such submissions.

8

The Court records its sincere appreciation to the parties, the Community and the States that participated in the proceedings and welcomes the submissions received. The Court has found them all to be extremely useful. In this judgment the Court gives its opinion on the two issues addressed in the Interim Order as well as its judgment on the question posed by the earlier proceedings.

9

At stake in these proceedings is the proper interpretation of provisions of the RTC that are critical to the matter of access to the Court by private entities. Before embarking upon the interpretative exercise, the Court recognises that the provisions of a treaty invariably represent the fruit of many months, sometimes years, of discussion and negotiation. Invariably, a treaty's provisions reflect a compromise of conflicting national interests and divergent perspectives. To this end, despite the best efforts of skilled drafters, the language of a treaty's text is often imprecise and sometimes deliberately ambiguous in order to accommodate politically acceptable interpretations in different jurisdictions. This is particularly the case with multilateral treaties.

10

In this context, international law has developed principles, canons of interpretation, to guide international courts and tribunals in the interpretation of treaties. Article 31 of the Vienna Convention on the Law of Treaties (VCLT) prescribes the general rule of treaty interpretation. Article 31(1) mandates that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Article 32 of the VCLT addresses subsidiary rules of interpretation (Article 32 states: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.). Accordingly, determination of the application for special leave presented by the applicants and a resolution of the two issues mentioned above at [5] require the Court to consider the following relevant issues, namely: the context, object and purpose of the RTC...

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