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

• Jurisdiction: Caribbean States
• Judge: Bastide, P.,Nelson, J.A.,Pollard, J.A.,Wit, J.A.,Hayton, J.A.
• Judgment Date: 15 July 2008
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No AR 1 of 2008
• Date: 15 July 2008

Caribbean Court of Justice

Bastide, P.; Nelson, J.A.; Pollard, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No AR 1 of 2008

Trinidad Cement Ltd and TCL Guyana Incorporated

and

Co-Operative Republic of Guyana

Commercial law - External company — Suspension of Common External Tariff (CET) on cement imported into Guyana under Revised Treaty of Chaguaramus requiring government of Guyana to seek permission to alter or suspend CET — No casual link established between the applicant's alleged loss and failure of the State of Guyana to implement the CET

Jurisdiction - Caribbean Court of Justice — Locus Standi — Whether court could entertain application for special leave by applicant not a national of a contracting Party (State) within the meaning of Art 32(5) of the Treaty — Whether for purposes of Art 222 of the Treaty it is sufficient for a company to be incorporated or registered under the domestic law of a contracting party — Whether Art. 222 of the Treaty awards to one who is held to be a person natural or judicial of a contracting party the right to sue that contracting party.

BACKGROUND

1 These proceedings are historic as this is the first matter in which the Caribbean Court of Justice (“the Court”) has been called upon to exercise its original jurisdiction. The Court accordingly has no precedents to follow in its interpretation and application of the Revised Treaty of Chaguaramas Establishing the Caribbean Community including the CARICOM Single Market and Economy (“the Treaty”) although over time, the decisions of the Court will generate a body of precedent upon which it shall rely.

2 In the exercise of this jurisdiction, the court is mandated by Article XVII of the Agreement Establishing the Court (“the Agreement”) and Article 217 of the Treaty to apply such rules of international law as may be applicable. This requires an expertise from counsel that is entirely different from that to which one is accustomed in municipal law proceedings.

3 The matter before the Court is an application by Trinidad Cement Limited (“TCL”) and TCL Guyana Incorporated (“TGI”) for special leave to appear as parties before the court in proceedings filed by those two entities against the State of Guyana. For the reasons that follow the Court has decided that the court should adjourn the application for special leave to 10th November, 2008 and that an order should be made in the terms set out herein.

THE PARTIES

4 TCL is a limited liability company incorporated under the Companies Ordinance, Chapter 31 No. 1 of the Revised Laws of Trinidad and Tobago 1950 and continued under the Companies Act 1995 (now Chapter 81:01). It has its registered office situated at Southern Main Road, Claxton Bay in the State of Trinidad and Tobago. TCL is also registered as an external company under the Companies Act No. 29 of 1991 of the Laws of Guyana with its registered office in that State situated at Lot 2–9 Lombard Street, GNIC Compound, Georgetown. The primary activity of TCL is the manufacture and sale of cement qualifying for Community area treatment.

5 TGI is a limited liability company incorporated under the Companies Act, No. 29 of 1991 of the Laws of Guyana. Its registered office is situated at the same location in Guyana as TCL's Guyana office. TGI's primary activity is the packaging of bulk cement produced by TCL for sale on the Guyanese market. TCL holds 80% of the issued share capital of TGI. The two companies are referred to throughout this judgment collectively as “the applicants”.

6 The State of Guyana is the respondent in these proceedings. It was represented before the court by its Attorney General. The State of Trinidad and Tobago was entitled to appear and was served with a copy of the proceedings. It appeared by counsel but at the case management conference preceding the hearing it had indicated that it merely wished to observe the proceedings.

THE NATURE OF THE APPLICANTS' CLAIMS

7 The applicants seek special leave to appear as parties for the purpose of filing an originating application claiming compensation from and/or injunctive relief against the State of Guyana. Their proposed originating application which was annexed to the application for special leave was filed on 3rd April, 2008. At the hearing of the application for special leave the applicants sought amendments to the proposed originating application. The State of Guyana did not object to the making of these amendments and the Court accordingly granted the same.

8 The applicants allege a breach by Guyana of the provisions of Article 82 of the Treaty which oblige Guyana to establish and maintain a Common External Tariff (“CET”) on cement imported into that State from third States i.e. countries outside the Caribbean Community. The CET has been incorporated into the laws of Guyana by section 7 of the Customs Act, Chapter 82:01 of the Laws of Guyana together with the First Schedule thereto.

THE CONTENTIONS OF THE PARTIES

Submissions of the applicants

THE CONTENTIONS OF THE PARTIES

9 The applicants allege that by Article 82 of the Treaty, Guyana, in common with other Member States of the Caribbean Community, is required to establish and maintain a CET in respect of all goods which do not qualify for Community treatment in accordance with plans and schedules set out in the relevant determinations of CARICOM's Council on Trade and Economic Development (“COTED”).

10 A product which qualifies for Community Treatment is one which has been accorded Community origin status under Article 84 of the...