Trinidad Cement Ltd TCL Guyana Incorporated Applicants v The State of the Co-operative Republic of Guyana Respondents

CourtCaribbean Court of Justice
Docket NumberCCJ Application No. AR 1 of 2008
Judgment Date15 Jan 2009
JurisdictionCaribbean States
Neutral Citation[2009] CCJ 1 OJ

[2009] CCJ 1 (OJ)

IN THE CARIBBEAN COURT OF JUSTICE

CCJ Application No. AR 1 of 2008

Between
Trinidad Cement Limited
TCL Guyana Incorporated
Applicants
and
The State of the Co-operative
Republic of Guyana
Respondents
THE COURT,

composed of M de la Bastide, President and R Nelson, D Pollard, A Saunders, D Bernard, J Wit and D Hayton, Judges

having regard to the application for special leave under Article 222 of the Revised Treaty of Chaguaramas, filed at the Court on 3rd April, 2008 with annexures, written submissions of the parties and to the public hearings held on 30th June, 2008 and 10th November, 2008

after considering the oral observations submitted on behalf of:

  • — the Applicants, by Dr C Denbow SC, Attorney-at-law

  • — the Respondent, by Mr D Singh SC, Attorney-General

and taking into account the written submissions made on behalf of the Community and of the respective States of Barbados, Jamaica, St. Vincent and the Grenadines and Trinidad and Tobago together with the oral submissions made on behalf of:

  • — the Community, by Ms C Thompson-Barrow, General Counsel

  • — the State of Jamaica, by Mr D Leys QC, Solicitor General

  • — the State of Trinidad and Tobago, by Mr E Prescott SC

on the 15th day of January, 2009 delivers the following

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 ‘TGI’), 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 establishlocus 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 thelocus standi of persons generally. More importantly, their resolution in these proceedings would bind all the Contracting Parties1. 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 interpretation2. 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; the status and role of private entities accorded by the Treaty; the intention of the States Parties to the RTC; the ordinary meaning to be attributed to the language of the text of the Treaty, and the subsequent conduct of the States Parties establishing their understanding of the instrument. We shall also comment on the relevance and significance of rules that have been made pursuant to the RTC. The Court proposes to consider each of these matters though not necessarily under their respective discrete headings.
The context, object and purpose of the RTC
11

In interpreting the RTC the Court does not intend to place undue reliance on a literal approach. Reliance on the text of a treaty to the detriment of its object and purpose is contrary to the rule expressed in Article 31 of the VCLT and does not accord with the jurisprudence of the International Court of Justice3. As Aust states4:

‘Placing undue emphasis on the text, without regard to what the parties intended; or on what the parties are believed to have intended, regardless of the text; or on the perceived object and purpose in order to make the treaty more “effective”, irrespective of the intentions of the parties, is unlikely to produce a satisfactory result.’

12

The RTC establishes the Caribbean Community including the CARICOM Single Market and Economy (‘CSME’) and its Preamble is an important part of its context for the purposes of interpretation. Through the Preamble one is

made aware of the goals of the States Parties and of statements of principle by which they propose to be guided. Among the many preambular paragraphs of the RTC are the following:

Recalling the Declaration of Grand Anse and other decisions of the Conference of Heads of Government, in particular the commitment to deepening regional economic integration through the establishment of the CARICOM Single Market and Economy (CSME) in order to achieve sustained economic development based on international competitiveness, co-ordinated economic and foreign policies, functional co-operation and enhanced trade and economic relations with third States; …

Desirous of restructuring the Organs and Institutions of the Caribbean Community and Common Market and redefining their functional relationships so as to enhance the participation of their peoples, and in particular the social partners, in the integration movement;…

Resolved to establish conditions which would facilitate access by their nationals to the collective resources of the Region on a non-discriminatory basis;…

Recognising also the potential of micro, small, and medium enterprise development to contribute to the expansion and viability of national economies of the...

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