February 10, 2009

CCJ's Second Judgment under it's Original Jurisdiction

CCJ Application No. AR 3 of 2008
Trinidad Cement Ltd

The Caribbean Community

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

Application for special leave to commence proceedings under Article 222 of the Revised Treaty of Chaguaramas was filed at the Court on 11th December 2008 with annexures. Parties submitted written submissions and to the public hearing was held on 15th January 2009


COTED and the Secretary General of CARICOM authorised the suspension of the CET on cement for Jamaica and a number of OECS States. TCL, a cement manufacturer, wishes to complain against that suspension and is accordingly requesting special leave to bring an action against the Community seeking :
(1) declarations that the COTED suspension and the Secretary-General’s suspension are irrational or unreasonable, illegal and null and void;
(2) orders setting aside or quashing these suspensions;
(3) a restraining order against the Community and
(4) a mandatory injunction against the Community to revoke the suspensions and notify those affected.

At this stage the CCJ merely had to determine whether TCL had satisfied the conditions for special leave set out in Article 222 of the Revised Treaty. In determining that TCL had satisfied those conditions the CCJ rejected the contention that to admit a direct challenge by a private party to the decision and process of the Community would greatly hinder the functioning of the Community and constrain the exercise of state sovereignty by Member States parties to the Revised Treaty.
The Court stated, inter alia:

"By signing and ratifying the Revised Treaty and thereby conferring on this Court ipso facto a compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Revised Treaty, the Member States transformed the erstwhile voluntary arrangements in CARICOM into a rule-based system, thus creating and accepting a regional system under the rule of law. A challenge by a private party to decisions of the Community is therefore not only not precluded, but is a manifestation of such a system. Therefore it is not correct to say that by such challenge the functioning of the Community will be greatly hindered or that the exercise of state sovereignty by Member States parties to the Revised Treaty would be unduly constrained. The rule of law brings with it legal certainty and protection of rights of states and individuals alike, but at the same time of necessity it creates legal accountability. Even if such accountability imposes some constraint upon the exercise of sovereign rights of states, the very acceptance of such a constraint in a treaty is in itself an act of sovereignty."

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