Tue | Oct 17, 2017

T&T gov't needs to have some answers

Published:Sunday | May 10, 2015 | 12:00 AM
Horseracing at Caymanas Park.

The Private sector of Jamaica has been clamouring for some action to be taken in relation to the refusal of the Trinidadians to respect the agreements inherent in The CARICOM treaties. They pay scant respect to the rules relating to the Caribbean Single Market Economy (CSME).

Only recently at a meeting of the Council for Trade and Economic Development (COTED), the Trinidadians opposed the request from Jamaica to suspend the Common External Tariff on horses, thus allowing Jamaica to import horses with a reduced tariff. They held the view that Trinidad could supply all the horses that Jamaica needs. This, against the background of the Trinidadian breeders not being able to supply the needs of their own racing industry, and the promoters are only able to put on 30 race days per year.

Unfortunately, they do not have adequate pastures, and their horticultural practices have resulted in the production of poor-quality horses. This is borne out by the fact Jamaica-bred horses dominate racing in Trinidad. In addition to this, horses are imported into Trinidad free of duty, and the importers also receive a subsidy of TT$15,000 to assist in the transportation cost of each horse. It is this sort of insular thinking which precipitates their behaviour, in the attempt to have an integrated Caribbean, and begs the question as to whether we should continue with this ideal.

 

competition a plus

 

It has been demonstrated time and again, that when markets are allowed to function competitively, the interest of each firm is to serve consumers better than its rivals. This rivalry leads to better deals for consumers through lower prices, better products and increased choices; and ultimately leads to the efficient use of resources and new business opportunities as suppliers strive to serve consumers better.

Within the context of the Trinidadian breeding industry, allowing Jamaica-bred horses to compete would spur Trinidadian breeders to produce better horses, thereby improving their competitiveness vis-a-vis Jamaica-bred horses, which essentially would lead to improvements in their bloodstock.

The situation regarding the 'barring' of Jamaica-bred horses from several key Trinidadian races may be viewed within the context of Competition Law & Policy.

The Fair Trading Act, 2006, (FTA) was enacted as Trinidad & Tobago's Competition law. Although a Competition Agency has yet to be established, it would not be unusual for a court to hear matters which are brought by individuals or groups of persons, as is the case in Jamaica and Barbados, which have similar Competition legislation.

 

relevant section

 

The relevant section of the FTA in such matters is the one that covers Anti-competitive Agreements or Practices. Specifically, Section 17(1)(b) and 17(1)(d), reads:

17. (1) An Agreement which -

(b) limits or controls markets, technical development or investment;

(d) applies dissimilar conditions to equivalent transactions and thus places some trading partners at a disadvantage to others;

is an anti-competitive agreement and is prohibited under this act.

Looking at Section 17(1)(b), it follows, therefore, that the agreement to restrict the running of Jamaica-bred horses in key races would constitute an action to control the relevant market (i.e. the breeding industry), as well as limit technical development and investment within that industry. Being satisfied with their output, Trinidadian breeders would become even more 'complacent'; they would have no incentive to upgrade their facilities nor would there be an incentive to implement new techniques and improve their breeding stock. Whereas, in the short run, the Jamaican industry would suffer, in the medium to long run, both the Trinidadian and Jamaican breeding and horse-racing industries would suffer directly.

It is to be noted that an agreement does not have to be a written contract, it can be an understanding or a mode of operation which is accepted by the relevant parties, and which is allowed to function over time.

Since the term native-bred relates to horses that are bred in any CARICOM country, then, with respect to Section 17(1)(d), the same conditions should be applied across the board. This new arrangement, therefore, places Jamaican breeders at a disadvantage in the regional trading relationship.

This leads us to Articles 32, 36 and 175 of the Revised Treaty of Chaguaramas (RTC).

Article 32 speaks to Prohibition of New Restrictions on the Right of Establishment whereby:

(1) "Member States shall not introduce in their territories any restrictions relating to the right of establishment of nationals of other Member States ..."

(2) "The Member States shall notify COTED of existing restrictions on the establishment in respect of nationals of other Member States."

Article 36 on Prohibition of New Restrictions on the Provision of Services whereby:

(1) "Member States shall not introduce any new restrictions on the provision of services in the Community by nationals of other Member States ..."

(3) "The Member States shall notify COTED of existing restrictions on the provision of services in respect of nationals of other Member States."

Article 175: Determination of Anti-Competitive Business Conduct: Procedure of Commission on Request, which provides that:

(1) "A Member State may request an investigation ... where it has reason to believe that business conduct by an enterprise located in another Member State prejudices trade and prevents, restricts or distorts competition in the territory of the requesting Member State."

(2) " Where COTED has reason to believe that business conduct by an enterprise in the CSME prejudices trade and prevents, restricts or distorts competition within the CSME and has or is likely to have cross-border effects, COTED may request an investigation ..."

Enterprise is defined in the RTC as "any person or type of organisation, other than a non-profit organisation, involved in the production of or the trade in goods, or the provision of services."

Note that COTED would have to be notified of the restrictions, in order that it may take a decision as to whether to uphold same.

We need to determine whether we should continue to sell our horses to race in Trinidad. My recommendation is that the Trinidadians are free to come and buy our horses but, until ALL restrictions are lifted, then the horses must remain in Jamaica and race here. The time for action is now. We have been far too acquiescent over the years to the attitude of the Trinidadians. If these restrictions are not lifted on a timely basis, then we will be left with no alternative but to seek advice from the Caribbean Court of Justice. My suspicion is that the Trinidadians may find themselves being ordered to pay retroactively that portion of the purse which was denied to Jamaican horses. It is, therefore, in their interest to settle this matter immediately.

- Howard L. Hamilton is a former chairman of Caymanas Track Limited, and is the current President of the Thoroughbred Owners & Breeders Association. He can be contacted at howham23@gmail.com.