In Caricom business disputes, gov'ts should lead

Roxanne Miller, GUEST COLUMNIST

As allegations that Jamaican manufacturers are the victims of unfair trade practices by their regional trading partners continue to be bandied about, much has been said recently on how trade disputes within the Caricom Single Market and Economy (CSME) can be successfully addressed.

Commentators and business persons alike have been vocal in their calls for Jamaican businesses to take their issues to the Caribbean Court of Justice (CCJ).

Few have mentioned that the Revised Treaty of Chaguaramas, the treaty that governs the establishment and operation of Caricom and, by extension, the CSME, itself identified as many as six modes by which disputes within the CSME may be resolved.

Only two, arbitration and adjudication, appear to be adversarial in nature.

dispute resolution chapter

An entire chapter of the treaty, comprising some 37 articles, is dedicated to dispute resolution.

The methods listed in those provisions in addition to arbitration and adjudication before the CCJ are: 'good offices' this is the use of the offices of a neutral third party to settle the dispute such as the Office of the Secretary General of Caricom; mediation; consultations; and conciliation.

These methods are meant to provide non-contentious means by which the relevant governments in the CSME, on behalf of their respective concerned national stakeholders, can resolve their various community issues.

This would include disputes relating to illegal subsidies, breaches of the community rules of origin and/or technical barriers to trade.

In this age of mediation and alternative dispute resolution, it may be argued that the administrations of member states should view these negotiation/consultation type methods as the avenues of first resort.

This is underscored by Article 222 of the Treaty. Although the governments of member countries, of course, have a direct right to institute court action, Article 222 states that persons and companies in Caricom are permitted to bring a CSME related claim before the CCJ only after they have been granted special leave by that court.

Various criteria must be satisfied before this special leave will be granted. Such criteria include the country entitled to bring the claim against the alleged offender either failing to espouse the claim or such country expressly agreeing that the local person or company may bring the claim.

The provision leads to the expectation that the aggrieved person, for instance a Jamaican company, would only have to seek redress through the CCJ for a trade breach in the event that the Government of Jamaica had previously failed to attempt to settle the dispute with the offending member state on the Jamaican company's behalf.

competing considerations

The most casual follower of current affairs realises that the GOJ, like any other administration, operates on local, regional and international levels and therefore can appreciate that there are competing considerations such as cultivating a good working relationship with its regional trading partners and addressing the concerns of its local business sector.

However, it is expected that as tax-paying citizens making much needed contributions to the government coffers that the national government, being aware of an illegal trade barrier affecting its local producers, will view their cause as legitimate enough to champion using the various methods of dispute resolution available to Caricom member countries, including the CCJ if necessary.

It is acknowledged of course that local manufacturers have a duty to assist the government by providing them with as much data as possible on the matter.

The expectation upon the government to take action is especially high given that organs of a member state, such as the Ministry of Foreign Affairs and Foreign Trade and the Ministry of Investment Industry and Commerce would have access to Caricom offices and the dispute resolution methods discussed above to facilitate dialogue and solutions.

Such solutions are those that cannot easily be achieved by local manufacturers acting on their own whose options are limited to bringing an action before the CCJ and bearing the costs associated with such an action.

Roxanne Miller is an attorney with DunnCox in Kingston.roxanne.miller@dunncox.com