The Caribbean Court of Justice (ccj)

The Caribbean Court of Justice (CCJ) is the Caribbean regional judicial tribunal serving countries of CARICOM. The CCJ has two jurisdictions, an original jurisdiction and an appellate jurisdiction. In its original jurisdiction, the CCJ is a court of first instance which applies rules of international law in respect of the interpretation and application of the Revised Treaty of Chaguaramas (RTC). In its appellate jurisdiction, the CCJ serves as the final court of appeal in civil and criminal matters for those countries of CARICOM which are parties to the Agreement and have acceded to the appellate jurisdiction. At present the CCJ receives cases in its appellate jurisdiction from Barbados, Belize and Guyana. In the original jurisdiction, the CCJ may receive cases from the twelve Contracting Parties to the Agreement Establishing the Court. Decisions of the CCJ in both its original jurisdiction and its appellate jurisdiction are final.

Jamaica, being a part of CARICOM having signed the Revised Treaty of Chaguramas, therefore benefits from the judicial services of the CCJ under the original jurisdiction. However, Jamaica did not accede to the appellate jurisdiction, and as such any appeals pursued beyond the decisions of the Court of Appeal is made to the Privy Council of UK and not CCJ. Should Jamaica accede to the appellate jurisdiction of the CCJ, the following benefits are attainable:

• fulfilment of “real” independence, as the replacement of the Privy Council by the CCJ as the final appellate jurisdiction will complete the cycle of independence of the Commonwealth Caribbean;
• reduced legal and associated fees such accommodation and travelling as the hire of UK Council will no longer be a necessity;
• the intellectual capacity of the regional council is as competent as the privy council to conduct hearings;
• greater access to justice as regional matters are handled by regional legal councils thereby avoiding unfamiliarity and ambiguities by the British council;
• e-filing which allows for time and documentation (storage) efficiencies; Unfortunately, the CCJ:
• is yet to receive high public trust and confidence;
• may not be free from political considerations, pressure and prejudices

With regards to the GM’s desire to use the CCJ to challenge the environmental tax charged by Guyana on the imports of Jamaican snacks in non-returnable containers by CSL, judgements have been made by the CCJ.

On such judgement was in the case of Rudisa Beverages & Juices N.V. Caribbean International Distributors Inc V. The State of Guyana. Rudisa Beverages is a company based in Suriname which produces beverages packaged in non-returnable containers imported into Guyana and distributed through CIDI Distributor. By section 7 of the Customs Act of Guyana, an environmental levy is imposed on the importation of non-returnable beverage containers. The legislation does not contain any exemption in relation to CARICOM goods. This environmental tax which has been imposed on the beverages has the effect of raising the cost price on each imported container by GUY$10. No similar tax is imposed on local producers of non-returnable beverage containers and, by the definition of “Import Duties” laid down in the Revised Treaty of Chaguaramas, the levy must be regarded as an import duty.

The issue was first appealed with the Council on Economic Trade and Development (COTED) by the Government of Suriname in a series of meetings and it was concluded the levy on CARICOM goods is in fact a breach of the RTC. An application was then filed by Rudisa and CIDI with the CCJ arguing that the tax is inconsistent with CARICOM trade policy set out in Articles 78, 79, 87 and 90 of the RTC which provide for the free movement of goods and prohibitions on the imposition of import duties on CARICOM goods. They sought a declaration that the Guyanese Customs Act violates either Article 87 or 90 of the RTC; an order compelling the State to amend or repeal the legislation to eliminate its discriminatory effect; an order restraining the imposition and collection of the tax and damages. Guyana admitted that the tax was inconsistent with their obligations under the RTC but contended that the Government has proposed legislation to rectify the discriminatory effect of the environmental tax but the proposed amendment was rejected by the National Assembly. The Government also submits that the aim of the legislation is environmental protection which is a fundamental right under the Constitution of Guyana. The CCJ ultimately declared that the tax was inconsistent with the RTC and ordered Guyana to take necessary action to ensure that it was not applied to goods of CARICOM. The CCJ also ordered that the Rudisa and CIDI were entitled to a repayment of the tax which had been paid by them and collected by Guyana. The CCJ required that if CIDI did not notify them that Guyana had complied with the judgement passed, the State of Guyana shall file with the Court a report on its compliance with those orders. Upon the filing of the said report the parties were granted liberty to apply in respect of any matter contained in the said report.

The CCJ’s judgement of re-imbursement was informed by Société Comateb v Directeur Général de Douanes et Droits Indirects, ruling that where a tax has been improperly collected in breach of a treaty obligation, it must be repaid unless it can be shown that the tax was passed onto to the consumer or a third party. There was no evidence to suggest that the tax was passed on. The documentary evidence as well as the testimony of the Claimants’ witnesses demonstrated that the tax was absorbed by the Claimants in order to maintain their competitive edge in the Guyana market.

A similar case - SM Jaleel & Co Ltd & Guyana Beverages Inc V. The Co-Operative Republic of Guyana - was brought before the CCJ. SMJ and GBI sought full reimbursement from Guyana for environmental tax levied and collected from GBI on the imports of non-returnable beverage containers as per Guyana’s Amended Customs Act. It was decided that the collection of the environmental tax under section 7A of the Customs Act in relation to CARICOM goods had been incompatible with Article 87 of the RTC. Guyana debated that to order reimbursement to the SMJ and GBI would unjustly enrich them to the extent that they had passed on the tax burden to their customers. Guyana also argued that the Claimants were barred by laches as they failed to challenge the collection of the tax at the earliest possible time. Guyana filed two Applications in October 2016 to assist it in advancing the passing on defence. The first was an application for disclosure and production by the Claimants of a vast number of documents to prove that they passed on the tax. The second was for Guyana to adduce expert evidence and to put before the Court a report from two named persons. Having considered rulings from the European Court of Justice (ECJ) to define unjust enrichment, the CCJ maintained that it has a duty to uphold the terms of the CARICOM treaty. Guyana was thereby ordered to pay to the SMJ and GBI the aggregate sum paid by them in environmental tax for the period disputed, together with interest from the date of judgment. Guyana was also ordered to pay a significant percentage of the costs of the legal proceedings. It was finally ordered that Guyana file with the Court a report on its compliance with these orders unless the Claimants filed a notice of compliance before. The parties were given liberty to apply.

Based on these judgements made by the CCJ with respect to the unjust levy of environmental taxes on the import non-returnable containers packaging CARICOM goods, in addition to the pros of CCJ, I would strongly encourage the Board of Directors to proceed with the CCJ in making an appeal.

Sources: http://caribbeancourtofjustice.org/judgments-proceedings/original-jurisdiction-judgments http://caribbeancourtofjustice.org/about-the-ccj/court-registry https://francisobiter.wordpress.com/2015/01/30/the-caribbean-court-of-justice-or-the-judicial-committee-of-the-privy-council/ http://www.denbowlawoffice.com/atts/2015-04-29-The%20Privy%20Council%20-%20CCJ%20Debate%20-%20A%20different%20analysis.pdf