By Abiola Inniss LLB, LLM, ACIArb:
It is that noteworthy that among its undertakings for its mandate on the Caricom Single Market and Economy (CSME), the Caricom Secretariat undertook the hosting of a seminar on Competition Policy and Law in Georgetown, Guyana on May 3, 2010. The programme outlined topics such as “Caricom Competition Policy in a challenging economic environment”, and “Competition Policy in Caricom”, though if the truth be told, it carried the semblance of a man’s bikini; significant for what it suggested, concealing of that which was crucial.
Consumer law and competition policy and law are almost inextricably intertwined at times and so are affected one by the other, it therefore means that any cumulative legal framework must be reflective of this relationship. It seemed that while the importance of this relationship was recognized, the creation of a regulatory framework complete with law harmonization and dispute resolution mechanisms (alternative and normative legal systems, such as arbitral tribunals and courts of law) still remains a distant idea which would be “looked into”;instead there was the espousal of a consistent piecemeal approach which considered the individual state mechanisms and the equipping of those systems in the hope that an eventual equality would result across the region.
It is an unhappy occurrence that the intellectual prescience in the Caribbean community has not come to bear on the necessity to establish a common regulatory framework which will dispense the resolution of disputes in an efficient, cost effective manner. Any mention of the establishment of a regional arbitral tribunal is customarily met with the “that costs money” and “we can’t afford it” responses in an answering machine mode. It is even more disturbing that the legal intellectuals have not seemed to examine the subject from the point of establishing a multi-purpose tribunal which will be constituted of the talents of a variety of specialists in the areas of law which are of especial importance at this stage of the development of the Single Market and Economy.
The laws of International Trade, Intellectual Property, Private International Law, Competition Law and Consumer Law fit this prescribed construction perfectly. The fact remains that whatever excuses Caricom officials may give there is a dire need for a legal and regulatory framework which will allow the resolution of disputes in whatever form it may assume, be it in courts of law or by the preferred time and cost effective method of arbitration.
The Caribbean may look to the European Union for guidance on the resolution of disputes which arise from and various jurisdictions and provide the added challenge of the mixing of civil and common law systems. The Caribbean community as it is now constituted comprises countries which have Civil law systems, as in the case of Haiti and Suriname and in the case of Guyana, the land law system, which is Roman Dutch in constitution, is common in large part to that which obtains in South Africa.
The other Caricom countries have fewer anomalies in their legal systems, since for most part the common law systems inherited from the British became the dominant legal systems. The legal system of St Lucia is a hybrid of French Civil law and English Common law which is unique and outstanding and carries its own challenges (see Belle-Antoine, Commonwealth Caribbean Law and legal systems, Cavendish 2009).
The example of the European Union shows the Court of First Instance attached to the European Court of Justice and a tribunal for the Civil service of the entire European Union. The idea for the Caribbean is that there should be a tribunal which will deal with consumer affairs in the Caribbean and which may also incorporate issues arising from the Law of competition, the Law of Trade and general Business Law.
Multidisciplinary tribunals have worked in other areas of the world and therefore if adapted to requirements of the Caribbean should prove to be quite successful. The Competition Appeal Tribunal (CAT) of the United Kingdom is a specialist judicial body with cross disciplinary expertise in economics, law, business, and accountancy. It is empowered under United Kingdom law to hear and decide appeals, claims and other applications involving competition or economic regulatory issues. This tribunal came into being on April 1 2003.
It is safe to say that should the Caribbean planners spend a little more time constructively engaging the more advanced, modern thinking in these areas, and less time on talk shops which have to little to offer apart from the usual excuses of too little resources and a penchant for perpetually “looking into” matters, there will be substantial development in key areas of law and development. There is little point in the establishment of a Single market and economy which has little to offer in its legal and regulatory framework of the key issues of International trade law and development law and regulation, consumer and competition law and policy.
Multinational corporations and investors need to be assured that their disputes will be handled by competent, expert, fair Jurists in an efficient and effective manner. The Caribbean stands to gain much in terms of the development of a common jurisprudence, the development of expertise and substantial revenue generated by such a forum. The Law courts of England are a renowned choice of jurisdiction for international claims and can stand testimony to the verity of all the above mentioned benefits. Where there is a lack of expertise in the region, it may be sourced elsewhere through various projects. There is less and less excuse for the lagging efforts in the regulation of our legal systems. It is time to strip away the bikini and face the facts.
June 3, 2010