Columns

The logistics hub and business litigation

Anthony GOMES

Wednesday, February 05, 2014    

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JAMAICA urgently needs Foreign Direct Investment (FDI) to aid the recovery of its battered economy and accelerate growth and create employment. For years there have been endeavours to attract FDI in the form of manufacturing plants, offshore service companies, hotels, and linkage services for tourism. Indeed, before the world recession, Jamaica was one of the Caribbean's leaders in attracting FDI, assisted by JAMPRO's promotional missions around the world that outside of the apparel sector and the extractive mining industries, investment revenues slowed dramatically. The reasons are well known, as many of the deleterious causes, ranging from a daunting murder rate to destructive climate change, have proved to be major disincentives to progress.

Now that the planned logistics hub is on the horizon and is expected to be an international economic game-changer within the next five to seven years, the time has come to consider speedy commercial litigation that is an essential concern of any foreign investor. Should an investor be unable to obtain a speedy remedy in the event of his/her going or being taken to court, he or she will have serious reservations about investing in business in Jamaica. It is well known that, apart from criminal cases, commercial issues can take up to five years and maybe more to be resolved in court. On occasion, businessmen use it as a defence for non-performance, knowing that if sued the legal costs over the protracted period could well discourage the plaintiff from pursuing the action in court. Such a court should be capable of dispensing justice within the ambits of both Caribbean Community law and international jurisprudence, and would be at the centre of the hyper-litigation atmosphere that should be expected to accompany the establishment of the logistics hub.

While simultaneously entering the new environment of the CSME, there may also be actions concerning interpretation and, in particular, matters arising from application of the protocols amending the Revised Treaty of Chaguaramas presently undergoing reformation to be adjudicated by the court competent to resolve those disputes, interpret the treaty and develop a body of community law. For that reason Barbados proposed, in Jamaica in 1997, that the Caribbean Supreme Court be restyled the Caribbean Court of Justice (CCJ), as we know it today, with the mission: "The Caribbean Court of Justice shall perform to the highest standards as the supreme judicial organ in the Caribbean Community. In its original jurisdiction it ensures uniform interpretation and application of the Revised Treaty of Chaguaramas, thereby underpinning and advancing the Caricom Single Market and Economy. As the final court of appeal for member states of the Caribbean Community it fosters the development of an indigenous Caribbean jurisprudence" with a Vision: "To provide for the Caribbean Community an accessible, fair, efficient, innovative and impartial justice system built on a jurisprudence reflective of our history, values and traditions while maintaining an inspirational, independent institution worthy of emulation by the courts of the region and the trust and confidence of its people."

It is fortunate that there exists an indigenous court which has been tried and successfully proved in both corporate and individual cases, as with the conclusive determination involving Carib Cement Ltd vs the Government of Guyana and in the case of Shanique Myrie that constituted a landmark legal event with far-reaching repercussions for the future of Community law. Not all Caricom member states have availed themselves of the appellate jurisdiction of the CCJ for various reasons, including the Jamaica Labour Party (JLP). The time is not far off when customary differences of opinion with prospective foreign investors will start arising, and the relationship with the Judicial Committee of the UK Privy Council would have to be decided.

The following summarises the court's relationship profile, and its exclusive jurisdiction regarding the Revised Treaty of Chaguaramas: "In the discharge of its appellate jurisdiction, the CCJ is the highest municipal court in the region. In the exercise of its original jurisdiction, the CCJ will be discharging the functions of an international tribunal, applying rules of international law in respect of the interpretation and application of the Revised Treaty of Caguaramas. In this regard, the CCJ will be performing functions like the European Court of Justice, the European Court of First Instance, the Andean Court of Justice, and the International Court of Justice. In short, the CCJ is a hybrid institution -- municipal court of last resort and an international court with compulsory and exclusive jurisdiction in respect of the interpretation and application of the Revised Treaty of Chaguaramas."

Minister Anthony Hylton, with reference to the logistics hub, asserted that his ministry was "actively looking at hub-enabling" legislation with a view to putting in place a regulatory entity and regime to support the rollout of the special economic zones". He intimated that the finance ministry had already started to look at the appropriate incentive regimes that the Government should offer in the 16 special economic zones, and the proposed international financial centre. Given the ongoing US experience with the rollout of Obamacare, the minster would no doubt be taking every precaution to ensure success of the rollout of the special economic zones with the empowered CCJ as his back up.

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