Caribbean Court of Justice

• Author: Duke Pollard
• Profession: Sitting senior judge of the Caribbean Court of Justice (CCJ), the highest appellate municipal court of the Caribbean Community (CARICOM)
• Pages: 435-458

The Caribbean Court of Justice 435

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THE CARIBBEAN COURT OF JUSTICE

The Caribbean Court of Justice has had a long gestation period commencing in Barbados

as early as 1947 when colonial governors called for a Caribbean Court and again in

1970 when the Jamaican delegation to the Sixth Conference of Heads of Government

proposed the establishment of a Caribbean Court of Appeal in substitution for the Judicial

Committee of the Privy Council. The Conference set up a Committee of Attorneys

General who examined the issue and recommended a regional court to replace the

Privy Council. Two years later the Organisation of Commonwealth Caribbean Bar

Associations (OCCBA) established a Representative Committee to examine the

establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee

of the Privy Council. The Representative Committee under the chairmanship of the

late Justice Aubrey Fraser of Guyana, not only recommended the establishment of a

Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy

Council, but also recommended that the proposed Court should have an original

jurisdiction in respect of matters concerning the Caribbean integration movement. Later,

in 1992, the West Indian Commission which was established by the Conference of

Heads of Government at their Tenth Meeting in Grand Anse, Grenada in 1989, in its

celebrated Report entitled Time for Action strongly recommended, as an important

structure of governance, the establishment of a Caribbean Supreme Court. The Caribbean

Supreme Court would have two jurisdictions, an appellate jurisdiction in substitution

for the Judicial Committee of the Privy Council and an original jurisdiction for the

interpretation and application of the Revised Treaty of Chaguaramas. The

recommendation of the West Indian Commission was supported by the Heads of

Government which endorsed the Agreement Establishing the Caribbean Court of Justice

at their Twenty-First Meeting in Canouan, St. Vincent and the Grenadines, July 2-5,

2000.

The proposed Caribbean Court is intended to be a unique institution in international

institutional relations. The Court is designed not only to replace the Judicial Committee

of the Privy Council (JCPC) as the highest appellate municipal court for the Member

States of the Caribbean Community, but it is also structured to be an international

tribunal employing rules of international law in interpreting and applying the revised

Treaty of Chaguaramas Establishing the Caribbean Community including the

CARICOM Single Market and Economy. In the exercise of its appellate jurisdiction,

the Court will be the tribunal of last resort for participating Member States of the

Community. As an international tribunal, however, the Court will exercise an original

but exclusive jurisdiction in respect of the interpretation and application of the Treaty.

436 THE CARICOM SYSTEM

In the exercise of both jurisdictions, the Court is expected to play a critical role in

ensuring legal certainty in the Community and CARICOM Single Market and Economy,

in the absence of which there is unlikely to be the stability of expectations which investors

require as a basis for predicting outcomes in respect of economic decisions, especially

those relating to investments in one or another economic activity.

The proposed Caribbean Court of Justice will also be unique in the sense that it

would be the only tribunal of an integration movement whose judges will not be

appointed by the political directorate. Compare in this context the European Court of

Justice, the Andean Court of Justice, the Central American Court of Justice and the

West African Court of Justice. Except for the President of the Court who will be appointed

by the Heads of Government on the recommendation of the Regional Judicial and Legal

Services Commission, all the other judges of the Caribbean Court of Justice will be

appointed by the Commission on the basis of open competition from among candidates

of the Commonwealth. The independence of the judiciary is also guaranteed by the

arrangements proposed for the payment of judges and their removal from office. In this

context the Conference at its fourteenth inter sessional meeting in Trinidad and Tobago

in February 2003 decided to establish a Trust Fund in an amount of US$100 million the

proceeds of which will defray the expenses of the Court on a sustainable basis. The

Trust Fund is to be managed by independent Trustees drawn from private sector

institutions. Judges of the Caribbean Court of Justice and members of the Commission

will also be accorded in the jurisdictions of participating States such privileges and

immunities as are required for the efficient and dispassionate performance of their duties

free from political direction or control. In the exercise of its original jurisdiction the

Caribbean Court of Justice will be performing the role of an international tribunal whose

functions are perceived as critical for the success of the CARICOM Single Market and

Economy. Although the Court is headquartered in Port-of-Spain, Trinidad and Tobago,

the institution will be peripatetic thereby facilitating access to justice across the region,

unlike the Judicial Committee of the Privy Council, located in London, England, which

is accessed by only the very wealthy.

One or two policymakers in the Community at an earlier stage of the process, had

wondered whether retention of the Judicial Committee of the Privy Council in respect

of civil suits might not inspire greater investor confidence with probable positive impact

on the regional investment climate. In the present submission, three observations are

worth consideration. Firstly, the Judicial Committee of the Privy Council rarely overturns

decisions of regional courts on civil matters, thereby attesting to the generally high

quality of regional judicial pronouncements. Secondly, foreign investors proposing to

commit substantial investments in developing regions normally provide for disputes

settlement procedures in the relevant investment instrument. Such procedures usually

provide for the settlement of disputes by the International Centre for the Settlement of

Investment Disputes (ICSID), an arm of the World Bank (IBRD). Thirdly, the Agreement

Establishing the Caribbean Court of Justice expressly provided for the promotion and

establishment of alternative disputes settlement modes and this should provide a vehicle

for the expeditious and satisfactory resolution of a wide range of commercial disputes.

Of no less importance is the fact that despite its misleading nomenclature, the

Caribbean Community remains, and was always intended to be, an association of

sovereign States. Indeed, the principle of sovereign equality of States finds cogent legal

expression in the unanimity rule prescribed for determinations on substantive issues in