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JUDGMENT
[1] On 30th June, 2008 the Court heard the parties to this matter ("the
earlier proceedings") and made an Interim Order on 22nd July, 2008. The
Court continued the earlier proceedings with a public sitting held on 10th
November, 2008.
[2] The Interim Order fully described the parties, the nature of the claims
made by the Applicants and the respective contentions of the parties. To
recap briefly, the Applicants, Trinidad Cement Limited (referred to in this
Judgment as "TCL") and TCL Guyana Incorporated (referred to as "TGI"), are
seeking special leave to appear as parties in an action they propose to
institute before the Court. The Applicants are claiming compensation from
and/or injunctive relief against the State of the Co-operative Republic of
Guyana (referred to in this judgment as "Guyana"). They allege that, in
breach of Article 82 of the Revised Treaty of Chaguaramas Establishing the
Caribbean Community Including the CARICOM Single Market and Economy ("the
RTC"), Guyana suspended the Common External Tariff ("the CET") on cement
imported into that State from third States. The Applicants allege that as a
consequence of this suspension they have been prejudiced and have suffered
damage.
[3] In the course of the earlier proceedings, Guyana, through its Attorney
General, admitted the suspension. The Attorney also admitted that the
suspension had not been authorised by the competent authority - the Council
for Trade and Economic Development ("COTED"). He contended, however, that
the Applicants were not entitled to bring the proceedings because they were
not States Parties to the RTC and they had not satisfied the conditions laid
down by the RTC for the institution of proceedings by a private entity.
[4] The question before the Court is whether the Applicants have
satisfactorily complied with the requisite conditions for private entities
to establish locus standi. Those conditions are to be found in Article 222
of the RTC, reproduced below in full at [21].
[5] In its Interim Order, the Court identified two critical issues that
arose out of the question to be determined. The first was whether for the
purposes of compliance with Article 222 it is sufficient for a company to be
incorporated or registered under the domestic legislation of a Contracting
Party. The second was whether the Article accords to one who is held to be a
person, "natural or juridical, of a Contracting Party" the right to sue that
Contracting Party.
[6] The Court considered that these two issues were of great importance for
the determination of the locus standi of persons generally. More importantly,
their resolution in these proceedings would bind all the Contracting Parties[FN1].
Accordingly, the Court decided that it was reasonable, in this particular
case, to reserve its decision on the application for special leave in order
to afford the Community and the Contracting Parties not party to the
proceedings the opportunity, if they so wished, to make written submissions
on the two issues. By the Interim Order, the Registrar of the Court was
therefore directed to serve on those Contracting Parties and on the
Community appropriate Notices accompanied by relevant documentation inviting
their participation in the making of such submissions.
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[FN1] See: Article 221 of the treaty
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[7] The Community along with the States of Barbados, Jamaica, St. Vincent
and the Grenadines and Trinidad and Tobago responded positively to the
Court's invitation. In addition, on 10th November, 2008, at the public
sitting of the Court held for that purpose, the Court was pleased to receive
oral submissions from the Community's General Counsel on behalf of the
Community; the Solicitor General of Jamaica on behalf of that State and Mr E
Prescott on behalf of the State of Trinidad and Tobago. At the conclusion of
that public sitting the Applicants and Guyana were granted a period of one
week to enable them to make any further written submissions they desired to
make. They did make such submissions.
[8] The Court records its sincere appreciation to the parties, the Community
and the States that participated in the proceedings and welcomes the
submissions received. The Court has found them all to be extremely useful.
In this judgment the Court gives its opinion on the two issues addressed in
the Interim Order as well as its judgment on the question posed by the
earlier proceedings.
[9] At stake in these proceedings is the proper interpretation of provisions
of the RTC that are critical to the matter of access to the Court by private
entities. Before embarking upon the interpretative exercise, the Court
recognises that the provisions of a treaty invariably represent the fruit of
many months, sometimes years, of discussion and negotiation. Invariably, a
treaty's provisions reflect a compromise of conflicting national interests
and divergent perspectives. To this end, despite the best efforts of skilled
drafters, the language of a treaty's text is often imprecise and sometimes
deliberately ambiguous in order to accommodate politically acceptable
interpretations in different jurisdictions. This is particularly the case
with multilateral treaties.
[10] In this context, international law has developed principles, canons of
interpretation, to guide international courts and tribunals in the
interpretation of treaties. Article 31 of the Vienna Convention on the Law
of Treaties (VCLT) prescribes the general rule of treaty interpretation.
Article 31(1) mandates that "A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose." Article 32 of
the VCLT addresses subsidiary rules of interpretation[FN2]. Accordingly,
determination of the application for special leave presented by the
Applicants and a resolution of the two issues mentioned above at [5] require
the Court to consider the following relevant issues, namely: the context,
object and purpose of the RTC; the status and role of private entities
accorded by the Treaty; the intention of the States Parties to the RTC; the
ordinary meaning to be attributed to the language of the text of the Treaty,
and the subsequent conduct of the States Parties establishing their
understanding of the instrument. We shall also comment on the relevance and
significance of rules that have been made pursuant to the RTC. The Court
proposes to consider each of these matters though not necessarily under
their respective discrete headings.
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[FN2] Article 32 states: "Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting
from the application of article 31, or to determine the meaning when the
interpretation according to article 31: (a) leaves the meaning ambiguous or
obscure; or (b) leads to a result which is manifestly absurd or unreasonable".
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THE CONTEXT, OBJECT AND PURPOSE OF THE RTC
[11] In interpreting the RTC the Court does not intend to place undue
reliance on a literal approach. Reliance on the text of a treaty to the
detriment of its object and purpose is contrary to the rule expressed in
Article 31 of the VCLT and does not accord with the jurisprudence of the
International Court of Justice[FN3]. As Aust states[FN4]:
"Placing undue emphasis on the text, without regard to what the parties
intended; or on what the parties are believed to have intended, regardless
of the text; or on the perceived object and purpose in order to make the
treaty more 'effective', irrespective of the intentions of the parties, is
unlikely to produce a satisfactory result."
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[FN3] See: Aust, Modern Treaty Law and Practice, p. 185, 2006, Cambridge
University Press
[FN4] Aust, op. cit. p. 185
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[12] The RTC establishes the Caribbean Community including the CARICOM
Single Market and Economy ("CSME") and its Preamble is an important part of
its context for the purposes of interpretation. Through the Preamble one is
made aware of the goals of the States Parties and of statements of principle
by which they propose to be guided. Among the many preambular paragraphs of
the RTC are the following:
"Recalling the Declaration of Grand Anse and other decisions of the
Conference of Heads of Government, in particular the commitment to deepening
regional economic integration through the establishment of the CARICOM
Single Market and Economy (CSME) in order to achieve sustained economic
development based on international competitiveness, co-ordinated economic
and foreign policies, functional co-operation and enhanced trade and
economic relations with third States; ...
Desirous of restructuring the Organs and Institutions of the Caribbean
Community and Common Market and redefining their functional relationships so
as to enhance the participation of their peoples, and in particular the
social partners, in the integration movement;.
Resolved to establish conditions which would facilitate access by their
nationals to the collective resources of the Region on a non-discriminatory
basis;.
Recognising also the potential of micro, small, and medium enterprise
development to contribute to the expansion and viability of national
economies of the Community and the importance of large enterprises for
achieving economies of scale in the production process;.
Considering that an efficient, transparent, and authoritative system of
disputes settlement in the Community will enhance the economic, social and
other forms of activity in the CSME leading to confidence in the investment
climate and further economic growth and development in the CSME;.
Affirming also that the original jurisdiction of the Caribbean Court of
Justice is essential for the successful operation of the CSME;."
[13] From these and other paragraphs of the preamble, one deduces that, in
an age of liberalisation and globalisation, the Contracting Parties are
intent on transforming the CARICOM sub-region into a viable collectivity of
States for the sustainable economic and social development of their peoples;
that the CSME is regarded as an appropriate framework or vehicle for
achieving this end and that private entities, "and in particular the social
partners", are to play a major role in fulfilling the object and goals of
the RTC. The CSME is intended to be private sector driven. The question
arises as to the manner in which the RTC proposes to accommodate private
entities.
PRIVATE ENTITIES IN INTERNATIONAL LAW
[14] The classic or traditional rule in customary international law was that
States were regarded as subjects while individuals were regarded solely as
objects of international law. This flowed from the concept that
international law was seen primarily as a law between States. The individual
had no place, no rights in the international legal order[FN5]. In its
Commentaries on Article 1 of the Draft Articles on Diplomatic Protection,
the International Law Commission recalled that:
"Diplomatic protection has traditionally been seen as an exclusive State
right in the sense that a State exercises diplomatic protection in its own
right because an injury to a national is deemed to be an injury to the State
itself"[FN6].
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[FN5] See: International Law Commission's Commentaries on the Draft Articles
on Diplomatic Protection, 2006, at Article 1 (3)
[FN6] International Law Commission's Commentaries, op. cit.
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[15] The Permanent Court of International Justice authoritatively affirmed
the status of the individual as an object of international law in the
Mavrommatis Palestine Concessions case[FN7] when, inter alia, it stated that:
"... by taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a
State is in reality asserting its own right, the right to ensure, in the
person of its subjects, respect for the rules of international law".
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[FN7] Mavrommatis Palestine Concessions (Greece v. U.K.) P.C.I.J. Reports,
1924, Series A, No. 2, p.12
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[16] Notwithstanding this conception of the role and place of the individual
in international law there was nothing to preclude States, as an attribute
of sovereignty, from according in a Convention a right to their nationals to
bring an action against any of the States Parties to the Convention
including the State of nationality of the private entity[FN8]. Several mixed
arbitral tribunals established after the World Wars accorded direct access
to nationals to seek redress against their own nation states. In modern
international relations, States remain the primary but are not the exclusive
subjects of international law. States can and occasionally do confer
directly upon individuals, whether their own citizens or aliens,
international rights which the latter can enforce in their own name before
international tribunals without the intervention of municipal legislation[FN9].
This development is particularly noticeable in the fields of human rights
and economic integration agreements[FN10].
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[FN8] See: Steiner and Gross v Polish State, AD, 4 (1921-8) No. 188
[FN9] Oppenheim's International Law, Vol. 1 Part 2, p.847-848, 9th Edn,
Longman, 1996,
[FN10] See for example: Art. 25 of the European Convention on Human Rights,
Art. 230 of the Consolidated Version of the Treaty of European Union, Art.
19 of the Treaty creating the Court of Justice of the Cartagena Agreement
and Art. 26 of the COMESA Treaty.
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[17] In commenting on the history of the status of private entities under
international law, the International Law Commission records[FN11] that:
"Today the situation has changed dramatically. The individual is the subject
of many primary rules of international law, both under custom and treaty,
which protect him at home, against his own Government, and abroad, against
foreign Governments. This has been recognized by the International Court of
Justice in the La Grand[FN12] and Avena[FN13] cases."
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[FN11] See: Draft Articles on Diplomatic Protection with commentaries, 2006,
Article 1 (3):
[FN12] La Grand case (Germany v. United States of America) I.C.J. Reports
2001, p.466 at paras 76-77
[FN13] Case concerning Avena and Other Mexican Nationals (Mexico v. United
States of America) I.C.J. Reports, 2004, p.12 at para. 40
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[18] Given the important role envisaged for private economic entities in
achieving the objectives of the CSME, the Contracting Parties clearly
intended that such entities should be important actors in the regime created
by the RTC; that they should have conferred upon them and be entitled to
enjoy rights capable of being enforced directly on the international plane.
[19] This conclusion is borne out by Article 211 that confers jurisdiction
on the Court in contentious proceedings. The Article states:
"(1) Subject to this Treaty, the Court shall have compulsory and exclusive
jurisdiction to hear and determine disputes concerning the interpretation
and application of the Treaty, including:
(a) disputes between Member States parties to the Agreement;
(b) disputes between the Member States parties to the Agreement and the
Community;
(c) referrals from national courts of the Member States parties to the
Agreement;
(d) applications by persons in accordance with Article 222, concerning the
interpretation and application of this Treaty."
[20] It is to be noted that in Article 211, the right to approach the Court
directly is vested in the Community, in Member States and in "persons in
accordance with Article 222". Thus, a private entity's access to the Court
is not expressly linked to a State's right to espouse a claim before the
Court. Article 211 gives to "persons in accordance with Article 222", in
their own right, qualified access to the Court. One must now turn to Article
222 to see how this right may be exercised.
PERSONS, NATURAL OR JURIDICAL, OF A CONTRACTING PARTY
[21] Article 222 is headed "Locus Standi of Private Entities". The Article
states:
"Persons, natural or juridical, of a Contracting Party may, with the special
leave of the Court, be allowed to appear as parties in proceedings before
the Court where:
(a) the Court has determined in any particular case that this Treaty
intended that a right or benefit conferred by or under this Treaty on a
Contracting Party shall enure to the benefit of such persons directly; and
(b) the persons concerned have established that such persons have been
prejudiced in respect of the enjoyment of the right or benefit mentioned in
paragraph (a) of this Article; and
(c) the Contracting Party entitled to espouse the claim in proceedings
before the Court has:
(i) omitted or declined to espouse the claim, or
(ii) expressly agreed that the persons concerned may espouse the claim
instead of the Contracting Party so entitled; and
(d) the Court has found that the interest of justice requires that the
persons be allowed to espouse the claim."
[22] The first of the two issues identified by the Court in the Interim
Judgment relates to the expression "persons, natural or juridical of a
Contracting Party". The initial condition the Applicants must meet is to
situate themselves within the meaning of this phrase. If they are unable so
to do, then they cannot obtain special leave.
[23] The Attorney General of Guyana submitted in the earlier proceedings
that in order to take advantage of Article 222 each applicant was obliged to
satisfy the Court that it fell within the definition of "national" contained
in Article 32 of the RTC. Article 32 lists certain conditions that must be
met for a person to qualify as a "national" of a Member State. The Attorney
submitted that the Applicants had failed to establish that they had met the
conditions.
[24] In advancing this argument the Attorney General placed reliance on
Article XXIV of the Agreement Establishing the Caribbean Court of Justice
("the Agreement"). Article 222 of the RTC replicates Article XXIV save that
the opening words of Article XXIV are: "Nationals of a Contracting Party."
instead of "Persons, natural or juridical of a Contracting Party." The
Attorney next pointed to Article 1 of the RTC, which defines the term
"national" to mean "a national within the meaning of paragraph 5(a) of
Article 32". He concluded that when the RTC speaks of "persons, natural or
juridical of a Contracting Party" the Article 32 definition of the
expression "national" is to be inferred.
[25] These submissions of the Attorney-General are, in the Court's opinion,
misconceived. In the first place the Court is called upon to interpret not
Article XXIV of the Agreement but Article 222 of the RTC. In this context,
Article XXIV is for present purposes not entirely relevant. But even if it
were, there is nothing in the Agreement or in the RTC to suggest that the
word "nationals" in Article XXIV bears the same meaning as it does in
Article 32 of the RTC. Indeed, there is a sound basis for differentiating
between the class of private entities which may take advantage of the rights
to be enjoyed by "nationals" under Article 32 on the one hand and those
persons to whom is granted a qualified right of accessing the Court under
Article 222.
[26] Article 32 is contained in Chapter Three of the RTC. The definition of
"national" in Article 32 is expressly reserved "for the purposes of this
Chapter"[FN14]. Chapter Three peculiarly concerns itself with issues
critical for the success of an integration regime, namely, the right of
establishment, the movement of labour, the right to move capital and the
right to provide services. These are fundamental core rights given by the
RTC and must be seen in the context of the resolve of the Contracting
Parties "to establish conditions which would facilitate access by their
nationals to the collective resources of the Region on a non-discriminatory
basis"[FN15]. These core rights are not to be available to non-Community
nationals merely doing business in the Community or to companies which,
though incorporated in a Contracting Party, are not substantially owned or
effectively controlled by Community nationals. These rights are available
only to Community nationals in the restricted sense of that term as defined
in Article 32(5) and are intended to ensure that strategic economic
advantages remain with persons belonging to or having a close connection
with the Community. By contrast, the provisions of Article 222 are intended
to be available to persons of a Contracting Party, whether Community
nationals, within the meaning of Article 32(5), or otherwise, who can
establish injury or prejudice in the enjoyment of a right or benefit
conferred on a Contracting Party which enured to their benefit directly. If
the expression "persons" in Article 222 were synonymous with the expression
"nationals" in the restricted sense in which the latter term is defined in
Article 32, then there would be no rational basis specifically in Article 32
to confine the expression "nationals" to Chapter Three.
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[FN14] See: Article 32(5).
[FN15] See the Preamble to the treaty and [12] above
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[27] There is yet another reason why it would be wrong to conflate the terms
"nationals", in Article XXIV of the Agreement, with "persons" in Article 222
of the RTC. The Agreement and the RTC are both international instruments
governed by international law. They cover in part the same subject matter
and have been concluded by the same States Parties. The RTC is the later of
the two instruments. In a case of this nature the earlier treaty applies
only to the extent that its terms are compatible with those of the later
treaty[FN16]. In interpreting Article 222 of the RTC incompatible provisions
of Article XXIV are superseded by relevant provisions of the Treaty to the
extent of such incompatibility.
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[FN16] See: Article 30(3) of the Vienna Convention
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[28] In the premises, the Court rejects the view that the expression
"persons, natural or juridical, of a Contracting Party" as employed in
Article 222 means nationals of a Contracting Party as defined in Article
32(5)(a) of the RTC. The Court holds that for a company to fall within the
meaning of the phrase "persons, natural or juridical, of a Contracting
Party", it is sufficient for such an entity to be incorporated or registered
in a Contracting Party.
[29] TCL has established to the satisfaction of the Court that it is a
limited liability company incorporated under the Companies Ordinance Chapter
31:01 of the laws of Trinidad and Tobago and continued under the Companies
Act 1995. It has its registered office situated at Southern Main Road,
Claxton Bay in the State of Trinidad and Tobago. TCL is also registered as
an external company under the Companies Act No. 29 of 1991 of the Laws of
Guyana with its registered office in that State situated at Lot 2-9 Lombard
Street, GNIC Compound, Georgetown. TGI is a limited liability company
incorporated under the Companies Act No. 29 of 1991 of the Laws of Guyana.
Its registered office is situated at the same location in Guyana as TCL's
Guyana office. The Court therefore holds that the Applicants have
established that each of them falls within the expression in Article 222
"persons, natural or juridical, of a Contracting Party".
[30] Before leaving this aspect of the judgment the Court finds it
interesting to observe that the Guyana legislature, when it enacted the
Agreement as the Caribbean Court of Justice Act, interpreted the expression
"nationals" in relation to a company, as an entity incorporated or
registered under its Companies Act 1991[FN17].
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[FN17] See: section 5(2) of the Guyana Caribbean Court of Justice Act, No.
16 of 2004.
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CONFERMENT OF A RIGHT OR BENEFIT AND ESTABLISHING PREJUDICE
[31] Article 222 addresses locus standi of private entities. The Article
does not purport to grant a substantive right of redress. Its purpose is to
define the circumstances in which private entities are entitled, with the
leave of the Court, to appear as parties in proceedings instituted by them
before the Court. In relation to the Applicants, Article 222(a) requires the
Court to be satisfied that the Treaty intended that a right or benefit
conferred on a Contracting Party enures directly to their benefit.
[32] Rights and benefits under the RTC are not always expressly conferred
although some of them are, for example the rights referred to in Articles 32
and 46. Many of the rights, however, are to be derived or inferred from
correlative obligations imposed upon the Contracting Parties. Unless
specifically otherwise indicated, the obligations set out in the RTC are
imposed on Member States (or a class of Member States) collectively. Where
an obligation is thus imposed, it is capable of yielding a correlative right
that enures directly to the benefit of private entities throughout the
entire Community.
[33] In order to institute a claim before the Court, applicants - or
"persons" as Article 222 refers to them - must satisfy two conditions,
namely, a) that the Treaty intended "that a right or benefit conferred by or
under this Treaty on a Contracting Party shall enure to the benefit of such
persons directly"[FN18] and that b) the "persons have been prejudiced in
respect of the enjoyment of the right or benefit"[FN19]. The Treaty is
silent as to the standard of proof that an applicant must attain at this
stage of the proceedings where the applicant merely seeks special leave to
appear as a party in order to commence a claim. The Court holds that, at
this stage, it is sufficient for the applicant merely to make out an
arguable case that each of these two conditions can or will be satisfied
since they are substantive requirements an applicant must in any event fully
satisfy in order ultimately to obtain relief. To require the applicant to
meet a threshold of proof greater than "an arguable case" could prolong the
special leave procedure unnecessarily and prejudice the submissions that
must be made at the substantive stage of the proceedings if the application
was successful and an Originating Application is ultimately filed.
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[FN1] See: Article 222(a) of the treaty.
[FN2] See: Article 222(b) of the treaty
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[34] Article 82 of the RTC imposes an obligation on the Member States to
"establish and maintain a common external tariff in respect of all goods
which do not qualify for Community treatment in accordance with plans and
schedules set out in relevant determinations of COTED". This obligation on
Member States is of potential benefit to all legal or natural persons
carrying on business in the Community having to do with any such goods.
Equally, the failure by any particular Member State to fulfil this
obligation is of potential prejudice to all such persons. It is common
ground that at all material times cement was one such commodity and that
Guyana had not obtained from COTED a waiver of the relevant obligation.
[35] The Applicants have alleged, and it has not been contradicted, that
they are engaged in the production, packaging, sale and distribution of
cement throughout the Community and in particular in Guyana. They have also
alleged that Guyana's unilateral suspension of the CET on cement for the
period claimed by them (i.e. from January, 2007 and continuing) has caused
and continues to cause them loss. They have further alleged that such loss
is directly attributable to that suspension. Taking into account the
response made by Guyana to these allegations, but without making any
determination as to their conclusiveness, the Court holds that the
Applicants have advanced an arguable case that they can satisfy the
conditions laid down in Article 222(a) and (b).
IS TGI ENTITLED TO BRING PROCEEDINGS AGAINST GUYANA?
[36] The question as to whether a private entity of a Contracting Party is
entitled to bring proceedings against that Contracting Party arises from the
wording of Article 222(c) of the RTC. That provision prescribes that, in
addition to the private entity satisfying the conditions laid down in
Article 222(a) and (b), it must further be established that "the Contracting
Party entitled to espouse the claim in proceedings before the Court has (i)
omitted or declined to espouse the claim, or (ii) expressly agreed that the
persons concerned may espouse the claim instead of the Contracting Party so
entitled."
[37] The thrust of Guyana's contentions on Article 222(c) is that the
Contracting Party of a private entity must always have the option of itself
bringing any proceedings that a private entity desires to bring; that since
it is impossible for the Contracting Party to have that option and
simultaneously be also the defendant to those very proceedings, then, as a
matter of compelling inference, the entire Article must be interpreted in a
way to yield the result that, as a matter of policy, the RTC intends that a
private entity cannot bring proceedings against its own State.
[38] The Court has previously indicated that it is not unusual for treaties,
and multilateral treaties in particular, to contain language that is unclear
and ambiguous. The Court has also alluded to the general rule of treaty
interpretation to be found in Article 31 of the VCLT. A literal
interpretation of Article 222(c) is indeed capable of producing the
restrictive effect contended for by Guyana. But interpretation of the
Article cannot cease with a literal interpretation of that provision. The
Court must examine the context in which the provision appears in light of
the object and purpose of the RTC and interpret the Article in a manner that
renders the RTC effective. In effect the Court must adopt a teleological
approach.
[39] No other provision of the RTC lends support to the restrictive
interpretation contended for by Guyana. Throughout the Treaty, apart from
the provisions of Article 222(c), private entities prejudiced in the
enjoyment of a right that has enured to their benefit are able either to
apply to this Court for special leave to commence, or to have brought,
against the offending party, proceedings to vindicate the right of theirs
that has been prejudiced. The interpretation of Article 222 supported by the
Attorney General would place an unduly restrictive limitation on the
category of persons entitled to complain about the conduct of a Contracting
Party or of the Community.
[40] The Court concludes that it was not the intention of the Member States
to prohibit a private entity from bringing proceedings against its own
State. The Court observes three important reasons justifying this
conclusion. Firstly, any such prohibition would frustrate the achievement of
the goals of the RTC. It would impact negatively not only on nationals
within the meaning of Article 32(5) but also on companies owned by
non-nationals (including nationals of other States of the Community) who
chose to incorporate in an allegedly delinquent State. The latter could be
encouraged to violate the RTC with impunity in circumstances where such
persons were the only ones who suffered prejudice. Conversely, such persons
would have imposed upon them a serious fetter on the vindication of rights
enuring to them pursuant to Article 222(a).
[41] Secondly, Article XVIII(1) of the Agreement states:
"Should a Member State, the Community or a person consider that it has a
substantial interest of a legal nature which may be affected by a decision
of the Court in the exercise of its original jurisdiction, it may apply to
the Court to intervene and it shall be for the Court to decide on the
application."
Nothing in the Agreement precludes a private entity that "has a substantial
interest of a legal nature which may be affected by a decision of the Court"
from applying to intervene in a matter in which its own State is the
defendant. Subject to the decision of this Court, such a private entity is
clearly entitled to appear on the opposite side of its State of nationality
when intervening in proceedings before the Court.
[42] Thirdly, Article 7 of the RTC states that
"Within the scope of application of this Treaty and without prejudice to any
special provisions contained therein, any discrimination on grounds of
nationality only shall be prohibited."
If Guyana's contentions on this issue were to prevail then private entities
could suffer a severe disadvantage "on grounds of nationality only". Equal
access to justice, a fundamental principle of law subscribed to by all the
Contracting Parties, would be compromised. Taking this case as an example,
while, in relation to Guyana, a non-national private entity such as TCL
would be free to seek to vindicate its rights, a person of Guyana such as
TGI, for no reason other than being a person of Guyana, would be faced with
an insuperable procedural obstacle. Given the emphasis the RTC lays on the
role and status of private entities and on equality of treatment among
Community nationals, the Court rejects the view that Article 222 should be
interpreted to produce the restrictive result contended for by Guyana.
[43] When one considers Article 222 in light of its context, the intention
of the Contracting Parties and the object and purpose of the RTC, it is
clear that the provisions of Article 222(c) are meant to cater to and
satisfactorily resolve a particular dilemma. If, as the Court has previously
held, distinct and separate rights of action against a State in violation of
the RTC are given to Member States and to private entities, then a means had
to be found to avoid a duplication of suits. Article 222(c) is the mechanism
used. It is a procedural device to avoid a State allegedly in violation
being twice vexed, once by an injured private entity and again by the
Contracting Party of that private entity. Article 222(c) cannot and does not
apply where the State against which proceedings are to be brought is the
Contracting Party of the private entity seeking to institute such
proceedings. In such a case, the private entity is not required to comply
with the provisions of Article 222(c).
[44] The Court therefore holds that TGI is capable of appearing as a party
against Guyana. The Court notes that TCL has provided un-contradicted
evidence of its compliance with Article 222(c). Accordingly, the Court
further holds that TCL has complied with the provisions of Article 222(c).
THE INTEREST OF JUSTICE
[45] In light of all the material placed before the Court, the Court holds
that it is in the interest of justice that the Applicants be permitted to
espouse the proposed claim. This by no means should be taken as an
indication that the Court has made any determination on the merits of that
claim.
THE RELEVANCE AND SIGNIFICANCE OF THE RULES
[46] Before concluding this Judgment, it is necessary to make some reference
to the Court's Original Jurisdiction Rules. By the combined effect of
Article XXI of the Agreement and Article 220 of the RTC, Rules of Court may
be made to govern the exercise of the original jurisdiction of the Court.
Such Rules have accordingly been made and published. On various occasions
throughout these and the earlier proceedings the Rules were cited in support
of one or another proposition.
[47] It must be emphasised that the Rules were made without the advantage of
hearing argument on areas of the RTC that could well turn out to be
contentious. The Rules are not necessarily an authoritative aid to an
interpretation or understanding of either the RTC or the Agreement. If
ultimately, provisions in the Rules in their current form are not entirely
in concert with the Court's interpretation of either of these two
instruments then the Rules shall be amended accordingly.
ORDER
[48] For the reasons expressed the Court
(i) Grants the application for special leave of each of the Applicants, and
(ii) Reserves the issue of costs to a later stage of the proceedings. |
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