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Guyana in breach of CCJ ruling, still to reinstate CET

Sep 23, 2009 News

It is now 34 days since the Right Honourable Justice Michael A. de la Bastide, President of the Caribbean Court of Justice, ruled against Guyana in the case against the Trinidadian Cement Company and TCL Guyana Incorporated.

Justice de la Bastide had ordered that Guyana reinstate the Common External Tariff (CET) that sparked the fiasco, within 28 days and as such, Guyana is in breach of the ruling by the CCJ.

The Court had, at the time, declared that Guyana has since October 2006 been in breach of the provisions of Article 82 of the Revised Treaty of Chaguaramas (RTC) by failing to implement and maintain the CET.

It was also ruled that TCL is entitled to the benefit of having the CET maintained by Guyana, subject to Guyana’s right to make an application to COTED or the Secretary-General in accordance with the RTC.

According to the final judgment that was handed down to the litigants, none of the witnesses called by Guyana could explain the continued unwillingness or refusal by Guyana to honour its treaty obligations by seeking the prior approval of COTED.

“This flagrant breach has persisted throughout the pleadings down to the commencement of the hearing….Counsel had no instructions from his client to give an undertaking that the breach would be brought to an end, and the CET implemented and maintained in accordance with Articles 82 and 83 of the RTC.”

According to the CCJ ruling, “In those circumstances there would be grave consequences for the rule of law in the CARICOM Single Market if a coercive order were not made.”

It was pointed out also that the Court did not doubt that TGI lost the opportunity of increasing its level of sales as a result of the illegal conduct of Guyana but it is a cardinal principle, however, that suffering loss is not enough to ground a case in damages against a Member State or the Community before the Court.

The court also ruled that as it relates to the sufficiency of the seriousness of the breach by Guyana, there was evidence that: Guyana had ignored and failed to entertain repeated requests by the Claimants’ representatives to reconsider its position and to implement the CET; Guyana had also ignored the fact that COTED, as indicated in the Minutes of the Meeting of November 2007, had noted and recorded Guyana’s failure to regularise its position and implement the CET; Guyana was itself at all times fully aware that it was in breach of the treaty and notwithstanding the admission by Guyana to the Court at the hearing for Special Leave in these proceedings that it was in breach, that State had taken no steps to remedy the breach.

Following the ruling, TCL and TCL Guyana Incorporated (TGI) reported that it was pleased with the judgment declared by the CCJ in their proceedings brought against the Government of Guyana in relation to the implementation of the Common External Tariff (CET) on imported cement into the country.

It was noted that in 2006, the TCL Group invested US$10.4 million in its first bagging terminal, ensuring that Guyana always has an adequate and reliable supply of cement. And that the establishment of this facility also fulfilled TCL’s objective of supporting the overall economic and development plans of Guyana.

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