At this time, Tuesday, 22 October 2024, the Caribbean Courtroom of Justice (CCJ) in its Authentic Jurisdiction delivered judgment within the originating utility of Ellis Richards, Spencer Thomas, The Medical Advantages Board and Others v The State of Trinidad and Tobago [AGOJ2021/001]. The declare was dismissed, and the events had been ordered to bear their very own prices.
The Claimants had been Antigua and Barbuda and Grenada nationals, all policyholders of British American Insurance coverage Firm Restricted (BAICO), a subsidiary of CL Monetary (CLF), the monetary conglomerate resident in Trinidad and Tobago (the Defendant). After the collapse of CLF in early 2009, the Defendant determined to rescue or ‘bail out’ CLF and its Trinidad and Tobago subsidiaries, CLICO Funding Financial institution (CIB), Colonial Life Insurance coverage Firm (Trinidad) Restricted (CLICO), and British American Insurance coverage Firm (Trinidad) Restricted (BAT). The Defendant engaged in a sequence of measures together with assumption of management of CLICO and BAT, provision of liquidity help, injection of funds, and the acquisition of the rights of some policyholders of CLICO and BAT. These actions had been carried out to mitigate the results of the collapse on policyholders and the broader Trinidad and Tobago economic system. The declare in these proceedings arose out of those actions taken by the Defendant.
In Richards v The State of Trinidad and Tobago [2023] CCJ 1 OJ, the Courtroom concluded that on the info Trinidad and Tobago’s intervention in and bailout of CLF and its Trinidadian subsidiaries had been correctly throughout the exception offered in Article 30(2), that’s ‘Actions in a Member State involving the train of governmental authority…’. This meant that the claims alleging breaches of Articles 36, 37 and 38 on the occasion of BAICO policyholders weren’t justiciable by the Courtroom Two broad points had been examined within the current judgment below the headings: i. Whether the Defendant’s actions in bailing out CLICO and BAT constituted a breach of Article 184(1)(j) of the Revised Treaty of Chaguaramas (‘RTC’) and ii. Whether or not the Defendant’s actions in bailing out CLICO and BAT constituted a breach of Article 7 of the RTC?
The Courtroom interpreted in good religion and utilized the bizarre which means of the articles of the RTC which fall below Chapter Eight, titled: ‘Competitors Coverage and Client Safety’. In so doing, the Courtroom discovered that Chapter Eight of the RTC is worried with encouraging a powerful and vibrant Group market by Member States’ enactment of laws and rules prohibiting anti-competitive conduct, selling honest competitors, selling the pursuits of customers, defending customers, and attaining harmonization of competitors insurance policies all through the Group. It didn’t create legal responsibility for particular person Member States of the Group.
Additional, the allegations of breaches of Article 7 and Article 184(1)(j) each relied on whether or not the Claimants had been customers. The Courtroom thought-about three preliminary points to find out whether or not the Claimants certified as customers to pursue the alleged breaches of the provisions of the RTC, not all of which had been totally argued by the events. These points involved: (1) whether or not the definition of customers is restricted to pure individuals or whether or not it contains authorized individuals, (2) whether or not the Claimants qualify as recipients of products and companies throughout the which means of the RTC and (3) whether or not the Claimants have happy the 2 limbs of Article 184(2) to be thought-about customers. Because the issues weren’t totally argued by the events, the Courtroom mentioned however didn’t determine definitively on these issues.
The Courtroom discovered that Article 184(1)(j) which required Member States to offer “enough and efficient redress for customers” couldn’t be learn in isolation from its broader authorized context. In figuring out the authorized character of Article 184(1)(j), an vital first step was to understand that the supply have to be positioned within the broader context of competitors coverage and shopper safety regulation. It was additionally important to contemplate the institutional preparations which have been established in addition to the character of the language used within the provision.
The Courtroom famous that the language utilized in Chapter Eight of the RTC usually and particularly in Article 184 isn’t at all times conducive to allocating state legal responsibility for breach. Member States are then requested to “promote the pursuits of customers within the Group by applicable measures”. Taken by themselves or in isolation, the Courtroom thought-about that it was troublesome to ascribe an intention to impose state legal responsibility in respect of any particular provision contained within the Article. It was not permissible to single out a selected provision from the record, for instance, Article 184(1)(j), and provides it a particular authorized standing which the opposite provisions in Article 184 (1) can’t bear. The Courtroom said that it was not the intention of the framers of the RTC to ascribe nationwide legal responsibility in respect of a selected motion by a state outdoors of any agreed regional framework.
And, as famous by CARICOM, the RTC doesn’t include language which obliges Member States to offer mechanisms to facilitate the extraterritorial attain of its legislative/political/judicial selections to different Member States. The Courtroom agreed with Counsel that the State of Trinidad and Tobago couldn’t have assumed management of BAICO by the use of amendments to the Central Financial institution Act to ensure that BAICO policyholders and/or depositors had been afforded cures within the aftermath of CLF’s collapse. To take action would have been, within the absence of regional settlement, opposite to the spirit of cooperation amongst CARICOM Member States.
The Courtroom then thought-about whether or not there was a breach of Article 7 of the Treaty. The Courtroom said that Article 7 isn’t a free-standing provision whose breach might give rise to a declare at giant. Any allegation of a breach of Article 7 have to be accompanied by and should level to a Treaty proper in respect of which the Claimant should show discrimination within the enjoyment of the proper, and that discrimination in query have to be based mostly on nationality solely. The Courtroom thought-about there was no obligation to increase any reduction to establishments outdoors of the Defendant Member State and, due to this fact, no proper for the Claimants to acquire the reduction they sought.
The matter was heard by the CCJ President, the Honourable Mr Justice Saunders, and Justices Anderson, Rajnauth-Lee, Burgess, and Jamadar. Mr Simon Davenport KC, appeared with Dr Kenny Anthony, Mr Robert Strang, Mr Gregory Pantin, Mr Matthew Happold, Mr George Kirnon, Mr Miguel Vasquez, attorneys-at-Regulation for Ellis Richards, Spencer Thomas, The Medical Advantages Board, and others. Mrs Deborah Peake SC, appeared with Ms Tamara Toolsie, Mr Brent James, Mr Murvani Ojah Maharaj, attorneys-at-Regulation for the State of Trinidad and Tobago. Ms Lisa Shoman SC, appeared with Ms Radha Permanand and Mr O’Neil Francis, attorneys-at-Regulation for the Caribbean Group.
The CCJ’s full resolution is on the market through www.ccj.org.
