OAS

PROTOCOL AMENDING THE TREATY ESTABLISHING
THE CARIBBEAN COMMUNITY

(Protocol IX: Disputes Settlement)


PREAMBLE

The States Parties to the Treaty Establishing the Caribbean Community (hereinafter referred to as the "Member States"):

Affirming that the employment of internationally accepted modes of disputes settlement in the CARICOM Single Market and Economy (CSME) will facilitate achievement of the objectives of the Treaty;

Convinced that an efficient, transparent, and authoritative system of disputes settlement in the Caribbean Community (hereinafter called "the Community") will enhance the economic, social and other forms of activity in the CSME leading to confidence in the investment climate and further growth and development in the CSME;

Bearing in mind the international obligations of Member States particularly those set out in Article 33 of the Charter of the United Nations respecting the peaceful settlement of disputes;

Determined to promote the peaceful, expeditious and effective settlement of disputes in the Community and, in particular, in the CSME by recourse to the internationally accepted modes of disputes settlement;

Recognising that the Original Jurisdiction of the Caribbean Court of Justice is essential for the successful operation of the CARICOM Single Market and Economy (CSME),

Have agreed as follows:

ARTICLE I
Use of Terms

1. In this Protocol, unless the context otherwise requires:

"Agreement" means the Agreement Establishing the Caribbean Court of Justice;

"Community" includes the CARICOM Single Market and Economy to be established by the Protocols amending or replacing the Caribbean Common Market Annex to the Treaty;

"Conference" means the Conference of Heads of Government of the Community;

"consultations" means consultations within the meaning of Articles X and XI;

"Contracting Party" means a party to the Agreement;

"Council for Trade and Economic Development (COTED)" means the Organ of the Community so named in Article 6 of Protocol I and for the purpose of this Protocol shall be deemed to include the Interim Committee established pursuant to Rule 34 of the Rules of Procedure of the COTED;

"Court" means the Caribbean Court of Justice established by the Agreement;

"dispute" means a dispute within the meaning of Article IV;

"President" means the President of the Court;

"Secretary-General" means the Secretary-General of the Community;

"Treaty" means the Treaty Establishing the Caribbean Community signed at Chaguaramas on the 4th day of July 1973, and includes any amendments thereto which take effect either provisionally or definitively (hereinafter referred to as "the Treaty").

2. In this Protocol, where there is a requirement for notification to be given, such notification shall be in writing.

PART ONE
GENERAL PROVISIONS

ARTICLE II
Amendment

The provisions of this Protocol shall replace Chapters One and Two of the Caribbean Common Market Annex to the Treaty and take effect as hereinafter provided.

ARTICLE III

Replace Article I of the Caribbean Common Market Annex with the following:

Article 1
General Obligation to Settle Disputes

1. Member States shall settle disputes in good faith and in accordance with the relevant provisions of this Protocol.

2. In discharging their obligation set out in paragraph 1, Member States shall seek to ensure as far as possible that the settlement of any dispute would not adversely affect the interest of any other Member State.

ARTICLE IV

Replace Article 2 of the Caribbean Common Market Annex with the following:

Article 2
Scope of the Protocol

The provisions of this Protocol shall apply to the settlement of disputes concerning the interpretation and application of the Treaty, including:

(a) allegations that an actual or proposed measure of another Member State is, or would be, inconsistent with the objectives of the Community;

(b) allegations of injury, serious prejudice suffered or likely to be suffered, nullification or impairment of benefits expected from the establishment and operation of the CARICOM Single Market and Economy (CSME);

(c) allegations that an organ or body of the Community has acted ultra vires; or

(d) allegations that the purpose or object of the Treaty is being frustrated or prejudiced.

ARTICLE V

Replace Article 3 of the Caribbean Common Market Annex with the following:

Article 3
Modes of Dispute Settlement

1. Subject to the provisions of the Treaty, the disputes mentioned in Article IV shall be settled only by recourse to any one of the following modes for the settlement of disputes, namely, good offices, mediation, consultations, conciliation, arbitration and adjudication.

2. Where a dispute has not been settled following the adoption of one of the modes referred to in paragraph 1 other than arbitration or adjudication, either party may have recourse to another mode.

3. Subject to the procedural rules applicable in respect of arbitration or adjudication, the parties may agree, pending a settlement, to have recourse to good offices, mediation or conciliation in order to arrive at a settlement.

4. Without prejudice to the exclusive and compulsory jurisdiction of the Court in the interpretation and application of the Treaty under Article XXVIII, the parties may use any of the voluntary modes of dispute settlement provided for in this Article in the settlement of a dispute.

ARTICLE VI

Replace Article 5 of the Caribbean Common Market Annex with the following:

Article 5
Expeditious Settlement of Disputes

Where a dispute arises between Member States, the parties shall proceed expeditiously to an exchange of views for the purpose of agreeing on:

(a) a mode of settlement and where an agreed mode has been terminated, to another mode of settlement; or

(b) a mutually satisfactory method of implementation where a settlement has been reached and the circumstances require consultation regarding its implementation.

ARTICLE VII

Replace Article 6 of the Caribbean Common Market Annex with the following:

Article 6
Notification of Existence and
Settlement of Disputes

1. Member States parties to a dispute shall notify the Secretary-General of:

(a) the existence and nature of the dispute; and

(b) any mode of dispute settlement agreed upon or initiated.

2. Where a settlement is reached the Member States concerned shall notify the Secretary-General of the settlement and the mode used in arriving at the settlement.

3. The Secretary-General shall, as soon as practicable after receiving the information pursuant to paragraphs 1 and 2, notify other Member States of the information received.

PART TWO
GOOD OFFICES, MEDIATION
AND CONSULTATIONS

ARTICLE VIII

Insert new Article to read as follows:

Article 6(a)
Good Offices

1. Member States parties to a dispute may agree to employ the good offices of a third party, including those of the Secretary-General, to settle the dispute.

2. Good offices may begin or be terminated at any time. Subject to the applicable rules, good offices may continue during the course of arbitration or adjudication.

ARTICLE IX

Insert new Article to read as follows:

Article 6(b)
Mediation

1. Where Member States parties to a dispute agree to settle the dispute by recourse to mediation, the parties may agree on a mediator or may request the Secretary-General to appoint a mediator from the list mentioned in Article XIII.

2. Mediation may begin or be terminated at any time. Subject to the applicable rules, mediation may continue during the course of arbitration or adjudication.

3. Proceedings involving mediation and, in particular, positions taken by parties during the proceedings, shall be confidential and without prejudice to the rights of the parties in any further proceedings.

ARTICLE X

Insert new Article to read as follows:

Article 6(c)
Obligation to Enter Consultations

1. A Member State shall enter into consultations upon the request of another Member State where the requesting Member State alleges that an action taken by the requested Member State constitutes a breach of obligations arising from or under the provisions of the Treaty.

2. Where a request for consultations is made pursuant to paragraph 1, the requested Member State shall enter into consultations within 14 days of the receipt of the request or a mutually agreed period.

3. Where:

(a) consultations have not been entered into within the period referred to in paragraph 2; or

(b) the consultations fail to settle the dispute within 45 days of the receipt of the request for consultations or the dates mutually agreed,

the requesting Member State may resort to any mode of dispute settlement including binding third party settlement.

4. Requests for consultations shall be in writing. The request shall state the reasons for the consultations and identify the measure at issue and the legal basis for the complaint.

5. The Secretary-General shall be notified of any request for consultations.

6. Consultations shall be confidential and without prejudice to the rights of Member States in any further proceedings. However, before resorting to further proceedings, Member States shall employ their best endeavours to settle the dispute.

7. In cases of urgency including those concerning perishable goods, the requested Member State shall enter into consultations within 3 days of the receipt of the request, and where such consultations are not entered into, the requesting Member State may resort to binding third party settlement.

8. Where consultations under paragraph 7 fail to settle the dispute within 7 days of the receipt of the request for such consultations, the requesting Member State may resort to binding third party settlement.

9. Whenever a Member State, other than the consulting Member States, considers that it has a legitimate interest in consultations being held pursuant to this Article, such Member State may notify the consulting Member States and the Secretary-General, within 10 days after the date of the circulation of the request for consultations, of its desire to be joined in the consultations.

Such Member State shall be joined in the consultations, provided that the requested Member State agrees that the claim of legitimate interest is well-founded and based on similar facts and circumstances. In that event, the Member States concerned shall notify the Secretary-General. If the request to be joined in the consultations is not granted, the applicant Member State may request consultations under paragraph 1 of this Article.

ARTICLE XI

Insert new Article to read as follows

Article 6(d)
Obligations of Consulting Parties

Where Member States parties to a dispute agree to settle the dispute by consultations, they shall endeavour to arrive at a mutually satisfactory settlement of the dispute through the consultations, and to this end shall:

(a) provide sufficient information to enable a full examination of how the action complained of constitutes a breach of obligations arising from or under the provisions of the Treaty referred to in Article X; and

(b) treat any confidential or proprietary information exchanged in the course of consultations on the same basis as it is treated by the Member State providing the information.

PART THREE
CONCILIATION

ARTICLE XII

Replace Article 7 of the Caribbean Common Market Annex with the following:

Article 7
Initiation of Conciliation Proceedings

Where Member States parties to a dispute have agreed to submit the dispute to conciliation under this Part, any such Member State may institute proceedings by notification addressed to the other party or parties to the dispute.

ARTICLE XIII

Replace Article 8 of the Caribbean Common Market Annex with the following:

Article 8
Establishment of a List of Conciliators

1. A List of Conciliators shall be established and maintained by the Secretary-General. Every Member State shall be entitled to nominate two conciliators, each of whom shall be a person enjoying the highest reputation for fairness, competence and integrity. The names of the persons so nominated shall constitute the List. If at any time the number of conciliators nominated by a Member State is less than two, the Member State concerned shall be entitled to make such nominations as are necessary. The name of a conciliator shall remain on the List until withdrawn by the Member State which made the nomination and where a conciliator has been appointed to serve on any mediation or conciliation commission, the conciliator shall continue to serve on such Commission until the completion of the relevant proceedings.

2. The term of a conciliator, including that of a conciliator appointed to fill a vacancy, shall be five (5) years and may be renewed.

ARTICLE XIV

Replace Article 9 of the Caribbean Common Market Annex with the following:

Article 9
Constitution of Conciliation Commission

A conciliation commission shall be constituted from time to time as follows:

(a) Subject to the provisions of this Article, a conciliation commission shall consist of three members;

(b) Unless the parties otherwise agree, the party instituting the proceedings shall appoint one conciliator to be chosen from the List mentioned in Article XIII. The conciliator appointed may be a national of the party making the appointment. Such an appointment shall be included in the notification mentioned in Article XII;

(c) The other party to the dispute shall appoint a conciliator in the manner set forth in sub-paragraph (b) within ten days of the notification referred to in Article XII. If the appointment is not made within that period, the party instituting the proceedings may, within one week of the expiration of that period, either terminate the proceedings by notification addressed to the other party or request the Secretary-General to make the appointment in accordance with sub-paragraph (e);

(d) Within ten days after both conciliators have been appointed, they shall appoint a third conciliator chosen from the List referred to in Article XIII, and who shall be the Chairman. If the appointment is not made within that period either party may, within the week of the expiration of that period, request the Secretary-General to make the appointment in accordance with sub-paragraph (e);

(e) Within ten days of the receipt of a request under sub-paragraphs (c) and (d), the Secretary-General shall make the necessary appointments from the List referred to in Article XIII in consultation with the parties to the dispute;

(f) Any vacancy on a conciliation commission shall be filled in the manner prescribed for the initial appointment;

(g) Two or more Member States parties to the dispute which determine by agreement that they are of the same interest shall appoint one conciliator jointly;

(h) In disputes involving more than two parties having separate interests, or where there is disagreement as to whether they are of the same interest, the parties shall apply sub-paragraphs (a) to (f) in so far as may be possible.

ARTICLE XV

Insert new Article to read as follows:

Article 9(a)
Amicable Settlement

A conciliation commission may draw to the attention of the Member States parties to the dispute any measures which might facilitate an amicable settlement of the dispute

ARTICLE XVI

Insert new Article to read as follows:

Article 9(b)
Functions of Conciliation Commission

A conciliation commission shall hear the Member States parties to the dispute, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement.

ARTICLE XVII

Insert new Article to read as follows:

Article 9(c)
Procedure

1. A conciliation commission shall, unless the Member States parties to the dispute otherwise agree, determine its own procedure. A conciliation commission may, with the consent of the parties to the dispute, invite any Member State to submit its views to the commission, orally or in writing. The report and recommendations and decisions of the commission regarding procedural matters shall be made by a majority vote of its members.

2. The Member States parties to the dispute may, by agreement applicable solely to that dispute, modify the procedure referred to in paragraph 1.

ARTICLE XVIII

Insert new Article to read as follows:

Article 9(d)
Report

1. A conciliation commission shall report within three months of its constitution. Its report shall record any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as a conciliation commission may deem appropriate for an amicable settlement.

2. The conclusions or recommendations of a conciliation commission shall not be binding upon the parties.

ARTICLE XIX

Insert new Article to read as follows:

Article 9(e)
Termination

The conciliation proceedings shall be deemed to be terminated when a settlement has been reached, when the parties have accepted or one party has rejected the recommendations of the report by notification addressed to the Secretary-General, or when a period of one month has expired from the date of transmission of the report to the parties.

ARTICLE XX

Insert new Article to read as follows:

Article 9(f)
Fees and Expenses

The fees and expenses of a conciliation commission shall be borne by the Member States parties to the dispute.

PART FOUR
ARBITRATION

ARTICLE XXI

Replace Article 10 of the Caribbean Common Market Annex with the following:

Article 10
Arbitration

A Member State party to a dispute may, with the consent of the other party, refer the matter to an Arbitral Tribunal constituted in accordance with the provisions of this Part.

ARTICLE XXII

Insert new Article to read as follows:

Article 10(a)
Constitution of the List of Arbitrators

1. For the purposes of constituting the Arbitral Tribunal referred to in Article XXI, the Secretary-General shall establish and maintain a List of Arbitrators comprising persons chosen strictly on the basis of impartiality, reliability and sound judgment and who shall:

(a) have expertise or experience in law, international trade, other matters covered by the Treaty, or the settlement of disputes arising under international trade agreements,

(b) be independent of, and not be affiliated with or take instructions from any Member State; and

(c) comply with the Code of Judicial Conduct governing the behaviour of judges of the Court;

2. The term of an arbitrator, including that of any arbitrator nominated to fill a vacancy, shall be five years and may be renewed.

Continue on to Article XXIII