OAS

PROTOCOL AMENDING THE TREATY ESTABLISHING
THE CARIBBEAN COMMUNITY

(Protocol IX: Disputes Settlement)

(Continuation)


ARTICLE XXIII

Insert new Article to read as follows:

Article 10(b)
Constitution of Arbitral Tribunal

1. Each of the Member States parties to a dispute shall be entitled to appoint one arbitrator from the List. The two arbitrators chosen by the parties shall be appointed within fifteen days following the decision to refer the matter to arbitration. The two arbitrators shall, within fifteen days following the date of their appointments, appoint a third arbitrator from the List who shall be the Chairman. As far as practicable, the arbitrators shall not be nationals of any of the parties to the dispute.

2. Where either party to the dispute fails to appoint its arbitrator under paragraph 1, the Secretary-General shall appoint the arbitrator within ten days. Where the arbitrators fail to appoint a Chairman within the time prescribed, the Secretary-General shall appoint a Chairman within ten days.

3. Where more than two Member States are parties to a dispute, the parties concerned shall agree among themselves on the two arbitrators to be appointed from the List within fifteen days following the decision to refer the matter to arbitration and the two arbitrators shall within fifteen days of their appointment appoint a third arbitrator from the List who shall be the Chairman.

4. Where no agreement is reached under paragraph three, the Secretary-General shall make the appointment within ten days and where the arbitrators fail to appoint a Chairman within the time prescribed the Secretary-General shall make the appointment within ten days.

5. Notwithstanding paragraphs 1, 2, 3 and 4, Member States parties to a dispute may refer the matter to arbitration and consent to the Secretary-General appointing a sole arbitrator from the list who shall not be a national of a Party to the dispute.

ARTICLE XXIV

Insert new Article to read as follows:

Article 10(c)
Rules of Procedure of Arbitral Tribunal

1. Subject to the relevant provisions of this Protocol, the Arbitral Tribunal shall establish its own rules of procedure.

2. The procedures shall assure a right to at least one hearing before the Arbitral Tribunal as well as the opportunity to provide initial and rebuttal written submissions.

3. The Arbitral Tribunal's hearings, deliberations and initial report, and all written submissions to and communications with the Arbitral Tribunal, shall be confidential.

4. The Arbitral Tribunal may invite any Member State to submit views orally or in writing.

5. The award of the Arbitral Tribunal shall be confined to the subject-matter of the dispute and shall state the reasons on which it is based.

6. Where the parties cannot agree on the interpretation or implementation of the award, either party may apply to the Arbitral Tribunal for a ruling within thirty days of the award. The term of the Arbitral Tribunal shall come to an end unless an application for a ruling has been received, in which case it shall continue for such reasonable time, not exceeding thirty days, as may be required to make the ruling.

7. Decisions of the Arbitral Tribunal shall be taken by a majority vote of its members and shall be final and binding on the Member States parties to the dispute.

ARTICLE XXV

Insert new Article to read as follows:

Article 10(d)
Third Party Intervention

A Member State which is not a party to a dispute, on delivery of a notification to the parties to a dispute and to the Secretary-General, shall be entitled to attend all hearings and to receive written submissions of the parties to a dispute and may be permitted to make oral or written submissions to the Arbitral Tribunal.

ARTICLE XXVI

Insert new Article to read as follows:

Article 10(e)
Additional Information from Experts

Where proceedings have commenced, the Arbitral Tribunal may, on its own initiative or on the request of a party to the dispute, seek information and technical advice from any expert or body that it considers appropriate, provided that the parties to the dispute so agree and subject to such terms and conditions as the parties may agree.

ARTICLE XXVII

Insert new Article to read as follows:

Article 10(f)
Expenses of Arbitral Tribunal

1. The expenses of the Arbitral Tribunal, including the fees and subsistence allowances of arbitrators and experts engaged for the purposes of a dispute, shall be borne equally by the Member States parties to the dispute unless the Arbitral Tribunal, taking into account the circumstances of the case, otherwise determines.

2. Where a third party intervenes in the proceedings, the party shall bear the costs associated with the intervention.

PART FIVE
JUDICIAL SETTLEMENT

ARTICLE XXVIII

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

Article 11
Jurisdiction of the Court

The Court shall have compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Treaty.

ARTICLE XXIX

Insert new Article to read as follows:

Article 12
Jurisdiction of the Court in Contentious Proceedings

1. Subject to the Treaty, the Court shall have exclusive jurisdiction to hear and deliver judgment on:

(a) disputes between Member States parties to the Agreement;

(b) disputes between Member States parties to the Agreement and the Community;

(c) referrals from national courts of Member States parties to the Agreement;

(d) applications by persons in accordance with Article XLI, concerning the interpretation and application of the Treaty.

2. For the purpose of this Part, "national courts" includes the Eastern Caribbean Supreme Court.

ARTICLE XXX

Insert new Article to read as follows:

Article 12(a)
Advisory Opinions of the Court

1. The Court shall have exclusive jurisdiction to deliver advisory opinions concerning the interpretation and application of the Treaty.

2. Advisory opinions shall be delivered only at the request of Member States parties to a dispute or the Community.

ARTICLE XXXI

Replace Article 12 of the Caribbean Common Market Annex with the following:

Article 12(b)
Institution of Proceedings

Any party to a dispute may institute proceedings in accordance with the Rules of Court (Original Jurisdiction).

ARTICLE XXXII

Insert new Article to read as follows:

Article 12(c)
Referral to the Court

Where a national court or tribunal of a Member State is seised of an issue whose resolution involves a question concerning the interpretation or application of the Treaty, the court or tribunal concerned shall, if it considers that a decision on the question is necessary to enable it to deliver judgment, refer the question to the Court for determination before delivering judgment.

ARTICLE XXXIII

Insert new Article to read as follows:

Article 12(d)
Compliance with Judgments of the Court

Member States, Organs, Bodies of the Community or persons to whom a judgment of the Court applies, shall comply with that judgment promptly.

ARTICLE XXXIV

Insert new Article to read as follows:

Article 12(e)
Establishment of a Division for the Original
Jurisdiction of the Court

The Division established under Part II, Article IX(e) of the Agreement, may exercise the original jurisdiction of the Court.

ARTICLE XXXV

Insert new Article to read as follows:

Article 12(f)
Compulsory Jurisdiction of the Court

1. Member States agree that they recognise as compulsory, ipso facto and without special agreement, the original jurisdiction of the Court provided for in Article XXVIII.

2. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be determined by decision of the Court

ARTICLE XXXVI

Insert new Article to read as follows:

Article 12(g)
Law to be Applied by the Court in the Exercise
of its Original Jurisdiction

1. The Court, in exercising its original jurisdiction under Article XXVIII, shall apply such rules of international law as may be applicable.

2. The Court may not bring in a finding of non liquet on the ground of silence or obscurity of the law.

3. The provisions of paragraphs 1 and 2 shall not prejudice the power of the Court to decide a dispute ex aequo et bono if the parties so agree.

ARTICLE XXXVII

Insert new Article to read as follows:

Article 12(h)
Application for Interim Measures

The Court shall have the power to indicate, if it considers the circumstances so require, any interim measures that ought to be taken to preserve the rights of either party.

ARTICLE XXXVIII

Insert new Article to read as follows:

Article 12(i)
Revision of Judgments of the Court in the
Exercise of its Original Jurisdiction

1. An application for the revision of a judgment of the Court in the exercise of its original jurisdiction may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and to the party claiming revision: provided always that such ignorance was not due to negligence on the part of the applicant.

2. Proceedings for a revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognising that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.

3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.

4. The application for revision must be made within six months of the discovery of the new fact.

5. No application for revision may be made after the lapse of five years from the date of the judgment.

ARTICLE XXXIX

Insert new Article to read as follows:

Article 12(j)
Rules of Court Governing Original Jurisdiction

The Rules of Court established by the President of the Court in accordance with Article IX(k) of the Agreement shall apply in the exercise of the original jurisdiction of the Court.

ARTICLE XL

Insert new Article to read as follows:

Article 12(k)
Judgment of the Court to Constitute Stare Decisis

Judgments of the Court shall constitute legally binding precedents for parties in proceedings before the Court unless such judgments have been revised in accordance with Article XXXVIII.

ARTICLE XLI

Insert new Article to read as follows:

Article 12(l)
Locus Standi of Private Entities

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 the Treaty intended that a right or benefit conferred by or under the 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 sub-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.

ARTICLE XLII

Replace Article 4 of the Caribbean Common Market Annex with the following:

Article 12(m)
Alternative Disputes Settlement

1. Member States shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other modes of alternative disputes settlement for the settlement of private commercial disputes among Community nationals as well as among Community nationals and nationals of third States.

2. To this end each Member State shall provide appropriate procedures in its legislation to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes.

3. A Member State which has implemented the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Arbitration Rules of the United Nations Commission on International Trade Law shall be deemed to be in compliance with the provisions of paragraph 2 of this Article.

ARTICLE XLIII

Insert new Article to read as follows:

Article 12(n)
General Undertaking

Member States undertake to employ their best endeavours to complete the constitutional and legislative procedures required for their participation in the regime establishing the Court as soon as possible.

ARTICLE XLIV

Insert new Article to read as follows:

Article 12(o)
Provisional Application

1. A Member State may, upon the signing of this Protocol or at any later date before it enters into force, declare its intention to apply it provisionally.

2. Upon such declaration by all Member States, the provisions of this Protocol shall be applied provisionally pending its entry into force in accordance with Article XLVIII.

ARTICLE XLV
Signature

This Protocol shall be open for signature by the Member States on the day of 2000.

ARTICLE XLVI
Ratification

This Protocol shall be subject to ratification by signatory States in accordance with their respective constitutional procedures. Instruments of ratification shall be deposited with the Secretariat which shall transmit certified copies to the Government of each Member State.

ARTICLE XLVII
Accession

Any Member State other than a signatory State may accede to this Protocol. An Instrument of Accession shall take effect on the date on which the Instrument is deposited with the Secretariat of the Community.

ARTICLE XLVIII
Entry Into Force

This Protocol shall enter into force one month after the date on which the last Instrument of Ratification is deposited with the Secretariat.

IN WITNESS WHEREOF the undersigned duly authorised in that behalf by their respective Governments have executed this Protocol.

DONE at__________________________ on the_____________day of _______________2000.

Signed by
for the Government of Antigua and Barbuda on the day of 2000 at

Signed by
for the Government of Barbados on the Day of 2000 at

Signed by
for the Government of Belize on the Day of 2000 at

Signed by
for the Government of the Commonwealth of Dominica on the day of 2000 at

Signed by
for the Government of Grenada on the day of 2000 at

Signed by
for the Government of the Co-operative Republic of Guyana on the day of 2000 at

Signed by
for the Government of Jamaica on the day of 2000 at

Signed by
for the Government of Montserrat on the day of 2000 at

Signed by
for the Government of St. Kitts and Nevis on the day of 2000 at

Signed by
for the Government of Saint Lucia on the day of 2000 at

Signed by
for the Government of St. Vincent and the Grenadines on the day of 2000 at

Signed by
for the Government of The Republic of Suriname on the day of 2000 at

Signed by
for the Government of The Republic of Trinidad and Tobago on the day of 2000 at

DECLARATION

The representatives of the undermentioned Governments hereby declare their intention to apply provisionally the provisions of Protocol IX:

Signed by
for the Government of Antigua and Barbuda on the day of 2000 at

Signed by
for the Government of Barbados on the day of 2000 at

Signed by
for the Government of Belize on the day of 2000 at

Signed by
for the Government of The Commonwealth of Dominica on the day of 2000 at

Signed by
for the Government of Grenada on the day of 2000 at

Signed by
for the Government of The Co-operative Republic of Guyana on the day of 2000 at

Signed by
for the Government of Jamaica on the day of 2000 at

Signed by
for the Government of Montserrat on the day of 2000 at

Signed by the Government of St. Kitts and Nevis on the day of 2000 at

Signed by the Government of Saint Lucia on the day of 2000 at

Signed by the Government of St. Vincent and the Grenadines on the day of 2000 at

Signed by
the Government of The Republic of Suriname on the day of 2000 at

Signed by
the Government of The Republic of Trinidad and Tobago on the day of 2000 at