Rethinking the CARICOM Dispute Settlement Mechanism

in Global Journal of Comparative Law
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This article examines the progress of the CARICOM dispute settlement mechanism from its originally diplomatic procedures to its enhanced legalistic system. A standing judicial institution in CARICOM is a coming of age for this region, and its jurisprudence is now referred to as CARICOM law. These significant legal advances raise many normative questions about the adequacy of the dispute settlement institutions and whether the rules and processes are clearly defined to enable nascent CARICOM law to be the primary tool by which there can be effective regulation of CARICOM integration. In order to answer these questions, this article reviews some of the theories on dispute settlement and also draws on the experiences of similar regional bodies, and concludes that a combination of ideas and mechanisms of dispute resolution is more suited to the Caribbean situation than a uni-lineal or a transplanted regime.

Rethinking the CARICOM Dispute Settlement Mechanism

in Global Journal of Comparative Law

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References

16

 See William J. Davey‘The WTO Dispute Settlement System’Journal of International Economic Law 15(3) (2000). Davey makes this point in respect of the WTO.

27

Original Treaty 1973.

32

Opened for signature 30 October 194755 UNTS 187 (entered into force provisionally 1 January 1948) (‘GATT 1947’). The original GATT acted as a check on governmental interference in international trade in goods in that it aimed to limit the barriers to trade available to domestic governments. Further the GATT was focused on promoting non-discrimination and where a domestic industry was deserving of protection it advocated the use of tariffs instead of quantitative restrictions. The GATT agreement did not demand the establishment of free trade but it operated in such a way as to create a framework for the reciprocal negotiated reduction of tariffs over time. The GATT agreement was replete with exemptions that were gradually incorporated into it.

36

From as early as 1947at a Meeting of West Indian Governors the call for a West Indian Court of Appeal was made. However April 1970 at the Sixth Meeting of the Heads of Government of the Caribbean Community in Kingston Jamaica is said to mark the time when Caribbean Community leaders were actively agitating for their own Caribbean Court.

43

David Simmons‘The Caribbean Court of Justice: A Unique Institution of Caribbean Creativity’Nova Law Review 29(2) (2005) 169 at 178.

54

James McCall Smith‘The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts’International Organization 54(1) (2000) 137.

73

Miles Kahler‘Conclusion: The Causes and Consequences of Legalization’International Organization 54(3) (2000) 661.

80

Louis HenkinHow Nations Behave (2nd edn, New York: Columbia University Press1979) 47.

87

Kyle Danish‘Book Review: The New Sovereignty: Compliance with International Regulatory Agreements. By Abram Chayes and Antonia Handler Chayes’Virginia Journal of International Law 37 (1996–1997) 790.

89

Jonas Tallberg‘Paths to Compliance: Enforcement, Management and the European Union’International Organization 56(3) (2002) 609.

105

Eric Posner and John C. Yoo‘Judicial Independence in International Tribunals’California Law Review 93(1) (2005) 3.

136

Smith‘The Politics of Dispute Settlement Design’ (n 54) at 141. See also Martin Lukas, ‘The Role of Private Parties in the Enforcement of the Uruguay Round Agreements’Journal of World Trade 29(5) (1995) 181.

152

Courtney Foster‘The Caribbean Commission: Nurturing its Establishment Today for the Growth of CARICOM’s Tomorrow’University of the West Indies Student Law Review (2008) 70.

155

Debra P. Steger‘WTO Dispute Settlement: Revitalization of Multilateralism after the Uruguay Round’Leiden Journal of International Law 9 (1996) 319.

165

Francis Snyder‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’Modern Law Review 55 (1993) 30.

174

European Commission 2001cited in Tallberg ‘Paths to Compliance’ (n 89) at 633.

179

C. Morgan and A. Miers‘When Threats Succeed: A Formal Model of the Threat and Use of Economic Sanctions’, 95th Annual Meeting of the American Political Science Association, Atlanta, Georgia, cited in Stine Andersen, ‘A Durable Procedural Framework for Imposing Pecuniary Sanctions on States’ (n 166) at 8. See generally Dean Lacy and Emerson M.S. Niou, ‘A Theory of Economic Sanctions and Issue Linkage: The Roles of Preferences, Information, and Threats’Journal of Politics 66(1) (2004) 25. Lacy and Niou write that ‘Sanctions that are likely to succeed will do so at the mere threat of sanctions’ and that ‘despite the unlikely success of sanctions coercers must sometimes impose sanctions even after the threat of sanctions has failed to change the target’s behaviour’.

185

Frederick Abbott‘NAFTA and the Legalization of World Politics: A Case Study’International Organization 54(3) (2000) 519 cited in Tallberg ‘Paths to Compliance’ (n 89) at 638.

186

John JacksonThe World Trade Organization: Constitution and Jurisprudence (London: Royal Institute of International Affairs1998) at 78 quoted in Jonas Tallberg (n 89) at 638.

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