BAICO policy holders score another victory

Claimants in the case between Ellis Richards Medical Benefits Board and others and the state of Trinidad and Tobago scored another victory on March 8 when the Caribbean Court of Justice (CCJ) upheld the claim that there was a breach of Article 184(1)(j) and Article 7 of the Revised Treaty of Chaguaramas (RTC).

The ruling makes way for the prosecution of the claim which the court is set to meet to begin hearing the matter on March 21, 2023. 

This is the most recent development in the claim made by British American Insurance Company Ltd (BAICO) policy holders who are non-nationals of Trinidad and Tobago, of which the latter is being accused of discriminating those said policy holders (non-nationals) in protecting the funds of some policy holders of CL Financial (CLF). 

Justice Winston Anderson read the summary of the judgment saying – ‘the court ordered that the Claimant’s claims with respect to breaches of Articles 36, 37, 38 and 7 (in so far is it relates to Chapter 3) be dismissed. The claim with respect to a breach of Article 184(1)(j) and Article 7 in so far as it is applicable may proceed.’

Article 184 of the RTC deals with the promotion of consumer interests in Caribbean Community, and Article 184(1)(j) ensures that the Member States promote the interests of consumers in the Community by appropriate measures that provide adequate and effective redress for consumers. 

During the case management stage, the claimants – nationals and institutions in Antigua and Barbuda, Grenada and St Vincent and the Grenadines and who were all policy holders of CL Financial subsidiary BAICO, alleged that the defendant (Trinidad and Tobago) carried out bailout measures to rescue CLF and CLICO, CLICO Investment Bank (CIB) and British American Insurance Company Trinidad (BAT) and that the same protection was not offered to the policyholders of BAICO.

It was argued that the Defendant, through its Central Bank, took steps to exclude them from the scope of its rescue of CLF and took steps to disadvantage them.

According to the summary contained in the judgment, ‘they claim that these actions amounted to discrimination on the ground of nationality in breach of Article 7 of the Revised Treaty of Chaguaramas.’
The Claimants invoked Articles 36, 37 and 38 of the RTC and Article 184(1)(j).

‘They further claim that the Defendant’s intervention came within the scope of the application of the RTC because if concerned the cross-border provision of services under Article 36 and a measure taken by a Members State to provide redress for consumers within the scope of Article 184(1)(j).’

In its defense, the Defendant contended that the facts and matters of the Claimants’ claims fell out with the RTC and consequently, the jurisdiction of the Court.

Based on the summary, ‘The Court considered that the Defendant’s actions, as presented in the Claimants’ pleadings, were not commercial in nature. There was no suggestion that either the Government of Trinidad and Tobago when making the relevant decisions, assuming control of CLICO and BAT and taking control of CLF’s assets in exchange for the liquidity support were doing so on a profit-making basis or for the purpose of participating and seeking superiority or supremacy.’

The CCJ further decided that the Court agreed that on the facts pleaded by the Claimants, the Defendant’s actions were to be considered ‘Activities in a Member State involving the exercise of governmental authority conducted neither on a commercial basis nor in competition with one of more enterprises’ as defined in Article 30(2) and 30(3) and that those actions fell outside the scope of application of Chapter 3 of the RTC and therefore outside the ambit of Article 7.’