Article 46: Movement of Skilled Community Nationals

  1.         Without prejudice to the rights recognised and agreed to be accorded by Member States in Articles 32, 33, 37, 38 and 40 among themselves and to Community nationals, Member States have agreed, and undertake as a first step towards achieving the goal set out in Article 45, to accord to the following categories of Community nationals the right to seek employment  in their jurisdictions:

(a)        University graduates; (b)        media workers;

(c)        sportspersons; (d)        artistes; and

(e)        musicians, recognised as such by the competent authorities of the receiving Member States.

 

  1.         Member States shall establish appropriate legislative, administrative and procedural arrangements to:

(a)        facilitate the movement of skills within the contemplation of this Article;

(b) provide  for  movement  of  Community  nationals  into  and  within  their jurisdictions without harassment or the imposition of impediments, including:

(i)         the elimination of the requirement for passports for Community nationals travelling to their jurisdictions;

(ii) the elimination of the requirement for work permits for Community nationals seeking approved employment in their jurisdictions;

(iii)        establishment  of  mechanisms  for  certifying  and establishing equivalency of degrees and for accrediting institutions;

(iv)       harmonisation and transferability of social security benefits.

  1.         Nothing in this Treaty shall be construed as inhibiting Member States from according Community nationals unrestricted access to, and movement within, their jurisdictions subject to such conditions as the public interest may require.
  1.         The Conference shall keep the provisions of this Article under review in order to:

(a) enlarge, as appropriate, the classes of persons entitled to move and work freely in the Community; and

(b)        monitor and secure compliance therewith.

Article 44: Measures to Facilitate Establishment, Provision of Services and Movement of Capital

  1.         In order to facilitate the exercise of the rights provided for in this Chapter,\COTED and COFAP shall, subject to the approval of the Conference, adopt appropriate measures for:

(a)        the establishment of market intelligence and information systems in the Community;

(b) harmonised legal and administrative requirements for the operation of partnerships, companies, or other entities;

(c) abolition of exchange controls in the Community, and free convertibility of the currencies of the Member States;

(d)        the establishment of an integrated capital market in the Community;

(e) convergence of macro-economic performance and policies through the co- ordination or harmonisation of monetary and fiscal policies, including, in particular, policies relating to interest rates, exchange rates, tax structures and national budgetary deficits;

(f) the establishment of economical and efficient land, sea and air transport services throughout the Community, and

(g)       the establishment of efficient communication services.

  1.         COFAP and COTED shall establish a comprehensive set of rules in respect of the areas listed in paragraph 1 of this Article for approval by the Conference.

Article 43: Restrictions to Safeguard Balance-of-Payments

  1.         In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Member State may, consistently with its international obligations and subject to paragraph 5 of this Article, adopt or maintain restrictions to address such difficulties.
  1.         The restrictions which may be adopted or maintained pursuant to paragraph 1 of this Article may include quantitative restrictions on imports,  restrictions on the right of establishment, restrictions on the right to provide services, restrictions on the right to move capital or on payments and transfers for transactions connected therewith. However, such restrictions:

(a)        shall, subject to the provisions of this Treaty, not discriminate among Member States or against Member States in favour of third States;

(b) shall at all times seek to minimise damage to the commercial, economic or financial interests of any other Member State;

(c) shall not exceed those necessary to deal with the circumstances described in paragraph 1 of this Article; and

(d) shall be temporary but in any event not longer than a period of eighteen (18) months and be phased out progressively as the situation described   in paragraph 1 improves.

  1.         In determining the incidence of such restrictions, the Member State concerned may accord priority to activities which are essential to its economic stability. Such restrictions shall not be adopted or maintained for the purpose of protecting a particular sector in contravention of the relevant provisions of this Treaty, due regard being paid in either case to any special factors which may be affecting the reserves of such Member State or its need for reserves.
  1.         Restrictions adopted or maintained pursuant to paragraph 1 of this Article, or any changes therein, shall be promptly notified within three (3) working days to COFAP and to COTED, and, in any event, the Member State concerned shall immediately consult with the competent Organ if and when requested.
  1.         COFAP shall establish procedures for periodic consultations including, where possible and desirable, prior consultations with the objective of making recommendations to the Member State concerned for the removal of the restrictions.
  1.         The consultations referred to in paragraph 5 of this Article shall:

(a) be designed to assist the Member State concerned to overcome its balance- of-payments and external financial difficulties;

(b) asess the balance-of-payments situation of the Member State concerned and the restrictions adopted or maintained under this Article, taking into account, inter alia:

(i) the nature and extent of the balance-of-payments and the external financial difficulties;

(ii) the external economic and trading environment of the Member State applying the restrictions; and

(iii)        alternative corrective measures which may be available.

 

  1.         The consultations shall address the compliance of any restrictions with paragraph 2 of this Article and, in particular, the progressive phase-out of restrictions in accordance with paragraph

2(d).

  1.         In such consultations, all findings of statistical and other facts presented by the Committee of Central Bank Governors relating to foreign exchange, monetary reserves and balance-of- payments, shall be accepted and conclusions shall be based on the assessment by the Committee of the balance-of-payments and the external financial situation of the Member State concerned.

 

Article 42: Co-ordination of Foreign Exchange Policies and Exchange of Information

  1.         The Member States shall take such measures as are necessary to coordinate their foreign exchange policies in respect of the movement of capital between them and third States.
  1.         The Member States shall keep the competent authorities in other Member States informed of significant unusual movements of capital within their knowledge to and from third States.

Article 41: Authorisation to Facilitate Movement of Capital

  1.         The Member States shall, where necessary and subject to paragraph 2 of this Article, grant the authorisations required for the movement of capital mentioned in Article 40  on a non- discriminatory basis.
  1.         A loan intended for State purposes may require prior notification to the State in which it is being issued or placed.

Article 40: Removal of Restrictions on Movement of Capital and Current Transactions

  1. The Member States shall, in order to ensure the proper functioning of the CSME, remove among themselves:

(a)        restrictions on the movement of capital payments;

(b)        restrictions on all current payments including payments for goods and services and other current transfers.

  1. COFAP, subject to the approval of the Conference, shall establish in collaboration with the Committee of Central Bank Governors a programme for the removal of the restrictions mentioned in paragraph 1 of this Article.
  2. For the purpose of this Article, capital and related payments and transfers include: (a) equity and portfolio investments;

(b)        short-term bank and credit transactions;

(c)        payment of interest on loans and amortization;

(d)        dividends and other income on investments after taxes;

(e)        repatriation of proceeds from the sale of assets; and

(f)         other transfers and payments relating to investment flows.

Article 39: Prohibition of New Restrictions on Movement of Capital and Current Transactions

The Member States shall not introduce any new restrictions on the movement of capital and payments connected with such movement and on current payments and transfers, nor render more restrictive existing regulations except as provided in Article 43 and Article 46

Article 38: Removal of Restrictions on Banking, Insurance and Other Financial Services

  1. Subject to the provisions of this Chapter, the Member States shall remove discriminatory restrictions on banking, insurance and other financial services.
  1. Subject to the approval of the Conference, COFAP, in consultation with other competent Organs of the Community, may exclude certain financial services from the operation of the provisions of this Article.

Article 37: Removal of Restrictions on Provision of Services

 

  1. Subject to the provisions of this Treaty, Member States shall abolish discriminatory restrictions on the provision of services within the Community in respect of Community nationals.
  1. Subject to the approval of the Conference, COTED, in consultation with other competent Organs, shall,   within one year from the entry into force of this Treaty, establish a programme for the removal of restrictions on the provision of such services in the Community by Community nationals.
  1. In establishing the programme mentioned in paragraph 2 of this Article, COTED shall:
    (a) accord priority to services which directly affect production costs or facilitate the trade in goods and services which generate foreign exchange earnings;

(b)        require  the  Member  States  to  remove  administrative  practices  and procedures, the maintenance of which impede the exercise of the right to provide services;

(c)        establish measures to ensure the abolition of restrictions on the right to provide services in  respect of  activities accorded priority treatment in accordance with sub-paragraph (a) of this paragraph, both in terms of conditions for the provision of services in the territories of Member States as well as the conditions governing the entry of personnel, including their spouses and immediate dependent family members, for the provision of services;

(d)        take appropriate measures to ensure close collaboration among competent national authorities in order to improve their knowledge of the conditions regarding relevant activities within the Community, and

(e)        require the Member States to ensure that nationals of one Member State have on a non-discriminatory basis, access to land, buildings and other property situated in the territory of another Member State for purposes directly related to the provision of services, bearing in mind the importance of agriculture for many national economies.

Article 36: Prohibition of New Restrictions on the Provision of Services

  1. The Member States shall not introduce any new restrictions on the provision of services in the Community by nationals of other Member States except as otherwise provided in this Treaty.
  1. Without prejudice to the provisions relating to the right of establishment, persons providing services may, in order to provide such services, temporarily engage in approved activities in the Member State where the services are to be provided under the same conditions enjoyed by nationals of that Member State.
  1. The Member States shall notify COTED of existing restrictions on the provision of services in respect of nationals of other Member States.
  1. For the purposes of this Chapter, “services” means services provided against remuneration other than wages in any approved sector and “the provision of services” means the supply of services:

(a)        from the territory of one Member State into the territory of another   Member  State;

(b)        in the territory of one Member State to the service consumer of another Member State;

(c)        by a service supplier of one Member State through commercial presence in the territory of another Member State; and

(d)        by a service supplier of one Member State through the presence of natural persons of a Member State in the territory of another Member State.

Article 35: Acceptance of Diplomas, Certificates, and other Evidence of Qualifications

  1. COHSOD, in  consultation with the competent Organ, shall establish common standards and measures for accreditation or when necessary for the mutual recognition of diplomas, certificates and other evidence of qualifications of the nationals of the Member States in order to facilitate  access  to,  and  engagement in,  employment and  non-wage-earning activities  in  the Community.
  1. The Member States shall establish or employ, as the case may be, appropriate mechanisms  to establish common standards to determine equivalency or accord accreditation to diplomas, certificates and other evidence of qualifications secured by nationals of other Member States.
  1. COHSOD shall also establish measures for the co-ordination of legislative and administrative requirements of the Member States for the participation of Community nationals in employment and for the conduct of non-wage-earning activities in the Community.

 

Article 34: Management of Removal of Restrictions on the Right of Establishment

In performing its tasks set out in Article 33, COTED shall, inter alia:

(a)        accord priority to the removal of restrictions on activities in respect of which the right of establishment encourages the development of:

(i)         the production of trade in goods;

(ii)        the provision of services,

which generate foreign exchange earnings;

(b)        require  the  Member  States  to  remove  administrative  practices  and procedures, the maintenance of which impede the exercise of the right of establishment;

(c)        require the Member States to remove all restrictions on the movement of managerial, technical and supervisory staff of economic enterprises and on establishing agencies, branches and subsidiaries of companies and other entities established in the Community;

(d)        establish measures to ensure the removal of restrictions on the right of establishment in respect of activities accorded priority treatment pursuant to paragraph (a) of this Article as they relate to:

(i)         the  establishment, in  the  territories  of  the  Member  States,  of agencies, branches or subsidiaries belonging to an economic enterprise; and

(ii)        the  conditions governing the  entry of  managerial, technical or supervisory personnel employed in such agencies, branches and subsidiaries, including the spouses and immediate dependent family members of such personnel;

(e)        take appropriate measures to ensure close collaboration among competent national authorities in order to improve their knowledge of the particular situation regarding the relevant activities within the Community;

(f)         require the Member States to ensure that nationals of one Member State may have access to land, buildings and other property situated in the territory of another Member State, other than for speculative purposes or for a purpose potentially destabilising to the economy, on a non-discriminatory basis, bearing in mind the importance of agriculture for many national economies;

(g)        ensure concordance in the Member States regarding the protection afforded the interests of partners, members and other persons with financial interests in companies and other entities.

Article 33: Removal of Restrictions on the Right of Establishment

  1. Subject to the provisions of Article 221 and Article 222, the Member States shall remove restrictions on the right of establishment of nationals of a Member State in the territory of another Member State.
  1. The removal of restrictions on the right of  establishment mentioned in paragraph

1 of this Article shall also apply to restrictions on the setting up of agencies, branches or subsidiaries by nationals of a Member State in the territory of another Member State.

  1. Subject to the approval of the Conference, COTED, in consultation with COHSOD and COFAP, shall, within one year from the entry into force of this Treaty, establish a programme providing for the removal of restrictions on the right of establishment of nationals of a Member State in the territory of another Member State. The programme shall, inter alia:

(a)        identify the activities in respect of which the right of establishment shall not apply;

(b)        establish the conditions under which the right of establishment is to be achieved; and

(c)        set out the conditions, stages and time-frames for the removal of restrictions on the right of establishment.

  1. The Community Council may authorise a Member State whose nationals have been aggrieved by the violation of obligations set out in this Article, Article 32, Article 36 and Article 37 to take such measures as may be provided for in this Treaty.

Article 32: Prohibition of New Restrictions on the Right of Establishment

  1.  The Member States shall not introduce in their territories any new restrictions relating to the right of establishment of nationals of other Member States save as otherwise provided in this Treaty.
  1. The Member States shall notify COTED of existing restrictions on the right of establishment in respect of nationals of other Member States.
  1. (1)  The right of establishment within the meaning of this Chapter shall include the right to:

(a)        engage  in  any  non-wage-earning  activities  of  a  commercial, industrial, agricultural, professional or artisanal nature;

(b)        create and manage economic enterprises referred to in paragraph

5(b) of this Article.

(2)        For the purposes of this Chapter “non-wage earning activities” means activities undertaken by self-employed persons.

  1. The Community Council may, with the approval of the Conference and upon the recommendation of COTED or COFAP, as the case may be, enlarge the body of rights provided in paragraph 3 of this Article.  The competent Organ shall establish basic criteria for Member States in order to safeguard against manipulation or abuse of such rights so as to gain an unfair advantage against other Member States, for example, in the areas of nationality criteria and in the operation of companies.
  1. For the purposes of this Chapter:

(a)        a person shall be regarded as a national of a Member State if such person – (i)            is a citizen of that State;

(ii)       has a connection with that State of a kind which entitles him to be regarded as belonging to or, if it be so expressed, as being a native or resident of the State for the purposes of the laws thereof relating to immigration; or

(iii)        is a company or other legal entity constituted in the Member State in conformity with the laws thereof and which that State regards as belonging to it, provided that such company or other legal entity has been formed for gainful purposes and has its registered office and central administration, and carries on substantial activity, within the Community and which is substantially owned and effectively controlled by persons mentioned in sub-paragraphs (i) and (ii) of this paragraph;

(b)        “economic enterprises” includes any type of organisation for the production of or trade in goods or the provision of services (other than a non-profit organisation) owned or controlled by any person or entity mentioned in sub- paragraph (a) of this paragraph;

(c)        a company or other legal entity is:

(i)         substantially owned if more than 50 per cent of the equity interest therein is beneficially owned by nationals mentioned in sub- paragraph (a) (i) or (ii) of this paragraph;

(ii)        effectively controlled if nationals mentioned in sub-paragraph (a) of this paragraph have the power to name a majority of its directors or otherwise legally to direct its actions.

Article 31: Treatment of Monopolies

  1. The Member States may determine that the public interest requires the exclusion or restriction of the right of establishment in any industry or in a particular sector of an industry.
  1. Where such a determination has been made:

(a)        if  the  determination results  in  the  continuation  or  establishment of  a government monopoly, the Member State shall adopt appropriate measures to ensure that the monopoly does not discriminate between nationals of Member States, save as otherwise provided in this Treaty, and is subject to the agreed rules of competition established  for   Community  economic enterprises;

(b)        if the determination results in the continuation or establishment of a private sector monopoly, the Member State shall, subject to the provisions of  this Treaty, adopt appropriate measures to ensure that national treatment is accorded to nationals of other Member States in terms of participating in its operations.

Article 14: The Council for Finance and Planning

  1.  The Council for Finance and Planning shall consist of Ministers designated by the Member States.  Each Member State shall be entitled to designate alternates to represent it on COFAP.
  1. Subject  to  the  relevant  provisions  of  Article  12,  COFAP  shall  have primary responsibility  for economic policy co-ordination and financial and monetary integration of Member States and, without prejudice to the generality of the foregoing, shall:

(a)        establish and promote measures for the co-ordination and convergence of national macro-economic policies of the Member States and for the execution of a harmonised policy on foreign investment;

(b)        promote and facilitate the adoption of measures for fiscal and monetary co- operation among the Member States, including the establishment of mechanisms for payment arrangements;

(c)        recommend measures to achieve and maintain fiscal discipline by the

Governments of the Member States;

(d)        pending  the  establishment  of  a  monetary  union  in  the  Community, recommend arrangements for the free convertibility of the currencies of the Member States on a reciprocal basis;

(e)        promote  the  establishment  and  integration  of  capital  markets  in  the

Community, and

(f)         undertake any additional functions remitted to it by the Conference arising under this Treaty.

 

  1. Under the direction of COFAP, the Committee of Central Bank Governors shall assist in the performance of the functions mentioned in paragraph 2 of this Article.

Article 1: Use of Terms

In this Treaty, unless the context otherwise requires:

“Agreement” means the Agreement Establishing the Caribbean Court of Justice; “anti-competitive business conduct” has the meaning assigned to it in Article 173; “Budget Committee” means the Body of the Community established by paragraph

1 of Article 18;

“business” means any activity carried on for gain or reward or in the course of which goods or services are produced, manufactured or supplied as the case may be;

“Commission” means the Competition Commission established by Article 167;

“Committee of Central Bank Governors” means the Body of the Community referred to in paragraph 2 of Article 18;

“Community” means the Caribbean Community established by Article 2 and includes the CSME established by the provisions of this Treaty;

“Community Council of  Ministers” or “the Community Council” means  the

Organ of the Community so named in paragraph 1(b) of Article 10;

“Community origin” means origin which complies with the Rules of Origin set out in Article 78;

“Community treatment” means the access accorded to goods which are of Community origin to the markets of Member States without the application of import duties or quantitative restrictions;

“competent authority” means the authority legally authorised to perform a function and for the purpose of Chapter Five means the Minister of Government so designated by a Member State;

“Conference of Heads of Government” or “the Conference” means the Organ so named in paragraph 1(a) of Article 10;

“Contracting Party” means a party to the Agreement;

“Council for Human and Social Development” or “COHSOD” means the Organ of the Community so named in paragraph 2 of Article 10;

“Council for Finance and Planning” or “COFAP” means the Organ of the

Community so named in paragraph 2(a) of Article 10;

“Council for Foreign and Community Relations” or “COFCOR” means the Organ

so named in paragraph 2(c) of Article 10;

“Council for Trade and Economic Development” or “COTED” means the Organ of the Community so named in paragraph 2(b) of Article 10;

“Court” means the Caribbean Court of Justice established by the Agreement;

“the CSME” means the regime established by the provisions of this Treaty replacing Chapters Three through Seven of the Annex to the Treaty Establishing the Caribbean Community and Common Market signed at Chaguaramas on 4 July 1973;

“disadvantaged countries” means:

(a)        the Less Developed Countries within the meaning of Article 4; or

 

(b)        Member States that may require special support measures of a transitional or temporary nature by reason of:

 

(i)         impairment of resources resulting from natural disasters; or

 

(ii)        the  adverse  impact  of  the  operation  of  the  CSME  on  their economies; or

 

(iii)        temporary low levels of economic development; or

 

(iv)       being a Highly-Indebted Poor Country designated as such by the competent inter-governmental organisation;

 

“disadvantaged regions” means:

(a)        regions within Member States experiencing economic dislocation from the operation of the CSME; or

(b)        regions that may require special support measures of a transitional or temporary nature by reason of:

(i)         impairment of resources resulting from natural disasters; or

(ii)        temporary low levels of economic development;

“disadvantaged sectors” means:

(a)        sectors of the economies of Member States in which economic enterprises experience dislocation from the operation of the CSME; or

(b)        sectors that may require special support measures of a transitional or temporary nature by reason of natural disasters, whereby the loss in the sector causes social and economic disorder;

“dispute” means a dispute within the meaning of Article 183;

“economic enterprises” means  economic enterprises within  the  meaning  of paragraph 5(b) of Article 32;

“enterprise” means any person or type of organisation, other than a non-profit

organisation, involved in the production of or the trade in goods, or the provision of services;

“goods” means all kinds of property other than real property, money, securities or choses in action;

“import duties” means any tax or surtax of customs and any other charges of equivalent effect whether fiscal, monetary or exchange, which are levied on imports except those notified under Article 85 and other charges which fall within that Article;

“Legal Affairs Committee” means the Body established by paragraph 1 of Article

18;

“Member State” means a Member State of the Community excluding an Associate

Member within the meaning of Article 231;

“Ministerial Councils” means COFAP, COFCOR, COHSOD and COTED; “national” means a national within the meaning of paragraph 5(a) of Article 32; “President” means the President of the Court;

“recommended practice” means any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is regionally or generally recognised in the international community as desirable for the efficient delivery of transport services;

“rules of competition” includes the rules set out in sub-paragraph (a)(i) of paragraph

1 of Article 166 and Articles 176, 177, 178 and 179;

“Secretariat” means the Secretariat of the Community referred to in Article 23;

“Secretary-General” means the Secretary-General of the Community;

“services” means services provided against remuneration other than wages in an approved sector and “the provision of services” means the supply of services:

 

(a)        from the territory of one Member State into the territory of another Member

State;

 

(b)        in the territory of one Member State to a service consumer of another

Member State;

 

(c)        by a service supplier of one Member State through commercial presence in the territory of another Member State; and

 

(d)        by a service supplier of one Member State through the presence of natural persons of a Member State in the territory of another Member State;

 

“standard” means any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is regionally or generally recognised in the international community as necessary for the efficient delivery of transport services;

 

“subsidies” includes the subsidies set out in Schedule V and shall apply only in relation to goods;

 

“trade” includes any business, industry, profession or occupation relating to the supply or acquisition of goods or services;

 

“WTO Agreement” means the Agreement establishing the World Trade Organisation done at Marrakesh on 15 April 1994.