REGIONAL British American Insurance Co Ltd (BAICO) shareholders from Antigua and Barbuda and Grenada have lost their discrimination claim against Trinidad and Tobago over the 2009 bailout of CL Financial (CLF).
On October 22, CCJ President Justice Adrian Saunders and Justices Winston Anderson, Maureen Rajnauth-Lee, Andrew Burgess and Peter Jamadar dismissed their complaint of discriminatory practices by TT following the collapse of CL Financial.
Saunders delivered a summary of the court’s ruling, dismissing the BAICO policyholders’ claims.
The group’s members claimed TT discriminated against them when it decided to bailout CLF and its local subsidiaries Colonial Life Insurance Company (Trinidad) Ltd (Clico), Clico Investment Bank (CIB), and British American Insurance Company (Trinidad) Ltd (BAT).
The group alleged that while local policyholders were protected and essentially guaranteed their full investments, they could only recoup approximately 14 per cent through liquidating the regional subsidiary.
They contended that the action amounted to discrimination on the grounds of nationality and was in breach of Article 7 of the Revised Treaty of Chaguaramas (RTC).
They further contended that the action also breached Articles 36 and 184(1)(j) of the RTC, which deals with the cross-border provision of services and measures member states took to provide redress for regional consumers.
However, in March 2023, the judges dismissed part of the complaint while allowing the group to continue to pursue their argument of an alleged breach of Article 184(1)(j) (failure to promote the interests of consumers in the community) and Article 7.
In their ruling on October 22, summarised by the CCJ’s president, the “presumed failure to abide by Article 184 did not create liability for individual member states of the community.”
The summary further noted that allegations of breaches of Articles 7 and 184 both depended on whether the BAICO policyholders were consumers.
However, the CCJ held that since these issues were not fully argued, the court did not decide.
The court’s opinion also noted that Article 184, which required member states to provide “adequate and effective redress for consumers” could not be read in isolation from a broader legal context. Specifically, he said the language used specifically in Article 184 was not “always conducive to allocating state liability for breach” and it was not “permissible to pluck a single provision from the list to give it a special legal status.”
“It was therefore not the intention of the framers of the RTC to ascribe state liability in respect of a particular action by a state outside an agreed regional framework.”
On the BAICO policyholders’ claim that TT exercised emergency powers to prevent them from enforcing rights to CLF’s assets, the court noted arguments from Caricom’s legal counsel that legislation adopted by a member state did not apply extra-territorially.
“And, as noted by Caricom, the RTC does not contain language which obliges member states to prov
