The Organization of Commonwealth Caribbean Bar Associations
RESOLVES to call on governments of Caribbean countries to acknowledge that:-
(1) Privatisation of social and economic infrastructure has potential for harm as well as good;
(2) Privatisation of social and economic infrastructure must reflect and serve ongoing and changing needs of society;
(3) Parliamentary scrutiny of privatisation of social and economic infrastructure proposals after proper and adequate community consultation is the preferred option;
(4) Privatisation of social and economic infrastructure are desirable only where, after proper investigation and community consultation, clear ongoing and maintainable benefits to society and its changing needs can be demonstrated;
(5) Legislative measures for the privatisation of social and economic infrastructure should seek to ensure
– transparency
– accounting for the proceeds of privatisation
– community consultation and acceptance
– promulgation of ongoing performance and cost standards
– adoption of fair and equitable access pricing regimes for privatised services and utilities;
(6) Introduction of competition should be considered a prerequisite for successful privatisation;
(7) A sale is not always the best option and that a franchise or licence is an option for maintenance of standards of quality and privacy;
(8) There is in privatisation of social and economic infrastructure a need for adequate and ongoing performance measurement and regulation (including price).
Adopted unanimously by the 4th OCCBA Conference on 24th May, 2001, Radisson Cable Beach Resort and Convention Centre, Nassau, Bahamas.
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OCCBARes.2/2001, May 24, 2001
Nassau Declaration on Financial Services
The Organization of Commonwealth Caribbean Bar Associations (OCCBA),
(a) Considering that the position of the Organization for Economic Co-operation and Development (OECD) and like-minded organizations does not respect Rule of Law, sovereignty, noninterference in internal affairs, and the presumption of innocence;
(b) Recognizing that money laundering should be unlinked from tax competition;
(c) Believing that the policy of the OECD and like-minded organizations is economic terrorism against international financial centres and that the fiscal sovereignty of all countries should be respected;
(d) Believing that the OECD countries should apply to themselves the same rules they seek to impose upon the international financial centres and establish a level playing field;
(e) Noting that as a cartel, the OECD position undermines sound business and economic principles – the principles of comparative advantage, free competition and trade in services, economic development and economic diversification – preys on the vulnerability of small countries, and promotes protectionism;
(f) Suggesting that it is not in the self-interest of the countries of the North to destroy the financial sectors and economic prospects of these countries, and that such a policy is in any event contrary to international law;
Resolves That:
1. No country or economic of political group should dictate the tax system of another country economic or political grouping.
2. The International financial centres should be removed from the blacklist and the policy of shaming countries should be discontinued.
3. The policy of the OECD and like minded organizations of imposing so-called defensive measures which are in fact offensive should be discarded.
4. The OECD and like-minded organizations should desist from using threats such as the threat of blocking and excluding transactions from international financial centres from financial and securities markets and clearing and settlement systems in the United States of America and other countries and the United States and other countries should treat that threat with the contempt that is deserves.
5. That OCCBA should review this matter on ongoing basis including at its special meeting in September 2001.
6. This resolution should be known as “Nassau Declaration on Financial Services”.
Adopted unanimously by the 4th OCCBA Conference, on 24th May, 2001, Radisson Cable Beach Resort and Convention Centre, Nassau, Bahamas.
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OCCBARes.1/2002, September 7, 2002
Resolution on Tax Information Exchange
Agreements (TIEAs)
Whereas, the Organization for Economic Cooperation and Development (“OECD”) has pressured 31 non-member countries and territories, many of which are located in the Caribbean, into signing commitment letters under which they have agreed to provide tax information to OECD member countries; and
Whereas, the United States of America (“US”), one of the 30 member countries of the OECD, has already signed Tax Information Exchange Agreements (“TIEAs”) with 20 non-OECD countries and territories and it is currently seeking TIEAs with several other Caribbean countries and territories (“Caribbean countries”); and
Whereas, the US increased its statutory withholding tax on savings income such as dividends, interest and royalties from 12½% to 30% sixty years ago, in 1942, as a “temporary wartime measure”; and
Whereas, the US never reduced its statutory withholding tax rate after the end of World War II because the US Treasury found that its high statutory withholding tax on savings income encouraged other countries to enter into income tax treaties with the US; and
Whereas, the US had income tax treaties in force with 15 Caribbean countries (Anguilla, Antigua and Barbuda, Aruba, Barbados, Belize, the British Virgin Islands, Dominica, Grenada, Jamaica, Montserrat, the Netherlands Antilles, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and Trinidad and Tobago) until the US unilaterally canceled most of these treaties during the 1980s; and
Whereas, the income tax treaties between the US and these Caribbean countries provided for the exchange of tax information and also provided tax benefits that included reduced withholding taxes on US savings income derived by residents of these Caribbean countries; and
Whereas, the US currently has income tax treaties in force with more than 60 countries, virtually all of which provide for substantial reductions in the withholding tax on US savings income derived by residents of the other treaty country, generally to rates of 15% or less, but the only Caribbean countries with which the US now has income tax treaties are Barbados, Jamaica and Trinidad and Tobago; and
Whereas, Commentaries 5 and 6 on Article 10 of the current OECD Model Tax Convention on Income and on Capital state that as a general rule the taxation of dividends exclusively by the source country is not acceptable and that the taxation of such income exclusively in the beneficiary’s residence country is not feasible, and Commentary 13 on that article suggests that a 15% rate for source-country tax on portfolio dividends is a maximum rate; and
Whereas, the OECD model income tax treaty and its commentaries suggest even lower source-country tax rates on interest and royalties; and
Whereas, individual residents of those Caribbean countries that no longer have an income tax treaty with the US currently pay 30% income tax on their US savings income all of which is retained by the source country (the US) and none of which goes to the residence country; and
Whereas, the European Union (EU) proposed revised savings directive that has been approved by all 15 EU member countries, all of which are also member countries of the OECD, requires Austria, Belgium and Luxembourg to levy a 15% (increasing to 20%) withholding tax on savings interest paid to residents of other EU countries and to transfer 75% of the withheld tax to the country of residence of the beneficial owner of the interest by way of revenue sharing; and
Whereas, the US Caribbean Basin Initiative (CBI) legislation originally enacted in 1983 and subsequently amended authorises the US Treasury to give limited tax benefits to qualified Caribbean countries that enter into TIEAs with the US, and the US Treasury has signed several TIEAs with Caribbean countries that provide up to three such benefits – convention expense deductions for Americans attending business conventions, domiciles for foreign sales corporations, and investment funds from Puerto Rico under a twin-plant program; and
Whereas, the convention expense deduction is of limited value to some of the smaller Caribbean countries and the other two benefits are no longer operative for any country as a result of action by the WTO and the US Congress; and
Whereas, although most US TIEAs provide for the reciprocal exchange of tax information by both the US and the Caribbean country, the right to obtain such information is generally of considerable value to the US and of little or no value to the Caribbean country; and
Whereas, the OECD published its model TIEA in April 2002 in two alternative versions, a multilateral version intended to be accepted by multiple jurisdictions without modification and a bilateral version that can be modified or supplemented;
NOW, THEREFORE, IT IS RESOLVED that the Organization of Commonwealth Caribbean Bar Associations (OCCBA) makes the following recommendation to the governments of Caribbean countries that are requested to sign TIEAs with the US and other OECD countries:
Caribbean countries signing TIEAs with the US should receive the convention expense deduction and other meaningful tax benefits including reduced withholding taxes on payments of dividends, interest and royalties to bona fide individual residents of these Caribbean countries (from 30% to 15%, for example) coupled with revenue sharing of the withheld taxes similar to that contained in the EU proposed revised savings directive.
Adopted unanimously by the OCCBA Conference, Frigate Bay Resort, Frigate Bay, St. Kitts and Nevis, on 7 September 2002.
Note: This Resolution complements, and should be read together with, the Nassau Declaration on Financial Services adopted by OCCBA on May 24, 2001.
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OCCBARes.2/2002, September 7, 2002
St. Kitts and Nevis Declaration on Access to Justice
The Organization of Commonwealth Caribbean Bar Associations
(a) Affirming the critical importance of improving access to justice in our societies and throughout the world,
(b) Realizing that there ought to be equal access to justice for all persons, but that far too many persons appear in the courts in serious criminal and civil matters without legal representation,
(c) Recalling the detailed consideration of the subject of access to justice in all its dimensions given at the OCCBA conferences in Nassau in May 2001, Port of Spain in September 2001, and Belize in January 2002,
(d) Noting that some governments of the region still have no or no effective arrangements for legal aid, and that other regional governments do not give legal aid sufficient priority, funding or scope,
(e) Reaffirming its commitment to pro bono work and to encouraging and carrying out projects to improve access to justice, including the current OCCBA Access to Justice Project, which consists of finding for needy legal aid clinics around the region, the computers, software, judgment databases, training and web pages or links on a proposed OCCBA web site, necessary for better administration and public education,
(f) Appreciating the financial contribution made by the Educational Trust of the International Bar Association (IBA) to the OCCBA Access to Justice Project and the need to redouble our efforts to collect funding to bring it to fruition,
(g) Recognizing the work done to date on the establishment of the International Legal Assistance Consortium (ILAC) to provide post conflict assessments of the requirements to restore the rule of law,
Resolves That:
1. It is unacceptable for any government to have no legal aid system at all;
2. It is also unacceptable for governments to limit legal aid only to capital cases, and not to recognize as far as practicable the accused’s right to counsel of his choice;
3. Legal aid at the minimum should be extended to all serious criminal offences and all civil cases involving child abuse, child neglect, child support, custody of children, domestic violence, constitutional redress, judicial review or claiming relief from or compensation for governmental or official abuse of power.
4. Governments are requested to update and modernize their legislation accordingly as a matter of the highest priority;
5. The courts are encouraged to support this initiative and, before initiating any hearings, to send unrepresented litigants to the legal aid clinics for representation;
6. OCCBA formally reaffirms the decision taken at its Belize meeting to establish the OCCBA Committee on Legal Aid, consisting of representatives of the legal aid clinics throughout the region participating in the OCCBA Access to Justice Project;
7. The Committee is asked to take steps to implement that Project in a timely and effective manner, to monitor the question of access to justice and to report thereon at the next meeting;
8. The Educational Trust of the IBA is given our profound thanks for its generous contribution to the OCCBA Access to Justice Project;
9. ILAC is congratulated on opening its headquarters in Stockholm, and is requested to direct its attention also at the earliest opportunity to peacetime technical assistance and funding for legal aid clinics and access to justice projects;
10. OCCBA should create a panel of lawyers who are willing to appear in cases where local conditions make it difficult for persons in need of representation to obtain that representation;
11. This resolution shall be known as the “St. Kitts and Nevis Declaration on Access to Justice.”
Adopted unanimously by the OCCBA Conference, Frigate Bay Resort, Frigate Bay, St. Kitts and Nevis, on 7 September 2002.
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Organization of Commonwealth Caribbean Bar Associations
Executive:
President – Dr. Peter D. Maynard Peter.Maynard@coralwave.com
Vice President – Algernon Symmonds, QC sgrlawaws@caribsurf.com
Vice President – Patrick Patterson pattview@caribsurf.com
Secretary – Rachel Culmer rachelculmer@hotmail.com
Treasurer – Courtney Abel abelc@anguillanet.com
Assistant Secretary (coopted) – anancy@cwjamaica.com
Contact:
OCCBA
c/o Bahamas Bar Association,
P.O. Box N-4632,
Nassau, Bahamas
Tel. (242) 326-3276
Fax. (242) 328-4615
E-mail. occba@hotmail.com or bba@batelnet.bs
