Monitoring the implementation and results of the Cariforum-EU EPA. Annex A, Background technical report.
Date: 2015-10-27
Institutions: Directorate-General for Trade and Economic Security
Subjects: ACP countries, ACP-EU relationship, EU Member State, EU competition policy, EU relations, competition policy, economic relations, public contract, report, sustainable development, trade policy, trade relations

EUROPEAID/129783/C/SER/multi
Lot 1: Studies and technical assistance in all sectors
2013/325520

Monitoring the implementation and results
of the Cariforum-EU EPA

Annex A: Background technical report
August 2014

This project is funded by 
the European Union

Project Implemented 
by B&S Europe and LINPICO

Trade

EUROPEAID/129783/C/SER/multi
Lot 1: Studies and technical assistance in all sectors

2013/325520

Monitoring the implementation and results
of the Cariforum-EU EPA

Annex A:
Background technical report
August 2014

Prepared by
Keisha-Ann Thompson: Services specialist

This project is funded by 
the European Union

Project Implemented 
by B&S Europe and LINPICO

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Luxembourg: Publications Office of the European Union, 2014

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Monitoring the implementation & results of the Cariforum-EU EPA | 3

Acknowledgements

The author wishes to express thanks for the support and comments from other team members: 
Ranjit Singh (team leader), Sacha Silva and Paul Hare; in addition, the team appreciates the 
technical  advice  on  regulatory  issues  supplied  by  Pierre  Sauvé  and  Natasha  Ward,  as  well 
as  the  resources  provided  by  the  World  Bank’s  Regulatory  Assessment  Toolkit:  A  Practical 
Methodology For Assessing Regulation on Trade and Investment in Services.

This  version  of  the  technical  report  has  also  benefited  from  extensive  commentary  on 
the  team’s  draft  final  report  provided  by  DG-Trade  and  CARIFORUM.  These  comments  are 
much  appreciated.  The  project  team  bears  full  responsibility  for  any  remaining  errors  or 
misunderstandings.

Keisha-Ann Thompson
Services specialist

Monitoring the implementation & results of the Cariforum-EU EPA | 5

Contents

Acknowledgements 

Contents 

List of tables 

List of figures 

List of abbreviations 

1.  Introduction 

2.  Overview of regulatory issues 
2.1.  Services Trade Restrictiveness 
2.2.  Regulatory Capacity 

3.  Investment in non-nervices sectors 

3.1.  Overview of FDI Trends 
3.2.  Issue Identification 

Investor State Dispute Mechanisms 

3.2.1. 
3.2.2.  Effective and Continuous Links 
3.2.3. 
3.2.4.  Effectiveness of court process  

Investor Protection 

(transparency, timeliness, effective remedies 
Information asymmetries 

3.2.5. 
3.2.6.  Pro-development Investment 

4.  GAP analysis 

4.1.  Conclusion — GAP analysis 

5.  Implementation issues and concerns — Trade in services 

5.1.  Legitimate objectives 
5.2.  Mode 4 access 
5.3.  MRAs 
5.4.  Residency/Domicile requirements 
5.5.  Enquiry points (transparency) 
5.6.  Competition 

5.6.1.  Courier 
5.6.2.  Telecoms, Maritime and Tourism — Anticompetitive Practices 

5.7.  Universal Service 
5.8.  Tourism 
5.9.  Labour 
5.10. Environmental regulations 
5.11. E-commerce 
5.12. Legal and Institutional 
5.13. Cooperation 
5.14. Overseas Countries and Territories 
5.15. Commercial Presence 

6.  Conclusions 

References 

3

5

7

8

9

14

15
15
18
20
21
24
24
25
25

27
27
27
28
30
31
31
32
34
35
35
36
40
42
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44
47
50
51
53
54
55
56
57

59

Monitoring the implementation & results of the Cariforum-EU EPA | 7

List of tables

Table No and title

Page No

Table 1: Services trade restrictions compared 

Table 2: Mode assessment 

Table 3: Selected economic activities as percentage of total FDI activities (EU-27) 

Table 4: M & A by EU partner 2000-2012 

Table 5: Greenfield projects in CF EPA partners 2003-2012 

Table 6: GAP analysis — Investment in non-service sectors 

Table 7: CF status of competition framework 

Table 8: Inventory of laws affecting courier services in CARIFORUM 

Table 9: Inventory of CF telecoms measures 

Table 10: Telecoms authorities in CARIFORUM 

Table 11: CF services exports by category 

Table 12: DR tourism revenue 

Table 13: Ratification status of ILO conventions in the EU 

Table 14: Ratification status of ILO conventions CF 

Table 15: CF assessment of electronic transaction laws 

Table 16: Status of e-commerce framework in CF 

16

17

22

23

24

29

38

41

42

44

45

46

49

50

52

53

8 | Monitoring the implementation & results of the Cariforum-EU EPA

List of figures

Figure No & Title

Figure 1: Distribution of BITs across CF 

Figure 2: CF BITS with EU Partners 

Page No

26

26

Monitoring the implementation & results of the Cariforum-EU EPA | 9

List of abbreviations

ACE

ACP

ACSAC

AMSP

APD

APP

Architects’ Council of Europe

African, Caribbean and Pacific Group of States

Association of Commonwealth Societies of Architects in the Caribbean 

accompanying measures for sugar protocol 

air passenger duty

agriculture policy programme

ASEAN

Association of South East Asian Nations

AVE

BAM

BOP

CAMRAC

CAFEIN

CAHFSA

Ad Valorem Equivalent

banana accompanying measures

balance of payments

Caribbean Architects Mutual Recognition Agreement Committee 

CARIFORUM EPA Implementation Network

Caribbean Agricultural Health and Food Safety Agency

CARICOM

Caribbean Community

CARIFORUM

CARICOM + Dominican Republic

CARTAC

Caribbean Regional Technical Assistance Centre

CARTFund

Caribbean Aid for Trade and Regional Integration Trust Fund

CDB

CDE

CEPII

CES

CET

CF

Caribbean Development Bank

Centre for the Development of Enterprise

Centre d’Etudes Prospectives et d’Informations Internationales

constant elasticity of substitution

common external tariff

CARIFORUM

CF-EU EPA

CARIFORUM-EU Economic Partnership Agreement

CGE

computable general equilibrium

COMTRADE

UN Commodity Trade Database

CRIP

CROSQ

CSME

CSP

CARIFORUM Regional Indicative Programme

CARICOM Regional Organisation for Standards and Quality

Caribbean single market and economy

country strategy paper

10 | Monitoring the implementation & results of the Cariforum-EU EPA

CSS

CTA

DFID

DFQF

DG

DR

contractual services supplier

Technical Centre for Agricultural and Rural Cooperation

Department for International Development (UK)

duty-free and quota-free

Directorate General

Dominican Republic

DR-CAFTA

Dominican Republic — Central American Free Trade Agreement

EBA

EBOPS

EC

ECCB

ECJ

ECOWAS

ECTEL

EDF

EIB

EPA

EU

FAO

FCOR

FDI

FTA

GATS

GDP

GI

GIZ

GSIM

GSP

GTAP

HDI

Everything But Arms

extended balance of payments services classification

European Commission

Eastern Caribbean Central Bank

European Court of Justice

Economic Community of West African States

Eastern Caribbean Telecommunications Authority

European Development Fund

European Investment Bank

Economic Partnership Agreement

European Union

Food and Agriculture Organization of the United Nations

French Caribbean Outermost Region

foreign direct investment

Free Trade Agreement

General Agreement on Trade in Services

gross domestic product

geographical indication

Gesellschaft für Internationale Zusammenarbeit

global simulation analysis of industry-level trade policy

generalised system of preferences

Global Trade Analysis Project

human development index

HIPCAR

Enhancing competitiveness in the Caribbean through the Harmonization of 
ICT Policies, Legislation and Regulatory Procedures

HS

IF

ILO

IICA

harmonised system

investment facility

International Labour Organization

Inter-American Institute for Cooperation on Agriculture

Monitoring the implementation & results of the Cariforum-EU EPA | 11

IMF

IP (1)

IP (2)

ISDS

ITC

LDC

LNG

MDC

International Monetary Fund

intellectual property

independent professional

investor state dispute settlement

International Trade Centre

least developed country

liquefied natural gas

Medium Developed Country

MERCOSUR

Common Market of the South

MFN

MOU

MRA

MTS

NAO

NGO

NIP

OAS

OCT

ODC

ODI

OECD

OECS

OTN

PMU

RoW

RPSDP

RPTF

RTC

RTP

SCCCTF

SIA

SMART

SME

SPA

SPS

SSC

Most Favoured Nation

memorandum of understanding

mutual recognition agreement

multilateral trading system

national authorising officer

non-governmental organisation

national indicative programme

Organisation of American States

Overseas Country and Territory

other duties and charges

Overseas Development Institute

Organisation for Economic Co-operation and Development

Organisation of Eastern Caribbean States

Office of Trade Negotiations

project management unit

rest of the world

regional private sector development programme

Regional Preparatory Task Force

Revised Treaty of Chaguaramas

regional transformation programme

Special Committee on Customs Cooperation and Trade Facilitation

sustainability impact assessment

Single Market Partial Equilibrium Tool

small and medium enterprise

special programme of assistance

sanitary and phyto-sanitary measures

Services Sector Component

12 | Monitoring the implementation & results of the Cariforum-EU EPA

TBT

TDC

TF

TOR

TPR

TRI

TRIMs

TRIST

UK

UN

Unctad

UNCPC

UNDP

technical barriers to trade

Trade and Development Committee

trade facilitation

terms of reference

(WTO) Trade Policy Review

trade related issues

trade related investment measures

Tariff Reform Impact Simulation Tool

United Kingdom

United Nations

United Nations Conference on Trade and Development

United National Central Products Classification List

United Nations Development Programme

UN-ECLAC

UN Economic Commission for Latin America and the Caribbean

UNEP

UN Environment Programme

US or USA

United States (of America)

USD

USTR

VAT

VCLT

United States Dollar

United States Trade Representative

Value Added Tax

Vienna Convention on Law of Treaties

WIRSPA

West Indies Rum and Spirits Producers’ Association

WIPO

WITS

WTO

World Intellectual Property Organization

(World Bank) World Integrated Trade Solution

World Trade Organization

WTO I-TIPS

WTO Integrated Trade Intelligence Portal Services

Monitoring the implementation & results of the Cariforum-EU EPA | 13

A qualitative analysis of 
services and investment 
issues in the EPA

14 | Monitoring the implementation & results of the Cariforum-EU EPA

1.  Introduction

The main thrust of the EU-CARIFORUM Economic Partnership Agreement (EPA) was to translate 
the Cotonou preferential type of arrangement (non-reciprocal) to a more effective and WTO 
compatible  one,  which  meant  asymmetrical  reciprocity.  Additionally,  it  was  felt  that  such 
commitments  would  also  work  to  lock  in  reforms,  particularly  those  that  in  principle  would 
be pro-development. Services are also an important aspect of the economies for all parties. 
The important role of services and the need to understand this critical area has been stressed. 
Stakeholders have emphasised the need to look beyond the commitments made and have 
noted that little is really understood or has been articulated in terms of the actual regulatory 
environment in which trade in services is taking place in some sectors. For the most part the 
focus  has  been  on  static  commitments.  The  analysis  provided  in  this  background  technical 
report on services and investment is intended to provide further elaboration to the discussion 
in the Main Report on some of the issues and concerns in relation to implementation of the 
EPA regulatory commitments in Title II — services and investment.

Increasing  attention  is  being  paid  to  regulatory  considerations  which  in  effect  set  the 
parameters  for  effective  market  access.  Assessing  this  can,  therefore,  add  significant 
value in the context of the EPA. This was the intent behind many methodologies proposed 
for  assessing  implementation  for  this  background  technical  report  and  in  earlier  drafts  as 
well  as  discussions  at  the  inception  of  this  project.  Since  that  time  and  after  field  visits  it 
was  apparent  that  implementation  efforts  were  only  in  some  instances  starting.  As  such 
this  Report  is  an  attempt  to  capture  instead  many  of  the  regulatory  challenges  that  face 
implementation. Hence, the focus on implementation ‘Issues and concerns’, which it is hoped, 
will  guide  decision-making  as  the  Agreement  continues  to  be  implemented.  It  attempts  to 
analyse the extent of implementation challenges of the relevant provisions, based on those 
issues identified by stakeholders in consultations (with priority given to fifteen (15) areas of 
significance to meeting obligations in Title II. Much of the discussions on trends in services and 
investment, and specific commitments, as well as impact can be found in the Main Report (1), 
for the sectors under consideration.

So  as  not  to  lose  sight  of  the  importance  of  regulations,  we  proceed  with  a  discussion  of 
their  importance  in  the  context  of  services  and  investment,  and  suggest  indicators  and 
attempt  to  show  their  information  value.  Next  we  proceed  to  look  at  investment  issues  in 
non-service  sectors,  using  a  gap  analysis  approach  adapted  for  this  review,  followed  by 
specific consideration of fifteen (15) implementation issues and concerns in trade in services 
under the EPA, before concluding.

(1) Final Report — Monitoring the Implementation & Results of the CARIFORUM-EU EPA Agreement. 

Monitoring the implementation & results of the Cariforum-EU EPA | 15

2.  Overview of Regulatory Issues

In this Background Technical Report we highlight the important role of regulations in creating 
an enabling environment for trade in services within the EPA and generally. This is because 
regulation is the primary trade policy tool for addressing trade flows in the area of services 
and investment (Mattoo and Sauve, 2003). Further, the EPA explicitly recognises the right of 
Parties to regulate their services sectors, but also imposes regulatory discipline and a general 
obligation to regulate in a particular manner. It is important that EPA Partners balance this 
right to regulate against the general obligations contained in the EPA.

The scope of examination of services is limited to the examination of issues specific to:

•  certain business services (i.e. architecture, engineering and management consultancy);

•  certain communication services (i.e. telecommunication services and courier services);

•  certain entertainment services (i.e. musicians and bands);

•  tourism and travel-related services;

•  maritime transport services (excluding cabotage).

2.1.  Services Trade Restrictiveness

In this sub-section we utilise available data and information generated after the signing of the 
EPA to get an overall picture of the general conduciveness of the regulatory conditions in the 
markets for services and investment in EPA Partners. This gives an idea of the actual conditions 
of access facing these services, and service suppliers generally. This analysis is undertaken 
independently of the commitments made, since it is both the actual laws in place and the 
operation of these laws that will determine how trade actually takes place. For this, we utilise 
the results contained in the World Bank Restrictiveness of Trade in Services and Investment 
(RSTI)  database.  It  is  noted  that  the  country  and  sectoral  coverage  is  not  comprehensive, 
nor is the coverage of modes of supply and sectors (1). Given the limited country coverage, 
particularly for EU Member States where only 20 Member States are covered, any comparisons 

(1) The database covers 103 countries that represent all regions and income groups of the world. The only CF country 
for which an index has been calculated, though grouped with Latin America and the Caribbean, is the Dominican 
Republic, and results are reported for only 20 EU Member States.
For each country, five major services sectors are covered, that encompassing a total of 19 subsectors: Financial 
services: retail banking (lending and deposit acceptance) and insurance (automobile, life and reinsurance); 
Telecommunications: fixed-line and mobile; Retail distribution; Transportation: air passenger (international and 
domestic), maritime shipping, maritime auxiliary, road trucking and railway freight; Professional services: accounting, 
auditing, and legal services (advice on foreign/international law, advice on domestic law, and court representation).
Each subsector in turn covers the most relevant modes of supplying the respective services, yielding overall 
34 country-subsector-mode combinations: Mode 1: Financial services, transportation and professional services; 
Mode 3: All sub-sectors; Mode 4: Professional services

16 | Monitoring the implementation & results of the Cariforum-EU EPA

should be done on a country-to-country or region to region-to-region basis. This is not possible 
for all EPA partners given that the index is only available for one CF country, the Dominican 
Republic.

As an example in the case of professional services, over all modes, we take one EU Member 
State,  say  Portugal,  and  make  a  comparison  with  the  Dominican  Republic  (DR)  (the  only 
CARIFORUM country for which the index is currently calculated) (1). The database shows that 
for  accounting  services  in  both  countries,  overall  there  is  a  virtually  open  environment  for 
Mode 1 and Mode 3, indicating that regulations or ‘restrictions’ do not necessarily retard trade. 
In respect of mode 4, however, the level of restrictions is higher.

Table 1: Services trade restrictions compared

Dominican Republic

Overall

Mode 1

Mode 3

Mode 4

Professional – Accounting and auditing 

33

0

25

50

Portugal

Overall

Mode 1

Mode 3

Mode 4

Professional – Accounting and auditing 

40

41.67

20

60

Source: http://iresearch.worldbank.org/servicetrade/default.htm

This  indicates  that  the  treatment  provided  in  the  EPA  for  certain  categories  of  services, 
especially  in  respect  of  Mode  4,  which  includes  professional  services  (engineering  and 
architecture)  as  well  as  other  business  services  (management  consultancy)  (2)  from 
CARIFORUM, is a significant concession, given the state of restrictions generally. This therefore 
puts CARIFORUM (CF) at an advantage in terms of the effective ‘access’ for these categories of 
services, provided that implementation, in particular administrative or other policy barriers, do 
not impair the relevant commitments made. This makes the effective implementation of these 
obligations  that  much  more  significant  in  the  context  of  EU-CARIFORUM  trade  in  services. 
These commitments therefore would have to be taken into account in assessing services trade 
restrictiveness in the EPA context.

Of  all  the  services  sectors  covered  in  the  database,  and  on  which  this  Report  focuses,  the 
level  of  restrictions  is  highest  in  respect  of  Mode  4.  This  is  particularly  so  in  professional 
services.  Given  that  services  can  be  supplied  by  more  than  one  means,  an  examination  of 
restrictiveness  has  to  be  complemented  with  an  examination  of  modal  substitutability  (3). 
This is a simple average of the most relevant modes by which the particular service is traded. 
The idea behind this is not simply that a service can be supplied by one mode of supply, but 
that modes can act as substitutes (4). For instance, if a service is supplied mainly by way of 
Mode 3, and most restrictions relate to Mode 4, then the actual effect on services trade is 

(1) It should be noted however, that the EPA commitments capture the regulatory status quo; the analysis of specific 
commitments shows that generally the restrictions on specific modes (horizontal) are very similar across the 
CARIFORUM, particularly in respect of Mode 3. 
(2) Mode 4 is the dominant mode of supply, see analysis of modal substitutability and tradability. 
(3) Modal substitutability is defined in this Report as the ability of a service to be supplied by different modes of supply. 
The estimate of substitutability is given as number of possible modes for that service/total modes of supply (4). 
(4) To the extent that it is technically feasible. 

Monitoring the implementation & results of the Cariforum-EU EPA | 17

less significant. Whereas, if most restrictions are on Mode 4 and this is the primary means of 
supplying the service then this has a more significant impact on services trade in this sector. It 
is important to establish this parameter, as regulations that affect a mode in which the service 
is not traded have no practical effect and will yield no useful information on the manner in 
which actual trade may be affected. An attempt has been made in this Report to make some 
generalisations  about  the  modal  substitutability,  based  on  the  number  of  modes  by  which 
a service is actually traded.

In  sub-sectors  such  as  telecommunications,  tourism,  transport,  professional  services,  and 
maritime transport, Mode 3 is a viable mode of supply (1). For services such as professional 
services and tour guides, Modes 1 and 2 are also means by which these services are supplied, 
so  that  they  exhibit  the  highest  degree  of  substitutability.  If,  for  example,  barriers  related 
mainly to Mode 4, they can alternatively be supplied by another mode, which is supported by 
advances in technology and legal frameworks to support e-commerce.

Table 2: Mode assessment

3

1, 3, 4

High (1)

0.25 (3)

0.75 (1, 3, 4)

1, 3, 4
1, 3, 4

High (1)
High (1)

Not covered by RTSI

Moderate to high (1)

0.50 (3, 2)
0.25 (4)

0.75 (1, 3, 4)
0.75 (1, 3, 4)

Not covered by RTSI
Not covered by RTSI

n/a
Moderate to high (1)

Most relevant mode — RTSI Modal substitutability (1) Tradability index (2)

Service 
Architecture 
Engineering 
Management 
consultancy
Telecommunication 
services
Courier 
Musicians/ Bands
Hotels and 
restaurants 
(incl. catering)
Travel agencies 
and tour operators 
services
Tourist guides 
services
Maritime  
(excluding cabotage)
(1) Number of modes over the average modes of supply (4).
(2) Tradability (1) is the likelihood (probability) that trade is taking place and is determined by the interplay of three 
factors — trade costs, technology, and comparative advantage (including in institutions) — as well as exporter-, importer-, 
and sector-specific factors. One service is more tradable than another if the probability that it is in fact traded is higher. 
The assumption is made that the more tradable a service, the less likely that it is impeded by regulatory barriers. This 
looks at Modes 1 and 2.

Not covered by RTSI

Not covered by RTSI

0.75 (2, 3, 4)

0.50 (1, 3)

0.25 (3)

0.25 (3)

1, 3

n/a

n/a

n/a

n/a

(1) It is noteworthy that though this Mode 3 is a means of providing the services for almost all the categories of 
services examined in this Report, it is the mode that is least captured by services trade statistics. 
(2) See Marel and Shepherd, 2013. 

18 | Monitoring the implementation & results of the Cariforum-EU EPA

Less  substitutable  are  maritime  and  courier  services  and  the  least  substitutable  are  those 
for  which  one  mode  of  supply  is  dominant,  such  as  telecommunications  and  musicians. 
Limitations therefore in these sub-sectors and modes will mean a greater restrictive effect 
than for a sector with a host of restrictions, but that has a high modal substitutability.

Also relevant to the analysis of restrictions is the assessment of the level of tradability of 
specific  services.  The  more  tradable  a  service,  the  implication  is  that  it  is  subject  to  fewer 
regulatory barriers, and hence the cost of trading is lower. It should be borne in mind that the 
index does not capture Modes 1 and 2, and so may overstate the impact of restrictions (1). 
Developments in the area of e-commerce could have a significant effect on the tradability of 
services, where this is technically feasible. This is therefore an important area or opportunity 
for ‘regulatory harmonisation’ (2).

The other sector that is relevant in terms of Mode 4 restrictions and of great export interest to 
CF is that of musicians and bands. The level of substitutability here is low and often musicians 
benefit from live shows, more than any other possible mode of supply. This speaks to a need 
to  address  entry  requirements,  and  enforcement  of  intellectual  property  rights  as  well  as 
mechanisms for cross-jurisdictional enforcement (3).

2.2.  Regulatory Capacity

A  key  element  of  meeting  the  relevant  regulatory  objectives,  particularly  in  light  of  the 
commitments on market opening made in trade agreements, is the ability to review, design, 
monitor and implement the relevant regulations and to ensure that there is an environment 
which is conducive to the EPA, while taking national objectives into account.

Much  was  made  of  the  capacity  gap  on  the  part  of  CARIFORUM  compared  to  the  EU  in 
the literature at the time of negotiations, particularly in the area of services. In discussions 
with  stakeholders  it  was  indicated  that  this  deficit  has  hampered,  to  some  extent,  the 
implementation  of  commitments  (see  discussions  of  ‘Legal  Capacity’)  (4).  In  particular,  the 
resources necessary to review the relevant legislative frameworks, and design the appropriate 
changes  to  facilitate  meeting  commitments,  while  preserving  legitimate  regulation  of  the 
service sector, were cited. For example, changes would be towards ensuring universal access, 

(1) The existence of electronic transaction laws and data protection in the relevant jurisdictions will also mean that for 
services that can be supplied by this mode, the effect of restrictions will be less as long as there is an environment that 
facilitates such trade. 
(2) It should also be borne in mind that the UNCITRAL model laws closely track EU law; and further, most countries in 
CF adopt the principles of the UNCITRAL model laws, implying that there is some degree of convergence, once the 
provisions are tracked appropriately.
(3) A full analysis of IP enforcement in the context of regulatory frameworks is outside the scope of this Paper, but its 
importance is recognized in Articles 139(1) to (5) and in particular the implementation of the relevant international 
treaties by the parties. In respect, for example, of live performances, the unauthorized taping or otherwise capturing the 
visual presentation of those performances would pose a significant economic loss to CF service suppliers, undermining 
potentially any market access gains under the EPA, through Article 83(2). 
(4) This term is utilized in this Report to refer to the capacity gap in relation to design, implementation, monitoring of 
relevant legal instruments to regulate trade in services.

Monitoring the implementation & results of the Cariforum-EU EPA | 19

preventing anticompetitive activity, curing information asymmetries, ensuring quality of the 
services,  and  consumer  protection,  amongst  others.  It  is  noteworthy  that  no  stakeholder 
consulted indicated that a thorough regulatory audit was conducted, where all the relevant 
laws and details were looked at, along with the relevant provisions that would affect trade 
in services. In preparation for the CARICOM-Canada negotiations, some countries were in the 
process of putting forth their offers, and the consultant had an opportunity to observe this 
process, which included getting the feedback from relevant stakeholders and noting the type 
of restrictions. However, given the limited time frame and capacity within which the offer had 
to be made, it is doubtful that a thorough regulatory audit was in fact conducted. In many 
instances, reliance was placed on knowledge of existing limitations from the WTO and the EPA 
schedules. It stands to reason therefore that beyond the commitments made, work may be 
needed on understanding the regulatory environment that exists. A few CF implementation 
plans in fact speak to a need to acquire technical assistance to identify or effect the relevant 
regulatory change required.

One  of  the  underlying  motivations  for  this  Background  Technical  Report  is  that  there  may 
be  actual  divergences  between  the  de  facto  and  de  jure  measures  (Kaufmann,  Kraay  and 
Mastruzzi, 2005) which have practical implications for the conditions of access of the relevant 
service  into  the  particular  market.  It  is  these  practical  effects  of  the  law  implemented 
post-signing of the EPA that are relevant to this assessment.

These findings support the observations from consultations with CF stakeholders in respect of 
the pace of implementation, as follows:

•  Progress on the review of relevant laws has been slow or has not started.

•  Drafting capacity is low, for the development or the revision of relevant laws.

•  Capacity, in terms of human resource capability, as well as financial resources to monitor 

and revise laws is low.

•  Although  the  regional  road  map  sets  a  basis  for  implementation,  the  difficulties  are 
compounded by the fact that for some countries this is the first agreement of its kind. In 
fact, Stakeholders with more experience with regional integration agreements (RIA) and Free 
Trade  Agreements  (FTA)  generally  indicate  clearly  that  they  believe  that  implementation 
has  been  easier  for  them  because  they  have  had  to  meet  similar  obligations  on  other 
agreements.

This highlights another significant dimension for capacity building in the area of regulation — 
correct  transposition.  This  is  significant  in  the  context  of  the  EPA,  in  that  while  espousing 
similar regulatory principles, these must be adapted to the relevant jurisdiction having regard 
to its particular legal system. Institutional design is also critical. It is clear therefore that while 
regulatory capacity may be higher in the EU, and perceptions of quality follow suit, more needs 
to be done in the area of services and investment on the part of both parties to overcome the 
challenges; cooperation on these regulatory issues may be one way to achieve this.

20 | Monitoring the implementation & results of the Cariforum-EU EPA

3.  Investment in Non-Services Sectors

This section focuses on inward FDI into CF, as this was the main area of interest in relation 
to  non-service  sectors  in  the  discussions  with  stakeholders.  These  are  forestry,  agriculture 
including fisheries, agro-processing and manufacturing. It was felt that these sectors provided 
the  greatest  opportunities  for  diversification  and  niche  market  development.  The  EPA’s 
provisions on commercial presence cover all these (1).

This section therefore attempts to highlight the main issues and concerns in relation to the EPA 
in this area, the objective being to assess whether there exists a legal framework conducive to 
FDI inflows. Given the lack of detailed data, and in fact low levels of bilateral flows as indicated 
by Stakeholders, as well as shocks such as the global economic crisis, we focus on the relevant 
framework. To the extent that Parties entered into the EPA in good faith, this section does not 
analyse the extent of compliance or violations of treaty provisions in individual jurisdictions. 
Further delays in implementation make it impractical to assess any real trade effects resulting 
directly  from  the  EPA,  particularly  in  an  area  such  as  investment.  Given  the  expectation  of 
increased inflows as a result of the signing of the EPA, and the impact of the global economic 
crisis, which cannot be separated from the processes being considered, we look instead on 
whether the expectation of increased investment inflows was legitimate given the relevant 
treaty obligations undertaken by the Parties. The impact on actual inflows, however, depends 
in part on the implementation of these obligations among other factors. Notwithstanding, it is 
useful to determine whether issues and concerns in respect of non-service sector investment 
are addressed in the treaty context, thereby allowing for investment frameworks that support 
such inflows.

Berger, Busse, Nunnenkamp and Roy (2010) provide empirical evidence that liberal admission 
rules  promote  FDI.  Franck  (2007)  notes  that  the  evidence  on  the  relationship  between  FDI 
and treaty provisions remains anecdotal: little is available empirically but indications are that 
there seems to be a growing realisation of a signalling effect for host countries, provided that 
investors are aware of the existence of the treaty and its provisions. What can be inferred from 
Berger et al. (2010) is that RTAs which focus only on liberalisation are ineffective in promoting 
FDI,  legitimating  an  examination  which  shows  that  issues  go  beyond  market  access  and 
national treatment obligations, such as regulations. In relation to investment, and Commercial 
Presence  (2),  the  EPA  covers  both  pre-  and  post-establishment,  but  goes  beyond  the  GATS 
coverage of services and supply of services to commercial presence in non-service sectors. 
Further,  it  includes  provisions  on  investor  behaviour  and  regulatory  principles,  which  were 
included in an effort to exploit the signalling properties of the EPA (Sauvé and Ward 2009).

(1) See Article 66 of the CF-EU EPA. 
(2) Title II, Chapter 2 of the EC-CARIFORUM EPA. 

Monitoring the implementation & results of the Cariforum-EU EPA | 21

3.1.  Overview of FDI Trends

This  section  seeks  to  highlight  those  implementation  issues  and  concerns  arising  from 
stakeholder consultations as well as from responses to formal questionnaires (1). The available 
data legitimizes these concerns as shown below.

The Unctad World Investment Report 2013 indicates that for 2012, there was a decline in 
investment flows, given the global economic situation and the crisis in the Eurozone, which 
dampened investors’ willingness to pursue cross border investments. This implicated greenfield 
projects, mergers and acquisitions; although expectations at the time of negotiation as well 
as the signing of the EPA were that investment inflows from EU Partners into the region would 
see an increase. Stakeholders indicate that this has not been the case, consistent with global 
trends.

Total  net  inflows  into  CF  increased  significantly  in  2008.  Although  it  would  be  tempting  to 
ascribe this to the conclusion of negotiations and signing of the EPA towards the end of the 
year,  direct  causality  cannot  be  ascribed  given  the  detailed  data  required  to  conduct  the 
necessary enquiry.

Some authors and the Office of Trade Negotiations (OTN) point, however, to the strong signalling 
influence  on  FDI  flows  of  the  conclusion  of  treaty  obligations.  In  fact  some  stakeholders, 
particularly those with relatively high levels of EU presence in their economies, have pointed 
out that investors saw the conclusion of the EPA as a strong positive signal.

Though  inflows  declined  in  2009,  they  improved  towards  the  end  of  2012,  consistent  with 
trends in FDI into developing countries in the post crisis era. FDI net inflows into CF showed 
positive  year-on-year  increases.  Estimates  for  2013  based  on  Unctad  FDI  Monitor  (2014) 
indicate that FDI inflows into the Caribbean (2) will increase by 5.3 % over their 2012 levels.

Data are not available for the level of investment from Partner countries such as the EU into 
specific CF countries in the level of detail required. It is instructive however, to look at the level 
and percentage of FDI flows to certain activities for the EU-27 available from Eurostat.

EU  investment  in  services  is  by  far  the  most  significant  area  of  economic  activity  for  FDI 
investment abroad. In the non-service areas of agriculture, mining and manufacturing, where 
stakeholders  expressed  the  greatest  interest  in  seeing  a  boost  in  FDI,  there  has  been  an 
increase in EU FDI investment abroad with the exception of manufacturing. However, the data 
does not separately present the situation in CF.

(1) At the time of writing only a few countries responded to the questionnaires: Jamaica, Barbados, and the Dominican 
Republic.
(2) This includes all Caribbean and not only CF EPA partners, and excludes Belize which is often grouped in Unctad data 
sets in South America. The Report indicates that while most of the growth in Latin America and Caribbean grouping 
came from the Caribbean, this was mainly driven by the British Virgin Islands.

22 | Monitoring the implementation & results of the Cariforum-EU EPA

The  feedback  provided  by  stakeholders,  was  that  the  level  of  EU  investment  into  their 
respective territories was low, and they did not see a boost upon provisional application of the 
EPA. In some cases there was no concrete example of EU investment that could be provided. 
It is noteworthy that the Unctad World Investment Report 2013 (p. 21) notes that of the most 
promising sectors for investment, Mining was prominent among the non-service activities for 
Latin America and the Caribbean.

Table 3: Selected economic activities as percentage of total FDI  activities (EU-27)

Agriculture; Fishing 

Mining and Quarrying 

2004

-0.09 %

3.87 %

2005

0.05 %

0.01 %

2006

0.04 %

4.10 %

2007

0.06 %

4.46 %

2008

0.01 %

4.02 %

Manufacturing

26.17 %

24.00 %

11.98 %

15.47 %

24.14 %

2009

0.07 %

6.06 %

5.15 %

Services

60.44 %

61.54 %

74.66 %

68.67 %

58.79 %

74.89 %

Hotels and Restaurants

-0.15 %

0.64 %

-0.01 %

0.02 %

0.26 %

0.14 %

Transport, storage 
and communication
Source: Eurostat
NB: Partner — World, Financial Account, Direct Investment Abroad

4.02 %

6.38 %

0.32 %

6.75 %

5.20 %

5.71 %

Stakeholders pointed to resources (1) as a positive factor for attracting investment into the 
region,  while  at  the  same  time  representing  an  area  where  it  was  felt  that  tremendous 
potential was underexploited because of the lack of the necessary investment. Unctad (2012) 
reports  that  of  the  CF  Partners  for  which  data  were  available,  the  top  five  destinations  for 
attracting investment inflows in 2011 were (not in order of ranking):

•  Bahamas

•  Barbados

•  Dominican Republic

•  Jamaica

•  Trinidad and Tobago

Mergers and acquisitions for EU Partners in 2012 declined overall from their 2008 levels, after 
rebounding in 2009. For 2012 declines were registered for only two economies. This is not as 
significant however, as compared to Greenfield Investment, the dominant type of investment 
in CF. For Trinidad and Tobago and the Dominican Republic, these flows declined in 2012 from 
their  pre-EPA  levels  (2008).  For  CF  Partners  overall  these  flows  represented  generally  the 
same percentage of world greenfield investment projects in 2012 when compared to 2008, 
but represented an increase over 2009, possibly signalling a rebound from the effects of the 
global economic downturn.

(1) From a regional perspective it is worth noting that sun, sand and sea are not often considered in the context of 
‘resource seeking investment’, though a case can be made the investors may be motivated by this in the area of 
Tourism. 

 
Monitoring the implementation & results of the Cariforum-EU EPA | 23

Against the background of these trends and based on feedback from consultations we 
can define a set of core issues to see how closely these are captured by the EPA. To the 
extent that the EPA does address the issues, then one can at least make the case that the EPA sets 
an important platform for further investment into non-service sectors. Where gaps exist then the 
enabling framework or pre-conditions required at the framework level need to be closely examined, 
to arrive as close as possible to an ‘ideal’ EPA framework for non-service investment (FDI inflows).

Table 4: M & A by EU partner 2000-2012

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2012 v 2008
-1 025
6 280 4 368 3 114 3 004 3 683 5 004 5 747 7 018 6 425 4 239 5 484 6 065 5 400

5 431 3 651 2 314 2 072 2 706 3 741 4 446 5 443 4 732 2 666 3 713 4 384 3 745

-

-

-

 7

 7

 4

 3

 2

 9

 14

 25

 10

 12

 21

 23

 27

 15

 11

 82

 75
 61
 6
 3

 42
 15
 3
 1
 46  160

 5
 22

 1
 2
 15

 77
 63
 2
 2
 23

 51
 45
 2
 4
 6

 62
 49
 1
 1
 3

 64
 32
 1
-
 3

 53
 42
- 1
 7
 2

 104
 77
 2
 6
 21

 60  112
 3
 56

 68
 183  109
-
 2
 18

World
developed  
economies
Small Island  
Developing  
States (SIDS)
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech  
Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
United 
Kingdom
Total EU EPA 
Partners
Source: UNCTAD cross-border M&A database (www.unctad.org/fdistatistics).

 85
 40
 50
 140  125
 8
 2
 1
 4
 3
 58
 66
 114
 83
 82
 437  284  176
 86  114  253  265
 579  302  193  127  111  226  229
 20
 15
 13
 13
 94
 38
 59
 39
 1
 1
 2
 3
 39
 1
-
 1
 91  146
 76
 15
 4
 8
 16
 10
 9
 1
-
 2
 2
 2
-
 7
 7
 6
 59
 82  109
 50  106  154  185

 23
 1
 48
 61
-
 2
 18
 1
 271  181  106
 1
 16
 1
 1
 7
 47
 89

 55
 49
- 4
 4
 141
 91
 128  132
 1
 2
 24
-

 3
 6
 21
 25
-
- 1
 8
 2
 13
 4
 123
 81
 219  145

 4
 5
 52
 12
 4
 1
 11
 3
 21
 7
 13
 1
 3
 7
 62

 688  527  330  279  446  544  681

 13
 8
 48
 52
 1
 3
 26
 1

 30
 25
- 1
 1
 6

 4
-
 28
-

 82  102
 10
 4
 66  109

 43
-
 32
 404  381  191
 264  286  196
 7
 27
 17
 5
 10
 14
 32
 128
 82
 45
 121  119
-
- 1
 2
 7
 34
 53
 4
 1
 173  221  104
 3
 28
 20
 36
 3
 7
 2
 7
 4
 4
 50
 156  106
 94
 207  161

 4
 2
 42
 1

 814  600  231

 19

 10

 5

 14

 37
 44
 3
 1

 35
 19
 3
 1

 51
 56
 2
- 1
 280  168  142

 6

 11

 14

 11

 45
 2
 57

 1
 2
 30
 50
 4
 5
 33
 4

 3
-
 49
 48
 1
 5
 43
 2

 37
 35
 6
 9
 18
 69
 226  269  239
 137  266  239
- 5
 1
 78
 54
- 1
 2
 58
 4
 169  143  100
 5
 16
 5
 2
-
-
-
 3
 2
- 2
 40
 47
 177  210  132

 21
 17
 6
 5
 5
 64

 351  499  363

3 247 2 277 1 367 1 012 1 170 1 829 2 218 2 788 2 551 1 329 1 760 1 984 1 638

- 987

- 7

- 24
- 5
- 4
- 4
 96

 1

- 65
 2
- 91
- 142
- 47
- 32
- 9
- 4
- 65
-
- 5
 5
 3
- 121
- 23
- 31
- 7
- 7
- 2
- 66
- 29

- 237

- 913

Note: Cross-border M&A purchases are calculated on a net basis as follows: Purchases of companies abroad by home-
based TNCs (-) Sales of foreign affiliates of home-based TNCs.  The data cover only those deals that involved an 
acquisition of an equity stake of more than 10%.  Data refer to the net purchases by the region/economy of the ultimate 
acquiring company.

24 | Monitoring the implementation & results of the Cariforum-EU EPA

Table 5: Greenfield projects in CF EPA partners 2003-2012

Value of greenfield FDI projects, in CF EPA partners, 2003-2012
(Millions of dollars)

Destination region/
economy

Antigua and Barbuda
Bahamas
Barbados
Belize
Dominican Republic
Grenada
Guyana
Jamaica
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the 
Grenadines
Suriname

Trinidad and Tobago
Total CF EPA Partners 
World

% of World

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

-
  586
-
-
 1 400
-
-
  415
-
  145

-
  64
  3
-
  417
-
  40
  514
-
-

-
  52
-
-
 1 496
-
  563
  260
-
-

-
-
-
-
  827
-
  412
  369
-
-

-
  18
-
-
  749
  3
  10
  29
-
  12

  82
  61
-
-
 2 044
-
 1 000
  317
-
-

-
  5
  29
  3
 1 399
-
  12
  41
-
  3

-
  64
  137
  5
  330
  5
  160
  23
-
  144

-
  333
  303
-
 5 143
  5
  15
  491
-
  64

-
  24
  16
  43
  584
-
  302
  27
  64
-

-

-

  34

-

-

-

-

-

-

-

-
 1 008
 3 411

-
 1 384
 2 422

  328
 1 088
 3 962

  34
  119
 1 213
771 315 710 848 702 894 910 601 943 950 1 582 134 1 041 927 901 152 913 828 612 155
0.17 % 0.10 % 0.75 % 0.20 %

0.51 % 0.34 % 0.49 % 0.35 % 0.17 %

-
 1 542
 3 150

-
  797
 1 618

  101
  372
 3 977

-
  296
 1 787

  384
  114
 6 854

-
  22
  889

0.25 %

 36 890  22 897  19 786  18 194  26 152

 44 524  18 762  15 351  16 899  23 410

Least developed  
countries (LDCs)
Landlocked countries
Small island develop-
ing states (SIDS)
Source: UNCTAD, based on information from the Financial Times Ltd, fDi Markets (www.fDimarkets.com) and Authors Calculations
Note: Data refer to estimated amounts of capital investment.  
http://unctad.org/en/pages/DIAE/World%20Investment%20Report/Annex-Tables.aspx 

 36 054  39 854  33 654  21 824

 25 449  29 366  39 438  17 931

 3 132  5 957

 65 204

 53 430

 8 827

 3 787

 1 539

 3 539

 3 425

 5 325

 7 429

 2 283

3.2. 

Issue Identification

As noted before, the EPA stands as a strong positive signal to investors; however, other factors 
influence  actual  investment  decisions.  Generally  throughout  consultations,  stakeholders 
indicated that they had positive and open investment regimes. What we look at, therefore, 
are the issues of relevance in relation to the EPA, based on FDI trends as well as stakeholder 
views (1). The main issues, based on frequency raised in consultations and importance (2) by 
stakeholders are presented below.

3.2.1.  Investor State Dispute Mechanisms

Unctad (2013) points to the increase in investor-state dispute settlement (ISDS), as confirming 
investors’ increased use of this mechanism. The report further notes that the highest number 

(1) A detailed comparison of investment regimes was beyond the scope of this Report.
(2) Importance will vary according to the individual CF Partner. 

Monitoring the implementation & results of the Cariforum-EU EPA | 25

of  cases  ever  filed  in  1  year  occurred  in  2012.  EU  private  sector  representatives  that  had 
operations  in  CF  countries  as  well  as  official  representatives,  noted  concerns  in  relation  to 
transparency,  time  in  litigation,  as  well  as  questionable  decisions  and  enforcement.  They 
pointed to instances where, although the necessary legal structures were in place for investors 
to take action, the decision of the courts was not implemented. Additionally, it was felt that 
reform was required to address some of these issues, which they perceived as being systemic. 
Most CF stakeholders from the public sector noted that investment laws in place allowed for 
these issues to be addressed, and further indicated that in some instances special commercial 
courts  had  been  established  to  deal  with  these  issues,  improving  the  administration  of 
justice (1) in this area. They however, acknowledge that in some instances investment laws 
in this area may need amendment. Where Parties were in the process of review they noted 
lack of ‘legal capacity’, human resources as well as legislative drafting expertise as hurdles. 
Notwithstanding  these  difficulties,  investors  still  had  recourse,  if  not  in  the  domestic  legal 
environment, in international fora.

3.2.2.  Effective and Continuous Links

Many  stakeholders  noted  that  in  order  for  FDI  to  be  beneficial  to  CARIFORUM  States,  the 
character  of  investment  coming  into  the  region  must  generate  lasting  links  with  the  host 
economy.  Concern  was  often  expressed  that  the  most  important  aspect  of  FDI  inflows  for 
stakeholders  would  be  the  positive  externalities,  in  terms  of  knowledge  transfer  and  skills 
development,  as  well  as  integration  with  other  sectors  (e.g.  agriculture-tourism,  wood 
products-tourism).  As  such,  countries  had  to  be  free  to  address  the  issue  of  ‘screwdriver’ 
operations.

3.2.3.  Investor Protection

The EPA does not address investor protection substantively. It was noted that at the time of 
negotiations the EC did not have competence in this area. Community law, however, recognises 
this as an important element of investment treaties. Also, many BITs with EU partners contain 
these provisions. It therefore stands to reason that this would be an important issue for EU 
investors.

All CF countries with the exception of the Bahamas have a BIT with at least one EU Partner, 
giving a total of 33 BITs as of November 2013 (2). Jamaica has the highest number of BITs 
with an EU partner (six), with Trinidad and Belize second (four) and Barbados and Haiti (three 
each) third, collectively accounting for 20 of the 33 BITs signed (31 of which have entered 
into force). The majority of these agreements are concentrated in five CARIFORUM partners.

(1) An important aspect of international law, which relates fundamentally to the notion of good faith, is that of justice; 
i.e. is the outcome acceptable in an evaluative and justificatory sense? (Kim, 2005). 
(2) Of these, two have not yet entered into force, one between Italy and Belize and the other between Suriname and the 
Netherlands. 

26 | Monitoring the implementation & results of the Cariforum-EU EPA

Of  the  27  EU  partners  however,  BIT’s  with  CF  are  concentrated  in  only  seven  CARIFORUM 
Countries. The largest number of BITs in the region is held with the United Kingdom (10), with 
Germany trailing close behind with nine. All BITs pre-date the EPAs.

Figure 1: Distribution of BITs across CARIFORUM

'

s
T
I
B
f
o

r
e
b
m
u
N

7 

6 

5 

4 

3 

2 

1 

0 

4 

3 

6 

3 

4 

2 

2 

2 

2 

2 

1 

1 

1 

0 

Antigua & Barbuda 
Bahamas 

Barbados 

Belize 

Grenada 
Dominican Republic 
Dominica 

Guyana 

CARIFORUM State 

Haiti 

Jamaica 

St. Lucia 

St. Vincent & the Grenadines 

Suriname 
Trinidad & Tobago 

Source: http://www.sice.oas.org/ctyindex/ATG/ATGBITs_e.asp as at November 15, 2013

Figure 2: CF BITS with EU Partners

CARIFORUM  BIT's across EU Partners

Austria; 1

France, 4

United Kingdom, 10

Spain, 3

Germany, 9

Italy, 3

Netherlands, 3

Source: http://www.sice.oas.org/ctyindex/ATG/ATGBITs_e.asp as at November 15, 2013

 
 
 
Monitoring the implementation & results of the Cariforum-EU EPA | 27

The advantage of adjusting the regulatory frameworks in line with the EPA is that it limits 
the potential for ‘disintegration’, whereby individual CARIFORUM countries will try to compete 
for these investment resources by lax treatment of foreign investment, which is potentially 
destabilising  for  the  country  if  the  wrong  types  of  investment  are  allowed.  Adjusting 
the  regulatory  frameworks  in  line  with  the  EPA  would  aid  not  only  the  process  of  regional 
integration, but also specialisation within the region with inflows going to those sectors where 
the greatest opportunities lie.

3.2.4.  Effectiveness of court process (transparency, timeliness, effective 

remedies (1)

EU  representatives  holding  investment  in  the  region  noted  that  court  processes  needed  to 
be  improved.  While  changes  have  been  made,  for  example  the  establishment  of  special 
commercial courts, timeliness of decision-making as well as enforcement of court decisions 
remains a concern which hampers investors’ ability to enforce their substantive rights.

3.2.5.  Information asymmetries

In respect of investment into non-service sectors (also services generally) it was felt that more 
needed to be done to promote the regional opportunities to EU investors, and at the same 
time allowing strengths of each CF Partner to be highlighted. The consultations revealed that 
initiatives were underway to develop such a regional plan, under the Caribbean Association 
of  Investment  Promotion  Agencies  (CAIPA),  as  well  as  other  regional  promotion  activities. 
Some stakeholders noted a concern that such regional initiatives often led to the majority of 
benefits going to the ‘usual suspects’, and as such, they expressed concern about support at 
the national level for national plans and promotional activities. It was felt that this would allow 
for a more balanced distribution of inflows within CF, making allowance, of course, for demand 
pull factors (Akinkugbe, 2003).

In respect of EU activities to promote the region, it was indicated that not much of this type 
of sensitisation has occurred in the EU, although it was shown that, for the most part, private 
sector actors who had an interest in the region did try to seek out information. In respect of the 
OCTs some cross-border investment was taking place; however, this was not perceived to be 
as a result of, or influenced by the EPA.

3.2.6.  Pro-development Investment

Stakeholders pointed to the negative effects of foreign investment in some sectors and the 
importance of being able to control these outcomes in sectors like forestry, and tourism (2). 
There  was  also  a  need  for  ensuring  more  equitable  flows  into  CF  partners,  so  that  the 
development advantages can be spread over all CF countries.

(1) This includes the implementation of Court Decisions. 
(2) Environmental concerns, for example. 

28 | Monitoring the implementation & results of the Cariforum-EU EPA

4.  GAP Analysis

Against  the  six  defined  issues,  we  assess  applicable  EPA  provisions  along  the  lines  of  the 
four  criteria  to  determine  whether  a  GAP  exists:  the  rationale  being  that  where  the  EPA 
allows  for  these  issues  at  the  treaty  level,  domestic  legal  frameworks  in  compliance  with 
these treaty obligations will achieve some level of regional convergence in their regulatory 
frameworks, thereby allowing countries to more effectively attract FDI on the basis of their 
specific advantages. If the EPA does not address the relevant issue, there is a GAP (G); where 
it does; there is NO GAP (NG). To the extent that a gap exists then the treaty cannot achieve 
the required convergence.

All trade agreements stand as potential frameworks within which actual trade and investment 
can  take  place,  whether  or  not  actual  trade  takes  place  is  often  less  a  function  of  treaty 
obligations, than of other factors. However, in the area of investment the literature suggests 
a correlation between treaty provisions and investment flows (as a signal) (1).

The criteria employed to evaluate each issue for classification as G or NG is as follows:

1. 

Is there a specific provision?

2. 

Is the provision a positive obligation?

3.  Does the treaty stipulate guidelines or standards?

4.  Does the treaty mandate cooperation (2)?

For the final classification, if the answer to all of the above four questions in relation to the 
specific issue is yes, then there is no gap (NG), however a response in the negative to any of 
the above means that a gap exists (G).

(1) This is shown as being particularly relevant for Tourism (see Section on Implementation Issues and Concerns — 
Tourism). 
(2) Cooperation in the context of Regulatory issues focuses on non-financial forms of cooperation, unless otherwise 
indicated. 

Monitoring the implementation & results of the Cariforum-EU EPA | 29

Table 6: GAP Analysis — Investment in Non-Service Sectors 

Assess-
ment
NG

Comments 

Despite the lack of specific provisions, domestic 
mechanisms and international ones, as well as EPA 
specific adjudicatory processes can be invoked (1).

NG

G

NG

NG

NG

Though not defined, operational criteria are 
provided for through incorporation of GATS 
disciplines and applicable jurisprudence. Also EPA 
articles recognise this.
No EPA Treatment

This provides that mechanisms be put in place 
for the effective enforcement of specific legal 
obligations (since the national systems of 
enforcement are required), that is investors 
must be able to enforce their legal rights. While 
non-ratification may seem to pose a hindrance 
here it does not on two counts: first, often courts 
in CF have regard to international obligations in 
discharging the matters before them; and second 
incompatibility with domestic legal norms cannot 
invalidate the treaty obligation (VCLT). 
Facilitating interaction and dialogue between 
parties.
Reviews on the functions of investment 
frameworks as highlighted in Article 74 would 
also bring to the fore issues in relation to the 
performance of trade flows, as well as distribution 
between CF States, in addition to addressing 
problems of the legal framework. It is not clear that 
the 3-year review was conducted (2011) neither 
3-year reviews anticipated (2014) (3).
See comments in relation to Cooperation. Also 
ability to import TRIMS disciplines, as well as 
a general recognition that regulation is allowed.
Enhancing the capacities of Investment Promotion 
Agencies in CF, as well as allowing countries to 
calibrate their investment policies to their peculiar 
circumstances.

Issue 
Number
1

2

3

4

5

6

Issue 

EPA Provision

Investor 
State Dispute 
Mechanisms

Effective and 
Continuous Link 
with the host 
economy
Investor 
Protection
Effectiveness of 
court processes

Article 66 (Coverage), 
footnote 2
Article 62 (Future 
liberalisation), Article 74 
(Review)
Article 87 (procedures)
Article 65 (Definitions), 
footnote 1 (2)
Article 72 (Behaviour of 
Investors) 
None

Article 87 (Procedures)

Information 
asymmetries
(Availability of 
information to 
investors)

Article 7 (Development 
Cooperation), Article 74 
(Review)
Article 86 (Transparency)

Pro- 
development  
Investment 
Flows

Article 72 (Behaviour 
of Investors), Article 73 
(Maintenance of 
Standards), Article 3 
(Sustainable 
Development), Article 8 
(Cooperation Priorities)
Article 60(1) (Objective, 
Scope & Coverage),
Article 60(4), Article 73 
(Maintenance of 
Standards), Article 86 
(Transparency)

(1) Non-ratification may seem to be a concern; however, States have committed to provisionally apply the EPA. Non-
ratification, however, will not hinder adjustment to relevant laws to give effect to the letter and the spirit of treaty 
provisions. Further, incompatibility with domestic norms cannot invalidate or remove the obligations made under treaty 
(see Article 46 of the VCLT). So that investor disputes can still be effectively enforced in the domestic context.
(2) There seems to be some typographical discrepancy. 
(3) When asked about these, stakeholders indicated that they were not aware of them. Although some stakeholders indicated 
that their national regimes were under review, and in some countries, new investment regulations had been passed. 

30 | Monitoring the implementation & results of the Cariforum-EU EPA

4.1.  Conclusion — GAP analysis

A number of mechanisms have to be put in place to effectuate a particular kind of investment 
platform in the context of the EPA. Actual flows will, however, respond to the effectiveness 
of implementation. Based on the gap analysis above, more work may therefore need to be 
done to actively promote FDI flows into the region, in terms of enquiry points, cooperation, and 
establishment of modalities that allow for cooperation in the sense of business to business 
links.  In  essence,  CF  must  be  able  to  both  attract  and  benefit  from  these  flows.  Generally, 
this  points  to  the  importance  of  fulfilling  positive  treaty  obligations,  so  that  the  lack  of  an 
appropriate framework does not pose a limitation on these flows. Where there was found to 
be a gap, i.e. investor protection, the EPA, while not specifically providing for it, specifies that 
mechanisms must be in place.

The onus is therefore on effective implementation, and addressing the specific constraints to 
this. In the regulation context it is necessary that EPA Partners must properly incorporate the 
treaty obligations into national law.

Monitoring the implementation & results of the Cariforum-EU EPA | 31

5.  Implementation issues and concerns — 

Trade in services

As  noted  in  Article  246  (Revision)  of  the  EPA,  experience  gained  during  implementation  is 
relevant.  Such  experience  is  also  relevant  in  respect  of  Article  62  (Future  Liberalisation).  This 
section attempts to discuss 15 implementation issues and concerns identified by stakeholders, as 
areas of significance to meeting obligations in Title II. In particular, measures that are of general 
applicability are also discussed. Such measures relate to, for example, e-commerce in respect 
of cross-border provision of services, and universal service, competition rules that affect Mode 
3 in all sectors examined in this Report, as well as to issues that generally impact on market 
access  provisions,  and  which  would  affect  a  particular  mode  of  supply  (rather  than  a  specific 
sector)  (1),  The  specific  Implementation  issues  and  concerns  are  addressed  below,  based  on 
Consultations conducted during 2013 and 2014. The team met in person with private and public 
sector stakeholders and some civil society representatives, in CARIFORUM and EU stakeholders 
in Antigua and Barbuda, Barbados, Belize, Brussels, Dominica, the Dominican Republic, Guyana, 
Jamaica, Saint Lucia, Suriname, and Trinidad and Tobago (2).

5.1.  Legitimate objectives

Legitimate  Objectives  in  the  context  of  regulation  in  Title  II  of  the  EPA  are  not  seen  as 
a  positive  obligation.  Article  60(4)  provides  that  parties  retain  the  right  to  regulate  and 
introduce new regulations to meet legitimate policy objectives. Notwithstanding, it is important 
to  examine  this  issue.  Adlung  and  Miroudot  (2012)  note  that  commitments  in  services  are 
‘multi-dimensional’  in  the  sense  that  they  relate  to  four  types  of  transactions  (modes  of 
supply),  and  as  noted  extensively  in  the  literature  rely  on  regulation  to  control  flows.  This 
allows for virtually unlimited possibilities of non-tariff protection. In essence, regulations affect 
the degree of liberalisation. ‘Legitimate objectives’, therefore, in the context of the EPA, though 
not defined can be viewed as the limits on such flexibility in respect of liberalisation (market 
access and national treatment), implicating Article 62.

It is noteworthy that a significant departure of the EPA from the GATS is that the EPA bound the 
regulatory status quo: this means that there should not be a gap between the level at which 
commitments were bound, and the actual regulatory environment, at the time the concessions 
were made (3). Another critical element is that the measures or limitations inscribed in country 
Schedules  often  relate  to  legal  requirements,  so  that  administrative  practice  is  often  not 

(1) However as noted in earlier sections, a service is capable of being supplied in some instances by more than one 
mode of supply, certain modes dominate for some sectors, for example, Mode 3 for courier, Hotels, and Telecoms as 
well as Maritime.
(2) A list of persons interviewed can be found in Annex II, of the main report — Monitoring the Implementation & 
Results of the CARIFORUM‑EU EPA Agreement. 
(3) This is in respect of de jure measures. 

32 | Monitoring the implementation & results of the Cariforum-EU EPA

considered. Partners’ commitments, while signalling the level of market access committed, are 
not guaranteed, where there may be a need to regulate or re-regulate for ‘legitimate objectives’.

Further, in situations where Partner countries do not engage in frequent trade in the area, many 
impediments may not be obvious, as market access has not been tested. This underscores the 
need  for  balance  between  the  specific  obligations  (Schedules)  and  the  general  obligations. 
One of the ways that this balance is attempted in the EPA is through the requirement that 
regulation be done for ‘legitimate objectives’.

The EPA recognises the need to respect WTO commitments, it is not unusual therefore that we 
should have regard to GATS practice in this area (1). A mechanism is lacking under the EPA for 
members to evaluate whether this balance of obligations has been achieved in implementing 
the relevant regulation (2). Some stakeholders indicated that this information would be useful, 
though not suggesting or requesting that specific criteria be laid down in respect of legitimate 
objectives. They note that it would be unfortunate for such a high degree of discretion to erode 
the potential of the EPA.

Rather  than  specific  criteria  for  what  are  ‘legitimate  objectives’,  which  will  necessarily  vary 
depending  on  the  country’s  circumstances  at  any  point  in  time,  an  evaluative  mechanism 
under  the  EPA  could  be  implemented  so  that  Partners  could  have  knowledge  of  and  raise 
concerns  about  relevant  regulations  (3).  This  is  particularly  important  where  markets  are 
not  being  tested,  but  there  is  great  potential  market  access  opportunity  as  under  the  EPA. 
In  this  sense,  as  often  described  in  WTO  ‘speak’,  it  helps  to  preserve  the  balance  of  rights 
and obligations, erosion of which stands as an obstacle to effective implementation of the 
EPA. In fact throughout Chapter 5 (Regulatory framework), the ideas of non‑discrimination, 
competitively neutral, not more burdensome than necessary, reasonable and objective and 
does not constitute an unnecessary burden to trade, can all be found. This speaks to the fact 
that  while  there  is  a  general  freedom  to  regulate,  this  discretion  is  not  without  limits.  The 
provisions on Maritime Transport (4) (Article 109) rely heavily on adherence to these (see, for 
example, specific Maritime services listed at Article 109(6) (5).

5.2.  Mode 4 access

It has been noted in interviews with stakeholders, and relevant data show that restrictions remain 
the dominant barrier to trade in services for certain categories of services, particularly in business 
services (6), and sectors such as entertainment, where the main mode of supply is Mode 4.

(1) See for example WTO Dispute Settlement cases in the area of GATT Article XX and GATS Article XIV, Chapeau. 
(2) For example in the context of GATS members are required to notify of measures and other Members can pose 
questions on such new measures. Additionally, WTO dispute settlement provisions often attempt to restore the balance 
of rights and obligations where this is upset. 
(3) See below on Transparency also GATS working party on domestic regulation.
(4) Excluding cabotage. 
(5) Competition provisions are also directly relevant to the regulation of the provision of maritime services of the other 
Party. 
(6) Architecture, engineering and management consultancy.

Monitoring the implementation & results of the Cariforum-EU EPA | 33

Article 60, of Title II on Services and Investments general provisions, essentially states that 
the  provisions  of  the  Title  do  not  apply  to  immigration  measures.  This  is  the  main  area 
where  stakeholders  indicated  that  the  main  problem  of  effective  market  access  resides. 
In  particular,  for  the  services  examined  specifically  in  this  Report,  Mode  4  is  an  important 
mode of supply — architecture, engineering, management consultants, and entertainers (1). 
These categories of services were specifically given market access under Article 83 (2). Also 
subject  to  reservations  (3)  in  Members’  Schedules,  temporary  entry  for  key  personnel  and 
business  service  sellers  (Article  81  and  Article  82)  are  allowed  to  stay  for  90  days  in  any 
12-month period and graduate trainees for up to 1 year. Contractual service suppliers (CSS) 
and independent professionals (IP) represent a significant concession as compared to GATS 
offers in this area (Sauve and Ward 2009). This comports with significant liberalisation in EU 
Members’ Schedules — 12 EU Member States have completely liberalised for architecture, 
and  engineering,  and  for  management  consulting  14  (4).  For  entertainers,  however,  all  EU 
Members States have noted reservations, and in one instance remains unbound.

While not being a part of the Agreement, visas were raised in consultation as the main obstacle 
to  realisation  of  benefits  under  the  EPA  from  these  concessions.  Stakeholders  noted  the 
perceived difficulty of addressing these issues in the context of the EPA, given the dichotomy 
that exists between immigration and trade rules. Effective market access is in fact contingent 
upon such access (5). Lindsay (2013) refers to this as ‘access without entry’.

Another reason given for the lack of realisation of benefits in this area is that MRAs have not 
yet  been  finalised,  though  work  is  far  advanced  in  some  areas.  Notwithstanding,  for  other 
categories of natural persons to provide access (non-professional), entry, which is predicated 
on  visas  (for  those  countries  not  exempt  from  this  requirement),  will  remain  a  significant 
hurdle, notwithstanding the conclusion of MRAs. This is particularly so for entertainers (6).

Notwithstanding actual implementation, at the policy level, procedures for a Schengen visa also 
have been simplified (7). Further, European Parliament and Council Regulation No 509/2014 (8) 
has formalised and enlarged the traditional list of criteria that determine the third countries 
whose  nationals  are  subject  to,  or  exempt  from,  the  visa  obligation  for  exemption  of  visa 
adding also foreign trade. Since May 2009, four CARIFORUM States — Antigua and Barbuda, 
the Bahamas, Barbados and Saint Kitts and Nevis — are exempted from a visa obligation 
to enter the EU Schengen countries for short stays. In 2014, Dominica, Trinidad and Tobago, 

(1) Only 1°CF Partners provide market access in respect of entertainers 
(2) For CSS, access is permitted for 29 sub-sectors, and for independent professionals access is permitted for 
11 sub-sectors. 
(3) For mode access in terms of Architecture and Engineering only five EU Member States (Bulgaria, Estonia, Greece, 
Hungary, and Slovakia) have scheduled reservations related to residency, period of experience. For entertainers, France 
has scheduled reservations in respect of management functions. 
(4) This includes the UK and Ireland, who are outside the Schengen area. Other EU Members noted some form of 
reservation. 
(5) Some CF countries have received visa waivers to travel to the EU for short stays. It is anticipated in the next review 
additional CF Member States may be added. 
(6) The EC has made proposals in respect of ‘touring requirement’ for short stay visitors. 
(7) Regulation (EC) 810/2009 of the European Parliament and of the Council of 13 July 2009, Establishing 
a Community Code on Visas (Visa Code).
(8) OJ L 149, 20.5.2014, p. 67

34 | Monitoring the implementation & results of the Cariforum-EU EPA

Grenada, Saint Vincent and the Grenadines, and Saint Lucia were transferred also from list of 
countries subject to visa obligation the list of under the visa exemption. The exemption from 
the  visa  requirement  will  apply  from  the  date  of  entry  into  force  of  an  agreement  on  visa 
exemption to be concluded by each of these countries with the European Union.

No information was available to suggest that visa procedures were simplified in the UK and 
Ireland for CF.

The high cost and burden placed on those CF countries that do not have consular representation 
was also raised.

Unctad (2103a, p. 21) notes that difficulties in respect of Mode 4 access present an area of 
potential cooperation between RTA partners. This is already provided for in the context of the 
EPA,  in  respect  of  assistance  to  ‘facilitate  the  implementation  of  commitments  under  this 
Title, and achieve the objectives of this Agreement’. Examples of such cooperation include, 
particularly in relation to business travel, card schemes in certain FTAs as well as the Blue 
Card scheme in the EC.

5.3.  MRAs

Under the EPA, MRAs stand as an important element to gain entry into the EU market. The 
OECD notes that regulatory barriers are much less in engineering and architecture, as these 
are  controlled  by  product  related  regulation  and  a  number  of  MRAs  have  been  developed. 
While  work  is  advanced  in  this  aspect  between  the  EPA  partners  (see  TDC  Minutes)  some 
more  work  needs  to  be  done  at  the  CARICOM  level  for  the  Agreements  to  be  finalised. 
Notwithstanding, however, some countries’ legislation as we have seen allows reciprocity — 
that  is  a  mechanism  whereby  the  qualifications  of  non-nationals  can  be  investigated  and 
a  suitable  designation  arrived  at  in  both  the  EU  and  in  CF.  This  is  for  example  the  case  in 
Antigua and Barbuda, whose Engineer’s Registration Act was amended in 2009 to allow for 
consideration of other national accreditations.

MRA preparatory work is being coordinated by the Caribbean Architects Mutual Recognition 
Agreement Committee (CAMRAC) which has representatives from each body. While efforts on 
the engineering side have not progressed as far, engineering representative bodies on both 
sides  met  in  2011  to  discuss  further  collaboration  and  have  signed  Joint  Declarations  on 
Cooperation (1).

(1) On the CARIFORUM side, the declarations have been signed by Caribbean Council of Engineering Organisations 
(CCEO) which serves the Caribbean Commonwealth States; the Colegio Dominicano de Ingenieros, Arquitectos 
y Agrimensores (CODIA) (College of Engineers, Architects and Surveyors of the Dominican Republic) and the Orde van 
Raadgevende Ingenieurs in Suriname (ORIS). The EU counterparts are European Federation of National Engineering 
Associations (FEANI) and European Network for Accreditation of Engineering Education (ENAEE), and another with the 
European Society for Engineering Education (SEFI).

Monitoring the implementation & results of the Cariforum-EU EPA | 35

5.4.  Residency/Domicile requirements

Most limitations on market access and national treatment inscribed in Members’ schedules 
have more to do with residency requirements. Since these are scheduled limitations they do 
not pose market access barriers, given that they define the limits of liberalisation under the 
EPA. Findlay and Warren (2000) note that domicile or residency requirements are distinct from 
registration or licensing requirements; though, as in some countries, they may constitute part of 
the criteria for obtaining registration under the relevant Act, to use the particular professional 
designation  such  as  ‘engineer’  or  ‘architect’.  Licensing  requirements  are  allowed  under  the 
EPA. In the EU there has been a move away from domicile requirements. Findlay and Warren 
(2000) note that these requirements are on the retreat in most OECD countries. In the EPA 
they constitute a large number of the limitations imposed. Residency requirements inscribed 
related to either a requirement for permanent residency or  residency;  however,  no mention 
has been made of domicile requirements. However, in some jurisdictions, both domicile and 
residency may be required. It is the case in some CF jurisdictions that the relevant laws need 
to be reviewed to ensure that both requirements accord with the commitments made.

5.5.  Enquiry points (transparency)

Arguably,  the  most  important  practical  requirement  relates  to  Article  86,  since  throughout 
the  consultations  with  stakeholders  the  need  for  market  intelligence  was  highlighted.  One 
of the main reasons that CF services were not testing market access in the EU was the lack 
of information on precisely where opportunities lay. While there are some projects that have 
sought to address this, and Caribbean Export indicated that such a project was being developed, 
if enquiry points were resourced enough to provide relevant information to stakeholders and 
investors this would help to ameliorate information constraints in CF.

Most CF stakeholders used the Ministry of Trade, and/or investment, promotion agencies, as 
well as service coalitions as enquiry points. Although these have clearly been designated under 
the EPA by all EPA Partners, no comprehensive assessment on the functioning of these bodies 
has been undertaken. This was attempted for this report by way of questionnaires designed 
specifically for the review (1). These indicated, to the extent that responses were submitted, 
that some enquiries were made to the relevant enquiry points in some CF Partners and they 
were able to provide the relevant information. In some instances, however, requests to known 
enquiry points in CF did not yield a response though web portals had been established. For 
example, the Jamaica Coalition of Service Providers website did not produce a response to 
enquiries made via the web portal nor emails to some coalitions, such as in Guyana. Many 
CARIFORUM stakeholders indicated that more needed to be done to allow the relevant enquiry 
point to be operational, such as increasing resources and personnel.

(1) The response rate to these questionnaires was however low and at the time of writing only a few CF countries had 
responded. 

36 | Monitoring the implementation & results of the Cariforum-EU EPA

Although difficulties were noted in getting information in the EU during consultations, requests 
in some instances were not being sent to the listed enquiry points in the relevant EU Member 
State for the sector and service activity for which information was being sought. For example, 
if  there  was  an  interest  in  setting  up  a  consulting  firm  in  Croatia,  no  specific  information 
request was made to the enquiry point listed for Croatia. Rather, the EU help desk was often 
consulted. This was partly because the EU help desk is more well-known, visible and useful, 
many try to seek information on services and investment though this portal. However, the EU 
Help Desk only deals with trade in goods.

On  difficulties  in  getting  information  from  enquiry  points  that  were  contacted  in  the  EU  by 
stakeholders, this seemed to stem from functional issues during the review period, such as, 
for example, email addresses that do not work, change of personnel, etc. This was the case 
for  example  in  Belgium,  Germany,  France,  the  Netherlands  and  the  United  Kingdom.  The 
infrequency makes them novel and may leave these issues of requests unnoticed.

This is one of the, if not the most, important practical requirements for actual trade to take 
place between the relevant Partners. If there is a perception that there is a dense regulatory 
framework, for example as can be suggested by the World Bank, Doing Business, reports, then 
this could act to dampen actual trade even outside of the commitments made. If investors 
or service providers cannot access the relevant market information, then it is less likely that 
they will attempt to enter that market. In many instances, it was revealed that this had 
to do more with a ‘perception’ that the information was lacking, or that it would be 
difficult to find. This perception was fuelled by the lack of awareness of the relevant 
enquiry points.

There is a critical need for market intelligence, a need that seemed to have been communicated 
to  the  relevant  regional  entities  to  coordinate  CF  efforts  in  these  areas.  One  of  the  critical 
areas related to promotion of the region in respect of investment, so that EU investors could 
have the information on the region as well as on individual CF Partners. Five years on, these 
efforts  need  to  be  fast  tracked.  The  fact  that  the  EPA  stands  as  a  clear  signal  to  foreign 
investors implies that relevant information should be readily available.

It is also noteworthy that EU-CF EPA requirements fall short of GATS requirements, not being 
subject to these notification requirements in respect of measures that affect trade in services. 
A requirement for notification would increase awareness of measures coming into being post 
EPA and allow for queries. As Mattoo and Sauvé (2003) note, ‘Transparency is an essential 
component …in revealing the basis for, and the full range of costs and benefits of regulatory 
decisions and their implementation’.

5.6.  Competition

Competition  is  one  of  the  main  obligations  that  runs  throughout  the  Regulatory  Chapters, 
and  is  a  basic  obligation  that  must  be  met  by  Contracting  Parties.  There  is  no  jurisdiction 
in international trade law that explicitly addresses these regulatory issues, apart from that 

Monitoring the implementation & results of the Cariforum-EU EPA | 37

embedded  in  the  requirement  for  non-discrimination  under  WTO  law,  and  indeed  in  other 
aspects  of  international  law,  there  is  general  consensus  that  the  effect  of  such  measures 
is assessed in relation to the conditions of competition in the relevant market. That is, the 
regulatory playing field must be such that conditions of competition are not skewed in favour 
of domestic service and services suppliers, and on that basis similar treatment will be accorded 
to  all  similar  services  and  service  suppliers.  Some  authors  (Brusik,  Alvarez,  and  Cernat, 
2005) indicate that these provisions are necessary so that the gains of trade liberalisation 
can  be  assured,  integration  through  cooperation  and  consistency  in  the  development  and 
administration of laws is promoted and the anticompetitive effects that come with market 
opening (dominance, cartels, etc.) minimized. These anti-competitive safeguards may be even 
more relevant in respect of the EPA, which unlike the GATS in the area of services does not 
treat  with  subsidies.  The  competition  regime  in  the  EC  is  well  established,  and  in  fact  has 
influenced the development of norms and institutional design in many jurisdictions. This is also 
an area where the benefits of non-financial forms of cooperation can be significant.

In some CF jurisdictions, such as in Jamaica and Barbados the regimes are well developed (1), 
while in others they are still in the process of putting the necessary framework in place. Of 
the CF-Partners only six have both competition laws and institutions established, these are 
the Bahamas, Barbados, the Dominican Republic, Guyana, Jamaica, and Trinidad and Tobago.

Though the need to implement competition laws is driven by policy, there are obligations to 
do this under the Revised Treaty of Chaguaramas (RTC) and the EPA, both of which are legally 
binding.

Movement towards implementing fully the necessary regimes has been slow. The Consultations 
revealed  that  there  is  recognition  and  indeed  an  acceptance  of  the  fact  that  competition 
norms are critical and effective enforcement is paramount. Some of the reasons given for the 
slow pace of implementation are as follows:

 ― limited human resources, particularly in the area of legislative drafting

 ― the law-making process itself, parliamentary system

 ― financial resources to set up necessary authorities

 ― drafting of rules based on best practices and norms in developed country jurisdictions 
without taking the legal (2) and socioeconomic realities of the relevant jurisdiction into 
account

 ― poor or incorrect drafting of relevant laws, necessitating amendments

(1) Though some issues remain. 
(2) For instance, important differences arise in the administration of justice because of a prevalence of common law 
(and mixed in some instances) in CF versus the prevalence of civil law in the EC. 

38 | Monitoring the implementation & results of the Cariforum-EU EPA

Table 7: CF status of competition framework

CF-EPA partners’ competition legal framework 

Authority

Status of enactment

Antigua and Barbuda

Not yet established

The Draft OECS Competition Bill in process of review

Bahamas

Barbados

Belize

Dominica

Sector regulator- The Utilities Regulation 
and Competition Authority (URCA)

The Utilities Regulation and Competition Authority 
Act (2009)

The Barbados Fair Trading Commission 

The Fair Competition Act CAP. 326C

Not yet established

Draft Bill

Not yet established

The Draft OECS Competition Bill in process of 
review

Dominican Republic

Procompetencia

General Defense Competition Law No. 42-08

Grenada

Guyana

Jamaica

Not yet established

The Competition and Consumer Affairs 
Commission of Guyana (CCAC)

The Draft OECS Competition Bill in process of 
review

Competition and Fair Trading Act of Guyana (2006)

The Fair Trading Commission (FTC)

The Fair Competition Act

Saint Kitts and Nevis

Not yet established

The Draft OECS Competition Bill in process of review

Saint Lucia

Not yet established

The Draft OECS Competition Bill in process of review

Saint Vincent and the 
Grenadines

Not yet established

The Draft OECS Competition Bill in process of review

Suriname 

Not yet established

A Competition Bill has been drafted and a series of 
stakeholder consultations are being undertaken to 
finalise the Bill before taking it to the Parliament 
of Suriname.

Trinidad and Tobago

The Fair Trading Commission

Fair Trading Act (2006)

Total CF-EPA Partners with competition regimes

Total CF-EPA Partners in process of enactment

Source: http://www.caricomcompetitioncommission.com

6

8

 ― Lack of focus on effective design of relevant institutional structures (1), both in terms of 

administration and investigative functions

 ― Lack of competition culture (Beckford, 2010) among legislators and the judiciary (2)

This latter point is crucial in the context of the EPA and efforts towards meeting not only the 
letter of the obligations but also their substance. Ineffective laws and institutions will have 
serious economic consequences stemming from a lack of benefits of trade liberalisation, but 

(1) This is nowhere more obvious than in the case of Jamaica Stock Exchange v The Fair Trading Commission, where 
we see that more attention needs to be placed to these aspects of law making and administration. These missteps 
are indeed not only alien to the area of competition law, but have also plagued other regulatory areas of international 
trade administration, Customs, and Anti-dumping, where constitutional principles were not honored.
(2) For example, in the Privy Council Case, National Commercial Bank Jamaica Limited v Olint Corp. Limited, Privy 
Council Appeal No 61 of 2008, although competition issues were raised the Board and indeed the Jamaican Courts 
essentially skirted the issues, and some would argue that because of the lack of proper analysis along the lines of 
competition principles, resulted in not only precedent that could be harmful and have a domino effect, but more 
importantly retarded the development of already limited regional jurisprudence in this area. 

Monitoring the implementation & results of the Cariforum-EU EPA | 39

can also have serious consequences for the administration of justice and the effectiveness 
of  remedies  in  jurisdictions  where  perceptions  of  inadequacy  are  often  reported  in  myriad 
international surveys.

Effective implementation of the relevant obligations in regard to cooperation could, to a great 
extent help to overcome or mitigate some of these issues (1). At the meeting of the group of 
experts of Unctad on competition policy in July 2013, it was noted that there was an increase of 
cross-border anti-competitive practices, like cartels. One of the ways that has effectively been 
put forward to deal with this related to ‘Cooperation in the joint prosecution of anticompetitive 
cases  would  lighten  burdens  and  improve  regional  cartel  control’  (2).  The  representative  of 
the  Caribbean  Community,  at  the  meeting  shared  the  Community’s  experience  in  dealing 
with  cross-border  anti-competitive  issues.  He  stressed  the  need  for  technical  assistance  to 
facilitate the exchange of information with regional groupings and Small Island Developing 
States (SIDS). Title II of the EPA is littered with provisions that speak to cooperation, particularly 
in relation to regulatory issues at the sector level. However, any analysis of this issue would 
indeed be incomplete without reference to the substantive obligation in this respect, or rather 
the grundnorm, of EPA Competition disciplines (3) (Article 130).

Stakeholders interviewed, however, could not definitively indicate whether such cooperation 
took place or is taking place. In fact many stakeholders involved in the process at the level of 
the EPA-TDC, indicated that there was a lack of mechanisms to effect these provisions (4). In 
response to specific questions to stakeholders on the latter issue, they could not specifically 
identify  initiatives  either  between  individual  CF  states  or  EC  Member  States  in  respect  of 
cooperation in the context of the EPA competition matters. More formal questionnaires were 
provided  to  EPA  Partners  to  provide  more  detailed  information  where  available  in  respect 
of  these  issues  (5).  Interviews  with  stakeholders  showed  that  there  was  an  awareness  of 
competition  issues  being  relevant  to  the  EPA.  On  the  part  of  the  private  sector,  though 
expressing concerns throughout consultations, only one area stood out where there seemed 
to be penetration by the EU services providers into the relevant market — this was in respect 
of tour guides. The opinion was expressed that this was welcomed from the perspective that 
these guides provided knowledge about geographical, cultural and environmental issues and 
conditions,  essentially  improving  the  quality  and  range  of  the  service  offered,  for  example 
providing  insurance  cover.  This  benefited  the  tourism  industry  in  that  Partner  significantly; 
however, there were negative effects on the indigenous groups that usually provided these 
services. Though these market issues were present, no mention was made that any actions on 
the part of these tour guides were ‘anti-competitive’.

(1) Regard however, must always be had to the relevant legal system and principles applicable in the particular 
jurisdiction. 
(2) http://unctad.org/meetings/en/SessionalDocuments/ciclpd25_en.pdf, p. 11.
(3) Chapter 1 of Title IV the EC-CARIFORUM EPA, ‘Competition’. 
(4) See discussion on cooperation below. 
(5) Questionnaire emailed to All CARIFORM EPA Coordinators and the EC (DG Trade) over the period 1617 April 2014. 

40 | Monitoring the implementation & results of the Cariforum-EU EPA

5.6.1.  Courier

Article 90 states that measures ‘shall’ be maintained or introduced to combat anti-competitive 
practices  and  commits  the  EU  and  CF  to  introduce  measures  aimed  at  preventing 
anti-competitive behaviour. As noted earlier within CF only six States — Bahamas, Barbados, 
the  Dominican  Republic,  Guyana,  Jamaica,  and  Trinidad  and  Tobago  —  have  a  regulatory 
authority  in  place.  In  the  EU  The  Postal  Directive  includes  the  relevant  provisions  on 
anti-competitive practices required by that Article 90.

For  Countries  without  regulations  governing  Courier  services,  such  as  Bahamas,  Barbados, 
Belize,  Dominica,  Grenada,  Saint  Kitts  and  Nevis,  Saint  Vincent  and  Grenadines,  Suriname, 
Trinidad  and  Tobago,  this  obligation  can  be  met  through  the  use  of  Competition  laws  and 
Institutions (1), provided there are no sectoral exclusions in the competition law or any other 
law.  In  this  sector,  for  example,  EC  (2)  has  addressed  the  competitive  effects  of  mergers 
between a Foreign Service supplier and a local courier through its competition laws. Where 
laws and institutions are in place in CF, in some instances further reforms are need in CF to 
allow for effective operation of the regimes. This is for example the case in Jamaica, where 
the  FTC  because  of  issues  of  natural  justice  the  competition  authority,  until  its  laws  have 
been revised has been able to effectively carry out investigations, but cannot make a formal 
finding which is enforceable by the Courts. The FTC then has to take the matter through the 
Court system and this attracts court costs, as opposed to placing it before the Competition 
Commissioners (3).

Also, consultations did not yield information on any reviews conducted in CF to ensure that any 
sectoral exclusion or other limiting provisions do not impact on commitments made under the 
EPA in relation to specific service sectors. For instance, customs regulations as well as refusal 
to deal would be most relevant in the context of courier services. In one instance, in Jamaica 
it was noted that local couriers could not branch out to provide international delivery services, 
by contracting with these international companies, for airfreight and delivery. This limits their 
ability to meet the market demand for ‘door-to-door’ services (4). For those CF countries that 
do have competition regimes — Bahamas, Barbados, the Dominican Republic, Jamaica, and 
Trinidad and Tobago — they vary in terms of the treatment of mergers.

Given the critical importance of these services to trade facilitation, and the effect of competition 
on prices for these services, it is imperative not only that Competition rules be implemented in 
CF, but that there be development of a competition culture (Beckford, 2010). EPA obligations 
in respect of competition can help to address some of these issues, including cooperation.

(1) See CARIFORUM-EPA, Article 93. 
(2) See recent opinion in respect of UPS merger, European Commission.
(3) See Digicel v Claro. 
(4) See recent opinion in respect of UPS merger, European Commission, http://europa.eu/rapid/press-release_IP-13-
68_en.htm. 

Monitoring the implementation & results of the Cariforum-EU EPA | 41

Table 8: Inventory of laws affecting courier services in CARIFORUM

Country 

Measure 

Summary Description of Measure 

Measures Affecting Postal and Courier Services in CARIFORUM

Antigua and  
Barbuda

Bahamas

Barbados

Belize

Dominica

Dominican  
Republic

Grenada

Guyana

Post Office Act, Cap. 335 
Postal Act (1909; 1955; 
1989) Post Office Offences 
Act, 1878.

S.13 Within the limits and along the coasts of Antigua and Barbuda, the postal 
administration shall have the exclusive privilege of conveying from one place 
to another within Antigua and Barbuda, all letters, and the exclusive privilege of 
performing all the incidental services of receiving, collecting, sending, despatching and 
delivering all letters within Antigua and Barbuda, and all letters going to or coming 
from parts beyond Antigua and Barbuda except in cases stated in the Appendix.

n/a

n/a

n/a

n/a

Decreto No. 402-05 que 
aprueba el Reglamento 
para el Despacho Expreso 
de Envíos en la República 
Dominicana

n/a

The Post and Telegraph Act, 
Cap 47:01 

Fair Competition Act establishes the Fair Trading Commission (FTC) to, inter alia, 
carry out, on its own initiative or at the request of any person such investigations 
or inquiries in relation to the conduct of business in Jamaica as will enable it to 
determine whether any enterprise is engaging in business practices in contravention 
of the Act and the extent of such practices. The Act is designed to cover all activities 
carried out for gain or reward or in the course of which goods or services are 
manufactured, produced or supplied. Post Office Act provides for the appointment of 
a Postmaster-General on whom is conferred the exclusive privilege of conveying from 
one place to another within the Island, or into or out of the Island, whether by land, 
sea or air all letters, and the exclusive privilege of performing all incidental services 
of receiving, collecting, sending, dispatching, and delivering all letters, subject to 
certain stated exceptions, including letters carried by a private friend; letters sent by a 
messenger concerning the affairs of the sender or receiver; letters concerning goods 
and other property with which the letter is delivered without hire or reward, and letters 
involving court proceedings. 

This Act provides for protection against unfair competition. By virtue of section 3 of 
the Act any act or practice, in the course of industrial or commercial activities, that is 
contrary to honest practices constitutes an act of unfair competition. It is an act of 
unfair competition according to section 6 of the Act to mislead the public with respect 
to an enterprise or its activities, in particular, the products or services offered by an 
enterprise by any, act or practice, in the course of industrial or commercial activities. 
The section also states that misleading may arise out of advertising or promoting or 
occur with respect to the quality or quantity or other characteristics of products or 
services or the price of products or services or the manner in which it is calculated.

Discrediting another’s enterprise or activities by advertising or promotion or 
occurrences with respect to the quality or quantity or other characteristics of products 
or services or the price of products or services or the manner in which it is calculated 
constitutes an act of unfair competition under section 7 of the Act.

Jamaica

Fair Competition  
Act Post Office Act

Saint Kitts and Nevis

n/a

Saint Lucia

Protection Against Unfair 
Competition Act, Cap. 13.28

Saint Vincent and 
the Grenadines

Suriname

Trinidad and Tobago

n/a

n/a

n/a

42 | Monitoring the implementation & results of the Cariforum-EU EPA

5.6.2.  Telecoms, Maritime and Tourism — Anticompetitive Practices

Telecoms  (Article  97),  Maritime  (Article  109(5))  and  Tourism  (Article  111)  all  contain 
a  requirement  for  measures  to  combat  anti-competitive  practices.  Here  there  are 
specific  requirements 
information,  timely 
in  respect  of  cross-subsidisation,  use  of 
provision  of  information,  cargo  sharing  agreements  (1),  and  availability  of  port  services  on 
a non-discriminatory basis. It is important that domestic competition laws give effect to these 
provisions. It is noted that in some jurisdictions this may be addressed specifically through the 
relevant telecoms legislation or competition law. In addition, all competition laws currently in 
place in CARIFORUM — Bahamas, Barbados, Guyana, the Dominican Republic, Jamaica, and 
Trinidad and Tobago — pre-date the EPA, so careful review is required to ensure that these 
issues are sufficiently addressed to the extent that there are no sectoral exclusions that 
conflict with commitments, and that competition authorities have jurisdiction in these areas.

Under  the  EPA,  regulatory  authorities  for  telecommunications  must  be  legally  distinct  and 
functionally independent from any supplier of telecommunications  services;  their roles and 
responsibilities must be publicly available, decisions and procedures must be impartial and 
suppliers  have  the  right  to  appeal  any  decision  by  a  regulatory  authority.  These  and  other 
competitive safeguards can be found throughout CARIFORUM, even in those cases where the 
industries are subject to a high level of state control.

Table 9: Inventory of CF telecoms measures

Measures Affecting Telecoms Services in CARIFORUM 

Country 

Antigua  
and Barbuda

Bahamas

Barbados

Belize

Dominica

Measure 
Telecommunications Act of 
1951; amendment 1994 
Amendment 2003 

Summary Description of Measure 

Telecommunications Act, 
Cap.282a

S.3(1) The Crown reserves the exclusive right to provide telecommunication for 
public correspondence in Barbados.

S.3(2) Without affecting the generality of the above, the Minister may grant a 
licence to any person to construct, maintain and operate telecommunication 
facilities in the circumstances outlined in the Appendix.

Public Utilities Commission 
Act and the Telecommunica-
tions Act 2002

Under the Public Utilities and Commission Act, the PUC is established to regu-
late the electricity, water and telecommunications sectors in Belize. The Tele-
coms Act provides that the PUC establish a universal service fund. 

Telecommunications ACT #8 
of 2000

AN ACT TO PROVIDE FOR THE REGULATION OF TELECOMMUNICATIONS; TO 
ESTABLISH THE NATIONAL TELECOMMUNICATIONS REGULATORY COMMISSION; 
AND TO PROVIDE FOR RELATED OR INCIDENTAL MATTERS (Gazetted 26th 
October, 2000.) WHEREAS the Government of the Commonwealth of Dominica 
(hereinafter called the Government) is a party to the Treaty establishing the 
Eastern Caribbean Telecommunications.

The General Telecommunications Law No. 153-98 aims to promote the devel-
opment of telecommunications, promote fair, efficient and sustainable compe-
tition, defend and preserve the rights of consumers, promote universal service 
and efficiently manage the radio spectrum. The provisions of Law No. 153-98 
are supplemented by the regulations and decisions issued by the Dominican 
Institute of Telecommunications (lNDOTEL) (www.indotel.gob.do)

Dominican  
Republic

Ley General de Telecommu-
nications No. 153-98 (he 
General Telecommunications 
Law No. 153-98)

(1) For a discussion of competition law in Maritime see Phang (2009). 

Monitoring the implementation & results of the Cariforum-EU EPA | 43

Country 

Measure 

Summary Description of Measure 

Measures Affecting Telecoms Services in CARIFORUM 

Telecommunications ACT 
#31 of 2000

An Act to provide for the regulation of telecommunications, to establish the 
National Telecommunications Regulatory Commission and to provide for relat-
ed or incidental matters.

Grenada

Guyana

Jamaica

Public Utilities Commission 
Act 1999 as amended by 
the Public Utilities Commis-
sion Amendment Act No. 16 
of 2010, Telecommunica-
tions Act as amended and 
Competition and Fair Trading 
Act , Post and Telegraph Act

Office of Utilities Regulation 
Act The Telecommunica-
tions Act

Office of Utilities Regulation Act establishes the Office of Utilities Regulation 
(OUR) as the statutory regulator for all prescribed utility services including 
telecommunications. The OUR is mandated to, inter alia¸ promote efficiency, 
encourage competition, and protect the interest of consumers, and the devel-
opment and use of indigenous resources. The OUR is conferred with various 
statutory powers; it may, for example, hold an enquiry on its own motion or on 
the basis of a complaint into the operations of any prescribed utility service 
and, if necessary, order that remedial measures be taken. 

Telecommunications Act Act defines telecommunications as the transmission 
of intelligence in any form or combination of forms by means of guided or 
unguided electromagnetic, electrochemical or other forms of energy, transmit-
ted between persons and persons, things and things or persons and things. The 
Act provides that the Office of Utilities Regulation (OUR) established under the 
Office of Utilities Regulation Act is the statutory independent telecommunica-
tions regulator for the purposes of the Act. The OUR is charged with, inter alia, 
receiving and processing applications for licences and making recommenda-
tions to the Minister in relation thereto, investigating conduct which appears 
to be in contravention of the Act, and promoting competition among carriers 
and service providers. The Act mandates the OUR in exercising its functions to 
observe the basic rules of due process

An Act to provide for regulation of telecommunications; to establish the Nation-
al Telecommunications Regulatory Commission; and to provide for related or 
incidental matters.

Saint Kitts and 
Nevis

Telecommunications ACT #2 
of 2000

Saint Lucia

Telecommunications 
ACT #27 0f 2000

 Amendment 2003 extended period of licence. Amendment 2006 extended 
period of licence. 

Saint Vincent and 
the Grenadines

Telecommunications ACT #1 
of 2001

Suriname

Telecommunications Act. 
(S.B. 2004 No. 151)

Trinidad and 
Tobago

Telecommunication Act 
CAP 47:31 (2001)

AN ACT to provide for the regulation of telecommunications, to establish the 
National Telecommunications Regulatory Commission, and for related or inci-
dental matters. The Telecommunications Act is an Act to provide for the regu-
lation of telecommunications in Saint Lucia. One of the principal objects of the 
Act as stated in section 2(2) is to ensure open entry and market liberalization in 
telecommunications. Section 28 prohibits a person from establishing or oper-
ating a telecommunications network or providing a telecommunications service 
without a licence. Before granting an individual licence under the Act, section 
31 of the Act requires the Minister to take into account whether foreign and 
domestic investors will be encouraged to invest in telecommunications.

The Government of Suriname provisionally created a public authority, the Tele-
communications Authority Suriname (TAS) in 1998, with a view to regulate and 
supervise telecommunications common carriers and service providers. In 2004 
the law that established the TAS was repealed, and the TAS was established on 
a definitive basis and was accorded a more independent role.

Source : Previous Inventories, EPA 5-Yr study Questionnaire responses (some countries), ECTEL website, CARICOM Competition Commission

44 | Monitoring the implementation & results of the Cariforum-EU EPA

Table 10: Telecoms authorities in CARIFORUM

CARIFORUM TELECOMS AUTHORITIES 

CARIFORUM PARTNER
Antigua & Barbuda

Barbados

TELECOM AUTHORITY
Antigua & Barbuda Telecommunications Division, Telecommunications Division, Ministry of 
Telecommunications, Science and Technology. The Telecommunications Officer along with 
complementary Telecommunications Division staff, administer the telecommunication laws 
in Antigua & Barbuda.
Telecommunications Unit, The Unit is presently under the Division of Energy and 
Telecommunications in the Prime Minister’s Office.
Public Utilities Commission
National Telecommunications Regulatory Commission
Instituto Domincano De Las Telecomunicaciones (Dominican Institute of Telecommunications)
National Telecommunications Regulatory Commission Grenada
Public Utilities Commission
Conseil National des Telecommunications
Office of Utilities Regulation 
Montserrat Info-Communication Authority
National Telecommunications Regulatory Commission St Lucia
National Telecommunications Regulatory Commission St Lucia
National Telecommunications Regulatory Commission of St Kitts & Nevis

Belize
Dominica
Dominican Republic
Grenada
Guyana
Haiti
Jamaica
Montserrat
Saint Lucia
Saint Lucia
Saint Kitts & Nevis
Saint Vincent & the Grenadines National Telecommunications Regulatory Commission St Vincent & the Grenadines
Suriname
The Bahamas
Trinidad & Tobago

Telecommunicatie Autoriteit Suriname
Utilities Regulation and Competition Authority
Telecommunications Authority of Trinidad & Tobago

5.7.  Universal Service

Universal service is variously defined in different jurisdictions, but the underlying idea is that 
a certain level of service must be accessible by all. The obligation in the EPA is to ensure that 
this obligation is not more burdensome than necessary, and that it is competitively neutral 
and non-discriminatory. For courier services this obligation is contained in Article 91 and for 
Telecoms  Article  100.  All  signatories  under  the  EPA  have  the  right  to  define  their  universal 
service  obligations,  ensuring  that  the  Agreement  does  not  have  the  effects  noted  above. 
Further, where such effects are found, there is the requirement for a mechanism to compensate 
suppliers  in  telecommunication  services.  All  CF-Partners  have  telecoms  regulators.  All  the 
relevant statutes in force have provision for universal service. In some jurisdictions such as 
in the OECS there is also the requirement for a Universal Service Fund as well as in Jamaica.

5.8.  Tourism

The importance of tourism throughout the CF region is generally acknowledged. Most of the 
data on tourism however, focus on travel receipts. In respect to Mode 2 (consumption abroad) 
this gives a good idea of the level of activity in the tourism sector. Specific data on FDI into the 
sector are lacking, however. Travel receipts generally dominate service sector activity in most 
CF countries. Therefore any measures that increase the cost of travel to these destinations, 
such as the air passenger duty in the UK, can have a significant impact. Stakeholders note that 
this measure has in fact had a significant effect on receipts.

Monitoring the implementation & results of the Cariforum-EU EPA | 45

Table 11: CF services exports by category

Selected CF Services Exports 

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

Total services  
(US$ Million)

10 420.177 9 898.173 10 123.318 11 050.663 11 943.605 13 202.026 14 209.292 15 038.512 15 426.818 14 299.269 15 073.157 2 0154.258

Transport

8.20 %

8.68 %

9.04 %

9.72 %

9.95 %

8.55 %

8.79 %

8.89 %

8.93 %

8.89 %

8.87 %

6.69 %

76.01 % 76.26 %

74.50 % 75.39 % 73.78 % 75.73 % 76.55 % 75.18 % 73.74 % 75.38 % 74.83 % 56.62 %

15.79 % 15.06 %

16.46 % 14.90 % 16.27 % 15.72 % 14.66 % 15.94 % 17.33 % 15.73 % 16.30 % 32.89 %

5.28 %

4.43 %

4.27 %

3.71 %

3.95 %

3.24 %

3.21 %

3.14 %

3.06 %

3.51 %

3.31 %

1.93 %

0.21 %

0.30 %

0.41 %

0.41 %

0.38 %

0.38 %

0.38 %

0.37 %

0.41 %

0.39 %

0.37 %

0.03 %

5.29 %

4.80 %

5.74 %

5.43 %

6.35 %

6.38 %

6.21 %

7.42 %

8.42 %

6.66 %

7.17 % 27.41 %

0.10 %

0.09 %

0.10 %

0.19 %

0.24 %

0.23 %

0.22 %

0.20 %

0.25 %

0.24 %

0.25 %

0.19 %

97.79 % 97.72 %

97.60 % 98.14 % 98.17 % 98.06 % 98.25 % 98.16 % 98.09 % 97.99 % 97.79 % 98.24 %

13.57 % 12.78 %

14.06 % 13.03 % 14.44 % 13.78 % 12.91 % 14.10 % 15.42 % 13.72 % 14.08 % 31.38 %

Travel

Other 
services

Communica‑
tions

Royalties and  
licence fees

Other 
business 
services

Personal, 
cultural and 
recreational 
services

Memo item: 
Commercial 
services

Memo 
item: Other 
commercial 
services

Source: UNCTAD

The  main  source  market  for  tourists  to  CF  countries  remains  the  United  States,  with  the 
European Union second. This is dominated by the United Kingdom for the Caribbean generally 
(Unctad WIR, 2013). It is noteworthy that for the Dominican Republic, the tourism profile is 
slightly different, with other Europeans dominating, such as Germany (1). Tourism arrivals in 
Caribbean SIDS are largely predicated on improved economic performance in markets such as 
the United States and the United Kingdom (2).

DR Tourism

Data from the Dominican Republic indicates that tourism revenues have declined from the 
EU over the period 2009 to 2013, overall. However, while revenue from the EU has declined 
CF  revenue  (from  Trinidad,  Haiti  and  Jamaica)  has  increased  overall.  It  is  noteworthy  that 
the  main  sources  of  tourism  revenue  from  the  EU  over  the  period  were  France,  Germany, 
Italy, Spain and the United Kingdom. Consultations within the Dominican Republic noted for 
example that CARIFORUM partners such as Antigua and Barbuda arrivals are now better than 
more traditional sources of visitors and receipts, such as for example Spain. It was suggested 
that  there  needs  to  be  more  of  a  focus  on  the  Caribbean  and  the  development  of  these 
partnerships,  as  well  as  to  develop  linkages  between  other  sectors  in  the  region,  such  as 
agriculture. The hotel associations in the region need to focus efforts on greater cooperation.

(1) http://www.onecaribbean.org/content/files/Strep3DRtoHaiti2010.pdf
(2) Unctad WIR, 2013. 

46 | Monitoring the implementation & results of the Cariforum-EU EPA

Table 12: DR tourism revenue

Total tourism revenue in millions of USD

CARIFORUM

EU

Total

2009

 11.89 

2010

 17.94 

2011

 16.01 

2012

 17.62 

 1 123.45 

 1 035.90 

 998.00 

 938.26 

 1 135.34 

 1 053.84 

 1 014.01 

 955.88 

2013

 18.27 

 952.82 

 971.09 

Source: Datos Banco Central

Unctad’s World Investment report for 2013 indicates that TNC’s are the most promising source 
of FDI, critically important for the growth prospects for tourism in CF. As can be seen below, 
a number of the TNC’s of CF EU Partners are ranked in the top 50. Data on FDI inflows into 
CF however, show that while these inflows have been increasing on average, the flows are 
variable into host economies in CF. No detailed data are available on these inflows. However, 
stakeholders indicate that the level of inflows since the signing of the EPA has been below 
expectations. This is in a context where the EU has dominated investment outflows, and in 
particular shows increasing FDI abroad into services activities.

For developing and developed countries FDI flows into the service sector dominate. In 2011 
the flows into hotels and restaurants dominated the inflows into other service sectors,  and 
in fact increased over their 1991 levels. Unctad (2013) reports that flows into Small Island 
Developing States (SIDS) continued to recover in 2012. Further, it is noted that natural resource 
rich countries accounted for the majority of the increase. This is noteworthy since tourism is 
not often thought of as ‘resource seeking’.

Velde et al. (2005) indicate that for Tourism there is a positive empirical relationship between 
GATS commitments and FDI into this sector. Given the GATS plus nature of the EPA, as well as 
regulatory disciplines that make for a more open and transparent environment for investment 
(trade in services via mode 3), such expectations are not unreasonable. The implementation of 
these regulatory commitments however, which would impact, for example, investor behaviour, 
competition and TSA’s in tourism may have a role to play. The impact of the EPA therefore on 
Mode 3 activity does not seem to have generated any significant changes. In particular, Velde 
(2005) notes that because GATS commitments did not commit the status quo, barriers are still 
possible; but the EPA does in fact commit the status quo.

All CF countries have regulations that govern this sector, such as Hotel Acts, Environmental 
Acts, Tourism Development Acts as well as investment laws (1). In all the CF Partners visited 
the only country that had significantly amended its investment laws, post-EPA, was Jamaica. 
It indicated, however, that this was in relation to the government’s thrust to rationalize, rather 
than as a result of EPA commitments (2).

(1) See Velde et al. (2005, p. 16) for an inventory.
(2) It is noteworthy that as at 15 May 2014 this change was not notified as a measure affecting trade in services. 

 
Monitoring the implementation & results of the Cariforum-EU EPA | 47

Given that the commitments under the EPA capture the regulatory status quo, and the sector 
is open, particularly for investment, one needs to examine closely the regulatory framework 
for FDI, particularly inward FDI into this sector. Current trends may be indicative that further 
progress can be made by lifting remaining barriers, as well as addressing regulatory issues 
(environment, transparency, competition, etc).

5.9.  Labour

To  the  extent  that  the  EPA  in  Article  72(b)  mandates  that  states  through  domestic  legislation 
(where necessary) ‘ensure that’ investors act in accordance with core labour standards, then this is 
a positive obligation upon all EPA Partners. This provision would also ensure that investors manage 
and  operate  investments  consistently  with  these  standards  as  provided  in  Article  72(c).  Under 
Article  26  of  the  Vienna  Convention  on  Law  of  the  Treaties  (VCLT)  this  is  a  binding  obligation. 
Further, under Article 27 of the VCLT, it must be adhered to, notwithstanding any domestic law to 
the contrary. These are established principles of international law, binding all States whether or not 
party to the relevant treaty. The EPA and the International Labour Organization (ILO) Conventions 
represent binding obligations on EPA Partners. In respect of ILO Conventions, they have been ratified 
in all the areas indicated under the EPA by most CF Partners (1). Although the EPA has not been 
ratified in all Partners, provisional application means that there is a need to ensure conformity.

Ratification, however, needs the proper legislative action to give effect to the obligation. In the 
case of CF, although, for example, all countries have labour laws, the degree to which these are 
consistent with the ILO standards varies. Based on a 2007 review (2) of CARICOM by the ILO 
all countries reviewed required some form of amendment or enactment to be in compliance. 
There is also the issue of conflict of norms, which should be avoided. So that even though 
the laws of general applicability may have been amended, and all persons operating in the 
jurisdiction (unless there is a specific ‘carve out’ for a sector or industry in a given piece of 
legislation), should adhere to these standards. For legal certainty however, these issues should 
be explicitly addressed in the context of investment laws — the specific law applicable to 
investors. At the time of writing this report, no comprehensive review of investment laws was 
available and indeed these would have been beyond the scope of this report. What is clear is 
that the obligation requires the following actions:

1.  Effective  implementation  of  ratified  conventions  in  domestic  law  —  labour  legal 

framework (3)

2.  Amendments to investment laws to mandate investors to conform to ILO core standards — 
investment legal framework, including mechanisms to monitor how investors are operating 
or managing their investments (4)

(1) Save for Suriname in the areas of discrimination and child labor. 
(2) Information on whether the required action indicated by the ILO review was not available. It would be difficult to say 
whether in fact there was full compliance without an in depth review of enactments as against the recommendations. 
(3) In many jurisdictions more than one piece of legislation makes up the legal framework in respect of the 8 ILO core areas. 
(4) Management and Operation seems to have to do also with the content of the specific contractual provisions. See 
below sub-section on ‘Labour’.

48 | Monitoring the implementation & results of the Cariforum-EU EPA

3.  Review of other laws to ensure that there are no exceptions or exclusions that conflict with 
the EPA; that is, no exclusions beyond those enumerated at Article 66 and in the Schedule 
of Specific Commitments, in respect of Mode 3

At the time of writing, no clear information was available as to whether the foregoing actions 
were in fact undertaken. In a few CF EPA Partners indications were that investment laws had 
been recently reviewed or in the process  of review  — Belize, Guyana, Jamaica.  Legal  Gap 
Analysis  was  conducted  in  a  few  CF-EU-EPA  Partners  (CDB,  2012).  It  is  not  clear,  however, 
whether these addressed this specific issue of labour. Given the set of actions required, the lack 
of legal capacity and indications from stakeholders that no specific EPA related enactments 
were made (1), it would not be unreasonable to conclude that more work needs to be done to 
implement Article 72(b) and Article 72(c) (2).

The implementation road map for the region, which is used as a template by CF countries to 
build their national implementation plans, does not indicate the specific actions required as 
noted above (3). It indicates that the action required is in respect of development of required 
investment  policies.  The  question  may  arise  as  to  whether  this  is  sufficient  to  meet  the 
obligation, ‘through domestic legislation’. Constraints noted were in respect of human capacity, 
as well as financial resources. What is clear is that general adherence to ILO standards does 
not mean that all necessary actions have been taken to ensure effective implementation of 
Article 72(b) (4) and Article 72(c). It is important, therefore, not to underestimate the support 
required  to  not  only  implement,  but  also  to  ensure  that  the  specific  actions  required  are 
properly identified — as evidenced in the fact that most implementation plans speak to the 
need to acquire the relevant expertise.

(1) The enactments, (whether of the EPA or some by other obligation, or purpose) if in conformity with the EPA 
obligation, would be a positive step in the implementation process. 
(2) Although the requirement relates to measures as may be necessary, what is ‘necessary’ must be based on some 
objective standard, and the standard in WTO law, reduces to essence a cost benefit balancing — Korea — Measures 
Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161 and 169/AB/R (adopted 10 January 2001). In the 
context of measures necessary one could interpret this in light of the cost versus the benefit of putting in place the 
measure. Whether legislation is required as a practical matter, it is useful to explore how a host country could ‘ensure 
that’ investors behave as required. So, while a member can choose how to regulate, it cannot choose or not to meet the 
obligation. 
(3) For countries whose plans were available, in some instances the need for specific legislative action was recognized, 
though not necessarily in respect of both labour and investment laws. 
(4) There is also the effect by implication on Article 73(b) and the practical effect of attracting regional investment 
inflows on a level playing field. 

Monitoring the implementation & results of the Cariforum-EU EPA | 49

Table 13: Ratification status of ILO conventions in EU

ILO Fundamental Conventions Ratified by EU Partners 

C029 - 
Forced 
Labour 
Convention,  
1930  
(No 29)

Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech  
Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
United  
Kingdom
Source: ILO NORMLEX

x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

C087 - Free-
dom of As-
sociation and 
Protection of 
the Right to 
Organise Con-
vention, 1948 
(No 87)
x
x
x
x
x

C098 - 
Right to Or-
ganise and 
Collective 
Bargaining 
Conven-
tion, 1949 
(No 98)
x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

C100 - 
Equal Re-
muneration 
Convention, 
1951 
(No 100)

C105 - 
Abolition 
of Forced 
Labour 
Conven-
tion, 1957 
(No 105)

C111 - Dis-
crimination 
(Employment 
and Occupa-
tion) Conven-
tion, 1958 
(No 111)

C138 - 
Minimum 
Age Con-
vention, 
1973 
(No 138)

C182 - 
Worst 
Forms of 
Child Labour 
Conven-
tion, 1999 
(No 182)

x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

x
x
x
x
x

x

x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

x

50 | Monitoring the implementation & results of the Cariforum-EU EPA

Table 14: Ratification status of ILO conventions CF

Labour issues in the EPA context

ILO Fundamen-
tal Conventions

NUMBER 
OF RATIFICA-
TIONS

Legal Status of 
Conventions

Requirements 
as at 2007 
review

Freedom of association
Right to 
Freedom of 
Organise and 
Association and 
Collective 
Protection of the 
Bargaining 
Right to Organise 
Convention
Convention

Forced labour

Discrimination

Child labour

Forced 
Labour 
Convention, 
1930

Abolition 
of Forced 
Labour 
Convention

Equal Re-
muneration 
Convention

Discrimination 
(Employment 
and Occupa-
tion) Conven-
tion, 1958

Minimum 
Age Con-
vention, 
1973

Worst Forms 
of Child 
Labour 
Convention, 
1999

14

14

14

14

13

13

13

14

Binding 

Binding 

Binding 

Binding 

Binding 

Binding 

Binding 

Binding 

Amendments

Amendments

Amend-
ments

Amend-
ments

Amend-
ments

Amendments

Amend-
ments

Amend-
ments

Not enough 
Information

CF EPA  
Implementation  
Plan- Status
Source: ILO NORMLEX, ILO Review, Implementation Plans  
http://www.ilocarib.org.tt/projects/labour_legislation/reviews/grn_review.pdf

Not enough 
Information

Not enough 
Information

Not enough 
Information

Not enough 
Information

Not enough 
Information

Not enough 
Information

Not enough 
Information

Beyond  this,  however,  the  pace  of  legislative  change  must  also  be  addressed.  This  issue 
was raised by all stakeholders consulted. Further, effective implementation of commitments 
requires  the  ability  to  monitor  and  revise  as  necessary.  International  precedent  in  the  area 
of international trade regulation suggests that the operation of the relevant laws is also of 
fundamental importance to the effective operation of the relevant international treaty, and 
hence realisation of benefits.

5.10.  Environmental regulations

The requirement that EPA Partners ‘ensure that’ investors act in accordance with Environmental 
Regulations (Article 72(c)) currently applies only to the extent that the relevant CARIFORUM 
partner is a party to the relevant environmental Agreement. Here again specific actions are 
needed as in the case of Labour. They are as follows:

1.  Effective  implementation  of  ratified  conventions  in  domestic  law  —  environment  legal 

framework

2.  Amendments to investment laws to mandate investors to conform to ILO core standards — 
environment  legal  framework,  including  mechanisms  to  monitor  how  investors  are 
operating or managing their investments

3.  Review of other laws to ensure no exceptions or exclusions that conflict with the EPA — 
that is to say, no exclusions beyond those enumerated at Article 66 and the Schedule of 
Specific Commitments, in respect of Mode 3

Monitoring the implementation & results of the Cariforum-EU EPA | 51

All stakeholders consulted indicated that they conducted environmental impact assessments 
on any proposed investments (1). The private sector indicated a need for assistance in regard to 
sustainable practices, especially in resource based sectors. However, it was not clear whether 
investors in the relevant jurisdiction were obligated to take environmental impact into account 
in their management and operations: this is after the investment has in fact been approved 
and got underway. This obligation suggests that a mechanism for follow-up and review would 
be necessary. It is well established in international investment law that a host country must 
adhere to its promises, including those made upon establishment.

In some jurisdictions, there were guidelines on the terms of these agreements. However, given 
the varied nature of the potential investments, it seems that this has to be determined on 
a case-by-case basis. For example, operation of a Hotel investment will differ from operation 
for  a  mining  concern,  taking  into  account  also  the  particular  jurisdiction  (2).  It  is  not  clear 
from consultations or the implementation plans reviewed, what the specific implementation 
concerns in this respect are. However, it seems safe to say that the same capacity concerns 
would  impact  on  effective  implementation.  This  implies  imposing  positive  obligations  that 
can  be  credibly  enforced  on  investors  (3).  This  undeniably  presents  a  complex  legal  picture 
(Sauvant,  2013).  This  deficiency  in  the  Caribbean  was  highlighted  in  a  1992  survey  of  the 
Environmental Laws of the Commonwealth Caribbean, commissioned by the Caribbean Law 
Institute.  In  some  jurisdictions,  based  on  CF-EU-EPA  Partners’  implementation  plans,  the 
relevant pieces of legislation that make up the legal framework for environmental law were 
under review.

5.11.  E-commerce

E-commerce provisions play a specifically meaningful role in respect of cross-border trade in 
that they complement the specific obligations made in these modes, although they are not 
legally binding, and rather are phrased in the language of best endeavours. Further, they act 
to specifically increase modal substitutability, thereby allowing Partners to increase the supply 
of that service. The more modes by which a service can be supplied the less deleterious are 
any market access limitations on the supply of the service by other modes. E-Commerce laws 
are therefore a necessary aspect of services sector liberalisation. The commitment to promote 
electronic commerce and cooperate (4) is significant in this respect.

Grover, Goswami and Matoo (2011) also highlight the important role of advances in technology 
in  the  export  of  services,  as  they  reduce  the  need  for  proximity  between  the  producer  of 
a service and the consumer: trade can in essence take place remotely. In the language of this 

(1) This also includes in the tourism sector. For example Article 116 (Environmental and Quality Standards) asks Parties 
to encourage compliance with the relevant laws, indicating that mechanisms have to be out in to ensure that service 
suppliers comply with the relevant standards. 
(2) See OECD guidelines for the Operation of Multinational Enterprises. http://mneguidelines.oecd.org/2011Environment.
pdf 
(3) All jurisdictions consulted have some type of environmental law. 
(4) Article 119. 

52 | Monitoring the implementation & results of the Cariforum-EU EPA

Report’s analytical framework, lack of e-commerce laws reduces modal substitutability and 
thereby cannot assist in preserving the benefits of the commitments made.

Implementation of e-commerce laws as well as data protection laws within CF is varied. In 
respect of Electronic Transactions laws, only three CF Partners did not have laws in place or 
may not yet have completed the law-making process at the time of the assessment (HIPCAR 
2011). In respect of data protection law, implementation is also varied. It should be noted, 
however, that issues of privacy and in-fact acceptable legal form are more flexible in common 
law  jurisdictions  which  focus  not  on  the  form  but  the  substance  for  the  obligation  (1).  One 
reason for the slow pace of implementation could be that for such technology-related matters, 
the common law has had to evolve to deal with them, notwithstanding specific legislation.

Table 15: CF assessment of electronic transaction laws

Electronic Transactions Assessment in CF EPA Partners

Assessment Ratings 

Antigua and Barbuda*
Barbados
Belize
Dominica
Dominican Republic
Grenada*
Guyana
Jamaica
St. Kitts and Nevis
St. Lucia*
St. Vincent and The Grenadines
Suriname
Trinidad and Tobago*

Key to Assessment Ratings

GOOD: Provisions in law exist which address all major concepts identified by best practice 
FAIR: Provisions in law exist which address some of the concepts identified by best practice 
POOR: Provisions in law exist which do not adequately address concepts identified in best practice
NONE: There are no provisions in the law which address concepts identified. 
LIMITED: There is no law in force which address the issue, however there are such provisions identified 
in legislation which may have not completed the law-making process (e.g. in legislation laid in the 
legislature but not passed at the time of report compilation) 

* Bills laid before Parliament, not yet passed as statute (as of March 2010).
Source: HIPCAR Electronic Transaction Assessment Report 2011

(1) There exists a great body of case law in the UK that has helped resolve these issues. 

Monitoring the implementation & results of the Cariforum-EU EPA | 53

Table 16: Status of e-commerce framework in CF

Country

Commercial 
Code/Digital 
Signatures

Data  
Protection/ 
Privacy

Cyber- 
crime

Evidence  
and pro-
cedural

Access  
to infor- 
mation

Electronic 
funds 
transfers

Consumer 
Protection

Making of 
codes of 
conduct

E-Government 
enabling 
provisions

X

X

X

X

0

√

√

√

√

√

√

√

0
0

√
√

√
√
√
0

Antigua & 
Barbuda
Bahamas
Barbados
Belize
Dominica
Dominican 
Republic
Grenada
Guyana
Haiti
Jamaica
Saint Kitts & 
Nevis
Saint Lucia
Saint Vincent 
& the 
Grenadines
Suriname
Trinidad & 
Tobago
Legend: √ Enacted; X Partial implementation (needs updating or widening); 0 Draft law
Source: E-Commerce Strategy paper for CARIFORUM, December 2010

X0

x0

√

√

0

0

0

0

0

0

0

0

x

x

X

√

0

x
X
x

0

0

X

√
X

0

X

0

0

0

The E-commerce Directive (1) in the EU set up the legal framework for e-commerce; UK and 
Ireland also both have e-commerce laws that pre-date the EPA.

5.12.  Legal and Institutional

Opinions  varied  across  stakeholders  interviewed  in  respect  of  the  priority  and  the  need  to 
devote and direct resources to ‘legislative activities’ (2), whether specifically for implementation 
of the EPA or generally all international obligations. In terms of funding from the EDF for these 
activities, it was noted in some Member States of CF that the relevant countries determined 
the priorities, and depending on social and economic imperatives decisions had been made to 
shift resources. Also, the priority that was assigned varied across stakeholders. For example, 
Parliamentary Counsels and Attorney General Chambers noted the significant lack of human 
and financial resources to address the various pieces of legislation that needed to be enacted, 
amended or reviewed. Outside of obligations in respect of tariff reductions, there was much 
less momentum to address other issues.

(1) Directive 2000/31/EC on electronic commerce. 
(2) Legislative drafting, regulatory audits, reviews of all laws, institutional design.

54 | Monitoring the implementation & results of the Cariforum-EU EPA

It was also apparent that the lag in the approval and completion of implementation plans, 
or road maps at the State level may also account for some of the inertia, as well as lack of 
awareness, on the part of relevant officials as to what was actually needed for implementation. 
This would include not only the relevant provisions that needed to be addressed but also the 
actual actions required. In these aspects the CF implementation plans  indicated that there 
was a need for both human and financial resources. It is noteworthy that generally for these 
issues, which cut across all areas of the EPA, the type of non-financial cooperation had not 
been indicated.

5.13.  Cooperation

Article  132  essentially  addresses  the  areas  where  it  was  found  through  consultation  that 
significant  improvement  is  needed  in  respect  of  the  CARIFORUM  competition  regimes  or 
implementation.  The  language  of  Article  130  refers  to  the  agreement  on  the  part  of  the 
respective Parties to provide these types of cooperation3, subject to Article 7 (Development 
Cooperation), Article 1 of which states, importantly, that such cooperation can take financial 
and non‑financial forms (1).

As noted previously, cooperation is an essential element of the EPA and to the extent that it 
forms one of the two development aspects of the EPA, it is a binding obligation, whether or 
not any specific language in other areas, such as in the regulatory aspects as articulated in 
Chapter 5 of Title II, may be couched in terms of ‘best endeavours’. A case could be made that 
the delay in effective implementation of certain aspects of the EPA can be linked directly to 
the lack of specific modalities in this area. In fact, many CF countries noted this as a significant 
gap in respect of binding obligations that put in place the necessary EPA institutions that are 
related to non-financial forms of cooperation.

However,  as  noted  in  Article  121(1)  it  is  the  obligation  of  each  Partner  to  make  such 
(non-financial)  cooperation  effective.  Saez  (2010)  notes  that  in  the  context  of  the  EPA  the 
cooperation provisions are generic, and complemented by a few sector-specific cooperation 
provisions,  the  most  developed  of  which  is  in  the  area  of  Tourism.  This  underscores  the 
need highlighted by stakeholders and evidenced in the slow pace of implementation, where 
development of specific modalities in this area is concerned

Not only is cooperation an integral part of capacity building; it is also critical to fulfilment of the 
development aspect of the EPA that goes beyond financial support. In fact, this link between 
cooperation and non-implementation in the sense of inability to fulfil the relevant obligation is 
evident in the EC’s practice relating to achieving effective implementation of EU law. In particular 
the White Paper (2) notes that another dimension of cooperation is that it reduces the incidence 
of  conflict  by  allowing  Member  States  to  more  effectively  adhere  to  their  obligations  and  as 

(1) Cooperation, throughout this section refers to non-financial forms unless otherwise indicated. 
(2) European Commission (2001b) p. 26; European Commission (2001); European Commission (2002b) p. 5.

Monitoring the implementation & results of the Cariforum-EU EPA | 55

a result it prevents infringements and conflicts. One author refers to this essentially ‘juridification’ 
of cooperation as an ‘elite model of regulatory bargaining’ (Bonnie 2005, p. 42)

The  consultations  with  stakeholders  did  not  reveal  any  specific  state-to-state  initiatives 
under the auspices of the EPA, particularly in the regulatory areas of Title II and in the related 
sectors under the EPA, apart from activities that may have benefited from funding through the 
Regional Indicative Programme, as well as National Allocations. The specific areas that were 
highlighted in terms of need for cooperation in the form of knowledge transfer or expertise 
were as follows:

•  sustainable practices in the area of forestry

•  sustainable practices in the area of fisheries

•  sustainable practices in the area of mining

•  business  practices,  strategies  in  utilising  available  resources,  and  diversification  in  the 
area of tourism, in particular non-traditional tourism products (sports tourism, ecotourism, 
medical tourism, to name a few)

For countries where there was European Investment or involvement in services, specific EPA 
related cooperation activities and initiatives could be identified. Given that these data were 
gathered  mainly  through  consultations  and  unstructured  interviews,  an  attempt  was  made 
to  gather  more  specific  data  through  questionnaires,  to  identify  any  specific  cooperation-
related initiatives. It was nevertheless evident that implementation in this area has also been 
very slow, and legitimately so for the reasons identified above by stakeholders, and possibly 
because of the lack of knowledge as to exactly how to proceed in this respect, both on the part 
of beneficiary and benefactor.

5.14.  Overseas Countries and Territories

Stakeholders  who  were  consulted,  and  particularly  those  having  proximity  to  the  Overseas 
Countries and Territories, noted that for the most part, they had very few issues in respect 
of  trade  in  services  with  the  territories  (1).  Those  countries  however,  which  did  not  benefit 
from visa exemptions noted that this was an issue. It was generally felt that these territories 
presented a significant opportunity for CF (2). This was also true of the French FCORs.

(1) See ECLAC 2008 for discussion of tourism issues. 
(2) It was hoped that responses to formal questionnaires sent by the consultants would yield more specific information 
on the type of trade and relevant sectors. 

56 | Monitoring the implementation & results of the Cariforum-EU EPA

5.15.  Commercial Presence

As indicated previously, Mode 3 is an important mode for the services considered in this report. 
However, traditional services trade statistics do not capture what is happening in respect of the 
provision of services via Mode 3. The commitments under commercial presence largely captured 
the status quo on both sides, reflecting limitations on national treatment and market access 
there was no need for any significant changes to regulatory regimes. As such, no changes were 
found linked directly to the EPA. A comprehensive analysis of the commitments undertaken 
by both sides is beyond the scope of this review (1). Consultations indicate that the EPA — 
while going beyond a mere re-affirmation of GATS commitments — largely formalised the 
degree of openness on both sides. Based on information available from relevant government 
websites as well as WTO notifications, no specific legislative changes post-2008 relevant to 
commercial presence could be identified related to the specific sectors under consideration. 
While some countries’ requirements for company registration were changed during the review 
period, for the most part these rules remained the same as prior to the signing of the EPA; in 
other instances, changes were made to specific procedures (2). Foreign Direct Investment is 
seen as an important vehicle for CF development, so that these improvements to the business 
environment are important, whether or not linked specifically to the EPA. Additionally efforts 
funded by the EU such as Caribbean Association of Investment Promotion Agencies (CAIPA), 
GIZ assistance as well as the efforts of Caribbean Export to promote investment in the region 
were seen by stakeholders as critically important.

(1) This detailed analysis can be found in inter alia Sauvé and Ward (2009). 
(2) Changes that were identified include: (a) Antigua and Barbuda — Changes to the Architect Registration Act to 
allow for reciprocity, and a change to the Labour Code to remove the work permit requirement for caricom skilled 
nationals. (b) Barbados — Update of the Shipping Incentives Act of 2009. (c) Dominican Republic — Law No 108-10, 
as amended, covers incentives provided by Law No 108-10, as amended in 2010 (the’ Film Law ’) aimed at the film 
industry. Also changes in 2012 to Law 188-07 dated August 2007, regarding company registration with the National 
Treasury. (d) Jamaica — Omnibus Incentive Act, which provides incentives replaces pre-existing sector based incentive 
legislation, it importantly provides for tax incentives in services sectors, such as tourism and the creative industries. 
Also in Jamaica, effective January 2013, all foreign firms residing or transacting business from overseas are required 
to have a Taxpayer registration number. Amendments to Jamaica’s Company Act 2004 made significant changes to 
registration, reducing the number of documents required and foreign ownership of land requirements. Only a single 
document, the articles of incorporation, is now required to constitute a company, as the Companies Act, 2004 abolished 
the doctrine of ultra vires, companies now have the same legal capacity as individuals, there is no need to set out the 
company’s objectives in its memorandum of association. (e) Trinidad and Tobago, Saint Lucia and Saint Vincent and the 
Grenadines — the changes related to procedures rather than laws it seemed changes to procedures rather than specific 
company registration laws were made.

Monitoring the implementation & results of the Cariforum-EU EPA | 57

6.  Conclusions

In respect of the regulation of trade in services in the EPA, not much attention has been given 
to  the  effect  of  regulations  on  the  trading  environment  for  services  and  services  suppliers. 
Regulations are designed to meet a particular regulatory goal or objective, but it is not clear 
that much work has been done to ensure consistency with certain regulatory principles, in the 
design and implementation of the relevant laws and institutions. This presents a significant 
opportunity  for  Partners  in  respect  of  cooperation,  implementation,  and  development  of 
monitoring frameworks.

The true impact of the EPA on services trade will be the degree to which the conditions of 
access for services and service suppliers have changed post signing of the EPA. Evaluation of 
impact is therefore complicated by the variety in regulatory regimes, including those pertaining 
to company establishment, immigration, and investment. Attention also has to be given to 
those factors that would allow the Partners to take advantage of market access where it has 
been  granted,  institute  the  necessary  service  sector  policies  required  and  align  these  with 
access opportunities.

The  regulatory  capacity  in  CF  countries  needs  to  be  addressed  (1).  This  is  particularly  so 
not  only  in  the  amendment  of  relevant  laws,  but  also  in  institutional  aspects  significant 
for  implementation  of  the  EPA.  These  would  include  the  capacity  to  monitor  and  evaluate 
the  relevant  obligations  and  at  all  times  to  ensure  effective  implementation.  Many  of  the 
regulations  that  would  ensure  that  a  balance  is  struck  between  specific  commitments  and 
general obligations concern such areas as e-commerce and competition regimes. Work in these 
areas predated the EPA; however, now more than ever progress needs to move at a faster 
pace  (2).  The  indicators  utilised  in  this  background  paper  show  that  the  general  regulatory 
environment can have implications for services trade flows.

For effective functioning of the Agreement, it is critical that work be undertaken to address 
some of these issues under the auspices of the EPA institutions; similar to work ongoing in 
the area of MRAs, as well as WTO work on regulatory issues. Although the language of the 
agreement is clear, as shown above what is required to meet the substance of the obligation 
in many instances goes beyond simply putting in place the relevant legal framework, or simply 
restating the commitments contained in relevant schedules. Account must be taken as to how 
the relevant rules and institutions operate.

(1) See section on CF EU-CARIFORUM Regulatory capacity. 
(2) There are notices out for work on some of the issues; however there seems to have been delays in the roll-out of 
these initiatives. 

58 | Monitoring the implementation & results of the Cariforum-EU EPA

In  respect  of  the  specific  obligations  made,  in  particular  in  the  service  sectors  examined, 
market access and national treatment in Modes 1, 2, and 3, did not seem to be affected in 
terms of actual liberalisation, beyond the limitations already inscribed (1). That is to say, that 
the  level  of  market  access  granted  has  not  been  ameliorated  by  the  regulatory  changes 
identified, and still presents a significant market access opportunity. In respect of Mode 
3  the  main  issue  seemed  to  stem  from  problems  of  information  deficits  in  either  Partner, 
leading to underutilisation of the opportunities of the EPA. The information that is available 
suggests that a firm can establish in the EU market once it meets the relevant requirements, 
and any difficulties faced would not be discriminatory.

In respect of Mode 1, without the full range of e-commerce laws, most countries had in place 
some  legal  framework  to  allow  for  electronic  transactions,  and  functional  equivalence,  as 
well as authentication and the making of contracts that would facilitate cross-border supply, 
but  more  legal  certainty  is  required.  Indeed  even  outside  of  this  legal  framework,  given 
developments in technology, trade in services by these means was already being conducted. 
In essence therefore the level of liberalisation promised by either party under the agreement 
does not seem to be less than committed. The main issue related to how the commitments 
were being implemented and in particular the level of attention that was being paid to ensure 
that the level of liberalisation evidenced from the text of the agreement obtains in practice.

It  may  be  the  case  that  the  regulatory  frameworks  need  to  catch  up  with  actual  trade 
developments  and  demands.  Given  the  limitations  on  financial  development  commitments 
that  can  be  made  under  the  EPA,  an  imperative  may  be  to  develop  a  mechanism  for 
identifying where and how non-financial development cooperation activities, such as technical 
cooperation, information sharing, etc., can be most effectively directed to overcome some of 
the regulatory challenges highlighted in this report with regard to trade in services.

(1) This is however with the caveat, that an attempt to penetrate either market seems to have been low.

Monitoring the implementation & results of the Cariforum-EU EPA | 59

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 ISBN 978-92-79-43132-6  
doi:10.2781/13905