Trinidad and Tobago is a vibrant, diverse country that over the past two decades has forged a reputation as one of the leading destinations for direct foreign investment in Latin America and the Caribbean. After the US and Canada, T&T is the third-richest country by GDP at purchasing power parity per capita in the Americas, and as of November 2011 the OECD removed T&T from its list of developing countries. The recent collapse in the price of oil has, however, posed new substantial challenges to the local economy.
T&T has a rich democratic history and a strong commitment to the rule of law. At the base of this success is a vibrant legal system that has been integral to the development of the strongest economy in the Caribbean. As a former British Caribbean colony, upon independence T&T inherited the Westminster system of government with an elected House of Representatives and an appointed Senate. Elections are held every five years by universal suffrage, and the most recent elections, which were held on September 7, 2015 resulted in the country undertaking a peaceful change of government for the sixth time in the nation’s history.
As a member of the Commonwealth of Nations, T&T enjoys healthy relationships with many countries around the world. Its unique geographic position at the south-eastern corner of the Caribbean basin has allowed it to have extensive trading relationships with the rest of the Caribbean and Latin America, along with major economic powers such as China, the US and Europe.
Legal & Judicial System
Fundamental legal principles, such as the rule of law, separation of powers, and the freedom of expression, press and property, are enshrined in the constitution of T&T, along with the right of its citizens, foreigners and legal entities to enjoy the same. Legislation enacted by the Parliament has been based predominantly on the English statues, and to a lesser extent Canadian and Australian legislation.
T&T has a common law jurisdiction where the doctrine of precedent applies. The highest court in the land is the Judicial Committee of the Privy Council, although there has been a campaign to move the court of final appeal to the Caribbean Court of Justice in Port of Spain, T&T.
The T&T legal system is also made up of a number of courts below the Judicial Committee of the Privy Council, in particular the Court of Appeal, the High Court of Justice and the Magistrates Court, in descending order. Additionally, there is also a Family Court, which deals with matrimonial and family matters; an Industrial Court, which deals with industrial relations and employment law matters; the Environmental Commission, which deals with offences arising under the Environmental Management Act; and the Tax Appeal Board, which has jurisdiction to hear appeals from decisions of the Board of Inland Revenue.
Civil Procedure Rules
In 2005 T&T followed the Lord Woolf “Access to Justice Report” and now has similar civil proceedings rules to those currently in operation in England. The rules seek to encourage the early settlement of disputes and to incorporate technology and innovation into the judicial process to improve the access to justice to those utilising the system. The courts also have the jurisdiction to grant injunctions, search orders and other orders providing interim relief where the circumstances merit same. ALTERNATIVE DISPUTE RESOLUTION SERVICES: In addition to the formal litigation process for the settlement of legal disputes, there has been a movement towards the development and utilisation of alternative dispute resolution mechanisms such as arbitration and mediation as part of the effort to improve the efficiency of the judicial system. The judiciary of T&T implemented a court annexed mediation pilot programme to encourage the early settlement of disputes in a less contentious manner, with the hopes of integrating it into the judicial system on a permanent basis. The Mediation Board of T&T oversees the training and certification of mediators, and has allowed for the establishment of a cadre of experienced practitioners in this field.
Many commercial contracts utilise arbitration clauses for the resolution of their disputes due to its speed and the fact that this process allows for the adjudication of disputes by a person with expert knowledge in a particular area. The T&T Chamber of Industry and Commerce has established the Dispute Resolution Centre (DRC) which specialises in the facilitation of these services. The DRC provides facilities where arbitrations, adjudications and mediations can take place and also provides training in these programmes.
Judgements Extension Act
The Judgements Extension Act allows for the courts in T&T to enforce the judgements of other courts outside of the jurisdiction. It applies to some Commonwealth and CARICOM countries, namely the UK, Australia, India, Nigeria, Guyana, Grenada, Barbados, St Vincent, the Leeward Islands, St Lucia, the Bahamas and Jamaica.
Banking & Finance
The Central Bank of T&T (CBTT) is the main regulator of the banking sector. Its powers are primarily derived from the Central Bank Act Chapter 79:02 and the Financial Institutions Act Chapter 84:01.
There are eight commercial banks and 16 non-bank financial institutions in T&T.
A company wishing to establish a commercial bank or conduct business of a financial nature must apply to the CBTT and satisfy certain eligibility requirements, including the ability to meet the minimum capital requirement of $15m or such higher sum as the CBTT may require.
Securities Industry
The Securities and Exchange Commission is the regulatory authority for the securities sector and regulates, inter alia, public offerings, disclosure obligations applicable to reporting issuers, and other registrants and takeover bids. Companies or individuals wishing to conduct business within the capacity of a market actor are subject to registration requirements under the Securities Act.
The act provides that no person shall carry on business or hold himself or herself out as a broker, an investment advisor or an underwriter of securities unless registered in such capacity with the commission in accordance with the Securities Act.
Corporate Law
The Companies Act of T&T is based on the Canadian Business Corporations Act The two main options that are available under the Companies Act are the incorporation of a local limited liability company or the registration of an external company in T&T. The Companies Act provides that no association, society, body or other group consisting of more than 10 people may be formed for the purpose of carrying on trade or business for gain in T&T unless it is:
• Incorporated under the Companies Act;
• Formed under another written law (of T&T); or
• A partnership. Incorporation proceedings are straightforward (they can be competed in 1-2 days) and grant the status of limited or unlimited liability. In the case of a trading company, the most common form is that of a company limited by shares. There is no particular requirement that a company has to have a certain number of shareholders or a particular amount of required capital. Nor is it required that the shareholders be T&T nationals. The shareholders of the company may be foreigners.
Under the Companies Act, in relation to the incorporation of a subsidiary company, the name of a proposed company with limited liability must include the word “Limited” or “Ltd” as the last word in the name, and the name must be approved by the Registrar of Companies. The Companies Act also requires the preparation and registration of articles of incorporation, which comprise the constitutional instruments of the company together with other statutory forms.
Another common option that is used to establish a legal entity in T&T under the Companies Act is the registration of an external company. Section 317 of the Companies Act places an obligation on any incorporated body of persons that is formed under the laws of a country other than T&T and establishes a place of business within T&T, to register as an external company within 14 days from the establishment of its place of business.
The registration of an external company is akin to the registration of a branch office in T&T of a company incorporated in another country. As such, the parent company (head office) will be responsible for the debts and liabilities of the external company (branch office) registered in T&T.
One advantage of the registration of an external company in T&T, as opposed to the incorporation of a limited liability company, is that if the company ceases to carry on business in the country, it may simply file a notice to that effect with the Registrar of Companies, who may cancel (and subsequently revive) the registration of the external company without any further formalities being required.
Foreign Investment Act
For foreign investors seeking to invest in T&T, the legislation that governs the acquisition of real estate or equity in domestically incorporated companies is set out in the Foreign Investment Act Chapter 70:07.
The Foreign Investment Act defines a foreign investor as; (a) an individual who is not a national of T&T or of a CARICOM member state as defined under the Treaty of Chaguaramas; (b) any firm, partnership or unincorporated body of persons of which at least one-half of its membership is held by persons who are not nationals of T&T or another CARICOM member state; or (c) any company or corporation that is not incorporated in T&T or another CARICOM member state, or if so, is under the control of persons to whom paragraph (a) or (b) apply or is deemed to be under the control of a foreign investor.
A company or corporation shall be deemed to be under the control of foreign investors if:
• At least one-half of the votes exercisable at any meeting of the company or corporation are vested in foreign investors; or
• Having a share capital, at least one-half of the nominal amount of its issued shares that are voting shares are vested in foreign investors; or
• Not having a share capital, at least one-half in number of its members are foreign investors; or
• It is in fact controlled by foreign investors. A foreign investor who is desirous of incorporating a private company in T&T, or of acquiring shares in any private company incorporated in T&T, shall prior to doing so, supply the minister of finance with the following information:
• Name, address and nationality of the foreign investor;
• If a company, its place of incorporation, its principal place of business, names, nationality, former nationality and addresses of its directors, and the name of any controlling shareholder;
• The identity of any other country in which the foreign investor holds investments;
• The purpose of the investment;
• Whether the foreign investor is or is not a resident of T&T within the meaning of the Exchange Control Act Chapter 79:05;
• Full particulars of the consideration for the investment and of the payments and credits made, and the name of the bank through which each such payment or credit was made or given. The intended shareholder(s) of the company must pay for shares being acquired in an internationally traded currency through a local commercial bank. A foreign investor may acquire land, the area of which does not exceed one acre for residential purposes without obtaining a licence under the Foreign Investment Act.
The foreign investor can also acquire land without a licence, the area of which does not exceed five acres for the purposes of trade or business. The consideration paid for the acquisition of the land must also be in an internationally traded currency through a local commercial bank.
In addition to the restrictions and regulations outlined above, the Foreign Investment Act gives the responsible minister the power to declare any area in T&T an area in which a foreign investor must obtain a licence to acquire land regardless of its size and/or usage.
Free Zones Act
There are different areas and activities that may be granted free zone status including warehousing and storing; manufacturing operations; trans-shipment operations; loading and unloading operations; exporting; importing; service operations including banking, insurance and professional services; assembling; processing, refining, purifying and mixing; and merchandising including international trading products. The incentives include exemptions from Customs duties on the importation of goods into the free zone; exemptions from income tax, corporation tax, business levy, withholding taxes on remittance of profits, dividends and other distributions; and exemptions from land and building taxes on land, buildings, improvements to buildings, plants and machinery in the free zone.
This sector has remained relatively underdeveloped. Given T&T’s geographical position, the development of highly efficient free zone areas should be utilised as a major initiative for economic diversification.
Public-Private Partnerships
Well before the fall in global commodity prices, the government recognised the need to partner with the private sector to reduce the dependency on the state to fund major projects.
As commodity prices continue in a downward trajectory, the country will be facing a new paradigm of significantly reduced energy revenues over the short to medium term, which makes the formation of pubic private partnerships (PPPs) even more relevant.
PPPs seek to combine the best of both worlds: the private sector’s resources, management skills and technology; and the public sector’s regulaIn 2011 the Ministry of Finance (MoF) established a PPP unit within the Investments Division of the MoF to promote a PPP infrastructure for T&T. This unit has principal responsibility for:
• Developing and disseminating PPP policy throughout the public and private sectors;
• Regulating the PPP programme to ensure PPP projects are developed in accordance with policy, principles and processes;
• Contributing to the development of PPP projects by screening projects submitted by ministries and agencies for consideration by the Ministerial Committee and subsequently becoming part of the PPP execution team responsible for implementing the project; and
• Being a repository of skills and knowledge by continually building knowledge on managing PPPs, drawing from domestic and international experience to inform PPP programme development.
Tax Holidays
The Fiscal Incentive Act allows for the granting of a tax holiday for periods of up to 10 years for the manufacturing of approved products by approved enterprises. The act provides for different classifications into which the enterprises may be categorised. These categories include, inter alia, enterprises utilising a significant portion of local inputs, export enterprises where products are manufactured solely for exportation and those enterprises investing in excess of TT$50m ($7.7m). An approved enterprise must be a locally incorporated company and will also be granted exemptions from Customs duties and value-added tax on the construction of the approved project. The tax exemption can be extended to dividends, which may be tax-exempt and free of non-resident withholding tax on any taxes in excess of the investor’s tax rate on the dividend in his or her own country of residence.
Employment & Labour-Related Issues
From doctors to lawyers, engineers to IT professionals, sales clerks to gardening services, T&T has a diversified labour force and many different avenues where individuals may seek employment within the country. While Trinidad is driven by the oil and business sector, Tobago is more focused on tourism and many of its residents are employed in hotels and restaurants and often sell their own handmade creations. The present minimum wage in T&T is TT$15.00 ($2.31) per hour based on a forty-hour work week.
T&T has enjoyed low unemployment rates over the past decade (the current rate is approximately 3.6%), but this is expected to rise given the slowdown in the economy caused by the contractions in the oil and gas sector. However, it is hoped that any surplus labour from the energy sector would be absorbed by other sectors of the economy such as manufacturing, hospitality and retail, where there have been critical labour shortages.
The country has a well established trade union movement with origins that go back to the 1930’s. There are unions for almost every classification of worker in T&T and they strive to ensure that employees are made aware of their rights and receive all the benefits to which they are entitled. Where labour disputes arise, they are settled at the Industrial Court, which was established under the Industrial Relations Act.
Maternity Leave
The Maternity Protection Act provides that a female employee shall be entitled to 13 weeks maternity leave once she has worked continuously for one year. The act also provides that such employees are entitled to receive pay to an equivalent of one month’s leave with full pay and two months leave with half pay, and to resume work on no less favourable terms than were enjoyed by her prior to her departure on leave.
Employer’s Duties
An employer is required to have a policy of insurance in force to cover worker’s compensation. Compensation is based on a prescribed scale set out in the Workmen’s Compensation Act.
In order to comply with the Occupational Health and Safety Act 2004, an employer must also provide, as is reasonably practicable, the safety, health and welfare of all employees, adequate and suitable protective equipment at no cost to the employee, and adequate training, instruction and supervision.
An employer may terminate an employee’s tenure at will but must give notice subject to the basis on which the employee is employed. If there are no express terms in the contract, then the court will imply a period that is reasonable in the circumstances of the case and monetary compensation may be awarded. The employer must allow the employee an opportunity to respond to the allegations that constitute the reasons for his or her dismissal.
Access to the Industrial Court depends on whether or not the employee is “a worker” as defined under the Industrial Relations Act. The Industrial Court has the power to order the employer to pay compensation or reinstatement. Where the dismissal is wrongful, employees who fall outside the scope of “a worker” will have to go to the High Court where monetary compensation by way of damages can be awarded.
Immigration & Work Permits
Persons other than citizens and residents may work in T&T without a work permit if they are working for a maximum of 30 days within a period of 12 consecutive months. Otherwise, a work permit must be obtained by all non-national persons who wish to gain employment within the country. Work permit applications must be made by the T&T based company wishing to employ the non-national, or by a practicing T&T attorney where the person is self-employed.
However, CARICOM nationals wishing to work in T&T do not require work permits once they have obtained a Certificate of Recognition of CARICOM Skills Qualification. This certificate allows entry into any of the 12 CARICOM member states for an initial six months, whereby all qualifications are reviewed by the receiving state. Once approved, such persons will be granted indefinite entry.
Real Estate
Real estate and construction development in T&T is a booming industry that accounts for a significant portion of the GDP and is a major driver of employment. With a finite land area and continuous robust growth in the construction sector, real estate prices have soared over the past 10 to 15 years.
Government spending on large infrastructure projects has contributed significantly to the growth of this sector, along with the almost insatiable demand for affordable housing. Many large international companies from China, Brazil, France, Italy and the UK have participated in the development of in T&T’s construction industry.
There are two systems of registration of title to land in T&T, the common law system and a registration of title system. The common law system is governed by the Conveyancing and Law of Property Act Chapter 56:01 and the Registration of Deeds Act Chapter 19:06, under which land transactions are carried out by the registration of deeds at the Land Registry.
The registration of title system is based on the well-known Torrens system and is governed by the Real Property Act Chapter 56:02 (RPA). Under the RPA all dealings with respect to property must be recorded (endorsed) on the certificate of title relating to that property. The register is considered conclusive evidence of the interest registered.
The title under this RPA system is guaranteed by the state and any person deprived of an interest in land by fraud may claim compensation from a fund called the Land Assurance Fund, established by the RPA for that purpose. Notwithstanding these advantages of the RPA, most land in T&T is still held under the old common law system.
Compulsory Acquisition
The Land Acquisition Act Chapter 58:01 allows the state to acquire land that is likely to be required for the purposes which, in the opinion of the president of T&T, are public purposes. The state can also acquire property by way of private treaty negotiation. The compulsory process involves notifying the affected persons and allowing them to present claims for compensation and negotiations on the amount of compensation to be paid.
In some special cases, state lands may be made available to private individuals for specific investment purposes. The interested purchaser is required to submit an application to the state, together with supporting documentation such as a development plan showing the proposed use of lands. The lands will usually be vested by way of a state lease for a term of between 30 and 99 years at a rent, premium or both.
Construction Incentives
There are a range of tax incentives to promote local construction. These can be discretionary or performance-based.
It is anticipated that the government may be strongly considering further incentives aimed at stimulating private sector involvement in the construction industry, in light of the expected reduction in government spending in this area due to the falling energy prices. Property development companies that engage in both urban and rural property development may apply to the Board of Inland Revenue to be “approved” as an urban and rural property development company.
As a prerequisite, companies must be locally owned and undertake construction in both rural and urban areas. Once approved, they are entitled to an allowance against their taxable income of 15% of construction costs for commercial properties completed in the year of income.
Tourism Development
The Tourism Development Act (TDA) 2000 (as amended) lays out the benefits available to the owners/operators of various types of tourism projects, once these projects have the potential to contribute substantially to the development of the tourism sector. The benefits include:
• Tax holidays up to seven years;
• Tax exemption on profits from the initial sale of villas, condominiums and sites thereof within an integrated resort development;
• Carry-over of losses from tax exemption period;
• Duty concessions on vehicles;
• Duty exemption for building materials and articles of tourism equipment;
• Capital allowances; and
• Accelerated depreciation. To access benefits under the TDA 2000 (as amended), the tourism project must:
• Be registered with the local government corporation or the Tobago House of Assembly;
• Be subject to annual inspection by the local government corporation in respect of matters concerning Trinidad, and the assembly in matters concerning Tobago;
• Provide relevant statistics/economic data at intervals as required by the corporation or the assembly;
• As far as possible, engage and utilise the human resources of T&T;
• Show linkages to the agricultural, construction and furniture industries, and other manufactured goods and services of T&T; and
• Have a minimum capital expenditure, which varies with the type of tourism project as outlined in Schedule 9 of the TDA.
Data Protection
The Data Protection Act 2011 sets out several general privacy principles applicable to all individuals and organisations both public and private. These principles include that information must be collected for a specified purpose; must be accurate, complete and up-to-date; collected, used or disclosed only after consent is given; and collected fairly and legally, and limited to what is necessary. The act creates several offences, for example, wilfully disclosing any personal information. The penalties for these offences include fines of up to $100,000 or up to five years imprisonment for individuals, and fines of up to 10% of the annual turnover of a company.
Intellectual Property
T&T has been a member of the World Trade Organisation and a signatory to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) since 1994. The Agreement on TRIPS establishes minimum standards for the protection of intellectual property (IP) rights. It must be noted that IP is not a purely legal issue but rather a combination of law, science and business. This is the reason why IP is included in almost every trade-related matter being discussed at the global level today. In accordance with T&T’s obligations under the Agreement on TRIPS, a package of IP rights-related legislation was enacted beginning with the Patents Act Chapter 82:76, which established the IP Office in 1997.
The international treaties of which T&T is a party, related to patents, are: the Paris Convention for the Protection of Industrial Property; the Patent Corporation Treaty (PCT); the Strasbourg Agreement concerning the International Patent Classification; and the Budapest Treaty of the International Recognition of the Deposit of Microorganisms for the Purpose of Patent Procedure.
In June 2000 T&T’s implementation of its IP legislation was reviewed successfully before the TRIPS council. Since then the IP Office has been faced with the task of effective implementation of the package of IP laws.
Patents Act
The Patents Act Chapter 82:76 provides for the majority of the provisions of the PCT, which is an international filing system for patents. This treaty is governed by the World Intellectual Property Organisation, which is a specialist arm of the UN charged with the administration of IP rights on a worldwide scale.
The PCT assists applicants in seeking patent protection internationally for their inventions, helps patent offices with their patent granting decisions, and facilitates public access to a wealth of technical information relating to those inventions. By filing one international patent application under the PCT, applicants are able to simultaneously seek protection for an invention across 148 countries throughout the world, making it a one-stop solution for registering and managing patents globally.
In recent years, the IP office in T&T has also made attempts to deal with other critical developing IP-related matters. This includes the valuation of IP, marketing and branding government-owned IP, auditing the IP inventory of T&T, IP in the sports industry and many related issues.
These issues arise because of the cross-cutting nature of IP and the fact that it deals with expressions of human intellect and endeavour. Other IP rights such as copyright, industrial designs, integrated circuits and trade secrets are also afforded protection in T&T.
Agriculture Protection
A new plant variety refers to a previously known group of plants that can be consistently distinguished from any other similar group of plants, generation after generation. These new plants are not discovered in the wild, but are the result of scientific human plant breeding efforts.
A new variety can be protected by giving the plant breeder the legal right to exclude anyone who does not have his or her permission for producing for the purpose of marketing, offering for sale, or marketing his or her new variety. This legal right is often called a plant breeder’s right. In T&T this right is given under the Protection of New Varieties of Plants Act (Act No.10 of 1997). To qualify for this protection, a variety must be new, distinct, uniform, stable and have an original variety denomination.
GRTKF Protection
The creation of the international instrument for the protection of genetic resources, traditional knowledge and folklore (GRTKF) is also of concern in T&T. GRTKF is not presently protected under conventional IP systems, as they typically belong to entire communities and not to single proprietors. They have also been in the public domain of those communities, sometimes for centuries.
Increasingly, elements of GRTKF have found themselves as part of new patent applications belonging to multinational entities. This can be seen when, for example, pharmaceutical firms turn traditional medicines into commercial drugs and treatments, but without giving any credit or remuneration to the originating communities. T&T is seeking to improve the GRTKF protection of its traditional resources. One of the proposals T&T has managed to achieve is in the area of traditional cultural expressions concerning specific language to protect “works of mas” in connection to its annual Carnival celebrations.
Copyright
Works covered by copyright include, but are not limited to, novels, poems, plays, reference works, articles, computer programmes, databases, films, musical compositions, paintings, drawings, photographs, sculpture, architecture, advertisements, maps and technical drawings. Copyright protection is automatic; no formalities OBG would like to thank J.D. Sellier & Co. for their contribution to THE REPORT Trinidad & Tobago 2016 are required as a precondition for obtaining copyright protection.
T&T became a member of the Berne Convention on August 16, 1988. The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them. The three basic principles are the principle of “national treatment”, the principle of “automatic protection” and the principle of “independence of protection”.
As a result, the Copyright Act No. 8 of 1997 that incorporates the provisions of the Berne Convention does not require the registration of a copyright in T&T in order to obtain protection. Unlike other forms of IP, copyrights are protected without registration.
Trademarks
Trademark law is governed by the Trademark Act Chapter 82:81. T&T is seeking to improve the GRTKF protection of its traditional resources. Both foreign and local persons who desire protection in T&T must file individual trademark applications at the IP Office of the Ministry of Legal Affairs.
Trademarks are valid for 10 years from the filing date of the application and may be renewed for successive 10-year periods. A claim for trademark infringement can not be brought for an unregistered mark, however, T&T courts recognise that a trademark, registered or not, accrues rights under the English common law remedy of passing off. Like most Caribbean countries, T&T has not acceded to the international filing system of trademark managed by the Madrid Protocol.
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