TRINIDAD & TOBAGO: An Introduction to Dispute Resolution: Senior Advocates

Trinidad and Tobago, a high-income nation of 1.4 million people, navigates a unique dispute resolution landscape. Its compact size and hydrocarbon-driven economy, heavily reliant on natural gas for petrochemical production and LNG exports, shape the context of conflict resolution. Recognising the potential of natural gas as a bridge to a carbon-neutral future, the government actively develops its own resources while fostering regional partnerships in the energy sector.

Most recently, Trinidad and Tobago signed a 30-year exploration and production licence with its neighbour Venezuela for the Dragon gas field located in Venezuelan territorial waters. In December 2023, the country’s sole LNG producer and exporter was restructured, with a shift towards a market-related pricing structure. In mid-2024, government policy aligned the threshold for supplemental petroleum tax (SPT) for small shallow water producers with small onshore producers and adjusted the SPT for both mature and small marine oil fields. This incentive targets smaller oil producers and lease operators so as to increase crude oil and condensate production. The country is best in class in Latin America in the Extractive Industries Transparency Initiative (EITI).

The country is diversifying its energy economy with renewables such as solar, is looking at wind and green hydrogen as well carbon capture. In other areas, the country has become a leading regional centre in financial services as well as in light manufacturing. However, the tourism sector lags behind these industries.

The High Court, as a superior court of record, has unlimited jurisdiction to resolve civil, corporate, public law and certain statutory disputes. Its low threshold of TTD50,000 (approximately USD7,500) threatens to engulf the civil litigation system. Trinidad and Tobago has a very developed public law jurisprudence based on the 1976 Constitution’s fundamental rights and freedoms, the Judicial Review Act and common law and may involve certain key statutes, such as the Freedom of Information Act, the Data Protection Act and the Public Procurement Act.

In both civil and public law matters, if a party is dissatisfied with a decision of the High Court, they have the right to appeal to the Court of Appeal, and then, in most matters, to the Judicial Committee of the Privy Council, the country’s highest appellate court. The Privy Council’s judgments are binding.

In matters that concern the interpretation of the main regional trade treaty – the Revised Treaty of Chaguaramas – both individuals and corporations may have recourse to the local regional international court – the Caribbean Court of Justice, which is conveniently located in Port of Spain. The Caribbean Court of Justice is also the final appellate court for several regional neighbours, namely Guyana, Belize, Barbados, and the Commonwealth of Dominica. Its judgments are highly persuasive.

The Companies Acts of 1995 & 1997 (CA), are modelled after the Ontario Corporations Act. These Acts govern the incorporation of local entities in Trinidad and Tobago. Recent digital initiatives permit virtual filings.

In case of corporate failures, the applicable legislation is the Bankruptcy and Insolvency Act of 2007 (BIA) which came into force in 2014 with the exception of the part concerned with cross-border insolvencies. The BIA is also modelled after Canadian legislation and provides a regime for both insolvent companies and individuals, including governing the conduct of receivers and receiver managers. In several instances, eg, receivership, both the CA and BIA will apply.

The policy of the BIA is in part to encourage the rehabilitation of insolvent companies and individuals. This is done by permitting the making of proposals to enable the debtor to reorganise their financial affairs and to remain a going concern under the debtor’s management and for there to be an automatic stay of court proceedings. Trustees are bound to ensure that bankrupt individuals have access to counselling. In the case of individuals, disputes between creditors and licensed trustees under the BIA may be resolved by mediation in accordance with the Mediation Act 2004 instead of litigation.

This general philosophy of facilitating mediation is also enshrined in the Mediation Act. In any non-criminal matter where the court considers it appropriate, it may refer parties to mediation before a certified mediator. For the purpose of the Mediation Act, the judiciary, the Industrial Court, the Tax Appeal Board, the Environmental Commission (all superior courts of record) and the Tobago House of Assembly are deemed to be mediation agencies – ie, entities that can provide mediation services.

The Industrial Court, the Tax Appeal Board, the Environmental Commission and the Equal Opportunities Commission are superior courts of record with limited jurisdiction in their respective spheres of employment and other trade disputes; tax disputes between taxpayers and the state; issues of environmental enforcement (eg, the refusal of an environmental clearance certificate by the Environmental Management Authority); and cases of discriminatory, unfair, and unequal treatment in the public sphere, frequently involving employment-related disputes.

In 2023, Parliament passed an updated Arbitration Act (not yet assented to) that encourages judicial respect for arbitration agreements by introducing provisions that allow a court to stay legal proceedings to uphold an arbitration agreement, recognising their formal validity unless such agreements are found to be null, void, or incapable of being performed. The new Arbitration Act also introduces the doctrine of separability and the principle of competence-competence, which the old Arbitration Act did not include.

Further, the Act allows for court involvement in certain aspects of the arbitration process, similar to the English Arbitration Act 1996, including the appointment and removal of arbitrators, the determination of jurisdiction and the enforcement of interim measures.

The Act provides that the arbitral tribunal should decide on the applicable principles and statutory rules as well as the admissibility, relevance, materiality, and weight of the evidence presented by the parties applicable to both international and domestic legal arbitration.

In Trinidad and Tobago’s public construction sector, the most widely used set of standard terms and conditions are the FIDIC Books and these usually provide for mediation or a dispute adjudication board, and/or arbitration. It remains to be seen whether Trinidad and Tobago will emerge as a regional arbitration powerhouse once the 2023 Arbitration Act comes into legal force.

In the highly regulated financial services sector, market actors’ conduct is actively regulated by multiple regulators – the Central Bank under the Central Bank Act, the Financial Institutions Act and the Insurance Act; the Securities and Exchange Commission under the Securities Industry Act and the Stock Exchange under the Securities Industry Act and the Stock Exchange Rules. In each case, the regulators have direct administrative power over the regulated entities with the power to impose penalties without recourse to court proceedings, and with a right to appeal to the High Court if necessary.