Derek Achong

Se­nior Mul­ti­me­dia Re­porter

derek.achong@guardian.co.tt

St Lu­cia-based ce­ment im­porter Rock Hard Dis­tri­b­u­tion and its lo­cal deal­er Rock Hard Dis­trib­u­tors have suf­fered a sec­ond de­feat in their bid to chal­lenge the quo­ta and li­cens­ing sys­tem for ce­ment im­por­ta­tion in­tro­duced in 2021. 

Last week, Ap­pel­late Judges Prakash Moo­sai, Char­maine Pem­ber­ton, and Gillian Lucky dis­missed an ap­peal from the com­pa­nies over a col­league’s de­ci­sion to up­hold the sys­tem. 

The out­come was es­sen­tial­ly aca­d­e­m­ic as the sys­tem was even­tu­al­ly sus­pend­ed by the Gov­ern­ment in Feb­ru­ary 2024. 

The ap­peal pan­el found that High Court Judge Jacque­line Wil­son was not wrong to have dis­missed the com­pa­nies case months af­ter the sys­tem was in­tro­duced by the Min­istry of Trade and In­dus­try. 

“The judge rea­soned that the pro­posed mea­sures did not af­fect on­ly the ap­pel­lants, but ap­plied to all im­porters of ce­ment in­clud­ing oth­er hy­draulic ce­ments; and fur­ther, the ev­i­dence of the re­spon­dent demon­strat­ed that in ar­riv­ing at the de­ci­sions, the Min­is­ter took fis­cal and eco­nom­ic con­sid­er­a­tions in­to ac­count and made eval­u­a­tive as­sess­ments,” Jus­tice Moo­sai said, while de­liv­er­ing the pan­el’s judg­ment. 

“Thus, the judge was sat­is­fied that the Min­is­ter took rel­e­vant mat­ters in­to con­sid­er­a­tion and un­der­took the weigh­ing of in­ter­ests that the Trade Or­di­nance con­tem­plat­ed,” he added. 

The case was the most re­cent in a se­ries of law­suits that arose af­ter 2016, when Rock Hard en­tered the re­gion­al ce­ment mar­ket that was pre­vi­ous­ly mo­nop­o­lised by Mex­i­can-owned Trinidad Ce­ment Lim­it­ed (TCL) and its sub­sidiaries. 

Rock Hard im­ports its hy­draulic ce­ment from Turkiye. Mooti­lal Ramhit & Sons Con­tract­ing served as lo­cal dis­trib­u­tor un­til 2020 when it as­signed its rights to its whol­ly owned sub­sidiary Rock Hard Dis­trib­u­tors.   

The com­pa­nies filed the case against the min­istry af­ter it sought to im­pose a li­cens­ing scheme for ce­ment im­porters and a 75,000 tonne-an­nu­al cap on im­port­ed ce­ment. 

The Gov­ern­ment’s move was based on con­cerns raised by TCL over the ef­fect of im­port­ed ce­ment on its mar­ket share. 

The cap, cou­pled with si­mul­ta­ne­ous in­crease in du­ties on im­port­ed ce­ment, re­sult­ed in Rock Hard tem­porar­i­ly shut­ting its lo­cal op­er­a­tion. 

While the case was be­fore the courts, the an­nu­al quo­ta was dou­bled. The in­creased quo­ta re­mained in place for two years be­fore it was even­tu­al­ly sus­pend­ed. 

In de­cid­ing the case, Jus­tice Moo­sai not­ed that the min­is­ter was per­mit­ted to im­pose quo­tas un­der a Trade Or­di­nance from 1958. 

He al­so found that the or­di­nance was not re­pealed by the pro­vi­sion of the Cari­com Act as claimed. 

“There is noth­ing in the lan­guage of the Act, nor in the wider pol­i­cy as in­ter­pret­ed by the Caribbean Court of Jus­tice (CCJ) to sug­gest that the re­spon­dent was not em­pow­ered un­der the Trade Or­di­nance to im­pose quo­tas as nec­es­sary,” Jus­tice Moo­sai said. 

He al­so found that the min­is­ter was not re­quired to con­sult with Rock Hard be­fore im­ple­ment­ing the quo­ta and li­cens­ing regime. He al­so not­ed that the Gov­ern­ment made no as­sur­ances ca­pa­ble of cre­at­ing a le­git­i­mate ex­pec­ta­tion to be con­sult­ed. 

Jus­tice Moo­sai not­ed that the min­istry had agreed to as­sign 73 per cent of the quo­ta or 55,000 tonnes to Rock Hard. 

“By any ob­jec­tive and rea­son­able stan­dard, we can­not say that the re­spon­dent treat­ed with the ap­pel­lants in an un­fair man­ner,” Jus­tice Moo­sai said. 

“It is clear that the min­istry ap­proached the quo­ta al­lo­ca­tion based on tra­di­tion­al im­port his­to­ry and mar­ket share, which are both ob­jec­tive­ly ra­tio­nal cri­te­ria, and on this ba­sis of­fered them the li­on’s share of the al­lowance,” he added. 

Rock Hard pur­sued a sep­a­rate law­suit be­fore the CCJ over the Gov­ern­ment’s move to suc­cess­ful­ly ap­ply to Cari­com’s Coun­cil for Trade and Eco­nom­ic De­vel­op­ment (COT­ED) to in­crease the Com­mon Ex­ter­nal Tar­iff (CET) for hy­draulic ce­ment from 35 to 50 per cent in 2021.

In March 2022, the CCJ dis­missed the chal­lenge and up­held COT­ED’s de­ci­sion. 

The CET was even­tu­al­ly low­ered to 20 per cent be­fore be­ing re­duced to ze­ro per cent in April last year, based on suc­ces­sive an­nu­al price in­creas­es im­posed by TCL be­tween 2021 and 2025.