Legal Insights – Fitzwilliam, Stone, Furness-Smith & Morgan

TRINIDAD AND TOBAGO EXCHANGE CONTROL ACT

The Exchange Control Act, Chap. 79:50 regulates foreign currency transactions in Trinidad and Tobago. Prior to April 12, 1993, there existed a range of controls and restrictions in respect of dealings in gold, local and foreign currencies, securities and payments to non-residents designed to strictly control any leakage of foreign exchange but by and large, these controls have been removed.

Persons may freely buy, borrow, sell or lend gold or foreign currency from /to each other outside Trinidad and Tobago. Persons within Trinidad and Tobago can buy, borrow, sell and lend gold and foreign currency from/to authorised dealers only. In all other cases, the approval of the Central Bank is required. However, neither the Central Bank nor any authorised dealer can place any restrictions as to the use to which any gold or foreign currency sold/borrowed from it must be put or the period for which such gold or foreign currency may be retained by the buyer/borrower.

There is no obligation to sell gold/foreign currency to an authorised dealer and these holdings may be retained without any interference by the Central Bank. Payments may be made within or outside Trinidad and Tobago, to or from or on behalf of anyone, in gold or foreign currency.

There is no need in the case of investment from abroad to obtain exchange control approval before the investment is made and loans may be made to non-residents without the approval of the Central Bank.

The repatriation of capital is not subject to exchange control approval.

The par value of the Trinidad and Tobago Dollar floats against the United States Dollar and consequently, against every other foreign currency. The rate of exchange is now based on the prevailing market rates which are defined, in the case of an authorised dealer, as such rate as the authorised dealer may from time to time specify as its buying and selling rates for the United States Dollar and, in the case of the Central Bank, at such rate as the Central Bank shall determine as the average of the buying and selling rates for the United States Dollar specified by all authorised dealers.

DISCLAIMER

The information and content on this website is provided for general information purposes only and is not intended to constitute legal or other professional advice. Legal information or content on this website relates only to the laws of Trinidad and Tobago which may be different from your laws. You should not take any actions based on information found on this website without first seeking appropriate legal advice with respect to your specific matter.

No representations or warranties are made about the suitability, currentness, comprehensiveness and/or accuracy of the information and other content contained on this website. It should be noted that legal information and content can rapidly become out of date and we give no undertaking to keep this website up to date. All liability for any loss or damage of any kind which may be suffered as a result of accessing and using the information and/or content of this website is hereby excluded to the full extent permitted by law.

COMPANY TAX REGIME IN TRINIDAD AND TOBAGO

It is important to note that petroleum companies involved in production and refining operations in Trinidad and Tobago operate under a separate tax regime from other companies. This note is therefore divided into three major sections. The first discussing taxes that are not specifically related to the petroleum activities mentioned above, the second to those which relate solely to those petroleum activities and the third relating to taxes of general application that apply in both cases and other miscellaneous matters.

TAXES WHICH APPLY TO COMPANIES OTHER THAN THOSE ENGAGED IN PETROLEUM PRODUCTION AND REFINING

Corporation Tax and Business Levy

Companies carrying on a trade or business in Trinidad and Tobago, will be subject to charges of corporation tax and business levy pursuant to the Corporation Tax Act, Chap 75:02 (“the CTA”). Corporation tax is charged at the rate of 25% on the first TT$1,000,000 of a company’s chargeable profits and chargeable short term capital gains and 30% thereafter. For the purposes of computing a company’s chargeable profits all expenses wholly and exclusively incurred in the production of the income are deductible except where specifically disallowed by the CTA. Losses are allowed to be brought forward but not back. Any disbursements or expenses that are not monies wholly and exclusively laid out or expended for the purpose of producing income are not deductible. A 35% rate applies for various companies involved in certain downstream petroleum and petro-chemical activities. There also various benefits and variations available to Small and Medium Enterprises listed on the Trinidad and Tobago Stock Exchange and approved small companies. In addition there are a range of capital allowances that can be accessed under the Income Tax (In Aid of Industry) Act Chap. 85:04. Special provisions also apply for the purposes ascertaining the chargeable income and applicable tax with respect to Insurance, Shipping and Air Navigation Companies.

Business levy is charged on the gross income of a company for each year at the rate of 0.6%. Gross income here means all income received in the ordinary course of business before allowing any deductions for business expenses. The company is entitled to a tax credit against its business levy liability for a year of income of any payment made in respect of its corporation tax liability for that year up to a maximum of its business levy liability. Therefore where the corporation tax liability exceeds the business levy liability, a tax credit to the maximum of the business levy liability will be granted and only the corporation tax will be paid. Where the business levy liability exceeds the corporation tax liability the corporation tax liability along with the excess business levy liability is payable.

No liability for business levy accrues in respect of gross sales giving rise to exempt income under the CTA or gross sales not exceeding a specific threshold per annum. Further business levy is not to be charged until the expiry of three years from the date of registration of a corporation which was registered after January 1, 1999.

Green Fund Levy

Green Fund Levy is charged at the rate of 0.3% of the company’s gross income, that is, all income received in the ordinary course of business before allowing any deductions for business expenses. It applies even if the business is exempt from business levy. Green Fund Levy cannot be credited against corporation tax or business levy and so is an additional tax.

TAXES RELATING SPECIFICALLY TO COMPANIES ENGAGED IN PETROLEUM PRODUCTION AND REFINING

Petroleum Profits Tax

Petroleum Profits Tax is payable at the rate of 50 percent (except for deep water operations which attract a 35 per cent rate). Petroleum Profits Tax is the petroleum equivalent to Corporation Tax and so outgoings and expenses (other than capital allowances) determined in accordance with normal income tax principles are deducted (as well as Supplemental Petroleum Tax paid for the period, Petroleum Impost, Production Levy and Royalty) from profits in order to determine chargeable income. In addition there are a range of capital and other allowances as well as incentives for various types of petroleum projects that can be accessed under the Petroleum Taxes Act itself as well as under the Income Tax (In Aid of Industry) Act, Chap. 85:04.

Supplemental Petroleum Tax (“SPT”)

SPT is charged on gross income from the disposal of crude oil. The only deduction permitted is the royalty (including overriding royalty) paid pursuant to a licence or sub-licence. SPT was originally designed as a windfall profits tax and became payable when the weighted average annual crude oil price exceeded specific threshold prices on a sliding scale increasing with the price of crude and depending on the type of licence or PSC held, but present world prices exceed the threshold.

Petroleum Production Levy

This is levied and charged on every person in respect of any production business carried on by the producer. The total levy from all producers is used to pay a subsidy to traders in the petroleum marketing business and each producer’s share of the levy is pro-rated in accordance with its percentage of the total country’s production. The maximum charge that can be made is 4 per cent of gross income from the production of crude oil. Small producers with a daily average production of 3500 barrels or less are exempted.

Petroleum Impost

Every holder of an exploration and production licence is obliged to pay a petroleum impost in respect of petroleum won and saved at rates per barrel of crude oil and per mscf natural gas specified by the Minister of Energy. The applicable rate varies and is usually published on an annual basis.

Unemployment Levy

Unemployment levy is payable at the rate of 5 per cent of taxable profits of a person for a current financial year. Unlike Petroleum Profits Tax no relief is given for losses brought forward.

Royalties

Royalty payments, though not strictly speaking a tax, are payable in respect of production of crude oil and natural gas from State lands or marine areas under an exploration and production licence. The royalty payments are calculated as a percentage of the Field Storage Value of the net petroleum won and saved from the licensed area. The rates in force range from 10 – 12.5 percent.

Green Fund Levy

Green Fund Levy (which was already discussed above) also applies to companies engaged in petroleum operations.

Tax Paid Production Sharing Contracts

Most Production Sharing Contracts are “tax paid” with all or most income/profit based taxes being paid by the Minister out of his share of the production.

TAXES OF GENERAL APPLICATION AND OTHER MISCELLANEOUS MATTERS

Value Added Tax (“VAT”)

VAT is imposed at the rate of 12.5% on the value of certain imported goods and on the value of certain goods and services supplied in Trinidad and Tobago. Where a supplier will be supplying goods and services to a value in excess of $500,000.00 per annum such supplier is required to register as a VAT Trader for the purposes of the VAT Act, Chap. 75:06. VAT-registered businesses can deduct VAT that they pay when purchasing goods and services for the business from the VAT that they collect from customers. If the amount of VAT that a business pays is more than they collect, the VAT registered business can, subject to meeting certain requirements, claim the excess in their VAT returns as a refund. Certain goods and services are specifically exempted from VAT and others are zero rated (that is, VAT is chargeable at the rate of 0%).

Customs Duties

These are levied at varying rates on customs entries in respect of imported goods according to classification in the Common External Tariff which is contained in a Schedule to the Customs Act, Chap. 78:01. The value for the assessment of customs duties (and VAT on imports) is normally the C.I.F. (Cost Insurance and Freight) Value of the goods at the time of import. There are exemptions in relation to specific goods. Further relief from customs duty pursuant to the Fiscal Incentives Act Chap. 85:01 may also be obtained in appropriate cases.

Withholding Tax

Section 50 of the Income Tax Act, Chap. 75:01 also imposes withholding tax at varying rates of up to 15% in relation to certain payments, distributions and deemed profits made from Trinidad and Tobago to non-residents. This may be reduced/mitigated by an applicable double-taxation treaty.

Stamp Duty

This tax is levied pursuant to the Stamp Duty Act, Chap. 76:01 at varying rates on instruments of all types including deeds of conveyance, mortgage, assignment, debentures, leases, insurance policies, annuity policies and share transfers.

Pay As You Earn, National Insurance and Health Surcharge

Employers are required to withhold Income Tax, Health Surcharge and National Insurance contributions from salaries paid to employees and to remit them to the Board of Inland Revenue and the National Insurance Board.

Free Trade Zone and Fiscal Incentives

Various forms of tax relief may be applied for and obtained under the Trinidad and Tobago Free Zones Act, Chap. 81:07 and under the Fiscal Incentives Act, Chap. 85:01. Both statutes require that certain pre-requisites be satisfied before a company can become eligible for the tax relief benefits they confer.

Other Miscellaneous Taxes

Other taxes include Financial Services Tax (15%), Hotel Accommodation Tax (10%), Online Purchase Tax (7%), and Insurance Premium Tax (6%). Lands and Buildings Tax and Municipal Corporations Tax were traditionally charged but the statutory provisions imposing these taxes have been replaced by a new Property Tax regime. There was an initial moratorium on the collection of the Property Tax which expired on December 31, 2015 and the Government has signaled an intention to start levying and collecting this tax, though the applicable assessable values of property and rates of tax have not been finalized.

DISCLAIMER

WILLS AND GRANTS OF ADMINISTRATION IN TRINIDAD AND TOBAGO

LEGISLATIVE BACKGROUND

The legislation in Trinidad and Tobago which applies to estate planning and administration are historically modelled on “old” United Kingdom legislation, and include, inter alia, the following statutes:

i. Administration of Estates Act, Chap. 9:01.

ii. Wills and Probate Act, Chap. 9:03.

iii. Trustee Ordinance, Chap. 8 No. 3.

WILLS

In Trinidad and Tobago, for a will to be valid:

i. The person making the will (“testator”) must have the mental and legal capacity to make the will.

ii. The will must be in writing.

iii. There must be clear intention to dispose of the property. If a testator is unduly influenced (coerced or pressured) or forced into making the will, a Court may set it aside. Similarly, a court may set aside a will if the execution was obtained by fraud or if the signature was forged.

iv. The will must be signed by or on behalf of the testator in the presence of two witnesses present at the same and attested to by the two witnesses in the presence of the testator and each other.

GRANTS OF REPRESENTATION

In order to administer the estate of a deceased person in Trinidad and Tobago one must first obtain the necessary grant of representation. These include the grant of Probate and the grant of Letters of Administration which are obtained on application to the Probate Registry of the Supreme Court of Judicature of Trinidad and Tobago.

When a person dies having made a will leaving his or her property to named persons or organisations, an application for a grant of Probate must be made by the named executor to properly give effect to the gifts under that will. Documents required for a grant of Probate include:

i. an application for the grant made by an attorney-at-law (where the value of the estate exceeds TT$4,800.00);

ii. an affidavit of the executor(s), which must include inter alia the following information:

(a) the name(s), address(es), and occupation(s) of the executor(s);

(b) the name, address and occupation of the testator at the time of death and date and place of his/her death;

(d) the oath of the executor(s) to administer the estate honestly and fairly;

(e) a statement of the gross value of the estate.

iii. certified copy of the death certificate of the testator;

iv. original will of the testator;

v. affidavit of due execution sworn by one of the witnesses who was present and signed the will as a witness when the testator executed the will;

vi. inventory of assets of the testator and the value thereof at the date of death.

When a person dies intestate, that is to say not having made a will disposing of his or her property, an application for Letters of Administration must be made for the property to be distributed after the payment of all debts, duties and expenses, in accordance with the Administration of Estates Act, to the persons entitled to inherit which include: surviving spouse and/or surviving cohabitant and the testator’s issue. Where there is no surviving spouse/cohabitant and no issue, the property is distributed to the next of kin according to a specified order.

The documents required for a grant of Letters of Administration are the same for a grant of Probate, save for the original will and affidavit of due execution, and all other details (save and except any reference to a will) to be provided in the affidavit would apply to the administrator.

Where the testator has made a valid will and has failed to name an executor or the named executor cannot or will not apply for Probate, the beneficiary(ies) in the will can apply for a grant of Letters of Administration with Will Annexed.

The application once filed is advertised once a week for a period of 2 weeks and once the documents are checked and approved, the grant is signed and issued, within 6 to 18 months from the date of filing. Special and/or limited grants of representation are also possible and can be applied for where justified on the facts of the relevant case.

FOREIGN ASSETS

Grants of representation are issued from the Probate Registry of the Supreme Court of Judicature of Trinidad and Tobago only with reference to Trinidad and Tobago properties and reference to foreign assets will not be accepted in the inventory of the assets of the estate as submitted to the local registry.

DISCLAIMER

TRINIDAD AND TOBAGO ENVIRONMENTAL MANAGEMENT ACT

Although there are various pieces of legislation which may impose environmental obligations the Environmental Management Act, Chap. 35:05 (“the Act”) is the major piece of legislation in Trinidad and Tobago relating to the regulation, conservation and enhancement of the environment. The two main bodies established under the Act are the Environmental Management Authority (“the Authority”) and the Environmental Commission (“the Commission”). The Minister vested with responsibility for the environment (“the Minister”) also plays a vital role.

The Authority is established as a body corporate and its primary role, among others, is to develop and implement policies, standards and programmes for the management and use of the environment in accordance with the objects and purposes of the Act. The Authority also acts as a regulator and is given various general powers, which include among other things, to acquire information, to require the payment of charges and fees as may be prescribed, to appoint inspectors who have powers of entry and inspection of premises and vehicles (which is very widely defined), to take samples and the power to undertake emergency response activity in certain environmental emergencies and to implement schemes and programmes regulating activities that affect the environment.

The Commission on the other hand is established as a tribunal to exercise jurisdiction relating to complaints under the Act. The Commission is a superior court of record with power to enforce its orders and judgments and to punish contempt. The primary jurisdiction is to hear appeals on decisions taken by the Authority; applications for enforcement; assessments of compensation; complaints brought in private party actions. The decisions of the Commission are final on questions of fact but an appeal will lie to the Court of Appeal on any question of law.

The Minister responsible for the environment also has an important role and may (after an elaborate rule making process involving public comment with a public hearing if there is sufficient public interest) develop certain rules which must be laid in Parliament subject to negative resolution. The Minister also has the powers to make regulations prescribing charges and fees payable to the Authority and as to the manner of implementing policies and programmes. In addition, the Minister also has the power, subject to the negative resolution of Parliament, to prohibit the carrying out of activities without such person first obtaining a certificate from the Authority.

Several pieces of subsidiary legislation have now been passed into law under the aegis of the Act. The Certificate of Environmental Clearance (Designated Activities) Order (“the Order”) is perhaps the most well-known. This Order designates multiple categories of activity across various industries which require a Certificate of Environmental Clearance (“CEC”) from the Authority before they can be properly undertaken. The Certificate of Environmental Clearance Rules governs the application for and grant of CECs by the Authority, which are typically granted subject to conditions. The application process often involves considerable public consultation and the applicant may also be required to carry out an Environmental Impact Assessment to the satisfaction of the Authority. Obtaining a CEC does not negate the need to obtain other applicable regulatory approvals.

Other examples of subsidiary legislation enacted pursuant to the Act include the (i) Noise Pollution Rules; (ii) Environmentally Sensitive Species Rules; (iii) Environmentally Sensitive Areas Rules; (iv) Water Pollution Rules; and (v) Air Pollution Rules. Each of these rules imposes various regulatory requirements on the area of the environment which they concern. Draft Waste Management Rules and Draft Hazardous Waste Rules have also been prepared but they have not yet been passed into law.

The main enforcement provisions of the Act allow the Authority to impose an “environmental requirement” upon a party to comply with its lawful directions. The Authority may enforce these requirements by service of a notice of violation requiring a person to modify an activity or make representations to the Authority. The person will have the opportunity to resolve queries in which case the notice may be withdrawn or a consent agreement entered into.

If neither of these happen then the Authority may issue an administrative order which may include, among other things (i) cease and desist directives; (ii) directives for remediation of environmental damage; (iii) directives for the carrying out of investigations, monitoring or record keeping; (iv) administrative civil assessments for compensation; and (v) directives for compliance under a specific provision of the Act. An administrative order is subject to appeal to the Commission. The Authority may also file any consent agreement or final administrative order and an application for enforcement with the Commission. It has been held that a claim for malicious prosecution in relation to enforcement proceedings brought by the Authority under the Act is actionable in law. As a result, the Authority can be ordered by the High Court to compensate a party for the malicious institution of proceedings pursuant to the Act.

The Authority also has a jurisdiction to seek restraining orders, orders for closure of a facility and/or the prohibition of certain operations and any other remedy available to it at law. Private parties may under certain conditions also institute civil proceedings before the Commission in their own right and there are various specific offences which carry fines and/or imprisonment.

One of key concerns since the establishment of the Authority is its ability to ensure compliance with the provisions of the Act and the various regulations enacted thereunder. The Authority has maintained a consistent presence in these areas through the issuing of notices of violations in matters such as the commencement of work without approval, unauthorised clearing of lands, and other breaches of the relevant CECs. In one instance, the Authority issued fines amounting to $20 million against a State company for various breaches of its CEC.

While the Commission remains active to date and has adjudicated on matters within its jurisdiction, it has not produced a wealth of jurisprudence thus far. This can be attributed to the willingness of violators to settle their matters with the Authority through the consent agreement mechanism of the Act and the limited public awareness on the ability of a private party to initiate proceedings before the Commission.

DISCLAIMER

PETROLEUM REGIME IN TRINIDAD AND TOBAGO

Principal Petroleum Legislation, Licencing Framework and State Authority for Upstream Petroleum Operations

The petroleum industry, which is Trinidad and Tobago’s largest and most important industry is governed principally by the Petroleum Act, Chap. 62:01 (“the Act”) and the Petroleum Regulations, Chap. 62:01 (“the Regulations”). The Act and Regulations together establish a regulatory framework for the grant of Exploration and Production Licences (“E&P Licences”) and Production Sharing Contracts (“PSCs”) for the conduct of upstream exploration and production operations, including activity on land and in the submarine areas beneath the territorial waters and the continental shelf of Trinidad and Tobago. The Act and Regulations also regulate several other types of petroleum operations apart from upstream exploration and production. The term “petroleum operation” is very widely defined by the Act and no petroleum operations may be conducted without the appropriate regulatory approval. Recently, the penalties for failing to obtain the appropriate regulatory approval under the Act were significantly increased. The primary regulator of the industry is the Minister of Energy and Energy Industries (“the Minister”) who acts through the Ministry of Energy and Energy Industries (“the MEEI”). Other regulatory requirements and regulatory bodies will however, inevitably become relevant to persons engaged in petroleum operations depending on the specific activities engaged in.

Private Petroleum Rights – Licences and Oil Mining Leases

In Trinidad and Tobago, the original grants of the fee simple title to real estate by the State included all sub-surface rights not expressly reserved by the State. This gave rise to private petroleum rights being vested in private persons. Fee simple owners sometimes dispose of their surface rights separately, but retain their private petroleum rights. As a result, private petroleum rights may not always necessarily be vested in the same person holding the surface rights. Where a person wishes to carry out exploration and production operations involving private petroleum rights, he must obtain an Exploration and Production (Private Petroleum Rights) Licence from the Minister as well as the consent of the owner of the private petroleum rights. Arrangements with private owners are normally embodied in the form of private oil mining leases which provide for the payment of rents and/or royalties.

Public Petroleum Rights – Licences and Production Sharing Contracts

Unlike with private petroleum rights, a person interested in exploring areas that are subject to public petroleum rights need only deal with the MEEI as these rights are vested in the State. Public petroleum rights exist on State Lands, private lands where the sub-surface rights have been reserved to the State and all offshore marine areas. Petroleum activities over areas that are subject to public petroleum rights are carried out either under the authority of an Exploration and Production (Public Petroleum Right) Licence (“Public E&P Licence”) granted by the Minister or by the Minister entering into a PSC with the contractor. The President exercises public rights of ownership in land and minerals on the State’s behalf and is therefore also made party to Public E&P Licences and PSCs though, under the Act, the Minister is responsible for determining the areas to be made available for petroleum operations. The State, through the President, may decide that the grant of any Public E&P Licence or PSC for such areas identified by the Minister, be made on a competitive bidding basis. Competitive bid rounds are now the norm in the case of offshore marine areas and were recently utilized for certain onshore acreages. Although not the normal course, PSCs have sometimes been awarded by the Minister “out of round”. This most commonly happens where there has been a bid for a block which, for whatever reason, has not been accepted by the MEEI (usually due to the bid not meeting the MEEI’s internal minimum benchmark) and the bidder is invited to submit a revised bid out of round. Though the traditional method of granting rights to explore for and win petroleum is by way of the grant of an E&P Licence (and there is a still a substantial amount of producing acreage that is governed by this regime), the modern trend is towards the use of PSCs in respect of marine acreage.

Other Petroleum Related Licences

The Act and Regulations also contemplate the regulation of petroleum operations other than upstream exploration and production and the Regulations provide for:

(1) Refining Licences;

(2) Liquefaction of Natural Gas Licences;

(3) Pipeline Licences;

(4) Transportation (other than by pipeline) Licences;

(5) Marketing Licences;

(6) Petrochemical Licences; and

(7) Compressed Natural Gas Licences.

State Petroleum Company

Petroleum Company of Trinidad and Tobago Limited (“Petrotrin”) is the state-owned company most actively involved in upstream operations. Where a competitive bid round involves state enterprise participation (which is not always the case), the MEEI will normally name Petrotrin as the state petroleum company to be involved in the development of the relevant block. Petrotrin does not have a regulatory role in offshore blocks (unless it is sub-licensing a marine acreage which it holds under an E&P Licence) which will be primarily regulated by the Minister and the MEEI.

Petrotrin’s regulatory function tends to be limited to the petroleum acreage with which it was vested pursuant to the Textrin Vesting Orders and Petrotrin Vesting Act, Chap. 62:07 (this acreage was previously purchased by the State from Texaco in 1985 for good and valid consideration and then transferred from the State to Petrotrin) or which it holds pursuant to an E&P Licence from the State. This acreage is primarily land based but there are some marine based acreages. Although grants by the State for upstream exploration and production are done either through E&P Licences or PSCs, Petrotrin (with the consent of the Minister) utilizes a variety of “hybrid” arrangements when parceling off acreage to operators, including sub-licences, farm-outs, lease operatorships and incremental production service contracts.

Apart from upstream operations, Petrotrin also owns and operates the country’s only petroleum refinery.

Dispute Resolution with Trinidad and Tobago Government

In our experience, the MEEI maintains a very open relationship with petroleum operators and where there is an issue will normally be amenable to open discussion and non-contentious settlement of the matter in dispute. There has never been, as far as we are aware, any government acquisition in Trinidad and Tobago that can be properly described as unilateral expropriation of petroleum assets nor are we aware of any disputes being submitted to formal arbitration under a PSC.

E&P Licences and PSCs normally provide for multiple dispute resolution options including consultation, mediation, expert determination and/or arbitration which generally specify Trinidad and Tobago as the seat and its laws as the governing law. The UNCITRAL Rules are the preferred arbitral rules of the Minister and these are normally utilized in the dispute resolution provisions in PSCs. Certain disputes between the Minister and E&P Licensees that cannot be settled amicably are required under the Act and Regulations to be settled via arbitration proceedings in accordance with the Trinidad and Tobago Arbitration Act, Chap. 5:01 and in no other way. However, disputes are virtually always settled by negotiation and discussion.

DISCLAIMER

TRINIDAD AND TOBAGO OCCUPATIONAL SAFETY AND HEALTH ACT

The Occupational Safety and Health Act Chap. 88:08 (“OSHA”) applies to all “industrial establishments” including such industrial establishments owned by or occupied by the State. Under OSHA an “industrial establishment” means a factory, shop, office, place of work or other premises but not premises occupied for residential use only or other categories of establishment which may have been exempted by the Minister under the Act. “Premises” include any place, and, in particular any vehicle, vessel, aircraft, any offshore installation and any tent or moveable structure.

OSHA revised and extended the law regarding the safety, health and welfare of persons at work and in so doing it imposes duties and obligations on certain persons in a wide variety of workplaces. When OSHA came into force on February 17, 2006 it repealed various outdated legislation including the Employment of Women (Night Work) Act, Chap. 88:12 and more particularly the Factories Ordinance, Ch. 13 No. 2 (“the Ordinance”) (though notably under Sections 99 and 100 OSHA preserves all regulations and orders made pursuant to the Ordinance). Although an unofficial transition period for adjustment by industries was given after its proclamation this has long since passed and the Occupational Safety and Health Agency (“the Agency”) established under OSHA actively performs its statutory functions.

Apart from the Agency, OSHA also provides for the establishment of the Occupational Safety and Health Authority (“the Authority”). The Authority has the primary function of policy formulation and is responsible to the Government (the line Minister with primary responsibility for oversight of OSHA matters is the Minister of Labour and Small Enterprise Development) for the implementation of OSHA and among other things acts as an advisory body on policy, standards and matters related to Occupational Safety and Health and makes recommendations on regulations and the establishment of codes of practice.

The Agency functions as the enforcing body with legal powers of access to industrial establishments and to this end OSHA provides for the appointment of a supervisory body of inspectors, medical inspectors and a Chief Inspector. These inspectors are vested with a variety of powers including powers of access, power to issue compliance directives and/or notices and also to initiate proceedings for non-compliance in the Industrial Court. In short, the Agency enforces compliance with OSHA and any policies, standards or codes developed by the Authority.

OSHA addresses a variety of workplace issues including workplace health, safety, welfare, occupational diseases and employment of young persons. To this end OSHA imposes duties on employers, occupiers, employees and manufacturers and suppliers of goods. Some of these duties are not only owed to persons working at the industrial establishment but also to visitors and persons in the environs who might be affected by the activities carried out at the industrial establishment.

Under OSHA an “employer” is defined as a person who employs persons for the purpose of carrying out any trade, business, profession, office, vocation or apprenticeship. There are certain general duties owed by employers to, among other things, ensure the safety, health and welfare at work of all employees, so far as is “reasonably practicable”. Although not mentioned in OSHA, employers should establish “due diligence procedures”, that is, a system that provides for the taking of reasonable steps to ensure that the duties imposed by OSHA are performed. Other specific duties pertain in relation to the health and safety of employees, the employment of young persons (16 years or less in age), where hazardous chemicals or substances are present and in relation to the action to be taken in the event of accidents and occupational diseases.

In addition to employers, occupiers are also specifically identified under OSHA. An “occupier” is defined for the purposes of OSHA as the person who has the ultimate control over the affairs of an industrial establishment. Many of the duties of an occupier are owed directly to employees. An occupier owes certain general duties in terms of formulating general policy on health and safety of employees and the preparation of various emergency plans, the appointment of a safety practitioner and also to ensure that no unsafe structures exist at the industrial establishment. In addition, an occupier is responsible for managing the environment and protecting the public from dangers created by the operations of the industrial establishment. An occupier also owes other duties to the safety (including fire safety), health and welfare of employees, and in relation to the action to be taken in the event of accidents and occupational diseases.

Employees are also subject to certain duties under OSHA. An “employee” is defined as any person who has entered into a contract with an employer to do work for hire or reward. This definition includes public officers, the protective services and teachers. OSHA also specifically provides that a person who works in an industrial establishment of any kind whatsoever, incidental to or connected with the process or article made, is deemed to be employed therein. The duties owed by an employee include the duty to: take reasonable care for the safety of himself and others; to report contraventions of OSHA to his employer; to use personal protection and clothing devices correctly; to ensure that he is not intoxicated at work so as to be a danger to himself and others and to act reasonably in exercising his discretion (where applicable) to refuse to work.

There are also duties on designers, manufacturers, importers and suppliers of any technology, machinery, plant, equipment or material for use in any industrial establishment to ensure that these items are safe and without risks to health when properly used. However, financiers under hire-purchase agreements, conditional sale agreements and credit sale agreements are specifically excluded from these duties and provisions.

OSHA provides for a variety of penalties in the event of a person being convicted of a statutory offence. Directors and/or officers of companies who can be shown to have consented, acquiesced or connived in such offences can also be held personally liable. Criminal proceedings are handled by a Court of summary jurisdiction whilst civil proceedings fall under the jurisdiction of the Industrial Court. Aggrieved persons are also entitled to lodge complaints with the Industrial Court and such offenders, quite apart from statutorily imposed penalties and terms of imprisonment, also face the possibility of civil awards in damages being made against them under OSHA.

In terms of civil liability for OSHA violations, there are judgments of the Industrial Court in favour of the Authority against companies for breaches of OSHA where injury and/or death resulted. The fines in those cases ranged from TT$15,000.00 to TT$20,000 for each individual section that was breached, together with an order for compensation to be paid to the employee or to his estate. There have also been several high-profile instances of government offices being shut down by the Public Services Association (“PSA”) due to alleged OSHA violations. There are also conflicting judgments of the High Court of Justice as to whether mixed claims in negligence at common law and for breach of statutory duty under OSHA may be brought in the High Court. It will be up to the Court of Appeal to resolve this question.

DISCLAIMER

HELPFUL INFORMATION ABOUT TRADEMARKS AND PATENTS IN TRINIDAD AND TOBAGO

THE REGISTRATION OF TRADE/SERVICE MARKS GENERALLY

The Trade Marks Act, Chap. 82:81 and the Trade Marks Rules regulate the registration of trade marks and service marks within Trinidad and Tobago. Protection is afforded for unregistered trademarks such as image rights, via the common law tort of Passing off as well as under the Protection Against Unfair Competition Act, Chap. 82:36.

The Trade Marks Act provides for classification of goods and services pursuant to the International Classification of Goods and Services (“Nice Classification”), 7th edition, which covers 34 classes of goods and 8 classes of services. A complete listing of the Nice Classifications can be found at http://www.wipo.int/trademarks/en.

The Trade Marks Register is divided into Part A, for registration of distinctive marks, and Part B, for registration of marks that are capable of distinguishing the goods or services of the applicant from those of another entity. For Part A registration, a mark must contain or consist of at least one of the following essential particulars: (a) the name of a company, individual or firm represented in a special or particular manner; (b) the signature of the applicant for registration or some predecessor in his business; (c) an invented word or invented words; (d) a word or words having no direct reference to the character or quality of the goods and not being according to its ordinary signification a geographical name or a surname; (e) any other distinctive mark.

The following marks are not registrable:

generic and descriptive terms;
geographical names;
common surnames;
marks which are deceptive or scandalous or contrary to law or morality;
marks which comprise official government symbols, such as the national flag or flags, symbols or emblems of countries;
a mark that is similar or identical to another mark on the Trade Marks Register; and
a mark recognised as a well-known mark of an entity other than the applicant for registration.
An application for trade/service mark registration in Trinidad and Tobago is based on an intention to use the mark and therefore no declaration of use is required.

The Application for Registration of a Trade/Service Mark

The following information is useful when applying for registration of trade/service marks in Trinidad and Tobago:

The Mark- Applications can be made for word marks, in block type or stylized, and device marks. If a device mark, a reproduction of same would be required.
Applicant information-The following information must be included in an application for registration of a mark: (a) name of the applicant; (b) address of the applicant; (c) nationality for individual applicants; or (d) for legal entities the jurisdiction of organization together with the legal nature of the entity (for instance, company, corporation, limited liability company etc.).
The Class(es)- The applicant must set out in the application the class(es) in which the proposed mark is to be used, along with a list of the goods and/or services within the class(es).
Color- Colors can be claimed and the proper name of all the colors must be indicated in the application. A trade mark registered in black and white/without limitations of color shall be deemed registered for all colors thereby offering broader protection for the mark. Black and white is therefore normally recommended in the absence of very distinctive colors.
Priority – As a signatory to the Paris Convention for the Protection of Industrial Property made on March 20, 1883 (“Convention”) Trinidad and Tobago law allows trade/service mark owners from other Convention countries to claim priority registration in respect of trade/service mark applications if such local application is made within six (6) months of the filing date of the foreign application.
Authorization of Agent Form

An Authorization of Agent form must be completed and executed by the individual applicant or a duly authorized representative of the legal entity. The power of attorney need not be witnessed, notarized or legalized but must be reproduced on A4 dimension paper with a left-hand margin of 1½ inches.

Duration of Application Process

The time period from application to registration is approximately 12 to 18 months including the 3-month publication/opposition period.

Validity and Renewal

A trade/service mark in Trinidad and Tobago is valid for 10 years from the date of application and may be renewed for successive periods of 10 years each. No proof of use is required on renewal. The Intellectual Property Office also accepts late renewals of up to six (6) months after the expiry date on payment of an additional late penalty fee.

Types of Patents

The administration of local patents is regulated by the Patents Act, Chap. 82:76. Here patents for inventions are registrable provided that:

(a) the invention is new;

(b) it involves an inventive step;

International patents are also capable of registration within Trinidad and Tobago. These international patents, namely the Patent Cooperation Treaty (“PCT”) patent and the Paris Convention patent are registered in a foreign country which is a party to that particular convention (to which Trinidad and Tobago is also a party) and will be re-registered in this country claiming a priority date. These international patents must also conform to the statutory requirements of universal novelty, an inventive step and being capable of industrial application.

Patent application requirements

PCT: For national entry of a PCT patent application, the information as contained in the WIPO publication is required.

Paris Convention: A copy of the patent specification, claims, abstracts and drawings as filed in the priority country must be submitted as part of the application process.

Local Patent: Original specification, claims, abstracts and drawings must be submitted.

General Information about Applications

A signed power of attorney from the applicant must be submitted and this can be done separately after the local application has been filed.

Evidence as to the applicant’s entitlement to the invention is also necessary where the applicant is not the inventor. This can be done by way of a statutory declaration setting out the basis of ownership. This declaration can be submitted after the date of local filing.

With respect to PCT or Paris Convention patents, if there have been amendments to the patent description and/or claims which the applicant may wish to form part of the local application, such amendment can be submitted at the same time as the application. To assist the IPO, the examination reports from any other major examining officers may be submitted but this is not mandatory.

Annuities

Patentees must pay annual fees (annuities) to maintain the patent and such fees increase in amount during the course of the patent term.

DISCLAIMER

LAND TITLE SYSTEMS IN TRINIDAD AND TOBAGO

In Trinidad and Tobago there is a dual system of land titles, namely, the Old “English” Law or Common Law Title System (“the Common Law System”) governed by the Conveyancing and Law of Property Act, Chap. 56:01 and the registered land title system governed by our Real Property Act, Chap. 56:02 (“the RPA System”).

The Common Law System of Land Registration

The Common Law System of title is the older of the two systems and deals with unregistered land. Under this system, title to a parcel of land is traced by the registration of deeds, each such deed representing a transaction relating to the parcel of land. In order to be able to certify title with respect to a parcel of unregistered land one is required to produce, what is in law referred to as a “Good Root of Title” relating to such parcel of land, that is, a deed of at least twenty years (20) of age under which consideration has passed (for example, a Deed of Conveyance or a Deed of Mortgage). Thereafter, the “Chain of Title” of ownership (each registered deed constituting a “link” in the chain) is traced to the present owner. Where each registered deed can be traced and linked together so as to lead to the person alleging ownership without a break in the chain, good and marketable title will be established under the Common Law System.

The Common Law System is not without its difficulties, as establishing full ownership of land involves the “getting in” of both the legal and the equitable titles. This is based on the common law principle that a vendor cannot transfer a greater interest than he or she may own (this is known in legal circles as the Nemo Dat Rule). The tracing of title under the Common Law System can become quite convoluted and the fact that unregistered equitable interests are recognized can bring about difficult questions as to whether or not a purchaser has “notice” of any such equity, which could thereby impugn his/her title in the parcel of land. In an effort to address the many difficulties posed by the Common Law System, Mr. Robert Torrens developed what is known as the Torrens System of land registration, which was first introduced as law by the legislature of South Australia on January 27, 1858.

The RPA System of Land Registration

The RPA System, which is essentially an embodiment of the Australian Torrens System, was brought into law in Trinidad and Tobago pursuant to the Real Property Ordinance, as it then was, on January 1, 1946. The RPA System, in theory, is meant to simplify the potentially complex land title issues that arise under the Common Law System of two estates, the “legal” and the “equitable”, by introducing the concept of a single estate. The registered proprietor of a parcel of land under the RPA System is said to have an “indefeasible title” which is beyond challenge except in cases of fraud or adverse possession.

Under this system a Register of landholdings is maintained by the State and the State guarantees an indefeasible title to those currently on the Register. Unlike the Common Law System, land ownership is transferred through the registration of title. The relevant transfer instruments are registered and duly endorsed on the Certificate of Title relating to a specific parcel of land. Each RPA parcel of land has two (2) Certificates of Title, one Certificate of Title is kept at the Land Registry permanently and the other, commonly referred to as the Original Duplicate Certificate of Title, is given to the registered proprietor/owner of the subject parcel of land. No dealing can be successfully registered and endorsed on a Certificate of Title unless the Original Duplicate Certificate of Title is produced along with the relevant Instrument.

The RPA System saves persons the trouble and expense of going behind the Register in order to investigate the history of the owner’s title and is designed to provide certainty as to the ownership of title in Real Property. The RPA System is based on three major tenets that can be summarized as follows:-

(1) The Mirror Principle – The mirror principle involves the proposition that the Certificate of Title is a mirror which reflects accurately and completely the mirrored facts that are material to the ownership of the subject parcel of land. The Certificate of Title or Register of Title with respect to RPA lands will not show matters that are incapable of substantive registration and it does not allow anyone to view and consider facts and events which are capable of being registered or ought to have been registered but which have not in fact been registered. In other words, a registered title under the RPA is free from all adverse burdens, rights, equities and qualifications unless the same are specifically mentioned on the Certificate of Title in question.

(2) The Curtain Principle – The Register of Title is to be the sole source of information concerning the parcel of land in question and one should not concern themselves with trust and equities that may lie behind the curtain.

(3) The Insurance Principle – This in fact is a form of title insurance and involves the proposition that the Register correctly reflects the title and, if due to an error, there is a defect, anyone who suffers loss as a result of the error must be made whole insofar as money is capable of doing so. As such, a statutory insurance fund is set up for these purposes and this is what is being referred to when it is said that RPA title is guaranteed by the State.

In essence, the main difference between title under the Common Law System and an RPA Title is that under the RPA System a person can rely on the information on the Register as accurately reflecting the rights and interests of the parties recorded there and a prospective purchaser is not required to look beyond that record. This is not the case with respect to title under the Common Law System and a prospective purchaser would be well advised to perform the appropriate due diligence and title searches, in order to ensure that the prospective seller has good and marketable title to the parcel of land in question.

Unfortunately, for various reasons, approximately 75% – 80% of land in Trinidad and Tobago remains under the more complicated Common Law System, which really is nothing more than the registration or recording of title deeds in a public office.

DISCLAIMER

THE REGISTRATION OF EXTERNAL COMPANIES AND THE INCORPORATION OF NON-PUBLIC COMPANIES IN TRINIDAD AND TOBAGO

Although it is not absolutely necessary for a foreign investor to set up a formal place of business in Trinidad and Tobago in order to do business here, many often do so. In such cases the most common choice is to either register a local branch of an already existing foreign company or incorporate a non-public local company (that is, a company with shares that are not offered to the public and which are usually subject to restrictions on their transfer). Both of these procedures are provided for and should be carried out in accordance with the Companies Act, Chap. 81:01 (“the Act”).

As far as “for profit” companies are concerned, the Act provides for the incorporation of either limited or unlimited liability companies. Where a local branch of an already existing foreign company is to be set up it must be registered as an external company under the Act. The Act also provides for the incorporation of non-profit companies and companies limited by guarantee but these are not discussed in this note as they are not usually suitable for commercial enterprises. Similarly, the incorporation of public companies is also possible but this process is not discussed here as public companies are not usually utilized by foreign investors. Further, unlike certain other Caribbean territories the Act does not provide for the incorporation of “IBC”, “SRL” or “ISRL” type entities.

Any company incorporated or organized under the laws of a foreign country that has established a place of business in Trinidad and Tobago is required under the Act, within fourteen (14) days of establishing such place of business, to file with the Registrar of Companies (“Registrar”) in duplicate (i) an application for registration; (ii) copies of the corporate instruments of the company (duly certified and if necessary translated); (iii) an affidavit or solemn declaration of an officer of the company verifying the particulars set out in the application; (iv) a power of attorney in favour of a local company or two individuals authorised to accept service of documents and legal process on behalf of the company; and (v) a statutory declaration by a Trinidad and Tobago attorney-at-law. Once the application and supporting documents lodged are compliant with the Act the application will be processed and the Registrar will issue a Certificate of Registration. Once the Certificate of Registration is issued the company may carry on business in and exercise its corporate powers within Trinidad and Tobago through the branch office so registered. Post registration the Registrar must be notified of any changes in the directors or in the corporate instruments of the registered external company. Annual returns containing certain prescribed information must also be filed with the Registrar.

As an alternative to doing business through and registering a local branch, a foreign investor may incorporate a Trinidad and Tobago company under the Act. Companies incorporated under the Act can do all things that an individual can do (except if restricted by the Act or its corporate instruments). A single person or company may incorporate a company and there are no prohibitions against “thin capitalisation” under the Act. Shares are of “no par” value (par value shares are not permitted) and may, unless restricted in the articles of incorporation, be issued in varying classes in unlimited amounts. The liability of members of a company may be limited or unlimited. Incorporators will in most cases use a limited liability status but foreign investors do on occasion utilize the unlimited liability status for the purposes of obtaining tax benefits in other jurisdictions. The rules for the day to day management of the affairs of the company will be set out in the Company’s by-laws which is an internal corporate document not subject to registration.

The procedure for the incorporation of a local company requires the prior approval of the intended company’s name by the Registrar. This is achieved through the lodging of a name approval application. Where the name or names applied for are, in the Registrar’s view, too similar to one or more existing names already on the register he is entitled to refuse approval. Upon obtaining such approval the incorporator must lodge with the Registrar in duplicate (i) articles of incorporation; (ii) a notice of the names of the first directors; (iii) and a notice of the address of the registered office of the company. Although not necessary to complete the incorporation, the incorporator may also lodge with the Registrar in duplicate a notice of the name of the first company secretary. Assuming the application documents are in order the Registrar will issue a Certificate of Incorporation. After incorporation the local company must appoint a company secretary if not done at the time of incorporation, and notify the Registrar of any changes in its directors, address of registered office and secretary. Annual returns containing certain prescribed information must also be filed with the Registrar.

Where the incorporation of the company is being facilitated through a third party service provider (such as a law firm) it will constituted a “listed business” for the purposes of the Proceeds of Crime Act, Chap. 11:27 and as such the service provider incorporating the company in Trinidad and Tobago will be required to obtain prescribed know your customer due diligence information as prescribed under the aforementioned Proceeds of Crime Act and its subsidiary legislation (prior to the completion of the incorporation. The Proceeds of Crime Act and its subsidiary legislation constitute the domestic implementation of the international Financial Action Task Force Recommendations against money laundering and terrorism.

Finally, it is very important to note that a foreign person or entity seeking to incorporate or acquire shares in a local company must also comply with the requirements set out under the Foreign Investment Act, Chap. 70:07. A summary of the requirements imposed by the Foreign Investment Act can be accessed at the Legal Insight entitled “Trinidad and Tobago Foreign Investment Act”.

DISCLAIMER

CIVIL LITIGATION IN TRINIDAD AND TOBAGO

Civil litigation in Trinidad and Tobago is governed by the Civil Proceedings Rules, 1998, now commonly known as the “CPR”.

The CPR espouse an overriding objective to deal justly with cases by, among other things, saving expense, ensuring that cases are dealt with expeditiously and allotting to cases the appropriate share of the court’s resources, while taking into account the need to allocate resources to other cases. The CPR is therefore founded on a system of case-flow management with active judicial case management. Practice Directions which are issued by the Chief Justice from time to time also add further particularity to the CPR.

The CPR and their associated Practice Directions have had a considerable impact on the way cases move through the civil litigation system in Trinidad and Tobago and there are several in-built mechanisms to foster settlement at the earliest and at every stage of the proceedings. The most obvious result is the speeding up of the judicial process firstly by encouraging pre-action protocols for the early exchange of information between the parties and enabling the settlement of claims prior to the commencement of proceedings, the issuance of proceedings and establishing fixed timelines pursuant to same, determination by trial or otherwise including by default or summary judgment as the case may be.

While an expedited end result is or should be the desire of all stakeholders in the litigation process, litigation governed by the CPR now places a substantial responsibility on clients and Attorneys alike to meet the many deadlines designed to streamline a case for early determination. Frontloading of civil cases is now a regular feature of litigation, due to the requirement for all documentation relevant to one’s claim or defence to be placed before the court at the both the pre-litigation and early stages of litigation. This is perhaps the most significant reform introduced by the CPR and is designed to ensure the early ventilation of substantive issues and increase the chances of out an of court settlement as mentioned previously.

The Case Management Conference or CMC, a hearing of the matter which takes places after all pleadings have been filed and exchanged, has also become a critical aspect of the CPR, as the judicial officer conducting the CMC, either a Master or Judge of the High Court, has extensive powers to control and manage the pace and shape of the litigation as it moves forward to trial. The ultimate direction of litigious proceedings is now often determined at the CMC as, even at this early stage, the merits of the case (to the extent revealed by the pleadings and documents therein disclosed) are scrutinised by the judicial officer who may either encourage parties to settle or instead provide extensive directions to ready the parties for trial.

If parties are minded to consider an early settlement, they may request a judicial settlement conference with another judicial officer other than the one who will eventually hear the trial of the matter, or opt to be referred to mediation by a commercial mediator.

If no form of alternative dispute resolution can justly resolve the case or the parties opt not to pursue this avenue, the case is then readied for trial. Directions will be given at the CMC for the discovery and inspection of documents, the agreeing of documents, issues and facts by the parties, the filing and exchange of witness statements (which are designed to take the place of evidence-in-chief), evidential objections to witness statements and the filing of propositions of law. After this exercise is completed, a pre-trial review hearing is fixed to deal with interim issues before trial. After these issues are dealt with, the case is then fit to proceed to trial, which in this jurisdiction is heard by a Judge without a jury.

It is open to parties to appeal the decisions of trial judges to the Court of Appeal and from the Court of Appeal to the Judicial Committee of the Privy Council, based in London, England, the latter of which remains the final appellate court for Trinidad and Tobago.

Recovery of the legal costs of civil litigation may be sought under the CPR and are usually awarded to the successful party. Such costs may take the form of fixed, prescribed, assessed or budgeted costs depending on the nature of the claim or on how the parties have applied or agreed to have the costs determined but may often not equal the costs actually expended to litigate the matter.