Revised Laws of Saint Lucia (2023)

Schedule 5

(Sections 48)

TRANSITIONAL PROVISIONS

2.     Definitions

In this Schedule —

“Transferred function” means any function of the NWSC transferred to the Commission as a result of the amendments made to the Water and Sewerage Act;

“NSWC” means the National Water and Sewerage Commission which was established under section 36 of the Water and Sewerage Act prior to the commencement of this Act.

2.   Rights, liabilities and agreements

1.  

   (1)   All rights, liabilities and obligations of the NWSC arising out of a transferred function shall become the rights, liabilities and obligations of the Commission.

1.  

   (2)   Any agreement entered into by or on behalf of, or undertaking given to or to any person on behalf of, the NWSC in connection with a transferred function shall have effect as if the Commission were the original party to it, and any reference in such agreement or undertaking to the NWSC shall be construed as a reference to the Commission.

3.   Uncompleted matters

Nothing done by the NWSC under or in consequence of a transferred function shall be invalidated by the coming into force of this Act, and anything commenced by the NWSC under or in consequence of a transferred function may be carried on and completed by the Commission.

4.   Consents

1.  

   (1)   Any licence or other permission granted by or on behalf of the NWSC under a transferred function shall be deemed to have been granted by or on behalf of the Commission on the date when it was in fact granted, issued made or given.

1.  

   (2)   Any condition, restriction or requirement imposed by the NWSC under a transferred function shall be deemed to have been imposed by or on behalf of the Commission on the date on which it was in fact imposed.

5.   Pending and refused applications

1.  

   (1)   Any application made to the NWSC under any National Water and Sewerage Act, Cap. 9.03 in respect of a transferred function which has not been finally determined or withdrawn shall be deemed to have been made to the Commission on the date when it was in fact made.

1.  

   (2)   Any application which has been refused by the NWSC, or which has been granted by the NWSC subject to conditions under a transferred function, shall be deemed to have been refused or to have been granted subject to those conditions, as the case may be, by the Commission on the date on which it was in fact refused or granted subject to those conditions.

6.   Actions and proceedings

Any actions, proceedings and any like matter commenced or pending by or against the NWSC in relation to a transferred function may be continued as if the Commission were instead a party to it.

7.   Requirements and information

1.  

   (1)   Any requirement made by the NWSC for the purposes of a transferred function shall be deemed to be a requirement made by the Commission.

1.  

   (2)   Any information given or statement made to the NWSC and every document submitted to the NWSC shall be deemed to have been submitted to the Commission on the date when it was received by the NWSC.

1.  

   (3)   Any information passed to the Commission by the NWSC shall be held by the Commission on the same terms as it was held by the NWSC.

8.   Records and registers

1.  

   (1)   Any register required to be established and maintained, and any other record or document required to be kept by the NWSC under a transferred function shall, on the transfer of that function —

   1.  

      (a)     be delivered to the Commission; and

   1.  

      (b)     be deemed to have been established, maintained or kept by the Commission.

CHAPTER 9.01
NATIONAL UTILITIES REGULATORY COMMISSION ACT

SUBSIDIARY LEGISLATION

List of Subsidiary Legislation

National Utilities Regulatory Commission (Names of Commissioners) Notice – Section 9(4)

(Statutory Instruments 175/2021 and 196/2021)

Statutory Instrument 175/2021 .. in force 1 November 2021

Amended by S.I. 196/2021 .. in force 29 November 2021

NATIONAL UTILITIES REGULATORY COMMISSION (NAMES OF COMMISSIONERS) NOTICE – SECTION 9(4)

Commencement [1 November 2021]

1.   Citation

This Notice may be cited as the National Utilities Regulatory Commission (Names of Commissioners) Notice.

2.   Names of Commissioners

The names of the Commissioners on the National Utilities Regulatory Commission are—

1.  

   (a)     Lawrence Nervais - Chairperson;

1.  

   (b)     Martin Weekes – Deputy Chairperson; (Substituted by S.I. 196/2021)

1.  

   (c)     Vaughn Louis-Fernand;

1.  

   (d)     Mary Polius;

1.  

   (e)     Mitchelson Phillips;

1.  

   (f)     Andrew Antoine; and

1.  

   (g)     Albert Fregis.

National Utilities Regulatory Commission (Appeals Tribunal) Regulations – Section 45

(Statutory Instruments 121/2023)

Statutory Instrument 121/2023 .. in force 18 September 2023

ARRANGEMENT OF REGULATIONS

PRELIMINARY

PART 1
CONSTITUTION AND POWERS

PART 2
APPEAL PROCEDURE

PART 3
ENFORCEMENT AND OFFENCES

National Utilities Regulatory Commission (Appeals Tribunal) Regulations – Section 45

Commencement [18 September 2023]

PRELIMINARY

1.   Citation

These Regulations may be cited as the National Utilities Regulatory Commission (Appeals Tribunal) Regulations.

2.   Interpretation

In these Regulations —

“Act” means the National Utilities Regulatory Commission Act;

“appellant” means a person fling an appeal against a decision of the Commission to the Appeals Tribunal;

“Chairperson” means the Chairperson under regulation 3(4);

“notice”, in relation to an appeal by a person, means the notice in writing under section 43(4) of the Act;

“Secretary” means the Secretary appointed under regulation 10.

PART 1
CONSTITUTION AND POWERS

3.   Constitution

1.  

   (1)   Subject to subregulation (2), the Appeals Tribunal shall comprise not less than 3 not more than 5 members, appointed by the Minister, after consultation with Cabinet.

1.  

   (2)   The Appeals Tribunal shall have at least one member who is an expert in public utility operations, one who is an expert in economic regulations and one who is an expert in regulatory law.

1.  

   (3)   One member of the Appeals Tribunal shall be from Saint Lucia, and one member may be from the same country as the service licensee, or any significant shareholder in the service licensee.

1.  

   (4)   The Appeals Tribunal must have a Chairperson who is qualified in law and has no less than 5 years standing.

4.   Tenure

Subject to regulation 5, a member of the Appeals Tribunal shall hold office for a term of 5 years, and is eligible for reappointment.

5.   Removal and resignation

1.  

   (1)   A member of the Appeals Tribunal may be removed from office by the Minister, after consultation with Cabinet and the Commission, on the grounds of —

   1.  

      (a)     failure to execute his or her functions as a member by reason of infirmity or mental illness;

   1.  

      (b)     misconduct;

   1.  

      (c)     failure to execute his or her functions as a member without reasonable excuse; and

   1.  

      (d)     being placed, by conduct or otherwise, in a position that is incompatible with the due execution of his or her office.

1.  

   (2)   A member of the Appeals Tribunal may resign from office by instrument in writing addressed to the Minister, transmitted through the Chairperson, and such resignation shall take effect as from the date of receipt of the instrument by the Minister.

6.   Inquiry

1.  

   (1)   The Commission shall cause a commission of inquiry to be appointed under the Commissions of Inquiry Act where it considers that an inquiry must be held to determine whether a member of the Appeals Tribunal is subject to disciplinary or remedial measures on any of the grounds specified under regulation 5.

1.  

   (2)   The Commissioner of the inquiry shall send his or her report to the Minister, Cabinet and the Commission.

1.  

   (3)   On receipt of a report under subregulation (2), the Minister may, after consultation with Cabinet and the Commission, remove a member of the Appeals Tribunal or take any other remedial measure recommended by the Commissioner of the inquiry.

7.   Continuation of proceedings after termination

1.  

   (1)   A person who resigns or ceases to hold office as a member of the Appeals Tribunal may, if authorized to do so by the Minister, after consultation with Cabinet and the Commission, continue to inquire into, hear and determine proceedings to which that person was assigned while that person was a member.

1.  

   (2)   Where a person continues to be a member of the Appeals Tribunal under subregulation (1), he or she continues to be a member of the Appeals Tribunal on the terms and conditions that the Minister, after consultation with Cabinet and the Commission, considers appropriate.

8.   Absence or incapacity

1.  

   (1)   Where a member of the Appeals Tribunal is absent or unable to perform the functions of his or her office, or if there is a vacancy in the Appeals Tribunal, the Minister may, after consultation with Cabinet and the Commission, appoint another person to act temporarily in place of the member.

1.  

   (2)   An appointment made under subregulation (1) must be in accordance with the constitution of the Appeals Tribunal under regulation 3.

9.   Publication of changes in membership

Cabinet shall publish in the Gazette the appointment of a member of the Appeals Tribunal and the termination of office of a person as a member, whether by death, resignation, removal, effluxion of time or otherwise.

10.   Secretary

1.  

   (1)   The Appeals Tribunal shall appoint a Secretary.

1.  

   (2)   The Secretary shall keep a written record of all proceedings of the Appeals Tribunal, which shall be confirmed by the Chairperson.

11.   Remuneration

A member of the Appeals Tribunal is entitled to be paid remuneration per sitting based on the rate of an international legal consultant performing similar duties.

12.   Sittings and quorum

1.  

   (1)   The Appeals Tribunal shall sit in Saint Lucia at the times necessary or expedient for the discharge of its functions.

1.  

   (2)   Subject to subregulation (3), 3 members of the Appeals Tribunal constitutes a quorum.

1.  

   (3)   A member of the Appeals Tribunal shall, as soon as is practicable, inform the Chairperson of any matter in which he or she has, directly or indirectly, personally or by his or her spouse, partner, business associate or company, any pecuniary or business interest and that member shall take no part, directly or indirectly, in any hearing, deliberation or decision by the Appeals Tribunal on that matter.

13.   Powers of Appeals Tribunal

1.  

   (1)   The Appeals Tribunal has exclusive jurisdiction to hear and determine all questions of fact or law in relation to any appeal against a decision of the Commission.

1.  

   (2)   The Appeals Tribunal has, with respect to the appearance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of orders and other matters necessary or proper for the due exercise of the functions under section 43(1) of the Act, all the powers, rights and privileges that are vested in a superior court of record.

1.  

   (3)   Without limiting the generality of subregulation (1), the Appeals Tribunal may —

   1.  

      (a)     issue a summons requiring a person to —

      1.  

         (i)     appear at the time and place stated in the summons to testify to all matters within the person's knowledge relative to any subject matter before the Appeals Tribunal, and

      1.  

         (ii)     bring and produce any document, book or paper including electronic media in the person's possession or under the person's control relative to that subject matter;

   1.  

      (b)     administer oaths and examine any person on oath; and

   1.  

      (c)     require evidence or arguments to be presented in writing and may decide the matters on which it will hear oral evidence or argument at the hearing of the appeal and shall not be bound by the legal and evidential rules of evidence.

1.  

   (4)   Without prejudice to the powers conferred under this Part, the Appeals Tribunal shall —

   1.  

      (a)     proceed to hear and determine a matter before it in the absence of any party who has been summoned and has failed to appear;

   1.  

      (b)     generally, regulate its own proceedings as is necessary for the expedient and just hearing and determination of an appeal.

14.   Expert advice

The Appeals Tribunal may retain the services of legal, economic, financial or technical consultants to advise on any matter relating to the discharge of the functions under section 43(1) of the Act.

15.   Confidentiality

1.  

   (1)   A member of the Appeals Tribunal shall at all times preserve and aid in preserving confidentiality with regard to all matters coming to his or her knowledge in the performance of his or her duties.

1.  

   (2)   Except for the performance of his or her duties or under legal obligation, a member of the Appeals Tribunal shall communicate confidential matters to a person or, unless under legal obligation, grant to a person access to records in the possession, custody or control of the Appeals Tribunal.

16.   Conflict of interest

1.  

   (1)   Where a member of the Appeals Tribunal has an actual or reasonable perceived interest in an appeal, he or she shall disclose the nature of such interest at the first practicable opportunity to the members of the Appeals Tribunal and the Minister and shall in no way be involved with the appeal.

1.  

   (2)   If a member of the Appeals Tribunal has dealt with an appeal before such interest has been identified or disclosed, the investigation by the Appeals Tribunal or the proceedings before the Appeals Tribunal must be considered null and void.

1.  

   (3)   Where a situation under subregulation (2) arises, the Minister shall, after consultation with Cabinet and the Commission appoint a fit and suitable person to act for the member to deal with the appeal proceedings de novo.

17.   Validity of proceedings

The validity of any proceedings of the Appeals Tribunal shall not be affected by any vacancy in membership or by any defect in the appointment of any of the members of the Appeals Tribunal.

PART 2
APPEAL PROCEDURE

18.   Notice of appeal

1.  

   (1)   A notice shall be signed by the appellant or an attorney-at-law and copies of the notice must be submitted to the Secretary.

1.  

   (2)   A notice must —

   1.  

      (a)     be dated as of the day on which it is signed; and

   1.  

      (b)     state —

      1.  

         (i)     the name of the appellant,

      1.  

         (ii)     the date of the decision from which the appellant desires to appeal,

      1.  

         (iii)     the person or authority from whose decision the appellant desires to appeal,

      1.  

         (iv)     the date on which the appellant received the decision he or she desires to appeal,

      1.  

         (v)     the award or order which the appellant seeks from the Appeals Tribunal,

      1.  

         (vi)     a contact number, email address and physical address to which any notice or other document may be sent to the appellant from the Appeals Tribunal, and

      1.  

         (vii)     the reasons in detail for the appeal identifying in so far as practicable any findings of law or fact which the appellant seeks to challenge and documentary evidence in support.

1.  

   (3)   The Secretary shall publish in the Gazette an address where a notice may be given under these Regulations.

1.  

   (4)   A notice shall be given to the Secretary personally or by sending it by registered mail to the address published under subregulation (3).

19.   Transmission of the appeal documents

The Secretary shall send one copy of the notice and any other document that is relevant to the appeal to each of the following persons —

1.  

   (a)     the members of the Appeals Tribunal;

1.  

   (b)     the Commission; and

1.  

   (c)     any other person who was a party to the proceedings in which the decision was taken.

20.   Hearing

1.  

   (1)   At least 7 days before the date fixed for the hearing of an appeal, the Secretary to the Appeals Tribunal shall advise the parties by notice in writing of the date, and the place at which the appeal has been set down for hearing.

1.  

   (2)   At a hearing by the Appeals Tribunal the parties may appear in person or by a representative.

1.  

   (3)   Subject to subregulation (4), the hearing of the Appeals Tribunal shall be public.

1.  

   (4)   The Appeals Tribunal may, on application, take any measures or make any order that the Appeals Tribunal considers necessary to ensure the confidentiality of the proceedings if satisfied that financial, personal or other matters may be disclosed and are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest, outweighs the desirability of adhering to the principle that the inquiry be conducted in public.

21.   Decisions

1.  

   (1)   After considering the evidence and any representations made on behalf of any party to the proceedings, the Appeals Tribunal may affirm, set aside or vary, the decision appealed, make any other decision which the person could have made or direct the person to retake the decision after taking into consideration the conclusion of the Appeals Tribunal on any point.

1.  

   (2)   The Appeals Tribunal shall publish the decision within a period of 9 days of the appeal, or such extended period that shall be communicated to the parties by the Appeals Tribunal.

1.  

   (3)   A decision of the Appeals Tribunal is by a majority of votes of members present and voting and, in addition to an original vote, the Chairperson has a second or casting vote in any case in which the voting is equal.

1.  

   (4)   A decision of the Appeals Tribunal shall be authenticated by the signature of the Chairperson and the Secretary.

1.  

   (5)   A decision of the Appeals Tribunal in respect of an appeal of a decision of the Commission shall be final and shall not be appealed, but is subject to judicial review in a superior court of record.

22.   Costs

The Appeals Tribunal may assess its costs of processing an appeal against the losing party if it concludes that unreasonable conduct by that party contributed to the costs of the appeal.

PART 3
ENFORCEMENT AND OFFENCES

23.   Filing of order

1.  

   (1)   The Appeals Tribunal may file in the High Court for immediate registration a copy of the order, exclusive of any reasons for it, and the order shall not be fled until at least 30 days after the day on which the order was made has elapsed, or the day provided in the order for compliance with it, whichever is the later.

1.  

   (2)   On fling in the High Court, an order shall be registered in that Court and, when registered, it shall have the same force and effect, and all proceedings may be taken, as if the order were a judgement obtained in that Court.

24.   Offence

1.  

   (1)   A person shall not obstruct the Appeals Tribunal or a person acting on behalf of or under its direction in the performance of its functions under these Regulations.

1.  

   (2)   A person who contravenes subregulation (1) commits an offence and is liable on summary conviction to a fine not exceeding $5,000 or imprisonment for a term not exceeding
   3 months.

25.   Perjury

1.  

   (1)   A person is liable to be prosecuted for perjury under the Criminal Code for a false statement made to the Appeals Tribunal.

1.  

   (2)   For the purpose of this regulation and the Criminal Code the Appeals Tribunal is a Court within the meaning of the Criminal Code.