Law In Transition

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Law in transitionTen years of legal transitionAutumn 2002

Special tenth anniversary edition:Focus on ten years of legal transitionLaw in transitionAutumn 2002page1ForewordHans Corell, Under-Secretary-General for Legal Affairsand the Legal Counsel of the United Nations2Process drives success:Key lessons from a decade of legal reformDavid S. Bernstein, Chief Counsel, EBRD14What local lawyers think:A retrospective on the EBRD’s Legal Indicator SurveysAnita Ramasastry, Professor of Law, University of Washington31Ten years of living legal transition:An EBRD lawyer’s perspectiveStephen Petri, Assistant General Counsel, EBRD37The EBRD’s legal reform work:Contributing to transitionCraig Averch, Senior Counsel, Hsianmin Chen, Counsel, Frederique Dahan, Counsel,Paul Moffatt, Counsel and Alexei Zverev, Counsel, EBRD48Katarina Mathernova, Adviser to Deputy Prime Minister for Economic Affairs,and International Policy Fellow, Open Society InstituteGeneral Counsel of the EBRDEmmanuel MauriceCo-Editors-in-ChiefGerard Sanders, David BernsteinA reformer’s lessons learned:The case of the Slovak Republic57Three foundations of the rule of law:education, advocacy and judicial reformMark Dietrich, ConsultantFocus EditorPaul MoffattContributing EditorsLee Marler, Michel NussbaumerProduction EditorsAnila Gramshi, Olivia OddiSupportRichard Bate, Sandy Donaldson, Angela Hill,Adrian Jonker, Anthony Martin, Jon Page,Charity Ryabinkin, Tabitha Sutcliffe62Legal transition developments67Legal transition events

Law in transition – Foreword1Hans Corell, Under-Secretary-General for Legal Affairs and the Legal Counsel of the United NationsCelebrating ten years ofLaw in transition: Sharinglessons for the future“The challenge now is to sustain the progress that has been achieved,to address the remaining backlog of need, and to bolster publicconfidence in the transformation. Further reforms – economic,political, legal, judicial and regulatory – are essential.”Kofi Annan, United Nations Secretary-General (Message to the St Petersburg Economic Forum, 18 June 2002)At the end of the 1980s, communism falteredthroughout the former Soviet bloc and inYugoslavia and Albania. From Silesia to Sakhalin,countries began to make progress in the movement towards democracy and market economics.With this shift came a historic opportunity forinternational cooperation to fundamentallyimprove the lives of some four hundred millionof the world’s citizens.Against this backdrop, the European Bankfor Reconstruction and Development wascreated in 1991 to assist the people of theregion in their long journey to full integrationinto the international economy. The EBRDhas had a real impact on the transition processand directly on people’s lives in areas as diverseas banking reform, municipal infrastructureand the development of small businesses.From the outset, the EBRD has remainedcommitted to the principle that good lawssupported by both well functioning legal systemsand enhanced respect for the rule of law are thecornerstones of the region’s future prosperity.The Bank’s ten years of activity in the areaof legal reform, which is the focus of this issueof Law in transition, testify to that commitment.The United Nations welcomes the legalreform work of the EBRD because it championsfundamental human rights and helps “promotesocial progress and better standards of lifein larger freedom” as set out in the preambleto the United Nations Charter. The legal reformwork of the EBRD and of the United Nationsis mutually reinforcing. While the EBRD focuseson developing the legal rules, institutionsand culture on which a vibrant market-orientedeconomy depends, the United Nations, throughthe United Nations Development Programme(UNDP), the United Nations Commissionon International Trade Law (UNCITRAL) andits other constituent agencies, supports legaland judicial reform projects. Both institutionshave profited from a decade of partnership,complementing and supplementing eachother in many areas. Indeed, the AgreementEstablishing the EBRD envisages such cooperation and recent examples of this are the Bank’sleading role in the reconstruction of Bosnia andHerzegovina and its provision of assistancein Kosovo following the establishment of theUnited Nations Mission in Kosovo (UNMIK).The lessons drawn from the EBRD’s legalreform work in the former Yugoslaviais documented in this issue of Law in transition,along with those from the other countries wherethe Bank works. Of the lessons learned noneare more resonant than the pivotal positionplayed by the rule of law and the importanceof strong institutions to support it. The ruleof law prevails where the law binds governmentitself; where all citizens achieve equally at law;where government authorities and the judiciaryprotect the human dignity of all citizens; andwhere justice is accessible to all. Transparentand fair legislation and predictable enforcementare prerequisites. Governments must belegitimate, held accountable for maintainingorder and promoting private sector growth.Without the rule of law nations will founder,peoples will suffer and civil society will be atrisk. Indeed, the turbulent events of the pastyear can only serve to reinforce this messageand encourage redoubling of efforts to build independent judiciaries and respect for contracts andproperty rights as core principles of free societies.It is often said that those who cannot rememberthe past are condemned to repeat it. We mustall look to lessons of the past as we addresschallenges of the future. This tenth anniversaryedition of Law in transition disseminatesthe lessons of the EBRD’s legal reform efforts.It should be of particular interest to thosewho make or influence legal reform policyin the countries where the EBRD operates.I encourage readers, including those in thewider United Nations community, to readthis publication and to learn from the richexperience of the EBRD’s legal reformactivities over the past ten years.

2Law in transitionDavid S. Bernstein, Chief Counsel, EBRD*Process drives success:Key lessons from a decadeof legal reformThis article identifies three key lessons forinstitutions and agencies providing legalreform assistance. It argues that a successfullegal reform project is one that adaptsinternationally accepted principles andstandards to the local legal environment,focuses time and resources on implementationand enforcement and, most importantly,works through an open, transparent andinclusive process.

Law in transition31Legal reform is now generally accepted asa necessary component of the developmentprocess.1 While a small number of developmentagencies have provided legal reform assistancefor some time, it is only after the financial crisesin East Asia in 1997 and Russia in 1998 thatmost international financial institutions (IFIs),development agencies and many developing andtransition countries themselves have recognisedthe need to create a sound and effective legalfoundation for democratic governments andmarket economies.2 Beyond the rhetoric, manyinternational agencies and governments havebeen using technical assistance to help developcomprehensive legal rules and legal institutions– from creating an independent judiciary andtraining judges and prosecutors to adoptingcommercial and financial laws and implementingregulations based on best international practice.This has been a positive step towards committedsustainable development.As a result, there is now an increasing amount oflegal reform taking place in developing countries.While much of the technical assistance providedby donors has led to changes in the legal systemsof the recipient countries, not all of this reformcan be considered successful. In some instanceslaws have been developed but not enforced;in other cases donors have been slow to helpcreate or reform the necessary implementinginstitutions; and in still other cases the “wrong”laws or laws that do not fit in with the recipientcountry’s existing legal system have beenadopted. Unfortunately, to date, there has beenThe EBRD beginsoperationsSymposium on theEBRD’s legal reform roleDevelopment of amodel law on securedtransactions begins atthe EBRD’s first annualmeeting in Budapestlittle review and analysis of legal reform practicefrom which to draw lessons to help shape futurelegal reform efforts.This article identifies some key themes andpractices that could be used to guide ongoing andfuture legal reform efforts. The article argues that itis essential for IFIs, development agencies andrecipient countries to focus more attention on theprocess of legal reform – how donors anddeveloping countries design and implement legalreform assistance – in order for their assistance tohelp build effective legal foundations for economicand political development.The EBRD’s Legal Transition ProgrammeThe EBRD was established in 1991 to helpthose countries of central and eastern Europecommitted to the principles of multipartydemocracy, pluralism and market economics,with their transition from command to openmarket-oriented economies. The Bank wasmandated to focus its assistance primarilyon the development of the private sector in thesecountries.3 The EBRD first became involved inthe field of legal reform only a few months afterit began operating in April 1991 by bringingtogether international lawyers and legal expertsat a regional seminar to explore ways in whichthe Bank could promote legal transition in itscountries of operations. This was the first time theBank used donor funding to support legal reform.4EBRD Model Law onSecured TransactionspublishedDedicated team workingon legal reformestablished within theEBRD’s Office of theGeneral CounselFirst issue of Law intransition publishedas a newsletter on legalcooperation and training1991199219941995Legal TransitionExpanded Programmeapproved by the EBRD’sExecutive CommitteeLaw in transitionexpanded and publishedas a legal journal inEnglish and RussianThe EBRD approvesthree-year fundingfor the developmentof legal assessments,international legalstandard settingand publishing ofLaw in transitionTenth anniversary ofLaw in transition1997199820002002234See, for example, A. Sen, “What is theRole of Legal and Judicial Reform inthe Development Process?” Conferenceon Comprehensive Legal and JudicialDevelopment: Towards an Agenda fora Just and Equitable Society in the21st Century, Washington, D.C.,June 5-7, 2000, judicial/ljr conf papers/Sen.pdf. See also, A. Seidman,R. Seidman and T. Wälde, “BuildingSound National Legal Frameworks forDevelopment and Social Change”, inA. Seidman, et. al., ed., MakingDevelopment Work: Legislative Reformfor Institutional Transformation andGood Governance, p. 3 (1999). Seegenerally, M. Olson, “Dictatorship,Democracy, and Development”,American Political Science Review,vol. 87, No. 3, p. 567 (1993).See, J. Wolfensohn, President, WorldBank, opening speech, Conferenceon Comprehensive Legal and JudicialDevelopment: Towards an Agenda fora Just and Equitable Society in the21st Century, Washington, D.C.,June 5-7, 2000, .Agreement Establishing the EBRD,Article 1.These are grant funds made availableto the Bank from its shareholders andothers for use in supporting the EBRD’sactivities in the region.

4Law in transitionThe EBRD’s involvement in legal reform has become an integral part of itswork, influencing the Bank’s research and analysis, affecting its transitionstrategies and financial policies and, most directly, assisting with thedevelopment of market economies throughout its countries of operations.5J. Simpson and J. Menze, “Ten years ofsecured transactions reform”, Law intransition, p. 20, (Autumn 2000).The EBRD’s legal transition effort has beencentred in its legal department. Over the pastdecade, the EBRD’s legal reform work hasevolved from the development of its Model Lawon Secured Transactions and the ad hocprovision of legal assistance to the formation in1995 of a small, dedicated team of lawyersworking full-time on legal reform within theEBRD’s Office of the General Counsel and, mostrecently, to the development of a more coherentand integrated Legal Transition Programme (LTP)starting at the end of 1997. (See box onprevious page for a timeline of the evolution ofthe EBRD’s legal transition assistance.) Unlikeother IFIs, the EBRD’s legal transition assistanceis primarily grant based. In addition, the EBRD’sLegal Transition Programme is unique in that itdraws directly on the Bank’s experiences as thelargest lender and investor to the region’s privatesector to ensure that its legal transition assistanceis grounded primarily on the views and concerns ofthe private investment community, increasing boththe credibility and practicability of its assistance.Reflecting the EBRD’s mandate, its legaltransition work has focused on developing thekey commercial and financial laws and implementing institutions necessary to support privatesector enterprises and sound financial transactions. The EBRD’s present legal transitionactivities focus on the following sectors: bankruptcy; company law and corporate governance; concessions; secured transactions; and telecommunications.These sectors have been chosen because oftheir importance as part of an investmentclimate supportive of private sector developmentand because of their close relationship with theEBRD’s investment operations in the region. Ineach sector, the EBRD promotes the adaptationof international, regional or harmonised legalstandards where they exist and designs its legaltransition projects to include the creation orimprovement of effective implementing andenforcing institutions. For example, working fromits Model Law on Secured Transactions, theBank has developed a set of core principles toguide the development of modern collateral lawsand has provided assistance with the creation ofregistration systems.5 In the telecommunicationssector, the EBRD supports the implementationof the European Union’s directives in accessioncountries or World Trade Organization commitments in the CIS, and in both regions the Bankhas helped create effective, independentregulatory bodies.With the implementation of the Legal TransitionProgramme, the Bank organised its legal reformwork in each of the sectors listed above aroundthe following four activities:1) Participating in the development of internationallegal standards or best practiceThe EBRD has worked closely with otherIFIs and international organisations to identifyand/or develop standards or best practicefor international commercial transactions.The EBRD has worked with the World Bankon its Insolvency Initiative, with theOrganisation for Economic Cooperation andDevelopment on its Principles of CorporateGovernance and with the United NationsCommission on International Trade Law(UNCITRAL) on developing model laws forconcessions and insolvency.

Law in transition562) Assessing the state of legal transitionSince 1995, the EBRD has conducted anannual Legal Indicator Survey of practisinglawyers in the region.6 The Bank surveyslawyers for their perceptions on the extent andeffectiveness of the commercial and financiallaws in each country.7 The EBRD has alsodeveloped analytical tools to assess thedevelopment of laws and legal institutions ineach of the five legal sectors.8 These sectorassessments benchmark laws and regulationsagainst international standards and evolvingbest practices. The results of both the annualSurvey and the sector assessments, which areintegrated into the Bank’s country strategiesand used in its investment risk analyses andpolicies, are published on the Bank’s Web siteand in its legal journal, Law in transition.3) Legal transition projectsThe EBRD designs, develops and implementslegal technical assistance projects in theBank’s countries of operations to supportlocal authorities in establishing investorfriendly legal systems. These projects areinitiated only with the support of thegovernment or NGOs, are implemented byEBRD counsel and external consultants, andare supervised jointly by the Bank and thesponsoring government agency. The Bankprovides both its own and external experts toadvise on specific legal reforms, but thesponsoring government and local specialistsdraft, adopt and implement the reforms.94) Outreach and coordinationThe Bank promotes legal transition by sharingits own experiences of legal reform and thoseof other organisations, as well as the ideas ofleading legal reform practitioners in Law intransition. The journal is distributed widelythroughout the region in English and Russianand is given directly to government officials,parliamentarians, senior judges and lawyersinvolved in legal reform activities. The Bankconducts an annual legal seminar at eachEBRD Annual Meeting where key legal reformissues are presented and debated. The EBRDalso collaborates closely and coordinates withother IFIs, international organisations andbilateral assistance providers in implementinglegal reform projects and developing policies.With the implementation of the Legal TransitionProgramme over the past few years, the EBRDhas actively sought to integrate legal reformactivities with its investment operations andtransition mandate. The EBRD legal reform workhas become a part of the Bank’s transitionresearch and analysis, plays a role in setting theBank’s transition strategies and financial policiesand, most directly, helps the Bank promote thedevelopment of market economies throughoutthe transition countries. The mainstreaming ofthe EBRD’s legal reform activities, however,is an evolving process. While the Bank’s legalreform activities have been generally successful,10 it has learnt a number of lessons about thelegal transition process and, more specifically,about how it, and other legal reform providers,can be more effective in assisting that process.78910See G. Sanders and F. April, “Thecontribution of law to fosteringinvestment”, Transition report, p. 101(EBRD 1995).For a description of the results of theBank’s Legal Indicator Surveys overthe past seven years, see, infra.,A. Ramasastry, “What local lawyersthink: A retrospective on EBRD’s LegalIndicator Surveys” at p. 14.The first of these, “A Regional Surveyof Secured Transactions”, can be foundon the EBRD’s Web site The Bank shouldfinalise assessments on corporategovernance and bankruptcy during thecourse of 2002.For examples of the EBRD’s legaltransition projects see K. Zahariev,“Reforming the legal environment inpost-conflict societies: legal and policyaspects of the EBRD’s activities insouth-eastern Europe”, Law intransition, p. 39 (Spring 2002);N. Seiler, “The role of the EBRD inpromoting sound corporategovernance”, Law in transition, p. 26(Autumn 1999); G. Sanders andD. Arner, “The legal anchoring of soundfinancial markets”, Law in transition,p. 18 (Spring 1999); see Legal Developments section ofeach issue of Law in transition containsthe latest update on EBRD legal reformprojects, (see infra, p. 62).In 2001 the EBRD’s Project EvaluationDepartment supervised a team of legaland other academics in carrying out athorough external evaluation of the LTP.The team rated LTP as “successful” inobtaining its objectives and “highlysuccessful” in implementing a numberof its activities. For further information,please contact the EBRD’s ProjectEvaluation Department.

611121314See, e.g., J. Boorman, “Recovery fromFinancial Crisis: Macroeconomic PolicyAlternatives for Equitable Growth”,speech to the North-South 2998.htm.See, e.g., International Principles andGuidelines for Insolvency Systems,The World Bank, (April 2001), icr.html;see also G. Johnson, “World BankPrinciples and Guidelines for EffectiveInsolvency and Creditor RightsSystems”, prepared for the Seminaron Business Failure, Dutch Ministryof Economic Affairs and the EuropeanCommissio

Contributing to transition Craig Averch, Senior Counsel, Hsianmin Chen, Counsel, Frederique Dahan, Counsel, . This has been a positive step towards committed sustainable development. As a result, there is now an increasing amo

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