about judicial capacity

In the nearly 20 years of transition from a centrally planned system to a market economy, the legal frameworks in Central and Eastern Europe and in CIS countries have been substantially upgraded. However, while the “laws on the books” in many of those countries have improved in quality and some now show significant levels of compliance with international standards, the implementation and enforcement of those laws in the courts often remains fraught with uncertainties, deterring investors from participation in the countries’ markets out of fear that their legal rights will not be protected.  EBRD’s judicial capacity programme is directed at assessing and enhancing judicial capacity in the EBRD’s countries of operations.

A review of the current situation reveals that judiciaries are faced with numerous challenges. Some are common to all judiciaries in developing and transition countries, while others are linked to the transition from a planned to a market economy.

Lack of technical skills and commercial experience: Socialist legal systems did not recognise economic disputes between private parties; courts protected the interests of society, as represented by the party. Practical training in new commercial laws has been inconsistent. Further, commercial legal systems mature slowly, commensurately with economic development and demand for court services. As a result many local judges lack substantive knowledge and experience of commercial matters.

Scarce financial resources: The general budgetary constraints facing local governments can adversely affect the possibility of attracting and retaining a sufficient number of well qualified applicants . Dilapidated courthouses, insufficient resources and equipment adversely affect the courts ability to conduct its work. to purchase equipment and low minimum salaries deter many lawyers from becoming judges.

Interference of the executive power: The judiciary in some countries are subjected to political and other external pressures. Limited tenure, opaque appointment and disciplinary systems, and 'telephone justice' prevail in many countries.

Corruption: The impecunious conditions in which some judges and court officials operate can make them susceptible to unethical practices. Corruption is pervasive in a number of EBRD’s countries of operation.

Status of judges: Judges in EBRD countries are sometimes still regarded as civil servants and do not enjoy the same prestige as their counterparts in developed countries; the judicial career is therefore not necessarily appealing to legal professionals.

Court management: Supervisory bodies are often ill-equipped to monitor judicial performance, conduct relevant training, foster judicial careers, deal with public complaints, organise registries, ensure case management or plan and implement budgets. This adversely affects court performance.

The focus of EBRD's activity in judicial capacity is on commercial law as this is most directly relevant to the Bank’s own experience as the largest single investor in the region. It is also an area where the Bank’s legal department has accumulated a wealth of knowledge and expertise.

Further reading

Towards A Regional Strategy for Improving Judiciaries - Commercial Law Judicial Capacity Building in Central Asia
This conference  (1.3Mb) was organised by the EBRD in collaboration with the Kyrgyz Judicial Training Centre and with the International Development Law Organisation (IDLO). The purpose was to develop a regional dialogue on judicial capacity in Central Asia and define the common problems and strategic priorities.

Courts and Judges - Law in Transition  (1.3Mb), Spring 2005

The EBRD has also conducted studies and research on the issue of contract enforcement.