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Contract enforcement and judicial capacity


Contract enforcement and judicial capacity building

Over the 20 years of legal transition, the legal framework for doing business in the EBRD region has improved substantially. However the enforcement of contracts and commercial laws is often problematic, deterring investors from participation in countries’ markets for fear that their legal rights will not be protected. Accordingly, LTP has in recent years devoted special attention to strengthening enforcement of contracts and commercial law, as well as building judicial capacity. 

LTP works conducts analytical assessments of the quality of courts and enforcement agencies. It also works with courts and governments on technical cooperation projects, often with the assistance of international and local consultants hired by the Bank. In designing such projects, LTP is able to draw on the EBRD’s experience of law and practice as the biggest lender in the region. Technical cooperation projects are financed by the Bank and through donor grants provided by the EBRD’s shareholders and other official sources. Project work has targeted a number of different areas relevant to contract and commercial law enforcement, as set out below.

Commercial law and market training 

One critical dimension of effective enforcement is to ensure that judges and members of tribunals are sufficiently trained in commercial law and markets. In several Early Transition Countries, where concerns about contract and commercial law enforcement are greatest, LTP has run wide-ranging commercial law judicial training projects. These have sought to train a pool of local judges who then work with international experts to deliver fundamental training to all judges hearing commercial matters in the country. 

In Eastern Europe, LTP has focused on filling important gaps in judicial training and has developed training products in areas where questions of law, economics and finance intersect. These include:

  • accounting skills for judges hearing insolvency matters;
  • economic concepts in competition law matters; and
  • disputes over complex financial instruments.

Legislative reform 

LTP has provided advice to governments on legislative measures to enhance enforcement of contracts and commercial law. Problems can arise in a substantive area of law, procedural legislation, laws affecting the execution of judgments, or a combination of these. LTP is able to use its experience in the justice sector to take into account the views of judges and court users about problem areas, and analyse legislative problems from a litigation perspective.

Court restructuring 

A number of LTT’s projects have involved reforms to court structure and jurisdiction. This can involve consideration of whether specialised commercial courts or chambers might improve the handling of commercial matters. It also entails examining how courts can be unburdened of responsibility for routine, administrative matters which clog court lists and distract attention from substantive matters. 

Alternative dispute resolution

LTP seeks to promote the use of alternative dispute resolution (ADR). Business and courts alike are assisted by the availability of effective ADR mechanisms. Evidence shows that commercial mediation and arbitration can provide faster, more tailored outcomes, free-up court lists, and improve access to justice, especially for small and medium-sized enterprises as well as women entrepreneurs. 

Institutional development 

LTP projects have entailed providing advice to judicial training centres and other court supervisory bodies on institutional capacity building matters, such as management and budget skills. These have proved to be critical components for the sustainability of projects, particularly in Early Transition Countries. 

Transparency measures

Concerns about lack of transparency and improper influences in the justice sector persist in many countries, undermining confidence in effective contract and commercial law enforcement. There are various ways in which greater transparency can be introduced into the system of commercial justice, such as making all commercial law decisions publicly available and searchable on national databases; and introducing objective procedures to review judicial output. A number of LTP projects have focused on such issues. 


 

 


  • Core principles

    Core principles for effective judicial capacity.

  • EBRD assessments

    A variety of tools have been developed to assist in conducting assessments of judicial capacity.

  • International standards

    There are many international standards pertaining to the judiciary. These relate to matters such the independence of the judiciary as well as judicial training and conduct.