Chapter 1

Quality of decisions

The highest quality of decisions was evident in Belarus, Russia and Ukraine, and the weakest in Mongolia and Tajikistan (see Chart A.1.2.3). Several thematic issues emerged.

In all of the countries assessed there were instances of courts wrongly applying general civil and procedure codes rather than the specific legal provisions of relevant commercial laws. For example, mortgage legislation in Moldova sets out exclusive grounds for the setting aside of orders to transfer pledged property; yet several of the reviewed decisions applied only the general civil and procedure code provisions, rather than invoking any of the relevant grounds stipulated in the mortgage law. Similarly, in Mongolia a challenge to the issue of a mining licence was resolved by reference to civil code provisions, without examining the relevant mandatory considerations. Decisions in several countries on the invalidation of privatisations also focused on general rather than specific provisions for example, in relation to time limitations.

Decisions often displayed rudimentary approaches to interpretation. Formalistic analysis was prevalent, while legislative intention and a law's commercial purpose were rarely considered. Decisions often lacked any detailed analysis of statutory or contractual provisions in circumstances where this was clearly required, and some displayed an overall paucity of reasoning. In cases that hinged on the meaning of contractual provisions, key clauses were often paraphrased rather than cited, making it difficult to follow the reasoning. Similarly, there was often scant reference to, or analysis of, the evidence.

In addition, the operative parts of courts' decisions frequently did not adequately reflect or address the parties' arguments. This was particularly the case in the Kyrgyz Republic, Mongolia, Tajikistan and Uzbekistan, where the parties' contentions were often identified in the introductory parts of decisions, but then not substantively dealt with. In one case a section in the judgment summarising the plaintiff's arguments reappeared verbatim in the dispositive part of the decision finding for the plaintiff, giving rise to a perception of partiality.

An underlying concern, particularly in early transition countries, is the low level of training provided to judges in commercial law, markets, economics and judicial decision-writing. Judges in many of the cases reviewed appeared to lack knowledge of specific commercial laws and concepts, although those in higher instance courts generally performed better. Improvement in judicial education is clearly a priority reform issue.

• < Prev
• Next >