Dispute Resolution

It is critical for private sector development that businesses have the confidence not only in their ability to protect their contractual and statutory rights in the courts, but also to recover judgment debt. Ineffective mechanisms to ensure compliance with court decisions have a corrosive effect on the investment climate and the rule of law.

Inefficiency in the enforcement of court judgments is a substantial problem affecting the justice systems in the EBRD regions. In an EBRD study of problems affecting commercial justice in the region, the implementation of decisions was identified as the most problematic area – worse even than the lack of impartiality in court decisions. In the most recent Business Environment and Enterprise Performance Survey (BEEPS) conducted by the EBRD and the World Bank, business respondents in all the economies EBRD invests in considered the ability of the justice system to enforce court judgments to be very low. A substantial minority of respondents to the BEEPS believed that decisions were ‘never’ enforced.

We have conducted a detailed regional analysis of the law and practice surrounding the enforcement of courts’ decisions, and have advised governments on reform of the relevant legislative framework, including on matters such as access to information on debtors’ assets, improved sale and auction procedures, the accrual of interest on judgment debt, and the role of the private sector in providing enforcement services. The LTP has also conducted training and capacity-building activities for bailiffs.

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

LTP projects have also provided support to government authorities to enhance the functioning of judicial training centres and other court supervisory bodies. Such work has been directed at institutional capacity-building, such as management and budget skills. These areas have proved to be critical components for the sustainability of projects, particularly in the EBRD’s Early Transition Regions.

Another important aspect of an effective court framework is the availability of easy access to court decisions. In many economies, judges and lawyers have difficulty in searching for and obtaining copies of judicial decisions. As a result, the case law lacks uniformity. Furthermore, the inscrutability of the jurisprudence frustrates the efforts of local and foreign investors to understand and manage legal risk. The LTP has advised governments on legal and practical measures to improve access to judicial decisions. This allows lawyers to present better quality arguments, and it allows judges to benefit from reasoning in analogous cases. It also promotes greater transparency in the justice sector.

Cross-Regional Assessment on readiness for online courts

In 2022-2023, the EBRD carried out an Assessment to evaluate the degree to which 17 EBRD economies in Eastern Europe and the Caucasus, Central Asia, South-eastern Europe, Southern and Eastern Mediterranean and Türkiye are ready to introduce, or have already developed, online courts for commercial disputes. The Assessment examines whether the key preconditions are in place for having comprehensive online court which includes various stages of the litigation. It was conducted within the EBRD Regional Framework Project on Digital Transformation of Courts – Development of Online Courts for Small Claims. It is our belief that online courts will revolutionise the delivery of justice, particularly for those who have limited access to it, such as small and medium-sized businesses.

Assessment of bailiffs and enforcement agents

In 2013, the EBRD started a comparative assessment of the effectiveness of bailiffs and enforcement agents in the CIS, together with Georgia and Mongolia. The assessment examined the regulation and supervision of enforcement agents; their effectiveness in searching for, seizing and selling assets of debtors; the costs and time frames associated with enforcement procedures; and the difficulties encountered in the enforcement against particular kinds of assets.

Judicial Decisions Assessments

In 2010 and 2011, the EBRD began a qualitative evaluation of judicial decisions in commercial law in the CIS, Georgia and Mongolia. The first phase of this evaluation covered Kazakhstan, the Kyrgyz Republic, Moldova, Mongolia, Russia, Tajikistan and Ukraine. The second phase covered Armenia, Azerbaijan, Belarus, Georgia, Turkmenistan and Uzbekistan. In 2012, a third phase was conducted in South East Europe, covering: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Kosovo, Montenegro, FYR Macedonia, Romania, Serbia and Slovenia.

Using a purposive sampling methodology to select typical decisions, the Judicial Decisions Assessment studied seven dimensions of judicial capacity, viewed primarily through the prism of the decisions, namely: predictability; quality of the written judgment; legislative impediments; speed; cost; implementation and impartiality. Local experts in each target country selected decisions and assessed the dimensions, after which all decisions and local evaluation data were passed to an expert panel for analysis.