CALE s Activities and Legal Assistance Projects in Transitional Countries

Transcription

1 CALE s Activities and Legal Assistance Projects in Transitional Countries Teilee Kuong Associate Professor Center for Asian Legal Exchange (CALE) Nagoya University, JAPAN Introduction The Nagoya University Center for Asian Legal Exchange has been initiating different projects in cooperation with other Japanese and foreign universities, the Japanese Ministry of Justice, JICA and the Ministry of Education of Japan to assist transitional countries in Asia in promoting legal reforms. In the last few years, we have added in some new features to our activities in working with some specific countries in Asia. In the report today, I will first describe to you some latest initiatives in our activities related to capacity building and I will share with you my analytical reviews of these activities. In the third part, I will focus on some specific activities in assistance for legislative development in Cambodia. The last part consists of some concluding remarks based on my own evaluations. Some analytical reviews of the latest development in CALE s activities in capacity building I believe that there is no need to argue here that legal assistance should be understood as more than technical advisory services or legislative development cooperation. A sustainable regulatory or legislative measure requires not only the adoption of a suitable regulatory or legislative framework, but also after-cares in the form of assistance in the implementation, application and dissemination of information regarding these measures. It is arguable though that these aftercares can be politically sensitive in some contexts and not 1

2 appropriate for external inputs. However, some of these arguments may simply be going too far. It may better be debated carefully in terms of the degree of engagement, the level of responsibility from the donors perspective, and the long-term efficiency of legal assistance projects. Capacity building within the limits of technical cooperation or assistance should be considered appropriate and technically necessary. Promoting capacity building in legal knowledge and application in a broader sense is therefore an indispensable part of legal assistance. As a powerhouse for academic research and education, university is a primary source of partnership for capacity building projects. For more than one decade, Nagoya University have been expanding its international programs to admit foreign students or organizing short- and long-term training courses for young professionals working in legislative development or legal reform in the transitional and developing countries as an important part of its contribution to legal cooperation activities. We have developed English lecturing programs for foreign students who come to pursue advanced education in comparative studies in law and political science at Nagoya University. These are long-term degree programs normally lasting for two to three years. We have also been working closely with JICA and other Japanese aid agencies to develop short-term training programs for legal professionals and government officials from other Asian countries to take part in intensive lectures and field work in Japan to gain first hand information about Japanese experience and techniques in legislative development and legal reforms. These short training programs are usually organized in Japanese conducted through interpretation and translation into the native language of the trainees. For example, in October CALE has organized one short training program with the Ministry of Justice of Uzbekistan to discuss with the trainees about the latest draft Law on Administrative Procedure which the Government of Uzbekistan is developing with technical assistance from the international development aid agencies, including Japan. CALE is working directly with JICA in implementing this technical assistance project in Uzbekistan together with the Ministry of Justice of Uzbekistan. We have also just finished a two weeks training program in Nagoya and Tokyo, which we organized jointly with JICA for young judges and 2

3 prosecutors and other legal professionals from Iran in early November. All these training programs were implemented in Japanese with consecutive interpretation and relevant documents translated into the native language of the participants. Despite the relative successes and importance of these short-term training and long-term education programs, we know very well that they are technically inadequate and cannot take up really serious challenges. For the short-term training programs, the greatest challenge is the warranty of an effective and technically accurate translation and interpretation services. The immediate handicap is the effective use of the short time-limit to produce the greatest results. Good quality translation and interpretation services between different languages to accurately convey the meanings of technically sensitive legal terminologies are not easy. Much time is needed to prepare the trainees with minimum understanding and knowledge about some basic concepts of a different legal system before the technical niceties of the relevant details in that legal system can be effectively transmitted and become useful for the trainees to develop their work back home. The preparation is never sufficient in most of the short-term intensive trainings. The same challenges exist in long-term non-japanese education program for foreign students. Foreign students can have only limited access to Japanese legal and academic resources. As most materials and research outputs are published in Japanese, there are serious hurdles which they cannot overcome in pursuit of high quality academic knowledge in Japanese law and political thoughts, which are supposed to be useful as a reference for their work in legislative reforms back home. So our latest effort is to prepare potential students or trainees with Japanese language skills and basic background knowledge about Japanese legal, political and social systems early enough before they would come to pursue advanced legal education in Japan. In cooperation with our counterparts in some recipient countries, we have set up Research and Education Center of Japanese Law in the law universities or colleges in these countries. At the Center, a small selected number of capable students can have free access to Japanese materials and trainings in Japanese language and 3

4 studies. They only have to do this as an additional part but not replacement of their routine curriculum at the undergraduate level. Such program is therefore useful in two ways. Fist, it helps enhance the students access to technical knowledge about Japanese legal system and political thoughts and make their research in Japan more useful for their future after returning home. Second, by operating directly inside the recipient countries, we are able to develop specific curriculum or academic instructions to prepare a specific group of potential foreign students for their post-graduate research projects in Japan. We are trying to adjust our activities to specific country context to help students of different linguistic and cultural backgrounds gain equal access to Japanese language, and knowledge about Japanese legal and political systems. Finally, these projects are by no means open-ended. The plan is to hand over the whole operation to a local partner institution, once sufficient local human resources have been made ready for that purpose. The same BOT principle used in most development aid logics can be equally useful in the context of legal technical cooperation. A review of legal assistance in specific areas the case of Cambodia The adoption of the Civil Procedure Code Japan provided assistance to Cambodia in enacting the new Civil Procedure Code in There was continuous back and forth exchange of views and discussions between the Japanese and the Cambodian drafting committee members about the meaning and wordings of each clause of the code. This cooperation formula has enabled the initial transfer of information and knowledge from the donor to the recipient on the details of modern civil procedure in Japan and other developed countries, and from the recipient to the donor on the past and existing practices in Cambodia. Chapter 4 of the Code describes the conditions for forced execution of court judgments, decisions and arbitral awards. Particularly, Article 153 of the Code consists of provisions 4

5 regarding court decisions on the execution of arbitral awards. The Article is based on a combination of Arts.35 and 36 of the UNCITRAL Model Law on International Commercial Arbitration. The adoption of the commercial arbitration regime Also in 2006, the Law on Commercial Arbitration was promulgated. It adopted most of the provisions of the UNCITRAL Model Law on International Commercial Arbitration. It consists of 47 articles defining arbitral procedures, jurisdiction of arbitral tribunal, and establishment of a National Arbitration Center. A Sub-decree on the Organization and Functioning of the National Arbitration Center was then enacted by the government in August The first group of Arbitrators have been selected later in the same year. However, the National Center is not yet operational. Concluding remarks Legal cooperation is not a new phenomenon but a constant reinvented process of harmonizing different legal cultures interacting with each other. There have been different stages of philosophical and practical development in discussions about legal cooperation. In the last two decades, the roles of multilateral organizations in promoting this cross-cultural cooperation have taken on new momentum. The multilateral context should give rise to particular attention being paid to the ensuring legal pluralism. Harmonization in legal pluralism requires that legal cooperation be accompanied by indepth dialogues between different cultures. It is not a one-way transmission of knowledge or experiences, but a two-way interaction of old and new experiences. Universities have been an essential place for these dialogues to start and grow. Recent trends in Japan have witnessed the increasing roles of universities and individual scholars to promote both theoretical and practical development of legal cooperation of this sort. 5