Consideration of Law Models in the Law and Judicial Assistance Programs

Abstract

After a decade of experience since the ‘Law and Judicial Reform’ became a trend in the transition economies and the economies hit by Asian Crisis in 1990s, the time has come to review the consequence of ‘law and judicial assistance’ provided by various sources both multilateral and bilateral. In Asia, it is not unusual to encounter the situation where controversial legislations are resulted from the law reform activities based on several law models provided by different donors and carrying discrepancy each other. Although it is a common behavior of multilateral including World Bank, ADB and EBRD to promote own-made ‘model laws’ in major economic law area, works of academics have not yet successfully established any conclusive justification for those model laws. Even the most influential articles including Pistor and Wellons (1998), La Porta et al. (1997) and Shleifer et al. (2003) must be criticized on their distorted conclusion nevertheless their analytical frameworks to understand the interaction among law, economy and policy dynamism are in themselves meaningful.

On the other hand, a study of some cases among legal assistance programs of Japan's ODA, including the Bankruptcy Law of Vietnam as well as the Civil Code and the Civil Procedure Code of Cambodia, tells us the difficulty of assistance largely depend on the ability of policy decision makings of the local government. When several law models carrying different policy choices are shown by different donors, it is often happen that the local government will decide on the law model of the most influential donor only on political considerations without understanding each model's in-depth policy implication thoroughly.

Probably, it is crucially needed to establish a basis of common forum where all related donors can join and discuss with the local government on the best possible choice of law models for the local society. Althugh the World Bank's ‘Comprehensive Development Framework’ is being promoted in Asia, such a unilateral initiative for the integrity might have less chance of success. The forum for discussion should be started in a much more voluntary basis among various donors. It must be worthwhile to further study some recent movement among bilateral donors in the far front of assistant activities.