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UNITED STATES AGENCY FORINTERNATIONAL DEVELOPMENT

COMMERIAL --- LEGAL AND INSTITUTIONAL REFORM (C-LIR)

ASSESSMENTS FOR EUROPE AND EURASIA

Diagnostic Methodology Handbook

USAID Omnibus II-C: Policy/Legal/Training

Contract no.EPE-I-95-00071

Task Order No. EPE-I-09-95-00071-00

NOVEMBER 15, 1999

BOOZ.ALLEN & HAMILON INC.INTERNATIONAL CLIENTSERVIE TEAM

Booz.Allen & Hamilton Inc.

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I.OVERVIEW

This Handbook has been prepared to assist commercial law and institutional reform (C-LIR)

specialists to apply proven methodology for understanding the commercial law environment in a

developing or transition country so that they can design better programs of assistance. Just as

importantly it is a tool for helping policy makers understand the need for and dynamics of

specific commercial law reforms. The methodology as further described below, was developedover a two-year period between 1998-2000, and field tested in seven countries of the

Europe/Eurasia region.

The diagnostic methodology is both quantitative and quantitative. Qualitative of the commercial

law environment are assessed through a systematic examination of laws and the institution

necessary for the implementation of those laws. Findings are quantified by assigning numerical

values to the qualitative judgments. These two facets together provide a more complete picture

than qualitative assessments with no scoring. Quantification permits both a standard for

comparison with other countries and between areas of law, while providing a reality check on

the integrity of the assessment.

This tool was thus intended to result in both a written, qualitative report on the areas of law

studied, and a set of scores based on the indicators provided. The scores, by themselves, have

little more than academic value without a supporting discussion. The qualitative findings,

however, can standalone without the sores, but are strengthened by the numerical back-up, with

an be used very effectively to sensitize planners to the need for change.

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In the end, this diagnostic tool is meant to be just that a practical tool for designing and

prioritizing programs of assistance in the area of commercial law reform. It can be modified to fit

the needs of the users, and expanded to other areas of laws not covered yet. Within USAID, the

diagnostic scores provide a growing database of comparative indicators. For those who do not

need such indicators, the methodology still provides the in-depth systematic analysis necessary

for effective strategic planning.

Below, the Handbook provides a brief background on the methodology was developed, a

glossary of terms used, an explanations of how scores are calculated (with examples from prior

assessments), and general commons on each of the four dimensions of the assessment. Following

these general discussions is a separate section for each of the seven areas of law, including

comments and the indicators themselves.

II.BACKGROUND

Project Design

Since the fall of communism, most of the countries of Central and Eastern Europe and the former

Soviet Union have been making the difficult transition toward a market economy. Intuitively

many realized that because commercial laws serve as the rules of the game for a market

economy, it was critical to get them right if a free market was to flourish.

Recognizing this, reformist governments began to tackle legal reform generally and commercial

law reform specifically. To assist with this process, international donor agencies such as the

World Bank, the International Monetary Fund, the European Bank for Reconstruction and

Development, the European Union, the German Development Agency (GTZ), along with

USAID and its partner agencies in the U.S. government, lent support by fielding an army of short

- and long-term technical advisors to provide an ar-

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Booz.Allen & Hqmilton Inc.

ray of technical advisory services. The success of these early effortsreferred to here as 1st

generation commercial legal and institutional reform (C-LIR)were mixed. New laws were

drafted (sometimes copied verbatim from advanced market economies) and enacted, but with

little lasting change. Two important lessons were learned during this early phase of C-LIR. First,getting the Legal framework right is an essential, but not sufficient, precondition for

sustainable, market-driven economic growth. Second, without a supporting institutional

framework, and associated capacity, commercial laws cannot be fully implemented or enforced.

These lessons served as the basis for the 2nd generation in C-LIR as a distinct area of economic

development theory and practice. During the second phase,practitioners attention turned to

rationalizing and strengthening the institutional framework for implementation and enforcement

of commercial and capacity building. The internal donor community to address institutional

deficiencies marshaled policy advisors, technical training, and limited equipment procurements.

The record of success for these 2nd generation interventions has been somewhat better but stillnot what was hoped for. While significant gains were achieved in certain substantive areas (e.g..

GATTIWTO accession, customs administration, collateral registries, and capital markets), there

was little progress in others - notably in the enforcement of bankruptcy, antitrust, and intellectual

property laws. This practical experience in the field brought to light the complexity and subtlety

of the institutional dimension of C-LIR.

This Handbook is the result of a project representing a tangible and significant commitment of

resources by USAID to advance a 3rd generation of C-LIR. Despite some success in the field,

there is a growing recognition that the legal and institutional elements of C-LIR are two parts of

a larger and more complex whole. The evidence to support this conclusion lies in theimplementation/enforcement gap that has been observed even after technically competent 1st

and 2nd generation C-LIR implementation and enforcement of legal and institutional reforms.

Addressing the Challenge

The challenge of the 3rd generation of C-LIR is to develop a cost-effective, results-oriented

approach ( or approaches ) that will help close the implementation/enforcement gap