The Concept of the Development of International Commercial Arbitration at the Chamber of Commerce and Industry , Republic of Tajikistan (2020-2021)
The establishment of market economic relations in the Republic of Tajikistan and democratic reforms promotion, liberalization and improvement of management system in Tajik economy cannot be imagined without large foreign capital investments. One of the factors of the investor’s entry into the Tajik market is the availability of conditions for resolving foreign trade disputes in case of their occurrence, « a qualified solution. Due to the objectivity, speed decisions and economy of dispute resolution, international commercial arbitration is gaining increasing recognition among the subjects of the international circulation of goods and services.
In this context, the development in Tajikistan of an impartial mechanism for resolving private-law foreign economic disputes – International Commercial Arbitration at the Chamber of Commerce and Industry of the Republic of Tajikistan (hereinafter referred to as ICAT) is one of the important factors when making an investment and trading decision. This is important, in particular, because the European Union and the United States consider trade disputes with exporters of the CIS member states under the WTO rules with the involvement of independent arbitrators. Transparency in trade disputes legal regulation in the implementation of the long-term investment projects enhances the image of the Republic.
At the same time, it should be noted that the legal framework that defines the legal status of the ICAT and regulates new market and economic relations is unfamiliar in the country and inaccessible to most of the people involved in this process. And the low general level of legal culture also determines the low legal level in the entrepreneurial activity of the subjects employed in it.
Therefore, there is a significant need to reform the ICAT in order to create an appropriate structure for providing effective assistance in the field of private and entrepreneurial activity from a legal standpoint.
The complex of measures proposed by this Concept includes the following main aspects:
- entrepreneurs enlightenment on the legal basis of their activity;
- Training of court officials, court enforcement officers, attorneys and lawyers on how to apply the New York Convention and International Commercial Arbitration.
- ICAT Structural reform
- Monitoring of the implementation
- Lobbying for the adoption of the Law , Republic of Tajikistan “On International Commercial Arbitration” in a new edition.
- Educating entrepreneurs of the Republic of Tajikistan on the legal basis of entrepreneurial activity
Within the framework of this aspect, in addition to solving the tasks specified in the Law of the Republic of Tajikistan “On International Commercial Arbitration”, the Concept proposes to direct ICAT’s activity to address the following:
- creation of an institute for independent monitoring of the current legislation in the field of entrepreneurial activity;
- ndependent study of the current legislation and its compliance with international rights norms;
- proposals development to bring country legislation into line with international norms and standards of the entrepreneurs’ rights , issues of international commercial arbitration and the New York Convention;
- development of proposals for the implementation of international legal norms in the field of rights of entrepreneurs in the current legislation of the Republic of Tajikistan;
- study and summarizing of law enforcement practice on international commercial arbitration and the New York Convention, as well as the development of independent recommendations for improving legislation;
- preparation of the proposals to improve the mechanism for the implementation of current legislation and monitoring over their implementation;
- participation in lobbying draft laws to improve the situation of entrepreneurs;
- legal education of entrepreneurs, through preparation and publication of books, periodicals, booklets and etc;
- ctive Internet online lobbying of the ICAT, creation of a hot advisory line, to start specialized Internet group;
- conduct trainings to familiarize business community with new regulations, informational and methodological materials;
- preparations and publication informational and methodological materials on international commercial arbitration and the New York Convention;
- newly adopted laws and by-laws provision
- Training of court officials, court enforcement officers, attorneys and lawyers on how to apply the New York Convention and the International Commercial Arbitration Act.
Since foreign arbitral awards are enforced through economic courts, judges and enforcement officials should receive appropriate training in understanding the enforcement and non-enforcement mechanisms under the Convention. Staff of other courts should also be trained in international commercial arbitration and the New York Convention, as such courts will face situations where a party or parties mistakenly file an application for litigation with national rather than arbitration courts. Attorneys and lawyers must also receive training on arbitration, the Convention and the International Commercial Arbitration Law.
It is most likely that the cost of such training will be partially or fully reimbursed by donor funds.
- Structural reform of the ICAT.
The concept presupposes a change in the management structure of the ICAT by transferring the authority to the vice-chairmen at the regional level. At the first stage, a pilot project will be carried out in Sughd region, where Deputy Chairman will carry out activities to implement this Concept. Particular attention should be paid to interaction with free economic zones. Based on the results of the pilot project, taking into account positive outcomes , this practice further will be introduced in Khatlon region and GBAO.
The ICAT Regulation also requires reform, where it is planned to voice the implementation of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the ET Model Law on International Trade Arbitration. This Regulation must comply with the UNCITRAL Arbitration Rules. In particular, in the narrative and operative parts of the award, the arbitrator must make reference to the relevant articles of the aforementioned Convention and the Model Law. The Rules should be supplemented with procedural procedures for international cooperation, interpretation of interim measures and the appointment of an emergency arbitrator, as well as revise the amount of registration and other fees downward.
The analysis revealed that there is no single body in the Republic of Tajikistan that would have statistics and data on the number of foreign arbitral awards sent to our country for enforcement. It would be advisable to monitor the enforcement of foreign arbitral awards in Tajikistan.
Due to the fact that the Law of the Republic of Tajikistan “On International Commercial Arbitration” does not comply with the UNCITRAL Model Law on International Commercial Arbitration, enforcement in foreign countries of arbitral awards made in Tajikistan is impossible.
That is, in fact, the Republic of Tajikistan unilaterally executes hundreds of decisions of arbitration courts of more than 150 foreign states on its territory, in turn, our business cannot afford protection in national arbitration and the execution of its decisions in other countries. The adoption of the Law of the Republic of Tajikistan “On International Commercial Arbitration” in the new edition will allow the government to ensure the proper implementation of the rights of entrepreneurs on both sides.
- Lobbying for the adoption of the Law of the Republic of Tajikistan “On International Commercial Arbitration” in a new edition.
By order of the Head of the Executive Office of the President of the Republic of Tajikistan dated June 15, 2017, No. 17 / 37-10, an interdepartmental working group was created to amend the Law of the Republic of Tajikistan “On International Commercial Arbitration”. On the basis of the instruction of the Head of the Executive Office of the President of the Republic of Tajikistan dated June 19, 2018, No. 01-4 / 306 and No. 37259, the conclusion of the Assistant to the President of the Republic of Tajikistan on legal issues was prepared on the need to develop the Law of the Republic of Tajikistan “On International Commercial Arbitration” in a new edition. By order of the Head of the Executive Office of the President of the Republic of Tajikistan dated June 26, 2018, No. 17/57, the composition of the working group for the development of the Law of the Republic of Tajikistan “On International Commercial Arbitration” in the new edition was approved.
The draft Law prepared and coordinated with the interested agencies was sent to the Government of the Republic of Tajikistan. By order of the Chief of the Executive Office of the President of the Republic of Tajikistan dated August 19, 2019, No. 17 / 10-88, the National Center for Legislation under the President of the Republic of Tajikistan was instructed to improve the draft Law and submit it in accordance with the established procedure for implementation. Unfortunately, to date, the draft Law has not been submitted to the Government of the Republic of Tajikistan. Thus, this Concept presupposes lobbying for the adoption of the Law of the Republic of Tajikistan “On International Commercial” in the new edition for the purpose of international recognition of the ICAT, ensuring availability of arbitration justice, unifying procedural legislation and increasing the number of alternative methods of resolving disputes in Tajikistan.