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Law in Transition Law in transition Advancing legal reform Spring 2001 Concessions Mobilising private finance for development A decade of legal transition EBRD’s first General Counsel reflects Rebuilding Yugoslavia’s infrastructure How the concessions regime works Maribor waste water project A case study of concession financing Law in transition Advancing legal reform Spring 2001 Contents General Counsel of the EBRD EBRD's legal transition assistance: 10 years of evolution 1 Andre Newburg, first General Counsel of EBRD Emmanuel Maurice Corporate governance: regulating board-level management of enterprises 2 Co-Editors-in-Chief Sarah Worthington, Senior Lecturer in Law, London School of Economics and Political Science Gerard Sanders, David Bernstein Bosnia and Herzegovina's continuing struggle: legal and 11 institutional challenges in the post-Dayton era Focus Editor Francis Delaey, Counsel, EBRD Walid Labadi Overview of Uzbekistan’s Civil Code 16 Ikram Zokirov, Professor of Civil Law, Tashkent Law University The European Bank for Reconstruction and Development (EBRD) is an international institution Production Editor Nodir Akhmedjanov, Postgraduate Student, Nagoya University Law Department whose members comprise 60 countries, the European Community and the European Investment Bank. Anila Gramshi Focus on concessions 19 The EBRD operates in the countries of central and eastern Europe and the Commonwealth A favourable concessions regime: a lender’s perspective 20 of Independent States committed to multiparty democracy, pluralism, and market economies. Consultant Editor and perceptions from transition countries Yasunobu Sato The EBRD’s countries of operations are: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Walid Labadi, Senior Counsel, and Anila Gramshi, Associate, EBRD Bulgaria, Croatia, Czech Republic, Estonia, FR Yugoslavia, FYR Macedonia, Georgia, Hungary, Anita Ramasastry, Professor of Law, University of Washington Contributing Editors Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Poland, Romania, Russian Federation, Slovak Republic, Slovenia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan. Hsianmin Chen, Frederique Dahan, International efforts to promote and harmonise concession law 29 José Angelo Estrella Faria, Legal Officer, UNCITRAL Alexey Kiyashko, Meni Styliadou, Alexei Zverev The EBRD works through the Legal Transition Programme, which is administered by the Office of the Geoffrey Hamilton, Regional Advisor, and Travis D. Coleman, General Counsel, to improve the legal environment of the countries in which the EBRD operates. The Special Assistant, United Nations Economic Commission for Europe Support purpose of the Legal Transition Programme is to foster interest in, and help to define, legal reform Richard Drummond, Export Credit Guarantee Department throughout the region. The EBRD supports this goal by providing or mobilising technical assistance for Sandy Donaldson, Amanda Lillywhite Walid Labadi, Senior Counsel, EBRD specific legal assistance projects which are requested or supported by governments of the region. Anthony Martin, Olivia Oddi, Tabitha Sutcliffe Roger McCormick, Partner, Freshfields Bruckhaus Deringer Legal reform activities focus on the development of the legal rules, institutions and culture Jurgen Voss, Consultant, OECD on which a vibrant market-oriented economy depends. Drawing on the concessions experience of developed jurisdictions: 32 the example of France Antoine Maffei, Partner, and Valérie Hulst, Associate, Law in transition is a publication of the Office of the General Counsel of the EBRD. It is published several times each year and is available in English and Russian. The editors welcome ideas, contributions and letters, De Pardieu Brocas Maffei & Leygonie The Office of the General Counsel but assume no responsibility regarding them. Submissions should be sent to David Bernstein, Office of the General Legal framework for infrastructure projects in FR Yugoslavia 41 Counsel, EBRD, One Exchange Square, London EC2A 2JN, United Kingdom; or [email protected] gratefully acknowledges the generous Dragan Karanovic, Partner, Karanovic & Nikolic The contents of Law in transition are copyrighted and reflect the opinions of the individual authors and do not support of the Government of Japan necessarily reflect the views of the authors’ employers, law firms, the editors, the EBRD’s Office of the General Bulgarian law on concessions 45 in funding the production of this issue Counsel or the EBRD generally. Nothing in the articles should be taken as legal advice. Wayne McArdle, Partner, and Lisa Booth, Solicitor, Paul, Hastings, Janofsky & Walker of Law in transition Stephan Kyutchukov, Partner, Djingov, Gouginski, Kyutchukov & Velichkov © European Bank for Reconstruction and Development, Spring 2001. Implementation of the Romanian concessions law – an update 51 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, including photocopying and recording, without the written permission of the copyright holder. Such written permission Michel Lequien, Senior Associate, Ashurst Morris Crisp must also be obtained before any part of this publication is stored in a retrieval system of any nature. Slovenia case study: the Maribor waste-water project 56 European Bank for Reconstruction and Development Christopher Clement-Davies, Partner, and Artem V. Faekov, Associate, Vinson & Elkins One Exchange Square London EC2A 2JN Legal transition developments 61 United Kingdom Tel: +44 20 7338 6000 Legal transition events 65 Fax: +44 20 7338 6100 http://www.ebrd.com Printed on an environmentally responsible paper. This paper is manufactured from sustainable sources and the pulp used in the production is elemental chlorine free. Ref: 4857 Law in transition, Spring 2001. Andre Newburg, first General Counsel of EBRD 1 EBRD’s legal transition assistance: 10 years of evolution As the EBRD marks its 10th anniversary in April, its first General Counsel looks back at the Bank’s legal reform efforts over the past decade and emphasises the critical role that legal reform plays in the political and economic transition of the EBRD’s countries of operations. In the past decade the Office of the General governments of the EBRD’s countries of international community’s emphasis on Counsel of the EBRD has focused on three operations for various types of assistance in international legal standards as a key to crises principal areas: support of the EBRD’s invest- their legal reform efforts. In 1995, John prevention should motivate continued legal ment, lending and treasury operations; policy Taylor, my successor as General Counsel, reform. A key concern for all the EBRD’s and institutional issues, including inter- institutionalised the EBRD’s law reform work countries of operations is how to attract their pretation of the Agreement Establishing the with the creation of a Legal Transition Team share of the large flows of private capital to Bank; and helping the Bank’s countries of for the specific purpose of delivering legal help meet the region’s infrastructure needs. In operations in their efforts to create the modern technical assistance in accordance with a this context, the transition countries are legal framework necessary for their economic defined programme. In 1998, Law in trans- recognising the importance of creating a and political transition. ition was transformed into a legal journal, proper legal foundation for the public-private with in-depth articles on key aspects of the partnerships that can mobilise this private From its earliest days, the Bank recognised the region’s legal issues. capital. Concession laws and transparent, fundamental role of a sound and effective legal competitive tender procedures, the focus of system in the transformation of the institutions The present General Counsel, Emmanuel this issue of Law in transition, are essential to and societies of the countries of central and Maurice, has taken the Legal Transition this foundation. eastern Europe in accordance with the Bank’s Programme a step further by mainstreaming mandate to assist countries “committed to and legal reform into the strategies and policies of I am glad to see that what was started a applying the principles of multiparty demo- the EBRD’s investment operations. The decade ago with an effort to coordinate legal cracy, pluralism and market economics”. As programme now focuses on four key activ- reform efforts has grown to become a core early as 1991, within months of the Bank’s ities: legal assessments, international stand- component of the Bank’s activities and that the inauguration, we convened at the Bank’s head- ard setting, legal reform projects and out- EBRD’s Legal Transition Programme and Law quarters a colloquium of representatives of reach. This seeks to ensure that the lessons in transition have become an important voice international institutions and leading technical learned from legal reform efforts are taken for legal reform in the region. As the financial assistance providers to assess the resources into account in the EBRD’s investment crises in Russia and other emerging markets available for law reform and to consider means activities, as well as in ongoing and future have demonstrated, we ignore law reform and of cooperation between providers. In 1992 we legal transition projects. legal institution-building at our peril. Legal commenced publication of Law in transition, a reform must remain a key component of newsletter on legal cooperation and training,
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