/ Woodrow ,Wi&a SchOol of Public’ andInt+aationa!~fairs, Princeton University .’- ~. ‘I ‘,. . ,; ,‘. ‘..; -I

’ Grkduatk Poii$ Workshop on Legal Development ;- -.:Proje@s> a~&C&mmtinism :. .

-1 .,’” ‘y”

PROJECTREPORTON THE

ROLEQFFOREIGNAID FOR

LEGALREFORM PROGRAMSINTHE RUSSIANFEDERATION

Produced by:

Monika Borbely, Helene Carlsson, Carl Chastenay,Tyler Felgenhauer, Christian Fung, RudolfHykl,Preston Pentony, Noah Sachs and Manuela Sieber-Messick

Under the Direction ofi

Dr. Stephen Holmes, Professor of PoliticsPrinceton University

January, I999

. I

Acknowledgements.............................................. 2

List of Abbreviations ............................................. 3

List of Tables and Figures. ......................................... 4

Executive Summary .............................................. 5

Introduction ..................................................... 10

Background of Legal Reform Projects. ............................... 12

RangeofProjects ................................................ 19

Supply of Foreign Assistance. ..................................... 25

Domestic Constraints: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Law Reform in the Russian Federation Incentive Structures in Copyright Protection Reform

32

Case Study #l: USAID and Legal Reform in Russia ..................... 42

Case Study #2: The World Bank and Legal Development ................. 58

Lessons Learned and Recommendations ............................... 73

Bibliography ..................................................... 84

List of Interviewees. ............................................... 88

ACKNOWLEDGEMENTS

We are grateful to the Woodrow Wilson School of Public and International Affairs, PrincetonUniversity. Without its support this report would not have been possible. In particular, we would liketo thank Dean Michael Rothschild, Assistant Dean for Academic Affairs Robert Hutchings, and FacultyChair Christina Paxson. We are also deeply indebted to Director of Graduate Programs Carmen TwillieAmbar, Registrar Margaret Otero, and Ann Lengyel for their logistical support. Fellow graduate studentLeonardo Arriola provided invaluable assistance in navigating bureaucratic procedures.

The project relied heavily on fieldwork in Russia that would not have been possible without the help ofthe Moscow Public Science Foundation, in particular Oksana Fodina and Olga Sidorovich.

Finally, we are most grateful to our workshop instructor, Dr. Stephen Holmes. His instruction, patience,sense of humor, and dedication ensured that this was a rich learning experience.

Any shortcomings of this report are entirely the responsibility of the nine co-authors.

A B AA D RCEELICPCc s oD R LE CE UE N 1G A OG P UHIIDIIPAILBEILCI M FIRIM C P RM V DND1N G ON I SN J CRAISR A OR FRFLRR O L CSIZOTACIS

U N D PUSAIDW B

LIST OFABBREVL~TI~NS

American Bar Associationalternative dispute resolutionCentral and East European Law InitiativeCriminal Procedure Codecivil society organizationBureau of Democracy, Human Rights and LaborEuropean CommissionEuropean UnionBureau of Europe and the Newly Independent StatesU.S. General Accounting OfficeState Law Administration of the Russian PresidentHarvard Institute for International DevelopmentInternational Intellectual Property AllianceInstitute for a Law Based EconomyInternational Legal CenterInternational Monetary FundInternational Republican InstituteMoscow Center for Prison ReformRussian Ministry of the InteriorNational Democratic InstituteNon-governmental OrganizationNewly Independent StatesNational Judicial CollegeRussian Agency on Intellectual PropertyRussian Author’s SocietyRussian FederationRussian Foundation for Legal ReformRule of Law ConsortiumRussian Pretrial Detention CenterTechnical Assistance for the Commonwealth ofIndependent StatesUnited Nations Development AgencyUnited Stated Agency for International DevelopmentWorld Bank

3

LIST OF TABLES AND FIGURES

Tables:

Table 1: A Comparison of Legal Reform Projects Across the Decades ............Table 2: Current USAID-Russia Activities in the Legal Reform Area .............Table 3: USAID Strategic Objective Rating............................................Table 4: Summary of the World Bank Project Description...........................Table 5: Budget Breakdown: World Bank Legal Reform Project ...................Table 6a: RFLR Planned Distribution Schedule .......................................Table 6b: RFLR Planned Distribution Schedule .......................................

Figures:

Figure 1: Funding by Sector, FY98 ......................................................Figure 2: Organization Chart of U.S. Aid to Russia ....................................Figure 3: A Strategy for Developing the Rule of Law.................................Figure 4: Organization Chart of RFLR...................................................

1 74 85 46 06 17 07 0

4 44 65 06 2

111111111111111

111

EXECUTIVE S-Y

BACKGROUNDOFLEGALREFORMPROJECTS

The section looks at the history of legal reform project. Legal reform first appeared as a branch ofdevelopment in the 1960s as the consequences of a number of interrelated factors: (1) The“Development Decade”, (2) The quantity of money available for development projects, (3) Title IX ofthe U.S. Foreign Aid Bill of 1966, which purported to support democratization process, (4)Decolonization. (5) A belief in the inevitability of modernization and (6) The then prevailinganticommunist ideology.

These early projects failed, and were soon abandoned. Reasons for their failure include: (1) Lack ofcultural awareness. (2) Lack of an explanatory theory (3) Rejection of projects by recipient states. (4)Elite manipulation of law. (5) Lack of a causal link between law and economic development.

Legal reform reemerged as a topic in the 1990s following a number of historical developments: (1)Political changes in Eastern Europe and the dissolution of the Soviet Union (2) Desire to consolidatepolitical and economic advances in other areas of the world, primarily Asia and Latin America. (3)Process of globalization (4) Increase in funding levels and (5) Rise of democratization programs byUSAID. However, many of these programs ignored the history of legal reform projects. An examinationof that history, which shows that such projects are extremely difficult to implement even under the bestof circumstances, might have made them more guarded in their predictions.

RANGEOFPROJECTS

The chapter begins with a brief outline of the major funding agencies, such as USAID, the World Bank,and TACIS, followed by a survey of intermediaries or implementing agencies, such as ARD/Checchi,ABAKEELI, the Harvard Institute for International Development (HIID), Chemonics, and the RussianFoundation for Legal Reform (RFLR).

The section concludes with a comparison of the strategies adopted by international agencies. It revealsthat most legal reform projects conducted so far can be put into one of four categories, which includeboth “top-down” and “bottom-up” approaches: (1) Legislative drafting or consulting (2) Judicial trainingand court administration (3) Legal education reform, including continuing legal education and (4) Publiceducation about various laws and the role of law in society. Operating within the four categories, themajor focus of donors has been on training and technical assistance, and there is a lot of overlap in thetypes of projects being funded. Moreover, although the breadth of legal reform projects has been large,the depth of projects, measured in terms of their sustainability and amount of funding, has been small.

SUPPLYOFFOREIGN AID

The role of donors is discussed in this chapter. The section has two sub-components. The first broadlyanalyzes the advent and evolution of donors since 1992 to the present. Particular emphasis is given tothe motivation of donors engaged in Russia, the processes in project design, and project implementation.The second examines the constraints faced by donors In looking at the constraints, this section focuseson three topics that are non-Russian domestic factors. The topics addressed are donor coordination,domestic political pressure from home country, and donor bureaucracy.

An evaluation of donor efforts depends on initial expectation and the capacity of donors to learn andgrow. As stated, the first wave of development projects was considered a failure. Domestic and foreigncritics have lamented the ignorance of donors on the legacy of communism and their naivete in face ofthe enormous task of legal development. But even though the early projects did not achieve their statedgoals, the presence of foreigners did have an osmosis effect. Today, a new wave of projects and a newattitude among donors represent a new generation of aid to Russia. Their philosophy, organizationstructure, and processes do reflect a new maturity on a technical and institutional level. There arereasons to be cautiously optimistic with regards to the constructive role donors can play in the future oflegal reform.

DOMESTICCONSTRAINTS

Two examples of domestic constraints to legal reform are introduced in this section: Criminal lawreform in Russia and Incentive structures in copyright protection. They illustrate the difficulty ofconducting legal reform in Russia by looking at the magnitude of the problems to be solved, as well assome of the constraints faced by reformers. The first example explores some issues present in the area.of prison reform, which is characterized by for example excessive arrests, the use of torture, excessivenumber of prisoners for the available facilities and the spread of tuberculosis and other illnesses. Theseproblems share a number of causes, including (1) The Soviet legacy, (2) Incomplete and insufficientreform of criminal laws, (3) Unavailable and inconsistent legal information, (4) Inadequate legaleducation, (5) Insufficient resources and (6) Institutional conflict. The impact of foreign aid on prisonand criminal law reform, as well as other legal spheres, will necessarily be hampered by such factors.

The second example of domestic constrains incentive structures in copyright protection provides anexample of the problems described in the previous section, this time in the area of copyright protection.Approximately 90% of all software sold in Russia are pirated. Recently, a new law has been enacted toguarantee copyright protection, but this law is insufficient. The causes of the insufficiency are (1) Smallcircle of beneficiaries, (2) Outside pressure without matching domestic demand, (3) Minimal incentivesto comply with the law and (4) Absence of capacity to implement and to enforce.

The conclusion drawn from these two examples highlights the need for foreign aid in the field of legaldevelopment, to realize that foreign aid initiatives can neither substitute the government’s lack of will toreform nor replace the basic functions of the Russian state, including the enforcement of judgement.Foreign aid can, however, support legal reform that generates local demand as well as enhance andcultivate the local knowledge of the rule of law.

-CASESTUDY #l: USAID ANDLEGALREFORMINRUSSIA

The case study begins with a survey of USAID’s activities in legal reform in Russia. USAID’s programsin Russia are part of its democratization mandate, which includes

1 . strengthening the rule of law and respect for human rights;2 . developing more genuine and competitive political processes;3 . increasing development of a politically active civil society; and4 . promoting transparency and accountability in government institutions.

USAID works closely with the Department of State on these issues. During the Clinton administration,democracy building, in particular, has been identified as a primary objective of U.S. foreign policy. It isalso felt that USAID is too influences by political considerations. The description of USAIDinvolvement ends with a description of its past and current projects in Russia.

IBIIIIaIIIIIIII1III

I1I

IIIIIIIIBIIIIII

In the discussion section, the successes and strengths of USAID are presented, such as its involvementin the establishment of an independent judiciary, as well as its involvement in legal education. Thesection also explores the internal, structural strengths of USAID.

The case study then explores a number of criticisms aimed at USAID. These include (1) the scandalsurrounding the Harvard Institute of International Development (HIID), (2) pressure for a “High BumRate”, (3) Lack of donor coordination, (4) Inadequate benchmarks and internal evaluation and (5)Inappropriate contractor and partner selection process

Finally, a number of “lessons learned” are presented. These include:

1 . Keep realistic expectations for what foreign assistance can accomplish and the time it willtake.

2 . USAID’s initial efforts in the rule of law area were hampered by an unbalanced reliance onindividuals who lacked sufficient knowledge and understanding of Russia’s needs anddesires.

3 . Methods for internalizing lessons learned should be improved.4 . Smaller projects are more effective.5 . Support efforts aimed at building sustainable partnerships.

CASE STUDY #2: THE WORLD BANK

The second case study begins with a description of World Bank involvement in legal reform in Russia.Legal reform is a new area of work for the World Bank. The Russian legal reform project began in1996, following a request for timding from the Russian government. The project focuses on four areasof work, namely (1) legal drafting, (2) legal information, (3) legal education, and (4) judicial reform.Total budget for the project is US$ 89.4 million, of which US$ 58 million will come from a World Bankloan.

A non-governmental organization, the Russian Foundation for Legal Reform (RFLR), was created toimplement the project. Implementation so far has progressed slowly, with less than 20% of budgetdisbursed over two and a half years, but most of the budget should be spent in 1999. It is unclearwhether RFLR will continue to exist after the end of World Bank funding.

The discussion of the World Bank project focuses on five topics: (1) Strategy, and the dissimilarity inlegal reform projects from one country to another, (2) Project development, which was more systematicand based on more field research than most other legal reform projects, (3) Political considerations thatwent into the development and authorization of the project, (4) The implementation structure, especiallythe preference of having a local implementation structure, as well as the advisability of creating aparallel organization, and (5) Slow implementation. The case study then concludes with a number oflessons learned:

1. Projects that have clear Russian ownership have potential for greater impact.2 . Foreign aid must be conscious of what it can achieve.3. Legal reform is a highly sensitive topic, which can easily interfere with political issues.

LESSONSLEARNED ANDRECOMMENDATIONS

The report concludes with a survey of lessons learned

from foreign involvement in legal reform projects in Russia. These lessons are grouped under fourheadings: (1) Philosophy, (2) Planning, (3) Implementation, and (4) Follow-through:

I. PHILOSOPHY

l Criminal law and human rights programs deserve as much attention as commercial lawprograms.

l The demand side of law needs as much attention as the supply side.l Smaller projects tend to be more effective than larger projects.l One of the most valuable contributions that international agencies can make to the field of

legal reform in Russia is to fund innovative thinking, while not losing sight of provenprograms.

l The importation of Western models and ideas should follow the moderate path of improvingthe existing institutions rather than attempting a radical transformation.

l International aid agencies should not play a role in developing Russian policy.l Trips to the West should be limited to those who will eventually train others in order to share

the knowledge gained by their sojourn abroad and multiply the effect of such trips.

Recommendations:1 . Projects should be instituted which train local organizations in governmental processes, how

to write legislation, and how to interpret legislation.2 . Local commitment to projects should be sought through matching funding, cash or in-kind;

personal or institutional reputations, assurances of time, etc.

II. PLANNING

l Donor coordination needs to be improved.l An important facet in the implementation of legal reform projects is the development of

relationships with Russian individuals who are committed to reform over the long run.l Legal reform projects should involve large amounts of local involvement from the design

stage onward in order to ensure Russian ownership of the projects.l Measures need to be taken to guarantee that pilot projects funded with the underlying

“innovative thinking” strategy outlined above are replicable.l International aid agencies should be aware that the current political and economic situation

in Russia makes attempts at reform of any type difficult to enact and sustain.l Keep realistic expectations for what foreign assistance can accomplish.l Fund sustainable projects

Recommendations:1 . Russians from various sectors including government, press, NGO, and academia should be

brought in from outside international aid agencies in order to have some input on the choicecontractors.

III. IMPLEMENTATION

l International aid agencies were hampered in their efforts to conduct legal reform projects bya reliance on individuals who lacked sufficient language skills and intimate knowledge ofthe Russian situation.

l Hiring and retaining quality foreign individuals is essential for program success.

Recommendations:

1 . Individuals working in the field of legal reform should be knowledgeable not just of Westernsystems of law, but also the inherited Soviet system that they are attempting to change.

2 . Legal reform programs should rely less on the role of lawyers who for various reasons canbe unsuited to be solely responsible for these programs.

3 . Funding to indigenous NGOs should be limited to two or three related projects to preventorganizations from becoming huge grant-receiving machines.

4 . When hiring and awarding contracts, international aid agencies should give preference toindividuals and organizations that have a demonstrated expertise in the Russian languageand intimate knowledge of Russia.

IV. FOLLOW-THROUGH

l Tight monitoring and evaluation mechanisms and reporting requirements by fundingagencies when applied to local partners can have valuable institutional strengtheningbenefits.

Recommendations:

1 . Outside companies should do regular audits of contractors and partner agencies. Theseaudits should be not financial audits so much as programmatic.

2 . Evaluations and reports should be made available to the Russian population. As it standsnow, it is very difficult for the typical Russian to know what projects are being implementedand how successful they are. In the interest of the very same transparency whichinternational aid agencies request from partners, they themselves should make suchinformation widely available through web sites and easily obtainable reports translated intoRussian.

3 . Reporting, monitoring and evaluation procedures for local CSOs and NGOs should betightened.

4 . Move the reporting requirements away from a the false security of over reliance on numbers,to a more narrative structure that allows for the fuzziness of causal links. This is especiallytrue when trying to link economic behavior to legal changes. The causal links are not directbetween the two; they affect each other mutually.

This report is the culmination of a semester-long policy workshop conducted at the Woodrow WilsonSchool of Public and International Affairs at Princeton University. Nine graduate students of varyingbackgrounds took part in the workshop and contributed to the production of this report. The goal of theworkshop was to analyze the role of international aid agencies in legal reform projects conducted in theRussian Federation since the fall of the Soviet Union. We took a practical rather than an academicapproach, examining legal reform projects conducted in the past and present in an attempt to determinethe challenges to legal reform in Russia, strategies for meeting those challenges, and what lessons can beapplied to future projects.

To accomplish these tasks, we conducted research both in the United States and in Moscow. Theresearch in the United States included interviews with various actors in the field of legal reform,research in primary and secondary sources, and consultations with our project advisor, Dr. StephenHolmes. Fieldwork in the Russian Federation gave us valuable first hand exposure to legal reformprojects through interviews with more than thirty individuals representing the press, government,international aid workers, non-governmental organizations (NGOs), aid contractors, human rightsworkers, lawyers, judges, and court administrators. The findings from the research and fieldwork werethen organized into this report. The organization of the report is as follows:

l Background of Legal Reform ProjectsAn understanding of the history and theory places the Russian experience in context, illustratingfeatures that make the Russian transformation unique as well as those it shares in common withother states. This section looks at the history of legal reform projects in other parts of the worldin order to gain an understanding of past successes and failures. It also examines the theoreticalunderpinnings of legal reform programs.

l Overview of ProjectsNumerous private foundations and governmental agencies from around the world are or haveengaged in legal reform projects in Russia. This section provides a broad overview of thoseinstitutions and the types of programs they support.

l Supply of Foreign AssistanceThe role of donors in Russia has been a subject of much discussion. The purpose of this sectionis to broadly analyze the advent and evolution of donors over the past few years, the processesthey employed in designing and implementing projects, and the constraints they faced.

l Domestic ConstraintsThe political and economic conditions that exist in Russia present complex challenges to anyinstitution that wishes to involve itself in legal reform. The first subsection examines thedifficulties surrounding reform of criminal law, with the issue of pre-trial detention as anillustrative example. The second subsection looks at problems associated with incentivestructures for legal reform, using software copyright law as an illustrative example.

l Case Study of the United States Agency for International Development (USAID)USAID has been one of the major players in legal reform since 1992. Justly or unjustly, it hasalso been the target of much criticism. This section looks closely at USAID’s efforts in the fieldof legal reform - its philosophy, constraints, strengths, and weaknesses.

10

l Case Study of the World BankLegal reform projects are relatively new to the World Bank and, compared to USAID and otherforeign development agencies, the World Bank has taken a cautious and slow approach inRussia. Taken into account the role of the World Bank, this section details its approach to legalreform in Russia and discusses its implications.

l Lessons learned and recommendationsCulling lessons from all of the research we have done over the course of the semester, therecommendations and lessons learned are broken down into four categories: philosophy,planning, implementation, and follow-through. Both the recommendations and the lessons aremeant to be generally applicable to any agency that wishes to engage in legal reform in Russia.

1 1

BACXGROUNDOFLEGALREFORMPROJECTS

An understanding of the history and theory places the Russian experience in context, illustrating featuresthat make the Russian transformation unique as well as those it shares in common with other states. Thissection looks at the history of legal reform projects in other parts of the world in order to gain anunderstanding of past successes and failures. It also examines the theoretical underpinnings of legalreform programs.

I. INTRODUCTION

Neither legal reform projects nor their particular manifestations in Russia materialized out of thin air.The purpose of this section is to provide background on the history of legal reform projects. The reportdoes this in order to gain an understanding of the following:

l The theories and philosophies that underlie these projects.l The changes that have occurred in legal reform projects.l Insights into the strengths and weaknesses of these projects.l Motivations of institutions and practitioners involved in such projects.

In order to fulfill these objectives, this section is divided into four additional subsections:

l Legal reform projects in the 1960s and 70s.Various international factors, including the Cold War and the end of colonial rule in much ofthe world, coincided with optimism about the ability of the developed states to lift thedeveloping ones out of poverty. Consequently, a large amount of money was available fordevelopment projects in general, including legal reform.

l Legal reform in the 1980s and 90s.Despite earlier misgivings, by the late 80s and early 90s legal reform projects had gainedrenewed strength. This was due in large part to the massive changes that occurred in EasternEurope and the former Soviet Union. Moreover, legal reform is also a component of“democratization” programs conducted by the United States Agency for InternationalDevelopment (USAID).

9 The past versus the present.This subsection compares and contrasts legal reform projects from the time periodsmentioned above.

0 Section conclusion.

II. LEGAL REFORM PROJECTS IN THE 1960s AND 70s.

Most of the programs known today as legal reform or technical legal assistance would have previouslyfallen under the rubric of legal development projects. This may primarily be a question of semantics.However, the differences between the various terms indicate changing views and philosophies of theseprograms. Certain phrases, such as legal reform and technical legal assistance that are common incurrent parlance reflect a utilitarian approach. The phrase law and development, prevalent until the mid-

12

1DI11DIIIIIDDIIII

70s is indicative of a more expansive view of the role of law in the development process. For purposesof clarity, this report will follow common practice by using the term legal reform.

During the 1970s many private and public organizations such as the American Bar Association (ABA),the International Legal Center (ILC), and various law schools, .supported legal reform programs.Practitioners viewed the law not merely as a means of facilitating economic and social development;they viewed it as a necessary precursor, which would accelerate economic development whileimproving social conditions for the recipient population. This grand view reflected the optimismsurrounding the field of development in general. It was also a reflection of a certain fuzziness inthinking with regard to legal reform projects. Definitions of such projects became so amorphous thatthey were used to refer to activities that strictly speaking had little to do with legal reform.

Optimism in legal reform projects turned out to be excessive. By the mid-1970s dissatisfaction withlegal reform projects exposed the weakness of their theoretical underpinnings. Legal reform receded inimportance among development agencies and was revisited only occasionally by academics.

1. The Rise of Legal Reform.

Various factors account for the rise of legal reform projects in the 1960s. These include:

l The Development Decade. It was during this time of great optimism regarding themodernization of developing countries that international aid agencies first rose toprominence. Aware of the success of the Marshall Plan in Europe, these agencies wereconfident of their abilities to assist other regions achieve greater economic and socialdevelopment.

l The quantity of money available for development projects. Because of the optimism andconfidence of the period, a great deal of money from foreign sources was available for alltypes of development projects, including non-traditional ones such as legal reform. Theamount of money available attracted many lawyers and law academics into the field ofdevelopment.

l Title Hof the U.S. Foreign Aid Bill of 1966. This states that USAID will assure:“maximum participation in the task of economic development on the part of the people ofthe developing countries, through the encouragement of democratic, private, and localinstitutions.” This mandate from Congress, which sought to increase the participatory natureof USAID programs, opened funding to new types of projects and players. Its promotersportrayed legal reform as essential to the achievement of truly democratic institutions.

l Decolonization. Related to the above point is the number of states that had recently gainedtheir independence from the colonial powers. Legal reform practitioners assumed that thosestates would need assistance through the development process.

l Belief in the inevitability of modernization. A teleological element infused thinking aboutdevelopment in this period. Analysts and program planners saw development as an almostinevitable process that could be broken down into discreet stages. The role of law was thento support and facilitate the transition between those stages. Law would guarantee peace byameliorating the tensions invoked by modernization.’

’ For further discussion see Franck.

13

l Anticommunist ideology. Not only were development institutions to assist states in theireconomic development, they were to demonstrate the superiority of the Western, usuallyAmerican, political system. Rule of law was what separated the United States fromcommunist countries.*

2. From the Field to the Classroom.

Legal reform began in the field and moved to the classroom. As agencies instituted more projects thatcontained a legal element, they looked to academics to provide them with the theoretical framework thatwould justify the existence of legal reform projects. Practicing lawyers were themselves unsuited tosuch a task; by their nature, they are more concerned with the practical aspects of law than thetheoretical.

Despite their efforts, scholars were never completely successful in efforts to establish legal reform as anacademic field. Failure to do so may help explain the disenchantment with legal reform projects in themid- 1970s. The causal link between law and economic and political development; the timing of legal,economic, and social reform; and the relevance of legal reform - these are all issues that are still open todebate. It seems as if practitioners, driven by the imperatives of post-communist reform conducted on alarge scale, are content to view the law as purely a practical tool without understanding the complicatedrelationship between political, economic, and legal reform.

In essence, the theory of law and development rested on the assumption that a strong legal foundationwould serve as a springboard to subsequent economic development. This understanding of theinteraction between legal reform had one large flaw - it was not demonstrably true. As one academicindicates in his examination of the work of Max Weber, in the Western experience, political, economic,and legal reform were simultaneous processes. They were mutually supporting; legal reform was asdependent on economic change as economic development was dependent on legal change.3

Even so, legal theorists continued to call mistakenly upon Weber in order to justify legal reformprojects. This exposed several other weaknesses. The first was that Weber describes specific conditionsin Europe that did not exist in the states in which legal reform projects existed. The second was thattheorists were caught in the paradox of endorsing an evolutionary approach but at the same time callingfor reform. Otherwise, they would have theorized the law practitioners out of work.

Underlying the evolutionary understanding of social, political, and legal reform is the assumption that anadequate legal framework is necessary for the establishment of Western-style liberal democracy. Thisindicates the theorists’ assumption of a causal link between legal reform projects and democratization.It also contains some ideological elements that betray the assumptions’ bias towards the American legalsystem.

As planners increasingly viewed law as an important mechanism for change, lawyers became thesuggested agents of those changes. They were the “handmaidens of justice” and the “technicians of

’ For further discussion of the lawyer as ideological missionary see Gardner’s Legal Imperialism pp 35-8.3 Trubek 15-6. See also Kathryn Hendley in Legal Development in Post-Soviet Russia which examines Weber’sarguments that modem European law had its roots in political struggle. According to her, Weber did not see theestablishment of the Western legal tradition as inevitable; states can get “stuck” at certain points in their legaldevelopment. This is relevant in development work because some theorists view the role of outside actors to help suchstates become “unstuck.”

14

democracy.“4 One academic’s optimism regarding the abilities of lawyers is such that he writes thatnon-lawyers may assume lawyerly roles but only if they acquire “quasilegal skills”.5 Nowhere does hemake mention of any additional skills that lawyers must obtain to work in the development field.Lawyers, because of their supposed ability to negotiate settlements that provided maximum benefits andminimal costs, were the ideal agents to balance the tensions created by development projects.

Legal education became an important part of the legal reform Iield.6 American lawyers were sent todeveloping countries to train indigenous lawyers in the role of social engineer. This role was to use thelaw as an instrument to proactively and purposefully achieve some social or political end. Implied inthis task was the understanding that law was modular and portable. Like a kitchen appliance, legalinstitutions and techniques could be unplugged in the United States, carried to Chile or Brazil andplugged in there.

Enthusiasm regarding legal reform faded away by the mid-7Os, primarily due to the inherent weaknessesof the projects as designed. Some of these weaknesses include:

l Lack of cultural awareness. American lawyers were not equipped to carry out many legalreform projects. Too convinced of the superiority and transferability of the Americanmodel, they lacked the understanding of local conditions necessary for the successfulimplementation of programs.

l Lack of an explanatory theory. As indicated above, the theoretical justifications of legalreform projects were weak.

l Rejection ofprojects by recipient states. Many lawyers and institutions in developingcountries refused to participate in such programs for a variety of reasons. These range fromsuspicion of U.S. imperialism to inertia that made them unreceptive to the role of socialengineer.7

l Elite manipulation of law. Development professionals realized that even neutral laws couldbe manipulated by elites to preserve their interests. Lawyers themselves were oftenrepresentatives of privileged classes and so were not inclined to undertake the role of thesocial engineer if it jeopardized the prevailing social order.

l Lack of a causal link between law and economic development. A clear causal connectionwas never established between legal and economic development. This is due in part to theweaknesses mentioned above. However, the relationship is complex and still subject todebate today.

III. LEGAL REFORM IN THE 1980s AND 90s

In the mid-1970s the field of legal reform entered a period of malaise that extended through the late80s. Law became an appendage to such issues as the role of multilaterals, foreign investment, and

4 Malone 242.’ Franck 778.6 Gardner 3-26.’ ibid 2 10-2.

15

international tourism. Discussion about law came to be dominated by peripheral topics such asinternationalism and the new global order.

1. New Approaches

Dependency theory offered a new perspective in looking at the role of law. According to the theory, theproblem with institutions of developing countries was not that they were underdeveloped; rather, theproblem was that they were structured to meet the demands of the developed societies. The state cannotact independently on behalf of its citizens; it is subservient to external forces. Dependency theoristsviewed law as a means of reinforcing the subservient position of developing states.

Another view of the state and state institutions, which disagreed with dependency theory, was put forthby Hemando de Soto in his book The Other Path. Many aspects of his work coincided with neoliberalideas regarding the minimal role for the state in economic development. De Soto went beyond merelysaying that state institutions are incapable of stimulating economic growth. According to him, state . .institutions actively impede growth. The law was neither a neutral force that could be used to check thepower of the state nor a link between local bourgeoisie and international capital. The law was the meansby which the state maintained its supremacy over private enterprise through unnecessary regulation,impenetrable bureaucracies, and institutional indifference.

2. Reemergence of Legal Reform Projects

While de Soto’s efforts may have reflected how neoliberal economists viewed the state, neither his worknor neoliberalism by itself was enough to resurrect the field of legal reform, by this time usually knownby the more modest terms “legal reform” or “legal technical assistance.” The other factors include:

l Political changes in Eastern Europe and the dissolution of the Soviet Union. This factor isprobably most important in the resurgence of legal reform projects. Seemingly overnight, awhole host of countries abandoned the philosophies which had previously guided theirpolitical and economic systems.

l Desire to consolidate political and economic advances in other areas of the world, primarilyAsia and Latin America. Many of the Asian and Latin American states have instituted moresuperficial elements of democratic reform such as free elections and reworked constitutions.Now they are seeking to solidify democratic regimes and deepen economic reforms.

l Process of globalization. International investors and development agencies are forcingdeveloping states to become more transparent, revise contract law, and improve regulation.

l Increase in funding levels. Along with this resurgence of interest in internationaldevelopment and the increasing prominence of the World Bank and the IMF, came anincrease in the amount of money available for legal reform projects.

l Rise of democratization programs by USAID. Democracy programming in their presentform began in Central America as a response to civil unrest that existed in the 80s. It waspart of the broader policy response to leftist insurgencies. As the Cold War ended, suchprojects spread through Latin America and Asia.8

* Carothers Democracy Assistance 111-2.

16

IV. THE PAST VERSUS THE PRESENT

There are various similarities between the legal reform programs of the 1960s and 70s and those of the1980s and 90s. Some of these similarities include a continued reliance on lawyers for projectdevelopment and implementation and lack of a theoretical framework. However, there are also somefundamental differences, which are summed up in the following table:

Table 1: A Comparison of Legal Reform Projects Across the Decades

Market is the target.Wary of the distortionary effects that could becaused by the state, institutions retooled legalreform projects to concentrate on the freeoperation of the market system.

Goal is market economy.A free market system will spur the economicdevelopment that will improve the lives of allcitizens.

Law is vassive.Once the free market economy is established,law’s principal responsibility is to not interferewith its smooth operation.

Lawvers can cause distortions.This is a more tempered view of the role oflawyers. They are still important, but in a muchmore limited sphere.

Reductionist view.A recognition that the law does have certainlimitations.

World Bank-led.Although USAID is still greatly involved in suchprojects, the World Bank has gained much moreinfluence through the leverage it exercises withloan conditionality. Models continue to bedrawn heavily from the West.

17

V. CONCLUSION

Perhaps one of the most puzzling aspects of legal reform in Russia is how individuals and agenciesinvolved could have been so optimistic about the prospects for such reform in the early 1990s. In onesense it is understandable that they were swept up in the wave of euphoria that accompanied themomentous historical changes of the moment. However, in doing so, they ignored the history of legalreform projects. An examination of that history, which shows that such projects are extremely difficultto implement even under the best of circumstances, might have made them more guarded in theirpredictions.

It could be argued that the case of the post-communist countries was much different than that of thedeveloping countries with which international aid agencies were more accustomed to working. It is truethat many of the challenges were, and continue to be, unique. But that begs the question of whyinstitutions committed many of the same errors that led to disenchantment with legal reform projects inthe mid- 1970s. Some of these errors include: a lack of cultural understanding and sympathy,overconfidence in the superiority of foreign institutions, a weak understanding of the causal linksbetween legal and economic reform, and an overly technical approach that ignored political realities onthe ground.

This may have been the biggest error of legal reform in Russia - the belief that foreign aid agencieswere embarking on a new and uncharted course in the field of development when in fact much of thecourse had already been mapped out for them. Hopefully, the same mistakes will not continue to bemade.

1 8

RANGEOFPROJECTS

Numerous private foundations and governmental agencies from around the world are or have engaged inlegal reform projects in Russia. This section provides a broad overview of those institutions and thetypes of programs they support.

I. INTRODUCTION

Since the end of the Cold War, Russia has received billions of dollars in aid and development assistancefrom international institutions, foreign governments, foundations, and NGO’s. Legal reform assistanceis one component of this overall effort. The funding of rule of law projects in the Russian Federationwas an outgrowth both of a Russian desire to overcome its Soviet legal system and the view of foreigngovernments and business interests that legal reform was essential to stabilizing Russia’s economy andattracting foreign investment.

Because this report focuses on the funding efforts of outsiders, it is easy to lose sight of the fact thatRussians were usually the central actors in implementing legal reform, from Constitution drafting topassing of basic commercial laws to court reform. Indeed, the most significant reforms to the legalsystem, such as revising the Civil and Criminal Codes or setting up new institutions such as the JudicialDepartment, often required a Duma vote or a Presidential decree. Outside actors have played a smaller,but still important, role in providing funding in certain key areas.

Westerners have funded a large variety of legal reform projects in Russia. Projects have cost between afew thousand dollars and several million, they have been conducted in Moscow in the regions, and theyhave involved everything from assistance in formulating major laws to training judges to providingbooks to law school libraries. In order to glean lessons from eight years of such projects and to makerecommendations for improvements, it is necessary to understand the full range and scope of projectsthat have been conducted.

Legal reform projects are rarely implemented by the agency that funds them. Often, there is anintermediary organization which receives grant money, and then yet another organization, oftenRussian, which actually conducts the implementation of the project. The World Bank, for example, isfunding the Russian Foundation for Legal Reform (RFLR) a Moscow-based NGO, which conductsjudicial training and legal education projects, usually by making grants to other Russian organizations,such as law schools. Similarly, USAID funneled much of its legal reform money through the HarvardInstitute for International Development (HIID), which helped to set up a Russian organization, theInstitute for a Law Based Economy (ILBE), which advised on legislative drafting and commercial lawdevelopment. With so many actors involved in any given project, complicated issues of coordination,overlapping responsibilities, and principal-agent tensions have been common in the legal reformassistance effort.

Legal reform can be usefully thought of as a three-way project between funders, intermediaries, andrecipients, each with its own interests. While the number of ultimate recipients of aid is too large to listthose organizations here, following are short descriptions of the major funders and intermediaries in theRussian legal reform effort, as well as the types of projects conducted.

1 9

II. FUNDERS

USAID: The United States Agency for International Development (USAID) has been a major source ofdevelopment funding for Russia. In its FY98 budget request, USAID requested US$241 million forRussia, most of which will go to privatization, land reform, business development, and free mediaprojects. About US$l 1.5 million is specifically targeted for legal reform projects.’ USAID has twoumbrella projects under which legal reform assistance has been provided, the Democracy Program, andthe Privatization Program. USAID funding for legal reform assistance to Russia has been drasticallycutback in the past two years, however, because of Congressional dissatisfaction with the pace of resultsand because of a corruption scandal involving HIID. USAID is currently funding fewer and smallerprojects than it did in the first half of the 1990’s.” USAID money has been used for projects such astraining of judges, funding of alternative dispute resolution services, creation of continuing legaleducation programs, and law school curriculum reform. Although USAID works with dozens ofcontractors in Russia, in the legal reform area it has worked principally with five intermediaries over thepast seven years HIID, ARDKhecchi, ABAKEELI, NJCKhemonics, and the Eurasia Foundation.

The World Bank: Legal reform was a new area for the World Bank in the 1990’s. In the early 1990’s,the World Bank made several grants to Russia to help draft legislation in the banking, privatization, andpetroleum areas. It also commented on legislation in the securities, bankruptcy, and commercial lawareas. i i Then, in 1996, at the request of the Russian government, the World Bank instituted its LegalReform Project, a four year, US$58 million program with four principle objectives:

1 . improving the quality of drafting of economic laws;2 . improving classification and codification of legislation to increase access to legal information;3 . improving legal education through new books, teaching materials, and teacher training,

especially in economic law fields;4 . training of judges in the courts of general jurisdiction and arbitrage court~.*~

The main intermediary for the World Bank Legal Reform Project is the Russian Foundation for LegalReform (RFLR).

TACIS: TACIS is an organization of the European Union that funds development programs in theformer Soviet Union and Mongolia. It began operations in 199 1, and is now the single largest foreigndonor for development assistance in Russia, with a budget of about 110,000,000 ECU (roughlyUS$127,413,000) about five percent of which goes toward rule of law projects.13 (Note: The WorldBank transfers more funds, but in the form of loans, not grants.) TACIS is very forthright in stating thatits goal is a stronger market in the CIS for EU goodsI and it has directed its rule of law efforts mainlytoward commercial law projects. Although TACIS has a Moscow office, most projects are supervisedout of Brussels, except for a program that provides small grants to Russian NGO’s.”

In one project, Strengthening the State of Law and Legal Education under New Market Relations,TACIS is working with the RFLR and ILBE to analyze the social, economic, and administrativeobstacles to legal reform in Russia. The project involves study tours that bring officials of the two

9 USAID web site: <http:llwww.info.usaid.govipubslcp98/eni/countries/ru.htm>.lo Interview with USAID officers. December 18, 1998.” World Bank, Technical Annex, Appendix A.” ibidI3 Interview with TACIS officer, Moscow. December 21, 1998.I4 ibid” ibid

20

I1

organizations to EU institutions, as well as assistance to the organizations in their efforts to improvelegislative drafting and implementation of laws. This project has a 4,000,OOO ECU (US$4,633,200)budget.16 The second project, Legal Protectionsfor Economic Operators, aims to strengthen legalinstitutions in the regions by training judges in economic legislation and corporate law, improving theorganization and management of selected courts, and developing and disseminating case studies forjudges. This project has a budget of 5,000,OOO ECU (US$5,791,500).” TACIS also runs a younglawyers program in which it sends Russian lawyers to work at European law firms.

III. INTERMEDIARIES

ARDKhecchi: ARDKhecchi was one of the first American companies to conduct legal reformprojects in Russia. A joint venture of Associates for Rural Development, a Vermont-based company,and the DC-based Checchi & Company Consulting, Inc., ARD/Checchi was awarded US$l2.2 millionby USAID in September 1993 to conduct several legal reform projects in Russia over the followingthree years. ” These projects included supporting curriculum changes and trial advocacy programs atRussian law schools, legal information system modernization, establishing continuing educationprograms for Russian bar associations, providing training to Commercial Court judges, andstrengthening the role of defense counsel in criminal cases. ARD/Checchi also provided computertraining and reference materials to the commercial courts and distributed educational films to judges,jurors, and the public about jury trials.i9 ARD/Checchi ceased operations in Russia in September 1997.

ABAKEELI: The American Bar Association and its partner, the Central and East European LegalInstitute, have been major recipients of USAID money targeted for the NIS. In 1992, ABAKEELIreceived a US$3.2 million grant for legal reform work in the NIS, of which about US$950,000 was usedfor Russia.20 This was spent on training for defense lawyers about jury trials, commenting on Russiandraft laws, giving equipment to Russian legal institutions, hosting exchanges, and developing a benchguide for Russian judges.2’ In August 1994, ABA/CEELI was given an additional grant of US$2.5million, of which US$700,000 was budgeted for Russia, which was spent on strengthening barassociations and developing continuing legal education programs. In addition, ABAKEELI hasestablished a program on women’s legal issues to raise awareness of domestic violence and traffickingin women. 22 Finally, ABAKEELI is working with the U.S. Department of Justice on criminal lawreform in Russia, including training prosecutors, judges, and defense attorneys, advising on criminaljustice legislation, and conducting workshops on issues such as search and seizure.

Harvard Institute for International Development (HIID): Between December 1992 and September1995, USAID provided HIID with over US$40 million for development assistance projects in Russia.23This was USAID’s largest single grant for Russian legal reform. HIID assisted in establishing aResource Secretariat for the Securities Exchange, provided commentary and drafting assistance on 19pieces of legislation and funded the Russian Privatization Center. HIID also helped to establish theILBE think tank, a Russian NGO with close ties to the government that was designed to continue legal

I6 TACIS <europa.eu.int/commfdglalcontract~info/russia~.” Ibid.‘* U.S. General Accounting Office, Promoting Democracy, Progress Report on U.S. Democratic DevelopmentAssistance to Russia, February 1996, p. 45.I9 Ibid, p. 49.

2o GAO, Promoting Democracy, p. 46.” Ibid, p. 49.22 USAID/Russia Activity Descriptions. March 31, 1998. Washington D.C, p. 75.23 GAO, Harvard Institute for International Development’s Work in Russia and Ukraine, November 1996, p. 4.

21

reform efforts once USAID ended its assistance.24 ILBE acted as an intermediary in HIID’s legislativedrafting assistance so that it would not appear that Westerners were directly advising the Duma onlegislation.25 HIID was forced to end its operations in Russia in the summer of 1996 after an internalUSAID investigation found its Moscow director and a Harvard professor had used personalrelationships for private gains. (see USAID section).

Chemonics: A DC-based contractor with extensive experience in agricultural development, Chemonicsreceived an USAID grant to fund the “Russian-American Judicial Partnership” in 1997- 1999.26 Underthis project, Chemonics is creating linkages between the U.S. National Judicial College (NJC) and theRussian court system for activities such as training commercial court staff in the new commercial codeand assisting the courts of general jurisdiction in court administration and case management.Chemonics is also working with the Russian Judicial Department to create a new Russian judicialtraining institute, the Academy of Jurisprudence. USAID anticipates that the NJC partnership willpersist even after USAID ends funding.27

RFLR: The Russian Foundation for Legal Reform is a non-governmental organization set up byseveral agencies of the Russian government in 1996 to assist the government and civil organizationswith legal reform. Once established, the RFLR was tasked to implement the World Bank loan of US$58million, and it also received US$45 million from the Russian govemment.28 The priorities of the RFLRinclude legal education, legal information, judicial training, and advising on legislation. RFLR is thelargest Russian implementing agency in the field of legal reform. RFLR has spent over two yearsfinding staff and establishing itself, however, and it is just now beginning to disburse funds in largequantities.

IV. STRATEGIES

There have been numerous other actors involved in providing legal reform assistance to Russia,including the Rockefeller, Ford, Eurasia, and Soros Foundations, as well as United Nations agencies andthe governments of the United Kingdom, Germany, France, the Netherlands, and Japan.29 There arecurrently 26 U.S. agencies providing assistance to Russia,30 many of which are involved with legalreform. The U.S. Department of Justice is conducting training for prosecutors, for example, and theU.S. Customs service is helping to professionalize Russian, customs activities.

Most legal reform projects conducted so far can be put into one of four categories:

l Legislative drafting or consultingl Judicial training and court administrationl Legal education reform, including continuing legal educationl Public education about various laws and the role of law in society

24 Ibid, p. 43.25 Ibid, p. 47.26 Chemonics <http:ilwww.chemonics.com>.” Interview with USAID officer. December 2 1, 1998.28 Interview with Vladimir Mazayev, 18, 1998.December29 World Bank, Technical Annex, B, May 2 1, 1996.Appendix3o Interview with USAID officers. December 18, 1998.

22

IIIIIIIIIIIIIIII

II

This list demonstrates that there has been a mix of “top-down” and “bottom-up” projects in Russia.HIID’s and ARD/Checchi’s work on legislative drafting, for example, was a Moscow-based attempt toreform certain areas of law, such as securities and commercial codes, deemed crucial to establishing thebasic legal framework for the economy. “Bottom-up” projects include those aimed at improving theday-to-day functioning of courts, training lawyers, and educating the public about the role of jury trialsand the role of law in society. Both approaches are important to overall reform of the Russian legalsystem. Top-down, Moscow-based reform is necessary to draft sound laws and establish an overallgovernance system for the Russian courts. Regional projects are necessary to ensure that the peoplebeing asked to implement the law Gudges, prosecutors, lawyers, jurors etc.) understand the statutes andthe role of law in society.

Operating within the four categories, the major focus of donors has been on training and technicalassistance. Donors have generally been reluctant to fund equipment, supplies, and general operatingexpenses for Russian legal institutions, mainly because of a concern for corruption and theft and becausesuch funding does not provide an impetus to reform the operations of institutions. Also, donors havefocused on commercial law projects to the near-exclusion of criminal law, prison reform, or humanrights projects. This focus stems from the commercial interests in Russia of the countries funding theprojects. Indeed, compared to the major institutional donors, private foundations such as Soros orEurasia have been more willing to fund grass-roots programs in the criminal and human rights area.

There is a lot of overlap in the types of projects being funded. Nearly every donor of legal assistance toRussia, for example, is funding some type of judicial training program. The competition betweenARD/Checchi and HIID for primacy in this area was fierce, and probably undermined the efforts of bothorganizations.31 One recipient of aid, the Ministry of Justice’s Law Academy, has received funds fromover ten different donors.32 Yet even with such overlap, coordination among donors remains a lowpriority.

Although the breadth of legal reform projects has been large, the depth of projects, measured in terms oftheir sustainability and amount of funding, has been small. Many of the legal reform projects describedabove were funded for just one or two years. Two of the largest grants for legal reform in Russia,USAID’s grants to HIID and ARlXhecchi, began and ended within about three years. Funders andintermediaries are increasingly concerned about whether their grantees will be able to continue projectsonce foreign assistance has ended. The amount of funding has also been small. The NationalEndowment for Democracy, for example, has funded about a dozen rule of law projects in Russia, butthe budget for most of these projects was under US$50,000.33are usually under US$35,000.34

The projects of the Eurasia FoundationIndeed, there has been a general trend among numerous funders,

including USAID, to finance smaller projects rather than large multi-million dollar efforts.

The question naturally arises, then, of whether legal reform projects could make a significant impact onthe establishing the rule of law in Russia. A 1996 letter from the National Democratic Institute, a DC-based NGO, to the U.S. General Accounting Office addressed this issue. After GAO reported that NDI’sparty development projects in Russia had had a “marginal” impact, ND1 countered that GAO hadmisunderstood the difference between a “marginal” impact and an impact that takes place “on themargins of’ the political process. ND1 stated that “International organizations providing democracy

3’ Chi ldress 28.32 Interview with Valentin Ershov, Pres ident , Law Academy, December 22, 1998.33 National Endowment for Democracy <www.ned.org>.34 Interview with Elena Yartsheva, Deputy Director, Eurasia Foundation Moscow. December 17, 1998.

23

development assistance must vigilantly avoid even the appearance of interference in the host country’spolitics... by its very nature all such democracy assistance is carried out on the margins.‘.”

This report generally agrees concurs that foreign assistance necessarily operates on the margins of theRussian legal reform effort. Foreign-funded legal reform projects have attempted to make small,incremental improvements to a largely dysfunctional legal system in Russia. Because of limitedresources on the part of the donors and because outsiders could not take a major role in sensitive areassuch as running courts, legal assistance has taken place in certain targeted areas, such as training,education, equipment, and curriculum reform. Meanwhile, Russians are ultimately responsible for themajor changes in laws and institutions. Evaluation of legal reform assistance projects must be madewith an understanding of the place of foreign assistance in overall Russian efforts to change its legalsystem.

35 GAO, Progress Report “U.S. Democratic Development” 78.

24

IIIIIII

II

IIIIII

II

III1

IIIIIIIIIII

SUPPLY OF FOREIGN ASSISTANCE

I. INTRODUCTION

The previous survey of existing projects demonstrates the commitment of both bilateral and multilateraldonor organizations to legal development in Russia. This section broadly analyzes the advent andevolution of donors over the past few years, with particular emphasis on the processes employed bydonors and the constraints they faced.

The section is divided into two broad components:1 . The Advent ofDonors discusses the motivation driving donors to act in Russia, and their

process of designing and implementing projects.2 . Internal Constraint Faced by Donors covers the issues of donor coordination, or lack

thereof, pressure imposed from home countries, and the organizational bureaucracy ordonors.

The topic of corruption is briefly addressed at the end of the section. Corruption is a domestic constraintand an obstacle to fully transparent cooperation between donors and their Russian counterparts. Thefact that this report does not discuss the issue in depth is a reflection on the low priority donors havegiven the issue, either as a potential project focus or as an external factor in project implementation.The authors wish to draw attention to the issue for future consideration.

While donors fancy themselves as benevolent agent of change for the host country, reality is often morecomplex. Each donor has a different set of motivation and self-interests, and they are all limited by theirown financial, technical, and institutional capacity. Arriving in Russia in the early 199Os, expatriatedevelopment specialists found themselves not in the familiar underdeveloped third world, but amisdeveloped second world society instead.36 Facing a new challenge, coupled with ii&a-agencycompetition against other development priorities, early efforts on legal development invited a barrage ofcriticism. Sensible advice was heeded over time and some adjustments have since been made.

Understandably, the environment of the Russian Federation presented challenges to donors that werebeyond their control. The following chapter on domestic constraints delves deeper into this topic.Reflecting on the past seven years of reform, former Prime Minister Sergei Kiriyenko states that Russiahas been operating under a virtual economy, which in turns has given rise to virtual politics.37 In avirtual economy, almost every aspect of the system - prices, sales, wages, taxes, and budgets - isdistorted.38 Similarly in the world of virtual politics, appearance belies the truth. The truth is thatdespite acquiring the shape of a nascent democracy, the substance of Russian politics remainsstubbornly traditional, based on the Soviet system of personal connections and secrecy. For well-intentioned donors engaging heavily in economic reform such as privatization and market liberalization,and in political reform including the legal aspects, this virtual reality alone would’ve cautioned the mostzealous reformer. But Western world’s euphoria at the end of the cold war gathered tremendousmomentum. Exuberance transformed into millions of dollars, pounds, and yens, money that therecipients were quite willing to receive.

36 Wedel20-22.37 Given in an address at New York University Law School by Sergei Kiriyenko. November 30, 1998.38 Gaddy 54.

25

II. THE ADVENT OF DONORSI

Donors entered the Russian Federation swiftly as the cold war ended. In 1992, the U.S. Agency forInternational Development (USAID) rushed in, and it continues to operate in 1999 still without a legallybinding treaty on bilateral assistance.39 Ford, Soros, the European Union (EU), and other bilateral and 1multilateral agencies soon followed.40 Not everyone entered in the early 1990s; UNDP, for example,was not established until 1997.

I1. Motivation of Donors

Economic consideration has been the major enticement for donors, who viewed the country of 140 1million mostly literate people with high achievements in the arts and sciences as a potential tradingpartner. Some Russian counterparts decry this motivation as selfish,41 but few interviewed staff at donororganizations are perturbed by the reality. I

Yet the motivation of donors does go beyond creating markets for their own goods. All donors want toensure macroeconomic and political stability in Russia. Germany has invested heavily in the countryand has provided billions of bank loans to Russia’s private and public sector. The US, while dominantinvestors itself, also has their sight set on extracting crude oil and gas from the Russian-influencedcountries of Central Asia via Russian pipelines.42 And the Scandinavians and Dutch are more concernedwith promoting their brand of social humanitarianism to their eastern neighbor.43

I

However for all donors, a critical aspect in their assistance to Russia is the imperative to exorcise thelegacies of communism completely. Not all donors view this goal through an ideological prism like theAmericans, but all agree, that a stable, capitalist Russia would lessen the security burden for bothEuropeans and Americans. To achieve this quest, dramatic institutional and social changes inside thecountry is required, including major revamping of the industrial sectors, social service deliveries,banking institutions, and the fundamental structure of govemment.44

2. Design of Projects

The question of which legal system - the US or the continental - should Russia adopt, surfaced as adilemma early in the discussion on legal reform among donors. The US constitutional experience isadmired for its comprehensiveness as a framework for government and the structure of politics, also forits resilience and adaptability over cycles of crises and stability. But the fact that the American modeldepends highly on judicial review for legal interpretation eventually proves too difficult for a society inwhich the judiciary has neither the prestige nor the experience to command such authority.45 Mostdevelopmental experts consider this a dead issue by 1998; the continental system is favored, andbesides, donors finally realize that the Russians have the competence to distinguish and adapt usefulforeign experiences for themselves.

39 Interview with Ron Childress, previously with ARDlChecci. December 4, 1998.4o I am referring only to development agencies with a mandate to engage Russia after the cold war. Organizations suchas UNHCR have always had a different focus different from that of this group. I4’ Interview with a consultant to RFLR. December 22, 1998.42 While there are talks of building new pipelines, two out of the three existing pipelines out of the region pass throughthe Russia Federat ion.43 Interview with a project staff at UNDP. December 23, 1998.44 Wede121.45 Sharlet 59-6 1.

26

The dilemma was a significant point of contention in the beginning because most early projectsconsisted of training and technical assistance provided to replicate the system of the donor country.Donors-initiated workshops and lectures were the preferred methods of transferring legal ideas. Andforeign legal experts did initially share the mentality that donors know best.46

The practice of “mirror-imaging” has subsided somewhat over the years. Donors have gained more in-country experience and Russians have become more assertive in their demands for appropriateassistance. All project design process now begins with some form of consultation with Russiancounterparts. USAID terms its approach “partnership and cooperation, ” EU/TACIS calls itself “client-centered,” and everyone else uses similarly inclusive vocabularies. The heightened awareness thatdevelopment expertise cannot be uncritically transplanted globally led to more recruitment andretainment of Russians and Russian experts.

One cautionary note worth mentioning in the project design process is the choice of Russiancounterparts. In some interviews with NGOs and contractors, donors are accused of selectingcounterparts rather indiscriminately. The counterparts are usually considered legitimate as long as theyare Russians and are attached to a known entity, e.g. a government Ministry or an academic institution.For example, the Law Academy, which already receives funding from just about every imaginablesource, opened a new law school in Moscow in 1998. Some cynically called it a ploy to get additionalfunding.47 As donors become more Russia-savvy, they should take into account that their Russiancounterparts are also becoming more sophisticated in advancing their own agenda.

3. Implementation of Projects

With limited human resources, donors usually hire contractors to carry out projects. This system allowsdonors to take advantage of the array of expertise offered by contractors. Individual specialization ofcontractors enables projects to cover everything from constitutional drafting to gender law advocacy.But in practice, donors and contractors have a symbiotic and codependent relationship that is notconducive to constructive feedback.48 The fierce competition for grants precludes contractors fromproviding realistic assessment of the project’s progress for fear of losing the next bid. And the close-knit circle of donors and contractors becomes a clique that few outsiders have assessed to. Criticismwas voiced against both USAID and EIYTACIS for their limited choice of contracting partners.49 TheUSAID chapter will discuss this in greater detail.

Another difficult aspect of implementing project is monitoring its progress and evaluating itsachievements. Quantifiable benchmarks used by USAID is useful for some projects such as trainingjudges and dispersing text books, but it does not measure changes in knowledge and attitude toward thelegal system too we11.50

In monitoring and evaluation, the core issue for supervisory agencies lies in the trade-off betweenflexibility and accountability. A small Russian NGO that receives funding from multiple sourcesdescribes the Eurasia Foundation as a demanding and cumbersome granter because of its reportingrequirement. Ford Foundation plays the role of a good cop in this scenario with minimal stringsattached. From the grant recipient perspective, Eurasia Foundation is being bureaucratic and it micro-

46 Interview with staff members ABA. November 23, 1998.a t47 Interview with administrative staff at the Law Academy. December 22, 1998.48 Interview with Ron Childress, previously with ARDiChecci. December 4, 1998.4g Interview with project officer at UNDP. December 23, 1998.So Interview with project staff at USAID. December 18, 1998.

27

manages5’ In a follow-up interview with the interim Director of Eurasia Foundation, those samerequired forms and reports were attributed to the organization’s programmatic and administrativesuccess.52 Close monitoring is reported to minimize corruption and it provides the necessary qualitativeinput for designing new projects. Donors note that as they have become more demanding, NGOs havebecome more result oriented, more focused on specific goals, and emphasized more on developing theirorganization capacity to meet those goals. This is a far cry, they say, from the dearth of quality partnersavailable back in 1992-93.

III. INTERNAL CONSTRAINTS FACED BY DONORS

While Russia may not be the easiest environment to work in, there are factors specific to donors thatimpede their development effort.

1. Donor Coordination

Lack of donor coordination seems to be one area everyone can agree on. Perhaps because this is aperennial problem in development and because each can put the blame on the others. A staff person atUNDP illustrated this point with the child juvenile system project. When a successful existing .UNICEFAJNDP project needed assistance to continue, interested donors were asked to collaborate.Instead of collaborating however, other donors initiated their own projects. Today, there are threedifferent child juvenile justice projects that are reinventing the same wheel, replicating the same efforts,and wasting scarce resources.53

There is a quarterly democracy roundtable held by USAID/Moscow meant to promote donorcoordination in both strategies and implementation. But by all accounts, its usefulness is limited beyondsharing individual agency’s work plans.54 No one interviewed can recall incidents of substantivecollaboration as a result of the meetings.

There is one scenario - when the financial benefit outweighs the marginal cost of collaboration - inwhich coordination readily happens. The Japanese delivered money to conduct situation analysis for theWorld Bank legal reform project prior to the Bank’s fund disbursement from Washington.55 Jointventure between agencies, such as between Soros Foundation and the ABA on setting up a law library,is slowly gaining currency as a way to pool human and financial capital.56 But all anecdotes indicatethat collaboration is not institutionalized, it usually happens on the ground in an ad hoc manner. Whilethose individual efforts have been successful, temporary, local, and personality-driven unions do nothave the wide reaching impact that donor coordination intend to bring about.

Part of the reason donor coordination is so difficult is because there is not an obvious choice for aleader. Among the 26 American government agencies engaged in some form of legal reform in Russia,the US Ambassador’s office is responsible for overseeing the group. UNDP, which is usually the leadagency to coordinate all UN groups in other countries, is a newcomer in Russia so UNHCR, with greaterseniority, is the UN lead.57 Many staff interviewed expressed interests in having the Russian

” Interview with Vladimir Obramkin, Moscow Center for Prison Reform. December 18, 1998.‘* Interview with staff at the Eurasia Foundation. December 17, 1998.53 Interview with project officer at UNDP. December 23, 1998.54 Interview with Alex Grigorievs, NDI. December 2 1, 1998.” Interview with project officers at the World Bank. December 22, 1998.56 Interview with staff at ABA. December 20, 1998.57 Interview with project officer at UNDP. December 23, 1998.

28

DIIIIDIIIIDIIIIIID1

government take control, similar to authority exercised under sector investment programs where hostgovernment lead and donors follow. But the experience of RFLR in coordinating branches within theRussian government, as well as the precedent of a Duma-led effort to coordinate legal drafting,58 doesnot indicate the government has either the capacity or the interest to do so at this point.

2. Donor Country Domestic Pressure

Political pressure from the donor domestic source sometimes interrupts the planning of the field office.The field office’s effort to accommodate one end can be misconstrued as arrogantly independent at theother end.

This seems to be a particular acute problem facing Americans. Congress is notorious for having aplethora of ideas and requiring tangible results in an unreasonable time frame; its original desire to“democratize” Russia within five years in 1992 is a case in point. Currently, the White House has fourinitiatives for USAID in Russia. Women and domestic violence is the brainchild of First Lady HilaryRodham Clinton, orphanages stem from a Human Rights Watch report and subsequent media attention,and the other initiatives are tuberculosis and HIV/AIDS. A USAID staff member expressed frustrationthat despite the merit of these ideas, they are extremely difficult to act upon because those issues havelittle commitments among the Russian counterparts.59 Matters are made worse because of the attentionsthe topics received, USAID has to act fast and produce some quantifiable results quickly, whereas theproper mechanism needs to be more thoughtful and less hasty.

In the research, there seems to be an abundance of examples where American domestic interestscompete directly with other development priorities. Legislative assistant to Congressman Kurt Weldon(R-PA) suggests that because the Congressman believes in developing a Russian middle class, he willpropose a private mortgage project, similar to the function of Fannie Mae in the US.6o Withoutconsidering either the need of the recipients and the logistics to carry out the project, these types ofinitiative put the donor agency and the host country in a difficult position.

3. Donor Bureaucracy

Sometimes it is not the dictate of the Washington or Brussels office, but simply the donor administrativeprocedures that are burdensome. Communication between field and home office is often poor. Onereason cited for the delay of implementing the RFLR project (discussed in greater detail in the WBsection) is because of the scrutiny at each step of the proposal and approval process by headquarter. Inaddition, RFLR reports to both the Russian government and the WB. Without clearly stated role foreach entity, the project suffered from twice the bureaucracy.6’

The organization of some donor agency maybe set up to complicate the administrative process.EU/TACIS has very little control over their projects in Moscow. The projects are in fact supervisedfrom Brussels. Explanation given was that contractors do all the work in Russia, so need for supervisionis light and manageable on a periodic basis. Yet this type of contracting system is similar across donors,and the EU system seems to favor flexibility over accountability. An informed judgement cannot bemade without knowing the effectiveness of this organizational setup. But the distance between Moscow

58 Interview with Vladimir Mazaev, RFLR. December 18 , 1998.59 Interview with staff at USAID. December 22, 1998.6o Interview with Doug Ritter, Office of Congressman Weldon (R-PA). November 24, 1998.6’ Interview with Alexei Shabarov, RFLR. December 18, 1998.

29

and Brussels alone poses some doubt about the extent of its self-proclaimed quality of being “client-centered.”

IV. CONCLUSION

The supply of foreign assistance to Russia for legal reform has been an incremental learning process.Donor organizations have tamed the initial euphoria with realism; goals have been narrowed anddelivery has been strengthened. The Deputy Chairman of Yeltsin’s Presidential Council forImprovement of Justice, who was reared under the old Soviet era, marveled at the progress that legalreform has made. Fifteen years ago, he pointed out, judicial reform as a concept could not even bediscussed. And today, the Mayor of Vladivostok could sue the President in Moscow district court, andwin. 62

Evaluation of the donor effort depends on initial expectation and the capacity to grow. Many Russiansand Russian experts interviewed were skeptical of the high hopes brought in by the first wave of donors.Academic Janine Wedel led the crusade to expose what many felt as the ignorance of donors on thelegacy of communism and enormity of the task. But even though early projects did not necessarilyachieve their stated goals, the presence of foreigners had an osmosis effect. The Russians are intelligentenough to distill lessons learned for their own benefit. Today, both UNDP and RFLR represent a newgeneration of aid in Russia. Their philosophy, organization, and processes do reflect a new maturity ona technical and institutional level. This is not to say donors are perfect, far from it. But there arereasons to be optimistic with regards to the constructive role donors can play in the future of legalreform.

1. A Note on Corruption

The next chapter on domestic constraints focuses on challenges faced by donors in the Russian context.The idea is to illuminate the difficulties in details, using commercial and criminal legal development asexamples. However, there is one particular relevant issue to be mindful regarding constraints in Russia:corruption. The topic has generated heated discussion among both donors and Russians, though fewhave proposed viable solutions.

Although corruption plagues every country, and organized criminal elements exist in many, whatdistinguishes Russia’s state of corruption is the extent to which it has penetrated into society. Whilemafia controls illegal trade elsewhere, they have “established total control over ordinary commerce” inRussia.63 Ironically, during field research in Russia, three out of the nine graduate student researcherswere arrested by the Moscow police because the officers attempted to extract bribes.

Everyone acknowledges corruption is a problem. A young Russian lawyer interviewed says that a goodlawyer in Russia would not allow his or her case to reach the court because the outcome would be toounpredictable. Jokingly, he mentions the price list for court decisions, varied by region and level ofjudicial importance.64 When given the hypothetical scenario to direct foreign assistance as they please,almost all Russian respondents voluntarily stipulated that the fund must be tightly managed and tracked.One even went so far to suggest halting the procurement of computers and expensive equipment becauseof excessive temptation for theft.

62 Interview with Mr. Vitzin, Presidential Council for Improvement of Justice. December 22, 1998.63 Thomas Remington quoting Stephen Handelman in Comrade Criminal: Russia’s New Majya,. 228.64 Interview with Vladimir Pastukhov, private lawyer. December 20, 1998.

3 0

Despite the pervasiveness of the problem, corruption is viewed as secondary priority in legaldevelopment projects among donors. Except for the Eurasia Foundation, there is no evidence of anexplicit anti-corruption project. Even more interesting is the contrasting response from donors. Mostdismissed corruption as either a problem too immense to worry about or a problem solved by increasingthe bureaucratic level of checks and balances. In one instance, a staff member so vehemently deniedever having any problem with corruption that he ended the interview by apologizing, saying he did notmean to sound “pollyannish,” but he really does not see corruption as impeding legal reform.65

This discordant view between Russians and expatriates underscore the need for dialogue. It is clear thatcorruption exists and permeates deeply into society. As an impediment to project implementation,donors seem to adapt by imposing more reporting requirements and limiting the amount of funddispersed. As a focus in legal reform, the issue does not fit neatly under any categories of legal reform.The proposed project would not be quantifiable and both design and implementation would require agreater amount of competence and ingenuity than usual.

65 Interview with project officer at ABA. November 23, 1998.

31

DOMESTIC C~NSIXAINTS

The political and economic conditions that exist in Russia present complex challenges to any institutionthat wishes to involve itself in legal reform. The first subsection examines the difficulties surroundingreform of criminal law, with the issue of pre-trial detention as an illustrative example. The secondsubsection looks at problems associated with incentive structures for legal reform, using softwarecopyright law as an illustrative example.

EXAMPLE I:CRIMINAL LAW REFORM IN RUSSIA

I. INTRODUCTION

Unrealistically high expectations have contributed significantly to the current level of disappointmentwith legal reform initiatives in Russia. The funds devoted to rule of law projects have been minusculecompared to the scale of the problems, and many projects lacked efficient planning and implementation,It is also important to remember, however that various systemic problems within the Russian systempose significant challenges even to the most effective donor. The Soviet system left behind anantiquated legal structure unsuited for democratic changes. Few citizens believe that their rights wouldbe upheld by the police and in the courtroom. Aside from a lack of popular trust and demand for law,there are institutional conflicts and immense inadequacies in the Russian legal system whose mere sizeshould make any foreign donor set moderate expectations for years to come in the Russian Federation.

As the following section on criminal law demonstrates, the Russian legal framework is still underreform, and some basic pieces of new legislation, such as the Criminal Procedures Code (CPC), havebeen in a draft form for several years. The difficulties with drafting the proper legislation revealsignificant institutional conflicts among the involved actors such as the Procuracy, the courts, the Duma,the Ministry of Justice, the police forces, and others. Any serious reform attempts must tackle thequestion of cooperation among these sectors before implementing a successful program. To the extentthat legal reform has taken place and made some progress toward a more humane system, the relevantinformation is not always available for the judges and lawyers who must apply the new laws. Thegeneral public is not always sufficiently informed about their rights. Further dimming the hopes forsuccessful legal reform, the quality of the legal education of the prosecutors, lawyers, policeinvestigators, and judges has consistently declined over the last few years. Finally, the courts are oftenunable to carry out their duties and the Ministry of Justice is often unable to implement many of thestanding legislation due to a problem that mars most of the reform initiatives: lack of resources.

In light of these facts, it is difficult to be optimistic about the prospects of successful legal reform in thearea of Russian criminal law in the near future. There have been, nevertheless, a few effective attemptsby foreign as well as domestic institutions to galvanize the process. This chapter describes the currentsituation of criminal law in Russia, provides an outline of the current laws and drafts, and describessome of the most significant problems in the areas of legal information, legal education, institutionalconflict resolution, and legal funding. The focus is on Russia’s internal problems with which all foreigndonors should be familiar before setting up projects aimed at assisting criminal law reform. Pretrialdetention, one of the central pieces of criminal systems, will serve as an example to demonstrate someof the major problems and potential fields for further improvement in the Russian legal system.

32

IIIIIIIIIIIIIIIIRIR1

DIIII1IIDIDIIIIDI

I

II. THE SYMPTOMS

Thousands of pages have been written on the various symptoms of the crisis of pretrial detention inRussia. Amnesty International’s Report, This Man-made Hell, the U.S. Department of State’s report, theMoscow Center for Prison Reform (MCPR), health organizations, small NGOs, journalists, and scholarshave verified the unacceptable conditions in prisons throughout Russia. Some of the major problemsinclude:

l Excessive arrests. Under the premises of fighting organized crime, the police usesdetention even in cases of petty crimes, such as minor thefts. Since the bailiff system isnonexistent in practice (even though there is legislation that mandates it), plea bargaining isnot formally practiced in Russia, and the courts are overwhelmed with cases, people whocommit minor crimes might remain in detention centers for several months or even for yearsin some cases.6 6

l Use of torture. The misuse of pretrial detention centers for illegal investigations and forobtaining confessions through torture is rampant. The Procuracy in Russia is responsible forthe effective administration of the law (including the statistical record keeping of successfulconvictions) and for conducting investigations, while it is also the agency that authorizesarrests in the majority of the cases. As a result, the Procuracy has a vested interest indetaining suspects until the trial starts in order to eliminate the chance for the suspect to fleefrom the region or even to obtain confessions from the detainees by force.67

l Too many prisoners, not enough facilities. Excessive detention and imprisonment lead toovercrowding, which represents one of the major problems for the criminal field. Between1991 and 1998 the number of detainees in the SIZOs, the Russian pretrial detention centers,has grown from 157,000 to 270,000 without any significant new construction and muchdeterioration in the existing buildings.68

l Tuberculosis and other illnesses. The lack of hygiene and crowded conditions leads tomore than 1000 deaths form Tuberculosis every year according to official records, which arenotorious for underreporting and do not include death soon after release or in hospitals.69

l Dilapidated, old buildings. The lack of proper ventilation frequently leads to deaths fromoxygen deprivation and provides a hotbed for bacteria in prison cells that can be as hot as120” F degrees in the summer.7o

66 Various publications address excessive arrests by the police. Among the most detailed are: Valery Abramkin, ed. “InSearch of A Solution” by the Moscow Center for Prison Reform, Moscow, 1998. And Human Rights Watch/Helsinki’s“Russia Crime or Simply Punishment? Racist Attacks by Moscow Law Enforcement” September 1995, Vo17, No. 12.67 Ibid.68Abramkin “In Search of A Solution” p. xiii and Moscow Center for Prison Reform and Ford Foundation 46.69Abramkin “ In Search of a Solution” p. xiii.” Interview with Valery Abramkin, Director of Moscow Center for Prison Reform, Moscow, December 18, 1998.

33

III. THE CAUSES

1. The Soviet LegacyI

Criminal law, as other parts of the legal system, carries a heavy burden inherited from the Soviet era 1when the courts were seen as tools of the party system inherently tied with the government. Thisfundamental lack of trust toward the legal system is substantially justified even today, since theunderfunded courts heavily rely on the local governments for their resources, leading to a serious level Iof judicial dependency. Citizens still do not ordinarily consider challenging the courts’ decisions, sincethey do not expect their rights to be upheld by the higher courts either. Nor do the citizens frequentlychallenge police actions in the court frequently for similar reasons. 7’ I

The current version of the Criminal Procedures Code, which determines the police’s rights andresponsibilities regarding arrests, the authority of judges to overview the validity of detention, the abilityof the defense attorney to become involved early in a case, and other important aspects of pre-trial and _

I

court procedures, originated in 1961 and has been amended more than 400 times. Even though theamendments contain some new elements, the Code still retains its characteristics that heavily favorconviction and place most powers into the hands of the Procuracy. As a consequence, detainees are

I

seldom released, even if the Procuracy fails to provide the sufficient documents substantiating the arrestwithin the required amount of time.72 I

2. Incomplete and Insufficient Reform of Criminal laws

Several laws that relate to crimes have been passed since 1992, including the Law on Judicial Review ofPretrial Detention (May 23, 1992), the Law Establishing Single-Judge Trials (May 29, 1992), the LawEstablishing Jury Trials (July 1993) and the Law on Bailiffs (July 1997).73 One of the most crucialelements of a criminal law system, the Criminal Procedures Code, however, has been in draft formbeing passed in and out of various drafting committees and the Duma since 1992. In the meantime, theCode’s 1961 version with its over 400 amendments continues to be applied. While several additionallaws and presidential decrees have been passed in the meantime, few of them address the procedures forarrest and other crucial aspects of pretrial detention.

The current laws relating to arrests, detentions, and judiciary review of the validity of detention stillheavily favor the Procuracy and leave little room for the defense to be involved early in the inquisitorialprocess. Even though the Law on Judicial Review of Pretrial Detention (Law of May 23 from here on)has represented a significant improvement in the system, the amended version of the CriminalProcedures Code (CPC) still includes broad grounds for arrest for the police, such as possessing “otherinformation” (aside from catching someone in illegal actions) that provides reason to suspect theindividual, without specifying what “other information” means, or if the police has reasons to believethat the suspect might flee. It also allows for custody without charges for three days, but in “dangerous”crimes it essentially allows the suspect to remain in custody until trial. Finally, after submitting chargeswithout trial, pretrial detention can last for up to three months if the investigator is unable to completethe investigation, and for an additional three months if there are “sufficient grounds to believe [that theaccused will] flee, impede the establishment of truth in the case, or engage in criminal conduct.“74

“Interview with ABA lawyer, Moscow, December 19, 1998.72 Telephone interview with Peter Solomon, Professor at the University of Toronto, December 3, 1998.73Solomon, Peter H. and Todd S. Fogelsong Appendix I.74Fogelsong 554.

DIIIIIIIIII

34

Those legal experts who participated in the drafting of the law in 1992 and were simultaneouslyinvolved with drafting the new Criminal Procedures Code worked in an optimistic atmosphere, when anew wave of legal reform initiatives were on the horizon. Lawyers from ABA were involved in theprocess, providing advice to Russian lawyers and legal scholars.75 Soon after passing the law of May23, however, the reform process halted significantly. By 1995, Sergei Pashin, one of the main authorsof the CPC draft, announced his forced resignation and that “rule of law reform in Russia is over.‘776The main reasons for the negative developments were and remain political fights and conflict betweenthe President and the Duma as well as between members of the Procuracy, the Ministry of the Interior(MVD), the Supreme Court, and other elements of the judiciary circles. The CPC draft is currentlyundergoing a second reading in the Duma, but reformist elements are already waging a fierce war toblock the passage of the Code in its current form, because in their opinion it places even more power inthe Procuracy’s and police’s hands and undermines any hope for future genuine reform in the area ofCriminal Law.”

It is not enough to focus on the passage of new laws, however, since the new codes will have no effecton the rule of law in Russia if they are not properly implemented. The question of implementation andenforcement of the new codes often reveals deep problems in the daily practice of legal reform in thecountry. There are various areas, including the availability of legal information, the education of legalemployees, the funding of legal activities, and institutional cooperation, where failures of the systemoffer little hope for dramatic improvement in the field of legal reform in the near future.

3. Insufficient and Inconsistent Legal Information

Necessary legal information - to put it bluntly - is invariably missing, and when it is available, it isoften utterly confusing. The weekly and sometimes daily changes in legal codes are almost impossibleto track for any judge, lawyer, or prosecutor. Although some databases exist, the vast majority of courtsare not equipped with computers that are linked to a network, and new versions of codes are oftenphysically cut and pasted together by the judges themselves from Ministry of Justice publications thatdo not arrive with predictable regularity through the mail.‘*

Judges are also often faced with contradiction among regional and federal laws as well as presidentialdecrees. Even though the Constitution is meant to prevail in all cases and the Supreme Court isauthorized to decide on cases involving contradictory legislation as well as to provide ‘guidance’ tolower courts, it is not “entitled to ‘interpret’ laws.“79 As a consequence, judges are not always able tomake the appropriate decisions.

Not only are basic codes often not available or difficult to interpret, but information regarding the stateand statistics of criminal procedures are unreliable or nonexistent. It is extremely difficult to assemble asubjective assessment of data related to police activities, since most materials collected by the MVD arehandled as sensitive or secret, and relying on information from journalists runs the danger of focusingon individual tragedies instead of thorough examinations of the entire system.

75 Interview with Olga Swartz, Russian State Duma: Committee for the Legislation and Judicial Reform, Moscow,December 17, 1998.761nterview with Sergei Pashin, Moscow. December 22, 1998.“Interview with Valery Abramkin. Moscow. December 19, 1998.” Interview with former ARD/Checci employee, Princeton, December 4, 1998. There have been several legal reformprojects that tried to address the problems with legal information; however, the Russian legal system is so expansive,and the problems so vast that there is ample room for improvement.79Fogelsong 568.

35

4. Legal Education: A Mixed Success

Although foreign aid has focused on legal education through several projects, the state of legaleducation related to criminal law remains disconcerting. An exodus from the ranks of the police and theProcuracy between 1989 and 1992 has left the investigatory bodies with a dire need for experts. Currentinvestigators are often fourth year undergraduate law students taking evening classes at universities andearning less than $200.00 per month.” The lack of forensic experts and investigators with a law degreecontributes significantly to the Procuracy’s failure to provide the necessary evidence for charging thesuspects or to conduct proper trials. Judiciary training also suffers from a lack of intelligent andambitious young people who want to work in the criminal field given the high potential gains fromworking in commercial law; furthermore, older judges often are not retrained according to reform stepsdue to the lack of funds for legal education.”

5. Insufficient Resources

Lack of resources, especially since the 1998 crisis, has become one of the ultimate impediments for theexecution of legal reform in the criminal field. It is the source of an innumerable amount of problemsthat could fill hundreds of pages of reports. Although only anecdotal information is available on thesubject, it is widely understood that since judges and prosecutors are not paid properly, judges becomehighly dependent on municipal authorities, and detainees with sufficient funding are more likely to bereleased on bail than those who are not. Few lawyers are willing to become public defenders who couldassist those unlawfully detained, since commercial law is a much more beneficial field with a highdemand for trained lawyers. Even though there are plans for instituting a bailiff system, which couldtake away some of the Procuracy’s exclusive control over detention, there is virtually no funding for it atthe present.** The list is endless. As long as there is no more funding provided for the legal system, it isunlikely that we will see any serious institution of reform ideas even if they exist and become part of thelegal code.

6. Institutional Conflict

Finally, one of the few problems that can not be helped with financial means is the set of intenseinstitutional conflicts between the President and the Duma, the police and the judiciary, the judiciaryand the Procuracy, the Ministry of Justice and the State-Legal Administration, and the Supreme Courtand the Regional Courts. The current rivalry among these institutions undermines the passage of thenew Criminal Procedure Code as well as the prompt execution of already existing laws and reforms.The frequent conflict between presidential decrees and constitutional acts as well as laws passed by thefederal court and the regional courts causes significant problems for judges in the current system. Theopposition of the police and the Procuracy to increased judiciary powers also leads to institutionallobbying and fighting for the passage or blocking of specific drafts and inhibits the proper functioning ofthe courts. Few of these conflicts could be helped significantly by foreign aid. The recent transfer ofauthority over wards from the MVD to the Ministry of Justice, which in effect encourages the judiciaryto work together with the prisons to improve conditions as opposed to letting the police use prisons forinvestigation purposes is a rare example of positive institutional change that can improve currentpractices. 83 These reform steps must come from within the Russian Federation and are likely to comeabout as a result of long, drawn-out tights, if at all.

“ibid 552.” Interview with Russian legal reform expert, Moscow, December 22, 1998.‘* Telephone interview with Peter Solomon, Professor at the University of Toronto, December 3, 1998.831nterview with Russian legal reform expert, Moscow, December 17, 1998.

36

IV. CONCLUSION

The field of criminal law in Russia requires much improvement in all areas ranging from the passage ofnew codes through the dissemination of information relating to reform attempts to implementation andenforcement. Foreign aid can provide assistance by consulting the drafters on the form of the newcodes, funding Russian NGOs that promote individual rights, or assisting Russian legal academies intheir educational programs. Donors must also realize, however, that the problems in Russia areimmense and often intertwined with political rivalries. It is important to try to prioritize programsaccording to their overall effect on the state of the rule of law in Russia and also with practicalconsiderations in mind. The problem-ridden Russian sector will not be able to (and should not) adoptlaws directly from the West, and providing one-time assistance to enforcement projects are unlikely toremain effective due to the intense rivalries among Russian institutions. It is essential for projects tobuild on already existing demand for law within the country, and to work not only with institutions thatare already on the path to reform but also with the elements most resistant to change, such as theProcuracy. Unless all segments of the system change with a common goal of reforming the Russianlegal system, inter-agency and institutional rivalries will undermine legal reform in the long run.

EXAMPLE II:INCENTIVE STRUCTURES IN COPYRIGHT PROTECTION REFORM

I. INTRODUCTION

One reason for the problems facing legal reform projects in Russia was the fact that expectations wereset unrealistically high, not taking into account the immensity of the internal problems as laid out in theprevious example. Another underlying reason for foreign aid mistakes centers on the mismatch betweenthe interests of the suppliers of aid and the interests of the recipients of aid, sometimes resulting in entirelegal concepts from the foreign realm being “dropped” into the local Russian context.84

This chapter examines the difficulties surrounding legal code reform, using the establishment ofcopyright protection in Russia as an example. While the foreign states have a vested commercialinterest in combating computer software piracy in Russia, locals have little motivation to adopt andadhere to anti-piracy legislation. After describing the severe problems that arise from this situation, thechapter briefly assesses recent developments in legal drafting and institutional reform pertaining tocopyright protection. It then draws upon the specific example to identify some of the causes of failure oflegal reform projects in general. This chapter culminates in recommendations of what foreign aid cando realistically for Russian legal reform.

II. THE PROBLEM: RAMPANT COMPUTER SOFTWARE PIRACY

The International Intellectual Property Alliance (IIPA) estimates that of all software sold in Russia,close to 90% is pirated. On average, it is calculated that pirates copy and resell close to one million USprograms annually. 85 The heavy volume of pirated materials results not only in huge losses for Russia-bound exporters, but also impacts the domestic economy by depriving the Russian government ofmillions in tax revenues. For the long term, rampant software piracy thwarts many possible job

84 Such as the adoption of the jury trial system.85 Vermeer 22.

37

opportunities for Russian programmers and stifles the creativity of scientists making the transition towould-be entrepreneurs.

Adopted on September 23, 1992, the “Law on the Legal Protection of Computer Programs andDatabases” (Computer Software Law) provides protection to computer software which was explicitlyrequested under the US-Russian Trade Agreement.86 According to the new law, the copyright ownerhas the right to insist upon halt of copyright infringement and to demand compensation for losses.Notably, the court has the power to confiscate and destroy pirated software although that power isseldom applied.

Even though the passage of the Computer Software Law is regarded as a progressive step, foreignexperts have expressed concern that the law leaves open too many gaps in its coverage of software.These concerns include:

l From the American perspective, it fails to increase the protection for works that were -.copyrighted before August 3, 1993. In the absence of such retroactive copyright protection,major exporters of intellectual property material continue to lose large profits due to piracyof pre-existing works.

l The law contains no provision for specific criminal penalties, only civil. Only strict and fairenforcement and the imposition of heavy criminal penalties will prompt a change inbehavior in a society where copyright infringement is rampant.

l The language of the law implies that only those software programs are protected that resultfrom an author’s “creative effort.” Being forced to evaluate computer programs for theircreativity, and given the often highly technical nature of software programs, judges havedifficulties applying the law.

III. THE CAUSES OF REFORM MISTAKES

In order to shed light on the challenges that policy makers face in their struggle to ground law in society,it is imperative to address issues such as domestic support for a legal project, the feasibility ofgenerating incentives for compliance with the law, and the capacity to enforce legislation.

1. Small Circle of Beneficiaries

Several foreign-initiated legal reform projects lack a sufficiently broad circle of domestic beneficiarieswho have an interest in passing, implementing, and enforcing the new law. As a consequence, a projectis often predestined to fail. Once donor support and funding is withdrawn, native commitment to theissue subsides. Furthermore, “empty” legal reforms feed cynicism about the legal reform in general.

The relative expedience with which the groundwork for the legal protection of computer software waslaid in Russia ignores the fact that piracy was not a pressing issue for the Russian society in the lastdecade. Why, at a time when society at large is in dire need of protection of their human rights and areformed criminal code, would anybody care about the protection of copyrights?

86 See further down.

38

The most frequently mentioned Russian benefits to combat software piracy include:

l Under the new copyright regime, authors now enjoy greater freedom to directly set up theirown contracts with publishers outside of Russia.

l The tight copyright protection, some hold, will promote creativity among scientific circles,since primary ownership rights to creations will be guaranteed. An increase in thedevelopment of software might decrease Russia’s need to import costly foreign software.87

l Some even say that higher standards will curtail the “brain drain phenomenon” - Russianscientists who are frustrated with the intellectual lack of freedom in Russia are given anincentive to remain in the country, thus contributing to the development of a strong domesticsoftware industry.88

l Russia also clearly gains benefits on the international scene. By meeting the prerequisitelevel of protection necessary to accede to the Bern Convention, Russia broadens itsparticipation in the international trade arena. Naturally, foreign firms will be more inclinedto market their software under enhanced copyright protection. Some concede that thisinflow of foreign new technology will allow Russia to better compete on the internationalmarket.

One of the difficulties with the benefits mentioned above is that they are not enjoyed by wide sectors ofsociety. An additional complexity, lays in the fact that there are more people gaining from the “flaws”associated with the lack of software protection, than people benefiting from stricter software protectionlaws. Thus, while the above-mentioned benefits to copyright protection constitute positivedevelopments, they do not enjoy general support among the Russian public.

2. Outside Pressure Without Matching Domestic Demand

Oftentimes, projects are driven by the interests of the aid supplier rather than by the needs of theRussian population. Projects that cater to congressional priorities or to the interests of foreignbusinesses become foreign initiatives that lack a domestic drive which would make such effortssustainable.

The protection of software copyrights within Russia was an outside-driven initiative by foremost foreigncompanies. At the prompting of the United States, who became increasingiy concerned over therampant piracy in the Soviet Union of U.S. copyrighted works, the U.S.-Soviet Trade Agreement wassigned on June 1, 1990. The agreement prompted the Soviets to “exert their best efforts” to implementdomestic legislation so that it conformed to the standards of the Bern Convention.89 By conferring untoRussia “favorable trade status,” the U.S. devised a tool by which the Russian government is forced toadopt the priorities of the United States. Russia’s incentive for tackling the piracy dilemma was not theprotection of their own rights, but wider access to trade.

” Boffey, Christopher.*’ ibid89 Bern Convention for the Protection of Literary and Artistic Works. Russia joined the Sem Convention in March of1995.

39

3. Minimal Incentives to Comply with the Law

Projects aimed at supporting legal reform must also focus on generating incentives for upholding thelaw. Foreign-initiated reform attempts face significant opposition within the legislature or within thegeneral public if passing the legislation or complying with the given law carries significantdisadvantages. It is difficult to gain support from the bureaucracy for passing laws that transfer powerfrom the investigators to the judges, or to implement tax legislation that increases the burden of thepopulation. Unless the reformers - whether foreign or Russian - make a concerted effort to createincentives for compliance, these initiatives are unlikely to have sustainable impact.

Ironically, some of the main culprits of copyright law violations, besides individuals and black-marketdealers, are government officials and civil servants. According to the chairman of the former RFSupreme Soviet’s Subcommittee on Science and New Technologies, many members of the legislativeand executive branches were opposed to the proposed copyright legislation because of its anti-piracyprovision. Having benefited from access to foreign pirated software for years (which is a wide spreadpractice in government agencies), officials were reluctant to relinquish this free access.9o

Naturally accepting pirated products is a symptom of widespread corruption endemic to the system.Combating this corruption is difficult through the mere passage of new legislation. In terms of piracylaw, as a rule, it is difficult to stop piracy and the infringement of copyrights at the consumer levelbecause powerful market forces are at play. Piracy can be most effectively combated at the supplierlevel. Therefore, educational and publicity projects that target the general consumer will show onlyminimal effects.

4. Absence of Capacity to Implement and to Enforce

Similar to the area of criminal law reform, initiatives are frequently undermined by lack of resourcesand immense logistical challenges in implementing and enforcing reformed legislation. The Russianjudiciary system is vast and significantly under-funded. Recently passed codes that are aimed at reformwill have no tangible effects without proper training of judges and enforcement officers. In order tosupply experts on new areas of law, educational capacity needs to be built.

Aside from the government’s weak commitment to copyright reform, reformers face considerablelogistical obstacles. New legislation requires the training of Russian judges, attorneys, and enforcementofficials. No case law or legal precedent for the prosecution of copyright violation of computer softwareexists. EveA with officials trained and educated in the new laws, other problems exist which hindereffective enforcement. For the Russian government there is at times an economic disincentive toenforce laws, since the costs of enforcement of infringement cases outweigh the potential collectedfines. In addition, given the current political and economic concerns of Russia, protecting intellectualproperty is not a high priority for the government.” As a result, enforcement of new laws is up to thosewho have a direct economic stake in enforcement - manufacturers, foreign organizations, and theauthors themselves.

9o ibid 229’ ibid 22. In a move which hopefully will set an example for the general public, President Yeltsin ordered thePresidential Council and State Duma to use only licensed programs.

40

IIIIIIIIDDDD11I1DI1

IV. MULTI-FACETED SOLUTIONS

A variety of channels can be accessed in the phases of project design and implementation. It isimportant that planners keep an open mind, focusing not just on reform at the government level, but toreach out to the public sector for innovative solutions. If there.are stakeholders in the field with a directinterest in the success of legal reform as it relates to them, project managers should consider working inpartnership with them. Working with people who have a stake - such as a direct commercial interest -in the outcome of the project promotes a result-oriented approach.

For example, The International Intellectual Property Agency (IIPA) agreed to conduct enforcementseminars through the Ministry of Justice for officials who administer new copyrights. In addition, inJune 1994, the first international symposium for copyright enforcement was held in Russia with thepurpose of educating businesspersons and government ministries on the topic of copyright enforcement.Efforts culminated in the issuance of a resolution recommending criminal penalties for violations ofcopyright and the formation of a permanent inter-ministry committee to oversee the enforcementregime.

Software manufacturers have attempted imaginative solutions. Realizing that the new laws alone maynot be effective in deterring piracy, software companies encourage users to purchase legitimate copiesof programs by selling at drastically lower prices. By establishing an extensive distribution networkthroughout Russia, they hope increased competition will result in more affordable products. In 1993,Microsoft offered software pirates the opportunity to become legitimate Microsoft dealers. In an effortto encourage the development of “Russitied” software programs the company planned to holdnationwide competitions for the best Russian translation of Windows.92

V. CONCLUSION

Despite the distinctiveness associated with copyright protection, some general lessons can be drawnfrom the difficulties surrounding the establishment of copyright protection laws. Foreign aid in the fieldof legal development should, in particular, realize that foreign aid initiatives can neither substitute thegovernment’s lack of will to reform nor replace the basic functions of the Russian state, including theenforcement of judgement. Foreign aid can, however, support legal reform which generates localdemand as well as enhance and cultivate the local knowledge of the rule of law. In addition, foreign aidin this particular field should keep in mind the price of passing unenforceable laws, the possibility of theemergence of political opposition to the project, and try to design strategies which are consciouslygradual rather than attempting drastic changes.

92 ibid 23.

41

CASE STUDY #l: USAID AND LEGAL REFORM IN RUSSIA

USAID has been one of the major players in legal reform since 1992. Justly or unjustly, it has also beenthe target of much criticism. This section looks closely at USAID’s efforts in the field of legal reform -its philosophy, constraints, strengths, and weaknesses.

I. INTRODUCTION

Guided by the slogan of “helping people help themselves,“93 USAID has been implementing foreign aidprograms for the U.S. government since 1961. The agency has an overall mandate to “promotesustainable development among developing and transitional countries.‘794 USAID literature as well asMichael O’Hanlon’s book by the same name, tout the fact that U.S. overseas development assistance isless than “a half penny on the federal dollar.“95

USAID believes that foreign assistance programs should represent a sound investment for the UnitedStates. The official USAID web page states that the agency “is the independent government agency thatprovides economic development and humanitarian assistance to advance U.S. economic and politicalinterests overseas ” (emphasis added).96 According to official documentation, U.S. foreign assistanceprograms are an initial investment with long-term benefits. These programs benefit every Americanthrough market expansion and trade promotion, which in turn lead to job creation and the advancementof America’s general economic well-being.97

USAID is divided into regional and functional teams. In this case study, we focus on the work of one ofthe functional divisions, the Office of Democracy, Governance, and Social Reform, and one of theregional divisions, the Office for Europe and the New Independent States.

1. USAID’s Democratization Mandate

USAID’s work in the former Soviet Union is outlined by the Freedom Support Act, which calls on theagency to provide technical assistance “on a long-term, on-site basis and emphasize the provision ofpractical management and other problem solving advice.“98

USAID’s democratization strategy rests on four pillars:

. strengthening the rule of law and respect for human rights;l developing more genuine and competitive political processes;. increasing development of a politically active civil society; andl promoting transparency and accountability in government institutions.99

USAID’s integral role as a promoter of US foreign policy objectives is evident in USAID’s fiveprincipal areas of operation: promoting economic growth; advancing democracy; delivering

93 USAID Foreign Aid at a Glance.94 USAID Strategic Plan. <http:llwww.info.usaid.gov/pubs/stratqlaSAID’s Mission:>95 A Half-Penny on the Federal Dollar.96 USAID. “About USAID.” <http:llwww.info.usaid.gov/about/>.97 USAID. Why Foreign Aid.98 Dine March, 24 1994.99 USAID. Agency Performance Report, 1997. p 40.

4 2

humanitarian assistance to victims of famine and other natural and man-made disasters; protectingpublic health and supporting family planning.

During the Clinton administration, democracy building, in particular, has been identified as a primaryobjective of US foreign policy. As Madeline Albright stated to the Senate Foreign RelationsCommittee in January 1997, “We will continue to promote and advocate democracy because we knowthat democracy is a parent to peace, and that the American constitution remains the most revolutionaryand inspiring source of change in the world.”

USAID’s programs in the area of democracy building aim at providing technical support for democratictransitions and ensuring that the agency and other donors learn from and apply the lessons fromexperiences to date and test new approaches. Much of USAID’s approach in this area involves a long-term process of working with countries to build political institutions and influence civic values andexpectations. In practice, however, political and economic constraints sometimes make it difficult forUSAID to fully implement a long-term approach. Moreover, within the area of rule of law, unlike otherprogram areas, there is limited experience within the donor community on how to address theproblems. loo

2. Rule of Law Development and Democratization

A developed rule of law is one necessary component of a fully democratic society. Yet in the tumultand change of the democratization process, developing well-functioning institutions that promote therule of law is a difficult process.

USAID provides assistance to countries seeking to create the legal foundations for democracy. Theagency argues that establishing the rule of law will provide a level playing field for citizens, businessesand civic organizations while protecting citizens against the arbitrary use of state authority. The agencyalso helps enhance the ability of the judiciary to ensure fair application of existing laws, stressing theimportance of guaranteeing equal rights for women and the disadvantaged. In one of its recent reports,USAID states:

“To strengthen the rule of law, USAID and its partners help countries implement legal reforms,improve the administration of justice and increase citizens’ access to the justice system. The agencyrecognizes that safeguarding citizens’ rights requires more than just progress with political andeconomic legislation. For example, enhancing the skills and knowledge of members of the justicesystem contributes to a fairer application of the law.““’

II. USAID-DC

1. Funding

Funding for USAID projects in Russia has been declining since 1994, and in FY96 it was down toUS$l80 million.102 According to one USAID officer in Washington, the HIID scandal “burned us bad.”The switch now is to smaller and faster projects.lo3

loo USAID. Agency Performance Report, I996 p. 13.‘O’ ibid 41.lo2 Interview with USAID officer. November 4, 1998.lo3 ibid.

43

A USAID officer in Moscow saw the bright side of lowered USAID funding:

“This is not to say that more money is better. Right now we have about US$20 million per year fordemocracy programs in Russia. We are operating on a smaller budget but are having a bigger effectthan we had in 1995 because we have culled the bad projects. We’d be unhappy if there was lessmoney, though not necessarily better off if we had more money. Our largest project now is less thanUS$3-4 million.“‘04

In 1993 USAID-Moscow experienced a modest budget increase, while FY94 was the height of U.S. aidto Russia, at US$l.2 billion.“’

Figure 1: USAID Funding By Sector FY 1998

USAID FY 1998 SectorsOther Econot ic Basic Mucatiin

Growth 6 %

Agriculture 17 %

Mcroenterprise3 %

P o p u l a t i o n21%

mxracy \

r i v a l

Infectious Diseases] LOther Health3% 2%

Source: USAID. Foreign Aid at a Glance. 1998. Washington, DC.

2. USAID Within the U.S. Government

Officially, USAID’s relationship with the U.S. State Department is healthy and “Foreign policy anddevelopment strategy are better coordinated at the policy level than ever before.” According to USAIDAdministrator Brian Atwood:

lo4 ibid December 18, 1998.lo5 ibid November 4, 1998.

44

“The cooperation between USAID and the Department of State is particularly close in the area ofdemocracy and governance assistance. The Department of State’s regional bureaus and its Bureauof Democracy, Human Rights and Labor (DRL) consult with USAID in programming the ESFregional democracy funds. USAID plays a prominent role in the DRL-chaired Democracy CoreGroup, an inter-agency council that ensures the tight coordination of policy and programs in keytransition countries. And our two agencies work together in the annual reviews of USAID’s countryprograms to further strengthen the coherence of our diplomacy and assistance.“‘06

Other observers do not share the same enthusiasm for the relationship between USAID and the StateDepartment. One USAID contractor, for example argued that USAID is highly dependent upon theState Department. According to this source, “the State Department looked at USAID as a step-child.“lo7

Many of those interviewed at USAID feel that Congress is a significant and intrusive player inUSAID’s overseas development decisions. Pressure from Congress in some cases forces USAID toimplement programs that will appease individual representatives, .but which might not lead tosustainable development. One officer interviewed said that the agency’s work is made more difficultdue to signals from Congress to act fast, and to act on issues that have little prior commitment fromRussian counterparts.‘08 Another said that now, after some awareness of the problem of Congressionalpressure, “There is no less pressure from Congress to get quick results, but there is more of anunderstanding of our situation.“‘09

The White House also has a strong effect on USAID’s programs. This comes specifically in the form ofinitiatives that originate from the White House via the Office of the Coordinator to specific USAID fieldoffices. Executive intervention combined with media hounding can be so strong as to create programswhere none previously existed. Recently a story was published in a major American magazine about thehorrible conditions in Russian orphanages. Immediately after publication, staffers from the Office of theCoordinator called USAID-Moscow and asked them to “put together something” as soon as possible.Soon afterwards journalists from the American press were calling and asking what USAID-Russia wasdoing on this issue. While the cause may be worthy, jump-start program implementation with no priorpreparation of either donor or Russian counterpart is poor policy.

Another force for coordination within the U.S. government was the Gore-Chemomyrdin Commission, ahigh-level group established by U.S. Vice President Gore and then Russian Prime Minister ViktorChemomyrdin. “It was good because people got to know each other,” said one USAID officer, “...and itprovided a channel of communication.““’

lo6 Atwood, J. Brian. “Testimony of Administrator J. Brian Atwood, USAID Administrator, Before the SenateAppropriations Subcommittee on Foreign Operations.” Washington, DC. June 9, 1998.lo Interview with USAID contractor. December 8, 1998.lo8 Interview with USAID officer. December 2 1, 1998.lo9 ibid December 18, 1998.‘lo ibid November 4, 1998.

45

Figure 2: Organizational Chart of U.S. Aid to Russia

U.S. CongressU.S. Congress

U.S. State DepartmentU.S. State Department Other U.S.Other U.S.

USAID-MoscowUSAID-Moscow

Partners/Contractors/BeneficiariesPartners/Contractors/Beneficiaries

3. Program Development at USAID

USAID’s Russia program is very political and, as one USAID officer said, “Decisions are not made on adevelopmental basis but instead on a political one.““’ Another USAID staffer in the Europe and theNewly Independent States (ENI) Privatization Office in Washington said that the issues surrounding aidto the former Soviet Union were so contentious that they led to intense competition within USAID. Thiscompetition ran specifically between the Office of the Coordinator and ENI-Privatization, on the onehand, vs. the Office of the USAID Administrator (Brian Atwood) and Democracy, Governance, andSocial Reform, on the other. Contrasting with Democracy and Governance’s supposedly more idealisticoutlook on developing the rule of law in Russia, the officer we spoke to in ENI-Privatization said, “Weneed a more business-oriented outlook. One that’s more practical and real world, not so idealistic.““*Another USAID official based in D.C. noted that delegating program development decisions to USAIDmission directors “does not mean that they [field mission directors] make the right decisions.‘13

Yet half a world away in Moscow the bureaucratic infighting in Washington could be ignored. OneUSAID-Moscow staffer had this to say about the process of developing programmatic priorities atUSAID:

“There is no competition within USAID - in fact it is the opposite. The economic departmentworks with the democracy and governance office and we work well with other offices. Bill

“I ibid November 4, 1998.‘I2 ibid November 5, 1998.‘I3 ibid November 5, 1998.

46

Taylor’s office [the Office of the Coordinator] decides the priorities... The competition ismainly in Washington.“’ l4

III. USAID-MOSCOW AND ITS PROGRAMS

USAID began its representation in Russia in December of 1992. While a taskforce was set up inWashington to establish new programs, ten USAID officers took residence in USAID’s Moscowheadquarter located close to the American Embassy. Over time, the strategic management of theseprograms increasingly shifted to Moscow. Currently, USAID-Moscow has about 140 people, amongwhom 16 are Foreign Service Officers, 60 contractors and technical experts, and the rest locally-hiredprofessionals, or Foreign Service Nationals.“’

The initial USAID programs in Russia had three components: private sector initiatives; health carereform and housing initiatives; and democratic initiatives. The former two did not directly target rule oflaw projects but rather were aimed at issues such as voucher privatization, family planning, andenhancing people’s understanding of the concept of owner ship. The democratic initiative, on the otherhand, directly incorporated rule of law programs and programs aimed at supporting Russia’s electoralsystem.

1. Suppliers of Legal Development Aid: Former Programs and Contractors/Partners

The design of the initial rule of law project relied heavily on direct technical assistance. It focused onthe Russian jurisdiction, legal professionals, and the Procuracy. Among the main objectives werelaying the foundation for an independent judiciary, while at the same time enhancing its knowledgeabout the new legal reality at play. An integral part of these programs was providing basic information,the ABC of judicial reform, to the Russian counter parts. Subsequently these early programs focusedheavily on exchanges, sending Russians to the US and American experts to Russia. This approach alsorelied on translating components of the American judicial system into Russian. Study tours, seminarsand colorful manuals were common tools. One USAID contractor characterized this method as aparachute approach in which the American way was imposed on Russia.‘16 A significant part ofUSAID’s early strategy was to support the introduction of the jury trial system in the RussianFederation.

ARD/Checchi, a Vermont-based company with extensive experience in Third World development, andHIID were awarded substantial contracts with USAID (worth US$12.2 and US$40 millionrespectively).“7 In 1994, ARD/Checchi through the Rule of law Consortium paid to reconstruct oneroom of the Law Academy as a model courtroom, with a judge’s dais, witness stand and jury box.“8Other ARDKhecchi programs, such as legal information system modernization, providing training toCommercial Court judges, and supporting curriculum changes at Russian Law schools, in particularmirrored USAID’s early focus on providing basic information. HIID, on the other hand, primarilyassisted with legal drafting.

‘I4 Ib id . December 18 , 1998.‘I5 Ib id . November 4, 1998.‘I6 Interview with USAID contractor. December 8, 1998.“’ U.S. General Accounting Office “Promoting Democracy” p 45,47.“* ARDiChecci p 5.

47

Though well-intentioned, these programs have often been criticized because they failed to adequatelytake into account the cultural, political and economic reality at play in Russia. Oftentimes, professionalsfrom the United States with substantial expertise in their particular fields, but lacking an understandingof Russia, were brought in. Similarly, components of the American judicial system, such bankruptcyprocedures and the jury trial system, were directly transferred to Russia with little consideration forRussia’s needs and desires.

2. Current Programs and Partners

A combination of demands from Russian colleagues, political changes and lessons learned have ledUSAID to change its strategy and to become more focused on building sustainable partnerships asopposed to providing basic information. According to USAID staff in Moscow, there is now apronounced focus on Russia in terms of its own needs.“’

Table 2: Current USAID-Russia Activities in the Legal Reform Area, as of March 31,199s

ProgramDevelopment ofthe LegalProfession(June, 1996 -June, 1999)Judicial ReformProgram(September, 1997- October, 1999)

EurasiaFoundation/ Crimeand CorruptionPreventionProgram(September, 1996- September,1998)SOURCE: USAID. U

U.S.Implementing

Partner(s)ABAKEELI

NationalJudicialCollege/Chemonics

EurasiaFoundation

RussianPartner(s)

defenseadvocates,practicinglawyers, and lawschoolsCouncil of Judgesof the RF, RFSupremeCommercialCourt, JudicialDepartment, andAcademy ofJurisprudence

Russian NGOsacross theRussianFederation

4ID/Russia Activity Descriptions. March 3 1-2

Project Description. continuing legal education and the

development of bar associations;l law schools;. addressing women’s legal issues.

. improving the system for continuinglegal education within theCommercial Courts;

. promoting the independence of theCourts of General Jurisdictionthrough support for the JudicialDepartment

. strengthening the internalgovernance of the courts through theCouncil of Judges;

. supporting the planned Academy ofJurisprudence.

. conduct a small grants program witha number of Russian NGOsaddressing issues of crime andcorruption prevention.

1998. Washington, DC. pp. 74-77.

‘I9 Interview with USAID officer. November 6, 1998.

48

II1III1

IIII1III

II

Currently USAID-Moscow works towards three strategic goals in the area of democratization:

I1) Fostering the emergence of a competitive, market-oriented economy in which the majority ofeconomic resources are privately owned and managed;

2) Support the transition to transparent and accountable governance and the empowerment ofcitizens through democratic political processes;

I3) Respond to humanitarian crises and strengthen the capacity to manage the human dimensionof the transition to democracy. I20

I1

Rule of law programs fall under the second strategic goal. In particular, USAID supports increased,better-informed citizens’ participation in political and economic decision-making, as well as legalsystems that better support democratic processes and market reforms. If the early philosophy was oneof providing information, the new program philosophy is based on the phasing out of technicalassistance and moving towards a more cooperative relationship with the Russian partners. Hence,USAID is focusing on Russian institutions and supporting their sustainability.

1 The use of partnership relationships is exemplified in USAID’s choice of Chemonics/National JudicialCollege (NJC) as one of its major current contractors. Unlike with the previous contract withARlYChecchi, USAID is now trying, via Chemonics a development agency with extensive experiencein agricultural development to build a sustainable relationship between the National Judicial Council inReno, Nevada, and the Russian Ministry of Justice and various other associated institutions.

I

I20 USAID/Russia FY98: Results Framework.

49

Figure 3: A Strategy for Developing the Rule of LawAt the core of USAID’s legal reform philosophy is the development of an independent judiciary, as is

present in the United States. While aware that copying and transplanting the American judicial systeminto Russia is impossible, USAID believes the U.S. system can represent a positive example of what astrong, independent judiciary is, and what it can achieve. USAlD’s specific approach to the developmentof the rule of law can be divided into four categories:1). Assisting with the creation of new legislation. This category includes providing commentary and

assistance with drafting new legislation; most programs were done during the early stages ofUSAID’s involvement in legal reform in Russia.

2). Training judges in new laws. This area covers training to commercial court judges anddissemination of information about new laws.

3). Improving the capacity of lawyers. Integral programs in this category are training for defenselawyers, strengthening bar associations and developing continuing legal education.

4). Supporting law enforcement at the grassroot level. Under this category, USAID is trying toincrease demand for law through work with grassroot groups, NGOs, and law schools. USAlD istrying to give law students practical experience and has introduced clinical law education toachieve this end. With the assistance of ABAKEELI, USAID is also trying to get women’s groupsinterested in gender law. The focus on gender law and legal clinics stems mainly from WhiteHouse initiatives, particularly from the Office of the First Lady. Other U.S. government agenciesare active on the law enforcement field, such as the U.S. Department of Justice, which conductspolice and prosecutor training, and the FBI, DEA, and the U.S. Customs Department, which havebeen building partnerships for future cooperative crime solving.

2. Judges: wasARlYChechi, is

now NJC/Chemonics

1. Commercial and Criminal Laws: was HIID (andILBE). is now Georgia State Universitv

3.PrivateBar(lawyers):

ABAKEELI

Law: citizen-

4. Enforcement: various USAID andother U.S. government agency partners

IV. DISCUSSION

1. Successes and Strengths

In view of the ongoing changes in Russia’s legal sector and measured against more realisticexpectations, USAID’s support for the rule of law has achieved several positive results. In a statementbefore the House Foreign Affairs Subcommittee on Europe and the Middle East, Thomas Dine, USAIDAssistant Administrator for Europe and the New Independent States, pointed to the following USAIDaccomplishments:

“We have helped electoral and constitutional reforms, through assistance in drafting new legislation,training of political parties, and technical expertise working with electoral commissions. Movingbeyond our initial grants to NGOs, we recently designed a new program aimed specifically atincreasing the reach and strength of Russian NGOs. We have supported development of anindependent judiciary, and the American Bar Association has helped Russia reintroduce trial by juryin nine regions for the first time since 1917. With thousands of exchanges and training,partnerships, and linkages between U.S. and NIS private citizens and non-governmentalorganizations, we have opened eyes and contacts throughout the NIS.“‘*’

2. Successes with Implementation

USAID’s support was particularly strong in the field of draft legislation. Hence, new civil andcommercial codes have been enacted in Russia with U.S. assistance. In addition, there is a strongfeeling among USAID staff that American thinking strongly influenced the development of anindependent judiciary. In particular, the unprecedented level of independence of the new JudicialDepartment was facilitated between the Administrative Office of the U.S. Courts and the leadership ofthe Russian judiciary. “The framework this [new Constitutional Law on the Judicial System] lays outcame in part from Russian exposure to the American model of judicial independence brought about inlarge part by USAID-funded rule of law programs of the past few years.“i2* Changes and trainingfurther strengthened other ties between the U.S. federal judiciary and the Russian judicial leadership.

USAID’s initial involvement was also fundamental in setting up a Russian law school association.Furthermore, USAID has achieved considerable success in increasing the standards and competence inthe legal profession. The Petrozavodsk, Karelia rule of law training center, established under theleadership of Judge Dooley of Vermont, is one example of successful US-Russia partnership. The jointwork in strengthening commercial law, bar associations, and law schools continues, implemented byfrequent visits of Russian legal professionals to the United States and U.S. representatives to Karelia.The VermontKarelia law partnership serves as a model for similar partnerships that are beginning in theLeningrad and Arkhangelsk Oblasts.‘23

3. Internal Strengths

USAID’s strengths, according to USAID staff include USAID’s decentralized structure, the budgetingstructure, and the fact that program planning is done at the local level. In particular, it is positive thatbroad authority over program design is left to the local personnel in the Russian Federation.

“I Dine, March, 24 1994.‘22 USAID “Results Review & Resource Request” p. 5 1‘23 ibid 52.

51

Although USAID Russian programs remain heavily influenced by policy decisions made inWashington, with a larger staff in Moscow, over time USAID has been able to increasingly tailor itsassistance to Russian needs and desires. Increased in-country representation has also elevated personalrelationships and thereby helped to mend some of the feelings of hostility that previously existedbetween USAID staff and their Russian counterparts. The trust has increased and a partnership likerelationship has developed.

Similarly, a close and positive partnership relationship seems to be in place between USAID-Russia andtheir in-country contractors. The vast majority of USAID’s contractors felt strongly that USAID’s staffwas very competent and easy to work with.‘24

V. Criticisms of USAID

1. The Harvard Institute of International Development (HIID)The most famous of USAID gaffes in Russia is the scandal surrounding The Harvard Institute forInternational Development (HIID) and its two employees: Harvard economics professor Andrei Shleiferand lawyer Jonathan Hay. USAID paid HIID US$43 million to advise Russian President Boris Yeltsinand his economists on setting up the legal structures for a free market capitalist economy.

An internal USAID investigation concluded that Shleifer and Hay gained influence over Russian capitalmarkets they were helping establish, and had “abused the trust of the United States government by usingpersonal relationships . . . for private gain.” USAID canceled its contract with the institute in 1997 andeliminated the final US$l4 million of a US$57 million grant. Shleifer and Hay, who were fired fromHIID (Shleifer still holds his economics position), have denied the allegations. Yet a federalinvestigation continues into whether the two HIID employees violated federal law by profiting frominvestments made in Russia’s stock market by Shleifer’s wife and Hay’s girlfriend.*25

The scandal has caused much angst and reevaluation at USAID, focused mostly on the large,unsupervised power given to one contractor. Critics of USAID’s HIID program such as Janine Wedelcontend that:

“The HIID-Chubais coterie’s near monopoly on aid in support of market reform, which they choseto realize through the support of old patronage networks and top-down reform and through thecreation of quasi-private organizations used as political machines all made it easy for theirrepresentatives to actively pursue their own interests and to work on all sides of the table both inRussia and with the donors.“‘26

One USAID officer was resentful: “Hay betrayed our trust.“‘27

2. Pressure for a “High Burn Rate”

On an issue related to USAID benchmarking, there is a lot of pressure from USAID for a high bumrate. ‘28 In a report from USAID contractor ARD/Checchi, it was noted about one particular program

‘24 Interview with USAID contractor. December 21, 1998.‘25 “Harvard-Russia Aid Funds Probed.” The Boston Globe. (AP) 1115198.‘26 Wedel, Col l i s ion and Col lus ion p 149 .‘*’ Interview with USAID officer. November 4, 1998.I28 Interview Childress, Ron. December 8, 1998.

5 2

IIII1IIII1IIIIIII1I

that, “Despite the relatively fast and businesslike pace the Rule of law Consortium (ROLC) was underenormous pressure from USAID to produce results quickly. Two quick start programs were initiated torespond to those demands.“‘29 Another contractor came up with this important lesson in dealing withUSAID: “Spend the money fast - use it or lose it.“‘30

3. Donor Coordination

A common criticism of the vast majority of foreign aid projects, is the lack of donor coordination.Unfortunately, this criticism is pertinent also for USAID’s rule of law programs. One USAID contractorrecalls the frustrating lack of donor coordination: “Coordination among the various Western assistanceprograms was initially neglected. [A U.S. rule of law delegation arrived] in a NIS capital in the wake ofa similar French group and just ahead of a Dutch team, all on their separate trajectories.““’ In addition,pressure from Congress or the media, to act fast on certain issues make it difficult for USAID tocoordinate with other donors.

To promote donor coordination, USAID hosts a quarterly donor coordination roundtable. All involvedparties are invited to attend these meetings. While this initiative is promising, in order to have a genuineimpact these meetings need to move away from the current practice of foremost using them as a venuefor information sharing about projects already in place. Rather, actors should increasingly share theplanning about future projects, in order to pool resources, incorporate lessons learned and avoid overlap.Moreover, the increased participation of Russian counterparts should be encouraged at some of thesemeetings. In addition to formal donor coordination, such as the quarterly roundtable, steps should betaken to encourage more informal coordination between USAID and other donors.

4. A Difficult Development Environment

USAID is working in a difficult development environment and facing many problems that are largelybeyond its control. Assisting with rule of law reform in the Russian Federation is an arduous andcomplex task. According to USAID Moscow staff, the major difficulties facing USAID are in the areaof program implementation. Specifically, entrenched conservatism among the Russian judiciaries, thelack of institutions, and different cultural mindsets make program implementation difficult. It is alsodifficult to get people to work together, to establish personal relationships, and to get the right people incharge of projects.‘32 In addition, the vast majority of our Russian interlocutors saw a lack of adequatefinances as their number one concern. As with other sectors of the economy, judges and court staffoften wait for salaries for months.

The latest financial crisis that started in August of 1998 has only exacerbated the problem and hashampered USAID’s strategy of making judges more indepeadent.‘33 The Russian court system recentlyunderwent a reorganization, moving from the Ministry of Justice to a new Judicial Department, headedby the Chief Justice of the Russian Supreme Court. While the courts are legally more independent, theynow have to fight for their own budget without the backing of the Ministry of Justice. Paradoxically,judicial independence is weakened as the courts go it alone in the budget battles. With governmentfunds drying up because of the financial crisis, the tight for court funds has become even harder. Yet in

I29 Rule of Law Program. Final Report. September 30, 1997. Submitted to USAID by ARD/Checchi Joint Venture.I30 Interview with USAID contractor. December 8, 1998.13’ ARD/Checchi Newsletter. Summer 1997.‘32 Interview with USAID officer. December 18, 1998.‘33 Interview with USAID officer. November 23, 1998

53

one way the financial crisis work’s to USAID’s advantage as a severely weakened ruble makesAmerican dollar-denominated programmatic funds that much more effective than before.

Even without the structural and organizational changes in the Russian judiciary, the general lack ofmoney is making it difficult for the Duma to give monies to local courts. Their independence is thusthreatened as they increasingly turn to private business and other sources to make up the financialshortfall. This causes conflicts of interest, increased corruption, and severely weakened judicialindependence.‘34 In addition, the internal USAID bureaucracy is a major day to day headache forUSAID officials,‘35 and has been referred to as “Byzantine” by several observers.

5. Benchmarks and Internal Evaluation

Unlike a foreign aid construction project or the supply of first-aid materials, it is inherently moredifficult to quantify success in the area of rule of law. Two tools USAID uses to measure progress arethe number of people receiving legal assistance as well as the use of court judgements as an alternative.to arbitrary judgement or violence as a means of dispute resolution. According to one study, in 1998,15% of people with legal problems, used the Russian court system to solve disputes, a 10% increasefrom 1996.136 USAID also hires consultants to assess the implementation of its programs.

Table 3: USAID Strategic Objective Rating

Objective Rating Evaluation Finding 1so 2.2: M e t An assessment implemented by USAID-fundedLegal Systems that Better consultants, including a new Deputy Assistant SecretarySupport Democratic Processes of Treasury, concluded that:and Market Reforms 1 ) Rule of law activities, particularly training, are

considered important by Russian colleagues, and2) that there is a large interest in strengthening the

relationship/ partnership between the U.S. andRussian judiciary. I

Source: Results and Review Resource Request. USAID/Moscow. April 1998. Pp. 7.

One USAID contractor argues that program officers seem to be rewarded not for the success ofprograms (because this is inherently difficult to measure), but for the amount of money moving out thedoor, or by showing a “can do” public image.13’ In addition, USAID’s internal management objectivesare sometimes problematic. According to one USAID staff member: “We have these R-4 strategicobjectives but there is “too much process for not too much substance.“‘38 Another observer is harsher inhis criticism of USAID program benchmarks:

“AID’s internal mania of management by objective is idiotic. Evaluation needs to say, “Are wedoing this in an open way and are we working according to our principles?” There is a big problemif evaluators are part of the aid community. You need to show that the projects are advancing yourvalues.“139

‘34 ibid.I35 ibid, December 18, 1998.‘36 USAID, Results and Review Resource Request p. 50.13’ Interview with Carothers. November 19, 1998.13* Interview with USAID officer. November 4, 1998.I39 Interview with policy analyst.

54

6. USAID’s Contractor/Partner Selection Process

According to official USAID documentation, “Close to 80% of USAID’s grants and contracts godirectly to American firms and non-government organizations.“140 Contractors are chosen through oneof three ways: 1) competition, 2) non-competitive bidding based on a contractor’s ability to do work inthe future, and 3) unsolicited proposals. The subsequent funding of the contractors/partners is eitherthrough contracts, grants, or a middle of the road cooperative arrangement.14’

One of the problems with USAID’s contractor selection process is that some contractors have strongconnections to USAID’s funder - the U.S. Congress. ABAKEELI, according to one observer, is sopowerful with Congress that USAID cannot deny them money.r4* Competition for finite USAIDresources leads potential USAID contractors to play political hardball. There is much talk amongfriends on the hill to support certain contractors, and sore losers will spread a lot of unfriendlycomments about the contract winners.‘43 Another person familiar with the contractor selection processnoted the “corridor gossiping, turfing, and big egos” visible as contractors and USAID administratorsclash for program dollars. *44

Through our interviews we also found that the USAID contracting process seriously discriminatesagainst smaller NGOs. The large “beltway bandit” ARD/Checchi, for example, had 30 days to draft itsproposal for work in Russia and used professional draft writers and accountants to prepare the proposal.Smaller NGOs do not have such resources to commit to winning contracts and may lose out, eventhough their programs may be more effective, dollar for dollar.‘45 One person acquainted with theprocess thinks that personalities and political relationships also played a decisive role in the selection ofARD/Checchi as a major USAID contractor.‘46

VI. Lessons Learned

‘I... I want to recognize unequivocally that our program in the NIS has not been without itsflaws. Some of our earIy programs reflected more a need to do something quickly and anoverdose of enthusiasm, rather than a studied response to a clearly identtfiedproblem. As youwell know, the program has not been without its critics. We have been criticizedfor doing toomuch and not enough, for working too closely with former communists, for focusing too much onthe center or on Russia and not enough outside capital cities or outside Russia, for spending toomuch on U.S. consultants and not enough directly in the NIS, andfor spending too much in theNIS. “147

In any setting, designing and implementing successful legal development projects are complex tasks.The Russian context, however, made the task even more arduous. Ingrained feelings of hostility betweenthe two countries had to be overcome and pressure from Congress and the Executive had to be appeased.In addition, USAID shared with other donors a lack of experience in legal development projects in the

I40 USAID. Why Foreign Aid.14’ Interview with USAID officer. November 4, 1998.I42 Carothers, Thomas. Princeton. November 19, 1998.‘43 Interview with USAID contractor. December 8, 1998.‘44 Interview with former USAID contractor. December 4, 1998.‘45 Interview with USAID contractor. December 8, 1998.‘46 Ibid.‘47 Dine, March, 24 1994.

55

Russian Federation. The lack of experience in the Russian context forced USAID to learn from mistakesand change its program objectives as part of a learning process.

Following is a brief discussion of the main lessons learned from USAID’s experience in legal reformprograms in the Russian Federation.

l Keep realistic expectations for what foreign assistance can accomplish and the time it will take.

USAID faces substantial pressure to achieve large results in a short time span. The five year deadlinefor forming a Russian democracy was never realistic. Measured against more realistic expectations,however, the chances of success are much higher. Hence, as one USAID contractor pointed out: “Wehave to resist the need to be instantly gratified, and get frustrated if we are not instantly gratified andrealize that this is a generational process and that we have to be there for the long hau1.“‘48

l USAID’s initial efforts in the rule of law area were hampered by an unbalanced reliance onindividuals who lacked sufficient knowledge and understanding of Russia’s needs and desires.

This criticism is particularly relevant to USAID’s early involvement in Russia. One USAID-Moscowstaff member acknowledges the unbalanced mix of individuals: “.. . we had a bad mix of junior wet-behind-the-ears lawyers and senior-level practitioners, both with little knowledge of Russia.“149 Overtime, USAID has tried to mend this problem: “[It is] correct in that in the beginning there was noexpertise on Russia - after all it had never been on our radar screen for obvious reasons related to theCold War. When it’s all brand new, what’s the alternative? Yet the principles of development are notdifferent between Russia and Latin America, though the application of those principles is. Now we havethe expertise, we can advise the Russians, and they can take the ball and run with it.““’

USAID’s experience in Russia has also highlighted the need for strong personal connections and the fitof personal chemistries: “. . . certain people even without background in the area can achieve much, butthey need a long term contract. This brings up the debate between paid contractors and volunteers.““’This lesson speaks in favor of encouraging the establishment of close personal connection. Hiringpersonnel for long-term contract and increasing in-country representation will augment this.

l Methods for internalizing lessons learned should be improved.

Although USAID has increased its efforts of internally disseminating lessons learned, for examplethrough the establishment of a Center for Democracy’52 and a USAID Development ExperienceClearinghouse, efforts in this area should be enhanced. To ensure future successes it is essential thatUSAID establishes firm mechanisms to learn from the past. In particular, it is crucial to disseminatelearning out to the field. In addition, USAID needs to better define possible conflicts of interests anddevelop strategies for dealing with these.

I48 ARDlChecchi newsletter pg. 3: quote from Morningstar‘49 Interview with USAID officer. December 2 1, 1998.Iso Interview with USAID officer. November 4, 1998.!5’ Ibid. December 18, 1998.I52 The Center for Democracy is an internal think tank associated with the Global Bureau.

56

I1DIII8IIIDII

811ID

0 Smaller projects are more effective.

The HIID scandal, in particular, taught USAID the lesson that opportunities for corruption andmismanagement increase when large sums are involved. Moreover, smaller projects are likely todecrease the pressure for high bum rates thereby indirectly promoting better defined projects.

l Support efforts aimed at building sustainable partnerships.

Difficulties with effectively and successfully implementing some of USAID’s earlier projects (such asbringing U.S. experts to Russia for short-term contracts to teach Russians the advantages of the U.S.legal system) has led USAID to shift the focus to its current strategy of building relationships that aredesigned to remain even after USAID withdraws from Russia (such as NJC). Foremost, this approach ismore sustainable in its nature. Moreover, it promotes Russian ownership and to a larger extent is forcedto take into consideration Russian needs and desires.

VII. CONCLUSION - THE FUTURE OF USAID IN RUSSIA

While officially USAID does not state how long it plans to continue working in Russia, the generalsense is that within S- 10 years USAID will have departed. When asked if USAID would be moving intothe newly-remrbished building on the American Embassy complex in Moscow, one USAID officerdoubted the possibility because USAID would probably be gone from Russia by 2005.‘53

This is troubling if true. By all accounts, Russia will not “graduate” into the ranks of the fully-democratic nations of the world in the next five years. One of the primary lessons from the politicalrevolutions in Eastern Europe and the Soviet Union is that democratization is a gradual, time-intensiveprocess. No amount of short-term aid, no matter how intense, can turn around a nation steeped for itsentire history in the culture of authoritarianism and totalitarianism, first under the tsars and then underthe Soviets. The Russian situation requires a more patient approach. Only through a long-termcommitment will foreign aid donors be able to have a meaningful and lasting impact.

Foreign aid programs promoting democratic development are only one of many factors that help to pusha society forward along the path of reform. And legal reform projects are a smaller subset of these.While sometimes unfocussed and misdirected in the past, USAID’s programs in legal reform in Russiaare a small but positive influence on the development of Russian society. By adhering to its newprogram philosophy of “smaller is better,” and by keeping expectations for change at reasonable levels,USAID’s programs in legal reform and the rule of law will continue to effectively assist Russians intheir efforts at transforming their society.

I53 Interview with USAID officer. December 2 1, 1998.

57

CASE STUDY #2: THE WORLD BANK

Legal reform projects are relatively new to the World Bank and, compared to USAID and other foreigndevelopment agencies, the Bank has taken a cautious and slow approach in Russia. Taken into accountthe role of the World Bank, this section details its approach to legal reform in Russia and discusses itsimplications.

I. PROJECT DESCRIPTION

1. Introduction

Legal development is a relatively new area for World Bank lending. It has gained in importance in the1990s with the focus of the World Bank on the role of public sector for development. Concepts such asinstitution building, good governance, anti-corruption policy, legal reform, etc. have become morefrequent in the Bank’s documents and projects. By the mid 1990~3, the World Bank became fully awarethat weak legal systems can undercut efforts to develop a modem, market oriented economy. This legalweakness was also perceived as a limiting factor to the World Bank assisted development projects. Is4

The World Bank believes that it is each country’s responsibility to set the direction of its legal reformand to assign priorities. World Bank assistance should be tailored to these needs and priorities, to theextent that they fit the Bank’s strategies. The World Bank also recognizes that legal reform is a complexand long term problem.

2. World Bank Legal Development Projects

The World Bank has changed its philosophy towards legal reform projects only in the beginning of the1990s.‘55 The majority of about a dozen of legal reform projects were approved after 1996. Theavailable project documentation indicates that geographically the focus of the World Bank was centeredon Latin America. The recipient countries ranged from Guatemala, Peru, Ecuador, Bolivia, Venezuela,and Argentina. There was one project each in Russia, China, West Bank and Gaza, and Mongolia.Currently, a legal reform project for Kazakhstan is in its final stages of preparation.‘56

Is4 Interview with World Bank officials, Princeton, 22 October 1998 and Moscow, 22 December 1998. See also WorldBank, World Development Report 1997: The State in a Changing World, New York, Oxford University Press, 1998;Rigo, Andres “Remarks by Andres Rigo, Deputy General Counsel, International Bank for Reconstruction andDevelopment (the World Bank)“, in S. Schlemmer-Schulte, “Roundtable of International Financial Institutions GeneralCounsels” (1997) 91 American Society of International Law Proceedings 199; Gray, Cheryl W., “Reforming LegalSystems in Developing and Transition Countries”, Finance & Development Vol. 34, No 3, September 1997; WorldBank, “The World Bank and Legal Technical Assistance: Initial Lessons”, Working Paper No 1414, January 1995,Belot, Irene A., “The Role of the IMF and the World bank in Rebuilding the CIS”, (1995) 9 Temple International andComparat ive Law Journal 83 .“’ See Rigo, Andres “Remarks by Andres Rigo, Deputy General Counsel, International Bank for Reconstruction andDevelopment (the World Bank)“, in S. Schlemmer-Schulte, “Roundtable of International Financial Institutions GeneralCounsels” ( 1997) 9 1 American Society of International Law Proceedings 199.‘56 On Legal reform projects of the World Bank, both proposed and approved, see World Bank, “Argentina-JudicialReform Pilot Loan”; World Bank, “Bolivia - Judicial Reform Project”; World Bank, “China - Economic Law ReformProject”; World Bank, “Ecuador - Judicial Reform Project”; World Bank, “Georgia-Judicial Reform”; World Bank,“Peru-Judicial Reform Project”; World Bank, “Poland-Judicial Reform Project” ; World Bank, “Sri Lanka-Legal andJudicial Reform Project”; World Bank, “West Bank and Gaza-Legal Development Project”; World Bank, “Yemen-Legal and Judicial Development Project”, all available from the World Bank web-site (www.worldbank.org).

5 8

DDII1I11IIDIIIIB1ID

In terms of volume of lending, the Russian Legal Reform Project is the largest loan, with US$ 58million committed by the Bank. It is followed by the Judicial Reform Projects in Poland (US$40-45million), Guatemala (US$33 million) and Peru (US$22.5 million). The Other projects are close invalue terms to US$ 10 million, or less.

Most of the Latin American projects were designed to assist the recipient countries to carry out judicialreforms. Improvement in the operation of courts, case administration procedures, expanding the use ofalternative dispute resolution, increasing the access to justice by the public, and advancement of judicialtraining were the most frequent project objectives.

The legal project in Russia, which includes areas such as legal drafting, information, education andjudicial reform, is the most complex approach to legal reform by the World Bank. The project forKazakhstan has a similar structure.

3. Genesis of the Russian Legal Reform Project

Relations between the World Bank and the Soviet Union began in 1991. In 1992, the Russian Federaticofficially joined the World Bank.‘57 At that time, there was a strong desire on the part of Westerncountries to see the World Bank become involved in,Russia. The World Bank, on its part, expected abureaucratic capacity which was not there, and which made implementation difficult. Nonetheless, by1995, the Bank had US$4.0 billion committed to Russia, most of it stuck in pipeline waiting forimplementation - there were lots of commitments, but few disbursements.‘58

on

The legal reform project evolved from a presidential decree on the rule of law, which was followed byan all-Russian conference on the rule of law. This conference served as a starting point to identify areasof priority in legal reform. In 1995, Mr. Orekhov, of the State Law Administration of the President,asked the World Bank for funding for legal reform, mostly for technical assistance. The fact that legalreform was a rare type of project for the World Bank meant that the Board of the World Bank wassomewhat reluctant.

The project was developed relatively rapidly, in 6-8 months, rather than 2-3 years for usual World Bankproject. One proposed explanation was that it was important to establish the project before thepresidential election of June 1996, so that it would gather momentum and be harder to dismember incase of a change of government. 159 Arguably, the announcement of the project was also meant tosupport the re-election campaign of President Yeltsin in the summer of 1996.

The biggest player in the area of legal reform in the Russian Federation at the time was USAID, whichhad a totally different approach. In particular, USAID contractors dealt with, and reported to, USAIDdirectly, while World Bank contractors would deal with, and report to, a Russian agency. Moreover, theimplementing agent for the USAID project, the Harvard Institute for International Development (HIID),had a very open contract, which allowed them great freedom in establishing their goals and procedures.The World Bank stressed that they would not provide another HIID, but the Russian administrationnonetheless pushed forward.16’

Is7 See Rigo, Andres “Remarks by Andres Rigo, Deputy General Counsel, International Bank for Reconstruction andDevelopment (the World Bank)“, in S. Schlemmer-Schulte, “Roundtable of International Financial Institutions GeneralCounsels” (1997) 91 American Society of International Law Proceedings 199.‘581nterview with World Bank officials, Princeton, 22 October 1998, and Moscow, 22 December 1998.Is9 Ib id .I60 Ib id .

5 9

The World Bank conducted a series of field missions to the Russian Federation in 1996, to research anddevelop the project proposal, working closely with the State Law Administration of the President, theSupreme Court, and other specialists in the legal field. They worked with the list of priorities which hadbeen previously established on the Russian side, to assess their importance and feasibility. A furtherspecification was that all projects had to somehow relate to economic development, which excluded, forexample, work on criminal law, human rights, or even social protection. The project summary states that(< the overall objective of the project is to improve the performance of the Russian legal system in areaskey to the effective functioning of market institutions ))16’.

Ultimately, it was decided to concentrate on four components:‘62

Table 4: Summary of the World Bank Project Description, 21 May 1996

l improve the quality of drafting of economic laws, decrees and

l assist the Government of Russia in analyzing federal/regional andfederal interagency coordination in drafting laws and regulations;

l determining the appropriate scope and framework, as well as levelsof public investment in the systems for collection, organization and

exchanges between legal academia and practice and improve

e public awareness and understanding of the role of law in a

ctive court administrationand case management;

l assist the development of consensus for necessary structural

Total cost for the project, including US$ 5.8 million for management and US$ 5.3 million for pricecontingency, is US$ 89.40 million, of which US$ 58.00 million will come from a World Bank loan, and

16’ World Bank, “Board Package, meeting of 13 June 1996”, available at httDYiwbln0023.worldbank.orgCoDrC. ..cd4?0penDocument&ExpandSection=2.1 [hereinafter Board Package]I62 Board Package, and World Bank, Technical Annex to the Memorandum of the President, Russian Federation LegalReform Project, May 21, 1996, Report No. T-6883-RU [hereinafter Technical Annex].

6 0

DI1I1DI1DII

11IIIII

the rest will be borne by the Russian government. Some of the government’s commitment will be paidin kind, for example through the provision of free office space. The project (( only involves the financingof consulting services, training, materials, and information technology )). ‘63 The project was authorizedby the board of the World Bank in 1996, to become effective September 9 of that year. The closing dateof the project is December 3 1, 2000.‘64

•l Legislative drafting

n Legal information

Cl Legal education

Cl Judicial reform

W Other high priorityareasProjectmanagement

n Pricecontingencies

Table 5: Budget breakdown: World Bank Legal Reform Program

4. Project Implementation

It was decided to create an alternative, non-governmental and non-commercial structure to implementthe project, the Russian Foundation for Legal Reform (RFLR). This decision contravenes some tenets ofdevelopment, according to which it is preferable to build on existing structures, and to develop existingcapacity, rather than creating new, and possibly duplicating, agencies. As one Bank official stated,(( creating parallel structures is not considered good governance H. 165 The decision to establish RFLR,instead of using an existing government agency, reflected the need to establish a neutral structurebetween the two branches of government; it also helped accelerate project adoption and initialimplementation.

RFLR was created in the summer of 1996; among its founders were the State Law Administration of thePresident, the Ministry of Justice, the Ministry of Finance, and the Federation Council. Its board ofdirectors, which decides on its goals and priorities, is composed of one representative from each of theseorganizations, as well as the president of RFLR. The World Bank does not have a representative on theboard.

‘631bid.‘64 Ibid.‘?nterview with World Bank officials, Princeton, 22 October 1998, ands 22 December, 1998.

61

The first task of RFLR was the implementation of the World Bank project; however, it can implementother projects and receive funding from other sources. It is hoped that RFLR will continue to exist afterthe end of the World Bank project. At first, the RFLR was entirely funded by the World Bank, on theunderstanding that the Bank’s share would gradually decrease over the life of the project. After two anda half years of operation, the World Bank’s share of the funding has decreased to approximately 20-40percent. ‘CZ The roles and responsibilities of RFLR parallel this decrease in funding; at first, the RFLRonly worked on the World Bank’s project, but now they are diversifying, looking for other projects andreceiving money from other donors.

The establishment of RFLR progressed somewhat slowly. The World Bank loan became effective inSeptember 1996. The RFLR had already been created by presidential decree in the Spring of 1996, andhad been staffed over the summer with a small loan from the Japanese government. The first president,Mr. Garry Minkh, was combining the presidency of RFLR with another position in the government. Itsoon became evident that he could not fulfill both positions at once. He was replaced in February 1997by the current president of RFLR, Mr. Vladimir Mazaev. By that time, the managers for the fourcomponents had been selected, and the Foundation was almost entirely staffed.

Since 1997, RFLR has been devising an implementation strategy for the World Bank project. So far,few disbursements have been made; according to officials at RFLR, only approximately 12 percent ofthe total budget has been disbursed, with an added 5-7 percent already signed away.16’ This wasexplained in part by the fact that RFLR rnust report to both branches of the Russian government, as wellas the World Bank, which slows the process down considerably. More importantly, however, it seemsthat this relatively slow implementation was consciously chosen, as being preferable to an emphasis onrapid progress. 16* Officials at RFLR and the World Bank resident mission in Moscow stressed that itwas preferable to develop the projects slowly, so as to ensure that they optimize the resources available.Nonetheless, some of the program managers at RFLR were under the impression that the World Bankwas eager to see the programs move forward. For all four components of the project, mostdisbursements should take place in 1999, as all four have completed the program development phase.

The implementation process is as follows: RFLR was commissioned by its board of director toimplement the World Bank project, as described in the Technical Annex to the Memorandum ofthePresident, Russian Federation Legal Reform Project, May 2 1, 1996 (Technical Annex). The individualproject managers devise implementation project in line with the technical annex, which are thensubmitted to the World Bank for a “no objection” review. Beyond this veto power, the World Bank isnot involved in the development of the implementation procedure.

Once a specific project has been approved, its implementation is subject to World Bank procedures forprocurements and calls for tender. According to one project manager at RFLR, this procedure at firstwas relatively cumbersome, but RFLR has developed an expertise in fulfilling World Bank guidelines,and proposals now need few adjustments before being accepted.

16?nterview with RFLR official, 18 December, 1998.‘671bid.‘6X World Bank, “The World Bank and Legal Technical Assistance: Initial Lessons”, Working Paper No 14 14, January199.5, available at httr,:ilwww.worldbank.or~lfanddlenglish/0997/articleslO140997.htm;

6 2

Figure 4: Organizational Chart of the RFLR

Ministry ofII

Ministry ofJustice Finance

A

AcademyWorld Bank Board

of Social

EJ

Moscow 4 Science

RFLR

LegalEducation

Legal JudicialInformation Reform

Partners/Contractors/Beneficiaries

LegalDrafting

Originally, the RFLR reported primarily to the World Bank Headquarters in Washington, D.C. Giventhe high success rate of RFLR procurement bids, it was later decided to accelerate the process bytransferring some final authority to the World Bank resident mission in Moscow. According to oneproject manager, this often means that RFLR now reports doubly to the World Bank, once inWashington and once in Moscow.

4.1. Project Implementation for the Four Branches

a. Law School Grant Program

Originally, the State Law Administration of the President wanted this component of the program tofocus on Moscow State University, the best and most prestigious university in Russia. The World Bankpreferred to focus on smaller, more provincial law schools, as this was deemed more consistent with itsdevelopment philosophy.

The selection of the schools proceeded as follows: first, RFLR made an announcement that the programwould be open to all licensed and accredited law schools (at that point, maybe one private law schoolwas accredited in the whole of Russia);169 127 schools were invited to participate. The main criteria forselection was a demonstrated desire to change, to institute reform. In the end, five partners wereselected, including three consortiums, for a total of 8 law schools:

‘691n order to be accredited, Law Schools needs to have had 3 or 4 graduating classes. Since the first class will graduateonly 3 or 4 years after the school is created, a school must exist for at least 7 years before seeking accreditation. SeeChastenay, C. and Sahlas, P., “Russian Legal Education: Post-Communist Stagnation or Revival?“, (1998) 48 Journal ofLegal Education 194.

63

(1) St-Petersburg State University(2) Ural State Academy of Law(3) State Universities in Krasnoyarsk and Irkutsk(4) Kazan State University and Marie1 State University(5) State University in Saratov and Saratov Law Academy. All these institutions are state

schools.

After the selection process was over, the selected schools were invited to submit grant proposals. Therewere three categories of grants:

1. develop new courses or course materials, for example financial or commercial law classes,legal clinics, interactive computer use in classes, up to US$24,000 per semester;

2. Computer and equipment accompanying grants made under (l), up to US$5,000;3. Grants to law schools, for example to create new chairs and to provide books to libraries, as

well as grants to send young professors abroad, grants for teacher evaluation systems,anonymous evaluation of students, intemet access, and access to legal databases.

Total funding for these three categories is US$5 million, of which up to US$2 million will fall undercategory (3).

RFLR has hired four consultants, each responsible for two schools, to help the schools develop projectproposals, to verify the accuracy of the information sent by the Law schools, and to provide backgroundinformation to RFLR in making grant decisions. The application period was from August 15 to October30, 1998. RPLR has received 600 proposals, totaling US$2,250,000 under category (l), andUS$1,500,000 under category (2). RFLR expects to disburse up to US$2 million during this first round,depending on the quality of the projects. Up to US$200,000 will also be disbursed under category (3).Another possible project under category (3) is the establishment of a publishing venture

b. Legal Information Project

This component has two main branches, (1) classification of laws, to bring overlapping laws into one,and to provide a systematic typology, and (2) “determining the appropriate scope and framework, aswell as levels of public investment in . . . systems for collection, organization and dissemination of legalinformation.“‘70

Before RFLR began work on the project, each branch of the government gathered its laws andregulations, but there existed no overarching classification. An attempt at classification was undertakenby the government approximately five years ago, but it has rapidly become obsolete. There also exist anumber of legal database, but their classifications were neither complete nor systematic. Theclassification created by RFLR was done in close collaboration with jurists working within all levels ofgovernment, as these would be the prime users of the classification. It was devised to include legislativeacts from the regions, and to be adaptable from one region to another.

The second part of the project will be conducted in collaboration with private companies that alreadyoffer databases and other systems for the dissemination of legal information. The end-product should

“O Board Package; Technical Annex.

6 4

IIIIIIII11IIIIIIIII

provide space for these private sources, while ensuring that the government provides a consistentclassification framework, as we!! as a centralized organ for the publication of new laws.

c. Legal Drafting

This component has three main branches:

(1) legal assistance in drafting economic laws and regulations at the federal level;(2) coordinate between different government agencies in the drafting process;(3) develop legal drafting at the regional level.

At the federal level, RFLR works with legislators in areas of economic law; in the two regions whereRFLR is conducting pilot projects, they work on land law and budget drafting.

Total funding from the World Bank for this component is US$l2 million, of which approximately US$8million will go to federal legal drafting. At the regional level, US$l million will go to legal drafting, andUS$2 million to training. So far, approximately US$ 1.5 million has been disbursed; however, RFLRexpects to disburse 80 percent of the budget during 1999, on the drafting and adoption of 11 laws at theFederal level, as well as regional legal drafting and training.

Concretely, RFLR helps the branches of the government establish priorities in legislation, coordinatesbetween the legislature, Parliament and the President’s apparatus, works with local governors, looking atseparation of powers, jurisdiction, independence and competence, and prepares seminars on legaldrafting. Officials at both RFLR and the World Bank stressed that RFLR only provides technicalassistance to the government, and that it does not intervene in the establishment of government policies.

d. Judicial Reform

This component originally had two main branches, (1) Professional training, and (2) Alternative DisputeResolution (ADR). RFLR is now proposing a third component, to be financed out of the “other highpriorities” budget, to provide support to the newly created judicial department. World Bank financingfor this component is US$4 million for training and US$2 million for ADR. A decision regarding thethird component will be made early in 1999.

Training of judges

Judges in Russia were jurists who worked for a number of years, and then took an exam to becomejudges. They received retraining on a regular basis, but no special formation as judges. Instead, theirtraining was purely focused on substantive law. Training took place in Moscow, and all judges wereexpected to fly into Moscow, which has become too onerous. As a result, many judges have not receivedtraining for all long time.

RFLR is working to develop a model program for the training of judges. They are working with anoriginal contingent of 500 judges, most of whom are not from Moscow. The program covers substantivelaw, especially new areas such as commercial law, but also ethics, psychology, and decision-makingprocedures. RFLR is reversing the previous order of training, which started from theoretical, substantivelaw. Instead, they try to focus on the specifics of the court system and the role ofjudges, starting fromtheir practical experience.

65

Alternative Dispute Resolution (ADR)

For ADR, RFLR views the priority as bringing practitioners together in meetings and conferences, andpossibly bringing them together in a professional association, so as to increase their “voice” and thevisibility and understanding of ADR amongst jurists in genera!. RFLR vi11 hold three general meetings,in Moscow, St-Petersburg and Ekaterinburg, that will bring together 300 people each, as well as a seriesof regional meetings for approximately 100 people each.

According to the project manager at RFLR, the priority is to keep what exists in the field of ADR alive,and set things in motion for a broadening of knowledge of, and demand for, ADR in Russia. This is animportant priority, since ADR is cheaper, and funding is the most important problem facing the judicialsystem.

e. Other RFLR Projects

As mentioned above, RFLR was not created solely to implement the World Bank project. One of the bigroles that has been taken on by RFLR is the coordination of the legal aspects of other, non legal reformWorld Bank projects, as well as improving coordination between government agencies involved in thelegislative process. This coordination task emerged out a need felt by RFLR itself to have better accessto information and to improve coordination between its partner agencies.

II. DISCUSSION:

1. Strategy

Legal reform programs funded by the World Bank vary in their structure and priority from country tocountry. This reflects an increased desire to be demand-oriented on the part of the Bank, to respond tofunding requests by member states rather than present itself with a complete reform package. It mightalso stem from the recognition that ctlocal knowledge)) is essential to the elaboration of a legal reformprogram, and that the ills of the legal system - and therefore the appropriate cures - will vary fromcountry to country.

On the other hand, this reflects the absence of a cohesive, or unique, legal reform philosophy on the partof the World Bank: there is a recognition that good governance and the rule of law are important foreconomic development, but there is no specific platform, no model of the causal link between rule oflaw and development that would serve to establish priorities.‘7’

The Russian legal reform project is unique from the World Bank’s point of view:(1) it is the largest and most complex legal development project the Bank has ever funded.(2) Russia is undergoing a painful transformation from an authoritative, command system to a

democratic, market based economy, which makes the task of legal reform particularly difficult.(3) there are high political uncertainties accompanying the transformation. The Russian parliament

is dominated by leftist parties, the reformers in the government have become a rare commodity.(4) the size of the country is a significant limiting factor of project effectiveness.

“’ On the lack of an underlying philosophy in legal reform projects generally, see Carothers, Thomas, “The Rule ofLaw Revival”, (1998) 77 Foreign Affuirs 95.

6 6

IIIIDDI1DIIIIII1II1

In this context, the absence of a clear vision of the end-product to be achieved, and of the underlyingphilosophy linking legal reform and development, can hinder the efficiency of the project.

2. Project development

By the mid 199Os, the Russian Government had developed a more coherent vision of the legal reform itwanted to pursue. The initial, euphoric attitudes towards reform were fading away and economicproblems began to dominate the government’s agenda. The demand for a legal reform was more clearlyformulated.

Moreover, the skepticism of the World Bank vis-a-vis legal reform programs, as well as the fact that itwas responding to a request from the Russian government, instead of proposing its own package, meantthat it spent more time than most other agencies researching and preparing the program. Thus, eventhough the project was prepared rapidly by world Bank standards (8 months), its development includeda number of field trips aimed at establishing priorities and seeking to ensure that there was a consensuson the ground regarding the purpose and structure of reform.

As a result, the World Bank was able, despite its limited experience with legal development in generaland with the Russian context in particular, to get involved in legal reform in Russia in a more systematicand cautious manner than its predecessors.

3. Political considerations

The World Bank project is a loan extended to the Russian Government. Unlike foreign grants, itmotivates the recipient government to participate in its preparation and implementation, therebyincreasing the feeling of “ownership” of the project. It also makes the recipient agency more accountablebefore domestic political institutions.

This involvement on the part of the government, however, can enmesh the World Bank in the internalconflicts of the Russian government. The project was an initiative of President Yeltsin’s Administration.The Ministry of Justice, with a reputation of being traditionally conservative, was more a formalparticipant in the project than a whole-hearted supporter. The question is, whether it is better to proceedwith reform despite a lack of the full domestic consensus, or to wait until such a consensus is reached.The project implementation and its sustainability are obviously the major concerns here.

Political considerations were also present in the decision of the Board of the World Bank to authorizethe project. The World Bank doesn’t operate under as strong political supervision as, for example,USAID programs. It has the luxury of not having direct Congressional oversight to pursue specificforeign political goals. Nonetheless, project preparation was not apolitical. The Bank was underinternational pressure to support transformation efforts of reformers in Russia. According to WorldBank officials, the project was developed rapidly to ensure that it would be approved before thepresidential election of June 1996, so as to create a framework for reform that would be more difficult todismember. Moreover, it might have been adopted with a view of supporting the re-election campaignof President Yeltsin.

Such considerations might be viewed as tainting the neutrality of World Bank involvement in legalreform in the Russian Federation.

67

4. Implementation Agency

Contrarily to most foreign donors, notably USAID, the World Bank operates through a Russianimplementation agency, which has a number of benefits. Russian experts are better at evaluating thedomestic environment, and are likely to prove more responsive to local needs. Moreover, they are lessdependent on their contractors and partner agencies for information and evaluations, and are thereforeless likely to be abused. Finally, employing Russian experts helps ensure that the know-how andexperience accumulated over the course of the program will remain in-country.

Additionally, providing implementers with more freedom gives them a stake in the reform project.According to RFLR staff, one of their most important task is the coordination of the legal aspects ofother World Bank projects, as well as the creation of a permanent coordination structure betweengovernment agencies involved in drafting economic legislation. This task was undertaken by RFLR inresponse to what it perceived as its own need to improve relations between government agencies andwith the World bank, so as to make its work easier and more efficient. Thus, giving the implementationagency a stake in the improvement of the structures it seeks to reform increases both the motivation andthe understanding of the reform needed (in this case, an improvement in the coordination mechanismsbetween the branches of the government, so that RFLR staff involved in legal drafting would not spendtheir time running from one government office to the next)

The creation of RFLR, however, suffered from a number of shortcomings. As noted above, creating aparallel implementation structure is not considered good governance. A preferred approach is topromote capacity-building within existing agencies, so as not to duplicate existing resources, whileensuring that the added capacity will remain beyond the life-expectancy of the program. The mainjustification presented for the creation of RFLR was that a neutral agency was necessary to act as amediator between the legislature (Duma) and the executive (Presidential apparatus). It is unclear,however, whether the need for neutrality reflected a concern for the efficiency of the reform program,whether it was a more expeditious solution given the speed with which the project was developed, orwhether it was meant to shield the World Bank from accusation of partiality.

The cost of establishing a parallel structures could be justified, if the future of RPLR was ensured. Oneof the outcomes of the project would then be the creation of a highly qualified, independent agencywhose sole priority is to promote legal reform in Russia. However, according to World Bank officials,the chances of survival of RFLR are approximately 50-50; moreover, they estimate that RFLR wouldhave to reduce its personnel after the end of the World Bank project. Arguably, the chances of survivalof RFLR would have been greater, had the World Bank continued to support it beyond the four years ofthe program. It is therefore questionable whether the decision to graduate RFLR so rapidly was thewisest course to adopt, given the expertise, dedication and capacity it will have developed whileworking on the World Bank project. As things stand, a large part of that capacity runs the risk of beingwasted.

5. Slow Implementation

Another shortcoming, which derived in part from the decision to create an independent implementationagency, was the slow implementation of the project. RFLR was created in April 1996, and was fullystaffed by April 1997. The World Bank loan was effective in September 1996. Yet by the end of 1998,less than 20% of project funds had been disbursed. While officials at both the World Bank and RFLR

68

IIIDI

IIID

III1DD1

stress that a slow approach was preferable, it remains that the project has fallen considerably behind thedisbursement scheduled detailed in Annex A of the Technical Annex.‘72

“‘“Project Cost Summary”, Annex A of the Technical Annex.

6 9

Table 6a: RFLR Planned Disbursement Schedule.Reform Category Previous Future Total Planned Planned

Disbursements Disbursements Disbursements E;;;x$.(199788) (1999.2000)

Disbursed$6,016,900 $17,003,100

$18,897,500 $7,832,500$9,650,000 $15,075,000

TrainingJudicial Reform & ADR

TOTALS:$4,211,300 $7,966,200 $12,177,500 3 5 %

$38,775,700 $47,876,800 $86,652,500 4 5 %

RFLR Planned Disbursement Scheduleas of 21 May 1996

Legislatke Legal Legal JudicialDrafting Information Education Reform &

& Training ADR

Reform Category

0 Pretious Disbursements (1997-98) 0 Future Disbursements (1999-2000)

Table 6b: Planned disbursement schedule.173

While the distribution schedule attached to the Technical Annex predicted that 45 percent of projectfunds would be disbursed before the end of 1998, according to officials at the World Bank and RFLR,total disbursements by the end of 1998, including funds signed away but not yet spent, amounted to lessthan 20 percent - less than half the planned 45 percent which should have been disbursed at this point.

This means that the disbursement rate will have to be extremely high for 1999 - as much as 80 percentof total budget for the legal drafting component, for example - which will put a lot of pressure on theresources of RFLR. It also means that half of the four year life-span of the project will have beendevoted to establishing an institution which might not survive. Thus, there seems to be an inherentcontradiction between a preference for slow processes, and a four year project deadline.

‘73 “Project Cost Summary”, Annex A of the Technical Annex.

70

6. Other Implementation Issues

A few more issues arise out of the strategy and implementation structure adopted by the World Bank.First, one possibly inevitable problem is the extensive paperwork connected with the approval procedureof World Bank projects. In addition, RFLR is dealing with two masters at the same time, the RussianGovernment and the Bank, neither of which is monolithic: the Presidential administration andgovernment departments on the one hand, the World Bank headquarters and the Moscow ResidentMission on the other. Though there have been recent attempts to foster communication on project-manager level and transfer part of decision making authority to the Resident Mission, it is still the WorldBank headquarters which has the final say.

Second, the project is focusing primarily on the federal level. The regional structures are addressed on apilot basis in two cases by the legal drafting component. The legal education component also fails toadequately address the geographical magnitude of Russia. With the increasing role of regions in thepolitical and economic life of Russia, the projects impact is therefore being curtailed.

Third, legal reform in the World Bank’s view should be closely connected with and conducive toeconomic transformation. Areas such as criminal law and human rights fall outside of the Bank’sattention. However, these factors can also become serious hurdles to economic development.

III. LESSONS

Given how recent the project is, and how little has been disbursed so far, it is hard to draw definitelessons from the experience of the World Bank’s involvement in Russia. Nonetheless, a number ofgeneral trends can be identified, which provide the basis for the project strategy and implementation,and which will impact on its ultimate success.

1. Projects that have clear Russian ownership have potential for greater impact.

Beyond its input in the program description in the Technical Annex, the World Bank adopted anunintrusive approach towards the implementation of the project. This, in turn, promoted Russianownership of the project. Moreover, the links between RFLR and the Russian government increased theimpact of the World Bank project at the government level. By being created and adapted by Russianspecialists, the project could more accurately reflect the needs and capacities to be found on the ground.

2. Foreign aid must be conscious of what it can achieve.

The structural difficulties which plague the Russian legal system, such as the absence of funding andpolitical instability, fall outside the scope of issues that can be addressed by international aid. Foreignaid should rather focus on small scale, concrete issues, by fostering new ideas, and by providing supportfor more experimental programs that fall beyond the capacity of state institution. Structural problems, onthe other hand, can best be tackled by the government, and will require both immense political will andfinancial resources.

3. Legal reform is a highly sensitive topic, which can easily interfere with political issues.

While legal reform must of necessity be conducted in close cooperation with governmental structures, itis essential to ensure that foreign reformers do not trespass in the field of political decision-making. Thisis essential both for the credibility of foreign aid, which must not be viewed as a form of paternalistic

71

imperialism. It also protects foreign agencies for being held responsible, should the reform project provea failure. Moreover, policies that reflect only what foreign aid consultants deem appropriate for thecountry is unlikely to be sustainable, since there will be no constituency for these policies in the largerpolitical class. Foreign aid should therefore be particularly sensitive to the importance of ensuring thatpolitical decisions are made by governments, and not by intem,ational agencies. These agencies shouldlimit themselves to presenting alternatives, and helping to coordinate the activities of governmentbranches

IV. CONCLUSION

Legal reform will be far from complete at the end of the project. The ultimate success, or failure, oflegal reform in Russia will depend mostly on the presence of pro-reform forces within the government,as well as on a sustainable solution to Russia’s economic and political problems. Moreover, is it Russiaitself that will have to provide for the direction of reform. The role and impact of foreign aid willtherefore prove small in this respect.

Recognition of the ancillary role of foreign aid might have been one of the most important strengths ofthe World Bank’s approach. By cooperating closely with the Russian government, and by adopting aRussian implementation agency, the World Bank avoided the pitfall, common to many legal reformprojects in Russia, of relying too much on Western models, Western thinking and Western experts.

On the other hand, the extremely cautious and slow approach which has characterized implementationso far could endanger the impact of the project, especially if the last two years of World Bank fundingsee a significant increase in the disbursement rate followed by the closing of RFLR. The next year willtherefore prove crucial for the success or failure of the World Bank project. At the same time, furtherWorld Bank involvement in legal reform in Russia, and in the continued existence of RFLR, should notbe excluded at the outset. This might be the only way to ensure that the capacity and knowledgegathered by RFLR do not go to waste at the end of the project. Given a large degree of similarity in legalreform challenges in other CIS states, the success of the Russian project would also have directimplications for applicability of its experience to those countries.

72

LESSONS LEARNED AND RECOMMENDATIONS

Culling lessons from all of the research we have done over the course of the semester, therecommendations and lessons learned are broken down into four categories: philosophy, planning,implementation, and follow-through. Both the recommendations and the lessons are meant to begenerally applicable to any agency that wishes to engage in legal reform in Russia.

PHILOSOPHY

l Criminal law and human rights programs deserve as much attention as commercial lawprograms.

The overwhelming majority of legal reform projects have been in the commercial law area, in areas suchas advice on code drafting, training of commercial law judges, and assistance in publishing guides to thecivil code. This emphasis reflects the interests of Western donors in creating a legal basis for a marketeconomy. There are comparatively few projects that focus on improving criminal law in Russia. Oneexample is the U.S. Department of Justice and ABA/CEELI program to train Russian prosecutors.

The emphasis on commercial law is unfortunate however, because Russia’s criminal law system is inserious need of reform. Courts still rely on the old Soviet Criminal Procedures Code. Human rightsviolations abound in the prisons, with abysmal conditions and widespread use of lengthy pre-trialdetentions. There is a 98% conviction rate for criminal defendants. According to a Russian law expert,so much was made illegal under the Soviet Union that Russians have lost there ability to determine whatdeserves to be criminalized.‘74

Western donors often talk about the necessity of building a legal culture and respect for law in Russia,but unless there is reform in criminal law, the Russian citizens will not feel that law serves them. Theyare more likely to have some contact with the criminal system than with the commercial courts. Thatmafia are not prosecuted and that judges can still be bribed breeds disrespect for all legal institutions.

l The demand side of law needs as much attention as the supply side.

In many respects, international agencies have already done as much as is possible on the supply side;that is, the provision of well-written, pertinent laws and legislation. There is still much work that needsto be done, such as the passage of a criminal procedure code, land reform, gender law, etc., but much ofthat effort is now out of the hands of international agencies. The ultimate form of new laws is nowsubject to the vagaries of Russian politics. Westerners continue to have a role to play, but not to thesame extent as previously.

One area where international agencies can continue their efforts is on the demand side of law. At onelevel, this might simply entail the stimulation of citizens’ hope for a fair trial or access to court and theprovision of incentives to remove reliance on private enforcers or other extra-judicial measures.However, it is much more than that. It means providing those citizens the means to voice effectivelytheir concerns through civil society and an advocacy culture. This is where democratization and legalreform coincide. The best legal codes in the world are totally ineffective if the citizenry isdisenfranchised, a situation perilously close to the current Russian condition. They have no stake in thereforms, no stake in the laws, no stake in the courts, and no stake in the government.

‘74 Interview with Sergei Vitsin, 22 December 1998.

73

The legal system in Russia is not ineffective simply through negligence or lack of technical knowledge,although these may play a part. Legal reform programs that rely too heavily on technical assistanceignore the fact that systems remain inefficient because it serves the interests of certain groups of peoplethat they remain ~0.‘~’ If everybody in Russia wanted an efficient and fair judiciary, then it would notbe so difficult to obtain. But not everybody does.

Unfortunately, those who most want an efficient and fair judiciary, as well as legal system as a whole,are the very people whose voice is weakest: the vast majority of the citizenry who are neither rich norcriminals nor members of any other group that would be threatened by legal reform. It is byempowering those people that Western agencies can help the cause of legal reform. Besidesorganizational strengthening, these pro-reform constituencies can be assisted with training on how toanalyze governmental processes and legislation (which can be a complete mystery to many grassrootsorganizations); how to develop their own legislative proposals to be incorporated into other legislationor introduced on their own; advocacy skills; how to form and manage coalitions; and leadership skills.

l Smaller projects tend to be more effective than larger projects.

This was mentioned by many institutions, some of which are already focused on small projects or aremoving in that direction.‘76

There are many reasons, including:1 .

2.3.

4.

5.

6.

7.

They are not as likely to result in dependency on a single foreign donor. Organizations will have todiversify funding sources and, hopefully, even develop their own sources of funding, such as feesfor services, memberships, etc.The opportunities for corruption are diminished because the sums involved are much lower.Smaller projects allow for a range of experimentation and diversification that would be impossiblewith bigger projects, where the stakes involved would be much higher. For example, several smallprojects that address the same issue could be funded separately in order to see which project wasmost effective. The monetary losses would be much less than throwing all resources behind one bigproject that resulted in failure.Many organizations interviewed agreed that it is very difficult to spend a lot of money on legalreform projects in Russia. Unlike more traditional development projects, such as infrastructure, theysimply do not require large monetary outlays.‘77The smaller NGOs and local governments that would most be interested in such sums havedemonstrated an increased capacity for dealing with funding agencies and developing projects.‘78Due to the devaluation of the ruble, Russia is currently a very inexpensive country in which tooperate, especially outside of Moscow, and smaller projects have more financial leverage thanpreviously.A greater number of smaller projects would help address some of the regional disparities that resultfrom international agencies’ concern with larger projects conducted through large organizations and

“’ Carothers more fully examines this issue in Democracy Assistance. He says: “A different way of stating thisproblem is that democracy assistance programs frequently attempt to treat the symptoms rather than the causes of thedemocratic deficit that donors perceive in any given country What needs not to be asked or examined in such adesign process is why the judiciary is in such a lamentable state, whose interests it serves in its current form, and whoseinterests would be threatened by reforms to the system” (122-3).‘76 Interviews with NDI, USAID, Eurasia and others. Eurasia, for example, limits most grants to US$35,000 per year.“’ For an example of the possible role of low cost projects in judicial reform see Solomon’s and Foglesong’s Courtsand Trans i t ion in Russ ia , soon to be publ ished.I78 Interviews with Eurasia, NDI, others.

I

7 4

IIIIIII1I1I

IIII

I

governmental entities. As a consequence, Moscow and, to a certain extent, St. Petersburg are morethan adequately represented by projects at the expense of the regions. This problem is exacerbatedby the fact that those large organizations and governmental agencies may actually have littlepresence or relevance in the regions.

8 . Smaller projects allow for a sharper focus and a more efficient use of funds.

l One of the most valuable contributions that international agencies can make to the field of legalreform in Russia is to fund innovah’ve thinking, while not losing sight of proven programs.

Many of the problems faced by Russia today are simply too large or beyond the ability of internationalagencies to deal with. Low salaries for judges, court employees, and all others involved in the legalprocess; the vagaries of the Duma; poor quality legislation that results from distrust between thelegislative and executive branches; and the tensions between the center and the regions are just a fewexamples of issues that international agencies simply cannot address. Lasting stability and prosperityfor Russia will come only when Russians themselves have managed to develop solutions to thoseproblems.

Given this situation, international agencies must look to what they can offer to Russia, keeping in mindthat the entire Russian system cannot be remade into the image of the United States or Germany. Thatwould require a huge investment that the West cannot promise and which, in any case, ignores thealready existing Russian and Soviet law traditions. What the West can do is to offer innovativesolutions or help Russians develop innovative solutions to problems that exist within the currentframework. This is not to say that the framework cannot be changed, just that large-scale changes areunlikely.

To a certain extent, this involves a change in approach on the part of Western agencies that have tendedto match Western solutions to Russian problems. In other words, the answer to any difficulty faced bythe legal reform process was to make the process or agency involved more like its Western counterpart.To fund innovative thinking is to recognize that the Western solution is not the best solution to everydifficulty. This leads to a false dichotomy in thinking, in which the answer to every problem is seen aseither the continuation of a defective Russian model or the importation of a superior Western model.

However, changes can be made that do not necessarily involve simple importation of Western models.It may be more productive to allow Russians to develop uniquely indigenous solutions to suchdifficulties. This is not to discount Western experience, which can be highly valuable if adapted to theRussian reality.

l The importation of Western models and ideas should follow the moderate path of improving theexisting institutions rather than attempting a radical transformation.

This is a much more feasible approach than the outright dismissal of existing Russian institutions. 179 Inpart this is due simply to the fiscal and logistical constraints of international aid agencies. Thetransformation of the Russian legal system into the mirror image of some Western system wouldnecessitate the infusion of huge amounts of cash, effort, and expertise that no agency is willing to invest.This is especially true considering that such an effort may not work in any case, for several reasons.One is that such radical change is threatening to the politicians upon whom such reform is ultimatelydependent. This is especially true in today’s Russia where the influence of politicians committed toreform is by no means dominant and may not be for a long time. Reform must take into account that

I’9 Solomon and Fogelsong also endorse a “moderate” approach. See chapter 9.

7.5

political reality. Another reason is that the slate can never be wiped entirely clean; any attempt atreform that ignores already existing structures is doomed to failure precisely because it fails to take intoaccount the persistence of those structures and the attitudes they engendered.

In some ways, the issue of Western vs. Russian institutions and, its corollary, the issue of Anglo-American vs. Continental institutions is almost a false issue among legal practitioners (though maybenot theorists) in Russia. For example, the everyday problems that judges face such as low wages andcourt underfunding, are so extreme that it is almost a luxury for them to consider theinquisitorial/adversarial debate.“’ In fact, despite experiments with jury trials for certain types ofcrimes in a very small number of regions, the overwhelming majority of cases continue under theinquisitorial procedures with no real change in sight. The Russian vs. Western argument can bemisleading because it ignores such realities.

l International aid agencies should not play a role in developing Russian policy.

This is a role that should be reserved for the Russian government. For international actors to intervenein areas that should rightly be restricted to Russians would be to undermine whatever nascentdemocracy exists. Any policy decisions unduly influenced by international aid agencies wouldthemselves be ineffective and ignored by Russians who have had no stake in those decisions. It alsooffends Russian sensibilities about self-rule and sovereignty.

l Trips to the West should be limited to those who will eventually train others in order to share theknowledge gained by their sojourn abroad and multiply the effect of such trips.

This will ensure that such trips are utilized to maximum effect. The benefit that can be derived fromsimply bringing individuals over to observe the American judicial process is questionable. Theindividuals involved in judicial reform that we interviewed revealed that they already had a goodunderstanding of the way judicial independence and popular respect for the law and court proceduressupport the American and European systems.

They did not need mere exposure to such concepts. The sustainability of such a strategy is questionablealso. It may change the outlook of a few judges but what of the vast majority of judges who do notenjoy the benefit of such programs ? Or what happens when those judges who do take part in suchprograms decide to retire or otherwise leave the judiciary? It is impractical to continue bringing overlarge numbers of court workers, even though such programs may have had their place in the past.

Instead, the trips should concentrate on ensuring sustainability by combining courtroom exposure withintensive technical, management, financial, or other skills. Those who take part in such programsshould be required to pass their knowledge gained to colleagues in Russia. Since true imparting ofknowledge requires more than mere reporting or repetition of facts previously heard, participants in suchprograms should also be required to take part in sessions in adult education methodologies. Ifparticipants are unable to effectively transfer the knowledge that they have gained, then the utility ofthat knowledge is largely lost.

To be fair, many Western aid agencies we met stated that they are already switching to such a strategy,though not always in conjunction with trips to the West.

“’ Individuals interviewed consistently mentioned underfunding as one of the principal problems faced by the courts,along with judicial independence and judicial training. Jury trials were rarely mentioned unless brought up specificallyby the interviewers. The exception is Sergei Pashin, one of the main proponents of jury trials.

76

DI

DI

III1IIIIIIIID

Recommendations:

Projects should be instituted which train local organizations in governmental processes, how to writelegislation, and how to interpret legislation.

Local commitment to projects should be sought through matching funding, cash or in-kind; personalor institutional reputations, assurances of time, etc.

PLANNING

l Donor coordination needs to be improved.

There are dozens of bilateral and multilateral agencies, NGO’s, foundations, and contractors operating inRussia that provide assistance on legal reform, yet there is almost no interaction or coordination amongthem. Most of these actors are based in Moscow, so it would be relatively easy to meet regularly, yetbecause of turf battles, direction from home governments, a lack of incentive, or bureaucratic inertia,they do not meet on a regular basis. USAID-Moscow now runs a Democracy Roundtable, which meetsquarterly and involves a few of the major donors, but these meetings are not a forum for agenda-setting.

Improved coordination among donors would help ensure that resources are spent more wisely and thatthere is no overlap in funding priorities. Currently there is a lot of overlap. Nearly all the major donors,for example, are funding judicial training and assistance in drafting or commenting on major laws.Coordination would not necessarily mean that each donor would have a geographic or programmaticniche, but it would help to maximize the impact of the limited funds available for legal reform.Coordination could also help reduce corruption. For example, donors might be able to exchangeinformation about untrustworthy grantees. Improved coordination should include regular meetings ofthe directors of the donor offices in Moscow in which each director would discuss funding priorities andgoals for the coming year. Lower-level staff meetings could also be used to share information, giveprogress reports, and discuss recommendations for improving aid delivery. A computer database offunders, grantees, and projects would assist the coordination effort. Such a database could also behelpful to grant applicants, as it would allow them to see the funding priorities of donors and the typesof projects that have been funded in the past.

l An important facet in the implementation of legal reform projects is the development ofrelationships with Russian individuals who are committed to reform over the long run.

As with any type of reform, the ability of international agencies to effect change in the legal arena islimited. It is ultimately the Russian people who will determine the success or failure of legal reform.An effective way for international agencies to support legal reform given their limitations is to supplythe initial financial support and technical knowledge to those people who will be committed to Russiaover the long term. Working with local individuals provides them with the ability to effect sustainedchange.18’ Additionally, apart from the financial support and technical knowledge already mentioned,the “moral support” aspect of such relationships should not be discounted, especially given the currentRussian environment where the economic and political situation seem so inhospitable to legal reform.

“’ See Carothers’ Aiding Post-Communist Societies: A Better Way pp 17, 20.

7 7

l Legal reform projects should involve large amounts of local involvement from the design stageonward in order to ensure Russian ownership of the projects.

This would increase the effectiveness and longevity of these projects. However, local ownership ofprojects means much more than responding to local requests for certain types of projects. It entailsheavy involvement on the part of local actors in all phases of the project, from design through toevaluation. It also involves additional responsibilities on the part of local actors

Local ownership of projects will help guarantee that these projects are in a true sense “Russian”projects, conducted by Russians and valued by Russians. This brings many benefits. Suitability ofprojects and efficiency of project design can be supported by the involvement of local actors, for manyof the reason outlined in other points above. Local ownership can assure that projects truly respond tolocal demands instead of being transplanted from the West onto a reality to which they do notcorrespond. Local ownership can also assure the sustainability of projects, so that they will hopefullynot simply disappear once a foreign agency decides to leave Russia or reduce funding, for whateverreason. After all, this should be the goal of legal reform projects.

One of the roadblocks to developing local ownership of projects is the fact that many are developed inthe home offices of international aid agencies, far away from Russia. Many of the agencies told us that,to varying degrees and type, much of their project design was done in their Western offices, despite thefact that they did have offices in Russia.‘82 This essentially locks out participation by Russians duringessential drafting phases of the project. It essentially stigmatizes them as “Western” projects, no matterhow suited they may be to local conditions or how much input was sought from Russia. Anotherexample of the Western impulse behind projects that lacks local ownership is the recent publicityregarding the situation of the orphanages in Russia. This is not to say that conditions in orphanages arenot terrible and deserving of attention. There are also many Russian NGOs and individuals concernedwith the plight of orphans. However, the push by aid agencies to address the situation was broughtabout more by news coverage and political pressure in the West than by local imperatives. Givenlimited budgets and other resources, the orphanages may not be a high priority at this moment.

l Measures need to be taken to guarantee thatpilotprojects funded with the underlying “innovativethinking” strategy outlined above are replicable.

This is especially true given the vast size of the Russian Federation. Without the presence of suchmeasures, projects that are successful in their locality may be unknown in distant areas of the country.In fact, the promotion of best practices learned through locally developed and implemented pilotprojects is one of the most effective means of addressing the regional disparities that exist in Russia.

l International aid agencies should be aware that the currentpolitical and economic situation inRussia makes attempts at reform of any type difficult to enact and sustain.

Of course, there is a philosophy which holds that it is at precisely such moments of uncertainty that trulysweeping change can be accomplished. In practice this philosophy seems to have little chance ofsuccess in Russia given the current situation. The isolation of politicians from the citizenry, thedevaluation of the ruble, the intransigence of the regions, and the fatigue of the Russian people, alongwith a myriad of other factors make that sort of sweeping change unlikely, especially if perceived asunduly influenced by the West.

Is2 Interviews with NDI, TACIS, and others.

78

IIIIII11I1D1IIII

II

In that context, the international agencies should support incremental changes that incorporate existingprocesses and structures as much as possible. This strategy will be seen as less threatening to politiciansand other powerbrokers in Russia who have the power to stall reform. In times of economic hardship,the population as a whole can also be threatened by large changes that increase their feelings ofuncertainty regarding the future. Smaller changes, because they are more flexible, also allowinternational agencies to change or adapt programs to respond to changing political conditions,something that may not be possible with more extreme programs.

l Keep realistic expectations for what foreign assistance can accomplish.

Foreign assistance for legal reform can be considered a failure only if one assumes that it was supposedto dramatically alter the legal system and create a legal consciousness to undergird a market economy.Such a result was never realistic, given the limited sums spent by the West, the huge changes thatneeded to take place, and the fact that the Russian people, and not outsiders, were necessarilyresponsible for major changes in the Russian legal system. As one observer put it “evaluation [of legalreform in Russia] depends on expectations.“*83

Measured against more realistic expectations, foreign assistance for legal reform has achieved certainpositive benefits, especially in training judges and lawyers in the myriad of laws that have been passedby the Duma. This is not to say that foreign assistance has been completely successful, but it hasaccomplished many small-scale goals. The Russian legal system is significantly better than the Sovietlegal system, even as it is still in need of reform.

This does not mean, however, that it is futile for outsiders to try to assist Russia in this process. Foreignlegal expertise is desperately needed in Russia, but the causal links may be hard to draw between agiven local project and a transformation of Russia’s legal culture or institutions. Individual projectsshould have measurable benchmarks for success, but expectations must be realistic of how muchindividual projects can influence the overall legal system.

l Fund sustainable projects

One glaring failure of foreign assistance in the legal realm has been the lack of sustainability of projects.Many contractors, such as HIID or ARD/Checchi, lasted in Russia for just three years or so. Otherindividual projects are funded for only a year, and then collapse. Foreign agencies and contractors havehad many problems in starting up operations in Russia and working in a new environment, as it takes along time to find qualified staff and put a team in place. Consequently, there has been a tremendouswaste of resources when projects close down after a few years for lack of funding or for politicalreasons. Funders need to have a long-term vision of what they are trying to accomplish, with clear andrealistic goals and some idea of how individual projects connect to those goals. Multi-year planning andfunding is essential.

An important part of sustainability is that funders should seek to improve the institutional health ofgrantees, with the goal of having grantees “graduate” to perform work on their own without outsideassistance. Donors should be concerned not only with projects that grantees conduct, but also withproviding organizational, communication, and management skills to grantees. From our conversations,we learned that grantees are gradually getting better at planning projects and writing grant proposals.These are important skills, but Russian aid recipients also need to eventually become self-sustainingorganizations. Funders should show a preference for grant applicants that are willing to contribute some

‘*’ Interview with Sergei Vi&in.

79

of their own funds toward a project, as this is evidence of commitment and “ownership” on the part ofthe applicant that will increase the chances of sustaining a project over the long-term.

The World Bank-RFLR partnership offers a model of sustainability. First, RFLR is a Russian entity,one of the few Russian entities that receives foreign money directly, and its programs are partiallyfunded by the Russian government, indicating a Russian investment in the success of the organization.Second, the World Bank contribution gradually tapers off each year over about five years, so thatultimately RFLR will conduct its legal reform projects without outside assistance.

Recommendations:

Russians from various sectors including government, press, NGO, and academia should be broughtin from outside international aid agencies in order to have some input on the choice contractors.

Projects need to be prioritized with the areas that are most basic, such as criminal law, takingprecedence. Other areas, such as alternative dispute resolution and the orphanage situation whileimportant, will have to be left off of the agenda for now.

When funding local projects, look to support organizations that are already doing work in a particulararea rather than choosing to work with organizations that are new or setting up organizations to workwithin a particular area.

All programs that involve “training of trainers “, including those that send Russians to the West, shouldinvolve a large component of adult education methodologies.

IMPLEMENTATION

l International aid agencies were hampered in their efforts to conduct legal reform projects by areliance on individuals who lacked sufficient language skills and intimate knowledge of theRussian situation.

This was especially true of the very early phases of activity in Russia. However, and despite rhetoric tothe contrary, there is a continued tendency to rely upon individuals who possess specialized knowledgeof some area of the law as it exists in the West yet have no real Russia expertise. For example, we metmany people who are experts in various facets of Western law, from criminal codes to gender law toconstitutional law. Yet we met very few who were nearly as knowledgeable of the Soviet legal traditionthat they were trying to reform. (See Box 1.) It could be argued that individuals who possess thatspecialized legal knowledge combined with the knowledge of Russia are difficult to find. In some casesthis may be true but Russia is a much-studied country that has been of interest to individuals from manyfields for quite a while.

Another problem with an over reliance on foreign experts who have no real knowledge of Russia is thattheir frame of reference is the Western system. That is, they tend to compare the Russian system to theone with which they are familiar and view any differences as faults of the Russian system. Thisproclivity towards self-replication is futile and can make cooperation more difficult. Moreover, purelytechnical knowledge of Western law does not prepare individuals to promote legal reform in Russia.

IIIIII1I1IIIIIII

180

I

Box 1: Employment Opportunity Advertised by Contractor

SEEKING C RIMINAL L AW L IAISONS

To serve on a pro bono basis as Criminal Law Liaisons to assist~&&mming the. .%acrime and corruption in Central and East Europe and the Newly Independent States

“., I

Union.

DUTIES:Coordinate our organization’s criminal law related activities in the host country. Identify, develop, andimplement technical legal assistance projects in partnership with the host country’s legal, community andgovernment representatives. Organize interactive training workshops for prosecutors, judges, and defenseattorneys on topics such as the drafting and implementation of modern criminal justice legislation, .supervision of investigations, individual rights, and jury trial procedures

9. , _ .,-, )‘*-: - ,( AZ..- *.h +$<y$e* ‘z?jCURRENT POSITIONS INCLUDE:

< ,, t.Tyu$,;~~%~a L. -.+** %a’ rm+n~,*,~*~&‘e

Tirana, Albania - November 1998, Yerevan, Armenia - September 1998, Sofia, Bulgaria - June 1999,Budapest, Hungary - October 1998, Vilnius, Lithuania - December 1998, Moscow, Russia - July 1998, Kiev,Ukraine - June 1999.

BENEFITS:Round-trip international airfare; Health insurance premiums reimbursement; In-country business travel;Medical evacuation insurance; Housing allowance; General living stipend; Associated business expenses;Student loan deferment.

l Minimum of 5 years of criminal law experience l Strong interpersonal skills l High level of energy andinitiativel JD or LLM from a U.S. law school l U.S. bar membership l Prosecutorial experience preferred lInternational experience preferred l Legislative drafting experience helpful l Previous economic crime,political corruption and/or organized crime case work preferred.

Source: International Career Employment Weekly. December 22, 1998. p, 5.

As the box above shows, American aid contractors are still advertising for positions in Russia withoutrequiring any in-country experience or language skills.

The benefits of expertise on Russia are many, including but not limited to:1 . It provides an understanding of the underlying political, cultural, and power dynamics that may help

or hinder reform.‘84 Russian speakers will have a faster learning curve, being better able to makemid-stream adjustments based on local input, and less likely to be deceived by Russians who desireto manipulate foreign donors.

2 . It encourages respect, and thus increased effectiveness from local actors. This is especiallyimportant given that locals, concerned over national sovereignty, are often suspicious of legalreform programs.

3 . It results in more realistic expectations for legal reform measures.4 . It grounds legal reform measures in larger process of political, economic, and cultural change rather

than just superimposing ill-suited projects.

lB4 See Carothers’ Democracy Assistance p 122.

81

5 . It provides local indigenous personnel and organizational contacts. Of course, care must be takenthat such individuals are not themselves captured by individuals or groups with selfish interests.lg5

Of course, the suddenness of political change in the USSR and Russia and aid agencies’ lack ofexperience in the region prior to those changes made finding individuals with such on-the-groundknowledge difficult to find. However, contracting systems that limited projects to a few contractors fora limited period of time exacerbated the problem by preventing those contractors from benefiting fromthe knowledge gained. In effect once the contractors had gained such experience their contracts expiredand they left Russia to be replaced by a new contractor which had to develop such knowledge overagain. lg6

l Hiring and retaining quality foreign individuals is essential for program success.

In fact, several agencies interviewed indicated that good people are more important than goodprojectslg7; that is, incompetent or inadequate foreign management can sink the best-designed projectwhile a good manager can make a success of an even poorly developed project. Assuring foreignnationals of long-term job status can develop such individuals. Such assurances would also allow thosenationals to develop the friendships and contacts with Russians necessary to operate in a culture thatplaces a high value on personal relationships. Foreign nationals, through long term contracts, gain afamiliarity with the peculiarities of Russian culture. One of our interlocutors at USAID said that goodpersonal relationships can be worth millions in development aid.

Recommendations:

Individuals working in the field of legal reform should be knowledgeable not just of Western systemsof law, but also the inherited Soviet system that they are attempting to change.

Legal reform programs should rely less on the role of lawyers who for various reasons can be unsuitedto be solely responsible for these programs.

Funding to indigenous NGOs should be limited to two or three related projects to preventorganizations from becoming huge grant-receiving machines.

When hiring and awarding contracts, international aid agencies should give preference to individualsand organizations that have a demonstrated expertise in the Russian language and intimateknowledge of Russia.

FOLLOW-THROUGH

l Tight monitoring and evaluation mechanisms and reporting requirements by funding agencieswhen applied to local partners can have valuable institutional strengthening benefits.

To be sure, these types of measures are not generally liked by recipient institutions and partnerorganizations, as several of the individuals mentioned in interviews. However, they serve a valuable

lg5 For the an examination of the dangers of this see Wedel’s Clique-Run Organizations.lg6 For a fuller discussion of the problems of program continuity brought on by precarious contract status see Childress’The Chi ldren ‘s Crusade.“’ USAID Moscow, et al.

8 2

purpose beyond just informing mnders of how their money is being spent. They also force recipientagencies to develop the financial, management, and strategic skills that will enhance their sustainability.This is especially true of a country like Russia, which, because of its communist history, does not have atradition of independently operated NGOs and CSOs.

Monitoring and evaluation mechanisms and reporting requirements force organizations to tighten theirfinancial procedures, develop long term strategies, realize the constraints under which they operate,match programs to goals - in other words, to think more clearly about what it is that they wish toaccomplish and how they wish to accomplish it.

Recommendations:

Outside companies should do regular audits of contractors andpartner agencies. These auditsshould be not financial audits so much as programmatic.

Evaluations and reports should be made available to the Russian population. As it stands now, it isvery diffultfor the typical Russian to know whatprojects are being implemented and how successfulthey are. In the interest of the very same transparency which international aid agencies request frompartners, they themselves should make such information widely available through websites and easilyobtainable reports translated into Russian.

Reporting, monitoring and evaluation procedures for local CSOs and NGOs should be tightened

Move the reporting requirements away from a the false security of over reliance on numbers, to amore narrative structure that allows for the fuzziness of causal links. This is especially true whentrying to link economic behavior to legal changes. The causal links are not direct between the two;they affect each other mutually.

83

B IBLIOGRAPHY

Abramkin, Valery, ed. “In Search of A Solution: Crime, Criminal Policy and Prison facilities in theFormer Soviet Union.” Moscow: Moscow Center for Prison Reform. Summer 1995.

Adelman, Sammy and Abdul Paliwala, eds. Law and Crisis in. the Third World. Great Britain: HansZell P, 1993.

Amnesty International. “Torture in Russia: This man-made Hell.” Amnesty International Report EUR46/04/97. April 1997. <http:www.amnesty.org//ailib/1997/EUR/44600497.htm>

ARIXhecchi Joint Venture. “Rule of Law Program: Second Quarterly Progress Report.” January 1,1994 -March 31, 1994.

Atwood, J. Brian. “Testimony of Administrator J. Brian Atwood, USAID Administrator, Before theSenate Appropriations Subcommittee on Foreign Operations.” Washington, DC. June 9, 1998.

Belot, Irene A. “The Role of the IMF and the World bank in Rebuilding the CIS.” Temple Internationaland Comparative Law Journal. (vol. 9 83 1995).

Berman, Harold J. Justice in Russia: An Interpretation of Soviet Law. Cambridge: Harvard U P, 1950.

Boffey, Christopher. “Author’s Law: The Reform of Russian Copyright Law toward an InternationalStandard.” The Maryland Journal of International Law and Trade. (1994).

Boylan, Scott. “The Status of Judicial Reform in Russia.” American University International LawReview. (1998): pp. 1327-40.

Carothers, Thomas. “Aiding Post Communist Societies.” Problems of Post-Communism.(September/October 1996): pp. 15-24.

- - - - - “Democracy Assistance: The Question of Strategy.” Democratization. (vol. 4 no. 3 autumn1997): pp. 109-32.

- - - - - “The Rule of Law Revival.” Foreign Affairs. (vol. 77 no. 2 1998): pp. 95-106.

Chemonics. <http://www.chemonics.com>

Childress, Ronald M. “The Children’s Crusade: Reflections on American Assistance to the RussianFederation, 1993- 1996).” Presented to the annual meeting of the American Association of theAdvancement of Slavic Studies. 1998.

Cormaney, Mike. “Prosecuting international Crimes An Inside View: Rico in Russia: Effective ControlOf Organized Crime or Another Empty Promise?” Transnational Law and ContemporaryProblems. (Spring 1997): pp. 261-300.

Dine, Thomas A. “Statement of Thomas A. Dine, Assistant Administrator for Europe and the NewIndependent States, USAID, Before the House Foreign Affairs Subcommittee on Europe and theMiddle East.” Washington, DC. March, 24 1994.

Faundez, Julio, ed. Good Government and Law: Legal and Institutional Reform in DevelopingCountries. London: St. Martin’s Press, 1997.

Foglesong, Todd. “Habeas Corpus of Who Has the Body? Judicial Review of Arrest and PretrialDetention in Russia.” Wisconsin International Law Journal. (Summer 1996): pp. 54 l-78.

Frey, Timothy. “Contracting in the Shadow of the State: Private Arbitration Commissions in Russia.”The Rule of Law and Economic Reform. Jeffrey D. Sachs and Katharina Pistor, eds.

84

Franck, Thomas M. “The New Development: Can American Law and Legal Institutions HelpDeveloping Countries?” Wisconsin Law Review. (vol. 1972 no. 3): pp. 767-801.

Frye, Timothy. “Governing the Russian Equities Market.” Post-Soviet Affairs. (vol. 13, no. 4 1997):366-96.

Gardner, James A. Legal Imperialism: American Lawyers and Foreign Aid in Latin America.Wisconsin: U of Wisconsin P, 1980.

Gaddy, Clifford G. and Barry W. Ickes. “Russia’s Virtual Economy.” Foreign Affairs.(September/October 1998). pp. 53-67.

Gray, Cheryl W., “Reforming Legal Systems in Developing and Transition Countries.” Finance &Development. (vol. 34, no 3, September 1997) available at~http://www.worldbank.orrr/fandd/en~lish/O997/a~icles/O140997.htm~

Hendley, Kathryn. “Legal Developments in Post-Soviet Russia.” Post-Soviet Affairs. (vol. 13 1997):pp. 228-5 1.

- - - - - “Remaking an Institution: The Transition in Russia From State Arbitrazh to Arbitrazh Courts.” AJof Comparative L. (vol. XLVI no 1 winter 1998): 93-127.

- - - - - Barry W. Ickes, Peter Murrell, and Randi Ryterman. “Observations on the Use of Law by RussianEnterprises.” Post-Soviet Affairs. (vol. 13 no. 1 1997): 19-41.

Holmes, Stephen. “What Russia Teaches us Now: How Weak States Threaten Freedom.” TheAmerican Prospect. (July-August 1997): 30-9.

Human Rights Watch/Helsinki. “Russia: Crime or Simply Punishment? Racist Attacks by MoscowLaw Enforcement.” (vol. 7 no. 12 September 1995.)

Ioffe, Olympiad S. and Peter Maggs. Soviet Law in Theory and Practice. New York: OceanaPublications, 1983.

William E. Kovacic. “Getting Started: Creating New Competition Policy Institutions in TransitionEconomies.” Brooklyn Journal of International Law. (1997).

Maggs, Peter. “The Russian Courts and the Russian Constitution.” Indiana International andComparative Law Review. (1997.) pp. 99- 117.

- - - - - Gordon B. Smith and George Ginsburgs, eds. Law and Economic Development in the SovietUnion. Boulder, Colorado: Westview Press, 1982.

Malone, Ross L. “Promoting the Rule of Law: The Role of the American Lawyer.” A.B.A.J. (vol. 4.51959): pp. 242-5.

Moscow Center for Prison Reform and Ford Foundation. “Human Being and Prison.” 1998.

Murphy, Wm. Patrick, Jr. “The Russian Courts of General Jurisdiction in Crisis Undergoing Reform, orBoth?” Parker Sch. J.E. Eur L. (vol. 4 1998): pp. 207-224.

National Endowment for Democracy. <www.ned.org>

Naumov, Anatolii V. “The New Criminal Code of Russia.” Parker Sch. J E Eur L (vol. 4 1998): pp.225-39.

O’Hanlon, Michael and Carol Graham. A Half-Penny on the Federal Dollar. WDC: Brookings. 1997.

Remington, Thomas. Politics in Russia. New York: Longman. 1999.

85

Reynolds, Sarah J., ed. “The Creation and Regulation of Markets: Demonopolization and Competition.”Statutes and Decisions: The Laws of the USSR and Its Successor States. (vol. 3 1 no. 1January/February 1995).

Rigo, Andres “Remarks by Andres Rigo, Deputy General Counsel, International Bank forReconstruction and Development (the World Bank)“, in S. Schlemmer-Schulte, “Roundtable ofInternational Financial Institutions General Counsels.” American Society ofInternational LawProceedings (vol. 91 1997).

Sahlas, Peter J. and Elena Reshetnikova. “Competition Law in the Russian Federation.” Review ofCentral and East European Law. (no. 1 1997): 49-71.

Shelley, Louise. “Post-Soviet Organized Crime and the Rule of Law.” J. Marshall L R. (Summer1995). pp. 1-15.

Solomon, Peter H. Jr. and Todd S. Foglesong. Courts and Transition in Russia: The Challenge ofJudicial Reform. Forthcoming. December 1998.

Smith, Bruce L.R. and Gennady M. Danilenko, eds. Law and Democracy in the New Russia. WDC:Brookings, 1993.

Smith, Gordon. Reforming the Russian Legal System. Cambridge: Cambridge UP, 1996.

TACIS. <http://europa.eu.int/comm/dgla/contract-info/russia>

“Towards The Rule of Law.” (issue no. 1): 1998.

-----. (issue no.2): 1998.

Trubek, David M. “Toward a Social Theory of Law: An Essay on the Study of Law andDevelopment.” Yale L J(vo1. 82 no. 1 November 1972): pp. l-48.

Trubek, David M. and Marc Galanter. “Scholars in Self-Estrangement: Some Reflection on the Crisisin Law and Development Studies in the United States.” Wisconsin Law Review (vol. 1974): pp.1062-102.

USAID. “About USAID.” <http://www.info.usaid.gov/about/>.

----- Agency Performance Report, 1995. Washington, DC.

----- Agency Pe$ormance Report, I996, Summary. Washington, DC.

----- Agency Performance Report, 1997, Summary. Washington, DC.

----- brochure. “USAID Development Experience Clearinghouse.” October, 1998.

----- Foreign Aid at a Glance. 1998. Washington, DC.- - - - - ~http://www.info.usaid.gov/pubs/cp98/enilcoun~eslm.h~.~

----- USAID/Russia Activity Descriptions. March 3 1, 1998. Washington, DC.

U.S. General Accounting Office. Harvard Institute for International Development’s Work in Russia andUkraine. November 1996.

----- Promoting Democracy, Progress Report on U.S. Democratic Development Assistance to Russia.February 1996.

Vermeer, Monica. ‘Soviet Era in Russian Copyright Law: Protecting Computer Software in the Post-Soviet Russian Federation.” Transnational Law and Contemporary Problems. 1995.

86

1III1I1IIIIII

IIIII

Wedel, Janine R. Collision and Collusion: The Strange Case of Western Aid to Eastern Europe 1989-1998. New York: St. Martin’s P. 1998.

- - - - - “Clique-Run Organizations and U.S. Economic Aid: An Institutional Analysis (part 1).Demokratizatsiya: The Journal of Post-Soviet Democratization. (vol. IV no. 4 fall 1996).reprinted in the listserve “Johnson’s List.”

World Bank. “Board Package, meeting of 13 June 1996.” Available at<httn://wbln0023.worldbank.or~ConrC . ..cd4?0penDocument&ExpandSection=2.1>

- - - - - Technical Annex to the Memorandum of the President of the Russian Federation Legal ReformProject. Report No. T-6883-RU. May 21, 1996.

- - - - - “The World Bank and Legal Technical Assistance: Initial Lessons.’ Working Paper No 1414,January 1995. Available at

- - - - - World Development Report 1997: The State in a Changing World. New York: Oxford U P. 1998.

87

Abramkin, Valery.

Alekseeva, Lidiya B.

Belioukin, Vassily.

Boikov, Oleg Vitalyevich.

Briller, Vladimir.

Carothers, Tom.

Cherkasov, Alexander Vladimirovich

Childress, Ronald.

Claus, Frederic.

Coles, Walter.

Demidov, Vladimir.

Domrin, Alexander.

Ellis, Mark.

Fishman, David.

Fisher, Stanley.

Freifeld, Douglas.

Grigorievs, Alex.

Hammick, William.

Herman, Valet-i.

Holmes, Stephen.

LIST 0~ INTERVIEWEES

Moscow Center for Prison Reform, Director.

Russian Legal Academy, First Vice-President.

RFLR, Project Officer, Legal Information Project.

Deputy Chair of the Supreme Commercial Court of theRussian Federation.

VERA, Reasearch Project Director.

Carnegie Endowment for International Peace, Director ofResearch.

Memorial: Institute for Historical Education andHumanRights Protection.

Former Director of the Rule of Law Consortium,ARlXhecchi Joint Venture in Russia.

UNDP Moscow, Program Officer, Assistant ResidentRepresentative.

USAID, Washington, Privatization Officer.

Russian Federation Council of Judges, Judge.

RFLR, Consultant.

ABA Washington, Director.

Russian Constitutional Court, Rule of Law Project,Consultant.

IMF, Deputy Director.

ABAKEELI, Moscow, Country Director.

National Democratic Institute, Senior Program Officer.

USAID, Moscow, Director of Democratic Initiatives.

Intellectual Property Agency INTEL& Director.

Professor, Princeton University.

I11I1I1IIII11II11I

88

I

Kuraishi, Mari

Liefert, Patricia.

Lyday, Corbin

Maikova, Ludmila.

Mazaev, Vladimir.

McKay, Betsy.

Meyers, Mark.

Morshakova, Tamara.

Murphy, Patrick.

Peshin, Nikolay.

Popov, Evgueni

Post, Dianne.

Poznanskaya, Ludmila.

Ringler, Susan.

Ritter, Douglas.

Schwartz, Olga.

Shabarov, Alexei.

Sharlot, Robert.

Shtykanova, Elena.

Simonov, Alexei.

World Bank Washington, Senior InstitutionalDevelopment Specialist

USAID Washington, Acting Head of Division,Democracy and Democratic Reform.

USAID Washington, Senior Policy Analyst, Democracy,Governance and Social Reform, Bureau for Europe andCIS.

Russian Federation Council of Judges, Deputy Head.

RFLR, President.

The Wall Street Journal, Correspondent.

ABA Washington.

Constitutional Court of the Russian Federation, Judge.

USAID, Moscow, Rule of Law Director.

RFLR, Project Officer, Legal Drafting.

Judicial Department of the Supreme Court of the RussianFederation, Director, International CooperationDirectorate

ABACEELI, Moscow, Legal Specialist.

World Bank Resident Mission, Moscow, OperationsOfficer, Private Sector Development.

ABA Moscow, Criminal Law Liaison.

U.S. Congress, Administrative Assistant, Office ofRepresentative Curt Weldon

Duma Committee for Legislation and Judicial Reform,Consultant.

RFLR, Project Officer, Law School Grant Program.

Union College, Post-Soviet Studies, Professor, formerlywith ROLC Moscow.

World Bank Resident Mission, Moscow, CountryOfficer, Russian Country Unit.

Foundation for the Defense of Glasnost, Director.

89

Sokolova-Snegir, Irma.

Solomon, Peter.

Steelman, Richard.

Stone, Christopher.

Tabastayeva, Julianna.

Togonidze, Nina.

Vitsin, Sergei.

Volgusheva, Paulina.

Wallin, Bob.

Ward, Heather.

Ward, Mark.

Yartseva, Elena.

Yershov, Valentin V.

Zaitseva, Tatyana.

TACIS, Moscow, Technical Assistance Section.

University of Toronto, Professor of Public Policy andLaw.

USAID Washington, Russia Desk.

VERA Institute of Justice, Director.

Noerr, Stieffenhofer & Lutz, Lawyer.

RFLR Project Officer, Judicial Reform Project.

Presidential Council for the Improvement of Justice,Deputy Chair.

The Eurasia Foundation, Program Coordinator.

USAID Washington, Russia Desk.

VERA, Planner.

USAID Moscow, Regional Legal Advisor.

The Eurasia Foundation, Deputy Director.

Russian Legal Academy, President.

Krasnogorsk City Court, Head Judge.

i

1I

1

1III

I