ROLE OF JUDGES

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FORUM ON ASIAN INSOLVENCY REFORM 2006

• ROLE OF JUDGES JUDICIAL EXPERTISE
• LESSONS STRATEGIES FROM THE
• GLOBAL JUDGES FORUM

Gordon Johnson Kirkland Ellis LLP
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PILOT Institutional Regulatory
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EU Institutional Regulatory
Source Philippe Partners in consortium with
Deloitte Touche Corporate Finance (Belgium)
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Lessons Learned from ROSCs

• Most significant deficiencies - ineffectual
  implementation of laws due to weak or lax
  institutional and regulatory frameworks.
• Weak implementation mechanisms for enforcement
  and insolvency procedures in some countries
  hinder achieving observance of a principle even
  though the laws are essentially sound.
• Stronger more effective institutional /
  regulatory frameworks generally led to more
  effective and efficient insolvency and creditors
  rights systems, even when the laws have not been
  modernized.
• Most common institutional problems
• inadequate training among judges and
  administrators
• inefficient case administration practices and
  procedures
• lack of transparency and inconsistency in
  decision-making
• and ineffective regulation to redress problems of
  corruption and the risk that interested parties
  may unduly influence the courts, administrators,
  trustees or other stakeholders.

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50 COUNTRIES - ALL REGIONS
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SCOPE OF SURVEY

• Commercial Enforcement
• compatibility, secured laws, registries, and
  enforcement for secured and unsecured
• Insolvency Systems
• Role of Courts
• Performance standards (qualification / training)
• Court organization
• Transparency Accountability
• Judicial Decision Making / Enforcement
• Integrity

www.worldbank.org/gild
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OBJECTIVES OF GJF

• More than 100 judges from 70 countries
• SCt, Appellate, Trial
• Annual meetings since 2003
• Sharing of Comparative Experience in Commercial
  and Insolvency Systems
• Assisting World Bank to Develop a set of
  Guidelines that can be useful to countries
  engaged in court reform
• Develop and Promote Strategies to improve
  effectiveness / efficiency of courts

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• GLOBAL JUDGES FORUM
• STRATEGIES FOR STRENGTHENING COURT PRACTICES
  PROCEDURES

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Application of Standards

• Prescription of standards should not impair
  judicial independence.
• Assessment should primarily be of court systems
  not of individual judges or their disposals.
• Independence of the appointment process
  determines the independence and competence of the
  judiciary.
• Judicial appointment mechanisms should ensure
  appointments on merit of competent independent
  judges.
• Imparting training to judges will promote
  predictability and certainty of outcomes.
  Training should be both at the inception of
  service and during the career.
• Performance evaluation mechanisms should include
  the role of Bar associations and the consumers of
  justice.

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Culture of Jurisprudence -Training

• Initial training to meet job challenges /
  pre-appointment experience.
• Judges should accept the need for CLE - key to
  changing assignments, legislative changes,
  non-legal subjects (i.e., accounting, economics,
  finance), computer training, KM
• Staff training insufficiently institutionalized,
  inconsistent, improvement needed - recommended
  regularized train
• Know where to draw the line

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Effective Courts with Limited Resources

• Human resources
• Operational support
• Training to meet objectives
• Adequate financing
• Evaluation systems
• Autonomous communication systems
• Simple proceedings Alternative Dispute
  Resolution Schemes

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Funding
46
50
45
40
35
27
27
30
25
20
15
10
5
0
Generally Sufficient
Material Deficiency
Inadequate
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Court Management - Staff
Are courts adequately staffed by...
44
50
45
40
29
35
30
25
20
15
10
5
0
Judges
Support Staff
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Court Management - Materials
Are courts materially provided for in an
adequate fashion as regards to...
53
Statistics
69
Stationary
52
Library
40
Internet
40
Computers
41
Communication Systems
48
Facilities
0
10
20
30
40
50
60
70
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Transparency Accountability

• Courts need to be user-friendly and service
  -oriented.
• Assignment procedures governed by publicly
  available rules, and where feasible random.
• Systematization and public availability of
  judicial decisions.
• Subject to available resources, technology should
  be used to enhance availability to public
  records.
• Process for judicial investigation/disciplinary
  action.
• Judicial performance by jurisdiction and by
  individual court should be objectively assessed
  and evaluated.

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Decision-Making Enforcement

• Current improvement of legislation based on the
  international principals
• Systematic summarizing of the court practice on
  bankruptcy cases
• Creation of specialized bankruptcy courts and
  adequate procedural legislation
• Intensification of judges specialization and
  level of work of arbitrations administrator
• Courts orientation on using settlement means in
  the bankruptcy cases
• Increasing the mass media role in the objective
  coverage of bankruptcy cases

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Court Ethics and Relations

• Requirement of high ethical standards for
  appointment and performance
• Identify specific ethical rules in insolvency and
  development guidelines
• Codes of ethics and customary rules readily
  accessible
• Independent authority to receive complaints
• Independent council to give advice on ethical
  doubts
• Balance public need for information with due
  process and fairness to parties

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Access to Virtual Information

• Encourage development of electronic case filing -
  reduce costs and increase efficiency
• Develop court websites for internal use,
  communication with public, publishing decisions
• Modernize court recordation of proceedings
• Use of video / computer for long distance court
  participation
• Develop traditional and non-traditional funding
  and information sources

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Court Partnering Judicial Networks

• Establish reliable and regular communications -
  pilot projects, chat-rooms
• Institutionalize partnering through twinning,
  tripling
• Implement training programs to share experience
• Provide access to legal resources
• Outreach to countries and rural areas
• ALI Court-to-Court Communication Guidelines for
  Cross-Border Insolvency Proceedings