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Reforms and Government Excellence

government excellence reforms Yarik Kryvoi

Prof Kryvoi regularly advises governments on reforms and excellence, with particular emphasis on the rule of law, justice, commercial dispute resolution and the legal profession. He has completed a number of comparative projects funded by governments and international organisations analysing the best practices of various jurisdictions and their implementation into different legal systems.

His experience includes:

  • Advising a government in Central Asia on reforms of its investment protection legislation and international investment agreements as a part of a project funded by the World Bank
  • Regularly advising the United Arab Emirates Government on reform of the Ministry of Justice and judiciary
  • Acting as a member of the Working Group of the Chamber of Commerce and Industry of the Republic of Uzbekistan on improving the legal framework and practice of international commercial arbitration in Uzbekistan
  • Serving as an expert for Dubai Legal Department, Dubai Government Excellence Program, advising on reform of the legal profession in Dubai
  • Conducting a World Bank-funded comparative law analysis of the best practices among the OECD States to draw recommendations for the government of a Central Asian State on the reform of rule-making, legislative procedures, functions of the ministry of justice and corporate governance
  • Preparing a report with recommendations on the development of law and policy related to foreign direct investments in international treaties and domestic law for a post-Soviet State
  • Organising training for UK government lawyers from various departments on issues of international public law, international trade law and international investment law with a focus on possible post-Brexit scenarios
  • Conducing best practices analysis to prepare recommendations for the United Kingdom and Canada governments on the post-Brexit regulation of foreign investment protection and dispute resolution mechanisms.

His academic publications related to the region include:

  • ‘Investment Promotion and Protection in the Canada-UK Trade Relationship: Knowledge Synthesis Report’ (2018) || + Abstract || Download ||

    A new investment agreement between Canada and the UK constitutes a crucial opportunity to include innovative provisions from recent international agreements and to explore new possibilities to construct a more legitimate regime. In order to support evidence-based decision-making in the negotiation of such an agreement, a comprehensive review of the range of opportunities must be provided. What are the provisions that can be included in an investment agreement between the two states to address controversial issues and support the reform of the international investment regime?

    The objectives underlying the final report are to allow policy-makers to undertake the negotiation process with a clear sense of the various provisions that are available to address the most controversial issues of international investment law and their legal implications. The report demonstrates that an investment agreement can respond to legitimacy concerns raised by a variety of stakeholders. More specifically, it provides a side-by-side comparison of provisions that have already been included in IIAs and model agreements for three specific themes: 1) dispute settlement possibilities; 2) the breadth of investment protection; and 3) obligations imposed on foreign investors.

    For each theme of the knowledge synthesis, the material that has been collected and analyzed is synthesized through a side-by-side comparison of provisions and their legal implications.

    1. Dispute settlement possibilities: The mechanism allowing private investors to submit investment claims to international arbitration has come under increasing public scrutiny, with several actors criticizing its lack of legitimacy. Some policy-makers and negotiators have responded to these criticisms through various means. The report focuses particularly on six approaches that have been included in IIAs and model agreements. These approaches range from a reformed investor-state dispute settlement mechanism through the inclusion of new provisions, a return to diplomatic protection and state-to-state arbitration, reliance on domestic courts, alternative dispute resolution mechanisms, hybrid approaches, and an investment court system.

    2. Breadth of investment protection: Addressing concerns raised by stakeholders can also be achieved by further clarifying the content of standards of protection that are traditionally included in IIAs. An enhanced level of precision is especially visible with respect to fair and equitable treatment (FET) and expropriation. Various options have been used by states to qualify FET provisions and to list the elements included in this standard of protection. Other provisions include a limiting definition of indirect expropriation or various forms of carve-outs, including for general regulatory measures.

    3. Obligations imposed on foreign investors: With a view to countering the generally asymmetric nature of IIAs, some states have chosen to address foreign investors’ responsibilities in various ways. Some examples refer to these responsibilities in the preamble of an IIA or in provisions referring to the concept of corporate social responsibility. More constraining provisions impose direct obligations on foreign investors, call for an explicit consideration of the investment’s negative impact or deny substantive protection for investment made through corruption or other fraudulent means.

  • Comparative Analysis of the National Legislation And International Good Practices in the Area of Activities of the Justice Authorities and Recommendations for the Republic of Kazakhstan, World Bank-funded project report for the Ministry of Justice of the Republic of Kazakhstan, 191pp (2018) (not public). || + Abstract ||

    This report analyses policies, legislation and procedures of justice authorities of Kazakhstan, five OECD countries with good practices in the justice sector and high level of trust in the government (France, Germany, Singapore, the United Kingdom and the United States) as well as three jurisdictions, which have recently made significant progress in reforming their justice authorities (Estonia, Georgia, and Poland).

    The analysis covers a wide spectrum of issues, including the genesis of justice authorities and their functions, the main principles of their operation, the interaction between the executive branch, the judiciary and prosecution, organisational and operational capabilities of justice authorities. This comparative analysis not only shows the best practices from various jurisdictions but also analyses the strengths and weaknesses of each system and potential problems with implementation of various models.

    The report demonstrates that justice institutions in all jurisdictions face multiple challenges. The challenges faced range from striking the right balance between safeguarding national security with privacy and civil liberties protections, the need to tackle cyber-attacks and high-technology crimes, to managing an overcrowded prison systems as well as promoting trust and strengthen relationship between law enforcement and local communities. The report shows that many jurisdictions look for better ways to facilitate relations between the justice authorities on the one hand, and the executive and the legislative powers, on the other hand.

  • Comparative Analysis of the National Legislation and Law Enforcement Practices of the Republic of Kazakhstan in Relation to Rulemaking/Legislative Drafting and International Good Practices that Regulate Rulemaking, World Bank-funded project report for the Ministry of Justice of the Republic of Kazakhstan, 217pp (2018) (not public). || + Abstract ||

    Rule-making is the main method governments use to achieve their policy objectives, be these policies related to health care, education, security or supporting rulemaking and the efficiency of procedures greatly affect whether the policy aims are achieved.

    Properly implemented high-quality regulations promote economic growth, remove unnecessary burdens, reduce inequality and help improve overall governance. Democracy and the rule of law depends upon sound regulatory frameworks. The empirical evidence suggests regulatory reform stimulates private sector development and economic growth, particularly when the quality of the existing regulatory environment is low. The quality of rulemaking is regarded as an essential element of competitiveness for any country and its attractiveness to foreign investors.

    Governments and international organisations have developed a range of efficient approaches employed at all stages of the rulemaking process, including identifying the problem which requires regulating, preparing drafts and scrutinising them, engaging various stakeholders, adopting the rules or non-regulatory alternatives and monitoring their impact.

    This report identifies the best practices on rulemaking in five the Organisation for Economic Cooperation and Development and other international organisations countries (France, Germany, Singapore, United Kingdom and United States) as well as three jurisdictions which have recently made significant progress in reforming their rulemaking practices (Estonia, Georgia, and Poland). The report also describes in detail the best national practices as well as challenges which various jurisdictions are facing in implementing reforms in rulemaking.

    This comparative analysis suggests that consulting stakeholders, particularly those which do not normally have a loud voice, remain essential for producing high quality regulations. In many jurisdictions, the focus is shifting towards a citizens-centric approach where the interests of citizens should take precedent over those of regulators. A coherent approach to rulemaking requires drafting clear and efficient regulations, adopting the regulatory impact assessment (RIA), ex ante and ex post evaluation of rules, as well as transparency and oversight.

  • Comparative analysis of the National Legislation and International Good Practices for Further Development of the Entrepreneurship Code’s Provisions, in Particular Introduction into the Legislation of the Republic of Kazakhstan of Good Practices, World Bank-funded project report for the Ministry of Justice of the Republic of Kazakhstan, 229pp, (2018) (not public). || + Abstract ||

    As businesses in the Republic of Kazakhstan increasingly engage with the world economy and compete to attract foreign investors, adjusting the regulation of the private sector to align with global best practices has become an important task.

    To facilitate this task, this World Bank supported project draws on practices of leading jurisdictions in the world to reform the provisions of the Entrepreneurship Code, which entered into force in 2016.

    An important element of the proposed reform is to effectively combine elements of Anglo-Saxon and Romano-Germanic systems to reflect the growing complexity of corporate and contractual relationships, growth in foreign trade transactions and new initiatives such as the establishment of the Astana International Financial Centre (“AIFC”).

    The report looks at three areas of law: corporate law, contract law and law dealing with the protection of foreign investments, which are divided into more focused chapters. Each chapter includes an explanatory note, substantive sections, recent reform initiatives as well as policy options and best practices for consideration.

    The national chapters include Kazakhstan, Canada, Germany, Russia, Singapore, the United Kingdom as well as a special section on public international law. This choice of countries reflects the need to take into account approaches taken in common law jurisdictions, civil law jurisdictions as well as mixed jurisdictions. Most of the jurisdictions have long established traditions of having favourable business climates and proven records of attracting foreign direct investment. The legal system of the Russian Federation is the closest to that of the Republic of Kazakhstan and their recent experience of integrating common law concepts is particularly useful. This executive summary gives a short overview of some recommendations made in the report prepared collaboratively by Kazakhstani lawyers and their colleagues from five countries.

  • ‘ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them’, British Institute of International and Comparative Law (2018) || + Abstract || Download ||

    This paper summarises key practical concerns of some members of the Investment Treaty Forum related to ICSID arbitration, as well as a wider community of experts, how the ICSID reform proposals address these concerns and makes suggestions for further improvement.

    The paper looks at key concerns of ICSID arbitration users such as timely appointment of arbitrators and challenges to it, over-committed arbitrators and their conflicts of interest, access to emergency arbitrators and fast-track arbitration procedure, procedure for summary rejection of claims and amicable settlement of disputes, consolidation of proceedings, allocation of costs and security for costs, timely rendering of awards and consistency of ICSID annulment decisions.

    The paper also includes a comparison between the ICSID Arbitration Rules and other major arbitration rules designed for investment arbitration proceedings: the UNCITRAL Arbitration Rules, the Arbitration Institute of the Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), and the 2017 EU-Canada Comprehensive Economic and Trade Agreement (CETA).

  • ‘Consolidating the International Investment Agreement Network’, UNCTAD Annual High-level IIA Conference 2017, United Nations Commission on Trade and Development (2017) (with Steffen Hindelang) || + Abstract || Download ||.

    This report summarises presentations and discussions of State representatives, intergovernmental organisations, academics and other stakeholders in Break-out Session 3 on Consolidating the International Investment Agreements (IIA) Network at UNCTAD’s Annual High-level IIA Conference - Phase 2 of IIA Reform.

    Along the lines sketched in the UNCTAD World Investment Report 2017, the participants discussed four main approaches available to States to consolidate international investment agreements:

    • issuing joint interpretative statements by parties to IIAs (an issue also discussed in BoS 2);
    • replacing old bilateral investment treaties with modern bilateral treaties one by one;
    • replacing several investment treaties with one modern regional agreement (consolidation);
    • and
    • managing relationships between coexisting treaties by transition clauses.

    States reported using all these approaches, often in combination, to manage their treaty portfolio. While replacing one treaty by another may resolve problems in individual cases, consolidation and de-fragmentation of the international network require a more systematic approach.

  • ‘Improving Arbitration Climate in Japan: Report and Recommendations’ (2017). || + Abstract || Download ||.

    Japan is the third largest economy in the world, strongly oriented on high levels of foreign investment and with large enterprises engaged in international commercial transactions. Yet despite a strong rule of law and a favourable legislative framework based on the UNCITRAL Model Law on International Commercial Arbitration it has one of the least utilised arbitration systems in Asia.

    This report and recommendations resulted from a project supported by Daiwa Anglo Japanese Foundation, which brought together arbitration experts from Japan and the United Kingdom to analyse and make recommendations on how to make Japan a more attractive destination for arbitration.

    The project included a seminar at the Institute of Advanced Legal Studies in London in May 2016 and a conference at Nagoya University in June 2016. This report analyses key issues related to development of international arbitration in Japan and propose recommendations on the basis of analysis and discussion at these two events.

  • ‘From Sanctions to Summits: Belarus After the Ukraine Crisis’, Policy Memo (European Council on Foreign Relations, 2015). || + Abstract || Download ||.

    Belarus is concerned by Russian actions in Ukraine and is trying to distance itself from Russia, including by not recognising the annexation of Crimea and calling for a peacekeeping mission. It is also suffering the effects of Russia’s economic downturn.

    • President Lukashenka has taken steps to promote the Belarusian language and identity to counterRussian influence. But he is not moving towards greater engagement with the political opposition.
    • The Ukraine crisis has reinforced the risk-averse instincts of the Belarusian people and reduced the likelihood of protests tied to elections scheduled for this year.
    • Minsk is not likely to shift from its broadly proRussian orientation, but it has made tentative diplomatic overtures to the EU.
    • The EU’s pro-democracy sanctions policy toward Belarus has failed to promote political reform and arguably pushed Belarus closer to Russia. Now the U has to focus not just on fostering democracy but on strengthening Belarusian society, which will help European interests in the long term.
    • The EU should aim to help Belarus with a modernised form of nation building, engaging with civil society, offering assistance on economic reform, lowering the visa barrier, promoting knowledge of the EU and countering Russian propaganda.

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