Differences and Similarities between Georgian and European Laws
26 May, 2013
The Max Planck Institute for Comparative Public Law and International Law has granted a new scholarship program “Comparative Legal Research on Eurasian Law” designed for young legal scientists from Caucasian and Central Asian countries to three scientists from the Tbilisi State University.
The program participants stayed at the Max Planck Institute for nine months. The researchers prepared comparative research works on individually selected topics from the sphere of their country’s civil law. A total of nine scholarships were granted in frames of the program with the support of the Volkswagen Foundation. The first group started to work at the Institute from April 14, 2010; the second group visited the Institute on January 1 of 2011, while the final group’s research project started on October 1, 2011. The Law Faculty of the Tbilisi State University was represented in all the three groups by one researcher. These researchers were: Tamar Zarandia, Associate Professor at the Law Faculty, Doctor of Jurisprudence; Giorgi Tsertsvadze, Associate Professor, Doctor of Jurisprudence; Ketevan Giorgishvili, Bachelor of Law at TSU and Master of Law at the University of Cologne (Germany). The objective of the program was to introduce Western, particularly German law, to the scholarship recipients and, moreover, to provide them with opportunities to establish international contacts and to participate in international debate.
Within the framework of the program “Comparative Legal Research on Eurasian Law” Tamar Zarandia and her European colleague, Eugenia Kurzinsky-Zinger, prepared a joint scientific work “Reception of German Law of Substance in Georgia,” which will be published in a scientific collection issued under the aegis of the Max Planck Institute. “A comparative legal method is widely used in this work. The information received due to this method helps you understand your own law better and provides an opportunity to look at it from the outside. A lot of new and interesting ideas are emerging in this process. For me, it was especially interesting to analyze how this or that norm “works” in the law of that country, from where it was received. It should be said that a legal norm is a regulation determined by a particular moment of time and frequently, after reception, it obtains an absolutely different content in the law of another country,” Tamar Zarandia says.
According to her, it turned out from the research that with respect to some issues, Georgian law chose a way different from the German one and, first of all, adopted the key regulation structures from it. First and foremost, it can be said about the balance of interests existing in the norms related to bona fide buyers. “One thing is quite obvious - in respect of many issues, where Georgian law is in non-compliance with German law, we will still have to look for our independent decisions and our scientific research was just an attempt to do it. This project and the involvement of the representatives of academic sphere in it have a special importance, because the law is the product of both law-making and legal education,” Tamar Zarandia believes.
Giorgi Tsertsvadze’s research “Georgian Arbitration Law in Practice” was about legal regulation of arbitration – an alternative way of dispute resolution in Georgia – and the related problems.
“The research was about the establishment and development of private arbitration in Georgia. It emphasized the fact that the 1997 Law on Private Arbitration played an extremely negative role in the development of arbitration in Georgia and it can be said that it significantly hampered its progress. Because of incorrect regulations, the arbitration has turned into the means of enforcement of fraudulent and doubtful deals that significantly damaged its reputation among business people and ordinary citizens. Neither the judicial practice managed to improve the situation and to return it to a correct course. The procedures of recognition and enforcement of foreign arbitration decisions and the regulating legislation were also obscure. Despite signing all important international agreements, Georgia failed to become a full member of the world arbitration society,” Giorgi Tsertsvadze thinks.
According to his assessment, the new law which came into effect on January 1, 2010, basically meets the international standards of arbitration regulation and has been created in line with a model law of the United Nations Commission on International Trade Law (UNCITRAL). After enforcement of the law, the judiciary somehow managed to carry out practical realization of new regulations and the situation improved significantly. However, it should be noted that there still persist some problems, which should become a subject of future work and active discussions.
By comparing with the laws of the world developed countries, the work critically analyzes Georgian judicial practice and doctrine. The work also focuses on those problematic issues, which the court faced upon explaining and applying new norms. Practical value of these norms was ascertained through comparing with the situation in several European states and the United States (where the development of arbitration has reached an extremely high level).
“Those issues were revealed and discussed as a result of the research, which are regulated differently in Georgian law. New regulations were assessed from positive and negative points of view as well as in terms of their practical importance. It was ascertained as a result of the research that the problem of Georgian arbitration law lies not in its regulation norms (they basically meet the high international standards), but in adequate application of these norms. Those key directions were identified, on which the arbitration practice should especially focus,” says Giorgi Tsertsvadze.
The objective of Ketevan Giorgishvili’s research on “Georgian Consumer Law” was to analyze the guarantees of consumer rights in Georgian legislation and the existing shortcomings. The work provides a discussion through comparative-legal arguing about the standards set by German dogmatism and European law.
As the author explains, “a legal and factual asymmetry existing between the positions of a consumer and a provider should be balanced by legal norms, based on which a consumer will have an opportunity to make an optimal decision. The work discusses the mechanisms of protection of consumers existing in Georgian legal space in the context of their fundamental rights, particularly the right to safe products; the right to protection of consumers’ economic interests; the right to compensation of damage; the right to receive information and the right to legal defense. The results of the research show that the regulations acting in the sphere of consumer law (which is a new field for Georgia’s legal reality and an educational discipline) are faulty and do not mostly comply with the norms set by the EU directives. The research critically discusses a scarce judicial practice in respect of protection of consumer rights.”
A final event of the Max Planck Institute’s program was held at TSU in a form of an international conference. Young lawyers from Georgia, Germany, Russia, Turkmenistan, and Kazakhstan made their speeches at a conference “Development of Private Law in Caucasus and Central Asia: Transformation through Legal Transplants,” which was held on October 18-19, 2012.
The program participants stayed at the Max Planck Institute for nine months. The researchers prepared comparative research works on individually selected topics from the sphere of their country’s civil law. A total of nine scholarships were granted in frames of the program with the support of the Volkswagen Foundation. The first group started to work at the Institute from April 14, 2010; the second group visited the Institute on January 1 of 2011, while the final group’s research project started on October 1, 2011. The Law Faculty of the Tbilisi State University was represented in all the three groups by one researcher. These researchers were: Tamar Zarandia, Associate Professor at the Law Faculty, Doctor of Jurisprudence; Giorgi Tsertsvadze, Associate Professor, Doctor of Jurisprudence; Ketevan Giorgishvili, Bachelor of Law at TSU and Master of Law at the University of Cologne (Germany). The objective of the program was to introduce Western, particularly German law, to the scholarship recipients and, moreover, to provide them with opportunities to establish international contacts and to participate in international debate.
Within the framework of the program “Comparative Legal Research on Eurasian Law” Tamar Zarandia and her European colleague, Eugenia Kurzinsky-Zinger, prepared a joint scientific work “Reception of German Law of Substance in Georgia,” which will be published in a scientific collection issued under the aegis of the Max Planck Institute. “A comparative legal method is widely used in this work. The information received due to this method helps you understand your own law better and provides an opportunity to look at it from the outside. A lot of new and interesting ideas are emerging in this process. For me, it was especially interesting to analyze how this or that norm “works” in the law of that country, from where it was received. It should be said that a legal norm is a regulation determined by a particular moment of time and frequently, after reception, it obtains an absolutely different content in the law of another country,” Tamar Zarandia says.
According to her, it turned out from the research that with respect to some issues, Georgian law chose a way different from the German one and, first of all, adopted the key regulation structures from it. First and foremost, it can be said about the balance of interests existing in the norms related to bona fide buyers. “One thing is quite obvious - in respect of many issues, where Georgian law is in non-compliance with German law, we will still have to look for our independent decisions and our scientific research was just an attempt to do it. This project and the involvement of the representatives of academic sphere in it have a special importance, because the law is the product of both law-making and legal education,” Tamar Zarandia believes.
Giorgi Tsertsvadze’s research “Georgian Arbitration Law in Practice” was about legal regulation of arbitration – an alternative way of dispute resolution in Georgia – and the related problems.
“The research was about the establishment and development of private arbitration in Georgia. It emphasized the fact that the 1997 Law on Private Arbitration played an extremely negative role in the development of arbitration in Georgia and it can be said that it significantly hampered its progress. Because of incorrect regulations, the arbitration has turned into the means of enforcement of fraudulent and doubtful deals that significantly damaged its reputation among business people and ordinary citizens. Neither the judicial practice managed to improve the situation and to return it to a correct course. The procedures of recognition and enforcement of foreign arbitration decisions and the regulating legislation were also obscure. Despite signing all important international agreements, Georgia failed to become a full member of the world arbitration society,” Giorgi Tsertsvadze thinks.
According to his assessment, the new law which came into effect on January 1, 2010, basically meets the international standards of arbitration regulation and has been created in line with a model law of the United Nations Commission on International Trade Law (UNCITRAL). After enforcement of the law, the judiciary somehow managed to carry out practical realization of new regulations and the situation improved significantly. However, it should be noted that there still persist some problems, which should become a subject of future work and active discussions.
By comparing with the laws of the world developed countries, the work critically analyzes Georgian judicial practice and doctrine. The work also focuses on those problematic issues, which the court faced upon explaining and applying new norms. Practical value of these norms was ascertained through comparing with the situation in several European states and the United States (where the development of arbitration has reached an extremely high level).
“Those issues were revealed and discussed as a result of the research, which are regulated differently in Georgian law. New regulations were assessed from positive and negative points of view as well as in terms of their practical importance. It was ascertained as a result of the research that the problem of Georgian arbitration law lies not in its regulation norms (they basically meet the high international standards), but in adequate application of these norms. Those key directions were identified, on which the arbitration practice should especially focus,” says Giorgi Tsertsvadze.
The objective of Ketevan Giorgishvili’s research on “Georgian Consumer Law” was to analyze the guarantees of consumer rights in Georgian legislation and the existing shortcomings. The work provides a discussion through comparative-legal arguing about the standards set by German dogmatism and European law.
As the author explains, “a legal and factual asymmetry existing between the positions of a consumer and a provider should be balanced by legal norms, based on which a consumer will have an opportunity to make an optimal decision. The work discusses the mechanisms of protection of consumers existing in Georgian legal space in the context of their fundamental rights, particularly the right to safe products; the right to protection of consumers’ economic interests; the right to compensation of damage; the right to receive information and the right to legal defense. The results of the research show that the regulations acting in the sphere of consumer law (which is a new field for Georgia’s legal reality and an educational discipline) are faulty and do not mostly comply with the norms set by the EU directives. The research critically discusses a scarce judicial practice in respect of protection of consumer rights.”
A final event of the Max Planck Institute’s program was held at TSU in a form of an international conference. Young lawyers from Georgia, Germany, Russia, Turkmenistan, and Kazakhstan made their speeches at a conference “Development of Private Law in Caucasus and Central Asia: Transformation through Legal Transplants,” which was held on October 18-19, 2012.