While years of economic development have propelled Mongolia forward in wealth and investment, its limited experience with the market economy - counting only 30 years after transitioning from a centralized communist model -has prevented the country from fully capitalizing gains and sustaining growth. One of the key obstacles identified is the lack of preparation of the judiciary to handle commercial law cases.
Since 2012, IDLO, in partnership with the European Bank for Reconstruction and Development, has been working to train the Judicial General Council and Mongolian judges to this end. To ensure predictability and to better inform capacity development needs, IDLO supported the design and piloting of a new methodology for analyzing judicial decisions, with the aim of enhancing the quality and uniformity of decisions applied around commercial law.
While the practice of analyzing judicial decisions is not new in Mongolia, this pilot built on established work to introduce fresh practices. “The IDLO-supported methodology provided for a more comprehensive review that was user-friendly and made analysis easier,” commented Justice Tungalag Dagvadorj, Member of the Judicial Professional Committee, Head of the Mediators' Council in the Judicial General Council and former Supreme Court Justice.
Justice Tungalag Dagvadorj, Member of the Judicial Professional Committee, Head of the Mediators' Council in the Judicial General Council and former Supreme Court Justice.
The results of the application of the methodology were compiled in a report and included recommendations for judges. In particular, the analysis revealed the need to bolster drafting skills among Mongolian judges, as judicial decisions don’t always meet the requirements. Instead of reading like a transcript of a conversation between the claimant and the respondent, judicial decisions should read like a narrative and be comprehensible to all, including to those without a legal background. Decisions should follow a clear logical thread: lay out an assessment of the evidence, provide proof of the claim and support a rationale and justification behind the decision taken.
The report was shared with judges across Mongolia, a move welcomed by Justice Tungalag. Furthermore, she suggested, “We need to include the mistakes that judges made in drafting the decision into the training, so that they can learn about the procedural mistakes and benefit more from the report. Usually, judges in the training work on fictional cases. If they work on cases where decisions were brought and analyzed - with proper measures ensuring confidentiality - and explain to them what needs to be done in the resolution of the cases, it will be more productive for the judges.”
In addition to identifying areas for capacity development, the new methodology for analysis reaffirmed that the legal environment for resolving commercial disputes in the country is strong. As commercial laws are regulated by the civil code in Mongolia, it creates an opportunity for the country to develop stand-alone legislation on commercial law. If adopted, it would mark a significant step forward in terms of the country’s application of international laws and conventions - a development made even more promising given Mongolia’s historically quick integration of international best practices, as exemplified by the process of mediation becoming a norm in civil cases in recent years.
“Judicial decisions have improved dramatically compared to my previous years working as a judge,” remarked Justice Tungalag, highlighting the strides made in the country. “It’s the result of the investment courts and the Judicial General Council are receiving from organizations like IDLO.”
With this foundation, bolstering the quality of judicial decisions can pave the way for even more opportunity in the country, including for businesses, adding a greater purpose to the work on analysis.
Speaking about her determination for the future of judicial analysis, Justice Tungalag remarked, “We want to see the fruits of our work.” Going forward, efforts will be focused on mainstreaming the methodology and supporting its sustainability.