Identifier
Created
Classification
Origin
09ASHGABAT285
2009-03-03 03:57:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Ashgabat
Cable title:  

Ashgabat: Request to Remove Article 14 from Model Lease

Tags:  AMGT ABLD TX 
pdf how-to read a cable
VZCZCXYZ0005
RR RUEHWEB

DE RUEHAH #0285/01 0620357
ZNR UUUUU ZZH
R 030357Z MAR 09
FM AMEMBASSY ASHGABAT
TO RUEHC/SECSTATE WASHDC 2392
RUEHNT/AMEMBASSY TASHKENT 0008
UNCLAS ASHGABAT 000285 

SENSITIVE

SIPDIS

DEPT FOR SCA/CEN CGuest, SCA/EX/PMO, JSalpini, L/BA - TMeyer
DEPT ALSO FOR OBO/PRE/BAS KTroutman and OBO/OM/AM/SCA MUnglesbee
AMEMBASSY TASHKENT FOR FM

E.O. 12958: N/A
TAGS: AMGT ABLD TX
SUBJECT: Ashgabat: Request to Remove Article 14 from Model Lease

Ref: Emails Meyer/Bayat 02/26/2009-03/01/2009

UNCLAS ASHGABAT 000285

SENSITIVE

SIPDIS

DEPT FOR SCA/CEN CGuest, SCA/EX/PMO, JSalpini, L/BA - TMeyer
DEPT ALSO FOR OBO/PRE/BAS KTroutman and OBO/OM/AM/SCA MUnglesbee
AMEMBASSY TASHKENT FOR FM

E.O. 12958: N/A
TAGS: AMGT ABLD TX
SUBJECT: Ashgabat: Request to Remove Article 14 from Model Lease

Ref: Emails Meyer/Bayat 02/26/2009-03/01/2009


1. (U) Sensitive but unclassified. Not for public internet.


2. (U) ACTION REQUEST: This is a time sensitive action request for
permission to remove Article 14, Disputes Resolution, from Post's
residential leases in order to continue normal leasing operations.
See para. 8.


3. (SBU) SUMMARY: A recent host Government decree requires Post's
residential landlords to register their leases with local government
authorities and request permission to lease their apartments and
houses. The local authorities are compelling the exclusive use of a
locally designed "model lease," to replace all existing leases,
regardless of status or terms. Post management has determined the
local model lease to be detrimental to USG interests, which
includes, among other things, a maximum lease term of one year.
Through careful negotiation, Post believes it can get approval from
the registering authorities to avoid the local model lease by
submitting an amended version of the standard OBO lease for
registration and approval. Because of Turkmenistan's flawed and
ineffective judicial system, Post believes the best way to protect
USG leasing interests is to find a negotiated solution with those
who control its ability to rent residential properties. Local
registration authorities have demonstrated a willingness to review
the USG lease once Article 14 is removed and Post requests
Department approval to amend its leases accordingly. END SUMMARY.


NEW DECREE REQUIRES NEW LEASES


4. (U) A January 2009 decree from Turkmenistan's highest interagency
body, the Council Of Ministers, requires all residential landlords
to re-register their leases with local authorities and seek
permission to lease their apartments and houses. Embassy landlords
who have tried to register the standard U.S. Government lease have
been rejected and instructed to sign a new local model lease. The
new local model lease radically differs from the USG model,
substantively altering or neglecting nearly every element of the OBO
standard agreement. Landlords who are unable to register their
leases do not have permission to lease.

NO RULE OF LAW MEANS NO LEGAL SOLUTION



5. (SBU) Turkmenistan remains an authoritarian state with no rule of
law. The enforcement or non-enforcement of contracts and laws can
be entirely arbitrary, depending on the will of those in
decision-making positions. The USG has no recourse to a fully
implemented body of law, nor to a properly functioning legal system.
Instead, on the ground reality is that the legal system, such as it
is, is enforced by individuals who lack judicial independence. As a
result, the Embassy is unable to pursue a legal argument for the
sanctity of our leases in local courts.


6. (SBU) Local authorities have wide discretion on how to apply
vague and contradictory laws. The distinction between what is legal
or illegal often depends solely on what is in fact allowed or
authorized at the implementing local levels. In essence, a local
authority can have the power to determine legality based on whether
or not it stamps the relevant paperwork. This is precisely the
situation in which Post finds itself with regard to lease
registrations. The President's top advisors have decreed that all
leases should be uniform, so all leases will be uniform. How such a
policy is implemented, what effect the changes might have, or what
the rights of the parties are not considerations.

A NEGOTIATED SOLLUTION


7. (U) Because of the status of the local judicial system, Post has
worked to find a negotiated solution with the local authorities
responsible forregistration and permission to lease. Careful
negotiations over several weeks have finally resulted in tentative
approval to modify the USG's existing leases, instead of replacing
them with the new local model lease. The local registering
authorities have requested the Embassy to make two small changes and
remove Article 14, the "Disputes Resolution" clause. The local
registration authorities have, on more than one occasion, asserted
that Article 14 is not locally applicable. Post believes that given
the absence of a functioning judiciary, there is virtually no chance
that a landlord would engage the Embassy according to the terms of
the Contracts Disputes Resolution, in a U.S. or Turkmenistan court.



8. (U) ACTION REQUESTED: Post believes finding a negotiated
solution with those who control its ability to rent residential
properties is the best possible resolution and kindly requests that
the Department expeditiously authorize a waiver for the removal of
Article 14. Once amended, Post will submit one lease for
registration. Should this negotiated method prove successful, Post
will amend its other leases, as they come up for registration.



9. (SBU) COMMENT: While the new decree makes the landlord
exclusively the subject of the new law, the potential effect is
primarily on the Embassy. Landlords who cannot register their
leases cannot continue to rent to the Embassy, threatening
operations. Other individuals and institutions, including several
Western embassies, have simply opted to subject themselves to the
newly proscribed lease. Post hopes to avoid such a fate, as the
terms and conditions of the local model lease sharply alter the
balance of rights and responsibilities in favor of the landlord and
include items such as a maximum lease term of one year. At the
moment, Post's landlords are under extreme pressure to register.
One landlord has already sent a request for termination because he
cannot get permission to lease using the existing Embassy lease. A
speedy resolution to this issue is essential, because defiance of
Turkmen authorities, for any reason, is dangerous for local
nationals. END COMMENT.


10. (U) For further information please contact Management Officer
Jonathan Bayat (bayatj@state.gov).

MILES