HERE COMES THE JUDGE: LIBYAN JUDGES RESPOND POSITIVELY TO AMERICAN JUDGE'S WORKSHOP ON ARBITRATION

C O N F I D E N T I A L SECTION 01 OF 02 TRIPOLI 000485

SIPDIS

STATE FOR NEA/MAG; COMMERCE FOR ITA: NATE MASON, AND CLDP: MARC
TEJTEL, HISHAM ELKOUSTAF, AND MARAM TALAAT; ENERGY FOR GINA
ERICKSON; PARIS AND LONDON FOR NEA WATCHERS

E.O. 12958: DECL: 6/17/2019
TAGS: ECON, PHUM, PGOV, MEPI, PREL, EAID, LY
SUBJECT: HERE COMES THE JUDGE: LIBYAN JUDGES RESPOND POSITIVELY TO
AMERICAN JUDGE'S WORKSHOP ON ARBITRATION

REF: 07 TRIPOLI 707

TRIPOLI 00000485 001.2 OF 002


CLASSIFIED BY: Gene A. Cretz, Ambassador, U.S. Embassy -
Tripoli, U.S. Dept of State.
REASON: 1.4 (b),(d)
1. (C ) Summary: Under the Department of Commerce's
Commercial Law Development Program (CLDP),a U.S. federal judge
conducted a workshop for 30 Libyan judges and attorneys on
international arbitration from June 3-4 in at the High Judicial
Institute in Tripoli. The program represents the first step in
a program to expose Libyan judges to international arbitration
best practices. Our Libyan interlocutors warmly welcomed the
judge on her first trip to Libya, asked her to return to Libya
for future programs and told Emboffs that the High Judicial
Institute could directly coordinate future training sessions
without working through the MFA or MinJustice equivalents.
Holding the workshop at the judicial institute provided a window
into Libya's otherwise largely opaque judicial system, and could
in the future afford a channel in which to address more
sensitive topics such as human rights and judicial reform. End
summary.

2. (C) Under the auspices of the CLDP, Judge Delissa Ridgway
(U.S. Court of International Trade) traveled to Libya May
30-June 4 to conduct a two-day workshop for Libyan judges and
state attorneys on international arbitration. Funded by the
Middle East Partnership Initiative (MEPI),the workshop
represents the first step in a program to expose Libyan judges
to international arbitration best practices, a topic the Libyan
General People's Committee for Justice (MOJ-equivalent) had
indicated was a priority. Proposed future activities include
connecting the judges to their counterparts in Tunisia, where
there is an arbitration center, and to judges and courts in the
U.S. Strengthening the Libyan judges' expertise in this area is
expected to contribute to the long-term improvement of the
commercial legal environment,creating better conditions for U.S.
companies operating in Libya.

3. (C) Before the arbitration workshop, the Embassy's main
point of contact for commercial law programming was the
International Cooperation Department at the GPC for Justice. In
three preparatory trips to Libya (between November 2008 and
February 2009),Commercial Law Development Program staff were
unable to meet with the Libyan body responsible for actually
training judges, the High Judicial Institute; however, once
Judge Ridgway arrived, a meeting was hastily arranged by the GPC
for Justice with the Chief Inspector of Judges, Juma Bouzaid,
and the Director of the High Judicial Institute, Dr. Nouredeen
Alakrmi. Bouzaid, who speaks fluent English, was curious about
the U.S. judicial system and asked a series of cogent questions
about immunity for judges, how U.S. judges are evaluated and how
the Supreme Court decides which cases to hear. He noted that in
Libya, judges (and state attorneys) have full immunity and that
the Supreme Court would (theoretically) hear any case that had
been appealed in a lower court. The Director of the High
Judicial Institute, Alakrmi, admitted he had no prior knowledge
of the CLDP workshop (reflecting the lack of coordination on the
GOL side),but said he would quickly arrange for the workshop to
take place over the next two days. He added that in Libya,
there is a great interest in learning more about the
"Anglo-Saxon" and U.S. judicial approaches. (Note: 75 Libyan
judges are currently undergoing training in the U.K. under a
GOL-funded program to teach them English for nine months, and to
then provide training in international law. End note.)

4. (C) On June 3, approximately 30 judges and state-attorneys
showed up for the first day of the workshop. The original
proposal from CLDP called for a smaller group of judges (around
20) from all over Libya, with a gender balance. The Embassy
also asked for a list of participants prior to the workshop in
order to tailor the sessions to their backgrounds and level of
experience; however, no list was provided in advance. The group
was also intended to include only judges; however, the institute
staff explained that in Libya state attorneys could be rotated
into positions as judges on an annual basis, so it would be
beneficial to include them in the workshop as well.
Approximately half the group were women and half men; most of
the judges were men. At the coffee break, one of the female
attorneys admitted to Econoff that she did not want to become a
judge because it would take up too much time, and she needed a
more regular schedule in order to take care of her family. Very
few of the participants spoke English - the justice ministry
provided an English-speaking employee to interpret, but since he
was not a trained interpreter the quality was spotty. (Note: In
the future, it may be useful to consider funding a professional
interpreter for similar USG-funded workshops. End note).

5. (C) The workshop comprised an overview of the U.S. judicial

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system and a presentation on international commercial
arbitration, with an emphasis on the concept that in
international commerce, the two parties are free to enter into a
contract as equals and the court's role is to enforce the
contract. The importance of predictability was stressed as a
key to attracting foreign investment; the role judges and
lawyers play in ensuring fair application of the law is
therefore important in creating the perception of a favorable
business environment. Questions from the Libyan participants
included how U.S. courts would deal with General Motors'
bankruptcy and when "public order" in a sovereign nation takes
precedence over a contract. Alakrmi, the director of the
judicial institute, commented that "judges must be brave" and
give greater consideration to international public policy than
to domestic politics. Concepts such as the sanctity of
contracts and the choice of law and forum were discussed. Even
though Libya is not yet a party to the New York Convention on
the recognition and enforcement of foreign arbitration awards,
Libyan judges said most of them were familiar with the
convention since five Arab countries are already parties to it.
The presentation was followed by practical exercises involving
real cases in order for the participants to actively discuss how
they would handle various cases - Judge Ridgway said she was
impressed by their level of participation and enthusiasm.

6. (C) During the week in Tripoli, the CLDP visitors were also
able to meet with members of the construction and energy
sectors. Shell's Country Manager admitted that his company
would "move heaven and earth to avoid litigation," particularly
in Libya. They viewed their relationship as being with "Libya,
Inc." and assess that going to arbitration could seriously that
relationship and their long-term investments. Noting that Shell
had gone through an arbitration case in Qatar, he said it had
taken many years for the company to get back on track there. He
noted that while Shell's contracts with the National Oil Company
are written under Libyan law, its contracts with international
oil service contractors are usually under U.K. law. He offered
that no one trusted the Libyan judiciary, which was less than
transparent in its decisions, especially after the saga of the
Bulgarian nurses accused of deliberately infecting Benghazi
children with the AIDS virus (see reftel). In Libya, it was
still the case that relationships and negotiations take
precedence over the legal system.

7. (C) By holding the workshop at the judicial institute, CLDP
and the Embassy gained a better understanding of the legal
education system in Libya. Only about 110 students (out of 500
applicants) a year are admitted to the institute. Successful
completion of the institute's curriculum is a requirement to
become a state attorney, which is the stepping-stone to a
judgeship. Before candidates are admitted to the institute,
they must study law for four years after graduating from high
school and then pass written and oral exams. The other
alternative is to enter a private law practice and work as a
trainee for two years before becoming a lawyer. The salary for
a government lawyer ranges between 500 and 1,000 dinars a month
(equivalent to USD 400-800 a month),whereas a private attorney
can earn approximately 3,000 dinars a month (USD 2,400) or more.


8. (C) Comment: The CLDP workshop on arbitration was a good
first step in forging a working relationship with the judicial
education system in Libyan. It also provided access to the
otherwise-opaque system of justice here. The judicial
institute's director welcomed Judge Ridgway to come back to
Libya and said the Embassy could be in direct contact with him
to discuss future cooperation projects. These could include the
travel of Libyan judges to the arbitration center in Tunis, as
well as a visit to the U.S. Court of International Trade. The
enthusiasm and candor of the director were a welcome relief from
the more cautious norm, and could help pave the way to broach
more sensitive topics such as human rights and judicial reform
in the context of future training programs. Experience has
shown that while we forge a new relationship with the judicial
institute, it will also be important to double-track future
projects with the Ministry of Justice. In addition, the source
of funding for this program (MEPI) was not discussed during this
visit; MEPI remains a neuralgic issue for conservative regime
elements, who regard it as a vehicle for regime change. Most of
the judges and attorneys who participated in the workshop had
little or no previous direct experience with the U.S. and
therefore represented a new target audience for Embassy
outreach. End comment.
CRETZ