judicial reform and globalization in latin america (2008)
TRANSCRIPT
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INTERNATIONAL INSTITUTE FOR SOCIOLOGY OF LAW (IISL) OÑATI- BASQUE COUNTRY- SPAIN
Limits to Globalization The Case of the World Bank and Model
Court Reforms in Argentina
By Carlos José Perette
Thesis Director: Professor Halliday - American Bar Foundation
Master Program 2007-2008
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Table of Contents
Abbreviations, 3
Introduction, 4
PART I: Globalization and Judicial Reform
1.1 Globalization of Law and Judicial Reform, 17
1.2 Judicial Reform in Latin America under the Frame of LAD and ROL Programs, 19
PART II: Judicial Reform in Argentina and the World Bank
2.1 The World Bank and the Promotion of the Rule of Law , 22
2.2 The Judicial Reform in Argentina and the World Bank, 23
PART III: The PROJUM
3.1 World Bank Court Development Project (PROJUM) as a case study, 29
3.2 Description of the PROJUM, 32
3.3 Actors and Agents in the PROJUM and the Argentinian Judicial Reform, 36
3.4 PROJUM Evaluation, 42
3.4.1 The PROJUM as a Pilot Court Model Program, 43
3.4.2 The PROJUM and the World Bank assessment, 45
3.4.3 The Evaluation of the PROJUM Outcomes through Organizational techniques, 46
PART IV: Explanations, 65
Conclusions, 80
Annexes, 84
Bibliography, 87
E-Journals, Newspapers, Internet Sites, 92
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Abbreviations
AOJ: Administration of Justice
CPACF: Colegio Público de Abogados de la Capital Federal
FORES: Foro de Estudios sobre Administración y Justicia
IBRD: International Bank for Reconstruction and Development – World Bank
IFIs: International Financial Institutions
IMF: International Monetary Found
LAD: Law and Development
LDM: Law and Development Movement
LIL: Learning and Innovation Loan
NCSC: National Center for State Courts
PCU: Project Coordinator Unit also known as CPU in Spanish
PROJUM: Proyecto Juzgado Modelo – Model Court Development Project
ROL: Rule of Law
UAC: Common Administrative Unit
WB: World Bank
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Introduction
In recent years, the agencies promoting judicial reform have proliferated in Latin America and
worldwide. At the same time, globalization has enhanced the possibilities of reciprocal influence
among judiciaries of different countries, the formation of international networks of justices
(Slaughter, 2004:65-103), making communication and cooperation between judges much easier and
more dynamic and, to a large extent, transforming the long-established forms of interaction.
In Latin America “the high-intensity globalization character of the reformist pressure on the
judicial system” (Santos, 2000:269), exerted by global actors, has also brought about the emergence
of new regional networks focused on judicial system both at local and regional levels. They are
mainly focused on judicial reform, conceiving it as a necessary step to institutional development and
the strengthening of democracy. For instance, CEJA (JSCA), an initiative held by American states
aiming at giving technical assistance to reform efforts undertaken in the American continent, is one of
the most important initiatives comprising American countries.
Another example of the increasing importance of judicial reform in the agenda of Latin
American countries is the Cumbre Judicial Iberoamericana, which includes the higher judicial levels
of Latin American countries, also including Andorra, Spain and Portugal. In the last meeting the
“XIV Cumbre Judicial Iberoamericana” was under the thematic banners of Judicial modernization,
legal security and predictability, access to justice and social cohesion (Revista Cumbre Judicial
Iberoamericana, 2008).
These global trends are taking place simultaneously with a tendency of politicization of the
judiciary which is broadening the traditional role of the Judicial branch in the division of state powers,
being previous concepts challenged (Sweet, 2000:127, Santos, 2000), mainly in Europe, where the
Judiciary and the Constitutional Courts have gained more and more political importance.
In Latin America Judicial Reform is fostered not only by the governments or regional
agencies, but also through the intervention of International Organizations, Multilateral International
Financial Institutions(IFIs), Government Agencies like USAID and many other European Foreign
Assistance Agencies, as well as by Private US and European Foundations (Carothers 2001, Domingo
et al, 2001; Salas, 2001).
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As will be developed below, this study is based on globalization and law theories. Four main
“approaches to globalization and law” have been developed “-world polity, world systems, post-
colonial globalism, law and economic development-” (Halliday et al, 2006:1) . Law and economic
development is only one of the mainstreams existent in global legal studies. Even though LAD is only
one of the possible approaches, the study of this epistemic community will be more deeply
undertaken since LAD and ROL approaches have given rise to an enormous industry of programs
and provided the theoretical tenets in which global actors support their agency. This should not be
understood as if I had taken a position to support LAD theoretical approaches. On the contrary, I have
focused my study on this epistemic community in order to help explain a program, named PROJUM,
in Argentina. I conceive of LAD as another force operating in global legal affairs. This is so because
LAD has fostered legal institutional development and been a determinant for the increase of ROL
programs worldwide in which the PROJUM is framed. Due to this, an important portion of this study
will be dedicated to LAD analysis.
Bryant Garth(2002:1) argues that:
”resources and institutional support have multiplied tremendously, reflecting the fact that law and development programs are now at the forefront of the agendas of development agencies in the United States and Europe, the World Bank and the IMF, the State Department, the American Bar Association, and even the U.S. Supreme Court. There is now a rather large rule-of-law industry ready to compete for the ever expanding grant money and to promote “best practices” around the globe. Judicial reform is at the heart of today´s programs.”(Garth, 2002:1)
Judicial Reform and Rule of Law (ROL) programs in Latin America, undertaken with foreign
assistance, have intrinsically been linked to the concept of Development to the extent that the export
and transplant of western legal standards (Pistor, 2002) is perceived as necessary in order to produce
economic, political and social development.
At the initial phase, the first efforts in promoting legal and judicial change in developing
countries are historically rooted in the agency of US scholars in the 1960s, which saw law as an
important factor for economic development and, consequently, elaborated a body of doctrines in order
to export legal templates to developing countries. This movement is known as the Law and
Development Movement (LAD). LAD programs entailed investments in developing countries aiming
at provoking legal transformations which were focused mainly on the improvement of legal education
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by means of the incorporation of interdisciplinary courses and the adoption of the US casebook
method of law teaching. (Salas, 2001, Tamanaha 1995)
The second movement, which began in the middle 1980s, is known as the Rule of Law (ROL),
differentiated from the first LAD but both sharing substantial relevant points in common. Law and
Development (LAD) and Rule of Law (ROL) programs are sometimes used as synonymous in this
paper, even though they correspond to different epochs and sometimes to different theoretical
approaches. Nevertheless, both concepts and ideas are engaged basically with legal and governance
matters aiming at securing free markets and property right protection worldwide.
The programs of “judicial reform” promoted by global actors and developed from the
postulates and axioms supported by LAD and ROL scholarship framed under a rationalistic Weberian
model of thought (Halliday et al, 2006 ) are only a small part in the global promotion of the rule of
law in this case through institution-building initiatives.(Salas, 2001: 17-46, Carothers, 2001;
Santos,2000; Rodriguez Garavito, 2006). Carothers (2003:3) summarizes briefly the main obstacles
that ROL initiatives have to face and, by doing so, the author frames conceptually the epistemological
limits entailed by ROL:
“Although the current rule-of-law promotion field is still expanding as it approaches the end of its second decade, it still faces a lack of knowledge at many levels of conception, operation, and evaluation. There is a surprising amount of uncertainty, for example, about the twin rationales of rule-of-law promotion—that promoting the rule of law will contribute to economic development and democratization. There is also uncertainty about what the essence of the rule of law actually is—whether it primarily resides in certain institutional configurations or in more diffuse normative structures. Rule-of-law promoters are also short of knowledge about how the rule of law develops in societies and how such development can be stimulated beyond simplistic efforts to copy institutional forms. And the question of what kinds of larger societal effects will result from specific changes in rule-of-law institutions is also still open. Although aid institutions engaged in rule-of-law assistance do attempt some “lessons learned” exercises, many of the lessons produced are superficial and even those are often not really learned. Several substantial obstacles to greater knowledge accumulation in this field persist, including the complexity of the task of promoting the rule of law, the particularity of legal systems, the unwillingness of aid organizations to invest sufficient resources in evaluations, and the tendency of both academics and lawyers not to pursue systematic empirical research on rule of-law aid programs. Whether rule-of-law aid is on the path to becoming a well-grounded field of international assistance remains uncertain.” (Carothers, 2003:3)
In this study, justice reform efforts, promoted through foreign aid1 in Argentina, will be addressed. In
order to evaluate the form in which these programs have been articulated in practice, one specific
program, financed by the World Bank in Argentina during the 1990s, has been chosen –The PROJUM.
1 From ROL programs a wide range of questions has arisen. A detailed study of them will not be undertaken in this
paper since ROL programs have to deal with an innumerable number of challenges coming from epistemological weaknesses, to pragmatic problems, from legal obstacles to gray conceptual zones and political struggles.
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Two interconnected claims frame this study. The first one is formed by two paradoxically
competing claims which, in some sense reinforce the idea that in sociological matters non-definitive
conclusions can be taken for granted so as to exclude other approaches. The first claim is that the
Programs of Judicial Reform, financed by the World Bank in Argentina under the frame of LAD or
ROL paradigms, have produced very few effective changes and actual improvements in the National
Judiciary. The effectiveness and impact of these projects in provoking relevant judicial changes at
National Judicial levels in Argentina is addressed here through a deep study of one single Program
developed by the World Bank in Argentina: the Model Court Development Project (PROJUM), which
indeed became the unique program financed by the WB in Argentina aiming at producing judicial
reform in the national judiciary. Other programs financed by the WB at national level consisted of
grants or loans that pursued to obtain judicial sector diagnostics but not operational changes in the
national judiciary.
The first claim is also counterbalanced by a competing idea: Paradoxically and jointly with
their lack of effectiveness to produce sustainable judicial reform, the PROJUM and other initiatives
led by IFIs have had the virtue to establish Judicial Reform as a central governance point of the
Argentinian National Government Agenda. This phenomenon, in some way, has been complemented
with the agency of think tanks –“business oriented organizations” (Riggirozzi, 2006)- and with the
advocacy of civil society and NGO networks. Beyond their antagonistic positions and the disparate
assumptions held by think tanks and some NGOs about the character of the reforms, both of them are
engaged with the improvement of the Judiciary and the administration of Justice as a phenomenon
globally present (Rodriguez Garavito, 2006; Dezalay & Garth, 2002; Santos, 2000). In short, the
interconnected claims could be synthesized in that, despite the lack of effectiveness and poor results
obtained through the PROJUM implementation, the program had the virtue to reinforce judicial reform
as a central point of governance agenda.
The second claim is that to be successful the Programs financed with foreign assistance
aiming at producing effective judicial reform and improvement in Argentina must be rooted in more
empirical research and agency conducted before the launch of the program. It should take into
account local expertise in order to build a minimal consensus about the benefits and the forms of the
reforms, in which a strong leadership from the judicial governance authorities is critical for any
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program success.(World Bank, 2002). In this order of ideas it is remarkable that previous and stronger
agency becomes a condition sine qua non in order to produce “ownership” (Shihata, 1995 b) by
Argentine local actors based on consensus and under strong support and leadership from judicial
governance authorities in order to generate successful outcomes.
To consider these claims this research focuses on one program launched in Argentina in 1998
through a loan given by the World Bank –IBRD Section2: The Model Court Development Project-
PROJUM as known in Argentina3- (World Bank,1998, 2006). The Model Court Development Project
(PROJUM) was launched in the late 1990s aiming at producing effective judicial reform in Argentine
National Courts in the context of legal and governance changes imposed on developing countries in
the last decades under the “rationalistic” schemes of deregulation, privatization and modernization of
the State as a direct effect of the Washington Consensus. The Pilot Program used 12 Federal Pilot
Courts: 10 of them located in Buenos Aires (4 Civil Courts, 3 Commercial Courts and 3 Social
Security Courts), 1 of them located in Resistencia Province of Chaco and another one located in Mar
del Plata, Province of Buenos Aires, the latter two with multijurisdictional competences.
In the PROJUM the accent was placed on the improvement of justice through managerial
techniques and, in consequence, the more political aspects of judicial reform such as the independence
of the judiciary or transparency were avoided. The local expertise and the social claims of the local
population of those days were not taken into account or completely heard. They had been pressing for
judicial independence and also social justice for a long time. The Reform attempt of the judiciary was
secondary to managerial aspects (Riggirozzi, 2006; Finkel ,2004) and, to some extent the WB
seemed to take a position in favour of administration policies held by the Argentine government of
those days, clearly engaged with current IFIs paradigms and pressures.
In order to promote governance reforms, aid agencies worldwide have elaborated a wide range
of programs that often impose evaluation as an integral mechanism of the program itself. In order to
measure or evaluate judicial performance and programs, results have been achieved by means of
different tools, key performance indicators and techniques which involve different kinds of
2http://web.worldbank.org/external/projects/main?Projectid=P050713&Type=Implementation&theSitePK=40941&pagePK=64330676&menuPK=64282137&piPK=64302789 Consulted on 24th. February 2008.
3 PROJUM is the usual widespread name to identify the program and its implementation in Argentina and here it will be used this name when referring to the Model Court Development Program.
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scientific approaches, which are closely dependent on the goals followed by the evaluation. In other
words, there are multiple goals followed in judicial reform initiatives and, consequently, diverse tools
and techniques are utilized to implement the reform and to measure the results. One program, for
instance, can aim at improving the independence of Justice, another the access to justice, or the
promotion of Alternative Dispute Resolution (ADR) Mechanisms or to improve the court
management; there can be a comprehensive reform program or a specific small program like the
PROJUM, etc. The tools utilized to attain those results will be differentiated depending on the goal or
objectives of the program and involving different disciplines to accomplish the objectives followed.
The evaluation of the outcomes is usually weighted through judicial measurement indicators
which have given rise very technical- jurimetric evaluation systems monopolized by consultants and
very far from the current capabilities and skills of lawyers and judges. Legal studies in Argentina
provide the necessary knowledge to deal with legal cases but not with the necessary administrative or
organizational notions in order to properly lead the administration of courts. The lack of a Judicial
School, which trains candidates to become judges, has also been a problem in Argentina. (Garavano,
interview N°6 )
The pilot court program consisted mainly of the improvement of judicial administration
through the introduction of case management techniques, staff training programs, layout adequacy,
computerized system provision, etc. The PROJUM required for its implementation the assistance of
external consultant experts in management and organizational matters. The task to modernize the
PROJUM Courts was not an easy task and demanded exceptional efforts from the Judges and
personnel thus overloading their work, which, to some extent, put under risk the whole program and
its outcomes.(Simari interview N° 11 and Bello interview N° 4)
Regarding the PROJUM, the tensions existent in the global scenario and the hegemonic and
counter hegemonic forces (Carroll, 2007:39) were also reproduced locally through the traditional
contesting ideological and political positions which often struggle to impose their own conceptions on
governance matters. Up to a point, these contesting positions, struggling for meaning building and
political influence, were present in the PROJUM by the reproduction of the tensions existent, for
example, between supporters of modernization theory and those of dependency theory.
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One of the most important obstacles that the PROJUM had to face was to overcome political
and ideological struggles held by some of the actors involved. This was principally evident in the
contesting positions assumed by some members of the National Judicial Council. The Council (el
Consejo) is a collegiate body in which the deliberation is held under a wider democratic representation
and where political struggles are not rare. The Judicial Council, created in 1994 by the reformed
National Constitution to appoint National and Federal judges and with wide faculties in the
administration of the Judicial branch among others, played a central role in the implementation and
culmination of the PROJUM. It was the Council’s decision to follow the program after its continuity
had been in a risky situation under the sphere of incumbencies of the Ministry of Justice and Human
Rights, with very poor results for some years. It was not an easy task to conclude with the
implementation of the Program. It had to overcome serious resistance inside the Judicial Council, and
also from Judges and Unions representatives, and it mainly had to deal with a negative atmosphere
around the program. These together reveal one of the central problems of the PROJUM, which was the
absence of a minimal consensus in its implementation and the lack of a unified and solid political
decision and leadership.
The non-replication of the PROJUM in other national courts, a decision made by the Judicial
Council after the program ended, shows that the lack of consensus around the program rather than a
defective design of the program itself led to the PROJUM failure. Probably, if the Program had been
agreed on by main policy and research actors under a strong leadership exerted by judicial governance
institutions, the program would have been successfully completed and adapted in order to be
replicated. The non-replication of the program was decided because the short-term results of the
program were very poor and the WB’s lack of willingness in its support was remarkable. As a result of
the strong difficulties the program had to face, the Judicial Council decided the best choice was to
abandon the program. This lack of commitment to the program in some sense evidences a hazardous
waste of human and financial resources. The lack of commitment to program continuity is a serious
warning for local actors, mainly judges and court personnel, against this kind of programs financed by
IFIs where not only the seriousness of local governance authorities is in question but so too is the
credibility of IFIs.
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In this paper the evaluation of the PROJUM and its assessment will be undertaken not only
through management techniques but also through other standpoints as will be more deeply
explained in the theoretical framework. A socio-legal approach will permit a wider evaluation of
the PROJUM results and the actors involved, the contesting interests, the mechanisms used, the
conditionalities, the power supporters and detractors, the outcomes and the impact of the PROJUM
(Halliday et al, 2006).
This paper begins with the analysis of the theoretical framework in which this study is rooted
and the methodology and empirical research conducted. It is divided into four parts besides the
introduction and the conclusions. The first part of the study “Globalization and Judicial Reform” is
divided into two sections: 1. Globalization of Law and Judicial Reform; and 2. Judicial Reform in
Latin America under the Frame of LAD and ROL Programs. In the second Part this study turns to the
Argentinean Judicial Sector assessment, the role of the World Bank as a financial unit for the
promotion of governance reforms, as knowledge producer and meaning exporter mainly in developing
countries and in the Argentinean Judicial Reform; it also includes the programs financed by external
donors and internally produced by Argentine stakeholders. In the Third Part, the main section of this
paper, the specific program of the PROJUM will be depicted and assessed under a variety of
approaches aiming at giving relevance and meaning to this research study. Part Three is divided into
three sections: 1- the description of the PROJUM; 2- Actors and Agents in the PROJUM and the
Argentinian Judicial Reform ; and 3- the PROJUM evaluation. The chapter for the evaluation of the
PROJUM is divided into the following subsections: The PROJUM and the World Bank assessment;
the PROJUM as a Pilot Court Model program; the evaluation of the PROJUM outcomes through
managerial techniques. Finally, the last part provides the final explanations in which the program will
be approached under a deeper contextual socio-legal analysis.
Theoretical framework:
The pressures exerted by IFIs and the intervention of foreign actors in domestic legal systems are not a
new trend in the world. The great influence of Romanic law over western legal systems spreads its
influence up to our days. The pressures for the adoption of unified legal systems were not a minor
question in the “new world” territories incorporated by European conquests of America and other
regions assisted by legal or cultural-religious patterns where European legal models were transplanted
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in the newly conquered territories. Entire civilizations were almost extinguished in many parts of the
world and those remaining alive had very few chances to impose their customs, causing their own
legal conceptions to disappear or to be maintained in closed indigenous frames. These legal
interactions evidence an ongoing process up to now but these legal exchanges among different legal
cultures, which, during centuries were framed into the nation state political divisions, are facing a new
global challenge in which nation-state paradigms are being supplanted or at least challenged by new
waves of global standardization of law. (Pistor, 2002)
The new American states imported the legal systems from their colonizing countries and
almost nothing “officially” remained from the former indigenous “legal systems”. French, Spanish,
Portuguese, Dutch, German and English law expanded in America, Asia, Africa and other colonized
territories. The Napoleonic Codes, under the umbrella of the Nation State, gained an enormous
influence over continental Europe and their colonized territories. The English common law spread its
influence over the British dominions in America and worldwide. (Berkowitz et al, 2001)
French Law -Napoleonic Codes- was in turn transplanted throughout continental Europe even
into Spain and Portugal, former colonizing powers in Latin America. The Spanish Legislation
influence -in power in the new world colonies until the independence of the Latin American countries
and even after- was supplanted by other legal families in the XIX century. Something similar
happened with the English dominions in America with the adoption of the English legal system. The
French law after the Napoleonic Civil Code expanded through Latin America and most of continental
Europe even to the ex empires of Spain and Portugal.
In this context and taking into account legal transplants in the last 200 years, Pistor, Berkowitz
and Richard (Berkowitz et al, 2001:166, hereinafter PBR) argue that “there have been three major
transplantations of legal codes”. The first one was the aforementioned transplant of French law and
English law. The second one, after “World War II” when “many newly independent states once
again borrowed legal code from major western powers” and “[t]hird, following the collapse of
socialist system in the late 1980s, countries in Central and Eastern Europe and the Former Soviet
Union rebuilt their legal systems drawing heavily on the European and the United States
models.”(Berkowitz et al 2001:166). BPR argue that for “law to be effective, it must be meaningful
in the context in which it is applied so citizens have an incentive to use the law and to demand
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institutions that work to enforce and develop the law.” In other words, law should be adapted to local
conditions in order to work more effectively. The BPR´ thesis is intrinsically connected to my claims
in this study, mainly the second one, when it argues that the Programs financed with foreign
assistance aiming at producing effective judicial reform and improvement in Argentina must be
rooted in more empirical research and agency conducted previously to the programs launching and
taking into account local expertise in order to build a minimal consensus about the benefits and the
forms of the reforms, in which a strong leadership from the judicial governance authorities is critical
for any program success.
The work of PBR is framed theoretically in “an emerging literature that attempts to explain the
variance of institutional development across countries”(Berkowitz et al, 2001:167) in which the most
relevant background for my study is the one conducted by Rodrik (2000, quoted by Berkowitz et al,
2001:167) “who provides empirical support for his argument that a well designed strategy for
institution building should take into account local knowledge, and should not over emphasize best
practices blueprints used in developed countries at the expense of local participation and
experimentation” (Berkowitz et al, 2001:167).
Rodrik’s argument about the relationship between blueprints and local knowledge are key
points and provide support to our thesis:
“Tacitness implies that much of the knowledge that is required is in fact not written down, leaving the blueprints highly incomplete. For both sets of reasons, imported blueprints are useless. Institutions need to be developed locally, relying on hands-on experience, local knowledge, and experimentation. The two scenarios are of course only caricatures. Neither the blueprint nor the local knowledge perspective captures the whole story on its own. Even under the best possible circumstances, an imported blueprint requires domestic expertise for successful implementation. Alternatively, when local conditions differ greatly, it would be unwise to deny the possible relevance of institutional examples from elsewhere. But the dichotomy--whether one emphasizes the blueprint or the local knowledge aspect of the process--clarifies some key issues in institution building and sheds light on important debates about institutional development.” (Rodrik, 2000:15-16)
BPR´s congruent argument of the “transplant effect” that the more adapted to local conditions the
more effective the legal transplants also theoretically frames the claims made in this study when I
analyse the reasons for the failures of the pilot court model implemented in Argentina.
In “The Globalization of Law” Halliday & Osinsky (2006) point out the elements necessary
for a comprehensive theory of Globalization and Law: Outcomes; Agents; Mechanisms; Power and
Structures and Arenas. They are constant concepts visible in legal globalization processes which
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become relevant tools to sociologically frame global legal studies in order to overcome the” gaps in
explanation” and contradictions among the four main “approaches to globalization and law” -world
polity, world systems, post-colonial globalism, law and economic development-“(Halliday et al, 2006)
. In this study, these categories have been essential to frame theoretically and give account of the
factors intervening in the PROJUM, namely, the actors involved, the mechanisms used, and the
pressures exerted. The central thesis of Halliday and Osinsky (2006:3) is that “the closer the
globalization of legal norms and institutions reaches to transformations in core local values and
practices, the greater the contestation is likely around those norms.” This provides theoretical
sustainability to the main claims I make in this paper because the resistance to IFIs interventions in
judicial institution building in Argentina, by means of PROJUM, stemmed from central core values in
the Argentinian legal culture and judicial style.
In the scenario of legal globalization IFIs play a central role in the construction of a legal
global architecture (Pistor,2002; Halliday et al, 2006; Dezalay et al, 2002; Santos, 2000 ). IFI
hegemony (Halliday et al, 2007 a:285-292) and their apparently enormous power to exert pressure on
domestic legal systems has been challenged by local constituencies in many countries embarked in
legal or institutional adaptations. Sometimes IFI agency for legal change and adaptation of
international legal standards is foiled by the opposition of domestic stakeholders and local
governments like in the case of Indonesia, Korea and China. Domestic resistance mechanisms
mentioned include: Outright refusal; Invocation of Cultural Exceptionalism; Symbolic compliance;
Substitution of a solution recommended by IFIs; Temporal Delay; etc. (Halliday & Carruthers 2007a:
285-292). Such resistance, mainly Symbolic compliance, Temporal Delay and Invocation of Cultural
Exceptionalism, were also adverted in the empirical research conducted in this study.
Beyond the enormous power of IFIs and their long expertise in dealing with countries in crisis
IFIs also have to deal with strong constraints. First, IFIs “operate under severe time constraints in
emergency situations. They move from crisis to crisis, their attention span is limited, and their
resources are stretched to the limit, since each lawyer in the IMF Legal Department has
responsibilities for many countries on different continents. The World Bank had no lawyer specialists
dedicated to insolvency during the Crisis”(Halliday et al, 2007a:293). Second, IFIs recommendations
are based on not accurate diagnostics which are elaborated by IFIs “practitioners/diagnosticians.
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Indeed, adequate institutional analysis requires skills that IFIs experts conventionally do not have.”
(Caruthers and Halliday, 2006)” (Halliday et al, 2007 a:293). Third, IFIs programs should be rooted
“on contextual, institutional and cultural conditions that are beyond the usual expertise of IFIs
professionals to discern”(Halliday et al, 2007 a: 293). Fourth, IFIs usually fail to “build support and
consensus within countries and political commitment from key constituencies.” In bankruptcy law,
for instance, the IFIs effectively represent the creditor community, and more accurately the foreign
creditor community” (Halliday et al, 2007 a:293). Fourth, “[t]he strongest critics of IFIs charge that
some IFIs compel countries to accept a ‘one-size-fits-all’ solution”:
“IFIs can appear careless of national sensibilities, of the loss of face of rulers in sovereign nations, and of the limitations on their powers. The exercise of economic muscle from Washington fuels the presumption that the laws represent the imposition of foreign interests. These in turn engender nationalist resentment that can be appropriated by local constituencies for political capital” (Halliday et al, 2007 a:294)
These limits to the IFIs hegemony were directly or implicitly present in the Model Court Program and
to some extent they are strictly linked to my claims in this study.
Research Design:
This study is based on empirical research conducted on the PROJUM. The most important research
activities undertaken were: (a) documentary analysis and the use of secondary sources; (b) surveys;
(c) hard data; (d) interviews; and (e ) in situ observation.
Documentary analysis and the use of secondary data: Much of the documentary sources in
this research were the result of a very complex process of selection from an incredibly huge amount of
material available on the topic of Judicial Reform, on the role of IFIs in the promotion of governance
programs, Law an Development and Rule of Law theories, evaluation methods of democracy
programs, socio-legal approaches to globalization, etc. In this process a wide range of documents and
theoretical approaches ought to be discarded. The selection criteria focused on chronological and also
logical reasons in order to sustain the initial thesis of the research which, in my opinion, have been
widely ratified by the empirical research.
Surveys: Two surveys were carried out among the personnel of Civil Courts N° 74 and N° 78
in the city of Buenos Aires, whose results are related in the respective section of this study. In total 12
Court employees were surveyed. The data obtained was very useful to compare with the previous data
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available about the PROJUM and to weight the PROJUM impact mainly in comparison with
previous relevant data. Indeed, for the managerial evaluation of the PROJUM I followed the analytical
categories provided by the FORES-NCSC evaluation report (FORES-NCSC, 2005) in which some of
their conclusions have been translated because of the clarity of the report.
Interviews: In total 12 interviews were conducted, all in the city of Buenos Aires during the
month of July. The interviewees were: (1) Justice Dr. Juan Casas National Civil Court N° 74 ( 3
encounters) ; (2) Justice Dr. Carlos Molina Portela( 2 encounters) National Civil Court N° 46 ; (3)
Dra. Silvia Di Carli Private Secretary of Justice Dr. Guarinoni National Civil Court N° 78; (4)Diego
Bello- Court official National Civil Court N° 78; (5) Dra. Sandra Elena, FORES International
Programmes Coordinator and scholar specialist in Judicial Reform; (6) Dr. German Garavano, former
coordinator of the Comprehensive Reform Program in the Ministry of Justice and Human Rights and
scholar specialist in Judicial Reform; (7) Ing. Moisés Lichtmajer, (Phd in administration)World Bank
consultant. The Executive Director who implemented and concluded the Program; (8) Dr. Carlos
Cabral Hunter, responsible for the UAC (Common Administrative Unit) created specially by the
PROJUM; (9) Dra. Gabriela Guzzoni – Idem; (10) Dr. Juan Carlos Poclava Lafuente – President
Cámara de Apelaciones de la Seguridad Social; (11) Dra. Virginia Simari Justice National Civil Court
N° 75( extra PROJUM Court) and former PROJUM Executive Director (12) Dra. Iliana Bustos
Private Secretary of Dr. Casas National Civil Court N° 74;
In total, 24 people were consulted, 12 of them through surveys and the other half through
interviews. Some other informal talks were held but not included in the list because no results were
obtained. The interviews will be referred to in this paper when necessary for the narrative about the
PROJUM and in support of some claims.
The information obtained through the interviews and the surveys was very relevant to
contextualize empirically the study. The data relevance was strengthened by the previous evaluation
carried out by FORES- NCSC. At this point it is remarkable that the FORES-NCSC evaluation was
made in 2005 when it was too soon to reach deep and strong conclusions as the FORES report itself
warns, a warning confirmed by the World Bank assessment of the program (World Bank, 2006). For
that reason, my conclusions may at some time seem to contradict the FORES report. But indeed, this
should not be taken for granted since the goal of my empirical research was to look for the contesting
17
opinions about the PROJUM aiming at highlighting the blurred spheres where the interests at stake are
not self evident. The FORES-NCSC report is an exhaustive investigation of more than 400 pages that
was not available to the public since this report was granted with confidentiality for a period of two
years, during which it was not available to either the public or the researchers4.
In situ observation: Civil Courts in the city of Buenos Aires were visited. The Courts observed
were three PROJUM courts- N° 74, 46, 78 and one non PROJUM Court- N° 75-. UAC -Common
Administrative Unit- was also visited, which initially had been created for PROJUM courts and is
now also used by some non PROJUM courts.
PART I
GOLBALIZATION AND JUDICIAL REFORM
1.1 Globalization of Law and Judicial Reform
“The most notorious feature of the focus on the rule of law in the developing world from the mid 1980s onwards is the high-intensity globalization character of the reformist pressure on the judicial system. In Latin America, the institutions that exerts this pressure are the USAID, the World Bank, the Inter-American Development Bank, the Ford Foundation and the European Union(collectively or through some of its members).”(Santos, 2000:262)
The failure of communism and the end of the Cold War caused the change of the paradigms under
which the world had played after World War II. The triumph of capitalism produced a shift from the
old paradigms and left the social sciences orphaned of strong scientific tools to understand and
explain the new social dimension challenged by the continuous and, sometimes, frenetic changes
operated daily through what is called the informational era in a network society. (Castells, 2000,
Slaughter, 2004)
The current “globalization” phenomenon has raised a huge quantity of theories and research
in order to explain and understand globalization “in such global arenas as finance, business, culture,
religion and population” (Halliday et al, 2007 b:3) Paradoxically, law has been almost absent from the
“sociological studies of globalization” (Halliday et al, 2007 b:3)
4 For this provision after the confidential period, my sincere thanks to Héctor Chayer and Sandra Elena, specialists
from FORES.
18
It is relevant to stress here that globalization is a wide and sometimes enormous field of study
which necessarily claims for new tools and paradigms in order to proceed towards its scientific study.
Also, Santos (2000) has made an important effort to sociologically represent this phenomenon
of globalization in the realms of democracy and law. Santos (2000:254), when discussing “one of the
most puzzling phenomena of sociology and political theory in the 1990s, the greater social and
political visibility and protagonism of courts in several countries , and the global call for the rule of
law and the reform of the judicial system”, separates countries into core (US, Western Europe),
peripheral and semi-peripheral countries.
In core countries the central role of the European Court of Justice, when shaping the European
legal system, is stressed and, to a lesser extent, the European Court of Human Rights; the US is
featured as the motherland of legal and judicial activism producing the “Americanization” of judiciary
and its criticised effect: the “litigation explosion”. It is also worthy to remark the increasing power of
the Supreme Court in Canada and, in general, the expansion of the judicial power and the
judicialization of politics present globally.
In semi-peripheral countries, the author includes: Portugal and Spain(semi-peripheral
countries of Europe); Central and Eastern Europe countries that “underwent democratic transitions in
the late 1980s” in which the democracy and ROL programs promoted the adequacy of the legal
system to the market economy; Latin American countries where the ROL programs “have a strong
international component” with a “high intensity globalization character of the reformist pressure on
the judicial system”; and some African countries such as South Africa and some Asians countries like
India and South Korea (Santos, 2000).
In peripheral countries such as Mozambique and Cambodia the ROL programs “tend to be
extreme instances of high-intensity globalization” in which the reforms are often driven by the same
donors (Santos, 2000:264).
Turning back to Latin America, “the institutions that exert this pressure are the USAID, the
World Bank, the Inter American Development Bank, the US Justice Department, the Ford Foundation
and the European Union” (Santos, 2000).
“Two main contrasts must be noticed between trends in core countries and trends in semi- peripheral countries. On the one hand, while in core countries the reforms under way seem to respond to internal dynamics, even if conditioned by global trends, in some semi-peripheral countries of Central and
19
Eastern Europe and Latin America, the reforms are being conducted under high intensity globalizing pressure, a pressure dominated by American Institutions and American legal models. On the other hand, while in core countries the focus is mainly on courts, since the rule of law is taken for granted and legal reform is an established political process, in most semi-peripheral countries the focus is much broader, contemplating the rule of law and legal reform, as well as judicial reform”. (Santos, 2000:269)
1.2 Judicial Reform in Latin America under the Frame of LAD and ROL Programs
The intervention of foreign agents, with the aim of promoting legal or judicial changes in domestic
legal systems, proceeds from a very precise theoretical frame in accordance with the political
international division of labour predominant aftermath World War II.
Latin American countries are usually considered as a bloc by ROL programs receiving in
consequence a similar treatment from aid agencies. This similar treatment evidences, to some extent,
bias in the non-consideration of differences between Latin American countries and the lack of
adequacy of programs to local legal cultures. One of the arguments against the PROJUM, by some
Argentine scholars, was that the PROJUM model had not originally been designed especially for
Argentina but for another Latin American country.(Garavano, interview N° 6)
Judicial reform in Latin America is at the moment one of the most important issues in policy
agendas in Latin American countries. In the last years a plethora of specialized literature has been
raised on the topic as the multiplication of reform programs financed by external actors and a strong
increase of funds invested in the promotion of the rule of law and judicial reform programs
(Rodriguez Garavito, 2006; Salas, 2001; Carothers,2001 Domingo, 2001; Garth, 2002 ).
Rodriguez Garavito (2006) corroborates this phenomenon and calculated the amount of money
invested in Latin America and its surprising increase. The money invested changed from around 5
million US dollars, in the first generation of programs in the 1960s and 1970s, to almost one billion
invested in Latin America in the second generation of programs until 20045.
Historical backgrounds
Salas (2001:17-45) distinguishes three moments in ROL programs carried out with foreign assistance
in Latin America.
The Law and Development Movement:
5 See Rodriguez Garavito (2006) for a detailed study of ROL programs implemented in Latin America in which
there is a full range of programs and countries with the money amounts disbursed by aid agencies.
20
This was initiated in the 1960s by “US academics at leading law schools (Harvard, Wisconsin,
Stanford and Yale)” and rooted in the post-World War II modernization theory, which became
known as the law and development movement. These programs focused on “the improvement of legal
education by the incorporation of interdisciplinary courses and adoption of the US casebook method of
law teaching” and also comprised the “ creation of legal services for the poor.”(Salas, 2001)
“Law and development projects were part of a broader US foreign policy democratization agenda that included legislative reform, improvement of public administration and public safety. The most controversial assistance project involved upgrading the capacity of foreign police agencies to combat crime and curb potential revolutionary movements. The ´public safety program´ , as it became known, was active in numerous Third World countries with the financial support of USAID and usage of US police consultants”. (Salas, 2001:18-19)
With the famous article of David Trubek and Marc Galanter (1974), LAD initiatives ended with those
features, accused of naive and ethnocentric and after facing strong opposition from Latin American
stakeholders and also from the “US Congress following revelations of human rights abuses directly
arising from the public safety program”(Salas, 2001).
Administration of Justice: These initiatives were undertaken by USAID in the 1980s after the
failure of the first generation of LAD programs. In 1984 USAID launched the “El Salvador Judicial
Reform Project”(Salas, 2001:20). The Central American justice reform initiative was also launched
with funds coming from the US Congress and pursuing the “recommendations of the Kissinger
Commission on Central America”. This program was also extended to Guatemala and to “six South
American countries (Venezuela, Colombia, Ecuador, Bolivia, Peru and Uruguay)”.These programs
were rarely carried out with cooperation of American universities (Salas, 2001).
“There were significant differences between the law and development movement and the administration of justice initiatives. First, law schools were not primary implementers of the programmes. Instead, grants were awarded to Washington-based consulting agencies. Second, primary reliance was placed on the usage of non-US experts with Latin Americans eventually becoming the most prominent group of advisors. Third, projects stayed away from legal education and no assistance was provided to Latin American law schools. Fourth, law drafting, with minor exceptions was avoided. Fifth, the United States government was alone in its reform strategy[,....] Sixth, the US saw government agencies as the primary local partner in these projects and involvement of non-governmental organizations[...] US planners viewed reform of the justice sector as a systemic enterprise in which all of the actors in the system had to be included in the reform. Law reform, by itself, for example was seen as a useless effort without a complementary reform of the institutions that implemented it.”(Salas, 2001:21-22)
Also AOJ initiatives results were widely evaluated as not satisfactory and the reform efforts as not
productive in the achievement of relevant improvements according to the goals pursued (Salas, 2001).
The Rule of Law (ROL):
21
ROL initiatives are the current name used to name the programs financed with foreign aid to produce
governance changes. These programs constitute a “second generation” of programs (Rodriguez
Garavito, 2006; Santos, 2000), deeply connected to the first movement of LAD , aiming to
transform Latin American legal institutions and invigorated after the fall of communism. The eastern
European countries and Russia needed new liberal and democratic institutions in order to adequate
their institutions to the new market oriented economies. In Latin America in the 1980s and 1990s, the
Washington Consensus6 influenced deeply the economic postulates and the public policies to be
implemented so as to dismantle the state through the neoliberal policies of deregulation and
privatization, which was counterbalanced with a menu of reforms with a strong institutional
component (Rodriguez Garavito, 2006).
The most important actors in Latin America in the promotion of the rule of law have been the
World Bank (WB), the Inter American Bank of Development (IDB) and the United State Agency for
International Development (USAID)(Rodriguez Garavito, 2006). The PROJUM is a concrete program
into ROL programs framework.
The most relevant factors, which led to this new wave of institutional reform efforts, were
mainly the failure of the neoliberal policies in countries with evident institutional weaknesses, the
6 The Washington Consensus is a term invented by John Williamson that constituted a group of proposals about
rational economic policymaking. It is interesting to reproduce here the opinion of the creator of the term: “ Ten years ago I invented the term "Washington Consensus". While it is jolly to become famous by inventing a term that reverberates around the world, I have long been doubtful as to whether the phrase that I coined served to advance the cause of rational economic policymaking. My initial source of concern was that the phrase invited the interpretation that the liberalizing economic reforms of the past two decades were imposed by Washington-based institutions like the World Bank1, rather than having resulted from the process of intellectual convergence that I believe underlies them.2 From this standpoint, much better terms would have been Richard Feinberg's "universal convergence" (in Williamson 1990) or Jean Waelbroeck's "one-world consensus" (Waelbroeck 1998). However, I have gradually developed a second and more significant concern. I have realized that the term is often being used in a sense significantly different to that which I had intended, as a synonym for what is often called "neoliberalism" in Latin America, or what George Soros (1998) has called "market fundamentalism". When I first came across this usage, I asserted that it was erroneous since that was not what I had intended by the term. Luiz Carlos Bresser Pereira patiently explained to me that I was being naïve in imagining that just because I had invented the expression gave me some sort of intellectual property rights that entitled me to dictate its meaning: the concept had become the property of mankind. To judge by the increasing frequency with which this alternative concept is being employed by highly reputable economists (such as Stiglitz 1999, n.33), I fear that Bresser had a point. The battle of economic ideas is, as McCloskey (1998) has argued, fought to a significant extent in terms of rhetoric. This means that the dual use of a term with strong ideological overtones can pose serious dangers, not only of misunderstanding, but also of inadvertently prejudicing policy stances. Specifically, there is a real danger that many of the economic reforms that the Bank tends to favor - notably macroeconomic discipline, trade openness, and market-friendly microeconomic policies -- will be discredited in the eyes of many, simply because the Bank is inevitably implicated in views that command a consensus in Washington and the term "Washington Consensus" has come to be used to describe an extreme and dogmatic commitment to the belief that markets can handle everything. The set of WDR 2000 consultations already held have led to questions about the consistency of the Bank's supposed ideological base and its commitment to reducing poverty.”(Williamson, 1999)
22
academic trend into the economics thought named “neo-institutionalism” and the democratization
process of the 1980s in Latin America (Rodriguez Garavito 2006).
It is relevant to remark that besides the explicit opposition between the human rights
movements and the neoliberal agendas, both have stressed the importance of the judicial reform and
the strengthening of the rule of law (Rodriguez Garavito, 2006; Dezalay et. al, 2002).
PART II
JUDICIAL REFORM IN ARGENTINA AND THE WORLD BANK
2.1 The World Bank and the Promotion of the Rule of Law
The World Bank official position in the promotion of the Rule of Law during the early 1990s is
represented by Shihata (1995a) when he argues that: 1) law has a powerful “potential” in promoting
social change and “progressive development” in an “orderly manner”; 2) ROL and well functioning
judicial institutions “are quintessential” for development, for the private sector and foreign
investments since they create certainty and predictability, reduce the cost of transactions and delays,
and protect property rights; 3)The enforcement of law through independent, accountable and well
functioning judicial institutions is as relevant as the modifications of the domestic legal systems in
order to generate a social atmosphere capable to struggle against corruption and arbitrariness from the
other branches of government; 4) Alternative dispute resolution mechanisms (arbitration7, mediation,
etc) are important tools for institutional improvement in Latin America; 5) “ownership” is an
unavoidable requirement for program success (Shihata, 1995 b:13-15).
The key elements to Judicial Reform Efforts from the World Bank standpoint are, namely:1-
Strengthening the independence of the judiciary; 2- Simplifying and updating legal procedures and
laws; 3- Improving the administration of justice; 4-Providing alternative mechanisms for dispute
resolution; 5-Improving legal education and training; 6-Expanding access to justice; 7-Improving the
quality of legal profession (Rowat, 1995:16-18).
7 International Center of Settlement of Investment Disputes(ICSID), “which is an affiliate of the World Bank and in
which the participation of Latin American countries have increased considerably from practically non representation in the past to the nowadays 21 memberships” (Shihata, 1995 a).
23
The WB article of agreements8 limits WB intervention to the mechanisms necessary to
promote economic development but prohibits WB intervention in political affairs. Through the
connection of law and judicial institutions to economic development, the WB has founded its
intervention in judicial reform programs by means of conceiving them as the necessary institutional
tools in order to promote economic development. Bryan Garth (2002:22) argues that this
interconnection and this intervention of the WB in the promotion of institutional changes can be a
source of conflicts and complaints from developing countries in a blurred sector where politics and
economics are not accurately differentiated. The Bank’s attention to governance matters and to legal
and judicial reform issues has been associated with its role as a development financer.
2.2 The Judicial Reform in Argentina and the World Bank.
“The cases of judicial reform and anti-corruption in Argentina proved that the capacity of the World Bank to institutionalise these projects in developing countries cannot rely simply on coercive means, namely the Bank’s financial-economic power. On the contrary, when the Bank is able to draw on its material and knowledge resources (i.e. forums, publications, learning programmes, training and capacity building initiatives, funded projects, and expert exchanges) to consolidate a pro-reform network with local actors, then it can have considerable influence in advancing and institutionalizing governance-related norms on the ground.” (Riggirozzi, 2007:11)
After 1983 when Argentina reestablished the democratic system, judicial reform focused mainly on
the removal of the judges who had been engaged with the previous dictatorial process. The
democratization process of the judiciary consisted mainly in renaming some of the judges who had
lost their positions during the dictatorship “Proceso de Reorganización Nacional”, the complete
removal of judges in charge of High Courts (National Supreme Court and Superior Courts in the
Provinces), and the ratification or the removal of those judges clearly engaged with the dictatorship
(Binder, 2006). In all cases, the new judges appointed should be engaged with the democratization
process.
8 “These limitations are: a) Being influenced by the political character of its members countries; b) Interfering in
the political affairs of members; c) Allowing political factors or events to influence its decisions. Therefore political considerations should be out except when they have an obvious economic effect relevant to its work. Despite this other than specific projects have grown since 1980’s. At present 25 % of the commitments of the World Bank are for “structural and sectoral adjustment loans, in order to get a good order or good governance through the introduction and implementation of appropriate rules and institutions.”(Shihata, 1995 a:219-233).
24
Even though the legal culture of Argentina, with a system stemming form colonial times, was
not basically altered by the democratization process, a new democratic atmosphere was installed in the
judiciary. An important commitment to the rule of law was done by Alfonsín´s administration
influenced by some prominent legal philosophers like Carlos Nino with “enduring ties” with the US,
the Yale Law School and legal liberalism advocacy (Dezalay et al, 2002: 238).
However, the manipulation of the judiciary by the Executive (Binder, 2006) has had a
chronic influence in power relationships among the government branches and is still a serious matter
which affects the independence of the judiciary and enforces the judiciary role as a gatekeeper of the
social and political privileges of some social, political and economic elites (Burgos, 2006:141-177).
“The courts in Argentina , for at least fifty years, have offered not resistance to the chief executive”
(Dezalay et al, 2002:240). Moreover, in order to become a justice, even in the last two decades,
lawyers needed political connections with the Peronist Party or the Radical Party.
Since the return to democracy in 1983, the independence of the judiciary in Argentina has
been one of the major issues of governance. This lack of independence became even more evident
during the administration of President Carlos Menem(1989-1999) when there was a widespread
suspicion of manipulation of the judiciary, “in which the judiciary became the political arm that
legitimized questionable procedures for the implementation of unpopular market and policy reforms”
(Riggirozzi, 2007:19). During the years of the Menem administration, the deep economic changes
enormously affected the way in which society had moved in the first model of development with the
preeminence of the state (Salacuse, 2000). In the new frame, important legal changes were required
for “elimination of budget deficits, strict control of money supply, privatization of State-owned
enterprises, and an openness to international trade and investment” (Salacuse, 2000:287) by strong
external pressures exerted by IFIs.
Concomitantly, the National Judiciary in Argentina suffered serious intromissions parting
from the Executive branch, which seriously affected the independence of courts and its reputation. In
those years the Supreme Court was qualified as the “Addicted Court” by some actors (Riggirozzi,
2006:45). The judiciary had to face serious accusations of corruption, which worsened the credibility
of the courts also undergoing frequent journalistic scandals.
25
In 1994, after the Pacto de Olivos (an agreement between the Peronist and Radical Parties) the
National Constitution was reformed promulgating the National Judicial Council as an independent
organ to appoint National Judges. The goal was to strengthen the judicial independence breaking the
link between the judiciary and the executive branch withdrawing the appointment of judges from the
hands of the Executive and alleviating judges from the constant pressures exerted on them by the
executive. Also in the Provinces new institutions were created to be in charge of the appointment and
removal of provincial judges. Even though Judicial Councils provoked some improvements in the
Argentinean Judiciary, the deficiencies are still far from being solved.
An independent Judicial school, as a previous step to become a Judge, would be important in
order to strengthen the judiciary and its transparency. The initial entrance to the judiciary is the way
to become a judge in Argentina at national level. Proof of this is that among the judges appointed by
the National Judicial Council there are practically no candidates coming from the legal profession.
Almost all, if not all the judges appointed by the National Council, come from the judicial career and
very few of them, if any, from the legal profession (Lynch, 2004). The aforementioned fact shows
how political concerns are still surrounding the Judiciary.
Binder notices the existence of four big streams operating in Judicial Reform in Argentina:
“The first of them focuses primarily on the administration of justice—stemming from the professional and human deficiencies in the system that can only be resolved by naming better judicial authorities. The second vision focuses on technical and administrative deficiencies and on the notion that the justice system functions poorly because technology is “weak, chaotic, and inadequate.” A third vision postulates the need to break the traditional hold of past practices of the inquisitorial system, with its authoritarian practices. According to Binder, these three visions of reform must be integrated into a clear strategy for judicial reform that is constantly tested and adjusted. Results to date have been very haphazard, with some important advances in the area of penal practice but very little on the civil law side, with some states [provinces] (Mendoza, Córdoba) showing strong progress but other states and the federal judiciary lagging behind.”(Deshazo et al, 2006)
In this context WB intervened in Argentina Judicial Reform.
“The vast appreciation of an inefficient judiciary and the costs of corruption for economic development were increasingly championed by international financial institutions, in particular by the World Bank. Since the early 1990s, new concerns within the World Bank's agenda about 'good governance' for development focused on legal and institutional reforms in social sectors; municipal development; privatization and private sector development; and anti-corruption and judicial reform (World Bank 2002, Riggirozzi 2006).” (Riggirozzi, 2006:45-46)
To some extent, and for a wide sector of the population, IFI interventions were seen as an imperialist
intervention, aiming at deepening the country’s poverty with the complicity of local elites aiming at
26
protecting their privileges. They were also perceived as supporting government policies which had
seriously affected wide sectors of the “middle class” economic capacity with increasing rates of
unemployment and condemning millions of people to poverty, strengthening the exclusionary
paradigm. The pressures exerted by IFIs and their support to unpopular policies of the government
made the WB credibility decrease. This social perception explains, in some way, the behavior of local
leftist actors who strongly resisted the PROJUM implementation. The WB election of Pilot methods,
focused on case management and judicial administration, fortified these suspects of complicity among
IFIs, Menem´s government and local elites strengthening a new phenomenon of extreme inequalities
and economic concentration, never seen before in Argentina.
This “negative” public image of IFIs and the role played by them in internal economic
transformations percolated to the other programs launched by the WB and the PROJUM was not an
exception.
“The involvement of the World Bank in judicial reform was triggered by a sector assessment undertaken between 1993 and 1995. In effect, the Ministry of Justice requested the World Bank to finance a comprehensive diagnostic study of the problems affecting delivery of justice in Argentina. The World Bank's Judicial Sector Study was carried out under a World Bank grant. The team that conducted the report was composed of Argentine lawyers selected by the Ministry of Justice and international experts that participated in other judicial reform experiences supported by the World Bank in the region. The problems of the judiciary were identified with the lack of independence, delays in trials and sentences, and widespread corruption. Court officers, including judges, personnel, and government officials were perceived to be at the root of the problem and the main obstacle to change (World Bank 2001a: ix-xi). A subsequent World Bank diagnostic work, the1996's 'Judicial Reform in Latin American Courts: The Experience in Argentina and Ecuador' also addressed these problems, which were discussed in various seminars with local actors from the Argentine social and political spectrum. Yet, despite the highly political issues raised by the report the World Bank designed a programme which narrowly focused on technical managerial aspects of the system related to justice delivery”(Riggirozzi, 2006:46)
Nonetheless, the reformist atmosphere, paradoxically prevalent in Argentina before the PROJUM
initiation, had already given birth to other reform initiatives. For instance, during the 1990s, an
unimaginable movement for ADR mechanisms had already been present with an enormous promotion.
This process, ultimately, led to the incorporation of mediation as a compulsory mechanism in the
Procedural Codes at National and at Provincial levels9 and placed Argentina in an international leading
role in ADR10.
9 Sections 286/291 bis of the Civil Procedure Code of Province of Entre Rios(where I have my residence place)
establishes the obligatory character of Mediation in certain civil cases as a previous step to open court jurisdiction. 10 In this movement for ADR an NGO the Fundación Libra played a key role. Fundación Libra was founded by
Elena Highton de Nolasco (currently Justice of National Supreme Court), and Gladys Alvarez .
27
In the following Tables, taken from the CEJA data base, can be observed the initiatives
undertaken at the national level until 2005 with international cooperation –Table 29- and with internal
support –Table 30-. These tables, in which some formal modifications were introduced and whose
translation to English is mine, were originally only available in Spanish.
Table 1
Tabla 29Projects with International Cooperation
Projects Names
Description Financial Sources Executive Organism
References
PROJUM The Program aims to redesign 12 courts in
all the country, incorporating new technologies, a new organization and a
document management system.
World Bank, Loan BIRF 4314 – AR, Project ARG 999/06. US$ 5
millions
Judicial Council. www.pjn.gov.ar
PROJUS Overall Judicial
Sector Assessment
Execution of remnant funds from a bigger loan to foment
activities directed to the Access to Justice with the goal to
produce a comprehensive judicial
reform.
Banco Mundial. Ministry of Justice and
Human Rights.
Argentine Dialog Commision of
Justice Diálogo
Argentino – Mesa de Justicia‐
It is an initiative undertaken with the representation of all the judicial sectors
involved in Argentina to discuss and to reach consensus on the general guidelines under which judicial reform efforts should
be undertaken.
Fomented by the UNDP‐ United Nations Development Program
Ministry of Justice and Human Rights
www.reformajudicial.jus.gov.ar
Justice in change: Civil societies,
Lawyers and Judges. A new project for the Administration
of Courts
It is a project aiming at promoting the
modernization of courts through the diffusion of positive
experiences undertaken in the US and the US judicial
system With a broad
participation of judges, court personnel,
political and academic actors, businessmen
US Embassy in Argentina.
Ministry of Justice through the
Comprehensive Program of Judicial
Reform US Embassy,
Fundación Libra, Judicial Council and
ARGENJUS.
www.reformajudicial.jus.gov.ar
28
and citizens Casas de Justicia Its goal is to design an
effective model for the Access to justice in different provinces, with coordinated activities of local judiciaries, local
executives and NGOs
PROJUM remnants resources
Local governments, Ministry of Justice and
NGOs.
Source: CEJA. Table 2
Tabla 30 Internal Projects
Project name
Descripction Executive Organism
References
Technical Cooperation Covenant
between the National Supreme Court and ARGENJUSS
The general goal is to improve the National Judiciary through three
central objectives: (a) the efficiency of the courts (b) the transparency in the judicial service and (c) the access
to justice.
ARGENJUS ‐National Supreme Court
http://www.csjn.gov.ar/convenio/convenio.html
Covenant for a new
Information system for
the Argentina Judicial System.
The goal consists in the creation of a new system of information and
judicial statistics common for all the government offices.
Ministry of Justice and JUFEJUS
www.reformajudicial.jus.gov.ar
Covenant of Inter‐
jurisdictional electronic
communication
The goal is to homogenize the domain names and e‐mail addresses of all the judicial system. According
to Statute 22.172
Ministry of Justice and JUFEJUS
www.reformajudicial.jus.gov.ar
Source: CEJA11
It is important to remark that parallel to the PROJUM some other programs were launched, being the
most important of them the Comprehensive Reform Program of the Ministry of Justice, whose web
site, www.reformajudicial.jus.gov.ar, seems to have been abandoned.
The aforementioned programs are only some programs undertaken with the intervention of
governmental agencies and do not comprise the large amount of initiatives carried out by NGOs and
11http://www.cejamericas.org/reporte/muestra_pais.php?idioma=espanol&pais=ARGENTIN&tipreport=REPORTE
2&seccion=PROYREFO Consulted 14th August 2008.
29
private organizations. Each organization, on their own or by means of the cooperation of NGOs or
internal or external agencies, develops its own programs, which shows an increasing movement
pushing for judicial reform.
Another important initiative in Judicial reform in the last decades was La Mesa del Diálogo
Argentina, a broad representative forum formed to mitigate the disastrous effects of the 2001crisis.
The Mesa de Diálogo Argentino - and its “Mesa Permanente para la Reforma de la Justicia del
Diálogo Argentino” - was a Catholic Church initiative with the support of UNDP and the government
(Riggirozzi, 2006). It was a forum with wide representation of social sectors in order to contribute to
overcome the crisis through the elaboration of proposals for economic and institutional reforms
(Riggirozzi, 2006). Five main commissions were created to promote judicial reforms, namely: Access
to Justice, ADR Mechanisms, Judicial trainings, judicial backlogs and judicial delays reduction and
judges profile (Garavano et al, 2003). NGO delegates, policy makers, magistrates and judicial
representatives participated in the commissions. Several projects were proposed and some of them
effectively implemented.
As I showed, some local programs fostering judicial reform had been launched before and
after the PROJUM. Before or simultaneously with the PROJUM the most important of them was the
Comprehensive Judicial Reform Program (Programa Integral de Reforma Judicial) by the Ministry of
Justice and Human Rights .
The PROJUM focused its reform program on the managerial aspects of judicial reform and to
some extent took position for one of the reform streams existing in Argentina. This position taken by
the World Bank was one of the most important obstacles the PROJUM had to face during its
implementation. The struggles among the actors involved made the project be in serious risk as it will
be introduced in the following sections.
PART III
THE PROJUM
3.1 World Bank Court Development Project (PROJUM) as a case study
30
In this scenario the World Bank and Argentina launched the PROJUM -Model Court Development
Program12(World Bank 2006), the first and most important of the WB judicial reform initiatives in
Argentina. This was a 5-million dollar loan qualified as LIL (Learning and Innovation Loan) granted
to the Argentine Government. This Loan agreement was decided between the International Bank for
Reconstruction and Development (World Bank) and the Argentine Republic (as borrower) and its
general goals were “to identify and establish conditions in Argentina under which judicial
administrative improvements could take place and eventually form part of a broader reform program.
These goals were to be approached through an examination of some of the judiciary´s systemic
problems and experimentation of new methodologies for possible uses as models.”(World Bank, 2006)
This Loan Program -named PROJUM in Argentina- was launched during the last years of
the government of the Argentine President Carlos S. Menem and the loan contract was also signed
by his Minister of Economy Roque Fernandez. This program was an integral part of the
Modernization process undertaken in all the Argentinian State by Menem´s Administration. It focused
on the judiciary under the framework of the Washington Consensus with its commitments of
deregulation, privatization and modernization, which was applied as a government policy in
Argentina during the 1990s.
The modernization process had been widely resisted politically, and a similar resistance had to
be faced by the programme, which therefore also became controversial and resisted by important
actors. The World Bank participation in governance projects in Argentina was not circumscribed
only to the judicial sector , since several other governance programs were launched during the
1990s, in which the modernization of the State was the general reform framework (see the programs
of the World Bank13).
In this order of ideas the PROJUM has become a program which attempted to modernize the
administrative realm of the Judiciary, through four components which were Court Management,
12http://web.worldbank.org/external/projects/main?Projectid=P050713&Type=Implementation&theSitePK=40941&pagePK=64330676&menuPK=64282137&piPK=64302789- 24th February 2008. Even though this project is not the only one it is the first attempt to produce effective reforms in the judiciary at national level. The previous programs were directed to produce a judicial sector assessment but not to implement and produce effective judicial changes in court administration as in the PROJUM .
13 http://www-wds.worldbank.org/external/default/main?pagePK=64187835&piPK=64187936&theSitePK=523679&menuPK=64187283&query=judicial%20argentina&fromDate=&docType=0&toDate=&IRISF=&displayOrder=DOCNA,DOCDT,REPNB,DOCTY&callBack=&siteName=WDS&sType=2&report=&loan=&trustfund=&projid=&credit=&sourceCitation=&sortDesc=DOCDT&dAtts=DOCDT,DOCNA,DOCTY,SECCL,LANG,REPNB,VOLNB,REPNME&startPoint=0&pageSize=50
31
Judicial Administration, Case Backlog Reduction, Skills development of the judges and their staffs and
evaluation and dissemination of the program and its results among the judiciary actors and the public
in general (World Bank 2006).
The PROJUM aimed to redesign 12 courts throughout the country at the National level, also
known as Federal Courts in the Provinces, incorporating new technologies, new working methods and
a document management system (World Bank 1998 and 2001). Twelve courts were selected: 10 civil,
commercial and social security courts from Capital Federal, and two federal courts from Chaco and
Mar del Plata. . The courts were:
Table 3
THE COURTS OF THE PROJUM
Federal and National Courts in the City of Buenos Aires
Two multi‐jurisdictional Federal Courts in the Provinces14
Four National Civil15 Courts of first instance in the city of Buenos Aires:
1° Instancia en lo Civil Nº 46, Nº 74, Nº 78 and N°100.
Federal Civil y Comercial Nº 2 in Mar del Plata Provincia Buenos Aires
Three National Commercial Courts of first
instance in the city of Buenos Aires: 1° Instancia en lo Comercial N° 5, Nº 1 and
Nº 15
Federal Court in Resistencia Provincia Chaco.
14 Federal Courts (in the Provinces despite some of them can also be found in the city of Buenos Aires) or the
National Courts (in the city of Buenos Aires) are courts which belong to the National Government differentiated from the Provincial Courts with jurisdiction in the Provinces. This has been so since the Federal System of Government imposed by the National Constitution in 1853 established a National Government (with the traditional division of branches between the Executive, the Parliament and the Judiciary) and also Provincial Governments( also divided in Executive, Parliamentary and Judicial branches). Consequently in the Provinces Federal Courts and Provincial Courts coexist with similar substantial competences. In the city of Buenos Aires The National Courts possess a wide jurisdiction and are differentiated because of their substantial competences in Civil Courts, Criminal Courts, Commercial Courts, Administrative Courts, Labour Courts, etc. The Federal Courts in the Provinces exert their jurisdiction in very specific matters beyond the local Provincial Courts’ competences and are in charge of Criminal , Civil, Commercial, and Tax cases among others. This causes Federal Courts in the Provinces to have a wide array of residual competences.
15 The fieldwork here conducted was on PROJUM Civil Courts N°74, 46 and 78 and non PROJUM Civil Court N° 76.
32
Three Federal Social Security Courts of first
instance in the city of Buenos Aires: Federal de la Seguridad Social Nº 1, Nº 8 and
Nº 9
The initial steps of the PROJUM are properly summarized by the WB as follows:
“Once the respective Chambers (civil, commercial and social security) selected the courts that would implement the New Management Model, the judges were invited to participate in a series of courses and workshops to receive training for the main task that the implementation of the Project required, which was the global design of the Management Model. The design was performed by specialists hired by the UCP and after the approval by the judges involved, a bid was called to contract a firm that would implement the design with support of a computerized system.[….] From 1998 to 2002, UCP did not have a plausible performance. Because of that, the authorities of the Bank proposed the transfer of the UCP to the Consejo de la Magistratura, where the continuity or cancellation of the Project was debated. Finally, the continuity was decided. However, this transfer coincided with the election of new counselors and the subsequent change of authorities within the Consejo. In such conditions, in November 2002 the Project was given a different direction in order to achieve not only concrete goals but also its implementation, even given the insufficient deadlines, product of previous and consecutive delays. The necessary bids were called for the different acquisitions and contract of the firm that would develop the software. Staff was reduced and outcomes were soon observed.” (World Bank 2006:19)
PROJUM Times: The program was scheduled to begin on 20th January 1999 but its effective start was
on 29th April 1999. The successive stages faced long delays: the scheduled closing date was to be on
30th November 2001 when the program had not yet begun with the implementation stage. The
effective closing date was on 30th September 2005 four years after the programmed date of closing.
3.2 Description of the PROJUM
As stated, the PROJUM had to overcome several obstacles during its implementation. The most
important one was the delay in the launch of the program, which undermined the whole process of
implementation and affected seriously the chances of the PROJUM to achieve positive results.
The PROJUM had several PCUs during its life. In November 2002 the last PCU was
appointed to conclude with the PROJUM Implementation stage.The administrative scheme created for
the PROJUM had the following units:
Figure N° 1
33
Table 4- Executive Committee
Executive Committee
Administrador General de la Corte Suprema de Justicia de la Nación
(General Administrator of the National Supreme Court of Justice)
Secretaría de Política Judicial y Asuntos Legislativos del Ministerio de Justicia, Seguridad y
Derechos Humanos (Secretary of Judicial Policy and Legislative Affairs of the Ministry of Justice, Security and Human
Rights) Subsecretario de Coordinación y Evaluación Presupuestaria de la Jefatura de Gabinetes de
Ministros; (Sub‐Secretary of Coordination and Budget Evaluation of the Headquarters of Ministry
Cabinets)
One representative from the Consejo de la Magistratura
(Judicial Council)
Even though the above administrative scheme was permanent, the people affected to those offices
were often changed during its initial stage. An initial delay had affected seriously all the project, due
to which one of the interviewees (Simari interview N° 11) affirmed that not all the blame should be
laid on the government, since the WB also imposed its own time schedules. The initial delay was
caused rather by policy decisions than by inefficiencies.
The PROJUM was developed along three consecutive steps:
Table 5 – The stages of the PROJUM
The initial evaluative step in order to design the best tools to be
implemented (while the project administration was under the control of the Ministry of
Justice)
The implementation process conducted by UTE DDS UNITECH
(under the control of the Judicial Council) The evaluation process of the outcomes conducted by FORES‐NCSC
1-The initial evaluative step was undertaken by individual consultants who worked on the 12
courts where the PROJUM was to be implemented. They developed interviews to judges and judiciary
34
staff, organized workshops, evaluated the layout, observed the fieldwork, gave recommendations and
elaborated a wide diagnostic with different possibilities to be implemented. The diagnostic embraced
all the compounds of the PROJUM, mainly the organizational, documentary and computerized system
diagnostics. (Colegio Público de Abogados de la Capital Federal, 2001).
During this stage the “digitalized file” (expediente digitalizado) was still considered as an
option, which was later abandoned. This was so because the “digitalized file” required changes in the
Civil Procedure Code which exceeded the practical chances of PROJUM implementers. Justice
Portela (interview N° 2) expressed that the PROJUM did not succeed because the real need for an
improvement in case management and court administration was the implementation of the digitalized
file in which all the notifications could be done without using paper-based documents.
2- Implementation process: Ing. Moises Lichtmajer (interview N° 7) was the consultant (with
management and administration expertise) chosen from a triad of consultants proposed by the
government to the WB in order to lead the UCP in the implementation stage of the PROJUM . The
work of implementation was initiated in November 2002 and concluded in June 2005.
The initial goals of he PROJUM as stated in the Contract Appraisal document (World Bank,
1998) were:
“A. The number of cases pending will decrease by 15% every year B. Clearance rate will increase by 20% every year'
C. Duration of a typical case, juicio executivo (from filing until the decision stage and then from the decision until the enforcement stage) will decrease D. Increase of percentage of judgments written with information technology as a proxy for the use of modern technology E. Increase in trust in the judiciary and satisfaction by the public in the service provided by the judiciary F. Index of management performance based upon a self-audit.”(World Bank, 1998)
One of the most important issues of the PROJUM was to implement a model with a clear division
between jurisdictional functions and administrative functions of the court. The new management
model was developed around this organizational concept. Some of the motives behind this distinction
were to alleviate the judges’ labor in administrative matters in order that they could dedicate
themselves exclusively to jurisdictional decisions.
35
In order to achieve those goals, a new model of court administration- New Management
Model (Nuevo modelo de gestión16) was developed , elaborated by the judges and the staff of the
courts, with the assistance of the permanent consultants of the UCP. Once approved this “Global
Design”, UTE DDS UNITECH (the bid winner for the program implementation) began as external
consultant in order to implement the program, to develop a managerial structure according to the “new
management model” of court administration (Nuevo modelo de gestión), elaborated by the
judges(with the assistance of the previous consultant) and to provide a new computerized system to
the PROJUM courts. UTE DDS UNITECH began the work on 1st April 2003. The consultant
specialized in software systems updated the previous diagnostics, enriched the design and began with
the training program in organizational matters for judges and staff. On 8th March 2004 the
implementation of the New Model began jointly with the new computerized system named IURIX
.(Lichtmajer interview N° 7)
The task was complemented with a wide range of activities and reforms ranging from:
“Diagnostic of the court situation at the program start; Global design of the new model of court
administration(the new management model); Standardization of the judicial documents.; Key
performance indicators; New system of files archieving (vertical instead of horizontal); Proposal to
universalize the use of Paper A4 (international standard); The design of an adequate layout for the
work in the judicial office” (Lichtmajer, 2005:3)
One of the most important matters for the judges and court staff was the modernization of the
court furniture and the hardware provided by the PROJUM. A building reform was also made, and the
change of the furniture of the courts was undertaken jointly with the provision of computers. Dr.
Casas17 (interview N° 1) affirmed they (the court as a whole) had accepted to be part of the program
because in his Court they did not have computers. The only computers they had, had been provided
either by the judge himself or by the staff with private resources.
The excessive insistence on the computerization of the courts provoked claims from some
stakeholders. They argued that the goal of the program was not only to provide the court with
computers and with proper software. Its broader intention was to produce a wider mentality change in
16 See Annexes N° 1 and 2. 17 Civil Court N° 74 received the ISO 9002 certification
36
the administration of justice and the case management. Unfortunately, for some scholars (Sandra
Elena interview n° 5) the main point of the PROJUM was to appear merely as a computerized system
and furniture modernization program.
My fieldwork mainly focused on the Civil Courts participants of the Program and one court
from outside the program. My first impression, when visiting the PROJUM courts, was to observe a
new layout , modern and suitable furniture, an orderly space and a remarkably better organization than
the one in the courts outside the program.
3.2.1 Actors and Agents in the PROJUM and the Argentinian Judicial Reform
Concerning all Judicial Reform, in this case the PROJUM, there are diverse actors pursuing their own
interests in the reform. Global actors (Halliday et al, 2006), in this case the World Bank, government
bodies like the Supreme Court, the Executive, the Ministry of Justice, the Judicial Council, the court
judges, consultants and epistemic communities operated jointly or successively, competitively or
cooperatively in the PROJUM, all of them showing their private interests and opinions, exerting
pressure, etc. In the PROJUM the actors involved were:
The Executive and the Supreme Court : They “have strong corporate interests that inhibit
reform” (Riggirozzi, 2006 ) as will be developed further below in Part IV.
The judicial Council: Created by the constitutional reform of 1994. The Judicial Council
began its activities in 1999 and since the Constitution had transferred to the Council the administration
of the National judiciary, problems of competence with the Supreme Court and its delegates in the
Project – the Ministry of Justice and Human rights- interfered and hindered the normal development
of PROJUM (World Bank, 2006) . Under the Judicial Council, the PROJUM was implemented,
concluded and evaluated. However, implementing the Program was not easy. For the completion of
the PROJUM, the Judicial Council also faced several internal problems. After being in the Ministry of
Justice for some years, without results and having disbursed approximately one million and a half US
dollars, some of the Councilors posed resistance to the continuity of the Program. Beyond the fact that
there had been accusations of corruption, Councilor Szmukler 18 opposed the continuity of the
18 See the Website: http://www.consejero-szmukler.com.ar/ (04-09-2008)
37
PROJUM arguing that this program, like others in Latin America and The Caribbean, aims at
installing a hybrid justice model, “rational and efficient” useful only for the IFIs to recover their
credits in developing countries. The World Bank representative, Dr. Yung Tung was present in a
Council meeting trying to instruct the councilors about their responsibility in justice administration,
and Councilor Szmukler warned him about the WB responsibilities in the chaotic socio-economic
situation of the country and the continent. Szmulkler also emphasized the high costs of the program
and the poor results, the lack of a planned and detailed budget for its replication in all the judiciary,
and the chaotic socio-economic situation of the country at the moment.
Even though the implementation of the program was wholly completed, the Judicial Council
decided not to replicate the PROJUM in other courts, as had been requested by some magistrates, and
in March 2008, by means of the Resolution N°98/08 also decided not to replicate the software IURIX
acquired by the PROJUM in order to elaborate its own software.
The PROJUM judges and Court Staff: They played a very important role in all the PROJUM
implementation process. Their range of commitment varied and the engagement with the Program
goals was also diverse. Some of the actors showed an enthusiastic attitude but some others were
overloaded with work by the implementation exigencies, the training courses and workshops. Even
though their entrance into the program was voluntary, at least regarding the civil courts, the work
burden that the PROJUM entailed (without economic incentives and scarce personnel) affected their
compromise and commitment with the project. (Simari, interview N° 11). The judges created,
assisted by the consultants, the new management model to be implemented in the PROJUM courts.
They also supported the continuity of the program even after the assistance of the PROJUM had
been finalized.
“A technocratic group within the Ministry of Justice”(Riggirozzi,2006): In 1998 the
Ministry of Justice and Human Rights launched a Comprehensive National Program for Judicial
Reform. Meanwhile, the Executive and the WB were planning to launch the PROJUM initially under
the control of the Supreme Court (later the control was delegated to the Ministry of Justice).To a
great extent, this lack of coordination was a source of frictions among policy makers, researchers and
the PROJUM administration. This was mainly because in those days some researchers, coming from
38
civil societies and NGOs specialized in judicial reform, had launched the aforementioned reform
program for the judiciary. Furthermore,
“some representatives of think-tanks like FORES move[d] from the realm of policy-oriented analysis to occupy civil servant positions within the Ministry of Justice during the years of Menem's administration and subsequent administration of De la Rúa”(Riggirozzi, 2006:54).
Garavano (interview N° 6) said that while the program was under the Ministry of Justice there were
some other programs such as the digitalization of signatures, and others supported by Mesa de
Diálogo, which lacked financial resources for their implementation. This generated resistance from
many actors who saw how their reform efforts vanished due to the WB program, since local reformers
had practically no participation in it.
Consultants: The PROJUM was developed principally by external consultants, which raised
rejection and complaints from the judiciary and “local knowledge producers” due to this non-
participative external intervention.
“Two main factors are identified as affecting the context in which local knowledge producers interact with local policy-makers[…….] The first relates to the fact that donors, like national stakeholders, often push their own agendas and therefore compete with local contending paradigms on how to approach reform programmes. Global knowledge carried put forth by external consultants versus local knowledge cannot only inhibit joint efforts but also duplicate existing work[……] The second factor relates directly to World Bank consultants. It has been claimed that World Bank consultants sometimes have little or no country experience, and that their aim is to replicate a World Bank's blueprint to solve problems in the judicial sector (Brenna 2003: interview). Moreover, by supporting certain actors the World Bank enhances certain policy ideas and proposals and their political influence. Bank staff can improve the environment for reform by engaging with local consultants in networking activities and enhancing the support and capacity to lead the reform. If Bank managers follow a top-down strategy implementation of the reform will be hampered and thus the gap between global and local knowledge (and between differing local approaches and agendas) will not be bridged.” (Riggirozzi, 2006:54-55)
Lichtmajer (interview N° 7) alluded to the resistance he had to overcome to succeed in concluding the
program. The resistance came principally from ideological bias about foreign aid programs put in
evidence in the Council deliberations and also from the judiciary conservative character evidenced in
the lack of commitment of some judges. Lichtmajer stressed the deep effort which the program
implementation entailed in an antagonistic environment since at the moment he had been appointed,
the program had been close to failure.
Epistemic Communities: The existence of four mainstreams in the Academia about Judicial
Reform is stressed by Binder(2006) as it was quoted above. Riggirozzi (2006) points out the existence
of two main currents or “communities of thought” : a) Think-tanks and business-oriented
organizations and 2) Non-Governmental Advocacy Organizations. Their intervention in judicial
39
matters and judicial research has been constantly increasing during the last two decades invigorated
by the proliferation of NGOs and civil society organizations .
Think Tanks
Table 6
Think tanks and business oriented organizations Very influential before the 2001 socio economic crisis. Their research is focused mainly on case management19 and judicial administration and they have often acted as government and WB consultants. Their participation in the PROJUM was scarce and limited to the initial stages. (Riggirozzi, 2006) Some of them acting in Argentina Judicial reform are, namely:
FORES
Forum for the Study of Justice and Administration (Foro de Estudios sobre Administración y Justicia)
An NGO specialized in Judicial Reform which carried out the evaluation of PROJUM outcomes. “Some of its members were appointed to positions of political
responsibility within the Ministry of Justice” (Riggirozzi, 2006:50)
Fundación Libra
An “NGO that works closely with the Ministry of Justice in the production of research related to Alternative Dispute Resolution, as well as training
judiciary personnel” (Riggirozzi, 2006:51) . One of its founders was Elena Highton, now National Supreme
Court Justice.
Fundación de Investigación Económica
Latinoamericana‐ FIEL
A “key think‐tank involved in policy‐oriented research and analysis on issues of judicial
reform”.(Riggirozi, 2006:51)
Instituto para el Desarrollo Empresario en la Argentina‐ IDEA:
A “non‐governmental institution whose members
are some of the most important corporate executive officers of the country.” (Riggirozzi, 2006:51)
Junta Federal de Cortes y Superiores Tribunales de Justicia de las Provincias Argentinas‐ JUFEJUS:
A “federal entity that gathers members of Supreme Courts of Justice at the provincial level” (Riggirozzi,
2006:51)
ARGENJUS:
A “consortium formed by representatives of NGOs,
think tanks, experts and consultants, and educational institutions[…] that work on the justice
system.”(Riggirozzi, 2006:51).
19 The Ministry of Justice and Human Rights elaborated an Integral Plan for judicial reform and this plan, based
on case management, was created by former and current members of local think tanks. For more details about the plan you could see until some weeks ago the Ministry of Justice web site: www.reformajudicial.jus.gov.ar. (not available on 4th. August 2008) Indeed, that website was very useful at the initial stages of this research. At the moment that website seems to have been abandoned the same as some years ago the Plan Integral de Reforma Judicial had been abandoned and whose chief head was Dr. Germán Garavano . However, the information provided in that website was not updated. JSCA( CEJA in Spanish) website provides the following information about the website of the Programa Integral de Reforma Judicial de Argentina (Comprehensive Program for Judicial Reform in Argentina): “ This program was created in July 2000 by the Secretary of Justice and Legislative Affairs of the Ministry of Justice and Human Rights of Argentina, which established the general outline of the reform process. This excellent website provides up-to-date information on events, publications, statistics and projects, including multiple resources on the aspects and parties involved in judicial reform, such as access to justice, management, infrastructure, administrative reforms, legislative reforms, training, consensus-building activities, and full reports on past events. Also, noteworthy is its user-friendly page design and careful organization of the topics. Available only in Spanish” (CEJA, http://www.cejamericas.org/)
40
Unidos por la Justicia: Its goal is to promote actions for the improvement of the judicial system and the strengthening of the rule
of law. (Riggirozzi, 2006:51).
Gestión Judicial: A forum recently created by judges and civil servants who use managerial techniques for the improvement
of the justice system and where the members exchange suggestions and expertise. Even though
this forum is new and does not follow judicial reform directly, it is relevant to show how some judges have organized themselves in order to promote the use of managerial tools for the improvement of Justice.
Non Governmental Advocacy Organizations
Table 7
Non Governmental Advocacy Organizations
They are civil societies, which follow the judicial reform but from a standpoint different from think tanks. They are advocacy NGOs with a more political approach, focusing mainly on the independence of justice, access to justice, protection of human rights, anticorruption, etc. . Their influence in judicial reform policies
in Argentina became more relevant after the 2001 crisis (Riggirozzi , 2006). Among them can be cited:
Civil Rights Association (Asociación por los
Derechos Civiles‐ ADC20)
It promotes civil rights recognition and enforcement as the right to access to information.
(Riggirozzi, 2006:53)
Center of Legal and Social Studies (Centro de Estudios
Legales y Sociales‐ CELS21)
An “NGO that focuses on human rights advocacy” (Riggirozzi, 2006:53)
Environment and Natural Resources Foundation
(Fundación Ambiente y RecursosNaturales‐ FARN22)
An NGO “promoting sustainable development through policy, law and institutional reform”
(Riggirozzi, 2006:53)
Institute of Comparative Studies in Criminal and
Social Sciences (Instituto de Estudios Comparados en Ciencias Penales y Sociales‐ INECIP23) (Riggirozzi,
2006:53)
Fundación Poder Ciudadano24
“the Argentine Chapter of International
Transparency, have pioneered groundbreaking anti‐corruption initiatives, pro bono law services and public access initiatives and participated in
drafting the rules of the public hearing” (Riggirozzi, 2006:52)
Users and Consumers Union (Unión de Usuarios y Consumidores
A “civil organization which offers legal protection for
consumers and user”. (Riggirozzi, 2006:53)
International Agencies operating in Judicial Reform Table 8
20 http://www.adc.org.ar (08-04-2008)
21 http://www.cels.org.ar (08-04-2008) 22 http://www.farn.org.ar/ (08-04-2008) 23 http://www.inecip.org/ (08-04-2008) 24 http://www.poderciudadano.org (08-04-2008)
41
CEJA‐ JSCA25(Centro de Estudios de Justicia de las Américas‐ Justice Studies Center of the Americas): This is an international agency created in 1999 by the members of the Inter‐American System. Its members are the active member states of the
Organization of American States. The main goal of the agency is to give support to the countries in their reform processes. The information available in the JSCA web site is a very important source for
research and cooperation.
Cumbre Judicial Iberoamericana 26 Iberian American Judicial Summit
The higher judicial level representation of Latin
American countries also including Andorra, Spain and Portugal.
Bar Associations and Judicial Associations
Table 9
Colegio Público de Abogados de Capital
Federal(CPACF): The Lawyer Bar Association also showed interest in the PROJUM by publishing an extensive article
(CAPCF, 2001, Fascículo N° 14) detailing the initial diagnostic stage of the PROJUM in January 2001. This publication was part of the scheduled goals of the PROJUM in the diffusion compound of the program among court users. The CPACF also
decided to conduct a survey among the lawyers in 200727 whose results, if conducted, were not
available.
Colegio de Abogados de la Ciudad de Buenos Aires (ARGENJUS member)
Federación Argentina de Magistrados (FAM) (ARGENJUS member)
Federación Argentina de Colegios de Abogados(FACA)(ARGENJUS member)
Asociación de Magistrados y Funcionarios Judiciales de la Nación (ARGENJUS member)
World Bank Units: The important role of the WB in the PROJUM was related above. WB units
were operating in Argentina during the PROJUM times. As some interviewees stressed, the WB was
also responsible for the initial delay at the start of the program (Simari; interview N°11 ). Lichtmajer
(interview N°7 ) expressed that during the period in which he had been Executive Director of the
PROJUM, the WB had carried out several supervision missions with positive results. However during
the PROJUM times WB visibility in the project was scarce and its influential presence was practically
not perceived by the public according to the low profile sometimes exerted by the WB in this type of
programs.
25 http://www.cejamericas.org/ (08-04-2008) 26 http://www.cumbrejudicial.org/eversuite/GetRecords?Template=default&app=cumbres (08-24-2008) 27 http://www.cpacf.org.ar/verde/vB_RevAbo/revistas/evista69-06.htm (08-04-2008)
42
Journalists: They had a peripheral influence on the PROJUM. Even though the media covered
sometimes the PROJUM, only specialized and judicial media covered it mainly when corruption
allegations raised against the initial stages of the PROJUM. Only the internet media Diario Judicial28
covered the PROJUM on some occasions.
Judicial-Unions: They had neither participation nor influence over the program. Like many other
actors involved, they complained about the PROJUM profile. They criticized WB programs since they
only facilitate the operation of the consultants without participation of local expertise, enlarging the
costs of judicial reform. Giarone (2003) also criticized the WB involvement in local judicial reform
programs. Even though the judicial union had scarce influence over the program, their claims for
better conditions of work were present in the PROJUM. Some employees stressed the lack of
incentives for the workers in the PROJUM, which demanded extra work without extra payment (Bello,
interview N° 4).
3.3 PROJUM EVALUATION
In order to evaluate the PROJUM some questions should be answered: Why were Pilot Courts used?
Why did the WB as donor not intervene in the implementation itself of the program? Why was the
program developed by external agents, consultants? To what extent was the local expertise consulted
previously to the Program launch? Why was the money of a fixed sum of 5 million US dollars
invested? Who were the competing actors around the PROJUM? To what extent did these
antagonisms and contesting opinions limit the effectiveness of the program? What was the real impact
of the PROJUM? What are its real outcomes? Who were the stakeholders involved in the PROJUM
outside the judges and personal staff?
The PROJUM, as said, entailed the usage of Pilot Courts as a first-step method to achieve an
overall improvement of the judicial administration. The demanding issues of independence of justice,
corruption, and social justice had been avoided since the beginning of the project.
The reformist atmosphere prevalent in Argentina concomitantly to the PROJUM initiation had
already provoked other reform initiatives. For instance, during the 1990s an unimaginable movement
28 http://www.diariojudicial.com.ar/nota.asp?IDNoticia=2571 (08-04-2008)
43
for ADR mechanisms had already been present with an enormous promotion, a process which
ultimately led to the incorporation of mediation as a compulsory mechanism in the Procedural Codes
at National and at Provincial levels and placed Argentina in an international leading role in ADR.
(Dezalay et al, 2002:242-245)
Even though some questions have already been answered or advanced previously, for the
evaluation task this section is separated into some subsections: The PROJUM as a Pilot Court Model
program; The PROJUM and the World Bank assessment; the evaluation of the PROJUM through
organizational techniques.
3.3.1 THE PROJUM AS A PILOT COURT MODEL PROGRAM
The Pilots are a methodology used by the WB and other reforming institutions in order to make
reforms in the judiciaries world wide. The reasons which sustains this option are the impossibility or
the difficulties to implement serious and effective comprehensive reforms29 in some countries where
comprehensive reforms could be stopped by contesting opinions and by political struggles, requiring
legislative changes beyond the donor´s possibilities with uncertain results and the waste of resources.
In the early 1990s Argentina required assistance to the WB for reforming the judiciary.
“It was agreed that, even though piecemeal studies had been conducted in the past, it would be beneficial to undertake a comprehensive review of the judicial sector with analysis of the problems and suggestions for change so as to facilitate dialogue and consensus building. Consequently, a Judicial Sector Study completed in 1995 under an IDF grant was carried out. The study brought together a team of local and international experts to review Argentina's justice system. The results were disseminated and discussed during workshops with stakeholders -including the judiciary, bar associations, the business community, NGOs, academia, and the general public.” (World Bank, 2001:82)
Aftermath Argentina government requested more assistance for judicial reform and because of the
lack of consensus among stakeholders or key actors in the judicial reform “on the nature, scope, or
timing of any more substantive reform of the system” the decision was to proceed with the reform
through Pilots”. (World Bank, 2001:82)
This is one of the most problematic aspects of the PROJUM: the absence of a previous
consensus among the stakeholders.
There seems to be a contradiction between two WB arguments: on the one hand, that the lack
of consensus for an overall reform justified the use of pilot models and, on the other hand, the
29 In Salvador a comprehensive attempt by the USAID failed. (Salas, 2001)
44
permanently stressed requirement of “ownership” which was not taken into account. The
contradiction could be explained by the urgency of the then Argentinean Government to obtain public
results in the judiciary reform and to appear as a reformist though, in fact, the intention was to build a
façade as a reformist to temperate the serious allegations of manipulation of the judiciary exerted by
the opposition and the majority of the population.
However, the WB position is well represented by Dakolias and Said (1999) when they argue
that an overall reform should not be attempted at one stage. The reform process “requires both
cultural change and a systematic change in the delivery of justice, so countries need to institute the
reform process in a program of stages”.
Undoubtedly, the pilot models are a way to face the reform as a first step for an overall and
comprehensive reform. This is one of the essential points of the PROJUM: the reform attempted
through 12 pilot courts was with the purpose of it being replicated. The replication of the program
was one of the most important goals when the program was launched. Nevertheless, the PROJUM
will not be replicated in Argentina in the near future. The Judicial Council decided not to do so
despite some Judges’ petitions in that respect. Dr. Poclava Lafuente, President of the Camara Federal
de la Seguridad Social, and Dr. Luis Otero, President of the Camara Nacional de Apelaciones en lo
Contencioso Administrativo requested the replication of the Program in their courts of first instance in
2005 when the PROJUM was showing visible changes in the Courts benefited with the program
(Diario Judicial30). Dr. Poclava Lafuente (interview N° 10) argued that he had requested the
replication because “they had observed the positive changes produced in the PROJUM courts but,
although the program initially seemed to be very good, later on many “technical” problems had
appeared and everything had to be abandoned. It seems that the system was not vey good. It was a
failed experiment”. Nonetheless, the decision not to replicate the PROJUM was not uncontested.
There are also many stakeholders who still think the PROJUM should be replicated and an initial
recommendation of the Comisión de Administración y Financiera of the Judicial Council advised to
implement the replication of the PROJUM. Virginia Simari(interview N° 11), former Executive
Director of the PROJUM and now Judge, also stressed the benefits achieved by this program for the
30 See Diario Judicial at: http://www.diariojudicial.com/nota.asp?IDNoticia=26255 (04-09-2008)
45
improvement of the administration of justice and the ability of the PROJUM to install the judicial
reform in the key actors’ agenda.
In spite of the contesting opinions, the replication of the program is now a closed matter. The
Judicial Council decided not to replicate it in other courts; furthermore, it decided not to use the
software -IURIX- developed by the PROJUM (Resolución N° 94/08)31
In order to assess the PROJUM impact, it is relevant to point out that, at the beginning of the
current year, the Poder Judicicial de la Nación (Judicial Council and the Supreme Court) launched
two programs with the goal to reform the Judiciary32: The Plan de Gestión (Management Plan) and
the Proyecto Informático (Informatic Project). The Plan de Gestión establishes a set of instructions for
the different types of courts (for some scholars it does not constitute an administration of justice
reform program, they are only simple instructions insufficient to produce an important reform). The
Proyecto Informático is currently attempting to create specific software tools to be globally used by all
national courts.
3.3.2 THE PROJUM AND THE WORLD BANK ASSESSMENT
Overall assessment of the Project Implementation by the world Bank: The WB in its web site
presentation page of the PROJUM expresses:
“The Argentina Model Court Development Project had an unsatisfactory outcome, is unlikely to be sustainable, and has a modest institutional development impact. Bank performance and borrower performance are unsatisfactory. Among the lessons cited were: (a) In such difficult sector circumstances, the lack of an adequate risk analysis with careful assessment of the borrower's implementation capacity and commitment to reform was particularly costly. (b) The Project should not have been started when the judiciary's governance structure may have been undergoing a substantial change. Neither should the Bank have persisted in pushing a project when there was lack of commitment from the authorities responsible for its execution. (c) In the light of the two aforementioned points, the key prerequisites for future Bank-supported judicial activity in Argentina should include (1) a clear project concept and design; (2) a strong understanding by the judicial authorities of the project's concept and objectives; (3) the assurance of adequate independence for the judiciary for the task; (4) assurance of adequate "ownership" of the proposed design and work plan; (5) provisions for building project execution capabilities in the courts; (6) a realistic time frame; and (7) selection of a good lending instrument. (d) The design and supervision of computerized systems intended for integrated management improvements need to be closely monitored.”33(World Bank website)
31 http://www.pjn.gov.ar/Publicaciones/00010/00020577.Pdf (09-15-2008) 32 Both projects are available at: http://www.pjn.gov.ar/Publicaciones/fijo/Plan%20de%20Gestion%20Judicial.pdf (04-09-2008) http://www.pjn.gov.ar/Publicaciones/fijo/Plan%20Informatizacion%20judicial.pdf (04-09-2008)
33 http://www-
wds.worldbank.org/external/default/main?pagePK=64193027&piPK=64187937&theSitePK=523679&menuPK=64187510&searchMenuPK=64187283&theSitePK=523679&entityID=000112742_20060724121459&searchMenuPK=64187283&theSitePK=523679 (02-24-2008)
46
However as the World Bank itself recognizes:
“ a full [and complete] assessment of the Project's achievements and outcome is hindered by the limited number of pilot courts in which the planned changes were fully tested, the relative brevity of their duration, and their evaluation too soon before their results and impact were completely clear. It might be useful, accordingly, to undertake some further analysis of those cases which had the highest level of activity in order to see more definitively what took hold, what remains and what were the more complete effects of the Project's interventions.”(World Bank , 2006: 10; the emphasis is mine)
Even though more studies would be convenient in order to measure the changes operated around the
PROJUM, the decision of not replicating the PROJUM and the general opinion which considers it as a
failure diminish the chances of the program to be continued officially as well as in academic
studies. Nevertheless, as I will show in due course, the PROJUM and its indirect effects have had the
virtue to reinforce judicial administration reform as a central point of the agendas of governmental
and non-governmental organizations.
3.3.3 THE EVALUATION OF THE PROJUM THROUGH ORGANIZATIONAL
TECHNIQUES;
“while it is commonly acknowledged that evaluation is essential to programme development, this lesson has had little apparent impact on judicial reforms. For the quantity of work that has been done, evaluations are remarkably few, and all too often neither widely consulted nor even available. Everyone reads the evaluation of their own project; almost no one reads those of anyone else’s work. This suggests an amazing lack of interest in acquiring information and an incentive system which allows and possibly encourages it, but it is also evident that by intent or mere oversight, evaluations are not easily accessible, even to members of agencies which conducted them. A recent suggestion that major donors share their evaluations is a good sign, but it will be hard to implement if only because they may not know where they have stored them” (Hammergren 2002 quoted by Elena et al, 2007:99).
The evaluation of Judicial Reform programs is an integral part of ROL program evaluations in the
broader field of processes of democratic development measurement. Research efforts have been
focused “on developing rigorous comparative methods, including country case studies, large-scale
quantitative studies, systematized expert interviews, democracy surveys, and specialized comparisons
of areas such as the rule of law”(Sarles, 2007:47). Undoubtedly, the evaluation of democracy
programs entails a new field of study developed in the last decades, which is in constant progress and
accompanies the increasing feature of the larger and larger amount of foreign aid programs.
47
The very concept of evaluation is not uniform and is being shaped under a dynamic contesting
process of knowledge production. Neither is there a unique answer to how to evaluate. (Elena et al,
2007:97). “The methodology for evaluating a programme varies from country to country, programme
to programme, and donor to donor. Sometimes evaluation is an opinion based on expert observation.
At other times it is the analysis of hard data collected through social research methods”. (Elena et al,
2007:97)
“Evaluation has been defined as the system for and objective assessment of an ongoing or completed project, programme or policy, and its design, implementation and results. The aim is to determine how relevant the objectives have been and how far they have been fulfilled, and to assess the efficiency, effectiveness, impact and sustainability of programmes. Evaluation also refers to the process of determining the worth or significance of an activity, policy or programme (Molund and Schill 2004: 106)”.(Burnell, 2007:16 ) “The main reasons for doing evaluations (apart from the fact that it may be legal requirement) are[….]to ensure proper bookkeeping, that is, accountancy-type audits; to serve the aim of achieving efficiency or value for money; to facilitate accountability to the political masters and taxpayers who sanction or authorize democracy support in their name, which is a case that looks incontrovertible for any organization that claims to stand for democratic principles; to enable lessons to be learned from experience and make improved and more effective practice possible; and to offer a form of security against the kind of ill-judged ‘political meddling’ that displaces the formal goals of an organization or takes decisions on operational details away from the hands of able and experienced practitioners.”(Burnell, 2007:16)
Judicial Reform as a part of ROL programs also needs to be evaluated and in this task, as mentioned
before, the techniques to operate the evaluation vary and principally are dependent on the program
objectives.
Even though “ justice has many other dimensions, and judicial reforms often strive for less
quantifiable changes, such as improving the independence of the judiciary and enhancing procedural
transparency” (Buscaglia et al, 1999:2) to measure the “effectiveness” of Courts worldwide, specialists
have elaborated a complex quantitative system of evaluation using Court Performance Indicators.
They can vary from program to program, or from donor to donor so as to be implemented.
According to the PROJUM’ specific objectives some performance indicators were defined:
“(a) annual reductions in the numbers of pending cases and their durations; (b) increases in clearance
rates; (c) increases in the percentages of judgments written with information technology, (d) enhanced
public trust in and satisfaction with the judiciary; and (e) upgraded judicial management
performance.” (World Bank, 2006:3)
FORES and the National Center for State Courts (NCSC) won the bid called for the external
evaluation of the outcomes once the PROJUM had been implemented. The outcomes evaluation
48
process held by FORES and the NCSC was limited to the points of evaluation expressly detailed in the
call for the bid, consequently, the design and the implementation stages were excluded as well as the
software implemented IURIX. Their intervention was restrained to evaluate the results or outcomes of
the program (Sandra Elena interview N° 5). The final report, recently available34, “Proyecto de
Desarrollo de Juzgado Modelo (PROJUM)-Evaluación de los Resultados de la Implantacion del
Modelo de Gestión en los Juzgados Modelo Préstamo BIRF 4314 AR INFORME FINAL” is a very
detailed , thoughtful and complete report evaluating the PROJUM outcomes elaborated by FORES.
It has been designed to provide the necessary tools for the analysis of the data obtained in the
fieldwork developed by FORES with the assistance of consultant specialists. The FORES report,
following the requests from PROJUM authorities, comprises the following points:
a) Evaluation of the Court Performance Indicators;
b) Evaluation of the Range of observance of quality norms;
c) Evaluation of the new organic structure and the new layout;
d) Evaluation of the control exerted over the products provided by the Court users;
e) Evaluation of the software IURIX;
f) Evaluation of the Common Administrative Units;
g) Evaluation of the Court User Groups Perception;
h) Evaluation of the Court personnel´ opinion;
i) Evaluation of the Training Programs;
The items listed above will be analyzed below jointly with the WB - Implementation Completion
Report and with the empirical research I carried out on the PROJUM Courts.
a) Evaluation of the Court Performance Indicators:
“These indicators permit the evaluation of the changes operated in the Court administration after the
implementation of the “New Management Model”. With this purpose, two surveys were compared by
FORES: “ex ante(2003) and ex post(2004), so as to make possible the comparisons and the
conclusions.” (FORES-NCSC, 2005)
34 This report was granted with confidentiality for two years and during that period it was available neither to the
public nor to the researchers. For its provision after the confidential period expired my sincere thanks to Héctor Chayer and Sandra Elena, specialists from FORES.
49
Only the Civil Courts and Social Security Courts were measured since, ex ante data was missing
for the other Courts, whereas for the Courts measured (Civil and Social Security Courts) the Court
Performance Indicator results were positive as it is shown in figure 2:
Figure 2
Source:FORES- NCSC Report
Notice that ex ante and ex post data were taken in 2003 and 2004 respectively. This brief
period of time weakens the results in order to measure the sustainability of the improvement rates.
Another problem of the data was the exponentially increase of cases during this period due to the
“pesification” of dollar accounts(World Bank, 2006) after the 2001 crisis.
World Bank Report: “The number of pending cases in the civil courts fell by 69 percent and
by 24 percent in the social security courts. This was well above the performance indicator target of 15
percent decreases annually. The courts' clearance rate (the number of cases resolved as percentages of
cases filed that year) in two jurisdictions increased in: (a) the civil courts by 312, 377 and 101
percents, and (b) the social security courts by 58, 45 and 49 percents. These figures exceeded by far
the performance targets of 20 percent annual increases. The duration of typical cases in two
jurisdictions from filing until decision stages, and from there on until enforcement stages fell by 82
percent (four civil courts) and 43 percent (three social security courts).” (World Bank, 2006:8)
Figure 3 shows Court Performance Indicators. They evidenced substantial rate improvements,
but the above mentioned lack of reliability of this data, in order to take relevant conclusions about the
sustainability of the reform, has also been stressed. In figure 3 each goal pursued is contrasted with
the results.
50
Figure 3
Source: World Bank “Implementation Completion Report”
The PROJUM empirical research
My fieldwork in Courts concentrated on in situ observations and interviews held in 3 Civil Courts
of the city of Buenos Aires: National Civil Court N° 74 (three visits), N° 46 (two short interviews with
the judge) and N° 78 (where two agents of justice were interviewed: the Judge´s Private Secretary
and an administrative official). The results of my empirical research will be related following the
analytical frame used by FORES in the evaluation of the PROJUM outcomes.
Dr. Casas (interview N° 1) showed a very positive opinion about the PROJUM results in his
Court. Notice that this court postulated and was awarded with a 9002 ISO quality norms certification
in 2006. For Casas and most of the Court staff ( Survey 1) the PROJUM was very useful for the Court
Administration improvement. As he argued, all the Court Performance indicators improved
significantly in his Court after PROJUM implementation. He also stressed the importance of the Civil
Procedural Code reform of section 360 establishing the Conciliation Audience. The Conciliations
passed from 5 per year to 70 per year. Through the observation in situ of Civil Court N° 74, its
organized feature of the work , the comfortable layout and working atmosphere should be remarked.
Carlos Molina Portela (interview N° 2) said that the PROJUM achievements were not as
positive as for justice Casas and no substantial reform was achieved. However, Portela recognized
51
improvements in organizational features and building adequacy, and also pointed out that the real
improvement of the judicial administration could be achieved only through the digitalization of the
judicial file. It was not possible for the PROJUM to advance in the file digitalization because of the
existence of legal obstacles in the Civil Procedure Code. In order to proceed with the normative
adequacy of the Civil Procedural Code to the “digitalized file”, it would have been necessary to
implement a legislative procedure, which clearly exceeded the possibilities of the PROJUM. Portela
also pointed out that the most significant achievement of the PROJUM was to have changed the public
image of the Court. The Court has now visible building reforms, it has a better organization, new
equipment, therefore, the Court works better and the services provided have improved. Nonetheless,
Dr. Portela’s opinion is contested with the replication chances of the PROJUM. For the interviewee
the real chances of replication had vanished due to the great costs and the long time which its
implementation would imply. In Portela’s opinion, the relation between implementation costs and
results cannot justify an investment of 5 million dollars.
Two interviews were conducted in the National Civil Court N° 78: one to the Judge´s private
secretary Dra. Silvia De Carli, and another to a Court Official Diego A. Bello. While Di Carli stressed
some improvements like the new furniture equipment provided by the PROJUM, a better organization,
new computers, and the new software IURIX, she also emphasized that the reform had not achieved
the goals and that PROJUM had not provoked a substantial and conclusive reform. The lack in human
resources was also pointed out. While an improvement in the backlog rate was stressed by De Carli,
the time disposal of the case had not improved significantly.
Survey to the Court staff: Accordingly to the survey carried out among the staff of Civil Court
N° 74, the employees’ opinion about the PROJUM outcomes was also positive. 50% of the surveyed
staff considered that the case disposal time, the backlog rates and the overall Court administration had
significantly improved and the other 50 % said that the changes had not been so clear but showed
confidence in the reform.
Contrastingly, the employees of the National Civil Court N° 78, showed very disparate
opinions. For 67 % of the employees surveyed the PROJUM had not improved the overall functioning
of the court. For 83 % of them the case disposal time had not diminished and the backlog rate had not
52
improved. The observation in situ also showed that the working atmosphere and organizational
improvements in the layout had not been achieved in Civil Court 78.
b) Evaluation of the Range of observance of quality norms
The evaluation of FORES–NCSC stresses that at the moment of the evaluation the quality
management system had an incipient level of development, because of which it cannot be affirmed
that there exists a quality management system as robust as to assure its sustainability and permit a
constant improvement on a systematic base. The staff training program provided by PROJUM has
been insufficient and the staff has not been trained enough and does not know fundamental aspects of
the quality management systems (FORES-NCSC, 2005).
Although this overall assessment of the Courts involved in the PROJUM made by FORES,
one of the PROJUM courts, National Civil Court N° 74 headed by Judge Juan Casas was awarded
with the quality norms certificate ISO 9002. In the observation of Civil Court 74 the certifications
awarded are visible in “Mesa de Entradas” and in the Judge office. Casas (interview N° 1 ) pointed
out that in order to become a candidate for ISO certificates, he requested authorization from the Civil
Camera of Appeals but not answer was received. As the closing date for applications was expiring,
the Court, consequently, requested the Quality norms ISO 9002 and received the quality certificate.
Casas referred to the tremendous audits they had to be subjected to by the auditor Organism and the
challenging character of the procedure.
Casas (interview N° 1) also stressed that the style of his court management is based on the
training programs received during the PROJUM. He emphasized that the management changes
achieved through the PROJUM were based on the following points:
Table 10
Civil Court N° 74 ‐ Managerial Techniques Developed through the PROJUM
Dr Casas (interview N° 1)
A deep change of the mentality (This was also stressed by the other judges and court personnel
interviewed) . Rotation of the staff into the court positions to permit all the staff to be acquainted with the work in the different dependencies and to be involved in the Court overall work and results. The change of
mentality, it was stressed, also requires time for meditation and devotion to the work.
53
Internal Audits: They regularly conduct internal audits in which all the staff is audited by the work mates through
reciprocal audits. Even the judge is audited by the employees.
Internal atmosphere surveys: They are conducted in order to improve the communication among the personnel including the judge.
In order to detect if the communication has improved. they have appointed the Management Secretary to be in charge of the communication issues.
The documentation of all the Court movements, meetings, surveys, etc.
The periodical delivery of internal workshops and courses to train the Court personnel with examinations and grades, with different levels in accordance with the tasks, functions and positions
held by the staff. Higher level courses are organized for those appointed to jurisdictional functions and lower level courses for those in charge of minor responsibilities.
A plan of contingencies: To be used when the operations are affected as, for example, by the absence of one employee or
more. They have elaborated this plan for a wide range of contingencies.
The creation of manuals to organize the work and to guide the court activities.
Unfortunately, the achievements of National Civil Court N° 74 with its high standards of quality and
service is an isolated case, which might be followed by Civil Court N° 100 (Dr. Prada Errecart where
fieldwork was not carried out). Even though my fieldwork concentrated on 3 PROJUM civil courts it
can be affirmed that the other courts do not show the same level of engagement with the reform efforts
for different and maybe justified reasons and arguments. However, the significant improvement
achieved by Civil Court N° 74 cannot be minimized in order to evaluate the reform efforts . If one
court was able to achieve these high results, it means that more efforts should be placed on promoting
the program. In fact, Civil Court N° 74 is often presented as a model court and courses and
conferences are dictated about this model ( Casas interview N° 1). The resources invested cannot be
wasted by abandoning the PROJUM as a failed project and impeding to reproduce the lessons
learned in its implementation. The Management Plan launched in February by the National Judicial
Power evidences the lack of continuity in the support of programs like this and this lack of continuity
is one of the most important obstacles for development. The periodical changes of successive
democratic governments with diverse and sometimes competing ideological standpoints cannot justify
the rejection of the programs and the former policy agendas as well as its human and financial efforts
54
in the realms in which other important issues are at stake. The improvement of the system is crucial
and the tools to be implemented, the same as its goals, can be achieved through several instruments
(Elena et al, 2007) though the goals pursued by some policies should be held or enhanced and
improved instead of being abandoned beyond the ideological or conservative bias that can oppose
resistance.
c) Evaluation of the new organic structure and the new layout.
The new organic structure: In this activity FORES-NCSC observes that the Judge leadership as well
as the establishment of work teams have been in accordance with the new operational structure in
which the division between jurisdictional activities and administrative activities is a central point.
However, not all the courts have implemented this division through the appointment of Secretaries Ad
Hoc. In the courts where this has been implemented, FORES evaluation suggests that it was achieved
an interesting distribution of roles, which strengthens the functional specialization and the operative
capacity of the court (FORES-NCSC, 2005).
The judicial Council had to approve operational norms of exceptions guaranteeing the legal
continuity of the New Organic Structure (FORES-NCSC, 2005).
The new layout: “The building reforms and space adequacy jointly with the new system of
archives were made on the 4 civil courts, the 3 commercial courts and the multi jurisdictional court of
Mar el Plata. None of the aforementioned changes was made in the Court of Resistencia.” (FORES-
NCSC, 2005)
The building renovation improved work team environment, facilitated the personnel
interaction, eased the transmission of directives from the Secretary in a unique act, differentiated the
areas to exert the jurisdictional and administrative functions, etc. Nonetheless, some disadvantages
were pointed out like, for instance, the lack of privacy of the court staff from litigants (FORES-NCSC,
2005).
The New system of archives -vertical instead of horizontal- with a new design for the files
cover provided to the courts with extra free place, facilitated the files manipulation and reduced the
working time. Nevertheless, in the special case of the fiscal files (ejecuciones fiscales) the new cover
is not justified since it multiplies the required space for its storage (FORES-NCSC, 2005).
55
Figure N° 4. New Archive System
Source: World Bank Implementation Completion Report
Empirical Research:
One of the most important matters for the judges and staff of civil courts was the modernization of
the court furniture and the hardware provided by the PROJUM. A renovation on the court building
reform was also made, and the change of the furniture of the courts was undertaken jointly with the
provision of computers. Dr. Casas35 (interview N° 1) affirmed they had accepted (the court as a
whole) to be part of the program because in his Court, the few computers they had, had been
provided either by the judge himself or by the staff with private resources.
The excessive insistence on the computerization of the courts provoked complaints from some
stakeholders. They argued that the goal of the program was not only to provide the court with
computers and with proper software but mainly to achieve a wider mentality change in the
35 Civil Court N° 74 received the ISO 9002 certification
56
administration of justice and the case management. Unfortunately, for some scholars (Sandra Elena
interview n° 5) the main point of the PROJUM was to appear merely as a computerized system and
furniture modernization program.
My fieldwork mainly focused on the Civil Courts participating in the Program and one court
from outside the program. The first impression, when visiting the PROJUM courts, was to observe a
new layout , modern and suitable furniture, orderly space and a remarkably better organization than
the one in the courts outside the program. A contrasting situation was perceived in the non-PROJUM
Courts visited, in which the furniture and layout were obsolete, and the organization was much less
efficient and convenient. Carlos Molina Portela (interview N° 2) stressed the effective improvements
in the building and organizational items despite the fact that he insisted on the limited outcomes of
the PROJUM.
d) Evaluation of the control exerted over the products provided by the Court users.
This activity aims at evaluating the initial judicial procedures such as the judicial petitions by court
users, the reception of presentations and communication of them and its delivery according to the
changes introduced by the “New Management Model” (FORES- NCSC, 2005).
The changes achieved in the process of initiation of the judicial claims are scarce. The most
notorious advantage introduced by IURIX is that the data obtained in external administrative units
must not be reloaded in the PROJUM Courts and that the information is also available in the UACs
(Common Administrative Units) created by the PROJUM (FORES-NCSC, 2005).
e) Evaluation of the software IURIX.
This activity undertaken by FORES aims at “comparing paper-based documents with digital
documents: to determine if the information contained in the system IURIX is updated; to establish the
reasons of the mismatches –in case they existed- and suggest corrective measures; to receive the
motives for which differences could have taken place; to identify patterns, to suggest corrective
measurements; and to define if court judgments are easily available in internet.” (FORES- NCSC,
2005)
“All the checked records were loaded in IURIX in some cases with minimal mismatches. The
information of the files of the Model Courts is available in the terminals of computerized public
57
consultation in the 12 Courts, coinciding with the information registered in IURIX.” (FORES-
NCSC, 2005)
The availability of the information of the records in Internet is diverse: there is no information
in internet about the Court of Resistencia and Mar Del Plata; in the Social Security Courts only the
procedural situation is published; in the Civil and Commercial there exists the possibility of gaining
access to full judicial resolutions texts. The information in paper-based documents coincides with the
loaded information in the software IURIX. There is no data base of Court judgments, wherefore they
are not available for consultation neither in the system IURIX nor in Internet. (FORES- NCSC,
2005)
Figure N° 5 - Veracity of information available in the IURIX system.
Source: FORES Report
Empirical research- Court staff perception about IURIX .
According to the information collected in the interviews conducted in civil courts, the opinions about
the new computerized system IURIX provided by the PROJUM were generally positive. Casas
(interview n° 1) remarked that the software IURIX was outstanding : all the Court staff share the
same agenda. “It differentiates the several types of audiences. It provides statistics and it can
recognize the differences between the various types of trials. It can instantly determine the
productivity of the agents and all the personal work available on a daily basis.” Judge Casas said that
58
until PROJUM in Civil Court N° 74 there were neither hardware nor computers provided officially
by the Judicial Administration. Initially, the PROJUM computers had been provided by the judge
himself or by the workers from their private budget. The PROJUM provided the court with “official
computers” and equipment.
This was not the case with the other Civil Courts visited. Civil Court N° 78 and Civil Court
N° 46 both had already computerized systems provided officially before the PROJUM. Silvia De
Carli.(interview n° 3) qualified the software IURIX as a “good” product. Molina Portela also,
referring to IURIX, qualified it as a better system than the previous one.
However, as it can be observed in the FORES report, (FORES- NCSC, 2005) the opinions are
not uniform and the general perception about the software IURIX was qualified in the variable “range
of satisfaction and adequacy” as “middle” among all the PROJUM Courts staff in 2005 when the
evaluation process was carried out– see Figure N° 6.-
Figure N° 6 - Court staff perception about the New Management Model
Source: FORES-NCSC Report.
Survey among the Court staff: According to the survey I carried out among the personnel of
Civil Court N° 74 the employees’ opinion about the software IURIX was positive. 85% of the
workers surveyed qualified the software IURIX as “good” and the other 15% as “Excellent”.
Also, among the employees of the National Civil Court N° 78, the result was positive. 70% of
the surveyed staff qualified the software IURIX as “Good” and only 30 % as “regular”.
The software IURIX is one of the most positive achievements of the PROJUM. Almost all the
interviewees agreed on its benefits and utility although some of them expressed some objections.
59
IURIX and the Judicial Council: Nevertheless, the Judicial Council (Resolution 93/08),
through a decision taken on 13th March 2008, decided not to replicate the IURIX system in all the
other National or Federal Courts founding the decision on reports and researches developed by internal
technical offices which advised the non-replication of IURIX and recommended to create a special
system for the National Judiciary. A new plan of computerization was launched, in which the internal
offices will elaborate a similar or better software system adequate to the concrete exigencies of the
National Judicial Power.
f) Evaluation of the Common Administrative Units(UACs);
The UACs are external administrative offices created by the PROJUM which display their activities
outside the PROJUM Courts aiming at achieving the decentralization of functions. The UACs are
designed to alleviate the administrative work of the Courts. The UACs principal functions are to
receive and archive the files or records, to make the external communications with other entities
outside the court and to store the records currently inactive (intermediate archive). They have three
main activities: the reception and archive of documents(URED), the courier services(UM) and the
provision of auto-consulting computerized units (UC). (FORES- NCSC, 2005)
In the Civil Courts and Social Security Courts at the moment of FORES evaluation (2005), the UACS
had been implemented partially. In the Federal Courts in the provinces and in the Commercial Courts
of Buenos Aires, only the Computerized Auto-Consulting Units were implemented. According to the
FORES evaluation report the objective of decentralization had been achieved only partially.
Empirical research:
This consisted mainly of informal interviews to two Pro-Secretarios and in situ observation of the
UAC created for Civil Courts of Buenos Aires. It was observed that an external administrative office
was created in which a large quantity of judicial records were stored.
Carlos Cabral Hunter (interview N°8) and Gabriela Guzzoni (interview N°9 ) said that the
UAC is under the administrative control of Civil Chamber of Appeals. One of the judges of the
PROJUM Courts has been appointed Coordinator of the UAC. The administrative technical
procedures used in the administration of the UAC are a mixture between the traditional administrative
tools and the new tools incorporated by the PROJUM. The interviewees informed that UAC was
created by the PROJUM exclusively for the Courts of the Program but lately, due to the success of the
60
UAC services, some other Civil Courts have been incorporated into the UAC administrative system.
Thus, nowadays they work not only for the PROJUM Courts but also for some other Civil Courts and
the plan for the future is to extend or “replicate” the UAC to all the National Civil Courts in the City
of Buenos Aires. Dra. Virginia Simari (interview N° 11), former PROJUM Executive Director and
current National Civil Judge, said that the replication of the UAC to other Civil Courts is an
achievement of the PROJUM. Simari affirmed that the PROJUM entailed an important “cultural”
change, another way of doing the work and, in some sense, the PROJUM has had some positive
results like the replication of the UAC to other Civil Courts. Also Silvia De Carli (interview N° 3)
stressed the utility of the UAC and the useful assistance provided to the Court.
g) Evaluation of the Court Users Group Perception
This activity carried out by FORES aimed at measuring the opinion and perception of Court users
(lawyers litigants, plaintiffs and respondents) about the results achieved with the establishment of the
new Model Court; and to compare the results obtained with the fieldwork carried out in August of
2003 by the PROJUM implementers. The main conclusions were framed by FORES-NCSC in the
following topics:
Table 11
Evaluation of the Court Users Group Perception by FORES‐NCSC
Tangibility
The appraisal of the elements of the service (installations, data processing teams, presence of the personnel, etc.) has been the aspect which most improved in the perception of
the users in all the Courts, except for the Court of Resistencia where practically there were no changes according to the users’ opinion. (FORES‐ NCSC, 2005)
Reliability The quality of the jurisdictional and administrative services of the courts and the compliance with the normative of the Procedural Civil Code, among other aspects, was evaluated. Certain improvement was perceived by the users of the
Commercial Courts and Federal Court Nº 2 of Mar del Plata. The Civil Courts and the Federal Court of Resistencia had a negative change in users’ perception. The Social Security Court has not suffered substantial variations among both
measurements.(FORES‐NCSC, 2005)
Capacity of answer
Aspects such as the efficacy of the court, the organization of the entrance office and the achievement of benefits (on Internet or terminals of Self consultation) were
evaluated here. The Court users’ opinion results did not change from the fieldwork findings in 2003 except for the
Court of Resistencia, where a negative change was observed. (FORES‐ NCSC, 2005)
Security The Court users’ opinion about the confidentiality and the courtesy of the officials did not have changes, although in the courts of the interior, it became slightly more negative.
(FORES‐ NCSC, 2005)
Empathy
The opinion of users about the personnel capacity to offer
Satisfaction of expectations
The perception on the service received with respect to what
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a service of quality has improved in Social Security Courts. On the contrary, in the Federal Court of Resistencia, the variation was negative, while in the other courts it has
been maintained relatively without changes. (FORES‐ NCSC, 2005)
was expected to find has not changed in the Civil Courts; whereas in the Federal Court of Resistencia it has become worse, while in the other courts it is perceived in a more
positive way. (FORES‐ NCSC, 2005)
Figure N° 7 Model Court User Survey results- Comparison between 2003 and 2005.
Source: World Bank report.
Empirical research:
Judges Casas and Molina Portela argued that litigants have perceived positive changes in the
administration and case management of their courts. Casas pointed out that lawyers litigating in his
court are aware that they cannot abuse of procedural mechanisms to delay the disposal time of cases.
h) Evaluation of the Court personnel´ opinion.
This activity undertaken by FORES-NCSC aims at measuring the opinion of the judicial personnel
(judges, officials and workers) about the PROJUM implementation ex ante and ex post, mainly about
the “New Management Model”; the satisfaction of the range of quality norms, of court personnel´s
expectations and the detection of critical aspects of PROJUM (FORES-NCSC, 2005).
FORES findings in this activity showed that for 51 % of the Court personnel the New
Management Model implemented worsened or did not change the Court efficiency; 52% think that
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the new organic structure does not modify the judicial process dynamic or it causes delays; 45 %
expressed that the administrative activity quality remained the same; 80% considered IURIX as easy
to operate; nevertheless, 57% said that IURIX not only did not facilitate the work, but it even
obstructed the work; the training received was perceived as insufficient by the majority of the
personnel; the new layout was adequate for 39 %; 54 % considered that the New Management Model
is working below their expectations. (FORES- NCSC, 2005)
Empirical Research
Survey to the Court staff: According to the survey carried out among the staff of Civil Court N° 74 the
employees’ opinion about the PROJUM outcomes was also positive. 50% of the surveyed staff
considered that the case disposal time, the backlog rates and the overall Court administration had
significantly improved and the other 50 % said that the changes had not been so clear but showed
confidence in the reform.
In contrast, the employees of the National Civil Court N° 78, showed very disparate opinions.
For 67 % of the employees surveyed the PROJUM had not improved the overall functioning of the
court. For 83 % of them the case disposal time had not diminished and the backlog rate had not
improved.
i) Evaluation of the Training Programs;
This activity of FORES-NCSC evaluated the impact produced by the training programs given to
judges and court workers under the Skills Learning Plan of the New Management Model.
FORES-NCSC informed that the identification of training needs had not been well
elaborated and the courses did not take into account either the reality of the work in the Courts or the
human resources composition. In general, the training teams provided by PROJUM were considered
as skilled for the task and the material provided in the course adequate to reform needs. For some of
the surveyed personnel, the courses were inopportune; some of them were too soon and some others
too late. The Court staff pointed out the absence of permanent technical assistance, the resistance
existent in the Judiciary to the management logic and that the importance of this aspect had been
overlooked. (FORES- NCSC, 2005)
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Figure N°8: Impact of the Training Courses adequacy to the “New Management Model” .
Source: FORES-NCSC Report
Figure N°9: Court Personnel general opinion about the training courses.
Source: FORES-NCSC Report
Empirical research:
By means of the empirical research conducted on Civil Courts 74 and 78, all the personnel surveyed
confirmed their participation in the training courses. The training received was qualified by Civil
Court 74 personnel as “good” by 83% of the surveyed group and as “excellent” by 16%. To the
question if the skills learned during the training courses were used in the daily work, 50% answered
affirmatively that they use the knowledge acquired and the other 50% that they seldom use it.
In Civil Court 78 the training received was qualified as “good” by 50% of the surveyed group
and as “regular” by the other 50 %. To the question if the skills learned in the training courses were
used in the daily work, 50% answered that they rarely used the knowledge acquired, 34 % answered
that they did not use the skills every day and 16 % answered that they did use it.
Final comments about the Managerial evaluation of PROJUM
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From the previous analysis some broader conclusions can be reached to the extent that the PROJUM
had disparate results depending on the courts’ commitment to the reform. It is not easy to explain
these disparate results. Lower court dynamics has made courts become like units isolated from each
other and depending almost exclusively on the leadership of the Judge. This is in some way justified
in order to preserve the principle of independence of justice, but this isolation of lower courts is
perceived nowadays as an obstacle to court modernization. One important issue of the judicial
reform programs in Argentina was to strengthen the communication among judges36. These factors
are intrinsically connected with the leadership and judicial government concepts. The organizational
structure of courts at national level as independent units has strengthened their isolation, since the
control exerted over them by the Higher level of the judiciary is exceptional and only for extreme and
grave cases. This makes judges lead the court under their own exclusive criteria and explains in some
way the difference in the results among the courts.
The great number of activities carried out by the PROJUM has been evaluated by FORES-
NCSC and the results obtained, to a great extent, correspond to the instability shown by all the
PROJUM courts, in which in situ observation was carried out. The general opinion is that the
PROJUM failed. The implementation mechanisms chosen by the PROJUM are considered not to be a
complete and effective way to promote judicial reform. The PROJUM failed in its implementation and
in its initial delay, as well as in the design of the program itself, which included no mechanism to
promote the participation of local stakeholders. Nonetheless, considering the final failure of the
program, its design was not as relevant as the lack of consensus and participation of stakeholders and
the absence of a strong leadership, factors that had a great influence in the negative results of the
program. This claim is corroborated by the fact that even today the positive results of the PROJUM
are maintained by the isolated efforts of judges without any kind of support from the higher levels of
the judiciary. The lack of leadership and the lack of a strong guidance from the judicial governance
authorities has been evident in the PROJUM case. This lack of leadership was present during all the
program and is still evident after its conclusion.
36 See table 2. One of the programs aimed at improving communication among judges
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PART IV
EXPLANATIONS
The 2001 Crisis in Argentina and the PROJUM
“Argentina’s economic collapse in December 2001 is seen as perhaps the most emblematic evidence of the failure of neoliberalism in the developing world to provide sustainable and equitable economic growth. A new policy frame has gradually emerged since the crisis which relies on a more active state in the promotion of growth.”(Grugel et al, 2007:2)
With the definitive breakdown of the economy in December 2001 in Argentina all the spheres of the
governance system were affected. The ruin of the convertibility system (monetary system that
equalized one peso to one dollar), which had survived for 10 years, percolated all over the political
system and in a few weeks provoked the resignation of President De La Rua after being only two
years in office. The social situation became very grave with millions of people below the poverty line,
with the payment chains broken, private property rights seriously restricted, the banking system
collapsed, the shadows of bankruptcies hanging over small farmers and producers and the proliferation
of claims in courts asking for the return of the deposited funds in bank accounts. All the system had
collapsed and more than 30 people had died in the turmoil of those disastrous days of December 2001.
This was the environment in which the PROJUM had to be implemented. To some extent the
delays in its initiation were widely justified. It is not a minor question that the IFIs had been seriously
engaged with the convertibility system and all the unpopular policy decisions of privatization, free
markets, and deregulation which had devastated the country and had received the support of IFIs -
mainly the IMF-.
This breakdown affected seriously the payment chains provoking the proliferation of new
claims through a specific judicial petition “el Amparo Judicial”37 which seriously overloaded the
work of the courts. This is the main factor that weakened the court performance indicators and
backlog rates measurements in the PROJUM. The courts were overloaded with amparo complaints.
37 The amparo judicial is a quick trial when rights are affected without any other judicial proper remedy.
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Social and political sectors reacted accordingly to this situation of breakdown and successive
presidents were appointed by the Congress in order to face the worst crisis in the history of the country
and its uncertain future.
To mitigate the disastrous effects of the crisis the Mesa de Diálogo Argentino was created,
with its “Mesa Permanente para la Reforma de la Justicia del Diálogo Argentino”. This was a Catholic
Church initiative with the support of UNDP and the government (Riggirozzi, 2006:53). It was a forum
with wide representation of social sectors in order to contribute to overcome the crisis through the
elaboration of proposals for economic and institutional reforms. (Riggirozzi, 2006:53).
Five main commissions were created to promote judicial reforms, namely: Access to Justice,
ADR Mechanisms, judicial training, judicial backlogs, judicial delay reduction and judges
profile.(Garavano et al, 2003) . NGO delegates, policy makers, magistrates and judicial
representatives participated in the commissions. Several projects were proposed, some of which
effectively implemented.
During this period the PROJUM implementation was delayed but in the streets of Argentina
the political turmoil was a daily event. A new role of the state in the economics was in the scene: “In
Argentina, the search for post-crisis governance has involved a more dynamic role for the state in the
pursuit of growth and social stability”(Grugel et al, 2007) This tendency, jointly with the scarce
credibility of IFIs38 as efficient promoter of sustainable changes and development in Latin American
countries, impacted negatively on the PROJUM as well. Its lack of connection with the Mesa de
Diálogo proposals was evident. The efforts of political parties concentrated on the enactment of
emergency statutes which impeded the operability of bankruptcy regimes and suspended the mortgage
recoveries. The whole legal system was subjected to an impasse. In the overall assessment of the
PROJUM by the WB it is clearly expressed that “[t]he Project should not have been started when the
judiciary's governance structure may have been undergoing a substantial change. Neither should the
Bank have persisted in pushing a project when there was lack of commitment from the authorities
responsible for its execution.”(World Bank website39, the emphasis is mine).
38 In 2005–6 the government of Argentina decided to repay its whole debt to the International Monetary Fund with
the sole purpose of avoiding IMF intervention.
39 http://www-wds.worldbank.org/external/default/main?pagePK=64193027&piPK=64187937&theSitePK=523679&menuPK=64187510&
67
However, the PROJUM continued and was finally implemented but to some extent all these
“globalised” changes experimented in Argentina affected seriously its final chances to succeed.
In this scenario some other important factors influenced positively or negatively the PROJUM
outcomes, namely:
1) Absence of Judicial Independence:
The political struggles to influence the judiciary are historically rooted in old practices, which have
determined the role that the Judiciary usually played during history as supporter of Executive policies,
which affects and often impedes any attempt to produce judicial reform. The conservative character
of the judiciary coming from colonial times, resistant to outside changes, its closely connection with
the political power and the historical dependency on the Executive and the economic elites dictates
have systematically weakened the effectiveness of the judiciary and undermined its independence.
This “Politicisation of the Supreme Court and Executive interference in the judiciary” has made it
much “easier to find pro-reform actors at lower levels of the judiciary and at the level of the ministry
of justice”.(Riggirozzi, 2006)
As the World Bank itself indicates, in order to avoid the political struggles around the
Judiciary, (hence to avoid to interfere with the Executive policies towards the judiciary) the way
attempted was to produce changes in the Judiciary improving its effectiveness (court delays,
organizational skills, etc) through management tools setting aside the more problematic issues like
“independence or transparency of the judiciary”(Riggirozzi, 2006) But this depoliticized strategy
assumed by the World Bank, paradoxically provoked more political problems among the actors
involved instead of alleviating the conflicts which, to a great extent, confirms the claim made here
about the need for more empirical research and agency previous to the programs launching and the
building of a real previous consensus among policy makers, and judicial and academic actors
involved.
2) The reform methodology chosen by the WB reinforced the status-quo.
The lack of involvement in the PROJUM design and implementation of researchers and policy
makers and other actors and the setting aside of reform proposals, already designed by local expertise,
searchMenuPK=64187283&theSitePK=523679&entityID=000112742_20060724121459&searchMenuPK=64187283&theSitePK=523679 (09-10-2008)
68
show in some way that the path followed by the WB with the PROJUM led to empower the
“executive-judiciary’s status-quo” (Riggirozzi, 2006) instead of promoting effective judicial reform.
“Recognising that various interests are involved in the local distribution of aid funds is critical for international donors to encourage linkages between research and experts groups that hold other sets of ideas and proposals different from those supported or close to government positions. The lack of recognition of these points in the case of judicial reform in Argentina led the Bank’s Legal Department, willingly or not, to support a ‘depoliticised’ judicial reform agenda that led to a stalemate situation enhancing the government’s agenda, and with it empowering the Executive-judiciary’s status-quo, while des-empowering local experts and civil society organizations that sustained the need to change governance underpinning of the system.”(Riggirozzi, 2006:48)
3) Operational difficulties in achieving effective judicial reform and political consensus.
Creating an effective judicial reform in Argentina is a very difficult task. In this sense the role of the
WB and IFIs, in general, could be very productive for improving domestic institutions but these
attempts should not be disconnected from the already existent state of the art of local academics and
reform programs projected by policy makers with scarce implementation power (Riggirozzi , 2006).
This necessity of consensus became evident in the case of the PROJUM, in which, in order to avoid
political problems and choosing a managerial approach, the problems and struggles were
paradoxically multiplied to an extent in which the continuity of the program was posed to significant
risk. As one of the interviewees confirmed, the initial delays rested more on policy decisions
(supported both by the WB and the government) rather than on the inefficiency of the executive
units.(Simari, interview N° 11)
These “operational” difficulties in producing an effective judicial reform have been stressed by
many argentine authors:
“Binder concluded that the many and diverse steps taken at both federal and state [provincial] levels to carry out judicial reform have been difficult to sustain and have fluctuated to the point where they have become enervated. A permanent standoff occurs between the forces of reform and those who seek the political manipulation of the judiciary, forces that are distributed equally in all the key institutions: the executive, Congress, political parties, academia, and lawyers’ associations. Early efforts to promote a coherent national policy of judicial reform did not prosper, and in the two decades since democracy was restored, the debate between reformers and those resistant to change has been a constant. Although a certain “social consensus” and “technical consensus” in favor of integral judicial reform has been attained, there is no political consensus to move the process forward. In an environment such as this, smaller-scale “impact” reforms should be carried out to improve the quality and delivery of judicial services. In general, far more progress has been made on the criminal than on the civil law side and at the micro level rather than at the top.”(De Shazo et al, 2006)
The difficulties to reach political consensus on Judicial Reform is one of the main obstacles to succeed
in judicial reform efforts. Because of that, the promotion of networking activities, like the ones
69
developed by think tanks and advocacy NGOs, can become an important tool to install or reinforce
judicial reform in the government policy agenda.
4) Lack of leadership and the absence of a strong Judicial Government.
Precisely a “smaller “impact” reform”(Binder, 2006) was the PROJUM but it was, however, not
successful. To a great extent, those poor results rested further on the lack of a serious commitment of
judicial government authorities rather than on the way chosen for the reform. This lack of leadership
(Elena, interview N° 5) was accentuated by the fact that in the PROJUM times the Judicial Council
had recently begun its activities and hard conflicts of power had aroused with the Supreme Court of
Justice. This shows that consensus should also comprise a strong leadership of the higher levels of the
judiciary with policy power for implementation. Consensus without leadership would not be sufficient,
furthermore, leadership is the key word for future reform processes and, therefore, a strong
redefinition of judicial government is required.
As already said, the initial delay condemned all the program chances to succeed and
predisposed some stakeholders to its failure.
To some extent the conservative character of the Supreme Court, such as inhibiting reform,
can be ratified by the limited character of the last Court administration plan recently launched by the
Supreme Court and the Judicial Council, in which the lessons learned through the PROJUM were not
taken into account and the plan recently launched circumscribes to give recommendations very far
from the suggestions of the epistemic communities and the “lessons learned” with the PROJUM. This
lack of positive reaction in pro of reforming courts and the superficial attitude approaching judicial
reform can be very disappointing for some stakeholders and can cause a paralyzing effect.
Leadership is intrinsically connected to the concept of judicial government. A serious judicial
government (gobierno judicial) in the hands of the judicial branch itself (Garavano, 2005;
Hammergren , 2005:3) should comprise the functions of monitoring the courts performance and the
institutional policies for the sector, the traditional budget administration, the selection of human
resources -mainly the justices, the control over the judicial career and the administrative careers.
(Hammergren, 2005:3).
Some interviewees (Elena, interview N° 5) pointed out the lack of leadership in the program
administration with the consequent lack of commitment by judicial authorities. This instability in the
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judicial government was more profound and evident in the initial stages of the program when the
Supreme Court, the Ministry of Justice and the Judicial Council were struggling to exert the judicial
government and the control over the PROJUM (World Bank, 2006 ) Even though the stagnant
situation was improved later, it was too late to achieve positive results since the “public opinion”,
mainly among the key actors involved, had stigmatized the project and, consequently, the scarce
enthusiasm for the program collapsed.
5) Little policy continuity in Institution Building in Argentina
Another remarkable point in institution building initiatives in Argentina is the scarce range of
continuity of public policies across time and successive governments. In the specific case of judicial
reform at the beginning of this research, the Programa Integral de Reforma Judicial (a comprehensive
program launched by the Ministry of Justice and Human Rights in 1998), was available on the web. It
had been launched the same year in which the PROJUM had been negotiated by the WB and the
Argentine government. The program was abandoned some years ago and the initiative vanished due
to this lack of continuity.40
Even the non-replication of the PROJUM to other courts is showing the deficiency of policy
continuity. The Judicial Council had two meetings to deal with the replication or not of the PROJUM
and decided against it, even though two Courts of Appellation had requested it.
6) Absence of policy consensus
The non replication of the PROJUM to other non-participant national courts decided by the Judicial
Council after the conclusion of the program shows that the lack of consensus about the program,
rather than a defective design of the program itself, led to the PROJUM failure. Probably, if the
Program had been agreed on by main policy and research actors under a strong leadership exerted by
judicial governance institutions, the program would have been successfully completed. The non
replication of the program was decided because its results were very poor and the WB lack of will in
its support was also remarkable. “Moreover, a second project that was proposed as a continuation of
PROJUM, the ‘Reform of the Judicial System’ (Project ID 55479) was in the pipeline to be
40 The comprehensive program web site provided a very useful data base of programs and initiatives. Amazingly, in the last days the access was not possible. The web site “was”: www.reformajudicial.jus.gov.ar . and it had been very useful for this research.
71
implemented in the fiscal year 1999 but was later cancelled in the light of the PROJUM results
(Dakolias 2004: interview).” (Riggirozzi, 2007: 22)
In the face of the strong difficulties, the only solution to be chosen was to abandon the
program, both by local authorities and the WB , instead of reinforcing mechanisms to secure its
continuity. This lack of commitment with the program is in some sense evidencing lack of
responsibility and a hazardous misuse of human and financial resources. The lack of commitment
with the program continuity is a serious warning for local actors, mainly judges and court personnel,
against this kind of programs financed by IFIs where not only local governance authorities seriousness
is at stake but also the credibility of IFIs.
. As said above, the main claims regarding judicial reform in Argentina were not heard. Binder
(2006) speaks about the existence of at least three big currents in judicial reform41, only one of them
was taken into account by the WB program without building a minimal consensus among the other
theorists claims.
As regards the empirical research, it should be pointed out that the anarchic way in which the
PROJUM was implemented, with practically no assistance from the higher levels of the judiciary to
the judges of the PROJUM courts, confirms the lack of adequacy of the PROJUM to the local context,
and the conflicts of power are evidencing once again the absence of contextualization and leadership.
7) Political struggles constraining judicial reform processes
Dezalay and Garth (2002) claim that judicial reform initiatives in Latin America under the frame of
LAD are bound by a phenomenon called “The Logic of Half Failed Transplants”. The phenomenon is
a consequence of the palace wars operating in the north and the south, in which the “cosmopolitan
elites” in the south exert a hegemonic control over the state of the art produced in the north taking
advantage of their capabilities to “study abroad and in particular in the US”. “The power and
legitimacy of this elite in large part comes from its claim not just to privileged backgrounds and
connections but rather their possession of state-of-the-art technologies of governance”(Dezalay et al,
2002:246-50). The cosmopolitan elites are also “embedded in structures of powers with important
intermediaries able to keep the social peace” essential to maintain their elite status. Always behaving
in defense of the elites’ privileges, some interruptions are destined to the import of institutions
41 I alluded to these currents intervening in judicial reform in pages 24 and 25.
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delegating the task to the successive generations. The future generations will bring the “latest
technologies” in a process reproduced dialectically through time.(Dezalay et al, 2002:246-50)
A critical socio-legal approach to the Dezalay and Garth (2002) theory suggests that even
though it is not entirely applicable to the Argentine case, it serves to emphasize the conservative role
of the judiciary coming from colonial times, and the struggles around the judiciary in which elites
(through corporate law firms, governmental and judicial positions, economic concentration, etc.)
have a predominant role. It also serves to remark that political pressures on the judiciary have not
diminished with the initiatives of judicial reform undertaken in the last years as, for instance, through
the creation of the judicial council even though some improvements have been achieved. The
situation is not as dramatic as in previous years since the new appointments of justices in the Supreme
Court undertaken by the Kirchner administration have slightly improved the chronic situation of
judicial dependence on the Executive. The Supreme Court “public image” has improved in the last
years and the prestige of the new appointees is widely recognized.
In the case of Argentina, the palace wars social scheme is partially applicable and more
research should be undertaken to prove the claim that the non conclusion of the reform programs is
based on a family–power nucleus base. However, the surprising work of Dezalay and Garth (2002)
and their empirical approach is very useful to understand and deepen socio–legal scholarship about
legal exports and imports and the social forces surrounding transplants and institutional reforms in
Latin America.
8) Governance struggles in the Judicial Government
The governance struggles between the National Supreme Court and the Judicial Council, which
affected seriously the PROJUM in its initial delays, were also a key factor in the failure of the
PROJUM. The high financial costs of this program, which impeded its easy replication, and the lack
of governance support (leadership) were the main reasons for the non-replication of the program.
Nevertheless, to achieve governance support for this kind of programs does not seem to be an easy
task at National Judicial levels and these difficulties (World Bank, 2001), connected to consensus
building (Binder, 2006 ) in the national judiciary in Argentina, moved WB units to prefer the Pilot
methodology in order to settle judicial reform as a key aspect of the agenda of the government in
institutional building in Argentina. Moreover, the enormous effort ,which entails the reform of
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National Courts in the city of Buenos Aires, cannot be dismissed. There are hundreds of national
courts only in the city of Buenos Aires. The task undoubtedly cannot be undervalued and the efforts
to achieve improvements in judicial administration should be supported mainly by judicial governance
institutions and policy makers.
9) Resistance of local actors to reformist processes undertaken with IFIs external
intervention
The inability of the program to propose a sustainable system for judicial reform in Argentina through
the PROJUM was a consequence of intrinsic difficulties of the judicial reform and the lack of
leadership from the authorities in which the absence of a solid judicial government should be stressed
again. From the beginning, the program appeared not to be contextualized with the aspirations and
expectations of local actors. It was definitely resisted by almost all of them, each arguing different
reasons.
The high levels of the judiciary probably have seen in the program a threat to their rooted
practices and their style of judicial administration. This tendency, as explained above, is based on the
fact that the judiciary usually perceives –often with justified reasons- external interventions in their
internal affairs as a dangerous practice which challenges judicial independence and the status quo.
The PROJUM was launched by the Executive without any commitment of the judiciary but only some
isolated support from very few judicial actors.
Policy makers from the Ministry of Justice perceived the PROJUM as a program far from
the policy goals followed by them through the implementation of some other programs which had
already been launched with insufficient financial resources(Garavano, interview N° 6). “Argentina
already had 15 years of experience in studies and investigation on judicial reform before the
involvement of the World Bank. 'Yet existing studies were ignored by the World Bank mission and
therefore delayed the start of the projects. The result was an over-diagnosed sector with limited
capacity of policy implementation' (Lynch 2003: interview).” (Riggirozzi, 2006:56)
Think tanks engaged with organizational reform and case management did not agree with the
lack of participatory mechanisms impeding local expertise intervention. “The emergence of
programmes for judicial reform based on local knowledge has not always encountered political
interlocutors among the key actors within the judiciary. As a consequence, there has been a growing
74
gap between local knowledge supply and lack of demand for policy proposals from policy-
makers.”(Riggirozzi, 2006:56)
NGOs and advocacy civil societies, engaged with a more political vision of the reforms
needed, posed resistance to the “rational” model to be implemented and to the role played by the WB
as “lobbyist” of the interests of core countries and supporting government policies which were
seriously questioned for the lack of transparency and the evident manipulation of the Supreme Court
of those days. “The perception of local experts that the World Bank pursued de-contextualised
approaches aimed at benchmarking reform processes have limited debate and reduced the process to
one best way of doing things. International agencies have sometimes supported research that fits their
own and their government's agendas.” (Riggirozzi, 2006:56) feel
Judges and court staff complained, in many instances, of being overloaded with the
additional burdens that entailed the implementation of the program and the training schedule as well as
isolated in their efforts. This is strongly connected with the organizational structure of the national
judiciary in which “Court's collegial organization works against a leadership role and in favour of
corporate interest.”(Riggirozzi, 2006:55) In case that lower judicial levels were able to sustain a
“policy proposal (or support to existing ones)” (Riggirozzi, 2006:55), they would have very few
chances to implement it. Nonetheless, some judges and court staff showed a remarkable enthusiasm
(Casas, Interview, N° 1) supporting the program because they realized judicial administration
deficiencies were challenging their own professional reputation.(Molina Portela, Interview N° 2)
A culture of resistance to IFIs intervention, as evidenced in the resistance exerted by key
actors, is a widespread and visible phenomenon intrinsically linked to nation state paradigms. During
PROJUM times it was politically correct for the judicial-political and academic actors to take a
political position against the PROJUM (Simari, interview N° 11 ). This perception shows, in some
way, how deep the struggles around the PROJUM were and also about the World Bank intervention in
domestic judicial reform in Argentina.
The absence of previous networking and consensus building by the World Bank is to be
emphasized and, even though the impact of the PROJUM is still not definitely closed, it explains the
negative socio-political environment among key actors, in which the PROJUM was developed; an
argument confirmed by some interviewees (Interviews N° 6, 7, 11).
75
The role played by the WB in the last decades has turned it into a key actor in judicial reform
matters in Argentina. WB intervention and its impact on policy–research nexus has been thoughtfully
accounted by Rigirozzi (2006, 2007). The lack of participation of the epistemic communities and even
from the more qualified policy makers in the PROJUM was remarked and this explains, to some
extent, the poor results achieved by the program. Furthermore, some researchers with long experience
in judicial reform stressed that WB intervention in the Argentine judicial reform ultimately “sterilized
local efforts”. (Riggirozzi, 2007:22)
Nonetheless, not the whole intervention of IFIs is questioned and resisted in judicial reform in
Argentina by key actors. On many occasions, the WB intervention is seen as a relief and as a real
facilitator of improvement and development. Indeed many WB programs in Argentina at National and
Provincial levels have had satisfactory outcomes42. Unfortunately, this was not the case in the
PROJUM at the national levels of the judiciary. To some extent, the reason for this to occur was not
having followed the lessons previously learned by the WB (Carothers, 2003) on previous occasions .
The requirement of ownership in the terms used by the WB and IFIs had already been stressed before
to the PROJUM launching (Shihata, 1995 a). The lack of “ownership” was evident in the PROJUM
case. This lack of ownership made the program fail from the moment it was launched. Even the WB
assessment report qualifies performances of the WB and Argentinean authorities as unsatisfactory.
10) High financial costs of the Project
Another important question about the program was the large amount of money for the loan, considered
as exorbitant by some stakeholders and which made the replication of the program economically non-
advisable. Five million US dollars, or more, were invested by Argentina in the program to reform only
12 courts. Approximately 416.000 US dollars per court were invested. Only in the city of Buenos
Aires there are more than 600 Courts. The major goal of the program was its replication. The
replication of the program with those costs became practically impossible. The relation
implementation costs –results obtained- was at the centre of the scene and sustained critics about the
program. One of the most important arguments of the actors opposed to the program continuity was
42 See for instance a WB program in Province of Santa Fe: http://www-
wds.worldbank.org/external/default/main?pagePK=64193027&piPK=64187937&theSitePK=523679&menuPK=64187510&searchMenuPK=64187283&theSitePK=523679&entityID=000333038_20080813005942&searchMenuPK=64187283&theSitePK=523679 (08-25-2008)
76
the fact that after having invested more than one million dollars, the only visible achievement of the
program was the provision of computers to the courts
Many interviewees pointed out the lack of correspondence between the money invested and
the results obtained, stressing that better results could be achieved with less funds. Moreover, some
programs later implemented in the provinces achieved much better results with ten per cent of the
PROJUM budget, specifically , the case of the Province of Rio Negro (Elena et al, 2007:112). The
Rio Negro program was also a program attempting to make changes in court management and
administration, but the results were positive with a much smaller budget. The participatory
commitment and the strong leadership of the Rio Negro Provincial Supreme Court were the main
factors (Elena et al, 2007) argued by some interviewees for the achievement of positive results.
11) Pressures for Argentine courts to adopt global norms. Isomorphism (Powel & Di Maggio,
1983)
The mirror effect followed by public organizations when seeking to improve their organizations can be
approached trying to answer to what extent the more rational organizational styles operant in more
developed organizations in the same organizational field can be used to improve the outcomes in the
own activities.
Di Maggio and Powell (1983) argue that it is to ask why organizational fields43 tend to be
similar instead of asking why they are different. Following this idea they claim that in organizational
fields there operates an organizational rule that makes “the organizations more similar without
necessarily making them more efficient”.
“The concept that best captures the process of homogenization is isomorphism[….] isomorphism is a constraining process that forces one unit in a population to resemble other units that face the same set of environmental condition. At the population level, such an approach suggests that organizational characteristics are modified in the direction of increasing compatibility with environmental characteristics.” (Di Maggio et al, 1983:149 )
The authors set out three mechanisms of Institutional Isomorphic change:
• Coercive Isomorphism: it stems from political influence and the problem of legitimacy. It is
imposed by legal or authoritative constraints.
43 Organizational field is conceptualized by the authors as "those organizations that, in the aggregate, constitute a
recognized area of institutional life"
77
• Mimetic Isomorphism: (modeling) resulting from standard responses to uncertainty or
modeling. The tendency to imitate better organizations.
• Normative Isomorphism: Associated with professionalization. Quality norms
standardization, accountancy norms, etc
The above is an analytical distinction since empirically it can be intermingled among different
types.
The authors try to elaborate predictors of isomorphism that should be tested empirically. One
of the hypothesis elaborated by the authors corresponding to institutional coercive isomorphism is
that:
The greater the dependence of one organization on another organization, the more similar it will
become to that organization in structure, climate and behavioural focus.( Hypothesis A-1)
The aforementioned organizational hypothesis makes us speculate why in the PROJUM the
lower Court levels of the judiciary were chosen as Pilots. Probably, if the program had included in
its design high level courts jointly with low courts, the program would have been more easily
replicated. The fact that the more serious problems like courts backlogs and delays were in lower
courts does not seem to be a solid argument to avoid the fact that in Argentina higher level courts
have much more implementation power than lower courts . This characteristic of organization of
courts in Argentina is remarkable. The lack of leadership from higher courts and its lack of
commitment with the PROJUM is evidencing to some extent that a serious hierarchical factor was not
taken into account by the PROJUM design. This issue is linked to and brings back the problem of the
judicial government in Argentina once again.
Beyond the hypothetical character of the aforementioned argument, my intention is to draw
attention to this point: the chances of the PROJUM would have increased if the higher levels of the
judiciary had been included in the program or if, at least their engagement in the program had been
stronger. Higher Courts had no participation in the program and if they did have any, it was secondary.
In a globalized world isomorphism is a recurrent phenomenon for leading organizations. The
organizational skills were a central point in the PROJUM and isomorphism can be observed in the
program through coercive isomorphism (despite the lack of commitment of higher levels of the
judiciary) and normative isomorphism.
78
Mimetic isomorphism of organizational forms can be adverted in the free initiatives held by
think tanks and civil society efforts and programs. The subtle power of PROJUM in installing the
necessity that the judiciary adapts its own administration to global organizational parameters also
corresponds to an increasing tendency of adaptation of the administration of justice, mainly in Latin
America, to the templates of the northern countries . The agencies in the promotion of judicial reform
have proliferated in the last years being CEJA (ASJC) -an initiative held by American states aiming at
supporting technically reform efforts in the continent- one of the most important initiatives.
Another example of the relevance of judicial reform in the agenda of Latin American countries
is the Cumbre Judicial Iberoamericana which also includes Andorra, Spain and Portugal. In the last
meeting, the Cumbre Judicial Iberoamericana, the thematic organization was focused on Judicial
modernization, legal security and predictability, access to justice and social cohesion (Revista Cumbre
Judicial Iberoamericana, 2008).
One of the most relevant virtues of foreign aid programs(in this case the PROJUM), as many
interviewees(Simari, interview N° 11) asserted, was to install the necessity of judicial reform in the
agenda, not only of the governments but also the judges, actors involved such as lawyers, NGOs, etc.
The replication of the UAC in the Civil Courts of Buenos Aires, primarily destined to serve
only to the PROJUM courts, and now extended to some courts non-participant in the Program, is a
relevant issue to be remarked. The benefits of an external unit to deal with external communications of
courts and to serve as intermediate archive of records have been perceived by some other civil courts.
They requested to use the UAC since this external unit alleviates considerably the work in courts. Here
mimetic isomorphism can also be adverted since some civil courts are modeling on the PROJUM
courts.
Finally, the aforementioned factors around the PROJUM and the national judiciary enlighten
some of the restraints as well as the chances of a future federal judicial reform process mainly in the
city of Buenos Aires, where my fieldwork was conducted. The judicial style of courts and its
administrative hierarchical organization make any reform of the National and Federal Judiciary in the
city of Buenos Aires a very complex task. The huge quantity of courts also makes the coordination
among them difficult and its modernization will require a strong decision making process based on a
79
strong leadership of the judicial governance authorities, (Elena et al, 2007:103) as well as on the
broadest political and technical consensus available. (Binder, 2006)
The Pilot has been very useful to clarify the next steps of judicial reform in Argentina. The
goal of improving court performance indicators and circumscribing the judicial reform to managerial
aspects is very laudable even though it ignores important items of judicial reform. Some important
conclusions can be drawn from the PROJUM. The most important of them is that any reform program
should be decided with the participation and the strong commitment of the judicial governance
authorities (Elena et al, 2007:103), at this moment, the Supreme Court and the Judicial Council. The
decision to launch a Judicial Reform Program at National level cannot be decided unilaterally by the
Executive even though its participation is unavoidable. The process should be led by the Supreme
Court and the Judicial Council with a strong support and commitment of the other government
branches. Beyond the fact that the non-replication of the PROJUM is a final decision, the positive
achievements of the PROJUM should be strongly stressed and widely disseminated in which Civil
Court N° 74 it can play an important role as a court model granted with an ISO 9002 certificate. The
layout inadequacy and administrative organization deficiencies are still evident in non PROJUM
courts. The knowledge generated by local stakeholders and its expertise should be taken into account
by future initiatives and the stakeholders participation should be guaranteed by the project design
itself. With the accomplishment of some conditions, future programs could become successful since
the reformist environment is increasing and the help that IFIs could provide, properly framed, a very
useful technical resource for a judicial reform in Argentina.
80
Conclusions
The tendency to make national legal organizations adapt to international legal standards (Pistor, 2002)
is a phenomenon called the standardization of law. Pressures for harmonizing legal and judicial
systems can be achieved through the agency of global actors like IFIs in areas like “accounting,
auditing, bankruptcy, corporate governance, insurance regulation, and securities market
regulations”(Pistor, 2002:101). Yet, as many scholars have asserted, it is not proved that legal
uniformity will produce economic development (the East Asian countries case is stressed by authors as
Halliday, Ginsburg). That fact has not impeded the growth of the efforts to build a “global legal
architecture”. Pistor´s claim that “the new standards need to be fitted into domestic legal systems” is
particularly relevant to the case of foreign aid programs in Argentinian judicial reform.
The exigency of adequacy to local contexts is currently widespread into socio-legal
scholarship. However, blueprints are still being used by reformers. The WB exigency of “ownership”
is the translation of the same quest in IFIs terms. WB´ request of ownership is a claim for
sustainability of the programs projected by WB departments encouraging concrete and empirical
approaches instead of abstract and normative ones predominant in early LAD programs.
BPR´s theory of “the transplant effect” maintains that in legal transplants should be taken into
account domestic legal contexts in order to achieve effective reform and avoid resistance by local
actors that leads to law in the books but not in practice. BPR´s hypothesis that in legal transplants is
more important the way in which the transplant is implemented than the legal family to which the
exported law belongs is a way to focus the issue far from a normativist and abstract conception
rooted in western weberian-kelsenian-hartian conceptions and anchor the quest into the frames of
empirical speculation.
The limits to globalization imposed by inadequacies between social reality and normative
speculation shows that the process of globalization deserves more empirical enquires in order to
enhance the theoretical and pragmatic embracement in order to address the daily increasing and
challenging quests . The cases of South East Asia in which legal transplants had very little relation
with the amazing growth of the markets indicates the insufficiency of the existent paradigms of
western legal assumptions to deal with globalization.(Halliday et al, 2007a)
81
The limited attention to legal globalization (Halliday et al, 2006) by socio-legal scholarship
shows that the challenge is substantial. The existence of ideological bias and political quests in actors
and researchers should not affect the progress of socio-legal knowledge about globalization of law.
Even IFI power can be foiled by local actors with much fewer instruments and less knowledge
than international organizations and financial institutions. (Halliday et al, 2007a) The claim for more
legal adequacy to local contexts in legal transplants is another way to understand legal interactions
among peoples and, to some extent, it is directed to reach a better understanding of other cultures. To
some extent it is claiming for the respect of the other, the “alien” cultures, through the preservation of
indigenous legal conceptions and cultural diversity. Legal globalization studies should not loose the
path opened by interdisciplinary studies and perhaps in this way it will be able to avoid the chronic
limitations of normativist assumptions and theoretical rigidity that have condemned ROL programs to
failure on frequent occasions.
One of the most serious obstacles that global legal studies will face is to overcome the strong
claims made by anthropologists who conceive globalization as a new way of colonialism, a
postmodern colonialism (Silbey,1996) Nonetheless, the ubiquity of law in the global scenario
reinforces the necessity for global legal studies and a strong analytical and empirical approach is,
probably, the only way to prevail over ideological and political bias, the boundaries imposed by
nation state paradigms (Halliday et. Al, 2006), unlimited powers, and give account and provide
interpretative tools of the globalized world.
The argument of Halliday and Osinsky (2006:1) that “whatever convergences can be observed
in the globalization of law, it remains a highly contingent process” shows to some extent that
globalization is a contested process in which IFIs intervention on domestic legal systems, as in the
case of the model court reforms in Argentina, will probably face serious limits and constraints. The
demand for legal adequacy to local contexts in legal transplants that comprise the voluntary election of
the reform, a minimal “affinity between the legal systems of the exporting and importing countries”
(Halliday et al, 2006:19), and some kind of “familiarity with the principles of law” is a demand that
cannot be avoided either by exporters or importers of law if they seek to obtain successful results.
(Berkowitz et al, 2001; Halliday et al, 2006: 19)
82
The case of the Argentinian judicial reform shows that several of the elements for successful
legal change, identified by theorists of law and globalization, were lacking. Even though the
government requested the WB assistance in the reform process, the local conditions were far from the
ideal and the lack of a minimal commitment of the stakeholders to support the reform weakened the
possibilities of success of the program. Moreover, the lack of an adequate leadership of judicial
authorities made the program become anarchical, unable to overcome the logical resistances of
opposite sectors to the reform. For those anxious to preserve the status quo or to abort the reform, it
was not very difficult to find the way to deepen the prevailing negative atmosphere around the
program. The 2001 crisis deepened the chaotic situation in which the PROJUM had to be
implemented. The commitment to the program was only a commitment of some few actors and judges.
Nevertheless, there were positive results, and not only for PROJUM courts. The PROJUM
program had significant indirect effects as the impact of the reform is still spreading over the country,
mainly in the city of Buenos Aires. The replication of the Common Administrative Unit (UAC) to be
used, not only by PROJUM Courts but also by other non PROJUM Courts with Civil jurisdiction,
shows that the reform followed by the PROJUM is a necessary reform and its benefits were perceived
by non PROJUM courts that requested the use of the Common Administrative Unit (UAC). The accent
put on organizational matters, by recently created civil societies of judges, as a way to improve
judicial administration, is an indirect effect of PROJUM implementation. The growing relevance of
judicial reform as a main point of the agenda of governmental and non governmental organizations to
improve democracy and the judicial service, was reinforced, to some extent, by the PROJUM. The
proliferation of new non governmental organizations on judicial reform, the launching of judicial
reform initiatives as in many provinces, the increasing conviction of judges about the necessity of
judicial reforms to improve justice administration shows that the Model Court Reform was not very
far from the expectations of the Argentine society and, to some extent, fixed the limits of the debate
about the improvement of judicial administration. These wider reforms suggest that the enormous
amount of resources, financial and human, invested in rule of law initiatives may show its positive
results in the mid-term if they are linked to strengthening democracy and human freedom.
Ironically, therefore, PROJUM may have been a failed project. Its continuity is not guaranteed
nowadays. However, as in many cases of globalization of law, its effects may be seen in ways not
83
anticipated by reformers outside or inside Argentina. The lessons learned, either positive or negative,
will be present for a long time in the National judiciary of Argentina. Its powerful presence may well
have impacted the whole process of judicial reform in the city of Buenos Aires and from there to the
whole country.
84
Annex 1. Workflow Chart
Source: World Bank Implementation Completion Report
85
Annex 2 ‐ New Management Model
Source: World Bank Implementation Completion Report
86
Annex 3 ‐ Project Development.
Source: World Bank Implementation Completion Report
87
Bibliography
BERKOWITZ, D., PISTOR K., RICHARD, J.F (2001) Economic Development, Legality and the Transplant Effect. European Economic Review 47(1): 165-195.
BINDER, ALBERTO M. (2006) La Política Judicial de la Democracia Argentina -Vaivenes de la reforma judicial. Available at: http://www.cejamericas.org/doc/documentos/politicajudicial_abinder.pdf (09-03-2008)
BOOTH, WAYNE C.; COLOMB, GREGORY G. and WILLIAMS, JOSEPH. M. (1995) The Craft of Research. Chicago: University of Chicago Press, 1995. 294 p ISBN 0-226-06584-7
BURGOS, GERMÁN.(2006) El Estado de Derecho en América Latina: ¿Artífice de la Igualdad o Factor de Desigualdad? Revista Iusta, 2006, 24, pp. 141-177.
BURNELL, PETER (2007) Methods and Experiences of Evaluating Democracy Support: A Moving Frontier . In: Evaluating Democracy Support. Methods and Experiences. IDEA – SIDA 2007 ISBN: 978-91-85724-13-0. Available at: http://www.adb.org/Evaluation/documents/EvaluatingDemocracySupport.pdf (09-03-2008)
BUSCAGLIA EDGARDO & DAKOLIAS MARIA (1999) Comparative International Study of Court Performance Indicators. A Descriptive and Analytical Account. The International Bank for Reconstruction and Development .World Bank. Washington D.C. USA
(1996) Judicial Reform in Latin American Courts: The Experience in Argentina and Ecuador. World Bank Technical Paper, 350, World Bank, Washington, D.C., USA.
CAROTHERS, THOMAS (2001) The Many Agendas of Rule of Law Reform in Latin America. In Rule of Law in Latin America . The International Promotion of Judicial Reforms. Pilar Domingo and Rachel Sieder (eds.). London: Institute of Latin American Studies, 2001. 176 p ISBN 1-900039-39-7
(2003) Promoting the Rule of Law Abroad. The Problem of Knowledge. Rule of Law Series. Democracy and Rule of Law Project. Number 34, January 2003. Carnegie Endowment for International Peace. Available at: http://www.carnegieendowment.org/files/wp34.pdf (9-03-2008)
CARROLL, WILLIAM K.. (2007) Hegemony and Counter-Hegemony in a Global field, Studies in Social Justice, Vol. 1, Issue 1, 2007, pp. 36-66. ISSN 1911-4788.
CASTELLS, MANUEL (2000) The Information Age: Economy Society and Culture: The Rise of the Network Society, vol. I. 2nd. ed. Oxford: Blackwells,
COLEGIO PÚBLICO DE ABOGADOS DE LA CAPITAL FEDERAL (CPACF) (2001) Fascículo N° 14. Cuaderno de Doctrina. Artes Gráficas Candil (eds.) Bs. As. ISBN 987-98604-0-3.
DAKOLIAS, MARIA; SAID, JAVIER (1999) Judicial Reform. A Process of Change Through Pilot Courts. The International Bank for Reconstruction and Development. The World Bank.
DESHAZO PETE; VARGAS JUAN ENRIQUE (2006) Judicial Reform in Latin America. An Assessment. Policy Papers on the Americas. Volume XVII, Study 2, September 2006. Center for Strategic and International Studies. Available at: http://www.csis.org/media/csis/pubs/0609_latin_judicial_reform.pdf (9-03-2008)
DEZALAY, YVES and GARTH, BRYANT (2002) The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. Chicago: University of Chicago Press. 2002. 331 p (The Chicago Series in Law and Society) ISBN 0-226-14426-7
88
DI MAGGIO, P. and POWELL, W. (1983) The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review, 48(2): 147-160.
DOMINGO VILLEGAS, PILAR (2005) Reflexiones sobre la Reforma Judicial en América Latina : Una Perspectiva Comparada. Workshop "El Estado de los Sistemas de Justicia en Centroamérica : Un Balance de 20 años de Reformas", Oñati IISJ=IISL, 12-13 Mayo 2005. Coordinadores: Leopoldo Díaz Moure (Salamanca) y María Luisa Ramos Rollón (Salamanca)
DOMINGO, PILAR and SIEDER, RACHEL (2001) Rule of Law in Latin America: The International Promotion of Judicial Reforms , (eds.). London. Institute of Latin American Studies, 2001, 176 p ISBN 1-900039-39-7
ELENA, SANDRA and CHAYER HECTOR (2007) Progress and Myths in the Evaluation of the Rule of Law: A Toolkit for Strengthening Democracy. In: Evaluating Democracy Support. Methods and Experiences. IDEA – SIDA 2007 ISBN: 978-91-85724-13-0. Available at: http://www.adb.org/Evaluation/documents/EvaluatingDemocracySupport.pdf (09-03-2008)
FINKEL, JODI (2004) JUDICIAL REFORM IN ARGENTINA IN THE 1990s: How Electoral Incentives Shape Institutional Change. Latin American Research Review, Vol. 39, No. 3, October 2004
FORES- NCSC (2005) Proyecto de Desarrollo de Juzgado Modelo (PROJUM)-Evaluación de los Resultados de la Implantación del Modelo de Gestión en los Juzgados Modelo Préstamo BIRF 4314 AR INFORME FINAL
GARAVANO, GERMAN CARLOS (2005) El Gobierno del Poder Judicial. Unidos por la Justicia, Sistemas Judiciales, CEJA, Año 5 Revista Sistemas Judiciales Nº 10 (2005) Available at: http://www.unidosjusticia.org.ar/archivo/GARAVANO_Gobierno_del_Poder_Judicial.pdf (09-02-2008)
GARAVANO, GERMAN CARLOS and PALMA LUIS MARÍA (2003) La Reforma Judicial y el Diálogo Argentino. Ministerio de Justicia, Seguridad y Derechos Humanos, 2003. Available at: http://www.unidosjusticia.org.ar/archivo/GARAVANO_PALMA_ReformaJudicial_Dialogo.pdf
GARCÍA LOZADA, GABRIEL (2007) El Fondo Monetario Internacional y la Promoción del Estado de Derecho en los Noventa: Condicionalidad y Estados de Excepción en Suramérica Revista: Sortuz: Oñati Journal of Emergent Socio-Legal Studies, 2007, 1, 2, pp. 20-36. Available at: http://sortuz.org/pdf/garcia.pdf (02-24-2008)
GARTH, BRYANT G. (2002) Building Strong and Independent Judiciaries Through the New Law and Development : Behind the Paradox of Consensus Programs and Perpetually Disappointing Results. American Bar Foundation: Working Paper Series, 2002, nº 2122, pp. 1-24
GESSNER VOLKMAR (2003) Legalization and the Varieties of Capitalism. Globalisation and Resistance: Law Reform in Asia since the Crisis. Christoph Antons and Volkmar Gessner (eds.), Oxford ; Portland : Hart Publishing, 2007. 316 p. (Oñati International Series in Law and Society). ISBN 978-1-84113-680-6. pp. 27-51
GIARONE DANIEL (2003) Hacia dónde va el Juzgado Modelo. La Reforma Judicial. Centro de Estudios y Formación de la Federación Judicial Argentina – CEFJA- Instituto de Estudios y Formación, Mayo de 2003 Available at: http://www.cefja.org.ar/Giarone%20-%20%20PROJUM.%20May03.pdf (09-02-2008)
GINSBURG, TOM (2000) Does Law Matter for Economic Development? Evidence from East Asia. Law and Society Review, 34(3): 829-856
GIRALDO ANGEL, JAIME; GIRALDO L., MÓNICA; GIRALDO L. ALEJANDRO (2002) Metodología y Técnica de la Investigación Sociojurídica. - 2ª edición Bogotá: Ediciones Librería del Profesional, 2002. 168 p
89
GÓMEZ ISA, FELIPE (1999) El Derecho al Desarrollo como Derecho Humano en el Ámbito Jurídico Internacional. Bilbao : Universidad de Deusto, 1999. 339 p (Derechos Humanos ; 3) ISBN 84-7485-599-3
GREENBERG, DAVID F. (1992) Law and Development in Light of Dependency Theory. Law and Development. Edited by Anthony Carty. -- Aldershot ; Hong Kong ; Singapore : Dartmouth, 1992. 506 p. (The International Library of Essays in Law and Legal Theory. Legal Cultures ; 2). ISBN 1-85521-199-8. pp 89-119
GRUGEL JEAN; RIGGIROZZI MARÍA PÍA (2007) The Return of the State in Argentina. International Affairs, Vol. 83, No. 1, 87-107
HALLIDAY TERENCE & OSINSKY PAVEL. (2006) Globalization of Law. Annual Review of Sociology. 50 p.
HALLIDAY TERENCE C. & CARRUTHERS BRUCE G (2007a) Foiling the Financial Hegemons: Limits to the Globalisation of Corporate Insolvency Regimes in Indonesia, Korea and China. Globalisation and Resistance : Law Reform in Asia since the Crisis. Christoph Antons and Volkmar Gessner (eds.). Oxford ; Portland : Hart Publishing, 2007, 316 p. -- (Oñati International Series in Law and Society). ISBN 978-1-84113-680-6. pp. 255-301
(2007 b) “The Recursivity of Law: Global Norm-Making and National Law-Making in the Globalization of Corporate Bankruptcy Law.” American Journal of Sociology, 2007, 112, 4, pp. 1135-1202
HAMMERGREN, LINN (2002) Assessments, Monitoring, Evaluation, and Research: Improving the Knowledge Base for Judicial Reform Programs, 2002. Available at: www.pogar.org/publications/judiciary/linn1/evaluation.html#foot10 (09-02-2008)
(2005) Apuntes para Avanzar en el Debate sobre Cómo Mejorar el Gobierno Judicial. Ceja, Revista Sistemas Judiciales, N° 10 Gobierno Judicial, Año 5 (2005) Available at: http://www.cejamericas.org/sistemas-judiciales/index.html (09-02-2008)
HIGHTON, ELENA (1995) Judicial Reform in Argentina. Judicial Reform in Latin America and the Caribbean : Proceedings of a World Bank Conference. Edited by Malcolm Rowat, Waleed H. Malik, Maria Dakolias. Washington: The World Bank, 1995, 233 p. (World Bank Technical Paper ; 280). Chapter 25. ISBN 0-8213-3206-6. pp. 176-183
LICHTMAJER, MOISES (2005) Proyecto de Desarrollo de Juzgado Modelo. Convenio Préstamo BIRF N° 4314-AR. Proyecto ARG/99/006. Resumen Ejecutivo. Revisión de Cartera. Buenos Aires , 20 de Julio de 2005.
LYNCH, HORACIO M. (2004) Las Designaciones de Jueces en Argentina (Los concursos del Consejo de la Magistratura y cuestiones vinculadas). FORES. Available at : http://www.cejamericas.org/doc/documentos/designacionesdejuecesenargentina.pdf (09-02-2008)
MERRY SALLY (2006) Globalization and International Law. Annual Review of Anthropology. 2006, 35, 99-106
MERRYMAN, JOHN HENRY (1975) Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and Development Movement. American Journal of International Law 25:457-491 (1975)
NELKEN DAVID (2001) Towards a Sociology of Legal Adaptation. In: Adapting Legal Cultures. David Nelken and Johannes Feest eds. Oxford: Hart Publishing. 2001.
NORTH, DOUGLAS C. (1990) Institutions, Institutional Change, and Economic Performance - Cambridge; New York : Cambridge University Press, 1990. , 152 p (The Political Economy of Institutions and Decisions) ISBN 0-521-39416-3
90
ORLANSKY DORA (2006) El Concepto de Desarrollo y las Reformas Estatales: Visiones de los Noventa . Revista Documentos y Aportes / FCE-UNL Número 6 2006. Available at: http://www.iigg.fsoc.uba.ar/sepure/Publicaciones/Orlansky%20(2005)%20El%20Concepto%20de%20Desarrollo%20y%20las%20Reformas%20Estatales.pdf (09-02-2008)
PISTOR, KATHARINA (2002) The Standardization of Law and its Effect on Developing Economies. American Journal of Comparative Law 50: 97-130
PISTOR, KATHARINA AND WELLONS PHILIP A. (1999) The Role of Law and Legal Institutions in Asian Economic Development: 1960-1995. New York Oxford University Press. Chap 8 pp. 263-286.
RAMIREZ LLERENA, Elizabeth (2001) La investigación socio-jurídica : Aproximaciones críticas. Bogotá : Ediciones Doctrina y Ley Ltda., 2001, 392 p. ISBN 958-676-090-1
REVISTA CUMBRE JUDICIAL IBEROAMERICANA (2008) Número 3 – Segundo trimestre de 2008. Available at: http://www.cumbrejudicial.org/cumbrejudicial/docsuno/boletines/BoletinCumbre03.pdf (9-03-2008)
RIGGIROZZI , MARÍA PIA (2006) Knowledge Producers, Knowledge Users and the World Bank: Research-Policy Dynamics in Argentina’s Judicial Reform. Estudios sobre la Administracion de Justicia (FORES), Vol. 4, No.4,43-60.
(2007 )World Bank as a Norm-Broker and as Conveyor of Knowledge and Funds in Argentina’s Governance Reforms’, in Stone D., and Wright C. (eds.) The World Bank and Governance. Routledge/ CSGR Series in Globalization and Regionalisation 207-227.
RODRIGUEZ GARAVITO, CESAR (2006) Globalización, Reforma Judicial y Estado de Derecho en Colombia y América Latina : El regreso de los Programas de Derecho y Desarrollo. Revista Iusta, 2006, 24, pp. 179-216.
RODRIK, DANI (2000) Institutions for High-Quality Growth: What They Are and How to Acquire Them. Studies in Comparative International Development 35 (3), 3-31.
ROWAT, MALCOLM (1995). Judicial Reform in Latin American and the Caribbean: Operational Implications for the Bank . Judicial Reform in Latin America and the Caribbean : Proceedings of a World Bank Conference. Edited by Malcolm Rowat, Waleed H. Malik, Maria Dakolias. -- Washington : The World Bank, 1995, 233 p. -- (World Bank Technical Paper ; 280). Chapter 3. ISBN 0-8213-3206-6. -- pp. 16-18
SALACUSE, JESWALD W (2000). “From Developing Countries to Emerging Markets: The Legal Challenges of Economic Change,” International and Comparative Corporate Law Journal 2(3): 277-295.
SALAS LUIS (2001) From Law and Development to Rule of Law: New and Old Issues in Justice Reform in Latin America. In: Rule of Law in Latin America: The International Promotion of Judicial Reforms. Pilar Domingo and Rachel Sieder (eds.). London: Institute of Latin American Studies, 2001, 176 p ISBN 1-900039-39-7
SANTOS, BOAVENTURA DE SOUSA ( 2000) Law and Democracy: (Mis)trusting the Global Reform of Courts. In Globalizing Institutions: Case Studies in Regulation and Innovation. In J Jenson, B De Sousa Santos, pp. 253-84. Aldershot: Ashgate
SARLES, MARGARET J (2007) Evaluating the Impact and Effectiveness of USAID’s Democracy and Governance Programmes. Evaluating Democracy Support. Methods and Experiences. International Institute for Democracy and Electoral Assistance and Swedish International Development Cooperation Agency 2007 ISBN: 978-91-85724-13-0. Available at: http://www.adb.org/Evaluation/documents/EvaluatingDemocracySupport.pdf (09-02-2008)
SHIHATA, IBRAHIM F. I. (1995 a) Judicial Reform in Developing Countries and the Role of the World Bank. Judicial Reform in Latin America and the Caribbean : Proceedings of a World Bank Conference /
91
Edited by Malcolm Rowat, Waleed H. Malik, Maria Dakolias. -- Washington : The World Bank, 1995. 233 p. (World Bank Technical Paper ; 280). -Chapter 32. ISBN 0-8213-3206-6.-pp.219-233
(1995 b) Legal Framework for Development: The World Bank's Role in Legal and Judicial Reform . Judicial Reform in Latin America and the Caribbean : Proceedings of a World Bank Conference / Edited by Malcolm Rowat, Waleed H. Malik, Maria Dakolias. Washington : The World Bank, 1995. 233 p. (World Bank Technical Paper ; 280). Chapter 2. ISBN 0-8213-3206-6. pp. 13-15
SILBEY, SUSAN S.(1996) Let Them Eat Cake. Globalization, Postmodern Colonialism, and the Possibilities of Justice. Law & Society Review. Volume 31. Number 2. The Law and Society Association.
SLAUGHTER ANNE-MARIE (2004) A New World Order. Princeton: Princeton University Press, 2004. 341 p ISBN 0-691-11698-9
SWEET, ALEC STONE (2000) Governing with Judges : Constitutional Politics in Europe. Oxford: Oxford University Press, 2000. 232 p ISBN 0-19-829771-8
TAMANAHA, BRIAN Z. (1995). The Lessons of Law-and-Development Studies. The American Journal of International Law 89: 470-86.
(1993)The Folly of the "Social Scientific" Concept of Legal Pluralism . Journal of Law and Society. 1993, 20, 2, pp. 192-217
(2008) The Dark Side of the Relationship between the Rule of Law and Liberalism. NYU Journal of Law and Liberty, Vol. 33, 2008 St. John's Legal Studies Research Paper No. 08-0096 Available at : http://ssrn.com/abstract=1087023 (09-02-2008)
TRUBEK DAVID M.(2006) The Rule of Law in Development Assistance: Past, Present and Future. The New Law and Economic Development : A Critical Appraisal. David M. Trubek and Alvaro Santos (eds.). -- Cambridge : Cambridge University Press, 2006. 309 p, ISBN 0-521-67757-2
TRUBEK, DAVID M.; GALANTER, MARC (1974) Scholars in Self-Estrangement : Some Reflexions on the Crisis in Law and Development Studies in the United States. Wisconsin Law Review, 1974, pp. 1062-1102
WILLIAMSON, JOHN. (1999) What Should the Bank Think about the Washington Consensus? Peterson Institute for International Economics. Paper prepared as a background to the World Bank's World Development Report 2000 Available at: http://www.iie.com/publications/papers/paper.cfm?ResearchID=351
WORLD BANK (1998) Project Appraisal Document. Model Court Development Project. Report No 17459-AR. PREM and Argentina, Chile, Uruguay Country. Managing Unit. Unpublished document. March, 4. Washington D.C.:The World Bank.
(2001) Argentina. Legal and Judicial Sector Assessment. Legal Vice Presidency. Washington D.C.: The World Bank.
(2006) Implementation Completion Report. (SCL-43140) Document of the World Bank ON A LOAN IN THE AMOUNT OF US$5 MILLION TO THE REPUBLIC OF ARGENTINA FOR A MODEL COURT DEVELOPMENT PROJECT. March 15, 2006
ZAGARIS, BRUCE (1992) Law and Development or Comparative Law and Social Change : The Application of Old Concepts in the Commonwealth Caribbean / Law and Development / Edited by Anthony Carty. Aldershot ; Hong Kong ; Singapore : Dartmouth, 1992, 506 p. -- (The International Library of Essays in Law and Legal Theory. Legal Cultures ; 2). ISBN 1-85521-199-8. pp 121-165
92
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