C ALE Discussion Paper No.5
March, 2011

Structures of Japanese andGerman International Legal
Co-operation
With Formerly Socialist Countries Compared
Prof. Dr. Herbert Küpper

Nagoya University
C e n t e r for Asian Legal Exchange

Visitorship at Centre for Asian Legal Exchange (CALE),
Nagoya University

Structures of Japanese and German International Legal Co-operation
With Formerly Socialist Countries Compared

Prof. Dr. Herbert Küpper
Institut für Ostrecht München

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CALE Discussion Paper No.5

Contents
1. International legal co-operation with formerly socialist countries
2. Infrastructure of knowledge in the donor country on the laws of the recipient
countries
2.1. Germany: the special role of ‘Ostrecht’
2.1.1. University institutes
2.1.2. Ostrecht research outside universities
2.2. Japan: focus on Asia
2.2.1. The Centre for Asian Legal Exchange at Nagoya University
2.2.2. Infrastructure of Comparative Law
2.3. The function of foreign legal research institutions in international legal co-operation
3. Infrastructure to spread the knowledge on the law of the donor country in therecipient countries
3.1. Germany: Schools of German Law
3.2. Japan: Centres of Japanese Law
4. Infrastructure for a scientific analysis of the co-operation process
4.1. Germany
4.1.1. Purely German co-operation programmes
4.1.2. German participation in EU-sponsored programmes
4.2. Japan
5. Infrastructure of agents for the operative co-operation work
5.1. Direct State Organs
5.1.1. Germany
5.1.1.1. The level of ministries
5.1.1.1.1. Federal ministries
5.1.1.1.2. Länder ministries
5.1.1.2. Other public organs
5.1.2. Japan
5.1.2.1. The level of ministries
5.1.2.2. Other public organs
5.2. Co-operation Agencies
5.2.1. Germany: GTZ and IRZ
5.2.2. Japan: JICA
6. Political, financial and other co-ordination of the various activities and agents
6.1. Germany
6.1.1. The EU as a co-ordinating level
6.1.2. The ‘Bündnis für das deutsche Recht’
6.2. Japan
7. Conclusion
7.1. Parallels
7.2. Differences
7.3. Conclusion3

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CALE Discussion Paper No.5

1. International legal co-operation with formerly socialist countries
Between Germany in the West and Japan in the East, we find a vast area covered bycountries that at one time adhered to and in some cases continue to adhere to the doctrine ofstate socialism: Eastern Europe, North and Central Asia, East Asia and South East Asia. In
Eastern Europe, socialism has collapsed totally, giving way to entirely different systems. In
North and Central Asia, i.e. the successor states to the Soviet Union, the Soviet ordertransformed into post-socialist systems that continue certain traditions developed undersocialism, including legal traditions, but do not consider themselves to be socialist any more.
In contrast to this total demise of official socialist state identity in Eastern Europe and theformer Soviet Union, we still find states that call themselves “socialist” in other parts of Asia:
the PR of China, North Korea, Vietnam and Laos, whereas Cambodia has given up socialism.
The change from a socialist to a non-socialist system obviously requires
comprehensive legal reforms, in fact the re-writing of the entire legal system if you take thelaw seriously. But also those countries that continue the adjective “socialist” in their statename or official ideology have left the path of ‘orthodox’ socialist legal culture, as developedin the Soviet Union and adapted in East Asia, and have embarked on a way towards systems
that are at least ‘hybrid’1. As a consequence, these more or less ‘socialist’ states as well needto change their law. In all these countries legal change means – to various degrees – theadoption of legislative values, regulatory models and techniques familiar to and in practice inadvanced market economies such as e.g. Japan, Western Europe, or North America.
It is obvious that countries facing the need of a comprehensive law reform will seekfor outside models and sometimes for outside help. Learning from the outside world does not
only save labour but also minimizes risks because it may help to avoid the mistakes that
others have already made. On the other hand, it may lead to an increased influence of thecountry that is taken as a model or is active as a helper. Therefore, after a first wave ofenthusiasm immediately after the end of socialism2, the recipient countries started to select1

For details on the current constitutional and political systems of the Asian countries mentioned, cf. AIKYÔ,Masanori (ed.): アジア法ガイドブック. The Handbook of Asian Legal Systems, Nagoya University Press, Nagoya 2009. On
the hybrid character of the recent legal systems of Asian ‘socialist’ systems cf. KÜPPER, Herbert: Einführung in die
Rechtsgeschichte Osteuropas, Studien des Instituts für Ostrecht München vol. 54, Peter Lang Verlag, Frankfurt/Main 2005,
pp. 630-647.
2This enthusiasm was not shared by all countries that had abandoned socialism. Especially Hungary, being thecountry with the farest reaching legal reforms during the socialist era, was very cautious in inviting active outside help. On

5stronger among the help offered and the helpers3. A sort of market has evolved for the socalled “international legal co-operation” which is the current term for advice given on
legislation, on its implementation, on legal education and on the development of the soft
factors of a legal culture, by actors from one country (the donor) to institutions of mostly an
official nature of another country (the recipient). 4
As a consequence, we experience to-day a certain competition among the donor
countries and international donor institutions such as the World Bank as well as among themodels and regulatory philosophies, i.e. the contents and methods, offered to recipient
countries. Since legal reforms in formerly and present socialist countries aim at creating alegal system which is identical with or at least similar to the developed market economies anddemocracies, these countries are the role models and thus the ‘natural’ donor states.5 A certain
dividing line among donors seems to exist between common law countries on the one hand
and the countries of codified law, which may be termed “continental countries” or civil law
countries, on the other. Many advisers from European civil law countries deplore theaggressiveness of advisers from common law countries, especially from the U.S. Thisaggressiveness has been experienced by Japanese co-operation initiatives as well although
Japan takes what may be termed a ‘hybrid’ position in the civil law / common law divide, true
to its own hybrid legal system and culture4. Germany clearly defines its legal system and legal
culture as ‘continental’ and uses this argument to advertise German legal co-operation vis-àthe Hungarian point of view cf. SAJÓ, András: Was macht der Westen falsch bei der Unterstützung der Rechtsreformen in
Osteuropa?, Kritische Justiz 30 (1997) 495-503.
3

For the current discussion in one of the most important recipient countries, the PR of China, cf. SCHICK-CHEN,
Agnes: Der Diskurs zur chinesischen Rechtskultur in der Volksrepublik China, Peter Lang Verlag, Frankfurt/Main 2009.
4

In Japan, where international legal co-operation is more strongly embedded in the overall structures ofdevelopment aid (‘technical assistance’), the expression ‘technical legal assistance’ is widely used: 法整備支援 or 法制度整
備 支 援 . The term 整 備 (seibi) means maintenance or adjustment, usually of buildings or technical equipment. In
combination with ‘law’/‘legal system’ (法/法制度) it gives the legal assistance a very technical aspect which makes it fit in
the overall concept of a ‘technical’ assistance given to developing countries.
5

The dominant role of ‘Western’ law as a role model is so strong that transitional countries hardly co-operate tolearn from each other. This is especially true in the Eastern parts of Central Europe and in South East Europe where theformerly socialist countries wanted respectively want to join the EU and therefore strongly concentrate on achieving EUcompatibility of their legal system. For this, they heavily rely on advice given by EU organs and, as the case may be, by old
member states but very rarely compare their respective experiences with each other although they all face rather similar
problems. However, the formerly socialist countries that did already join the EU now actively take part in EU-sponsoredprogrammes to assist the candidate states or to co-operate with other formerly socialist countries, thus sharing theirexperiences in achieving EU-compatibility.
4

MATSUO, Hiroshi: International Affairs in Relation to Legal Assistance and Law and Development Studies as aBase for Consideration of Japan’s Legal Assistance, ICD News December 2009, 97-157 (122-124); MORINAGA, Taro:
Legal Technical Cooperation by Japan – Who we are and What we Do, ICD News, December 2010, 1-21.

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CALE Discussion Paper No.5

vis (potential) recipients with a civil law background. Japan, on the other hand, tends to avoid
a clear position in this divide by stressing that it shapes its assistance to the needs of therecipient country. Since most recipients have a law more similar to civil than to common law,
this pragmatic stance leads to a certain prevalence of civil law ideas in Japanese legal
assistance programmes. Japanese advisers tend to react flexibly if in the course of a projectcommon law ideas are introduced.7 On the ‘market of international legal co-operation’ Japanrather tends to advertise its unique combination of experiences as a recipient and as a donor
country5 as well as its hybrid legal system which equips Japanese lawyers with insight into
civil law elements as well as into common law elements.
Countries with an advanced market economy tend to think that exporting their own
regulatory models and legislative philosophy will create in the recipient country a legal
culture similar to their own, which in turn will help the donor’s economy because it will havean advantage on a market with a familiar legal setting6. Although there is no empirical proof
for this assumption 7 , it is widely spread in potential donor countries, and it adds to thecompetition among donors mentioned before. This is true not only for Germany, but for Japan
as well 8 although the official position, enshrined in the ‘Japan’s Official Development
Assistance Charter’9 by the Ministry of Foreign Affairs, presents altruism as the principal
motive. The Ministry of Economy, Trade and Industry, on the other hand, stresses theadvantages of ‘exporting’ Japanese law more openly and sees international legal co-operation
also as one way to better understand the law of the recipient countries, especially of China.
They hope that this will give Japan a better position in the competition for Chinese markets.
7

An example is the Japanese assistance in creating a new administrative procedure law in Uzbekistan; this is
described by KODAMA, Shigeru: Administrative Law Reform Assistance in Uzbekistan and the Necessity for New
Comparative Administrative Law, in KÜPPER, Herbert / BRENN, Wolfgang (eds): Die Rolle des Rechts und derinternationalen juristischen Zusammenarbeit bei der Schaffung ei ner Zivilgesellschaft in Asien, Studien des Instituts für
Ostrecht München vol. 64, Peter Lang Verlag, Frankfurt/Main 2010, 149-168.
5

JICA (ed.), Capacity Development for Legal and Judicial Sectors in Developing Countries. JICA’s Co-operationfor ‘Rule of Law Promotion’, June 2009, iii-iv, 8-9, 15-16; the paper is available at the website
http://lvzopac.jica.go.jp/external/library?func=function.opacsch.mmdsp&view=view.opacsch.mmindex&shoshisbt=1&shoshi
no=0000252223&volno=0000000000&filename=11988995.pdf&seqno=1; MORINAGA (fn. 6).
6

MATSUO (fn. 6), 103.

7

CAROTHERS, Thomas (ed.): Promoting the Rule of Law Abroad in Search of Knowledge, Carnegie Endowment
for International Peace, Washington, D.C., 2006.
8
MATSUO (fn. 6), 108-110; Yamashita, Terutoshi: What Legal Technical Assistance Brings Us, ICD News,
December 2010, 35-42.
97

Available on the website of the ministry: http://www.mofa.go.jp/policy/oda/reform/revision0308.pdf.

In the case of Germany and Japan, the interest in the legal order of the formerlysocialist countries is even stronger than a mere interest in advancing their own economies:
Both countries are immediate neighbours to the formerly and, in the case of Japan, alsopresent socialist world. Therefore it is in their political and humanitarian interest, too, that
their neighbours do not fail but manage their reforms successfully.
Despite the potential competition between Japan and Germany as donor
countries, alliances in legal co-operation with formerly socialist countries may be helpful forboth donors10. In order to co-operate efficiently both parties need to know the structures ofinternational legal co-operation that the other country has. A good knowledge of the other
donor can make a partnership more successful.
Therefore, the aim of this paper is to compare the infrastructure for international legal
co-operation in Japan on the one hand and in Germany on the other. Given this aim, theperspective will necessarily focus on the donor side, abstracting more or less totally from therecipients. Yet, the recipient side will play a certain role insofar as the focus of the analysis
lies on donor infrastructure for the co-operation with formerly or present socialist countries;
infrastructure for the co-operation with other areas of the world – which at least in Germany isconducted partially by different agents – will remain outside the scope of this paper.
The focus on the infrastructure – i.e. the agents active in this field – has anotherconsequence: the contents, the regulatory philosophy of both donor countries, will not be amajor issue. It is interesting, of course, to compare the intentions to finance, organise andconduct legal co-operation that Japanese and German governments may harbour 11 . It isequally interesting to see how both countries and their co-operation agents position
themselves in the competition between common law and civil law and whether they feel thatthey export models pertaining to one of these families of law, or that they give ‘abstract’advice trying to pick out those solutions that seem to be best for the specific situation of therecipient. However, for mere reasons of quantity, these questions need to be left unansweredin this paper which focuses on the co-operation infrastructure.
The proposed comparison is interesting not only under the aspect of possible donor
co-operations and strategic or momentary ‘alliances’. Germany and Japan tackle the task of10KÜPPER / BRENN (fn. 7).

11

Are both donor countries really as unselfish in their help as they sometimes purport to be? Or are economic
factors relevant, i.e. creating a legal environment in the recipient countries that tends to favour the economy of the donor
country? Or is there a political interest in creating stability or in gaining influence in the recipient country?

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CALE Discussion Paper No.5

international legal co-operation with a somewhat different set of instruments. Although
reducing both countries to one adjective is necessarily an over-simplification, for the sake of
convenience, the Japanese way may be labelled as ‘concentrated’, whereas German
infrastructure is ‘decentralised’. By comparing the two systems, both countries may learnsomething not only about the other side, but also about themselves.
In the following, the infrastructure of international legal co-operation is analysed
according to the special functions the agents fulfil in the overall framework:- Infrastructure of knowledge in the donor country on the laws of the recipient countries;- Infrastructure to spread the knowledge on the law of the donor country in the recipient countries;- Infrastructure for an academic analysis of the co-operation process;- Infrastructure of agents for the operative co-operation work;- Political, financial and other co-ordination of the various activities and agents.

This paper will deal with ‘official’ agents only, i.e. state organs, state-sponsored
and/or state-controlled institutions. This concentration on state activities does notunderestimate the enormous amount of helpful work that NGOs from both countries carry out
in recipient countries. Apart from the NGOs, which may be defined as founded in private law
and not profit-oriented, there is also a commercial sector of law firms and advisers that offer
specialised services for legal assistance projects. Given the enormous amount of money that
donors spend for their legal co-operation and the fact that these programmes are put to tenderby some donors12, an expanding market has emerged where quite often official agents, NGOs
and commercial advisers compete for projects13. However, analysing both state and private
structures would be more than this paper can do. Therefore, it focuses on the official part ofthe co-operation infrastructure, bearing in mind that making law and enforcing law basicallyare activities of the state.

2. Infrastructure of knowledge in the donor country on the laws of the recipient
countries

12

International and supranational donors such as the World Bank and the European Union practically always put
programmes to tender, but also some donor states practice public or semi-public tenders as a way to find an appropriateorganisation to administer and/or carry out co-operation projects.
13

9

MATSUO (fn. 6), 100-103.

In German projects of international legal co-operation, the adviser usually is apractitioner of German law or an academic specialised in some field of German law14. This
choice of advisers reflects the wish and need of the recipient country to get advice frompersons who have sound theoretical and/or practical knowledge of a model that is perceived
as functioning well and therefore is interesting, even if the aim of projects usually is not toexport an ‘exact copy’ of the German law. This means that the advisers know their own donor
law well, but have little or no knowledge of the law and the legal culture of the recipient
country. As a consequence, they cannot participate in the analysis neither of the fields of law
that require reform, nor of the goals, aims and instruments of the reform, nor of the coherenceof the overall legal system. Therefore, they are not in a position to adapt their advice andcounselling to what may be the ‘true’ needs and deficiencies of the recipient country, but canadapt only to what their project partners of the recipient country communicate them.
Typically, Japanese experts have a similar background: They are practitioners, drawn
often from the public sphere (judges, public prosecutors, lawyers from the various fields ofpublic administration). Sometimes, attorneys are included, especially when access to justiceforms part of a project, or scholars with a theoretical knowledge are invited to participate. In
projects targeting the legal education system, university professors can be found quite
frequently. As experts for their respective field on Japanese law, they have little or noknowledge of the law and the legal culture of the recipient country.
Both Germany and Japan have a certain scholarly infrastructure that provides
information and knowledge about the legal systems of the recipient countries. Since this paper
focuses on the international legal co-operation with formerly and present socialist countries,
the following presentation is limited to institutions dealing with these legal systems.

2.1. Germany: the special role of ‘Ostrecht’Within the research on foreign law, the research concerning Eastern Europe has
traditionally enjoyed a special position in the German-speaking countries. This regional
specialisation within comparative law is called ‘Ostrecht’ (East European law, in literaltranslation: 東欧法). Its academic and institutional consolidation as a specialised branch of
14

There also is the type of the ‘professional adviser’ who does not practice his or her own law but has found aliving in acquiring and conducting assistance projects. This type is found in commercial ‘donors’, i.e. law firms and similar
institutions that specialise in this market. Since this paper concentrates on the official agents (cf. point 1), the ‘professional
adviser’ does not need to be dealt with here.

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CALE Discussion Paper No.5

research on foreign law dates back to the 1920ies. After World War II the geographical focus
of Ostrecht narrowed down to the then socialist countries in Eastern Europe, including theSoviet satellites in Asia and elsewhere15 . Although some of the research infrastructure on
Eastern Europe and the socialist world were closed down after the end of the cold war, several
institutions survived and maintain a special knowledge on the legal systems of Eastern Europe,
North and Central Asia – and to a lesser extent of East and South East Asia.
Typically, all German research infrastructure is divided in universitarian and extrauniversitarian research. This is true for Ostrecht as well.

2.1.1. University institutes
At German universities, several institutes for Ostrecht can be found. They have atheoretical focus and take part in the teaching activities of their respective faculties.
The largest institution of the kind is the Institut für Ostrecht (Institute for East
European Law) of the University of Cologne 16 . It is headed by Professor Dr. Angelika
Nußberger who has two academic assistants and more staff financed on a project basis. The
institute has a large library and publishes ‘Osteuropa-Recht’, a quarterly on East European
Law with a strong focus on constitutional and judicial questions.
The second university institute is the Institut für Osteuropäisches Recht (Institute for
East European Law) of the University of Kiel17. Its director is Professor Dr. Alexander Trunk,and its staff comprises one post-doc and two Ph.D.-students financed mostly by project funds.
Library and research activities strongly concentrate on Russia and the other formerly socialist
countries at the Baltic Sea.
The Faculty of Law of the Humboldt University in Berlin continues the tradition of achair for Russian law, established during GDR times. However, it was merged with othersubjects and is now the Lehrstuhl für Öffentliches Recht, Russisches Recht und

15

For a history on the German-speaking Ostrecht, cf. KÜPPER (fn. 1), 686-703. The then contemporary discussion
on the role, the legitimacy and the methods of the Ostrecht during the socialist period is documented in Meissner, Boris /Roggemann, Herwig / Schroeder, Friedrich-Christian / We sten, Klaus (eds.): Grundsatzfragen der Ostrechtsforschung,Studien des Instituts für Ostrecht München vol. 28, Tübingen 1980.

11

16

Website: www.ostrecht.uni-koeln.de.

17

Website: www.uni-kiel.de/eastlaw.

Rechtsvergleichung (Chair for Public Law, Russian Law and Comparative Law 18 ). The
director, Professor Dr. Alexander Blankenagel, concentrates on publishing and teaching in
Russia itself.
The Free University of Berlin has an interdisciplinary Osteuropa-Institut (Institute for
East European Studies19). The two professorships for East European law the institute used tohave until the 1990ies were both terminated. After a long vacancy, an assistant professorship,
limited to a maximum term of six years and without any assistants or other infrastructure, wascreated and is currently being held by Professor Dr. Burkhard Breig. The research strongly
focuses on Russia, the other successor states to the Soviet Union, and Poland. The library
contains considerable legal materials, but only comparatively few are of recent date.
Other institutions were discontinued after 1990 when becoming vacant: the Institutefor East European Law of the University of Hamburg (Professor Dr. Otto Luchterhandt) andthe chairs for East European Law at the universities of Regensburg (Professor Dr. Dres. h.c.
Friedrich-Christian Schroeder) and Passau (Professor Dr. Dr. h.c. Martin Fincke).
Some professors without a formal attachment to Ostrecht developed a special focus on
the formerly socialist countries, their law and its transformation, usually because of their
participation in long-term legal co-operation programmes. The best example is Professor Dr.
Rolf Knieper, professor for civil and commercial law at the University of Bremen who createda special research unit for the legal transformation of formerly socialist countries. This
research unit was funded largely by foundations und underwent certain changes upon theemeritation of Prof. Knieper. His successor as director of this research project‘Transformation Zivil- und Wirtschaftsrecht in den Staaten des Kaukasus und Zentralasiens’(Transforming Civil and Commercial Law in the States of Caucasia and of Central Asia20) is
the former President of the Supreme Court of Georgia, Professor Lando Chanturia.

2.1.2. Ostrecht research outside universities
Germany has strong traditions of high-quality research outside universities. Several
institutions exist in the field of comparative law.
18

Website: www2.hu-berlin.de/blankenagel.

19

Website: www.oei.fu-berlin.de.

20

Website: www.cac-civillaw.or.

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CALE Discussion Paper No.5

The Institut für Ostrecht München (Institute for East European Law Munich21) is the
only extra-universitarian research facility for comparative law with a regional focus on theformerly socialist countries, i.e. Eastern Europe. It is financed by the Federal Ministry ofJustice (3/4 of the budget) and by the federal state of Bavaria (1/4 of the budget). Its
Academic Director, Professor Dr. Dres. h.c. Friedrich-Christian Schroeder held the chair for
Criminal Law, Criminal Procedure and East European Law at the University of Regensburg
until emeritation; he has been Academic Director of the institute since 1973. The Institute for
East European Law has six research fellows who specialise in one or two countries each; thus,
all countries in Eastern Europe are covered by a specialised researcher, except Albania andthe three Baltic republics. In this system of country specialists, no specialisation as to fields oflaw takes place: Every research fellow monitors the development of the entire legal order of‘his’ or ‘her’ country/countries.
The institute maintains a large library, issues a book series called Studien des Instituts
für Ostrecht München, publishes the semi-annual periodical Jahrbuch für Ostrecht (Yearbook
for East European Law) that contains mostly scholarly analyses and essays as well astranslations of important legislative acts, and edits the monthly Wirtschaft und Recht in
Osteuropa (Economy and Law in Eastern Europe) which has a more practical outlook.
Wirtschaft und Recht in Osteuropa is the periodical where the institute publishes its monthly
Chronik der Rechtsentwicklung in Osteuropa (Chronicle of the Legal Developments inEastern Europe) where new legislation and court decisions are briefly described country bycountry and within the country by fields of law.
Apart from this basic research, the focus of the institute is more practical than that ofuniversity research since its researchers write the necessary expert opinions when German
courts and authorities have to apply the law of an Eastern European country. Furthermore, theinstitute maintains close ties to enterprises, law firms and chambers of commerce in order topresent its research to the German legal and business community.
The Institut für Ostrecht entertains a wide-spread network with the academic legal
world as well as with legal practitioners in Eastern Europe. Furthermore, it serves as areceiving institution for East European (sometimes also for West European or overseas)
researchers who conduct comparative research in Germany. For this purpose, the institute21

東欧法研究所. Website: www.ostrecht.eu. The institute was relocated to Regensburg in 2008 but continues tohave Munich in its name, both for tradition and for practical reasons. On the institute, cf. SCHROEDER, Friedrich-Christian:Das Institut für Ostrecht München im Wissenschaftszentrum Ost- und Südosteuropa Regensburg. Tätigkeit – Entwicklung –Perspektiven, published by the Institut für Ostrecht München, Regensburg 2009.

13

maintains close contacts with the institutions that sponsor academic exchange, such as the
Humboldt Foundation or the German Academic Exchange Service (DAAD)22.
This structure of the Institut für Ostrecht München makes a continuous up-to-dateknowledge on the law of the East European countries available. Basically, this knowledge isof a scholarly comparative nature, but has a strong practical perspective. Thus, it can be used
for purposes of international legal co-operation any time.
Apart from the Institut für Ostrecht München, several Max Planck institutes are activein the field of comparative law: the Max Planck institutes for foreign and international privatelaw (Hamburg 23 ), for foreign and international public law (Heidelberg 24 ), for foreign andinternational criminal law (Freiburg25), for foreign and international social law (Munich26), forintellectual property (Munich27) and for European legal history (Frankfurt/Main28). As can beseen by their names, the Max Planck institutes for comparative law do not possess a regionalor country focus, but specialise in one field of law each. Within this focus, some have certain
country specialists for some East European states. All Max Planck institutes have large
libraries and are very active in the international academic exchange. Many lawyers fromformerly socialist countries were and are invited to spend some time for research in these
institutes. This is why the Max Planck Institutes for comparative law are very important in the‘export’ of German law.

2.2. Japan: focus on Asia
Being situated East and not West of the former socialist world, Japan’s geographicaloutlook naturally differs from Germany’s. A parallel perspective lied in the formation ofregions according to political factors in the past: until 1990, Japanese science, too, treated the22

On these institutions cf. infra, point 3.1.

23

Website: www.mpipriv.de.

24

Website: www.mpil.de.

25

Website: www.mpicc.de.

26

Website: www.mpisoc.mpg.de.

27

Website: www.ip.mpg.de.

28

Website: www.rg.mpg.de.

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CALE Discussion Paper No.5

socialist ‘block’ as a meso-region which deserved and received a comprehensive regional
approach and institutionalised research29. But whereas Germany looked at this block from theWest and focussed on its Eastern vicinity, i.e. Eastern Europe’s people’s republics, as well ason the Soviet Union as the core state of that block and one of the four occupying powers,
Japanese research primarily dealt with its Asian neighbours, i.e. the Soviet Union and the
Asian communist states. Japanese research on Eastern Europe was marginal to the same
extent as West German research on Asia’s communist states was.
Therefore, the German Ostrecht as an institutionalised branch of regional comparative
law does not have a Japanese equivalent, and in Japanese, its literal translation 東欧法 is not a
fix expression, unlike its German counterpart. Nor does a fix expression for comparative law
studies on (East) Asia exist: there is no such thing as (東)亜法. As a matter of fact, Japanese
researchers in comparative law as well as the practitioners in international legal co-operation
with Asian countries usually stress the differences between the various legal systems and legal
cultures in Asia. ‘Asia’ is defined much more as a purely geographical expression and not somuch a region of shared cultural values as ‘Europe’ denotes30.

2.2.1. The Centre for Asian Legal Exchange at Nagoya University
The primary institution where knowledge on the law of recipient countries isconcentrated is the Centre for Asian Legal Exchange (CALE)31. It developed out of the socalled ‘Asia-Pacific Region Studies Project’ and was founded in 2000 within the Graduate
School of Law of Nagoya University. In 2002, CALE was made an independent entity within
Nagoya University. However, as an institution of legal research it maintains close ties to the
Graduate School of Law. It is unique in Japan.
CALE is headed by Professor Katsuya Ichihashi and its staff consists of five associate
professors or associate assistant professors who are teachers at the Graduate School of Law
and have a background useful for CALE’s work such as international law, comparative law or
29

MATSUZATO, Kimitaka (ed.): Emerging Meso-Areas in the Former Socialist Countries: Histories Revived or
Improvised?, Sapporo 2005.
30

MOTO, Hidenori: Possibilities of Multi-Layered Public Spheres from a Japanese Perspective, paper presented
the international symposium “Functions of Multi-Layered Fundamental Rights Protectionin a Globalized World – The
Human Rights Convention and Constitutional Courts in Integrated Europe”, Nagoya University, Centre for Asial Legal
Exchange, 27th November 2010.
31

名古屋大学法政国際教育協力研究センター, website: http://cale.law.nagoya-u.ac.jp.

15

foreign law. Most of these professors are Japanese lawyers. The same is true for CALE’s
research associate. Other professors of the Graduate School of Law or of other universities are
involved in CALE’s work without a formal association into CALE’s staff. Some of the staff ispaid from the normal budget, whereas others are employed on the basis of project funds.
The finance of CALE rests upon a mixed system of regular and project funds. Regularfunds are provided by the state; they are research subsidies forwarded to CALE through theuniversity. CALE receives project funding from, inter alia, the Ministry of Education32 andfrom JICA33. Additional means are contributed occasionally by private donors.
This structure of funding shows that CALE is not so much an ordinary university
institute for foreign or comparative law but designed as an institution within the network ofinternational legal co-operation. The special task of CALE is reflected by its self-definition
and its work. CALE considers itself part of the network of international legal co-operation.
Within this field, CALE provides the scientific basis as well as certain services.
First, CALE collects legal information on the target countries of Japanese legal
assistance, i.e. predominantly South, South East, East and Central Asia. These are describedas “former socialist, socialist and developing countries”. For this purpose, CALE has
specialised literature on and from the recipient countries of the region as well as access torelated data bases.
CALE staff has expertise on one or more of the countries concerned. To give one
example, its former director, Professor Masanori Aikyô, besides being professor forcomparative law at the Graduate School of law, is an expert on Vietnamese law, especially on
its constitutional law 34 . Other CALE staff have knowledge on e.g. Uzbek, Mongolian,
Vietnamese or Cambodian law. Nevertheless, CALE does not conduct institutionalised
systematic research on the law and legal development of foreign countries the way for
instance the German institutes for Ostrecht do. CALE research on foreign law (i.e. the law of
the recipient countries) happens less systematically and more on a case to case basis as32

This project funding is largely connected to CALE’s role as the headquarter of the Research and Education
Centre for Japanese law; cf. infra, point 3.2.
33
This project funding is related to CALE’s participation in various JICA projects, e.g. in Uzbekistan. On JICA, cf.
infra, point 5.2.2.
34AIKYÔ (fn. 1), 156-187.

16

CALE Discussion Paper No.5

required to aid some initiative on legal assistance35. CALE also serves as a centre for otherJapanese scholars active in research on the law of CALE’s target countries.
Second, the experts of CALE take an active part in projects of legal assistance. They
are invited by the Ministry of Education, which is responsible for the vast majority of the
projects with CALE participation, by JICA or other organisers of projects.
Third, CALE provides scientific services for the agents of Japanese legal assistancee.g. by publishing scientific findings on that field. Apart from the CALE News and the CALE
Journal, both in Japanese, information in English is available in the periodical CALE Updates.
All of these periodicals report on international legal co-operation initiatives, reflect cooperation methods and goals and report on legal developments in Asian target countries. The
CALE book series contains PhD dissertations of Nagoya graduates and conference
proceedings in English. Furthermore, CALE organises conferences that serve as a forum toexchange ideas and experiences and are designed to interest students of Nagoya University
and other law schools for international legal co-operation. Conferences, workshops andsimilar conventions are organised not only in Japan, but also in recipient countries. CALE
maintains contacts with scholars, the institutions of legal assistance in Japan and abroad andwith the pertinent institutions of the recipient countries, thus creating a network designed tofurther the purposes of legal assistance.
Fourth, CALE takes part in the academic exchange by inviting researchers, lecturers
and students to Japan and specifically to Nagoya University Graduate School of Law. Thisway, students and practitioners from recipient countries may become acquainted withJapanese law and will then create in their countries a demand for Japanese legal assistance.
On the other hand, lawyers from recipient countries enlarge CALE’s knowledge basis forcomparative studies. CALE also invites experts from other donor countries in order topromote the debate among donors. For this purpose, CALE and the Institut für Ostrecht
München 36 concluded a co-operation agreement in 2009. CALE’s activities in respect to
35

The lack of systematic comparative law studies as a basis for legal assistance is very much deplored by theexperts of CALE and of other Japanese experts in the field: ICHIHASHI Katsuya: 行政法整備支援の「メタ理論」と比較行政法への示唆 (The ‘metatheory’ of technical assistance in administrative law suggests comparative administrative law),
Hōritsu jihō vol. 82 no. 12, November 2010, 106-111; KODAMA, Shigeru: Helping to Reform the Administrative
Procedure: Japan’s Legislative Assistance Programmes in Central Asia and the Need for a Strong Science of Comparative
Administrative Law, Jahrbuch für Ostrecht 50 (2009), 491-506; KODAMA Shigeru: 行政法整備支援の経験からみた比較法の課題 (The task of comparative law seen from the perspective of the experiences made in the technical assistance inadministrative law), Hōritsu jihō vol. 82 no. 12, November 2010, 100-105.
36

17

On the Institut für Ostrecht München, cf. supra point 2.1.2.

teaching Japanese law are dealt with in connection with the Research and Education Centre
for Japanese Law37.

2.2.2. Infrastructure of Comparative Law
Unlike Germany, Japan does not have an institutionalised research on foreign and/or
comparative law outside universities. This is not a speciality of this field of research but
reflects the general Japanese attitude towards research. Legal research is concentrated at theuniversities.
In Japanese universities, most faculties of law (law schools) have professors or units(chairs) for comparative law. Their role is quite comparable to that of chairs or institutes forcomparative law at German faculties of law. These comparatists devote their studies usuallyto Western legal systems such as English, French, German or US-American law. The reason
is that these laws, which in Japan sometimes are summarized under the heading “advanced
legal systems”, at one time or another in the more recent history 38 served as a source ofinspiration or reception for Japanese legislation; therefore their study ultimately serves thebetter understanding of Japanese law itself. During the Soviet era, some Japanese law
professors specialised on Soviet – and more general on socialist – law39; some of them now
pursue studies in Russian law.
Some law faculties go beyond this and put a certain emphasis on foreign law andcomparative studies. The leading faculty in this field is the University of Nagoya with its
long-standing tradition of international perspectives and contacts. Other universities with
important research on foreign and comparative law are two private universities in Tokyo:
Keio and Waseda40, as well as the University of Kōbe.
Even in these universities, the emphasis lies on the large Western legal systems,
sometimes on Russian law. From among recipient countries of Japanese legal co-operation,37

On that centre, cf. infra point 3.2.

38

In a long historical perspective, Chinese law had a strong influence on ancient Japanese law. This, however, haslittle practical bearing on modern Japanese law: Maruschke, Hans-Peter: Einführung in das japanische Recht, 2nd edit., C.H.
Beck, München 2009, 14-16; Oda, Hiroshi: Japanese Law, 2nd edit., Oxford University Press, Oxford 2003, 12-33; Rahm,
Guntram: Rechtsdenken und Rechtsauffassung in Japan, C.H. Beck, München 1990.
39

On this Japanese version of ‘Ostrecht’, cf. KÜPPER (fn. 1), 697-698.

40

Waseda University Institute of Comparative Law has the following website: http://www.waseda.jp/hiken/index-

j.html.

18

CALE Discussion Paper No.5

only Chinese law has enjoyed some attention in the last years. Infrastructure of studies on
Chinese law is growing because of the economic weight of China in the region which createsa certain interest among students. Research and teaching on the legal systems of otherrecipient countries is either marginal (e.g. Vietnam, Indonesia) or practically inexistent (e.g.
Mongolia, Laos, Cambodia, Myanmar, Timor Leste). In some cases, law professors who had
come into touch with one of these countries in past co-operation projects have developed a
research interest; however, such interests are not institutionalised and are of a more ‘private’
nature.
This leaves CALE41 as the only institutionalised research unit on the law of recipient
countries on university level – though not on faculty level because CALE is independent offaculties.
Like Germany, Japan has a research institute with the regional specialisation of theformerly socialist countries in Eastern Europe, Northern and Central Asia: the Slavic
Research Centre at Hokkaido University, Sapporo42. It started as an institute of the Faculty of
Law in the 1950ies, but became independent from the faculty and thus interdisciplinary in the
1970ies. To-day, there is no lawyer among its researchers. Sometimes, legal scholars fromoutside the institute are included to cover the legal side of a project. Basically, however, theSlavic Research Centre is no longer an institution that can provide knowledge on the law ofe.g. the successor states of the Soviet Union. In its library a certain amount of legal and lawrelated literature can be found.
Outside the academic world, the Japan External Trade Organisation (JETRO 43 ), a
government-related body to promote foreign trade interests, conducts certain research on
Japan’s major trade partners. This includes the law of some Asian countries such as China.
Given the scope of JETRO, this research specialises on questions of commercial law.

2.3. The function of foreign legal research institutions in international legal cooperation

19

41

On CALE, cf. supra point 2.2.1.

42

北海道大学スラブ研究センター, website: http://src-home.slav.hokudai.ac.jp/index.html.

43

日本貿易振興機構, website: http://www.jetro.go.jp/indexj.html.

Research on the legal systems of the recipient countries fulfils an important function
in international legal assistance: It provides the donors with knowledge on the recipient
countries. This enables them to shape their offers according to the needs of the recipients, andthe individual advisers – who are experts on their own domestic law and its practice, but noton the law of the recipient country – may have access to information on the recipient country
in their own language and by lawyers who have the same professional and national
background.
In Germany, professors and researchers active in Ostrecht take part in the co-operation
with formerly socialist countries on a regular basis. This is especially true if they possess
profound knowledge on some field of German law as well, i.e. are scholars of their own
national law as well as of Ostrecht. Thus, Professor Schroeder, who held a chair for criminal
law, criminal procedure and Ostrecht and is the Academic Director of the Institute for East
European Law Munich, has been a senior adviser in co-operation projects on the reform of
criminal law and criminal procedure for many years, e.g. in Mongolia and Kyrgyzstan.
Professor Küpper who is a professor for public law and for Ostrecht as well as the managing
director of the Institute for East European Law Munich is active in a project on creating thebasic institutions for the Rechtsstaat / rule of law and for a modern legal education in Kosovo.
An equally important role of the Ostrecht experts is to present information to theGerman advisers and experts. These German advisers usually are academic or practicalexperts of a certain field of German law and want to pass their theoretical or practicalexpertise to their colleagues in the recipient country. These colleagues usually have a very
different background of legal thinking and legal culture. Furthermore, their positive law often
strongly differs from German law. This makes professional communication between German
experts and lawyers from recipient countries difficult. The biggest danger consists ofmisunderstandings which do not become obvious because both parties think that the otherparty understood what they meant, but this is not so. This may happen, e.g., if the same legal
term has a different connotation in both systems. Different meanings are quite obvious when
‘open’ terms such as Rechtsstaat / rule of law, democracy or fairness are concerned, but it
may and does happen even with seemingly precise terms e.g. of a procedural nature44. Apart
44
One example: In Hungarian, the term ‘fellebbezés’ means legal scrutiny both by the higher administrative forum
and by the second court instance. In German, these different forms of legal redress are described by two terms: ‘Widerspruch’
if an administrative decision is challenged before the higher administrative authority, and ‘Berufung’ if a court decision ischallenged before the higher court. Hungarian lawyers tend to translate their expression ‘fellebbezés’ always with ‘Berufung’
because dictionaries indicate this translation first. So it may happen that a Hungarian lawyer speaks about redress before the20

CALE Discussion Paper No.5

from communication problems, German experts and advisers often have the wish to know
more about the legal system of the recipient country they are co-operating with. They feel thatthey can give advice more precisely and adequately and understand their counterpart better ifthey have some insight in the recipient legal system. Apart from giving precise information on
the recipient country’s legislation and its implementation, Ostrecht scholars may raise theadvisors’ awareness where the recipient’s legal order or, often more important still, their legal
culture differs from German law and its standards. The Ostrecht researchers, who usually aretrained German lawyers with an additional expertise in foreign and comparative law, can give
German experts information in German language and arranged in a way a German lawyer canunderstand easily: Having the same background, i.e. being both trained German lawyers, they‘speak the same language’ and therefore can communicate easily without linguistic, cultural,or professional barriers.
In practical terms, this means that e.g. the IRZ Foundation45, when sending German
experts to a recipient country in a given co-operation programme, may ask the research fellowof the Institute for East European Law Munich who deals with the country in question topresent literature or to elaborate internal papers on the pertinent field of law or its special
problems. This material will be presented to the German expert who then may better
understand the law and the legal thinking in the recipient country. Sometimes German experts
have an interview with the institute’s research fellow before leaving for the recipient country.
On other occasions, Ostrecht specialists may be included in a German delegation to act as an‘interpreter’ between the legal cultures. Since both IRZ and Institute for East European Law
Munich are financed by the Federal Ministry of Justice this sort of co-operation can be
conducted without bureaucratic hurdles. Other Ostrecht institutions, too, co-operate withagents of legal co-operation in order to make their offers and work more efficient, yet in a lessinstitutionalised manner and more on a case-to-case basis.
In Japan, the small and less institutionalised structure of the study of recipient
countries’ law leads to a stronger merger of roles. The most important institution for the study
higher administrative authority but uses the German word ‘Berufung’. His German counterpart will think that the Hungariancolleague talks about judicial review, not of redress within the administration itself. Both parties mean different things but
may not realize that they do. In such a situation, it takes an expert on both German and Hungarian law to clarify thismisunderstanding. In Germany, such an expert typically would be a scholar of Ostrecht.
In Japan, these problems of combined linguistic-legal translations are often dealt with by translators, not always withsatisfying results: SUGIYAMA, Noriko: Activities of the International Co-operation Department and Interpretation andTranslation Services, ICD News, December 2009, 159-164.
45

21

On the IRZ, cf. infra, point 5.2.1.

of the law of recipient countries, CALE, was founded with the express intention to giveinternational legal co-operation an academic scholarly basis. Therefore, the participation of
CALE experts in legal assistance programmes is quasi natural. Institutions like JICA or theInternational Co-operation Department of the Research and Training Institute of the Ministryof Justice often include CALE experts in their activities. Also, other experts on the law ofrecipient countries – e.g. professors at universities – are frequently addressed to contribute
their knowledge to assistance projects. Due to the low degree of institutionalisation ofresearch on the foreign law of the recipient countries, the Japanese experts are much morerooted in their domestic Japanese law, and their knowledge on foreign law and on foreign
legal culture usually is less systematic than that of their German counterparts with an
institutional Ostrecht background. Thus, academic expertise on Japanese law and certain
knowledge on the law of the recipient state(s) are united in one person. To give one example,
the director of CALE, Professor Ichihashi, is a professor of administrative law at the Nagoya
University Graduate School of Law and was involved, inter alia, in a Japanese assistanceproject on a new administrative procedure law in Uzbekistan in his capacity both as an expert
on Japanese administrative law and as a member of CALE with knowledge of the Russian
language and of Soviet and post-Soviet law. He acquired special knowledge on Uzbek law
only during the course of the project. Another participant in this assistance project, Professor
Shigeru Kodama, has a similar background of previous studies on Soviet and post-Soviet law;he, too, started to deal with Uzbek law only in the course of the co-operation project.
Compared to Germany, the lower institutional degree of specialisation in foreign law
in Japan may have advantages and disadvantages in the assistance work in recipient countries.
If the expert on the donor’s law, i.e. the person who will have to do the assistance work, has
knowledge of the recipient as well there is no need for an ‘interpreter’ between legal
languages and legal cultures but the adviser can unite both functions in one person. On theother hand, knowledge on the recipient countries is much less systematic and less deeply
rooted. It is often acquired only before or in the course of an assistance project and therefore
does not encompass the recipient’s legal system and culture on the whole. A German Ostrecht
expert, on the other hand, has the overall knowledge of the recipient country’s law, legal
language and legal culture, but the price of this specialisation usually is a certain remotenessfrom the own law and its practice. As a consequence, the Ostrecht expert – unless he or she

22

CALE Discussion Paper No.5

has a second professional pillar in German law – will be in position to give advice to German
advisers rather than to the recipient’s lawyers.

3. Infrastructure to spread the knowledge on the law of the donor country in therecipient countries
One way of advancing legal change in the recipient countries and a future legaltransfer from donor to recipient countries is to educate young lawyers – and sometimes not soyoung practitioners – of the recipient countries in the donor’s legal system. The usual channel
to do so is to invite students from recipient countries to the universities and law schools of thedonor country, and practitioners either to special training units or specialised academic
institutions like the CALE (the Japanese way) or to internships of some length at courts oradministrative organs equivalent to their place of work back home (the German way) 46 .
Sometimes academics and practitioners of the donor country go to teaching and training
institutions in the recipient country in order to give lectures, courses and summer schools.
Beyond this framework of conventional academic exchange, both Germany and Japan
maintain in some recipient countries a certain infrastructure for teaching German resp.
Japanese law. These institutions are of a more permanent and institutionalised character thanacademic exchange and therefore ensure a more sustainable knowledge on the donor
country’s legal system in the recipient country.

3.1. Germany: Schools of German Law
There is a rich variety of institutions teaching German law abroad, especially in theformer socialist countries.
In two German border towns, there are transnational law courses the diploma of whichis recognized in both countries: in Saarbrücken on the French border, there is a GermanFrench law course 47 , and modelled on this, there is a Polish-German law course in46
In Japan, the Supreme Court opposes internships of foreign judges in Japanese courts because of, inter alia, theworkload of the courts. The executive branch has strong reservations, too.
47

23

The organisational background is the French-German Law Centre of the Faculty of Law, website: www.cjfa.de.

Frankfurt/Oder on the Polish border48. These bi-national courses acquaint German students
with the law of the neighbouring country, but they also attract many students from theneighbouring country. These learn German law together with their own domestic law in
Saarbrücken and Frankfurt/Oder.
Beyond the immediate border areas, Germany maintains several so called Schulen desDeutschen Rechts (Schools of German Law). These institutions are attached to local law
faculties and do not offer a full law diploma but additional qualifications such as an LL.M. orsimilar degrees. They exist e.g. in Kraków (Poland 49 ), Gdańsk/Danzig (Poland 50 ) and
Wrocław/Breslau (Poland51). Schools of German law are usually founded jointly by one orseveral German law faculties (Universities of Heidelberg and Mainz for Kraków; Universityof Cologne, especially its Institute for East European Law for Gdańsk; Humboldt University
Berlin for Wrocław) and the Polish law faculty by an agreement between the partners.
Initially, a School of German Law is often financed by the Deutsche Akademische
Auslandsdienst (German Academic Exchange Service, DAAD52). However, the DAAD can
only give initial financing but not a durable institutional financial framework. Therefore,
schools of German law usually depend on sponsors such as large foundations. The staff
consists partly of German lawyers sent there by the DAAD for a certain period (usually
several years, the term may be renewable), and of local teaching staff familiar with German
law. The academic overview over the teaching is usually conducted by the German partner
law faculties; these may also take part in selecting the German lawyers sent to teach at theschool of German law.
These Schools of German Law in Poland help Germany to go even further east: the
Kraków School of German Law organises summer schools of German law at the Mohyla
Academy in Kyiv (Ukraine). On the other hand, the schools of German law try to attract more
and more German students as well by organising schools of Polish law where German law
students may acquire knowledge about and an additional qualification in Polish law without
having to go through a full Polish law school curriculum. The School of Polish Law of the48

Website: www.jura-viadrina.de/de/kurse-und-studiengaenge-der-juristischen-fakultaet?q=node/70.

49

Website: www.sddr.org.

50

Website: www.ghst.de/index.php?c=38&cms_det=73.

51

Website: dprs.ebugz.de.

52

For details, cf. infra.

24

CALE Discussion Paper No.5

Kraków-Heidelberg-Mainz co-operation is held mostly in Kraków, whereas the School ofPolish Law of the Wrocław-Berlin co-operation functions at the Humboldt University Berlin.
The Cologne-Gdańsk co-operation works as a one-way to spread knowledge on German law
in Poland, but not on Polish law in Germany.
Fully equipped schools of German law exist in Poland only. This probably has two
reasons. First, Poland is an immediate neighbour, the largest neighbour in the East andtherefore of special importance to Germany. Second, the burdens of the past are especiallyheavy between Germany and Poland where Germany committed more and worse crimes thananywhere else during World War II. This is why reconciliation with Poland is an especiallydelicate matter. It is widely felt that reconciliation may be advanced by numerous activities
designed to bring about a rapprochement between the people of the two countries. One ofthese activities in the field of scientific co-operation are the Schools of German Law in Poland.
Apart from these institutionalised schools of German law, German universities
organise numerous courses on German law all over the world. A distinctive geographicalfocus lies on Eastern Europe. Courses on German law exist at many Russian universities, butalso in practically all other formerly socialist countries from the Baltic republics (the German
law course in Vilnius/Lithuania bears the title “Schule des Deutschen Rechts”) via East
Central Europe and Ukraine as far as Southern Caucasia where there are extensive teachingactivities on German law in Tbilisi (Georgia). There are also similar courses at Chinese andother Asian universities, but the geographical focus lies on Eastern Europe and the former
Soviet Union. These courses are financed sometimes by the DAAD, sometimes byfoundations53 and other sponsors of science. Unlike the Schools of German Law, these courses
on German law do not require many resident German teaching staff, but teaching is mostly
done by visiting professors, usually of or chosen by the German partner faculty. Students willobtain not a full law degree, but some additional qualification such as an LL.M. Germany
maintains several so called German universities abroad around the world54. None of these
universities, however, possesses a law faculty. Therefore, German universities abroad are not
involved in teaching German law.

53
The courses on German law at the University of Dnyepopetrovsk are organised by the IRZ foundation. On thisfoundation, cf. point 5.2.1.
54
Examples are the German Universities in Almaty, Cairo, Jakarta, Shanghai, Yongin (South Korea) or the German
Institute of Science & Technology in Singapore.

25

A university with a unique structure is the multinational Deutschsprachige Andrássy
Gyula Universität Budapest (German-Speaking Andrássy Gyula University Budapest, AUB55).
It was founded as a joint project of the Republic of Hungary, the federal state of Bavaria andthe federal state of Baden-Württemberg. Later, the Republic of Austria, the Swiss
Confederation and the Federal Republic of Germany joined the initiative. As anintergovernmental institution, it is co-financed by the partner countries. It started with apurely post-graduate teaching programme, but a change in Hungarian legislation forced it tooffer a doctor school and master courses as well. Teaching is conducted in three faculties oneof which is the Faculty of Comparative Law. Its teaching and research concentrate on allEuropean comparative studies. The AUB was not designed to spread the knowledge ofGerman law in Hungary 56 . It is true that the focus of the AUB is comparative law;nevertheless German law is quite present there because half of the teaching staff is German.
They often use German law as a starting point for comparisons, and as a consequence German
law has a strong presence in the teaching of the AUB.
Students need to have a degree when applying, and most students of the Faculty ofComparative Law have a law degree from their home country. Half of the students come from
German-speaking countries, the other half is Hungarian-speaking either from Hungary itself
or from the Hungarian minorities in the neighbouring countries. There are a small number ofstudents from other – usually Central – European countries as well.
It is true that most German activities to teach German law outside Germany take placein Europe and the successor states of the Soviet Union. Nevertheless, there is a certain
presence in Asia as well. German law courses exist, e.g., at Nanking University57. A very
special institution is the China-EU School of Law at Beijing58. It is not a German initiative,
but a co-operation between the EU and the PR of China with a bilateral steering committee.
On the European side, academic affairs are administered by a consortium of EU universities

55

Website: www.andrassyuni.hu.

56

German law is taught in DAAD-sponsored courses on German law that exist at every law faculty in Hungary.

57
The organisational backgroundlaw.nju.edu.cn/deutsch/main.asp.
58

is

the

Sino-German

Institute

for

Legal

Studies,website:Website: www.cesl.edu.cn.

26

CALE Discussion Paper No.5

under the leadership of the University of Hamburg (Germany)59. The European half of the law
professors come from more or less all EU member countries.
Academic exchange is financed by the Alexander von Humboldt Stiftung 60 and theDeutsche Akademische Auslandsdienst61. Apart from these state-sponsored institutions, manyother donors support academic exchange. Sponsoring concerns both directions: sending
German students or scientists abroad as well as inviting foreign students or scientists. In thestate sponsored programmes, there are no distinctions as to the discipline. Considered the sizeof the law faculties, lawyers are not very well represented in these programmes. Nevertheless,a considerable number of East European law students and legal scientists have studied inGermany for some time with Humboldt Stiftung or DAAD grants. There is no geographicalrestriction in German exchange programmes, but among German students and scientists whowish to go abroad, Western countries enjoy more popularity than Eastern Europe. On theother side, many East Europeans can be found among the visitors to German institutions. The
institutions presented in this paragraph sponsor exchange with grants and similar payments
but are not involved in the organisation of programmes or teaching curricula. This is done by
the receiving organisation.

3.2. Japan: Centres of Japanese Law
Japan, too, undertakes certain activities to spread the knowledge of Japanese law
abroad, especially in Asia.
The most institutionalised teaching of Japanese law is conducted through the Researchand Education Centre for Japanese Law at the Graduate School of Law of Nagoya
University62. The Nagoya Graduate School of Law started organised exchange programmes
for students from transitional countries in Asia in 1998. Based on the idea that Japanese law
should be taught in Japanese language and taking into account that the knowledge of Japanese
language is not widely spread in Asia, the Centre combines teaching Japanese language and59

The relevant website of Hamburg University is http://www.jura.uni-hamburg.de/cesl.

60

Website in English language: http://www.humboldt-foundation.de/web/home.html.

61

Usually referred to as DAAD; website: http://www.daad.de/de/index.html.

62

名古屋大学日本法教育研究センター; websites: http://www.nagoya-u.ac.jp/en/international/other-act/ja-law/,
http://cjl.law.nagoya-u.ac.jp/content/en.

27

Japanese law. For this purpose, so called Centres of Japanese Law were established in cooperation with universities in the target countries. Such centres exist in Cambodia (establishedin 2008), Mongolia (2006), Uzbekistan (2005) and Vietnam (2007). There are plans toestablish a new centre at China, possibly at Shanghai or Beijing. The Research and Education
Centre for Japanese Law and the centres abroad are financed by the Ministry of Education.
The Centres on Japanese Law conduct the combined teaching of Japanese language63
and law. Students are selected from among qualified law students of the partner university.
Besides their usual studies of their respective domestic law, they start with Japanese language
courses, and from the third year on, they receive teaching in Japanese law as well. They also
may participate in summer seminars at Nagoya University. After completing the four or five
year course64, successful students may come to Nagoya for further studies to specialise inJapanese law. The most successful students are formally invited to come to Nagoya.
The Research and Education Centre for Japanese Law does not have an office andstaff of its own, but the function of its headquarters is assigned to CALE65. The Director of
CALE is at the same time in charge of the Research and Education Centre for Japanese Law.
Teaching and textbooks are overseen by committees composed of Nagoya Graduate School of
Law members.
In addition to their teaching function, the Centres of Japanese Law serve as a general
representation of CALE and the University of Nagoya – sometimes of other Japanese donors
as well – and collect information about the local law, administer and co-ordinate Japaneseinstitutions’ activities in those countries.
Apart from this ambitious programme of Japanese law centres abroad, Nagoya
University and some other law schools in Japan continue the tradition of offering special
courses on Japanese law in English. These courses aim at foreigners, and in Nagoya there is a
special emphasis on inviting students and lawyers from neighbouring countries and potential
recipients of Japanese legal assistance. In that university, a special master programme incomparative law and political science exists that is designed to acquaint law students from63

The courses that the Research and Education Centre for Japanese Law offer on Japanese language focus on theneeds of legal education. A more general promotion of the knowledge of Japanese language and culture and of Japanesestudies abroad is organised and financed by the Japan Foundation.
64
The diploma these students receive is the domestic one of their university; they do not receive any formal extra
grade or title by the Research and Education Centre for Japanese Law.
65

On CALE, cf. supra, point 2.2.1.

28

CALE Discussion Paper No.5

other Asian countries, inter alia, with international legal co-operation. However, based on
past experiences, Japanese law schools consider teaching Japanese law in English as an
insufficient method because access to information in English language is limited, materials
are usually outdated, and their use depends very strongly on the quality of translation.
Another advantage of Japanese law education in Japanese language is being stressed more andmore: The learning of Japanese language gives access to the understanding of Japaneseculture, and without the underlying culture, Japanese law – just like any other law in theworld – cannot be understood properly.
International students’ exchange is also a task of the Japan Foundation 66 . In theframework of its Intellectual Exchange Programme, foreign students and scholars of law may
be invited to Japan to become acquainted with Japanese law. These exchange programmes do
not focus on lawyers, but are open to lawyers. However, as far as sending teaching staff
abroad is concerned, the Japan Foundation concentrates on teachers of Japanese language andtherefore does not sponsor sending law teachers to recipient countries. This can only be donein the framework of the Research and Education Centre for Japanese Law.

4. Infrastructure for a scientific analysis of the co-operation process
International legal co-operation, i.e. advice and support with legislation and its
implementation, is an activity that combines scientific (theoretical) and practical elements.
Therefore, it is conducted by both scholars and practitioners. Ideally, both groups combine
their respective strong points in order to achieve optimal results. It is obvious that such ademanding process needs to be monitored, analysed and evaluated in order to ensure a highquality. Such monitoring and analysis as well as the evaluation are in principle a task forscience, as far as methods and contents are concerned. However, there are no clear universally
recognised standards yet67.
At the same time, international legal co-operation means the expenditure of publicmoney. This requires an at least indirect parliamentary (budgetary) control.

66

国際交流其金; website: http://www.jpf.go.jp.

67

An overview of the current situation can be found in the volume edited by Carothers (fn. 10).
In Japan, the wish for reliable standards that can be put at the disposal of the practitioners in the field work of international
legal assistance is voiced under the heading of a “metatheory” on technical legal assistance: JICA, Capacity Development (fn.
8), ix, 40-41; ICHIHASHI (fn. 35).

29

4.1. Germany
German activities in international legal co-operation may take place in a bilateralrelationship between Germany (which may be the Federation or one or more federal states)
and a recipient state, or they may be embedded in initiatives sponsored by the European
Union. Monitoring and evaluation are slightly different in both cases.

4.1.1. Purely German co-operation programmes
There is no institutionalised monitoring, analysis and evaluation of the scientific ortechnical quality of the work done in projects of international legal co-operation beyond the
project level68. German experts usually are trained lawyers, i.e. they hold a degree in German
law and thus underwent legal education in Germany with its high methodological andscientific standards. Therefore they are expected to know what they are doing, and they are
expected to reflect their work and to adapt it to the circumstances where necessary. This
expectation exists irrespective of the fact that legal education – despite the high standards it
may have in Germany – does not teach the students the knowledge, techniques andprofessional distance towards the own law required from a donor-side expert in international
legal co-operation programmes. Larger projects have a project leader who is not so much
involved in the day-to-day work but who administers the funds and who is expected toexercise some sort of methodological and scientific oversight. However, project leadersusually are not provided with any training or abstract standards for monitoring and evaluation
but are expected to possess or develop these skills themselves. It is hoped that their academic
education will enable them to do so. Projects and their progress usually are evaluated byexternal experts. However, these external experts do not possess abstract standards because
science so far has not been able to elaborate such universally accepted standards. External
experts can only rely on some theoretical knowledge and their own experience gained informer projects – which necessarily is quite subjective. Nevertheless, these evaluations arevaluable forums to discuss aims, goals and methods of a project as well as the recipient’s
response.
68BRÜNE, Stefan: Evaluierung als öffentliche Kommunikation, in BRÜNE, Stefan (ed.): Erfolgskontrolle in derentwicklungspolitischen Zusammenarbeit, Hamburg 1998, 1-26; GAUL, Wolfgang: Sinn und Unsinn internationaler
Rechtsberatung, in: BOULANGER, Christian (ed.): Recht in der Transformation. Beiträge zur Debatte, Berliner
Wissenschaftsverlag, Berlin 2002, 102-124, http://www.fize.de/pdf/f.ize_gaul.pdf.

30

CALE Discussion Paper No.5

Self-reflection is the typical way of monitoring and evaluating the co-operation
activities for experts with an academic background just as much as it is for expert
practitioners. Some law professors involved in co-operation projects with recipient countries
later reflect their experiences and sometimes try to develop more general standards for projectwork in international legal co-operation. Yet, they too base their reflections on their own
personal experiences gained in practical co-operation work and on their general scientificbackground. There is not yet a widely acknowledged methodology or standard with which tomeasure the contents, the procedures or the success of co-operation work. So far, all scientificanalysis and monitoring is very much individual. Most of this sort of literature is written by
US authors 69 , but some German professors as well publish on methods and standards ininternational legal co-operation. In this context, Prof. Knieper has to be mentioned first70. In
one of his books, he defined his role as that of an ‘observing participant’ (beobachtender
Teilnehmer). Recently, the Institut für Ostrecht München has become one centre of theGerman scholarly discussion about international legal co-operation since both in the Jahrbuch
für Ostrecht and in the Studien des Instituts für Ostrecht München articles and books on thissubject were published71.
In programmes conducted by official or semi-official institutions and sponsored fromthe state budget (either by the Federation or a federal state) one ministry will have theleadership in the administrative oversight over the project. This oversight may include theanalysis whether the goals of the co-operation agreement with the recipient state were realised.
This control, however, usually is a rather formal one, limited to outward appearance, and does
not question methods, contents or similar scientific questions more than superficially.

69

An overview of the discussion can be found with Carothers (fn. 10).

70

Many of his writings reflect on international legal co-operation. Here, only a few can be mentioned: KNIEPER,
Rolf: Juristische Zusammenarbeit: Universalität und Kontext, Schriftenreihe der GTZ vol. 275, Wiesbaden 2004; KNIEPER,
Rolf: Rechtsreformen entlang der Seidenstraße. Aufsätze und Vorträge während der beobachtenden Teilnahme an einem
gewaltigen Transformationsprozess, Berliner Wissenschaftsverlag, Berlin 2006; KNIEPER, Rolf: Was ist national amnationalen Recht?, in KÜPPER / BRENN (fn. 7), 29-37; BOGUSLAWSKIJ, Mark / KNIEPER, Rolf (eds): Konzepte fürRechtsberatung in Transformationsstaaten, GTZ, Eschborn 1995; BOGUSLAWSKIJ, Mark / KNIEPER, Rolf (eds): Wegezum neuen Recht, Berliner Wissenschaftsverlag, Berlin 1998.
71
Jahrbuch für Ostrecht (JOR): DEMIDOVA, Elena: Reasons for the Adoption of the EU Legislation as Opposedto the US Regualation in the Russian Takeover Law, JOR 49 (2008), 223-230; FALKE, Mike: Die deutsche internationale
Rechtsstaatsförderung zwischen Globalisierung und Nachhaltigkeit, JOR 51 (2010), 55-70; KNIEPER, Rolf: Über die
Notwendigkeit der Einführung von Gewaltenteilung und Gewaltmonopol in den Staaten des Übergangs, JOR 45 (2004), 305311; KODAMA (fn. 31), JOR 50 (2009), 491-506; TSAY, Igor: International Assistance to State Governance Reforms in
Uzbekistan: Lessons, Challenges and Prospects as Seen from a Recipient State, JOR 51 (2010), 71-80.
Studien des Instituts für Ostrecht: KÜPPER / BRENN (fn. 7).

31

The same is true for the monitoring by the Federal or state chamber of audit. An audit
is always possible if state money is spent, as is usually the case in the projects that are theobject of this paper. Yet, the audit can only control whether budget legislation was observed,
e.g. whether means were administered in a careful way, and whether the money was spent
within or outside the purpose of the budget title of the project. Chambers of audit have neither
the mandate nor the knowledge to judge on objectives, methods, standards and contents of a
project.

4.1.2. German participation in EU-sponsored programmesWestern Europe’s legal co-operation with formerly socialist countries is conducted
and financed to a large extent not by individual donor states, but by the European Union. Thisis especially true for countries aspiring at EU membership because they need to adapt theirlegal systems to the requirements of community law before being admitted to the EU. But
also East European and ex-Soviet states that will not become EU members, at least not in theforeseeable future, such as Russia, Ukraine, Georgia, or Kyrgyzstan, receive considerable
financial and technical assistance from the EU. This includes legal co-operation.
The EU, having only a central administration without the lower echelons ofbureaucracy, cannot conduct these programmes with its own staff but depends on the member
states. The usual procedure for the EU is to conclude an agreement with the recipient statethat defines the scope of legal co-operation, the goals to be achieved and the measures to betaken in order to realise the goals. Then the project(s) is/are put to tender in a way that
consortiums of agents from at least two member states may apply. The project is awarded tothe consortium that appears to have the best qualifications or makes the best offer or seems
most reliable. The relevant EU authority and the successful consortium conclude a contract
which details very minutely every single measure and step to be taken. This detailed working
programme is developed on the basis of the agreement between the EU and the recipient state.
In the framework of EU-sponsored programmes, there is quite a tight oversight. This,
however, is strictly standardised and does little to help improve the quality of the project
realisation. The consortium is obliged to report on every step, and in EU headquarters, projectsurveillance will control whether these steps correspond to the measures provided for in thecontract. This control, however, is formal as well as limited to whether measures foreseen in

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CALE Discussion Paper No.5

the contract are taken. The EU authorities do not and cannot control whether the quality of therealisation is good, whether the methods applied make sense, or whether the measure as suchis useful within the project. EU monitoring services use the contract as a checklist and control
whether planned measures were taken. Apart from that, they control whether budget rules areobserved.
This sort of mechanical control is sometimes counter-productive. In the course of a
project, a measure foreseen in the programme may turn out to be impossible or pointless or
not helpful to the project aim. In such a case it is very difficult to leave the measure aside
because it has a contractual basis: first, in the agreement between the EU and the recipient
state (provided that this agreement covers these details), and second, in the contract between
the EU agency and the consortium. The same is true if it becomes clear that a measure notforeseen in the project description is desirable or useful under the overall aim of the project.
Since neither the working programme nor the project budget provide for that measure, theconsortium is not allowed, strictly speaking, to take it even if its necessity is obvious. In
practice, consortiums try to do what they think is appropriate and best for the project aims andseek the very fine line between seemingly keeping to the work programme foreseen in theircontract and trying to make the project a success.
Like German projects, EU projects rely on a certain peer evaluation by outside experts.
They share the basic problem of the domestic evaluations: Evaluators do not have any
generally accepted standards for assessing goals and methods but only their subjective view.

4.2. JapanThe Japanese Ministry of Foreign Affairs concludes all treaties about official Japanese
assistance programmes abroad and provides the funding for practically all of these
programmes. However, this role is mostly administrative and limited to an ‘umbrella’. The
ministry can and does control compliance with budget regulations on a global level, though
not on project level. For lack of specialists and specialised knowledge, the ministry is not in aposition to monitor and evaluate these programmes with view to their contents and to thevalidity of the methods applied.

33

The backbone of scientific self-reflection of the legal community active in legal
assistance is the CALE in Nagoya72. This does not mean that CALE actively analyses otherinstitutions’ assistance work on a regular basis. CALE provides scientific infrastructure for ascientific discussion by disseminating publications and organising conferences and meetings.
Self-reflection, questions of methods, contents and co-operation philosophy are an importantpart of CALE’s work.
Certain scientific self-reflection is institutionalised at the specialised providers of cooperation activities, i.e. within JICA and the International Co-operation Department of the
Research and Training Institute of the Ministry of Justice. They have publications that include
articles and studies on these questions by both participants in co-operation programmes andoutside scholars. The International Co-operation Department organises the annual‘Conference on Legal Technical Co-operation’ (held usually in January). All agents ofJapanese co-operation activities are invited to discuss their work; this has developed to be an
important forum for self-reflection especially among the practitioners of assistance. JICA
regularly evaluates their projects by mixed groups of JICA members and external specialists;
however, the number of qualified external specialists is low so that these start, mid-term andfinal evaluations and assessments are in practice one form of self-reflection. The world-widelack of universally accepted donor standards for goals, methods etc. of legal co-operation
projects is felt by Japanese specialists as well.
There are several more initiatives that aim at enhancing the quality of Japaneseinternational legal co-operation and that try to fill the lacuna caused by the weak
infrastructure for comparative law, especially with view to the law of recipient countries, in
one way or the other. One example is the International Civil and Commercial Law Centre
Foundation73, an initiative of big companies in some co-operation with government offices,
started in 1996. In collaboration with members of the scientific community, this foundation
sponsors assistance projects in the fields of private and business law, but also provides somescientific backup such as seminars, research and publications.

5. Infrastructure of agents for the operative co-operation work

72

On CALE, cf. supra, point 2.2.1.

73

国際民商事 法センター, website: http://www.icclc.or.jp; Kobayashi, Kiyonori: Status of Activities of theInternational Civil and Commercial Law Centre Foundation, ICD News, December 2010, 29-33.

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CALE Discussion Paper No.5

The operative co-operation work with the recipient countries is in part conducted bystate organs in the narrow sense (parts of the state administration). German administrative law
calls these organs ‘direct state administration’. Official co-operation work involves also
agencies that possess a separate legal personality, but are closely linked to the state, e.g. bybudget ties. In terms of German administrative law, these agencies fall under the category of‘decentralised’ or ‘indirect state administration’. Both in Germany and in Japan, the operative
work of co-operating with recipient countries is performed by both forms of agents.
First, the level of direct state administration is examined. After that, an analysis of theorgans of indirect state administration will follow.

5.1. Direct State Organs
5.1.1. Germany
In Germany, there is more than one ‘state’. To be precise, there are seventeen: theBundesrepublik Deutschland (Federal Republic of Germany, federal level) and sixteen federal
states, the so called Länder. According to the classical theory of federalism, both the federal
and the Länder levels possess the quality of statehood. This theory continues to be prevalentin Germany, and the German constitution of 1949, the Grundgesetz, is based on thisassumption.
The German Länder may conduct certain foreign activities in their own responsibility.
This includes, inter alia, the conclusion of international treaties, direct contacts with foreigncountries, international organisations and their organs, as well as funding activities abroad.
The Grundgesetz defines the powers of the Länder in this field only incompletely(predominantly art. 32 Grundgesetz). The influence of the federal level on foreign Länder
activities is set out incompletely as well; art. 32 Grundgesetz only subjects the conclusion ofinternational treaties by the Länder to the previous permission of the federal government. It isclear, however, that the federal level is responsible in international law for the observance ofinternational rights and duties by all German public organs including the Länder and therefore
must have an influence on international Länder activities that is stronger than the federal
influence on the domestic affairs of the Länder. Still, this framework, the precisedelimitations of which are an issue of debate among constitutional lawyers, leaves the Länder

35

a wide margin of discretion for their foreign activities, in the field of international legal cooperation and others. Thus, the Länder can be considered independent agents in this context.

5.1.1.1. The level of ministries
Due to federalism, there is not only one set of ministries, but one must differentiate
between the federal and the Länder level.

5.1.1.1.1. Federal ministries
German activities in the field of international legal co-operation in the sense of
assisting foreign countries in improving their legislation and its implementation started in the
1970ies. At that time, international legal co-operation was developed out of, and considered to
be a part of the overall technical assistance given to the at that time so called developing
countries. This assistance is located in a specialised ministry, the Bundesministerium fürwirtschaftliche Zusammenarbeit und Entwicklung (Federal Ministry for Economic Cooperation and Development, abbreviation: BMZ). The Bundesministerium der Justiz (Federal
Ministry of Justice, abbreviation: BMJ) embarked in systematic international legal cooperation only after the end of socialism and with a focus on Eastern Europe and the former
Soviet republics, entering in a situation of competition with the BMZ.
Thus, the Federal Ministry of Justice (BMJ) is a comparatively new key player ininternational legal co-operation. It entered the scene after the demise of socialism in the early
1990ies. The formerly socialist countries subscribed to a total change of system: they wanted
to radically alter their political, economic and social system. This required the re-writing of
the entire law. It soon became obvious that this task was far beyond the traditional
understanding of technical assistance given in legal questions; it was a new and unique task.
This challenge caused the Federal Ministry of Justice to become active because it was felt thatthe experts of this ministry were better equipped to give comprehensive assistance of a purely
legal nature than the agents of the classical development aid (technical assistance) were. The
German Federal Ministry of Justice is well equipped for this task because – unlike the36

CALE Discussion Paper No.5

Japanese Ministry of Justice – it has expertise on all fields of (federal74) law because it is
responsible for reviewing all bills drafted by other federal ministries for their compatibility
with the overall legal system75.
In the years after the end of communism, the BMJ was often addressed by East
European ministries of justice for help because in many of the transitional systems of Eastern
Europe, the ministries of justice were responsible for the oversight of the legal reforms. These
East European ministries of justice addressed their German and other West European
counterparts for help.
The Federal Ministry of Justice started and still conducts assistance programmes,
usually of a bilateral nature. For this purpose, the Federal Republic of Germany concludes
treaties with the appropriate organ of the recipient state on the contents and the financing of aco-operation measure. The programmes the Ministry of Justice sponsors are usually related tolegislation and not so much to administration (implementation) because legislation is the coreexpertise of the ministry. Since the EU started to sponsor legal assistance programmes forprospective new member states – presently the largest programmes exist for what is called theWestern Balkans, i.e. Albania and the successor states of Yugoslavia except Slovenia76 – aswell as for other formerly socialist countries (especially Russia, Belarus, Ukraine, Moldova,
the South Caucasian and Central Asian republics)77, the Federal Ministry of Justice has takena certain part in these programmes. In general, bilateral German activities and participation in
EU-sponsored programmes are not linked, but run in a parallel way. Slowly, the Federal
Ministry of Justice widens the territorial scope of its international legal co-operation. Until
recently, it was more or less limited to formerly socialist countries (including the East Asiansocialist states). Now, the ministry starts similar co-operations with countries where former orexisting socialism is not at issue, i.e. in the Middle East, South America or Sub-SaharanAfrica.
74
In the system of German federalism, most areas of legislation are federal. The Länder legislate predominantly incertain matters of special administrative law, especially in matters of education, culture, public security, police and local
government.
75
In Japan, this review is conducted by the Cabinet Legislation Bureau. As a consequence, the Japanese Ministryof Justice concentrates on the ‘core’ fields of the legal system: cf. infra, point 5.1.2.1.
76
The EU website on its relationship with the Western
http://europa.eu/legislation_summaries/enlargement/western_balkans/index_en.htm.
77

Balkans

can

be

found

at

The EU presents information on its so called ‘European Neighbourhood Policy’ towards these countries on thewebsitehttp://europa.eu/legislation_summaries/external_relations/relations_with_third_countries/eastern_europe_and_central_asia/in
dex_en.htm.

37

The Federal Ministry of Economic Co-operation follows a philosophy somewhat
different from that of the Federal Ministry of Justice. The Ministry for Economic Cooperation continues to regard international legal co-operation to be one case of a more generaltechnical assistance which is embedded in an overall concept of development. The Ministry ofJustice, on the other hand, stresses the uniqueness of the assistance in the field of legislationand its implementation (“writing a law is different from digging a well”).
Apart from these fundamental differences in philosophy, originating from the different
starting points of the two houses and kept up in a spirit of competition (which is not always
helpful because it sometimes bars desirable co-operation between the ministries), theoperative work of the Ministry of Economic Co-operation is very similar to that of the
Ministry of Justice: international treaties with recipient countries on co-operation projects,
conducting or sponsoring co-operation programmes, providing funds or acquiring them fromother sources, participation in EU-sponsored programmes. In this spirit, the Ministry of
Economic Co-operation conducts purely legal assistance programmes as well as programmesof a more general nature that include a legal side.
In addition to these two core agents in the field of international legal co-operation,other federal ministries are involved.
First, there is the Auswärtiges Amt (Ministry of Foreign Affairs, abbreviation: AA).
International legal co-operation necessarily touches the competence of this ministry. Yet, inGermany federal ministries may conduct foreign contacts with their counterparts without thepermission of the AA. If an international treaty for the Federal Republic of Germany isnegotiated, the AA has to be involved and controls whether the future treaty is in accordancewith international law and the other treaties of the Federal Republic.
In its own policy, the AA formulated the promotion of the Rechtsstaat (rule of law)worldwide as one of its priorities. This so called Rechtsstaat initiative is now embedded in an
overall EU initiative to promote the Rechtsstaat/rule of law.
The Federal Ministry of Finance is involved as far as the costs of the programmes areconcerned. Usually, the federal ministries finance programmes of international legal cooperation out of their own budget if no external financing exists (as is the case, e.g., in EU
sponsored programmes). However, if they need extra resources the Ministry of Finance will
have to get involved and will need to be convinced that the expenditure makes sense.

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CALE Discussion Paper No.5

The Federal Ministry of the Interior plays a certain role in international legal cooperation, especially in the exchange of administrative staff as a form of providing practicaltraining for public servants of the recipient countries. However, this participation ininternational legal co-operation is more typical for the Länder ministries of the interior
because in the German system of federalism, the bulk of public administration is done by the
Länder and their organs. The federal level maintains only a small number of administrative
services and therefore has comparatively little potential for this sort of exchange. This is why
the role of the ministries of the interior is described under the heading of the Länder
ministries78.

5.1.1.1.2. Länder ministries
Due to their limited foreign activities, the Länder have neither ministries for foreign
affairs nor ministries for economic development. Foreign contacts are usually concentrated in
the Prime Minister’s Office. Apart from that, the ministries of justice are active in the field.
Every individual Land79 has its peculiarities and its own system which cannot be analysed
here in detail. Nevertheless, some general traits can be described.
The Office of the Prime Minister concludes treaties for the Land with foreigncountries. In the field of international legal co-operation, these often refer to the exchange ofexperts from among the judicial or administrative staff. Assistance in legislation is rarely asubject of Länder agreements because in the system of German federalism, the Länder havelittle jurisdiction and therefore comparatively little experience in legislative matters; only
certain fields of administrative law, especially school and cultural affairs as well as police andpublic safety, underlie Länder legislation. The more detailed aspects of international legal cooperation are usually dealt with by the pertinent ministry, not so much by the Prime
Minister’s Office. As in most Länder the Prime Minister’s Office has a ‘mirror department’for each ministry there are established channels of communication between the Prime
Minister’s Office and the various ministries. Establishing and preserving the coherence of theoverall policy is a prerogative of the Prime Minister’s office.
The ministry of justice is a key player on the Länder level just as much as it is on thefederal level. However, the tasks are somewhat different. Whereas the Federal Ministry of
78
79

39

Cf. infra, point 5.1.1.1.2.
“Land” is the singular form of “Länder”.

Justice is strongly involved in the federal legislative process and therefore possesses a richexpertise on legislation, the Länder ministries of justice administer the courts and the publicprosecution services (with the exception of the six supreme federal courts which areadministered by the Federal Ministry of Justice) and therefore have command over the vast
majority of the judicial and procuratorial staff in Germany. This is where their importance ininternational legal co-operation lies.
Many co-operation programmes both on Länder and on federal level include theparticipation of German judges or public prosecutors as experts or advisers. It is the Länder
ministries’ decision to allow judges or public prosecutors to take part in such programmes.
Without the permission of the ministry, they have to continue their judicial or procuratorial
work in Germany. This competence may seem trivial but it is of a key importance because the
Länder ministries of justice have the power to decide whether German assistance projects canbe staffed with qualified experts or not. In this decision, many factors are important: on the
one hand, Germany’s obligation to present and, as the case may be, delegate experts,
Germany’s interest in the participation of German judges and prosecutors and thus thepresence of German law and legal expertise in international projects, and on the other handthe functioning of the courts and prosecution services in the respective Land.
This is a certain dilemma because the aspects in favour of the participation of judges
and public prosecutors concern mostly the federal level whereas the aspects against it lie with
the Länder: they have to bear the costs of the judges and prosecutors delegated abroad, andthey have to pay the additional staff that may become necessary to fill the gaps caused by theabsence of too many colleagues. The federal level cannot and will not recompense the Länder
for their willingness to ‘sacrifice’ their judicial and procuratorial staff for the purposes ofinternational legal co-operation.
A certain solution is delegating not active judicial and administrative staff, but retired
experts. They possess a life-time of experience, and their delegation does not cause absences
within the judicial and administrative service.
A similar role is played by the ministry of the interior for those projects that involve
administrative personnel. The ministry of the interior has command over the largest part of theadministrative apparatus of the Land, and it therefore can decide whether civil servants or
employees of the Land can be delegated to a recipient country as experts, or whether foreign
administrative staff can be trained in the authorities of the Land.

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CALE Discussion Paper No.5

The latter model involves public servants of the recipient countries being invited tospend some time and observe the practical work and the routines in the equivalent organ ofthe donor Land’s authority, i.e. an internship. Since exchange of staff as a form of legal
international co-operation is very helpful in ensuring good implementation by a public
administration of high professional standards, it becomes more and more important and widespread. As a consequence, the role of the Länder ministries of the interior increases.
The role of the Länder ministries of finance is similar to its federal counterpart80 .
Some other ministries may take part in international legal co-operation on a case-to-case basis
if assistance projects within their jurisdiction involve legal questions as well. To give one
example: several Länder agricultural ministries are involved in assistance projects that include,inter alia, agricultural legislation or its implementation.

5.1.1.2. Other public organs
The participation of public organs others than ministries largely depends on theirstatus.
Independent (autonomous) organs such as audit chambers can take part in cooperation programmes to the extent their budget allows them to do so. They may conclude
agreements of co-operation with corresponding organs of recipient states. Their role in theinternational legal co-operation is limited to only a few projects.
Public organs without an independent status (administrative authorities) usually
execute the commands of their superior ministry. This function may become crucial to thesuccess of a co-operation project that involves the training of foreign judges, prosecutors or
administrative staff in Germany. These foreign lawyers will not be trained in specialised
training facilities or in the ministry but serve their internship in the courts and offices where
the day-to-day work is done. This makes sure that they learn modern, Rechtsstaat-based
administrative or judicial work on a practical level which allows them to select those elementsthat they think will work in their own country.
Local autonomies (communes, cities, and districts) play a similar role although they
are not subordinate to a ministry. They may delegate part of their staff as experts to go abroad,and they may receive foreign administrative staff for training on the spot. Sometimes,
80

41

Cf. supra, point 5.1.1.1.1.

administrative support programmes are agreed upon between a German commune and its
partner commune in the recipient country.

5.1.2. Japan
Unlike Germany, Japan is a centralised state. ‘The state’ is the central state (Nipponkoku, 日本国) with its central, regional and local organs.

5.1.2.1. The level of ministries
Japan, being a central state, only has one set of ministries, not seventeen like Germany
has. The Japanese ministries dealing with international legal assistance are the Ministry ofForeign Affairs and the Ministry of Justice.
Japan does not have a separate ministry for economic development or aid. These
questions fall mostly into the jurisdiction of the Ministry of Foreign Affairs. One of the more
important fields of activities of that ministry is the so called ‘Official Development Assistance’(ODA)81, i.e. technical assistance given from one state to another state or some other publicbody. In Japan, international legal co-operation in the sense of technical legal assistance is felt
to be an integral part of the overall technical assistance, i.e. one possible case of ODA82.
Foreign technical assistance is seen as one means to realise the goals of Japanese foreign
policy. For this reason, the Ministry of Foreign Affairs is involved more than its German
counterpart.
Japan entered the field of international legal assistance later than Germany. The first
request of this kind was received in 1992 by Vietnam. Just like the East European reform
states, Vietnam too charged its ministry of justice with the task of legislative reform, and therequest for help was presented by the Vietnamese Ministry of Justice to the Japanese Ministryof Justice as well as to JICA. Since then, the geographical focus of law-related ODA has
always been Asia: first East and South East Asia, now extending to Central Asia as well. The
background is similar to the ‘boost’ in German legal assistance programmes since 1990:
States give up socialism or radically reform their system under the heading of ‘socialism’ and81

政府開発援助.

82

JICA, Capacity Development (fn. 8), ii-iii.

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CALE Discussion Paper No.5

want to incorporate elements of market economy, rule of law and/or democracy in their legal
systems. In Asia, Japan is one ‘natural’ model state83.
The Ministry of Foreign Affairs deals with international legal co-operation in many
ways and acts as the umbrella institution in this field.
First, if Japan concludes a treaty with a recipient state about a co-operation
programme or a project, Japan is represented by the Ministry of Foreign Affairs. In somecases, this role of the Ministry of Foreign Affairs is material, e.g. if contacts are establishedthrough diplomatic channels. JICA, being the executing agency of the ministry in questions oftechnical assistance, maintains field offices and close ties to many recipient countries andtherefore often is addressed with requests for Japanese technical assistance which JICA hands
over to the ministry. In other cases, another ministry – e.g. the Ministry of Justice – may havethe contact with its foreign counterpart and will include the Ministry of Foreign Affairs only
when a co-operation treaty is to be concluded. Japanese ministries other than the Ministry ofForeign Affairs do not enter into contractual relationships with foreign organs, even if thesubject-matter of an agreement falls within their scope of activities. In this respect, lawrelated programmes are treated the same way as any other development programme.
Second, the Foreign Ministry may give grants and other financial support to foreigncountries in the framework of Japanese foreign policy. In individual cases, this may include
activities that may be defined as belonging to international legal co-operation.
Third, the Ministry of Foreign Affairs holds the Japanese ODA funds in its budget;
large parts of these funds are handed over to JICA84 because JICA administers these funds forthe ministry. This includes the institutional financing of JICA as the general ODA
implementation agency mandated by the ministry. JICA uses these funds to finance andconduct the programmes and projects that have been agreed upon between Japan and therecipient state and which JICA is commissioned to administer.
If JICA cannot or does not wish to execute certain programmes with their own staff,
they can address other official bodies (including autonomous bodies such as the Federation of
Bar Associations) for help, which they are legally required to give as far as they can. Or JICA
can buy equipment or knowledge on the market. If goods or services are bought on the market,
JICA have to put them to tender.

43

83

MORINAGA (fn. 6).

84

On JICA, cf. infra point 5.2.2.

Specifically, in law-related projects of international co-operation it is sometimes feltthat JICA lacks the necessary expertise. In these cases, JICA may address the Ministry ofJustice for assistance. The inclusion of the Ministry of Justice or any other ministry leaves theprimary responsibilities of JICA and the Ministry of Foreign Affairs unaffected. This is true
for finance as well. Project costs are borne by JICA and thus indirectly by the Ministry ofForeign Affairs, even if the Ministry of Justice is involved.
International legal co-operation and technical legal assistance do not play a prominentrole in the Foreign Ministry’s ODA agenda. Among the so called ‘specific issues’ of ODA
only ‘democratization’ is at least somewhat close to international legal co-operation and may
to a certain extent be compared to the Rechtsstaat initiative of the German Ministry ofForeign Affairs. All other specific issues are rather remote from law85. This definition of core
issues reflects the global perspective of foreign policy pursued by a ministry of foreign
affairs; law-related questions will find more attention in a ministry of justice rather than in aministry of foreign affairs.
The Ministry of Justice is the other important institution on government level in thefield of international legal co-operation. It maintains contacts to the ministries of justice and,as the case may be, to other law-related institutions of recipient countries, though in a more
informal manner outside diplomatic channels. If these contacts result in the wish to enter into
a formal agreement on legal assistance, the Ministry of Justice will address the Ministry ofForeign Affairs which will conclude the treaty and provide the means for the implementationof the assistance programme. The Ministry of Justice does not have a special department forforeign relations other than judicial co-operation. Foreign contacts are handled by the
Minister’s Secretariat, Office of International Affairs, and sometimes also by the department
responsible for the field of law in question.
The Ministry of Justice does not conduct programmes of international legal cooperation in its own responsibility because these programmes are part of the ODA which falls
within the competence of the Ministry of Foreign Affairs. The Ministry of Justice is addressedby the agency managing a project of international legal co-operation, i.e. by JICA, if
procuratorial staff or members of other legal professions related to the Ministry of Justice are85

Cf. http://www.mofa.go.jp/policy/oda/index.html by 2010 Oct. 23.

44

CALE Discussion Paper No.5

sought for participation in an assistance programme86. The Ministry of Justice will then makesure that adequate staff is recruited, inter alia by offering promotion to those willing to bedelegated for some time to a recipient country. Unlike Germany, Japan relies nearlyexclusively on active staff because these are still rooted in their professional ministerial,
judicial, procuratorial etc. networks, and it is felt that it is important for the experts to havethis backing of their mother institution. Furthermore, active staff can be motivated by careeradvantages – an incentive which will not work with retired experts. If other legal professions
need to be addressed, the Ministry of Justice offers help to establish contacts where this help
is needed.
Thus, the involvement of the Ministry of Justice in international legal assistance iscomparatively limited. The ministry will deal with the political questions of legal assistance,
unless these are dealt with in the Ministry of Foreign Affairs, and it will help finding qualified
experts from the legal professions. It is not involved in the operative co-operation work as
such and does not compete with the Ministry of Foreign Affairs in the way that the German
Federal Ministries of Justice and for Economic Co-operation do.
The operative legal co-operation with transitional and developing countries isperformed by the Ministry of Justice’s Research and Training Institute, seated in Tokyo87. The
institute with a staff of 85 persons on the ministry’s payroll is part of the ministry. Due to its
special tasks the institute does not form a part of the regular hierarchy within the ministry but
is an external organ with a status somewhat different from an ordinary department.
International legal co-operation, however, is not the only task of this Institute. On thecontrary, its core functions consist in research within Japan to provide a scientific basis for
future legislation especially in the field of criminal justice as well as in training for Japanesejustice officials. In the mid-1990ies, the scope of these activities was extended to foreigncountries, and the Research and Training Institute became the ministry’s chief executive
agency for assistance to developing and transitional countries, including the formerly andactual socialist countries in East and South East Asia. Recently, Central Asia including
Mongolia has become a new target region of Japanese international legal co-operation.

86

The Ministry of Justice is also involved in the recruitment of judicial staff but in a different way: The Supreme
Court as the head of the court administration has to agree, and the judges in question are formally made public prosecutors,
thus leaving the jurisdiction of the Supreme Court and coming under the administration of the Ministry of Justice.
87

法 務 省 法 務 総 合 研 究 所 ;http://www.moj.go.jp/ENGLISH/MEOM/meom-01.html.

45

websites:

http://www.moj.go.jp/housouken/houso_index.html,

The Research and Training Institute does not do any research on the law of therecipient countries as such. However, its training is open to foreign lawyers in the frameworkof legal co-operation programmes. If such a programme includes training of lawyers from therecipient state in Japan, they receive special training in the Research and Training Institute, in
CALE or other educational institutions. Practical internships as in Germany do not normallyform part of Japanese co-operation programmes.
In order to conduct this international co-operation work on a professional level, a
specialised International Co-operation Department88 was established in 2001. Its seat is Osaka,
and its legal staff consists of one director, Terutoshi Yamashita, a public prosecutor andministry official of long standing and involved in the establishment of the department in 2001,
and some 8-10 lecturers. Lecturers are recruited from the ranks of judges, prosecutors andministerial lawyers working in the Ministry of Justice. Being experienced practitioners ofJapanese law, they usually have no previous knowledge of the law of the recipient county or
countries they work with. Since the Department staff takes part in the usual rotation within theministry, its director as well as the lecturers usually serve a two or three years’ term in thedepartment before being transferred to other parts of the ministry or before going back into
the judicial or procuratorial practice 89 . There are no mechanisms to institutionalise theknowledge these lecturers have acquired in the course of their projects for the benefit of theirsuccessors or the Department at large.
The International Co-operation Department is usually involved in co-operation
projects on invitation by JICA90. If JICA is commissioned by the Ministry of Foreign Affairs
with the execution of an assistance programme that requires legal expertise, JICA may
address the International Co-operation Department either by direct invitation fromgovernment agency to government agency or – so far a theoretical alternative – by putting the
project to tender. Since there are few institutions in Japan with expertise in international legal
co-operation, the International Co-operation Department would stand good chances to acquire
projects opened to tender. In execution of the programme, the Department either sends its
own lecturers e.g. to conduct seminars in the recipient countries or, especially in the case oflong term experts, seeks appropriate Japanese lawyers – usually practitioners, sometimes
88

法務省法務総合研究所国際協力部; website: http://www.moj.go.jp/housouken/houso_icd.html.

89

On the staff of the International Co-operation Department by the second half of 2010, cf. MORINAGA (fn. 6).

90

In one case so far, the request came from the Asian Development Bank immediately.

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CALE Discussion Paper No.5

scholars – to be sent to the recipient countries in order to provide assistance, e.g. in thedrafting of laws or in more comprehensive reform projects. This assistance may require alonger or shorter presence in the recipient country, depending on its form (advisory opinion,
training in seminars etc). Long-term experts sent to the recipient countries, including those
employed by the International Co-operation Department, act as JICA advisors91.
The second tier of international legal assistance work is the organisation of special
training courses for lawyers from recipient countries, especially lawyers from the publicsphere (courts, public prosecution services, public administration). These lawyers are invited
to the Department in Osaka where they receive training of a more theoretical nature; practicalinternships in Japanese courts or public authorities are not part of Japanese assistanceprogrammes. The format of these courses is usually adapted from the courses for Japanese
legal practitioners that the Research and Training Institute organises for domestic purposes.
Beyond the strategic and operative work of international legal co-operation, theInternational Co-operation Department also provides some scientific backing by publishingarticles on the law of recipient countries as well as on theoretical and practical questions of
the co-operation work. ICD News containing reports and articles on international co-operation
activities as well as material on the law of recipient countries is regularly published inJapanese; in 2009, the first English ICD News edition was published, and publication in
English language is to continue in one volume per year. A certain focus of the discussion in
ICD News is put on questions of language and qualified legal translation92 because this hasturned out to be a major obstacle to success in the operative assistance work. The Department
has a library that contains works on Japanese and Western law (representing the donors’ side)
as well as on the law of the recipient countries. However, the latter collections are notsystematic and do not cover the entire legal systems of these countries and thus do not provide
a comprehensive knowledge base on the recipient states’ legal system.
The involvement of experts from ministries other than the Ministry of Justice and its
specialised units is somewhat stronger than in Germany because the Japanese Ministry ofJustice – unlike its German counterpart – does not deal with all fields of law but only with the91

On JICA and their employment of long term experts resident in the recipient country cf. JICA, Capacity
Development (fn. 8), 11.
92

47

SUGIYAMA (fn. 35).

traditional core subjects such as civil and criminal law and the judicial system93. Specialised
legal expertise is concentrated in the pertinent ministry.
The Ministry of Education often participates if projects encompass questions of legal
education. Co-operation projects developed out of contacts between a Japanese university anda university in the recipient country usually involve the Ministry of Education because it has
the oversight over universities. This ministry is also responsible for the financing and theadministrative overview of the institutional teaching of Japanese law in the recipient countries,
i.e. for the Centres of Japanese Law 94 and their organising bodies: Nagoya University
Graduate School of Law and CALE.
The role of the Ministry of Finance is minimal because the funds for foreign cooperation are covered by the budget of the Ministry of Foreign Affairs.
The Ministry of Finance, as well as other ministries, sometimes takes part in legal cooperation programmes, especially if the object of co-operation falls within their specialisation.
In this context, the Ministry of Finance did already take part in assistance projects on tax orcustoms law.
On Cabinet level, the Council of Overseas Economic Co-operation95 started to takesome interest in international legal co-operation quite recently and organised a conference in2008. As a result, the relevant ministries held a co-ordination meeting in April 2009 where
they identified seven important target countries of Japanese international legal co-operation:
Cambodia, China, Indonesia, Laos, Mongolia, Uzbekistan and Vietnam. This list is not
exhaustive, i.e. initiatives elsewhere are possible and do take place. Questions of method or an
institutionalised flow of information between the various Japanese key players were notaddressed in the meeting96.
Due to changes in government, however, this protocol is outdated. The Council
stopped dealing with international legal co-operation for the time being, and the fact that legal
technical assistance gained the attention of a cabinet office did not result in better funding.

93

Cf. supra fn. 68.

94

On the Centres of Japanese Law, cf. supra, point 3.2.

95

Website: http://www.kantei.go.jp/foreign/policy/index/kaigai/21kekka_e.html.

96

The protocol of the co-ordination meeting bears the heading 法制度整備支援に関する基本方針 (Basicguideline with respect to giving technical legal assistance). JICA’s position on this protocol is highlighted in JICA, Capacity
Development (fn. 8), foreword, xi.

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5.1.2.2. Other public organs
Unlike Germany, in Japanese international legal co-operation the Supreme Court
needs to be mentioned. The Supreme Court is the head of the court administration, a roleshared by the federal and the Länder ministries of justice in Germany. Therefore, the Supreme
Court has to agree if judges are to be set free in order to participate in international cooperation activities (or any other official function outside the courts).
The Supreme Court tends to be reluctant to get involved in international co-operation
because the court considers this to be a matter for the executive branch, not for the judiciary.
In their understanding of the separation of powers, tasks should not be mixed. However, there
are a few judges at the International Co-operation Department because the Supreme Court’s
reluctance is somewhat less pronounced vis-à-vis the Ministry of Justice. Formally, thesejudges are made public prosecutors for their time outside the judicial service; this technique isalways employed when judges are sent to work in state offices other than courts.
Some other state organs take part in co-operation programmes that concern theirrespective field of law. The Fair Trade Commission is quite active in assistance projects
including competition law, as is the Patent Agency if intellectual property law forms part of a
project.
Apart from organs of the central state administration, regional and municipal
authorities (prefectures; cities and villages) sometimes have their own programmes forrecipients in countries outside Japan within the framework of city or regional twinning. The
content of these programmes rarely touches the content of international legal co-operation.
However, law implementation and law enforcement on a regional or local level may be
included in these programmes since prefecture and city administrations have expertise in thisfield. Prefectures and cities sometimes delegate staff into assistance programmes, especially ifthey expect some feedback that helps their local enterprises expand into recipient countries.
Autonomous organs such as the Japan Federation of Bar Associations (JFBA) play acertain role in the recruitment of attorneys-at-law for co-operation projects. Official project
organisers such as JICA do not search attorneys on the ‘free market’ but by addressing the bar
associations via their umbrella organisation. Both JICA and the International Co-operation
Department of the Research and Training Institute of the Ministry of Justice entertain close
direct co-operation contacts with the JFBA. This involvement has led to the JFBA planning49

an assistance project of its own in Cambodia; if this test case turns out to be successful, the
JFBA may become another important donor agent.

5.2. Co-operation Agencies
The bulk of the operative work is not done by the ministries but by specialised organs
that have a separate legal entity but are closely linked to the state. In Germany, two suchinstitutions compete, reflecting the competition between the two core federal ministries. In
Japan, there is only one such agency, but here, too, a certain competition exists because asecond operative agent, the Research and Training Institute and its International Co-operation
Department, is part of the Ministry of Justice and therefore was dealt with above97.

5.2.1. Germany: GTZ and IRZ
In Germany, the dualism of the Federal Ministry of Economic Co-operation and theFederal Ministry of Justice is reflected by a dualism of operative agencies: the Deutsche
Gesellschaft für Technische Zusammenarbeit (GTZ, German Company for Technical Cooperation98) and the Deutsche Stiftung für Internationale Rechtliche Zusammenarbeit (IRZ,
German Foundation for International Legal Co-operation99).
Both are legal entities of private law. The GTZ is a limited company (GmbH) ownedby the Federal Republic of Germany, whereas the IRZ – despite its name – is not a foundation
but an association (e.V.) with representatives of the state, of the judiciary, of the legal
professions, of legal science and of some enterprises as members. Both are non-profit
organisations sponsored from the federal budget: the GTZ by the Ministry of Economic Cooperation, the IRZ by the Ministry of Justice. For both agencies, this sponsoring from thefederal budget covers only part of their expenditure; a considerable proportion of their funds
come from projects. This form of financing requires both institutions to constantly look for,and acquire new projects.

97

Cf. supra, point 5.1.2.1.

98

Website: www.gtz.de.

99

Website: www.irz.de.

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CALE Discussion Paper No.5

GTZ was founded in 1975 and is seated in Eschborn, a suburb of Frankfurt/Main. Its
overall task is technical co-operation with foreign countries, especially, but not exclusively
with developing countries. Most commissions and projects originate from the Ministry of
Economic Co-operation, but GTZ acquires projects also from other federal ministries, foreign
governments, the European Union, international organisations such as the UN or the WorldBank as well as from private enterprises. More than 15.000 persons work in GTZ projects;
from these, some 4.000 are Germans, the rest are local staff100.
True to its name, the GTZ started in the field of technical assistance, e.g. ininfrastructure and industrialisation projects. Since its beginning, it has defined ‘development’in a wide, comprehensive sense including, inter alia, legal co-operation. Therefore, there werefirst sporadic law-related projects during the first decades of the existence of the GTZ, e.g. in
the late 1970ies in Chad where Prof. Knieper helped to write a new mining act.
GTZ defined ‘core areas’ (Schwerpunktthemen). Law-related international cooperation does not form a core area. Yet, one of GTZ’s core areas, good governance, is rather
close to legal co-operation because it involves questions such as rule of law, democracy,
decentralisation, corruption, and public finance 101 . All these questions arise also ininternational legal co-operation in projects in the field of public law. Insofar, there is an
overlap with the focus of the other institution, the IRZ.
IRZ is much younger and also smaller than GTZ and has a more specialised andtherefore narrower focus. It was founded in 1992 by the Federal Ministry of Justice as areaction to the special needs that the formerly socialist countries east of Germany had in thefield of legal co-operation102. At that time, the Federal Ministry of Justice became more active
in international legal co-operation, and in order to serve the special needs of its law-related
co-operation with Eastern Europe and the former Soviet Union, the ministry created a special
institution. Until recently, the regional focus of the IRZ corresponded to its genesis and waslimited to formerly and present socialist countries. This geographical self-limitation is being
given up although the majority of co-operation projects continue to concern the formerly orpresent socialist world.
100

http://www.gtz.de/de/689.htm by 2010 Oct. 17.

101

Other core areas are rural development, sustainable infrastructure, social development, environment and climate,and economy and employment. All these areas may touch legal questions but are essentially outside the scope of legal cooperation.
102

51

On these special needs, cf. point 1.

The concentration on legal co-operation (as opposed to a wider technical co-operation),
however, is continued and can hardly be changed by an institution affiliated to the Ministry ofJustice. So, the IRZ is developing from a legal co-operation agency specialised on postsocialist transformation countries to a more global legal co-operation agency.
The staff of the IRZ headquarters consists of some two dozen employees, some ofthem delegated from the Ministry of Justice. They are responsible for managing existing andfor acquiring new projects. The operative co-operation work in the projects is largely done byoutside experts that the IRZ draws from the ranks of judicial, prosecutorial and public
administrative staff, from among university professors and qualified researchers andsometimes from other professions, e.g. from among computer experts if a project includes thecomputerisation of certain legal activities or from legal publishers if the creation of a legal
literary infrastructure is part of a project.
Both GTZ and IRZ share the philosophy now prevalent among Western donor
countries: International legal co-operation that merely aims at transplanting the donor
country’s legislation to the recipient country is bound to fail. Co-operation with sustainable
results requires the analysis of the recipient’s needs as defined primarily by the recipient state
itself and to develop solutions tailored to the recipient’s special situation. The donor’s role isto provide an up-to-date methodology of how to achieve the defined goals in legislation andits implementation and to give information about practical experiences gained in the donor
country and perhaps elsewhere, i.e. a support for the recipient’s own efforts103. Furthermore,
there is another, more practical reason to loosen the donor’s focus on their own law: many cooperation projects with formerly socialist countries are sponsored by the EU. These projects
cannot be conducted by an agency or agencies from one member state alone but necessarilyneed to comprise agencies from several EU members. This in itself creates a greater distancetowards individual national legal systems and strengthens comparative aspects. Nevertheless,the involvement of German experts and advisors who know their law best leads to a certain
preference for German solutions in projects sponsored by Germany or conducted with the103This philosophy prevails despite a change from demand-driven to offer-driven co-operation programmes thatcan be experienced among the professional legal co-operation agents of the donor countries. This must not be confused,however, with the principle that the recipient’s stakeholders must be included and endorse the aim of the assistance project,i.e. that support cannot be imposed on an unwilling or a disinterested recipient.

52

CALE Discussion Paper No.5

participation of German experts. This ‘export’ of German law is considered politicallydesirable for the reasons pointed out above104.
Preferential credits from the federal budget to transitional and developing countries arehanded out inter alia by the KfW Entwicklungsbank (KfW Development Bank), a member ofthe state-owned banking group Bankengruppe KfW (Kreditanstalt für Wiederaufbau,
Reconstruction Credit Agency). This business has little impact on co-operation of a legal
nature but sometimes credits are linked to certain development goals which may require legal
reform in the recipient country. In these exceptional cases, the KfW Entwicklungsbank may
take part in law-related international co-operation.
5.2.2. Japan: JICA105
By its outlook and its profile, the Japanese International Co-operation Agency(JICA106) resembles GTZ more than IRZ. Its geographical focus is global, and it deals withtechnical assistance in a broader sense, i.e. in the sense of a comprehensive development
strategy. Like GTZ (and IRZ to a smaller extent), they maintain field offices in all important
recipient countries.
In its present form, JICA was created in 2008 by incorporating the administration ofJapan’s development loans and grants into the until then rather technical JICA107. JICA’s legal
status is an independent administrative institution 108 , i.e. a legal person in public law. Its
separate legal personality gives it a similar freedom to act as the German way of organising its
co-operation agencies in forms of private law. Its staff is some 1.600 employees in Japan andabroad109, the number of (usually local) project staff amounts to round 10.000.
JICA is the official executing agency of the Ministry of Foreign Affairs for all fieldsof technical assistance, i.e. practical development aid (ODA). The Ministry of Foreign Affairs
104

Cf. supra, point 1.

105

A detailed survey is given by JICA’s annual reports 2008 and 2009, the first reports of the new JICA:
http://www.jica.go.jp/english/publications/reports/annual/2008/index.html,
http://www.jica.go.jp/english/publications/reports/annual/2009.
106

国際協力機構, website: http://www.jica.go.jp.

107

Until then, they had been administered largely by the Japan Bank for International Co-operation (JBIC) and theMinistry of Foreign Affairs.

53

108

独立行政法人.

109

http://www.jica.go.jp/english/about/organization/ by 2010 Oct. 17.

provides JICA’s basic funding and exercises the global legal and administrative control overJICA.
One important function of JICA is to administer the funds benchmarked for Japanese
ODA credits to foreign countries (concessional and similar credits). Before 2008, these funds
were in the hands of the Japan Bank for International Co-operation (JBIC) and the Ministry ofForeign Affairs. Since then, they have been concentrated with JICA, except for some minor
funds that the Ministry of Foreign Affairs may administer according to its politicalpreferences. JICA receives 99 % of these funds from the government budget, usually throughthe Ministry of Finance, sometimes through other ministries such as the Ministry of Economy,
Trade and Industry. Because of this function, which corresponds to Germany’s KfW
Entwicklungsbank, JICA handles a much larger financial volume than GTZ.
JICA defines certain fields of activities as its ‘missions’, similar to the core areas of
the GTZ. Not only the concept, but also the fields of activity thus defined resemble each other.
JICA’s mission no. 3 is ‘improving governance’. The formulation of this mission, however,stresses economic aspects. This is why JICA’s mission no. 3 does not concentrate on the stateand on public law to the extent GTZ’s core area of improving governance does. Nevertheless,assistance in the field of law is defined as one aspect of governance110.
This formulation of priorities shows that assistance of a legal nature is not the core
activity of JICA. Nor has JICA had the opportunity to gather experience to the extent is has inother fields of assistance because the first projects of legal co-operation date back only to
1996, i.e. not more than one and a half decades 111 . Nevertheless, the importance of legal
assistance is growing, be it in the form of projects that concentrate on law or as one aspect oflarger projects. Therefore, within JICA, a special ‘Law and Justice Division of theGovernance Group, Public Policy Department’ was established to ensure the specialisationnecessary for high professional standards. The number of staff in this group, however, issmall and comprises some 5 qualified lawyers.
JICA pursues a ‘holistic’ or ‘integral’ attitude towards technical legal assistance whichmight be compared to the point of view of Germany’s Ministry of Economic Development

110

JICA, Capacity Development (fn. 8), 1-5; Torii, Kayo: JICA’s Cooperation in Capacity Development for the
Legal and Judicial Sectors in Developing Countries, ICD News, December 2010, 23-28.
111

JICA, Capacity Development (fn. 8), xi; Matsubara, Sadao: My Contact With Vietnam Through Legal
Technical Assitance, ICD News, December 2010, 73-86 (75-80).

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and of GTZ. JICA considers international legal co-operation as one field of the more generaltechnical assistance having only few differences from other fields of co-operation.
JICA’s official philosophy in development co-operation – including legal co-operation– is very much the same as described for GTZ and IRZ112. Law cannot be simply transplanted
from the donor to the recipient, but every recipient country needs tailor-made solutions thattake into account local conditions. A certain difference between JICA’s official philosophy on
the one hand and the attitude of GTZ and IRZ on the other can be experienced in Japan’s
stronger stress on the involvement of investors and their interests113.
Next to JICA, the Japanese state entrusts another organisation with international cooperation programmes: the Japan International Co-operation Centre (JICE114), a foundation in
private law. Its function is rather auxiliary as compared to JICA. JICE administers training
and exchange programmes such as, inter alia, the Japanese Development Scholarship. JICE
very often acts for other institutions that transfer their more technical and organisational work
to JICE. Providing for qualified translators is also a task of JICE. This sometimes presents
certain difficulties because translators qualified to translate law-related texts directly between
Japanese and the languages of the recipient countries are difficult to find115.
Major clients of JICE are JICA and the International Co-operation Department of the
Research and Training Institute of the Ministry of Justice. JICE maintains offices in Central,
East and South Asia116. JICE’s budget is composed of a basic financing by the Japanese stateand of project funds.

6. Political, financial and other co-ordination of the various activities and agents
The previous descriptions show that both Germany and Japan conduct their donor
activities in international legal co-operation by a wide range of agents. This makes an efficient
co-ordination and exchange of information between these agents desirable. Practical112

Cf. supra point 5.2.1. towards the end.

113

JICA, Capacity Development (fn. 8), iv-viii, 39.

114

日本国際協力センター, websites: http://jice.org, http://sv2.jice.org/e/index.htm.

115
The practical experiences in Japanese legal co-operation activities show that the ‘detour’ via English does notproduce satisfying results: SUGIYAMA (fn. 35).
116
Central Asia: Kyrgyz, Tajikistan, Uzbekistan; East Asia: China, Mongolia; South and South East Asia: Bangla
Desh, Cambodia, Laos, Myanmar, Philippines, Sri Langka, Viet Nam.

55

experience shows that the lack of information about the other agents’ activities leads tonegative results which may be illustrated by one example: In the late 1990ies, two German
experts were working in the same Polish ministry, on more or less the same questions of law,in offices practically on the same corridor in the ministry’s building, without knowing about
each other. They had been delegated on different Länder-sponsored bilateral programmes;
each programme was based on an agreement between the Land and the Polish government.
Länder are not legally required to – and do not – exchange information on their foreign
activities, so there was no channel how these two German experts could have known about
each other. The Polish ministry, however, had tacitly assumed an exchange of information
between the delegating Länder ministries, and its lack made a very bad impression on the
Polish project partners because they interpreted it as a lack of professionalism on the German(donor’s) side.
Today it is common knowledge that the “lack of co-ordination among the donors is
one of the most serious problems in international legal co-operation”117. Germany and Japan
deal with this problem with different mechanisms.

6.1. Germany

6.1.1. The EU as a co-ordinating level
A large number of German co-operation projects with formerly socialist countries arenowadays sponsored by the EU. The reason is that the East European countries joined theEU118 or want to join119. One prerequisite of accession is the compatibility of the candidate
country’s legal system with EU law; this prerequisite is monitored regularly by the EU in thecourse of the highly structured pre-accession process. This need to comply with EU law leads
117
GAUL (fn. 11), 116-124. A similar comment was made by Nicholas BOOTH, policy advisor for the UN
Development Programme in Vietnam, on the ‘10th Annual Conference on Technical Assistance in the Legal Field’ organisedby the ICD of the RTI (MoJ) in January 2009: HARADA, Akio: Roles of and Future Challenges for the International Civil
and Commercial Law Centre Foundation, ICD News, December 2009, 11-15 (13).
118

Until now: Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, Slovenia.

119
Croatia nearly finished the accession negotiations so that membership may be close. Albania, Macedonia,
Montenegro and Serbia expressed their will to accede, and the preparations of formal accession negotiations have progressed
to various degrees. So far, only Macedonia has the formal status of a candidate country (together with Iceland and Turkey),whereas the other countries are defined as ‘potential candidate countries’. In the case of the factual international protectorates
Bosnia-Herzegovina and Kosovo, very basic questions concerning, inter alia, status and sovereignty need to be resolved
before formal steps towards accession negotiations can be started.

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CALE Discussion Paper No.5

to a ‘natural’ preponderance of the EU in the question of legal co-operation. But also formerlysocialist countries without the wish or the perspective to join are in the special focus of the
EU because there are special neighbourhood programmes which aim also at assistance to legal
reforms that the neighbouring East European countries may want to realise120
The EU conducts very few co-operation programmes with own staff. The usual way isthat the EU and the candidate country (recipient) agree upon certain programmes, theexecution of which the EU puts to tender for consortia of agents from at least two EU member
states. The successful agent concludes a contract with the EU and undertakes to conduct andadminister the co-operation project.
Given this structure of legal co-operation between the EU and the candidate countries,
it is obvious that an oversight over the various programmes and thus an exchange of
information and co-ordination can take place only at EU level, not at a national level. For theEU, ‘enlargement’ is a special field of politics, led by a special member of the Commission,
the Commissioner for Enlargement and European Neighbourhood Policy. Other EU organs
such as the Council and the Parliament have special committees for questions of enlargement.
Programmes of legal co-operation with formerly socialist countries – candidates andpotential candidates (they fall under the heading ‘Enlargement’) as well as the other successor
states to the Soviet Union (they fall under the heading ‘European Neighbourhood Policy’) –usually fall within the scope of the Commissioner for Enlargement and European
Neighbourhood Policy. Nevertheless, other EU agencies take part in this co-operation work as
well. This requires an exchange of information inside the EU between the various agents.
For this task, a special ‘Technical Assistance and Information Exchange’ (TAIEX)
service was created. TAIEX is managed by the Directorate-General Enlargement of theCommission. TAIEX both provides a certain amount of assistance as well as collects
information on assistance activities in recipient countries. The latter task, however, does not
function well in practice. The EU continues to start numerous programmes with overlapping
scope and with little or no opportunity for the administrators and experts working in one
programme to know about the other relevant programmes, especially not beforehand.

120This concerns the successor states to the Soviet Union. On European territory: Belarus, Moldova, Russia andUkraine, beyond Europe in a territorial sense the South Caucasian and the Central Asian republics. The geographical factor
has legal relevance as well because art. 49 Treaty on European Union (EU Treaty, in the version established by the Lisbon
Treaty) invites the accession of ‘any European State’. For the former Soviet Union and the Mediterranean countries, art. 8 EU
Treaty establishes the possibility of special relations to neighbouring countries.

57

This can be seen most clearly in Kosovo because it is a small country which receives
an enormous amount of technical, legal and other kind of assistance. Therefore, the ratio
between donor representatives and officials of the recipient state is higher in Kosovo than in
any other recipient country121. Many assistance programmes for Kosovo concern the creationof a modern legal system responding to the needs of democracy and the rule of law. Many ofthese programmes overlap. There are, to give only one example, at least two EU sponsoredprogrammes that, despite of somewhat different overall aims, include the compilation andconsolidated codification of the laws in force in Kosovo. No co-ordination mechanism within
the EU prevented this doubling.
However, the situation is even more complicated because many donor institutions areactive in Kosovo. Apart from the EU, assistance programmes – including legal assistanceprogrammes – are sponsored by individual foreign states (both EU members and others),
international organisations such as Council of Europe, OECD, United Nations, World Bank
etc. Some of these institutions, too, have felt the need to assist Kosovo in putting down in
writing the law in force. Preventing an overlap and a clash of goals, contents and methods ofassistance programmes would require some co-ordination or at least a joint information basis
between these agents. As was explained before, exchange of information and co-ordination do
not work within one agent such as the EU, let alone between several.
A solution would be a co-ordination by the recipient. The recipient knows – or should
know – about all assistance programmes because on the recipient’s side there is only the state(one state) whereas on the donors’ side a multitude of actors can be found. Assistance is not
given as a one-sided act by the donor (this would violate the recipient’s sovereignty) but on
the basis of an agreement between donor and recipient which means that all programmes havea written contractual basis which is available on both the donor’s and the recipient’s side. Thisknowledge, if properly administered, would put the recipient into the position to co-ordinateagreed and offered assistance programmes. However, this does not take place because
experience shows that recipients do not consider themselves responsible for this sort of coordination. In the example cited above, the Polish ministry could have mentioned in thenegotiations on a second assistance agreement with a German Land that assistance on similar
matters had already been agreed upon with another Land; yet, this did not happen and therecipient did not consider this to be his responsibility. The same is true for Kosovo.
121

A similar ratio may only be found in Timor Leste.

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In practice, delegated project staff in Kosovo meet to exchange details on theirprogrammes and to agree upon some sort of co-ordination on the spot. It has become usual
practice for many project administrators and experts in Kosovo to start the work with their
Kosovar partner with the question “Which other assistance programmes are being or havebeen conducted in your house?”. This creates an unofficial exchange of information whichmakes an unofficial co-ordination and co-operation among donors possible. However, thesuccess of this co-ordination depends on the experience and alertness of the delegatedprogramme staff on the spot as well as on the knowledge of the individual person responsibleon the Kosovar side.

6.1.2. The ‘Bündnis für das deutsche Recht’
The lack of co-ordination and mutual information has been felt strongly for someyears now by all German agents active in the field of legal co-operation. Yet, forconstitutional and legal reasons, such a co-ordination and an exchange of information cannot
be made compulsory, but can only be based on voluntary participation. The main reason isfederalism: both the federation and the Länder possess statehood independent from each other.
Therefore the federation can oblige the Länder to do something – e.g. to provide informationor to accept co-ordination – only if the federal constitution gives the federation an express
authority to do so. International legal co-operation is part of foreign policy which is,according to art. 32 Grundgesetz, in principle a federal competence. Nevertheless, theGrundgesetz does not forbid the Länder to have foreign relations of their own. In
constitutional law, it is very doubtful whether the overall responsibility of the federal level forcontacts with the outside world as enshrined in art. 32 Grundgesetz (and the general principles
of international law 122 ) give the federal level the authority to establish a system of coordination and information compulsory for the Länder. Probably the federation does not havesuch an authority. Thus, all endeavours to co-ordinate German international legal co-operation
with third countries and to exchange information about German activities are necessarily of avoluntary nature.
122
In international law there is a general rule that in federal systems the federal level bears on overall responsibility
for the observance of the country’s international obligations, including the conduct of the federal units. Therefore, the federal
level bears full responsibility to the outside. One might argue that this requires the federal level to possess the necessary
authority to enforce the observation of international obligations against the federal units.

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A first step to create voluntary structures of an exchange of information was taken in2008 when the ‘Bündnis für das deutsche Recht’ (Alliance for German Law 123 ) wasestablished by and under the ægis of the Federal Ministry of Justice. Membership in the
Alliance is voluntary. So far, the Alliance has among its members the associations of the legal
professions (of judges, of attorneys-at-law, of notaries public, the German Lawyers
Association), some of the scientific and executive institutions concerned with international
legal co-operation (IRZ, Institute for East European Law Munich) as well as the German
Institution for Arbitration. Representatives of other relevant federal and Länder ministries, ofthe GTZ, of legal science and of NGOs take part in the sessions and conferences of the
Alliance.
The purpose of the Alliance is to strengthen the position of the German law in theworld. This rests on two pillars one of which is relevant in this context. First, the Alliancepromotes German law abroad by issuing information on German law in German andEnglish124. The Alliance hopes that this information may convince international companies tochoose German law and/or German courts for their disputes with other international
companies. A second hope is that foreign legislators may be convinced that German law may
be a model for their reforms which would create a recipient-side demand for legal cooperation with Germany.
The second aspect is a stronger co-ordination of international legal co-operation. For
this purpose, the partners of the Alliance agreed upon creating a data base and upon feeding
this data base with all the information on their own activities of international legal cooperation. This data base is operated by the IRZ. Ideally, every agent reports their activities,
and this flow of information makes a decentralised self-coordination of the various agents
possible. However, in the first years of the existence of the data base the influx of information
was not satisfying so that the data base cannot yet fulfil its role as a forum for selfcoordination. For the reasons explained above, participation and providing information is
fully voluntary which explains the low participation: every agent shuns the extra work ofpresenting their projects on the data base.

123

For
details,cf.
thewebsiteoftheFederalMinistryofJustice:
http://www.bmj.bund.de/enid/15e7cc9c0cc43c0d4086708f0f762808,0/Rechtsstaatsentwicklung/Buendnis_fuer_das_deutsche_Recht_1j4.html. Information is available both in German and in English.
124
The brochure ‘Law – Made in Germany’ can be found on the website http://www.bmj.bund.de/files//3426/Broschuere-Rechtsexport.pdf.

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6.2. Japan
In Japan, there are fewer agents in the field of international legal co-operation. Most
important, there is no doubling of state activities because the state is unitary and not divided
in two levels of statehood. Therefore, there is only one ministry in each field, not seventeen as
in Germany. Furthermore, the competition between the German Federal Ministries of Justiceand for Economic Co-operation cannot be found between the Japanese ministries because the
Ministry of Foreign Affairs is the uncontested umbrella institution for foreign legal cooperation. However, Japanese experts active in this field report of certain rivalries between
various ministries, too, as well as between JICA and the International Co-operation
Department of the Research and Training Institute of the Ministry of Justice. The Ministry of
Education, although being a key player in all projects involving legal education, often is notincluded when the Ministry of Foreign Affairs, JICA and others meet in order to discuss theirco-operation in international assistance. On the whole, agents in Japan are less numerous andare led and guided at least on a symbolical level by the Ministry of Foreign Affairs.
Nevertheless, Japanese practitioners report of a quite fragmented practice because the various
institutions and within one institution the various departments sometimes find it difficult toestablish a true co-operation; often, there seems to be a spirit of competition that makes thevarious players guard their information instead of sharing is. Therefore, the need for a better
exchange of information and for an improved co-ordination and co-operation is felt andvoiced in Japan as well.
Towards the international level, JICA holds contact with the World Bank and similarorganisations that finance assistance projects. Through these channels, Japan knows about theactivities financed or otherwise tutored by the given international organisation in the target
country of a Japanese assistance programme. These requests are usually started at an earlystage, before the agreement with the target country is concluded. This permits a certain coordination but only carries as far as the requested international organisations possess
information on programmes, i.e. in practice as far as the requested organisation finances oroversees programmes in the given recipient countries. These requests will not help discoverprogrammes of foreign countries or other international organisations in the target country. The
solution would again be a certain co-ordination by the recipient but Japanese agents61

experienced the same reluctance of recipient countries to undertake a co-ordinating role as
was described for Germany.
Inside Japan, there are no formal structures for an exchange of information or coordination of activities in the field of international legal co-operation. The agreement between
the relevant ministries on international legal co-operation, concluded in 2009, did notestablish a formal co-ordination body or procedure. It is expected that the Ministry of Foreign
Affairs, the Ministry of Justice, its Research and Training Institute and JICA have an
overview of their respective activities. However, none of these agents is involved in all detailsof all programmes and possesses all pertinent information. There is no institution that collects
and registers information on Japanese legal assistance programmes, nor are the agentsrequired to give this sort of information about their activities to some central data base.
Japanese experts active in international legal co-operation programmes state that a better flowof information is necessary but so far no initiative has been taken to create the infrastructurenecessary for such an exchange125.

7. Conclusion
A comparison between the German and the Japanese donor structures show many
parallels but also some major differences.

7.1. Parallels
The first and perhaps most important parallel is that the state takes a political interest
in international legal co-operation, especially with the formerly and present socialist countries
in the region, and assumes ultimate responsibility for this form of co-operation. Neither theGerman nor the Japanese state leaves these activities to the market and to private agents suchas major law firms or specialised assistance companies. Therefore, state institutions on theministerial level and their implementation agencies play an important role. Germany andJapan do not limit themselves to a mere assistance but are active in spreading knowledge of
their respective legal system in the recipient countries. Acquainting young lawyers with

125

JICA, Capacity Development (fn. 8), ix.

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German and Japanese law, it is hoped, will make them more open to German and Japanese
co-operation offers once they are in positions to decide about these questions.
Not only the basic political interest is similar in both countries. Both donors also sharesome basic problems. The most important ones are co-ordination and quality control. In thefield of co-ordination, both countries suffer from a lack of flow of information between thevarious agents. Even Japan with its more concentrated and centralised structures experiences
the need to better co-ordinate its activities and to improve the flow of information between theinstitutions and persons involved. So far, in both countries experts have developed informal
networks to fill this gap but an institutionalisation is necessary. Experts from both countries
feel that an efficient co-ordination requires activities by the recipient, but both sides havemade the experience that recipients are very unwilling to assume this role and that they preferto remain passive receivers of the assistance offered.
All quality control so far suffers from the basic deficit that there are no standards forlegal co-operation programmes. There is a vivid international discussion which includes
German and Japanese experts. However, this discussion so far has produced fashions but nouniversally accepted and reliable standards of conduct for donors and recipients. Therefore,
especially donors shape their activities, their procedures, goals, methods, techniques, contents
and exit strategies for a sustainable assistance success according to instinct, personal
experience and the results of a more or less formalised self-reflection within the donor
community. Publications and conferences as well as evaluation procedures are important
forms of self-reflection but can only carry as far as reliable experiences are formulated into
acceptable general standards.

7.2. Differences
In science, one can usually learn more from the differences than from the parallels.
This is true for the object of this paper as well. There are some quite remarkable differences
between the German and the Japanese systems of international legal co-operation.
The first difference is that Germany has extensive knowledge about the law and thelegal system and legal culture of the recipient countries as far as formerly socialist countries
are concerned. Several institutes inside and outside universities specialise in research on thelaw of Eastern Europe including the successor states of the Soviet Union. Although the63primary task of all these institutions is research and, if they are university institutes, teaching,
their experts are involved in international legal co-operation as well. They can help shape
German assistance programmes to the needs of the recipient country and the German advisers
understand the law and the legal thinking of the recipient lawyers. In Japan, such an
institutionalisation and thus professionalization of the research on the law of recipient
countries does not exist. Deeper knowledge on the legal situation in the recipient countries
often is acquired only in the course of the project, and there are so far few institutionalised
ways to make this knowledge available to others.
The second difference concerns the state as donor. Japan is for the time being acentralised state with one set of institutions, whereas Germany is a federal state with twolevels of statehood. Both levels are active in the field of legal co-operation especially with theneighbouring countries in the East. For Germany, this means that the peculiarities offederalism need to be explained to recipients unfamiliar with this doubling of statehood levels,
but also that the need for co-ordination among domestic agents is stronger and more acutethan in a centralised system. For constitutional reasons, all solutions need to be voluntary. On
the other hand, federalism allows Germany to offer more diverse forms of international legal
co-operation. The different governments on the federal level and in the 16 Länder entertain
different opinions on who should be given assistance to what extent, in which fields and withwhich methods and goals. This leads to a wide diversity in the outlook and consequently inthe offers that are made.
The third difference is a stronger coherence between the Japanese agents and a distinct
dichotomy between the German agents. In Germany, one can identify two different sets ofagents with a different philosophy or at least a different starting point in their respective
philosophies. The Federal Ministry of Economic Co-operation and its implementing agency
GTZ have a development aid background and see legal assistance as one form of development
aid, a technical question embedded in a more global development strategy that encompasses
other parts of the recipient system as well. For them, “writing a law is not different from
digging a well”. On the other hand, the Federal Ministry of Justice and its implementing
agency IRZ concentrate on law as the object of co-operation and stress the uniqueness of theassistance required in the field of law; for them, “writing a law is different from digging awell”. This is especially true for the formerly socialist states that did not and do not need somuch development aid in the classical sense but much rather assistance in a radical political,

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societal and economic change and in adapting their legal systems accordingly. In practice,these opposite starting points do not cause insurmountable differences, but a distinct
competition between the Ministry of Justice and IRZ on the one side and the Ministry of
Economic Co-operation and the GTZ on the other can be stated.
In Japan, the agents are more intertwined. First, the preponderance of the Ministry ofForeign Affairs and JICA is not questioned, at least not formally. They represent a philosophy
comparable to that of the German Ministry of Economic Co-operation and the GTZ, perhaps
with a somewhat stronger stress on investor interests than in Germany. The Ministry ofJustice and its International Co-operation Department play a role which, on a formal level, isclearly secondary to the Ministry of Foreign Affairs and JICA. It is true that the lawyers of
Ministry of Justice and the International Co-operation Department with their specificprofessional background sometimes have an outlook on international legal co-operation that issomewhat different from JICA’s, and it is also true that this may result in a feeling ofcompetition. Nevertheless, a competition as in Germany has not evolved within the Japanese
government apparatus. Therefore, the Japanese legal co-operation policy is more coherent andmore uniform than the German policy – with all the advantages and disadvantages that a lackof competition causes.
The fourth and last difference concerns the international framework. Japan stands
alone whereas German co-operation activities are strongly embedded in EU programmes. The
EU takes a special interest in membership candidates (after the accessions in 2004 and 2007,
this means mainly the Western Balkans) and in the regions adjacent to the EU: Eastern
Europe (Russia, Ukraine, and former Soviet Union) and the Southern Mediterranean, i.e. thetarget regions of the European Neighbourhood Policy. Numerous EU programmes financeassistance to and co-operation with these regions. In the field of law, membership candidates
will naturally orientate towards the EU rather than individual member states because an EU
compatible legal system is one of the requirements for accession. Therefore European law ismore attractive as an object of advice than the members’ national law is. Germany is the mostactive member state in the execution of European programmes with Eastern Europe andsomewhat less active in regard to the Mediterranean. The strong presence of European
programmes is a chance for Germany because they allow for more money, but they also
require from Germany – both from the Federation and the Länder – a certain harmonisation
with EU policies, programmes and initiatives. Germany cannot formulate her national interest

65contrary to what the European Union has formulated in any given field of politics, including
legal co-operation with and assistance to third parties.
Japan, on the other hand, is fully sovereign and can and does shape assistanceinitiatives and expenditures according to the autonomously defined Japanese national interest.
On the other hand, Japan lacks the rich funds a supranational organisation can provide, and it
lacks the attractiveness of a larger community and the alluring power of an accession
perspective that the European Union can offer.

7.3. Conclusion
Japan and Germany possess donor structures for the co-operation with third party
countries that are in part parallel and in part different from each other. However, thedifferences are not so strong that co-operation is impossible. Structures on both sides are wellequipped to carry out a closer donor-side co-operation.

66

Herbert Küpper
Herbert Küpper studied law at the University of
Cologne and at King'sCollege London and underwent
practical legal training in Cologne and Budapest. He
obtained his Dr. jur. at the University of Cologne in 1997
and habilitated in Cologne, obtaining a venia forConstitutionalandAdministrative
Law,
PublicInternational Law and East European Law in 2002. Since
2003, he has been Senior Research Fellow for Hungarianand Kosovo law at the Institute for East European Law
Munich; in addition, he was elected Managing Director ofthis Institute in 2004. Since 2007, he has also been
Professor for Comparative Law at the Andrássy Gyula
German-Speaking University Budapest. He teaches
regularly East European Law and Comparative Public Law
at the University of Munich, the University of Vienna andvarious Hungarian universities. From October to December
2010, he was invited to the Centre for Asian Legal
Exchange (CALE) as a Visiting Professor and conducted
the research project "Structures of Japanese and German
International Legal Co-operation with Formerly Socialist
Countries Compared".

CALE Discussion Paper No.5
Structures of Japanese and German International Legal Co-operation With
Formerly Socialist Countries Compared
AuthorProf. Dr. Herbert Küpper

Published byCenter for Asian Legal Exchange (CALE)
Nagoya University464-8601 Furo-cho, Chikusa-ku, Nagoya, JAPAN
Tel: +81 (0)52-789-2325
Fax: +81 (0)52-789-4902
http://cale.nomolog.nagoya-u.ac.jp/ja/

Issue date

31 March, 2011

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C A L E D i s c u s s i o n P a p e r No.5 (March, 2011)
Nagoya University
C e n t e r f o r A s i a n L egal Exchange