Category: Kosovo

  • The Buzz in Kosovo: Interview with Sabina Lalaj of Deloitte Legal

    According to Sabina Lalaj, the Local Legal Partner of Deloitte Legal in Albania and Kosovo, the current situation in Kosovo revolves around the unfortunate combination of the still-growing Covid-19 pandemic and the political crisis arising from the recent dismissal of Interior Minister Agim Veliu — a member of the Democratic League of Kosovo party, the junior partner leader of the country’s fragile governing coalition — by Prime Minister Albin Kurti, a member of the senior Vetevendosje (“Self-Determination”) party. The combination of the two crises has put the country’s growth on hold, and significantly limited any chance of effective government.

    Although elections were held last October, Lalaj reports, the governing coalition was only established at the beginning of this year. Then, on March 18, Kurti dismissed Agim Veliu, citing as the reason Veliu’s support for declaring a state of emergency to handle the coronavirus pandemic, which would had given power to the Kosovo Security Council. The Democratic League of Kosovo filed a no-confidence vote motion, apparently in retaliation for Kurti’s move, and on March 25 the Kosovo Assembly voted in favor of the motion, making Kosovo’s the first government to be voted out of power due to disagreements over how to handle the coronavirus pandemic. The Kurti cabinet continues as a caretaker government.

    “We were hoping they would wait before that vote,” Lalaj says, her disappointment evident, “not only because of the situation with the pandemic, but also because of the fact that this government was showing signs of a new mentality for governing the country, committed to developing the country with honest work and on a meritocratic basis, not based on personal interest.” She sighs. “So this vote by the Parliament was a severe blow to all the optimists.”

    According to her, “there are now two scenarios on the table. The minority party of the current coalition is trying to build a new coalition with the opposition parties and eventually form a new government. Meanwhile, Kurti — who at the moment has no real power — is pushing to have new elections as soon as the pandemic ends.”

    “I really believe that the Kosovo voters who cast their vote for the new generation of politicians and the long-awaited new mentality feel betrayed,” Lalaj says, “because they voted for Mr. Kurti’s government, so the general public feels a little bit used.” According to her, “for these voters — especially for the young generation — a new election would be the best solution, because there would be no need for a forced coalition, and this would be best for growth, liberalization, and for improving the overall situation in the country.” Still, she says, “the chances are 50/50 about which scenario will come to pass.”

    In the meantime, Lalaj reports, Kurti’s ability to put reform into effect is limited by his diminished status. The most significant recent steps have, of course, involved proposals to support businesses and employees affected by the pandemic. Rules affecting so-called “social distancing” have been put in effect as well, Lalaj reports, “”though even in this they had a dispute with the President, which went up to the Constitutional Court.” According to her, “in Kosovo such decisions must be made by an Act of Parliament, which is difficult now, so when the government took limited action to restrict public interaction, the President objected that it was not constitutional.” She sighs. “I agree he may have been technically right — but sometimes you need to act quickly, and it appears that the dispute is an excuse to create a controversy about the government.”

    It’s pointed out to her that combination of the pandemic and the political dysfunction in the country is unfortunate. “The timing is the worst,” she agrees, sadly.

    “Remember, we had no fully-functional government since last October’s elections, so we were in a sort of limbo,” she points out, noting that, nonetheless, before the pandemic struck things were going fairly well. “Kosovo has had some good developments in the banking sector — that’s an industry that’s been going well. There are a lot of new ideas and projects in the energy sector too, including, in real estate, land for renewable energy projects. The construction and real estate markets are going well — the country is developing, so there is a lot of commercial and residential construction happening. The new international airport in Pristina was a very nice addition to the city and there is significant potential for foreign direct investment.” So, she says, “it’s not that the economy was dying. There was positive movement.” Of course, not everything was rosy. “There was also some fear,” she says, “because with the new government coming into power, people were concerned that there would be new developments with concessions and PPPs, which are traditionally a source of corruption around Europe, so people were skeptical about how the new government would treat and evaluate such relationships, both existing and new.” Ultimately, she says, “Kosovo was not going to be immune to the effects of the regional economy, which had already shown signs of a slowdown, but things were still normal.”

    In conclusion, she’s asked if she is optimistic about Kosovo’s potential once the pandemic passes. “If things go in a positive direction,” she says, “and we have a government chosen through new and free elections, yes I’m optimistic. There is a lot of room for growth, in energy, construction, even services. The population is very educated and talented so even in information software and development.” In addition, she points out, “the administration overall is functional —ok, with some small problems — but they are responsive, you can build a relationship of communication with them.” She wraps it up succinctly. “I believe that Kosovo has all the opportunity to have very significant growth going forward depending on which political solutions they find.”

     

  • Dentons Advises Enlight Renewable Energy on EUR 115 Million Financing for Wind Farm in Kosovo

    Dentons Advises Enlight Renewable Energy on EUR 115 Million Financing for Wind Farm in Kosovo

    Dentons has advised Enlight Renewable Energy on the construction and EUR 115 million financing of the 105 MW Selac wind farm in Kosovo. The EBRD provided EUR 57 million of the total amount, with Erste Group Bank and NLB Bank providing the remaining EUR 58 million, and with coverage provided by the German export credit agency Euler Hermes. The lenders were reportedly advised by White & Case.

    Enlight is the majority owner of Sowi Kosovo, which is developing the wind farm project in the Mitrovica municipality of the country, alongside partners from Germany and Kosovo.

    According to Dentons, “the financing documentation was subject to laws in eight jurisdictions: Kosovo, Israel, Germany, the UK, US, Slovenia, Hungary, and Austria. This project will make an important contribution to Kosovo’s efforts to mitigate climate change. When complete, the Selac wind farm will reduce carbon dioxide emissions by 247,000 tons a year.”

    Dentons’ team included Partners Arkadiusz Krasnodebski and Mateusz Toczyski, Managing Counsel Agnieszka Kulinska, Counsel Agnieszka Lipska, and Associate Lukasz Blaszczak.

  • The Buzz in Kosovo: Interview with Artan Qerkini of Sejdiu & Qerkini Law

    The Buzz in Kosovo: Interview with Artan Qerkini of Sejdiu & Qerkini Law

    “Kosovo’s parliament has recently adopted a new law that mainly affects private companies,” reports Artan Qerkini, Founding Partner at Sejdiu & Qerkini Law, who notes that one of the new law’s provisions — a requirement that 40% of company board members be women — has already generated significant controversy.

    “The parliament adopted the law to improve the position of woman in Kosovar society,” says Qerkini, “but I believe that the government cannot force its ideas on private businesses. In the end, the president of the Republic of Kosovo will have to decide whether to pass the law or not, but for the moment he is reluctant to sign, for he also believes that the initiative violates the constitutional rights and sovereignty of private enterprises.” In any event, he says, even if the president signs the law, it will almost certainly be challenged at the Constitutional Court. “Law firms in Kosovo are also saying that the provision is not constitutional, and lately quite a few businesses have asked us to help them to challenge its provisions at the Constitutional Court.”

    Besides this initiative, the legal sector is being kept busy with recent changes in Kosovo’s Criminal Procedural Code, designed to harmonize Kosovo’s legislation with EU regulations. “The new Criminal Procedure Code tries to balance the rights of prosecutors and attorneys during the pre-trial procedure,” Qerkini says. “We also have a lot of work to do regarding of right of attorneys to have access to the prosecutor’s case files during the investigation stage.” Under the amended Code, prosecutors must present all evidence to the defendant based on which they could establish reasonable doubt in their request for pre-trial detention.

    Finally, Qerkini reports that the new Law on Bankruptcy in Kosovo, which was adopted earlier this year, “will definitely affect businesses in the future, for it intends to exclude businesses that are unable to pay debts for more than three months from the market.” 

     

  • The Buzz in Kosovo: Interview with Taulant Hodaj of Hodaj and Partners

    The Buzz in Kosovo: Interview with Taulant Hodaj of Hodaj and Partners

    “Kosovo has attractive legislation for new businesses,” says Taulant Hodaj, Managing Partner at Hodaj and Partners, “which ensures lots of flexibility for foreign investors to come and start operations in our market. But unfortunately, as in the rest of the Balkan region, also in Kosovo, when it comes to the application of these laws in the courts and other institutions, they don’t have a very effective implementation of the applicable laws.”

    Hodaj believes that Kosovo’s modern and “business-oriented” laws and regulations are very much in line with EU standards. “In Kosovo everyone, whether foreigner or local investor, can establish and start a company and obtain a business registration certificate within just a few days,” he says. “The labor market is very accessible; we have a cheap workplace, with lots of young people ready to work with very good command of foreign languages, in particular English and German.” In addition, he says, there is no Dividend Tax for corporations; there is only a flat tax of up to 10% on profit. “These factors create a favorable terrain for foreign investors to invest and operate in Kosovo.”

    Unfortunately, Hodaj reports, many challenges and difficulties remain, hindering real progress in the country. “Kosovo and the region has gone through many different legal systems in the last 20 years,” he says. “We had socialism/communism until the 90’s, when the legal perspectives and business approaches were completely different, then after 1999 we changed rapidly to Western compliance systems and Western laws, but the mentality of the people remained the same.” In his opinion,the continued existence of “old legal mentalities” makes it difficult for business and legal practitioners to take advantage of the new legislative framework.

    In addition, he says, “on the negative side, a new law on notary services is making the work of lawyers in Kosovo harder.” According to Hodaj, the new Notary Law came as the result of “heavy lobbying from notary groups, which have become very powerful and very profitable in a short period of time.” He elaborates: “We didn’t have notaries just until few years ago. Now, on the one hand, notaries can provide a large scale of services, and on the other hand, public authorities require almost every document to be certified or validated by them. They have become very strong, and now, in order to protect their own profession, they are lobbying the Minister of Justice, who proposed the law to the parliament.”

    In Hodaj’s opinion there is the little the country’s lawyers can do to fight back at the moment. “We can send submissions, and try to lobby in the parliament as they did, but it is hard to compete with the Ministry of Justice. If the Ministry is not on your side, the chances are weak.” Nonetheless, he reports that the Bar Association is trying to fight the difficulties that the new Notary Law has generated, but currently the issue remains in debate in parliament, so he is unsure whether the Bar’s efforts will succeed or not. 

    A new law of contested procedure is also negatively affecting the work of lawyers in Kosovo, Hodaj reports, as it allows all civil matters — including contested, non-contested, family, property, and inheritance proceedings — to be carried out by almost anyone who is 18 years old,  whether or not that person is a lawyer. “This obviously interferes with the work of legal practitioners,” he says. “Our profession is not well protected if anybody can provide legal services without any legal education,” he sighs.

    When asked what is keeping firms busy nowadays in Kosovo, Hodaj says, commercial law and criminal cases are the sources of most new law firm business at the moment. “We don’t see a lot of M&A transactions, because we are a relatively new country, with new regulations, thus we don’t have huge businesses. Most of the local lawyers are solo practitioners, who provide any kind of legal services: criminal law, commercial law, administrative law, etc. Our firm is also mostly busy with commercial law, M&A, legal due diligence, labour law.”

     

  • The Buzz in Kosovo: Interview with Kujtim Kervishi of Judex

    The Buzz in Kosovo: Interview with Kujtim Kervishi of Judex

    The primary Buzz in Kosovo at the moment, according to Kujtim Kervishi, Managing Partner at the Judex Law Firm in Pristina, relates to the increasing prospect of a new “vetting” of judges and prosecutors in the country.

    According to Kervishi, this vetting — the country’s second, he reports, following a previous process carried out from 2006 to 2011 — is necessary “due to the fact that the community, the institutions, and the legal community are not very happy with the lack of accountability of the judiciary in Kosovo in general.” He reports participating in the first such process ten years ago, “and now I’m feeling that this is necessary again, because it’s highly crucial for the future of Kosovo that the country strengthens the judiciary, and in particular builds a judiciary that’s accountable to the future process of Kosovo.”

    The Judex Law Firm Managing Partner says that “throughout the years the hiring of judges and prosecutors has involved a lot of people who, while not being formally or officially investigated, have been linked to a number of other serious corruption-related investigations.” In his opinion, “Kosovo needs to clear the judges and prosecutors who are connected to particular groups, as well as evaluate their accountability to ensure they are both respected and professional.” Indeed, he reports, a system review is necessary, as the country’s attempts to “clear the net” of incompetent or corrupt officials is patently not working. “We see every day that most of the cases in public are losing,” he says. “In around 80% of the cases involving high officials — cases related to corruption and abuse of public duty — the prosecutions have failed. In my mind there are only three possible explanations: (1) the prosecutors are making indictments without sufficient evidence; (2) or the court is unusually critical in deciding those cases on the merits … or (3) the courts are influenced by groups and the prosecutors are losing cases despite sufficient evidence.” He says, “this is obvious.”

    Kervishi isn’t naive about the results. “I’m not 100% sure that the vetting of judges and prosecutors will clean the entire net,” he says, “but I strongly believe that it will increase accountability and it will clear some of the structures that do not deserve a mandate in the judiciary, as well as easing the Kosovo process towards the European Union, and simply serving the interests of justice.” 

    And corruption isn’t the only problem, of course, according to Kervishi. “In the Kosovo judiciary, sometimes you win a case which you did not even imagine you could win, and sometimes you lose a case that was effectively a slam dunk.” He explains: “This is not because of the preparation of the parties involved. This is mostly because of the deciding force — a court that mostly lacks sufficient knowledge in the relevant area of law.” 

    “And the reason you got to court is that you have no other way of settling the dispute,” he sighs. “We still have the culture of sending cases to court, even though we know that there is a high degree of uncertainty, and there is also a great reason to pursue the case to the very end — which can last ten years.” According to Kervishi, “in Pristina, for instance, a case filed today may come to trial after three years. And it can easily last one year in trial. Then in the court of appeals we’ll wait another one to two years until the decision is issued. Thus,” he says, “in most civil cases, until you have a final binding court decision from the court of appeals, you may wait from five to seven years. And justice delayed is justice denied.”

    Not just delayed, of course. The consequences of this delay can alter the balance of risks of taking the case to court in the first place. “If we include the fees, and what we call the ‘penalty interest’ of 8%,” he says, “imagine how much the risk can increase if you wait for seven years!”

    Kervishi points to another problem with Kosovar courts as well. “In addition, we are still lacking experience in the civil and administrative courts. As a result, the caseload is increasing, even though we have a notary system and a private bailiff system in place. And mediation as well as arbitration, both highly effective. Nonetheless, even with all these ADR mechanisms, the backlog is still increasing. Something is wrong with the system.”

    “This society and community has been living and working with these courts,” Kervishi says, his frustration apparent. “But moving forward requires capacities which are capable of running and managing a court case quickly and with professionalism.” No formal decision has been made yet, Kervishi reports, as the need — and the methodology — is still under discussion. Still, Kervishi expects the process to involve “an international body of experts [who] will examine the professional capacity of the judges and prosecutors as well as their wealth, because in Kosovo there is a process of declaration for wealth for all judges and prosecutions, which remains available to the public at the anti-corruption agency.” And he says, politicians in the country are now speaking about it, so “it may happen very soon.” Kervishi says, unsurprisingly, “I personally strongly support it.”

    He’s asked why he thinks the second vetting, if it happens, will be more effective than the first. “A couple of details can be done better than the last time,” he says. “Last time happened very fast, and the commission that time was starting from scratch. I believe this time we have a lot of know-how, and I believe whoever is in charge of this can look at examples in Albania and elsewhere in the region to build a vetting process that will give us the results which society desperately needs for a fast and professional judiciary.”

  • Nove Partner Urmas Volens Consults on Kosovo Draft Law on Business Organizations

    Nove Partner Urmas Volens Consults on Kosovo Draft Law on Business Organizations

    Acting on a contract with the Policy and Management Consulting Group, Nove Partner Urmas Volens has reviewed the Draft Law on Business Organizations of the Republic of Kosovo, which was prepared by the Government of Kosovo through a working group led by the Kosovo Ministry of Trade and Industry (with support from USAID Partnerships for Development).

    The Policy and Management Consulting Group is, together with Chemonics International Inc., actively working with the Government of Kosovo to create a more business-enabling environment under the USAID Partnerships for Development program.

    The purpose of the Volens’ review was to evaluate the draft law’s general compliance with the April 1, 2016 Stabilization and Association Agreement between Kosovo and the EU (the SAA) and the EU Acquis, identify any improvements that can be made to further streamline requirements and processes within the broad EU framework, considering international best practices, and evaluate current and possible further improvements recommended by the World Bank’s Doing Business report for Starting a Business and Protecting Minority Investors.

    According to Nove, at the conclusion of Volens’ review an extensive report was produced for the United States Agency for International Development.

    “I was honored to participate in the project, which is so essential to the development of Kosovo and for its greater integration with the European Union,” said Volens, who is also an Associated Professor at the University of Tartu. “It was a highly interesting but complex project in which I could apply my experience from my earlier work in Estonian Ministry of Justice in developing Estonian corporate law. It is extremely important that countries like Estonia, which only recently have gone through a rapid and successful integration into the European Union, share their experiences and support to countries that are only at the beginning of this complex path. I am extremely grateful to USAID’s Kosovo team for support and assistance without which the project would not have been able to succeed. As the final draft Law on Business Organizations should unify the goals of EU approximation, as well as consolidate previous Doing Business gains and further improvement, the draft must follow the SAA, but also reflect or exceed best practice examples from EU member countries that are reported in the annual World Bank Doing Business report.”

    According to Nove, USAID Partnerships for Development (USAID PFD) is a 4 year and 8 months project to support Government of Kosovo (GoK) institutions at the central and local level to create a business-friendly, regionally competitive business environment that will attract foreign investment in Kosovo, while at the same time maintaining macro-economic stability. USAID PFD works closely with a wide range of GoK institutions and other stakeholders to achieve this objective by providing technical assistance for development of key policies and legislation that encourage private sector led economic growth in Kosovo. One of the most important laws in this area is the Law on Business Organizations, first adopted in 2008 and amended in 2011, which regulates business forms, business registration, corporate governance, and other relevant aspects.

  • Schoenherr Leads Z-Mobile to Victory in Kosovo’s Largest Commercial Arbitration to Date

    Schoenherr Leads Z-Mobile to Victory in Kosovo’s Largest Commercial Arbitration to Date

    Schoenherr has led Kosovar mobile operator Dardafon.net LLC (“Z-Mobile”) to victory in its dispute against state-owned Telecom Kosovo (“PTK”) in Kosovo’s largest commercial arbitration to date.

    An ICC Tribunal composed of Georg von Segesser (President), Franz Schwarz (Z-Mobile’s appointee), and Jernej Sekolec (PTK’s appointee), awarded Z-Mobile damages, lost profits, contractual penalties, arbitration costs, and interest in the amount of EUR 31.1 million for PTK’s breaches of a 2009 MVNO Support Agreement. Z-Mobile was further awarded specific performance under the Agreement, gaining full access to PTK’s infrastructural resources and up-to-date technologies such as 3G and 4G.

    The dispute arose under terms of the Agreement which were ambiguous on Z-Mobile’s access to new technologies and sharing of infrastructural resources. PTK had interpreted the terms to the effect that there was no obligation to provide to Z-Mobile any new technologies including 3G and 4G. The Tribunal examined the parties’ joint intent and their subsequent conduct, and concluded that PTK was and is, in fact, under the obligation to provide all new technologies and services to Z-Mobile.

    The team advising Z-Mobile consisted of Partner Christoph Lindinger, Counsel Leon Kopecky, and Associate Victoria Pernt.