Trade and Commercial Law Assessment - Honduras - Economic ...

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TRADE AND COMMERCIAL LAW ASSESSMENT DECEMBER 2004HONDURASarea of the world in which they are to be applied; in the case of the TCLA, the CLIRmethodology was adopted to better fit the Central American legal context, as opposed to that ofEastern Europe, for example, where the methodology was originally applied.In addition, new areas of law continue to be added to the methodology. Along with the firstapplication of TradeStream, TCLA saw the further development and application of the newestCLIR section, Financial Crimes, which focuses primarily on those issues surrounding terroristfinancing and money laundering, and have become more relevant in the wake of September 11,2001.2. Scope of the MethodologyThe diagnostic assessment was designed to help USAID missions, the countries themselves, andother donors, achieve the following objectives:♦♦♦To provide a factual basis for characterizing the degree of development and the status oftrade commercial law reforms in a country;To provide a methodologically consistent foundation for identifying and describing theroot causes of the "implementation/enforcement" gap among the CAFTA countries; andTo provide analytical and planning tools and metrics that will help USAID, the countriesthemselves, as well as other donors to design new approaches to sustainable, costeffectiveinterventions and reform programs.While the subject matter areas have varied from country to country, for the purposes the TCLA,"commercial law" and CLIR is defined to include the following substantive legal areas:♦♦♦♦♦♦♦Bankruptcy. Mechanisms intended to facilitate orderly market exit, liquidation ofoutstanding financial claims on assets, and rehabilitation of insolvent debtorsCollateral. Laws, procedures, and institutions designed to facilitate commerce bypromoting transparency, predictability, and simplicity in creating, identifying, andextinguishing security interests in assetsCommercial Dispute Resolution. Laws, procedures, and institutions relating to thesettlement of commercial disputes, whether through courts or alternative disputeresolution mechanisms, and the enforcement of judgments and decreesCompany Law. Legal regimes for market entry and operation that define norms fororganization of formal commercial activities conducted by two or more individualsCompetition. Rules, policies, and supporting institutions intended to help promote andprotect open, fair, and economically efficient competition in the market, and for themarketContract. The legal regime and institutional framework for the creation, interpretation,and enforcement of commercial obligations between one or more parties.Financial Crimes. The legal regime, institutional infrastructure, and methods ofinternational cooperation employed to prevent the financing of terrorist activities andlaundering of criminal assets.I-3
TRADE AND COMMERCIAL LAW ASSESSMENT DECEMBER 2004HONDURAS♦♦Real Property. The laws, procedures, and institutions responsible for establishing,maintaining, and preserving rights in real property, including land, buildings, easements,liens, and other interests in real propertyInternational Trade. The laws, procedures, and institutions governing cross-border saleof goods and services.With respect to the TradeStream diagnostic, the areas of inquiry are as follows:♦♦♦Flows of Goods and Services. Analyzes a nation’s ability to move goods and servicessmoothly through ports of entry and throughout the country.Flows of Money and Flows of People. Similar to Goods and Services, these two sectionslook at a nation’s ability to facilitate the entry and exit of financing and short and longterm business persons, respectively.Supporting Infrastructure. Assesses the capacities of a country’s physical infrastructurerelevant to trade, including sea- and airports, roads, railways, communications, and postalservices.Within each of these substantive areas, four dimensions of CLIR were examined as a conceptualframework for comparison. These include the following:♦♦♦♦Framework Laws. Basic legal documents that define and regulate the substantive rights,duties, and obligations of affected parties and provide the organizational mandate forimplementing institutions (e.g., Law on Bankruptcy, Law on Collateral, etc.)Implementing Institutions. Governmental, quasi-governmental, or private institutions inwhich primary legal mandate to implement, administer, interpret, or enforce frameworklaws is vested (e.g., bankruptcy court, collateral registry)Supporting Institutions. Governmental, quasi-governmental, or private institutions thateither support or facilitate the implementation, administration, interpretation, orenforcement of framework laws (e.g., bankruptcy trustees, notaries)Social Dynamic/Market for reform. The interplay of stakeholder interests within agiven society, jurisdiction, or group that, in aggregate, exert an influence over thesubstance, pace, or direction of commercial law reform.B. THE METHODOLOGY OF ASSESSMENT: A 360° REVIEWThe methodology employed in examining Honduras’s CLIR and trade environment provides acomprehensive but flexible framework for analyzing a complex, dynamic developmentchallenge. Taking data from a broad spectrum of stakeholders, the Assessment builds a 360°picture of the challenge, drawn from the following areas:♦♦Legal Framework. The Assessment first examines the laws and regulations thatHonduras has in place that serve as the structural basis for its achievement of marketbaseddevelopment. Often this review discovered opportunities to make relatively smallchanges that could produce significant openings for business development and expansion.Implementing Institutions. Next, the Assessment examines the administrative bodieswith primary responsibility for implementing and enforcing the legal framework andI-4
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