Organization the “Young Barristers” agrees with the Ombudsman’s report of March 31st 2014 on “Conditions of Human Rights and Freedoms in Georgia”, but does not share evaluations of the “Khudonhess” case regarding issuance of permits and licenses by relevant authorities mentioned in the chapter of “Right of living in a healthy environment” of the report.
According to the statements of young lawyer – Mariam Neparidze, the evaluation, as if the contract between Georgian Government and the company constructing “Khudonhess” infringes Georgian legislation, is defected. The Ombudsman’s report mentions the contract according to which (28/04/2011, Article 4.12 (a) (d)), “in case if the Company applies for permits/licenses and has met relevant requirements under the Georgian legislation and permits/licenses are not issued by the state authorities within the timeframes given under Georgian legislation, GOG shall grant to the Company/Project Company a relevant time extension for fulfillment of its obligations under this Agreement.
According to evaluations of the “Young Barristers”, the mentioned provision concerns extension of time period considered for the fulfillment of contractual obligations, the Ombudsman’s report on the other hand has a different interpretation. Precisely, the report underlines as if a term of the contract infringes norms of the Administrative code (Article V, section 1; Article XII, section 2), which stipulates that the authority that issues a permit can make decision on issuance of permit as well as decisions on continuance of administrative proceedings and the refusal to permit. The Ombudsman believes that competence of the Government does not involve extension of time period for the investors in order to fulfill the contractual obligations. (see the report. Pg. 433-436).
According to evaluations of the “Young Barristers”, the given record may be evaluated as an unlawful attempt to bring an indictment against the Government, since the term of the “Khudonhess” contract brought to the report does not mean extension of timeframe needed to issue a permit, but indicates an extension of timeframe needed to fulfill obligations under the Agreement.
The organization believes, that inserting the mentioned term in the contract not only infringes the Georgian legislation, but also represents a further important component for protection of Company interests and definition of the contract condition.
The “Young Barristers” does not share other opinions of the report which state, that the contract of April 28 2011 does not regulate occasions in case the Company does not receive permits stated by the Georgian legislation. 6.1 article of the contract states, that The GOG shall have right to terminate the Agreement if the Company/the Project Company will not meet it’s time schedule outlined in Section 3.3. If the company does not receive the permit/license, automatically the time schedule stated in the contract will not be fulfill pursuant to 6.1 section of the contract. The 4.12 Section (d) of the contract serves to avoidance of 6.1 Section. The given term must be determined as a sustainable component of the contract, which has been negatively presented in the report of the Public Defender.
For your information: The “Young Barristers” has been studying judicial aspects of the “Khudonhess” project since January 2014. The organization will present a research and recommendations on the issue by the end of April. The “Young Barristers” cooperates with the Public Defender of Georgia.
