Social Justice Center considers that the results of selecting a private law firm to re-evaluate Namakhvani's Agreement at the Ministry of Justice ultimately confirms the unreliability of this government-initiated process, as the risks, that in our estimation were accompanied to the illegal and opaque selection through the simplified acquisition of a law firm, came true.

In particular, the local consultant of the selected international law firm, CMS Cameron McKenna Nabarro Olswang LLP, will be MKD, a law firm closely associated with the current First Deputy Minister of Justice, Tamar Tkeshelashvili, that does not provide a ground for trust in conducting an impartial and independent assessment. The assessment will be conducted in accordance with the standards of FIDIC (International Federation of Consulting Engineers), which implies the assessment of the standard of legal relations completely different from the Namakhvani Agreement and does not meet the initial need or purpose of the assessment.

Given the complete absence of trust towards this process, it is alarming that the Ministry of Justice spends GEL 224,000 to obtain questionable and incomprehensible content. Simultaneously, an agreement has already been reached in the Energy Community Mediation process, on the evaluation of the Namakhvani Agreement by the Energy Community’s resource (both financial and human), that is why hiring a law firm under such conditions for re-evaluation by the Ministry of Justice is an absolutely unacceptable fact for all civil society organizations involved in the mediation process and is a misuse of state funds.

Information on the completion of the selection process initiated by the Ministry of Justice to evaluate the Namakhvani Agreement and the identification of the winning company was released on 9 September. The Ministry of Justice selected CMS Cameron McKenna Nabarro Olswang LLP (CMS), an international law firm, to evaluate the Namakhvani agreement, however as it is revealed from official documents, local consultant for this law firm, that consults on the issues of Georgian legislation is Mgaloblishvili-Kipiani Dzidziguri ”(MKD). Unfortunately, in this particular case the impartiality of the mentioned company is questionable. We explain that the current First Deputy Minister of Justice of Georgia, Ms. Tamar Tkeshelashvili, has been a lawyer and partner of MKD for many years; More precisely, the Deputy Minister worked for the company since 2005, and from September 2020 (2019) was a partner of the company. We believe that the involvement of the law firm with which the First Deputy Minister of Justice has a fifteen-year professional relationship in the evaluation of the Namakhvani Agreement is extremely problematic and practically leaves no chance of even the slightest confidence in the process. For months, Namakhvani Agreement and its content have been the subject of heated public debate, and instead of ensuring the involvement of a credible and impartial party, the company that is closely affiliated with the deputy minister is involved in the process. This approves that the Ministry, which itself is an author of the critical report was expecting a harsh evaluation from an impartial and independent company. Therefore, in order to avoid another critical conclusion, it entrusted the assessment of the Agreement’s compliance with the Georgian legislation to a law firm close to the First Deputy Minister.

In addition, the Aagreement between the company and the Ministry states that the law firm will assess the compliance of the Namakhvani Agreement with the international best practice, in particular with regard to "FIDIC". First of all, it should be noted that it is unclear what is meant by the phrase "in relation to FIDIC" at all, or what specific standards may be considered in this context. Template contacts of FIDIC (International Federation of Consulting Engineers (FR)) (there are several types of contracts) that can be purchased and used by contracting parties are typically used in the construction of large infrastructure projects when the project is being procured. As it is known to the public, Namakhvani HPP project is a public-private partnership project, which means that the state will not purchase Design and Build services from Enka (in which case FIDIC contracts would be relevant), but "Enka” is a private partner that implements an investment project. In Georgia, FIDIC-type contracts are used in the procurement of construction services for large infrastructure projects (mainly road infrastructure) and it has not been used in either Namakhvani or any other energy project contract, and therefore it is absolutely unclear why it was considered relevant to assess Namakhvani Agreement in relation to FIDIC, and most importantly, how it is possible to compare two fundamentally different legal treaty agreements where even the parties are different; Moreover, there are other international standards that apply directly to public-private partnership project agreements and the application of which would be much more reasonable (e.g., World Bank Guidelines on PPP Project Contract Provisions). This ambiguity makes the content and the purpose of the assessment completely incomprehensible.

We would like to remind the public that the Social Justice Center considered the initiation of the selection process by the Ministry of Justice problematic from the very beginning; The company was selected in a simplified manner and without a competitive tender without the existence of relevant legal ground, thus grossly violating the requirements of Georgian legislation on public procurement. In addition, the closure and opacity of the process was problematic: the Ministry of Justice illegally concealed public information about the selection process, which is why the Social Justice Center also appealed to the court.

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