VZCZCXYZ0005
RR RUEHWEB

DE RUEHAH #0285/01 0620357
ZNR UUUUU ZZH
R 030357Z MAR 09
FM AMEMBASSY ASHGABAT
TO RUEHC/SECSTATE WASHDC 2392
RUEHNT/AMEMBASSY TASHKENT 0008

UNCLAS ASHGABAT 000285 
 
SENSITIVE 
 
SIPDIS 
 
DEPT FOR SCA/CEN CGuest, SCA/EX/PMO, JSalpini, L/BA - TMeyer 
DEPT ALSO FOR OBO/PRE/BAS KTroutman and OBO/OM/AM/SCA MUnglesbee 
AMEMBASSY TASHKENT FOR FM 
 
E.O. 12958: N/A 
TAGS: AMGT ABLD TX
SUBJECT:  Ashgabat: Request to Remove Article 14 from Model Lease 
 
Ref:  Emails Meyer/Bayat 02/26/2009-03/01/2009 
 
¶1. (U) Sensitive but unclassified.  Not for public internet. 
 
¶2. (U) ACTION REQUEST:  This is a time sensitive action request for 
permission to remove Article 14, Disputes Resolution, from Post's 
residential leases in order to continue normal leasing operations. 
See para. 8. 
 
¶3. (SBU) SUMMARY:  A recent host Government decree requires Post's 
residential landlords to register their leases with local government 
authorities and request permission to lease their apartments and 
houses.  The local authorities are compelling the exclusive use of a 
locally designed "model lease," to replace all existing leases, 
regardless of status or terms.  Post management has determined the 
local model lease to be detrimental to USG interests, which 
includes, among other things, a maximum lease term of one year. 
Through careful negotiation, Post believes it can get approval from 
the registering authorities to avoid the local model lease by 
submitting an amended version of the standard OBO lease for 
registration and approval.  Because of Turkmenistan's flawed and 
ineffective judicial system, Post believes the best way to protect 
USG leasing interests is to find a negotiated solution with those 
who control its ability to rent residential properties.  Local 
registration authorities have demonstrated a willingness to review 
the USG lease once Article 14 is removed and Post requests 
Department approval to amend its leases accordingly.  END SUMMARY. 
 
 
NEW DECREE REQUIRES NEW LEASES 
 
¶4. (U) A January 2009 decree from Turkmenistan's highest interagency 
body, the Council Of Ministers, requires all residential landlords 
to re-register their leases with local authorities and seek 
permission to lease their apartments and houses.  Embassy landlords 
who have tried to register the standard U.S. Government lease have 
been rejected and instructed to sign a new local model lease.  The 
new local model lease radically differs from the USG model, 
substantively altering or neglecting nearly every element of the OBO 
standard agreement.  Landlords who are unable to register their 
leases do not have permission to lease. 
 
NO RULE OF LAW MEANS NO LEGAL SOLUTION 
 
¶5. (SBU) Turkmenistan remains an authoritarian state with no rule of 
law.  The enforcement or non-enforcement of contracts and laws can 
be entirely arbitrary, depending on the will of those in 
decision-making positions.  The USG has no recourse to a fully 
implemented body of law, nor to a properly functioning legal system. 
 Instead, on the ground reality is that the legal system, such as it 
is, is enforced by individuals who lack judicial independence.  As a 
result, the Embassy is unable to pursue a legal argument for the 
sanctity of our leases in local courts. 
 
¶6. (SBU) Local authorities have wide discretion on how to apply 
vague and contradictory laws.  The distinction between what is legal 
or illegal often depends solely on what is in fact allowed or 
authorized at the implementing local levels.  In essence, a local 
authority can have the power to determine legality based on whether 
or not it stamps the relevant paperwork.  This is precisely the 
situation in which Post finds itself with regard to lease 
registrations.  The President's top advisors have decreed that all 
leases should be uniform, so all leases will be uniform.  How such a 
policy is implemented, what effect the changes might have, or what 
the rights of the parties are not considerations. 
 
A NEGOTIATED SOLLUTION 
 
¶7. (U) Because of the status of the local judicial system, Post has 
worked to find a negotiated solution with the local authorities 
responsible forregistration and permission to lease.  Careful 
negotiations over several weeks have finally resulted in tentative 
approval to modify the USG's existing leases, instead of replacing 
them with the new local model lease.  The local registering 
authorities have requested the Embassy to make two small changes and 
remove Article 14, the "Disputes Resolution" clause.  The local 
registration authorities have, on more than one occasion, asserted 
that Article 14 is not locally applicable.  Post believes that given 
the absence of a functioning judiciary, there is virtually no chance 
that a landlord would engage the Embassy according to the terms of 
the Contracts Disputes Resolution, in a U.S. or Turkmenistan court. 
 
 
¶8. (U) ACTION REQUESTED:  Post believes finding a negotiated 
solution with those who control its ability to rent residential 
properties is the best possible resolution and kindly requests that 
the Department expeditiously authorize a waiver for the removal of 
Article 14.  Once amended, Post will submit one lease for 
registration.  Should this negotiated method prove successful, Post 
will amend its other leases, as they come up for registration. 
 
 
¶9. (SBU) COMMENT:  While the new decree makes the landlord 
exclusively the subject of the new law, the potential effect is 
primarily on the Embassy.  Landlords who cannot register their 
leases cannot continue to rent to the Embassy, threatening 
operations.  Other individuals and institutions, including several 
Western embassies, have simply opted to subject themselves to the 
newly proscribed lease.  Post hopes to avoid such a fate, as the 
terms and conditions of the local model lease sharply alter the 
balance of rights and responsibilities in favor of the landlord and 
include items such as a maximum lease term of one year.  At the 
moment, Post's landlords are under extreme pressure to register. 
One landlord has already sent a request for termination because he 
cannot get permission to lease using the existing Embassy lease.  A 
speedy resolution to this issue is essential, because defiance of 
Turkmen authorities, for any reason, is dangerous for local 
nationals.  END COMMENT. 
 
¶10. (U) For further information please contact Management Officer 
Jonathan Bayat (bayatj@state.gov). 
 
MILES