Overview of Cambodian Alternative Dispute Resolution System
The solution of conflict outside the judicial system, which is known as an Alternative Dispute Resolution (ADR) is not new in Cambodia. Cambodian people have long been solving their disputes outside the Court (12). In principle, and according to current practice, dispute resolution outside the Court in Cambodia is conducted based on the following methods:
Negotiation is the most common form of ADR in Cambodia that parties use to resolve disputes directly without assistance of a third party through compromise. Negotiation is allowed under Cambodian Law, for example, Article 20 of the above-mentioned Cambodian Investment Law when investment disputes happen.
Conciliation or mediation is part of Cambodian Culture and Legal system. Conciliation is traditionally conducted by the third party, namely a monk, an Achar (knowledgeable expert) or a (prominent) person the parties trust, and a King (13) and formally it is conducted by a public officer appointed by the Government and the Judge. In practice, a settlement of disputes through the conciliation is conducted in daily life and people never think of criminal or civil cases. If it is not severe enough harm their interests they prefer compromise instead of bringing cases to the authorities or the Courts. According to the Cambodian legal framework, conciliation is permitted and found in various laws such as Code of Civil Procedures for Civil Case – see Code of Civil Procedures, Art 97, Labor Law (Labor disputes) – see Labor Law, Art.300-301, and 303 (1997), Land Law and Regulations (Land disputes) see Su-decree on the Organization and Functioning of the Cadastral Commission, Art 7-11 (2002), and Royal Decree on the Establishment of the National Authority of Land Dispute Resolution, Art 3 and Article 15 (2006), Law on Management and Administration of Commune and Sangkat Council, Law on Management and Administration of Capital, Provinces, Khans, Municipalities and districts [local conflict] so on.
This section briefly explains the Labor Arbitration and Commercial Arbitration in Cambodia.
Labor Arbitration is regulated under Chapter 12 of Labor Law and Prakas of the Ministry in charge of Labor – see Cambodian Labor Law, Art 309 (1997), and Prakas 099 on Arbitration Council dated 21 April 2004. Cambodian labor arbitration body is known as the Arbitration Council is a tripartite system composed of arbitrators from three lists, the employer’s list, the employee’s list and the government’s list or neutral list. The Arbitration Council has handled 2684 cases from 2003- 2017 (July) according to the statistics recorded by the Secretariat of Arbitration Council. The Labor Arbitration is compulsory but the arbitral award in non-binding. The binding award can happen only when parties agree to choose binding or when there is no opposition of the arbitral award after eight days (14). The enforcement of binding arbitral award is made via the Compulsory Execution under the Code of Civil Procedures – see Code of Civil Procedures, Art 350(h), Art 351(2) and Art 353.
Commercial arbitration has been functioning and governed by the 2006 Law on Commercial Arbitration 2006. Commercial Arbitration is operated under the National Arbitration Center but few cases have been handled by the center since its creation. Commercial Arbitration is voluntary but the arbitral award is binding. The enforcement of the arbitral award is made at the Courts under Code of Civil Procedure, section on Compulsory Execution – see Code of Civil Procedures, Art 350(h), Art 351(2) and Art 353.
Cambodia ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1965 and later adopted the Law on the Recognition and Enforcement of Foreign Arbitral Awards in 2001 via the Royal Kram NS/RKM/0701/10 dated 23 July 2001. Therefore, foreign arbitral awards are enforceable under Cambodian Code of Civil Procedures – see Code of Civil Procedures, Art 353.
In addition, Cambodia ratified the Convention on the Settlement of Investment Disputes (ICSID) in 2001 via the Royal Kram NS/RKM/0601/08 dated 29 June 2001 (15). ICSID provides facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States.
(12) Carmen Maria Lopez Vasquez, Pre-Trial Dispute Resolution Process, 20 March, 1996, The Cambodian Development Research Institute (CDRI), p.9
(13) The Conciliation conducted by the King is called Preah Reach Savnakar (The Royal Hearing). The Preah Reach Savnakar was applied before 1970. It is an extra-judicial forum or method of reconciliation by the King where citizens can submit their civil disputes to him for settlement. The Royal Hearing was revived in 1994 and was conducted every ten days. From early April 1994 to the end of May 1994 there were 133 cases lodged for the Royal Hearing, but only 40 cases had been heard. Due to the King’s illness or for other unexplained reasons this method has been suspended. In the Royal Hearing method the King cannot make any decision. The Commission for Receiving Complaints for the Royal Hearing (CRCRH) is set up to receive complaints from various sources: (i) A complaint lodged directly with CRCRH by one or more parties whose dispute was settled by local authorities; (ii) A complaint forwarded by the National Assembly Commission or members; (iii) A complaint not processed by the Court; (iv) A case already settled by the Court; (v) A case finally settled by the Court but for which authorities failed to execute the judgment. After receiving a case the CRCRH sends investigators to the place where the dispute arose or settled to collect information. The investigation report must be forwarded to the King’s advisors for screening. During the Royal Hearing session the King hears a complete report read by a high ranking official, then he gives his opinion on the dispute for how the parties are to get along together without causing prejudice to either of the parties or to authorities concerned for consideration. His opinion is not binding.
(14) See KONG Phallack, Labor Arbitration Council in Cambodia: Law and Practice: Cambodian Comparative Law, Year Book (first Publication), 2009, pp 163-171 or visit www.arbitrationcouncil.org