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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.
Sources:
(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
Dispute Resolution Processes
The different types of dispute resolution available in Cambodia (e.g. litigation and arbitration) with a short description of each type of dispute resolution:
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 (11). 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 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 (12). 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 Awardsin 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(13). ICSID provides facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States.
Source:
(11) Carmen Maria Lopez Vasquez, Pre-Trial Dispute Resolution Process, 20 March, 1996, The Cambodian Development Research Institute (CDRI), p.9.
(12) 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
(13) The World Bank Group, http://www.worldbank.org/icsid/constate/c-states-en.html
Doing Business in Cambodia
For all relevant information, please refer to the website of the Council for Development of Cambodia (CDC) at: www.cambodiainvestment.gov.kh/
International Law in Cambodia
According to a 2007 decision of the Constitutional Council, international law is considered a source of Cambodian law. All international treaties and conventions can become Cambodian law after a vote of approval by the National Assembly and the Senate and signature and ratification by the King. Based on this text, one can argue that Cambodia adopts a dualist approach because all international treaties and conventions require approval from the Cambodian Parliament. However, Article 31 of the Constitution states the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights. Based on this text, it seems that Cambodia adopts a monist approach because the Constitution recognizes all these international instruments.
Links to Relevant Websites
Cambodian Laws and Regulations can be found through some Government Ministries and Other Institution. They can also be found the Cambodian Law in Khmer in the Supreme Court’s website: www.supremecourt.gov.kh and other state institutions.
Court Procedure and Court Process
Court Procedures are governed by a Code of Civil Procedures for civil cases and Code of Criminal Procedures for criminal cases.
Court Processes commence at the Court of First Instance located in each capital and province, then Appeal Court and after that the Supreme Court. Except for cases which fall under the Law on Political Parties, the Supreme Court functions as a Court of First Instance and Final Court with no appeal or revision is allowed.
Sources of Laws in Cambodia
This section examines the Sources of Law in Cambodia. The word “sources” in this context mean origins of legal rules from relevant authorities in Cambodia and other sources recognized by laws in force, whereas the word “Law” in Cambodian context can mean domestic law and international law in accordance with the decision of the Constitutional Council (6). In accordance with the Cambodian laws and regulations as well as the current practice, the Sources of Law in Cambodia can be classified into primary sources which mean all legal instruments of the competent authorities of the State (7). Article 91 (new) of the Constitution states: The members of the Senate, the members of the National Assembly, and the Prime Minister have the right to initiate legislation. The deputies shall have the right to propose any amendments to the laws, but the proposals shall be unacceptable if they aim at reducing public income or increasing the burden on the people.
Sources of Law in Cambodia are also derived from Secondary sources which mean customs, traditions, consciences and equity, judicial decisions, arbitral awards, and doctrines. In civil cases, when the law does not state explicitly or when there is a gap which the law does not stipulate provisions concerning any case, the adjudicating Courts can proceed to hearings by basing on customs, traditions, conscience and equity – see Law on Court Organization (1993), Art.4. However, this provision no longer exists under the Law on Court Organization (2014) promulgated by Royal Kram No.NS/RKM/0714/015 dated July 16, 2014. Article 91 of the Law on Court Organization does not abrogate the Law on Court Organization (1993), it is just states that any provisions of the said law which are contrary to the current law is null and void. In the current practice, hardly any Cambodian Court judgments refer to precedents except the new hybrid Court, the Extraordinary Chamber within the Court of Cambodia (for detailsabout the ECCC see http://www.eccc.gov.kh). However precedents on arbitral awards are well developed by the Arbitration Council, a quasi tribunal body that has jurisdiction over collective labor disputes – see Arbitration Council at http://www.arbitrationcouncil.org/en/ac-decisions/arbitral-decisions. Whereas for legal doctrines on whether they are part of Cambodian laws and what they are, requires a thorough study in order to determine whether it is Cambodian or if it originates from other jurisdictions.
Legal scholars who study Cambodian laws would identify the following legal rules deriving from competent authorities in Cambodian as primary sources of law:
The Constitution is the supreme law of the Kingdom of Cambodia. All laws and decisions made by state institution must be in strict conformity with the Constitution – see Constitution, Art 152-new-2 (1993 as amended in 1999 & 2014).
A law is adopted by the National Assembly and the Senate, and promulgated by the King or the acting Head of State – see Constitution, Art 28-new (1993 as amended in 1994 and 1999).
A Royal decree is an executive regulation proposed by the Head of the Government or other head of state institution as permitted by law and signed by the King or the acting Head of State – see Constitution, Art 28-new (1993 as amended in 1994 and 1999).
A sub-decree is an executive regulation and usually prepared by relevant ministries, adopted by the Council of Ministers and signed by the Prime Minister – see Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994).
A proclamation is an executive regulation at the ministerial levels. It is prepared by the relevant ministries and signed by the relevant Minister(s) – see Law on the Organization and Functioning of the Council of Ministers, Art 29 (1994).
Decision is an executive regulation made by the Prime Minister, and relevant ministers – see Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994), See also Sub-decrees on Organizations and Functioning of Ministries. Decision is also stated in Article 150 of the Constitution. However, decision is not defined by law. In practice, there are different types of decisions, such as decision made by the Constitution Council, decision made by the Prime Minister, and decision made by relevant ministers and so on. Decision of the Constitutional Council is considered a final and binding decision. Therefore, it has supremacy that means all laws and regulations must strictly conform to the decision of the Constitutional Council.
A circular is an administrative instruction which is used to clarify works and affairs of the ministries and it is signed by the Prime Minister and relevant ministers – Law on the Organization and Functioning of the Council of Ministers, Art 13, Art.29 (1994).
Bylaw is a legal rule approved by the Councils of Sub-National Levels. The term ‘ Council of Sub-National Levels” in this text mean the Capital Council, Provincial Councils, Municipal Councils, Districts Councils, Khans Councils, Sangkat Councils and Commune Councils. These Councils have a legislative power to issue bylaws (Deikas) – see The Law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and Law on Administrative Management of the Capital, Provinces, Municipalities, Districts, and Khans, Art 32 and Art 53- Art 61 (2008).
According to thedecision of the Constitutional Council (8), international law is considered a source of Cambodian Law. All international treaties and conventions can become Cambodian law unless it is signed and ratified by the King after a vote of approval by the National Assembly and the Senate – see Constitution, Art 26-new (1993). Based on this text, one can argue that Cambodia adopts a dualist approach (9) because all international treaties and conventions required approval from the Cambodian Parliament. However, Article 31 of the Constitution states that the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights – see Constitution, Art 31 (1993). Based on this text, it seems that Cambodia adopts a monist approach (10) because the Constitution recognizes all these international instruments.
Sources:
(6) The Constitutional Council, CASE Nº131/003/2007 Of June 26, 2007, Decision Nº 092/003/2007 CC.D Of July 10, 2007
(7) See Constitution, Article 91 (New) (1993 as amended in 1999), and Law on the Organization and Functioning of the Council of Ministers, Art 13, Art 28, Art.29 (1994), The Law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and Law on Administrative Management of the Capital, Provinces, Municipalities, Districts, and Khans, Art 32 and Art 53- Art 61 (2008). Constitution, Article 91 (New) (1993 as amended in 1999), and Law on the Organization and Functioning of the Council of Ministers, art 13, Art 28, Art.29 (1994), The Law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and Law on Administrative Management of the Capital, Provinces, Municipalities, Districts, and Khans, Art 32 and Art 53- Art 61 (2008).
(8) The Constitutional Council, CASE Nº131/003/2007 Of June 26, 2007, Decision Nº 092/003/2007 CC.D Of July 10, 2007
(9) Rebecca M.M. Wallace, M.A., LL.B., Ph.D. International Law, London. Sweet & Maxwell.200, p.36. According to the book, if a State is dualistic, international law will only become part of its municipal law if it has been expressly adopted as such by a way of legislative act.
(10) Rebecca M.M. Wallace, M.A., LL.B., Ph.D. International Law, London. Sweet & Maxwell.200, p.36