Cambodian Legal System

7/25/2019 Cambodian Legal System

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The Cambodian Legal System

http://www.chbab.net/chbab-net-in-english/about-the-cambodian-legal-system-en

General Rules:

1. ALL LAWS must be in strict conformity with the Constitution.

2. NEW RULES must:

a. COMPLY with previous superior norms

b. MODIFY previous rules of the same level

c. REPEALS contrary inferior norms

Various Laws and Rules Governing the Kingdom of Cambodia:

Royal Decrees (Preah Reach Kret) are essentially used to organise the functioning of an institution, create a new public body or appoint officials,

ambassadors and judges. A Royal decree must conform to the Constitution.

Sub-Decrees (Anu-Kret) are used to clarify provisions within existing laws, set out the functions and duties of government bodies or appoint

government officials. It is the most common government decision. A Sub-decree must conform with the Constitution and the law to which it

refers.



Ministerial Orders or Proclamations (Prakas) are used to implement and clarify specific provisions within higher-level legislative documents,

and must be in conformity with the law and Sub-decree to which it refers.

Decisions (Sech Kdei Samrach) are usually issued by the Prime Minister or relevant minister(s), and are used for a temporary purpose (they

disappear once their goal is reached). The term “decision” is not defined by law. In practice, there are different types of decisions: a decision

made by the Constitutional Council, a decision made by the Prime Minister, a decision made by relevant minister(s) , etc.

When a "decision" is issued by the Constitutional Council, it is final and binding and has supremacy within the legal system, meaning that all

laws and regulations must strictly conform to it.

Circular (Sarachor) is used to clarify the work and affairs of ministries or a point of law and give instructions. It is signed by the Prime Minister

and relevant minister(s). A circular is not legally binding.

Local Regulations or By-laws (Deika) are legal rules issued by local Councils at the sub-national level, including the Capital Council, Provincial

Councils, Municipal Councils, Districts Councils, Khans Councils, Sangkat Councils and Commune Councils. They have force of law only within

the territorial authority of the local Council that has issued it, and cannot conflict with any other legal instrument at the national level.

Enactment of Cambodian Law:

Who can inititiate legislation?

1. the Senate

2. the National Assembly members

3. the Prime Minister

How are laws initiated?

1. by Drafting — laws initiated by the Government2. by Proposing — laws initiated by the National Assembly members or Senators



Enactment of Cambodian Law: The Law-making Process


Drafted Laws:

• Forwarded and reviewed by two councils — Council of Jurists and Council of Ministers• Recommendation by Supreme Council

• Modification of revised draft to ensure conformity with government policy.

Drafted and Proposed Laws:

• Forwarded to Permanent Committee of the National Assembly and relevant Assembly Commission for review.

• Examination and voting by National Assembly.

• Submission to Senate — examination and voting on ratification

• Positive Vote from Senate — submission for promulgation by the National Assembly

• Amendments by Senate, examination and second reading by the National Assembly for acceptance or rejection of the amendments.



Constitutionality:


Who interprets Cambodian Law?1. The Constitutional Council

2. The Courts

3. The Government

4. Secondary Sources of Law (in cases where the law is UNCLEAR or there is NO STIPULATION about a particular case)

a. Cambodian customs

b. Cambodian traditions

c. equity

d. conscience

What about International Law in the Cambodian Legal System?

1. The King signs and ratifies all treaties and conventions following the approval of the National Assembly and the Senate.

2. International law is DIRECTLY APPLICABLE in Cambodia and judges must consider international law in their decision-making process.

3. International Human Rights and all the treaties and conventions related to human rights, women’s rights and children’s rights shall be

recognised and respected as part of domestic law.

4. It is presumed that international treaties are below the Constitution and at the very least hold the same authority as domestic laws.



Sources:

http://unstats.un.org/unsd/vitalstatkb/Attachment409.aspx

–Family Code of the Philippines

*https://cambodianbusinesscorner.files.wordpress.com/2013/01/civil-codeen.pdf New Civil Code of Cambodia 2011

http://www.crrt-cambodia.org/wp-content/uploads/2011/01/Constitution-of-the-kingdom-of-Cambodia-EN.pdf

Article 78: Abrogation of Some Provisions of Law on Family and MarriageLaw on Family and Marriage shall become ineffective from the Date of Application, except the provisions of Article 76 and 77 and provisions

from Article 79 to 81 of that law which shall remain effective after the Date of Application until otherwise provided by other laws.

Family Provisions Similar to our Family Code

Article 1

Pursuant to the Articles 7 and 8 of the Constitution of State of Cambodia (SOC), the purpose of the Law on Marriage and Family is to regulate

and protect the marriage and family, to ensure equality of the spouses in marriage and family, to strengthen the responsibility of the

parents in raising up and taking care of their children, and to promote the moral and educational development of children to become

good citizen imbued with a sense of responsibility for the nation and society, and the love of work.

– Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects.

Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given

effect.

Article 30

A husband and wife have the duties to love, respect for, take care and help each other in order to promote prosperity as well as to build up one

family with cooperation and happiness.

*966. (Obligation of cohabitation, cooperation and mutual assistance)

The husband and wife shall cohabitate, cooperate and assist each other.

– Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Article 31

A husband and wife have the rights to freely choose a job and participate in political, cultural and social activities.

*967. (Freedom to choose occupation and to participate in social activities)

The husband and wife shall be free to choose their occupation and to participate independently in political, cultural and social activities.

– Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter mayobject only on valid, serious, and moral grounds.

Article 33

Joint properties are every properties which have been obtained or earned by the spouses or by any one of the spouses during their marital

union.

*973. (Common property)

https://cambodianbusinesscorner.files.wordpress.com/2013/01/civil-codeen.pdf

http://unstats.un.org/unsd/vitalstatkb/Attachment409.aspx



Common property means any and all property acquired during the marriage by one or both spouses, other than property described in items (b)

or (c) of Article 972(Separate property).

– Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and

income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon

dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between

them, unless otherwise agreed in the marriage settlements. (142a)

Article 34

The followings shall be considered as the sole property belonging to only one spouse:

1. any property which a spouse "possesses prior to the marriage",

2. any property which a spouse receives as a gift, an inheritance, or a legacy during their marriage union

*972. (Separate property)

The types of property listed below shall be treated as separate property belonging to one of the spouses alone:

b) Property acquired by a spouse during the marriage by gift, succession, or testamentary gift;

– Art. 109. The following shall be the exclusive property of each spouse:

(2) That which each acquires during the marriage by gratuitous title;

Article 36

Each spouse is allowed to use the joint properties in accordance with his or her needs. The spouses shall supervise the joint properties

together. Any spouse may demand another spouse to agree upon any necessary measures to take care of the joint properties or keep the joint

properties safe.

*974. (Management and use of property)

(1) Husband and wife shall have equal rights to use, enjoy the benefit from and manage the common property, and each of them shall have the

right to use, enjoy the benefit from and manage their own property.

(2) Husband and wife shall have the right to use the common property to the extent necessary for their daily life.

(3) Husband and wife shall jointly manage the common property. Either spouse may demand that the other spouse take any measures required

in order to secure, maintain and preserve the common property.

– Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement,

the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years

from the date of the contract implementing such decision.

Article 35

The followings shall be considered as the joint responsibilities of the spouses:

1. Expenses incurred for family supplies and expenses incurred for educational and development of the child's knowledge;

*971. (Allocation of expenses of marriage)

Husband and wife shall share the expenses of married life, taking into account their property, income and all other circumstances.



*975. (Joint liability for obligations)

Husband and wife shall be jointly liable for the following obligations:

a) Expenses for the maintenance of the cohabitation of the husband and the wife and expenses for the care of children such as educational and

medical expenses;

– Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be

paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency orabsence of said income or fruits, such obligations shall be satisfied from the separate properties.

– Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current

market value of their separate properties.

2. any debts and other obligations which both spouses have agreed together during their union or any debts or obligations either one of the

spouses has agreed to during the union, with the consent by another spouse,

– Art. 121. The conjugal partnership shall be liable for:

(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnershipof gains, or by both spouses or by one of them with the consent of the other;

3. the maintenance and supervision of the joint properties.

*975. (Joint liability for obligations)

c) Expenses for the management and maintenance of the common property.

– Art. 121. The conjugal partnership shall be liable for:

(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;

Children’s Support

Article 74

The divorcing father or mother must support, take care of, bring up and provide their children money for the children's education and

schooling as much as they can. The amount of child support shall be determined according to an agreement between the divorcing spouses. In

a case where there is no agreement between the spouses the People's Court shall determine according to abilities of each spouse. The child

support shall be given to the children until they become major.

*1043. (Education of the child)

The parental power holder shall have the right and obligation to educate the child.

– Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the

Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give

paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as

provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent.

– Art. 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and

transportation, in keeping with the financial capacity of the family.



– Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or

increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

Husband and Wife

Article 23

Where any one of the spouses claims that he or she has been forced to marry, such marriage shall be void. The time of complaint annulling

the marriage shall lapse if such complaint is not lodged within 6 months counting from the day she or he has been forced.

*958. (Nullity of marriage)

A marriage shall be treated as void only in the following cases:

a) Where there is no intention to marry common to the parties on account of mistake as to the identity of the other party, coercion or other

cause;

*963. (Annulment of marriage based on fraud or duress)(1) A person who has been induced by fraud or duress to effect a marriage may apply to the court for annulment of such marriage.

(2) The right of annulment described in paragraph (1) shall be extinguished if 3 months have elapsed since the party discovered the fraud or

became free of the duress, or if the party has ratified the marriage.

– Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased,

such party thereafter freely cohabited with the other as husband and wife;

Article 10In a case where any one of the spouses has disappeared for more than one year counting from the day of disappearance, without the

knowledge of the other spouse or without the knowledge of any person, causing uncertainty as to whether he/she is dead or alive or

has remarried, a judgment adjudicating that he/she has disappeared can be filed after 15 days thereof.

No one may be allowed then to file a complaint for opposition of the new marriage even though the disappeared person reappears.

*41. (Requirements for declaration of disappearance)

(1) If it is unknown for five years whether an absentee is alive or dead, the court may, upon the petition of his spouse, heir, legatee, a

designated insurance beneficiary, a parental power holder, guardian, father, mother or any other person who has an important legal interest in

the declaration of d isappearance, make a judicial declaration of disappearance.

(2) The rule described in paragraph (1) shall apply where the fate of a person located in a war zone or aboard a foundered vessel, or who

encountered any other peril that might have been the cause of death, has been unknown for one year after the cessation of the war, the

foundering of the vessel or the termination of the peril.

*44. (Handling of absentee's return)



(1) If it is proven that the absentee is alive, or died at a time different from that set forth in paragraph (1) of Article 43(Effect of declaration of

disappearance), the court shall, upon the petition of the absentee or any interested person, revoke the judicial declaration of

disappearance.

(4) In the event that a declaration of disappearance is revoked after the remarriage of the spouse of a person as to whom the declaration was

made, the previous marriage shall be annulled due to the establishment of the remarriage.

– Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration

of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief

that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the

provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary

proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of

the absent spouse.

Reconciliation/Mediation in Family Disputes in Cambodia

Although there is no catchall law or rule that exclusively governs family mediation and conciliation, there are however, certain cases involving

Cambodian family members that require court-conducted reconciliation:

Divorce

Under the Civil Code of Cambodia, reconciliation is mandatory in divorce cases. Sub-section II of the Law provides the procedures for divorce,

which are as follows:

Article 982.

1. A suit for divorce shall be filed at the court having jurisdiction in accordance with Article 10 (Special jurisdiction in cases involving

divorce, parent-child relationships) of the Code of Civil Procedure.2. Either party to a marriage may file a petition for divorce at the commune or sangkat council for the domicile or location of residence

as prescribed in paragraphs (1) or (3) of Article 10 (Special jurisdiction in cases involving divorce, parent-child relationships) of the

Code of Civil Procedure. In such a case the commune or sangkat council may attempt conciliation during the period of 15

days following its receipt of the petition. If the conciliation is unsuccessful, the commune or sangkat council shall forward the

complaint to the court immediately as if a suit has been filed.

3. Court finds that the grounds for divorce are valid.

Article 984.

1. Even where one of the parties is strongly demanding divorce, the court may recommend and attempt to persuade the parties

to reach a compromise.

2. If no agreement to compromise is reached, the court shall try the suit for divorce and render a judgment.

Domestic Violence

The Law on the Prevention of Domestic Violence and the Protection of Victims of 2005 is a civil or administrative law, complementing other

existing legislation as the penal code, which makes the act of domestic violence unlawful. Domestic violence is defined as violence that occurs

between people living in the same house and who are dependent of the household. However, the law does not contemplate domestic violence

that occurs within relationships between people who do not live in the same house is not included. For example, common relationships in



Cambodia such as between a man and his mistress, sweetheart relationships or ex-wives are not covered under the definitions of protected

persons.

Article 26 of the same law provides that in cases of minor misdemeanours or petty crimes or for violent acts that cause mental or economic

harm, reconciliation or mediation may be pursued upon agreement of both parties.

Furthermore, Article 26 provides that “household members” are also able to choose their arbitrators should they agree to mediation. Examplesof arbitrators that include parents, relatives and elders.

Sources:

1. The Asia Foundation: Alternative Dispute Resolution, Edition 2001 Phnom Penh, Cambodia.

2. Violence Against Women: How Cambodian Laws Discriminate Against Women, 2007.

3. The Civil Code of Cambodia

Alternative Dispute Resolution in Cambodia

In Cambodia, informal ADR has been practiced for centuries. However, until recently, ADR was never formally part of the official disputeresolution regime. Now, with a number of new laws passed, Cambodia has begun to incorporate ADR techniques into its legal system.

In Cambodia, the formal court system is too expensive for the poorest members of society. They cannot afford to pay the court costs and the

attorney’s fees that are necessary in order to have their disputes decided by the courts. Since most forms of ADR allow parties to resolve their

disputes in a more informal and inexpensive setting, they can be an important tool to help poor people resolve their disputes.

First Mode of Dispute Resolution: Negotiation

Negotiation is the process of back and forth communication, whereby parties submit and consider offers until an offer is made and accepted. It

is the most common form of dispute resolution.

The Code of Civil Procedure of Cambodia emphasizes negotiated settlement throughout the litigation process. It provides that “the court may

attempt to effect a compromise settlement at any stage of the litigation.” It also says “[t]he parties may effect a compromise settlement of the

action on a date set for oral argument, preparatory proceedings for argument or compromise.” The compromise may even be entered into

outside the courtroom. It goes further and requires that “at the preparatory proceedings for oral argument, the court shall first seek to effect a

compromise settlement...” Under these provisions, the court may encourage the parties to negotiate or may take a more active role, in which

case the court intervention would be as a mediator. If the parties successfully complete their negotiations, the Cambodian Code of Civil

Procedure provides that their settlement agreement can be treated as a judgment for enforcement purposes. The negotiated settlement

agreement can be converted into a judicial compromise that is recorded in the court record.

Negotiation can be approached in two basic manners: distributive, or interest-based. The distributive negotiation process usually feels very

competitive compared to the interest-based negotiation process, which feels more cooperative.

The distributive approach is sometimes referred to as “haggling.” In essence, each party goes back and forth with a suggested number.

Sometimes the parties reach an agreement and sometimes they don’t. In the distributive negotiation, the parties assume that there is a fixed

amount of resources that they must divide and distribute between them. The more one side is allocated, the less there is available for the other

side. Usually, resources are expressed in terms of money. During the negotiations, the parties stake out positions. The accused party knows the

maximum he is willing to pay and the injured party knows the minimum that he is willing to accept. The negotiation discussion and possible

outcomes are limited to the positions that each party holds. Each party’s goal is to maximize the amount of resources gained within this

bargaining range.



On the other hand, interest-based negotiation attempts to overcome the disadvantages of distributive negotiations by enlarging the total

benefits for both parties though cooperation. This is because the interest-based negotiation is more collaborative than distributive negotiation.

It assumes that there are other important interests that need to be identified and satisfied. The parties may have some interests in common or

at least some that are complimentary. It is important to remember, however, that interest-based negotiation is not always successful. Some

negotiations are very simple and based solely on money. Many purchases at the market are simple, money-based negotiations. In those cases,

a distributive negotiation is likely the most appropriate. However, in most dispute resolution negotiations, it is worth at least considering aninterest-based approach first because it can usually led to better results for both parties.

In the interest-based approach, there are four main principles:

1. 1. Separating the people from the problem - Because negotiations are between people, sometimes participants mistakenly

view negotiations as a competition and a battle of wills, rather than as a discussion over terms of an agreement. Also, people

have emotions. They can misinterpret what is said. During negotiations, parties can become angry, hostile, offended or

frustrated, complicating what could otherwise be a simple negotiation. When this happens, the parties may not be able to reach

agreement. The way to diffuse this situation is to try to separate the people from the problem.

2. Focusing on the interests, not the positions - The interests are the parties’ hopes, fears, desires, needs, wants, etc. Thepositions are the parties' specific demands, requests, offers, etc. Positions are easy to determine. Parties declare their positions

quite readily. They often think in explicit positions. But, interests are more difficult to determine. Sometimes, parties do not want

to reveal them. More often, parties have not even considered their own underlying interests.

3. Inventing option for mutual gain - If parties are going to successfully settle a dispute, they need to invent options for mutual

gain. However, this often seems difficult. In order to address the difficulty, the parties must separate the act of inventing options

from the act of judging options, try to broaden the options being considered rather than looking for a single answer, for mutual

gains, and think of ways to make the other side’s decision easy.

4. Insisting on using objective criteria - Using objective cri teria to resolve issues makes people feel that their resolution was fair.

Fairness is an important part of successful negotiations. Studies show that people will turn down agreements, even if in theirbest interests, because they feel that it is not fair to them.

In Cambodia, the negotiation process has no formal rules. There are no laws or statutes guiding the negotiation process. However, the process

can be better understood in five stages:

1. The preparation stage - In this stage, the parties and their attorneys look carefully at the case and try to make some basic

conclusions before proceeding. The attorney, obtains the facts, analyzes the law, learns the client’s interests and goals, determines the

best available alternative to a negotiated settlement, consider the other party’s case, and develops a strategy.

2. The preliminary stage – in this stage, the attorneys contact each other to discuss negotiation formalities, such as IF there should

be settlement negotiations and WHEN, WHERE and HOW those negotiations should take place.

3. The information stage - this stage starts when the two parties begin actively negotiating, either directly or through their

attorneys. At this stage both parties begin providing each other with information. One party may start with a recitation of the facts as

his client understands them, following by a brief review of the law, and an offer of settlement. This could be written in an email or

letter, or could be conveyed in a telephone conversation.

4. Distributive/ interest-based stage - This is the stage where the parties explore possible interest-based solutions first and if none

are possible, then pursue distributive-based solutions.



5. Closing stage - once agreement has been reached during the negotiation, make sure that the terms are reduced to writing

immediately. People’s memories fade, and if the parties wait to memorialize the terms of the agreement, they might disagree on the

specific terms later when they try to write them down.

Second Mode of Dispute Resolution: Mediation

Mediation can be broadly defined as assisted or facilitated negotiation. Mediation usually involves two or more disputing parties attempting to

negotiate a settlement with the assistance of a third party, the mediator, who is neutral towards the parties and the outcome. The mediator does

not have authority to impose a settlement. Rather, the parties retain the authority to decide whether or not to settle. In Cambodia, mediation

has always played an important role in society. For example, family disputes were historically mediated by other family members or respected

local leaders.

As a result of mediation’s importance to Cambodia, the national legal framework has evolved to include many mediation options and parties to

a dispute can seek assistance from a variety of sources. In family disputes, parties can seek mediation assistance from the Ministry of Interior’s

officers or from the local Commune Councils. If a party is considering divorce there is a fifteen day “reconciliation” process that begins at the

local commune level before the case is sent to the courts.

Mediation can occur at almost any time during a dispute. Usually, the parties will try informal negotiations first. If those negotiations fail, then

the parties will sometimes attempt mediation. Many dispute resolution clauses in contracts will specify that if there is a dispute, the parties

agree to engage in mediation prior to filing a lawsuit. Therefore, the general order is: Negotiation, followed by Mediation, followed by

Arbitration or Litigation.

The typical mediation process has seven phases:

1. Initiating the mediation – the party can either initiate mediation by sending a written invitation to mediate the dispute, or If a court has

ordered mediation in connection with a court-annexed mediation program, the court will likely provide the parties with a mediator and a

set of rules.

2. Selecting the mediator - after mediation has been established as the dispute resolution mechanism, the parties must choose a mediator.

If the parties have not designated a particular mediation center, they can choose anybody they like in any manner they like. If they have

agreed to use a particular mediation center, that center’s rules will determine which mediators are available and how they are chosen.

3. Briefing the mediator - Once the parties have chosen a mediator, they need to prepare for the upcoming mediation session(s). Usually,

the first task is to provide the mediator with information about the dispute. The mediator may designate this information as confidential

and not share it with the other party. If this information is not designated as confidential, the parties should take care in the information

they provide. In simple cases, the mediator might need very little information prior to the actual sessions. But, in more complex cases, the

mediator might ask the parties to submit written briefs explaining the facts (facts that are in agreement and those in dispute), the

applicable law and any documentary evidence that supports each side. The mediator might want to see any court pleadings that have

been filed. The mediator might also want to know about the witnesses that are prepared to testify for each side. The mediator may also askeach party to identify the strengths and weaknesses of their side, and of any prior attempts to resolve the dispute.

4. Opening session - At the opening session, the parties meet the mediator in person. The opening session has the following purposes: to

introduce the participants, to discuss and review the process, to set forth the rules to be followed, to allow each side time to describe the

dispute and their legal and factual positions, to exchange important information between the parties, to provide the parties an

opportunity to express their feelings and interests, and to identify initial areas of agreement and disagreement.



5. General problem solving session – This is where the mediator and the parties try to explore resolution opportunities. At this point, the

mediator usually tries to clarify areas of agreement and disagreement. At some point early on, the mediator will usually enlist the help of

the parties’ lawyers to try to determine what will happen if the dispute is not settled. She will try to calculate the likely costs to the parties

to litigate the case to resolution. This will help the parties focus on the consequences of failing to reach an agreement. The mediator will

also facilitate a discussion about creative solutions for how the parties might resolve matters. This is best done in a collaborative, non-

adversarial manner that focuses on the parties’ interests and problems, not the parties themselves. Usually, the mediator tries to learn the

parties’ priorities and looks for areas of agreement or common interests (such as avoiding long, expensive litigation).

6. Private caucuses - If the mediation is at a standstill (because of decision avoidance or any other reason), one common procedural tool

that the mediator will likely employ is the private caucus. The private caucus usually takes place during the periods when the parties are

discussing possible solutions to the issues. It is not uncommon for a mediator to hold five or even ten private caucuses during the course

of a difficult mediation. Usually, if the mediator meets privately with one side, she will then meet privately with the other side. The

mediator, after these two private meetings, could call a group session or continue to go back and forth in private meetings. Private

caucuses allow parties to share private information with the mediator that they might not be comfortable sharing in front of the other side.

7. Closure - The mediation will end with one of three possible results:

a. The parties have reached complete agreement - the mediator will encourage the parties to draft and sign a settlementagreement.

b. The parties have not reached complete agreement but will continue mediating at a later time - the mediator should stress the

progress made and provide some suggestions for consideration for the next session.

c. The parties have reached a stalemate and the mediation is over - One of the parties may end the mediation session early if they

are angry or unwilling to continue discussions. There is nothing the mediator can do if one party absolutely refuses to discuss

settlement further. The mediator may also choose to end the session if it appears that no settlement can be reached. While

mediation is an excellent tool for settlement, it is ultimately up to the parties and some disputes cannot be successfully

mediated. When the mediation ends in this way, the parties are free to continue their dispute in other forums such as

arbitration, private negotiations, or even litigation.

Third Mode of Dispute Resolution: Arbitration

I. Arbitration in General

Arbitration is the third major ADR method. In arbitration, the parties submit their dispute to a neutral third party (usually called the

“arbitrator” or if more than one, then called the “arbitration panel” or “tribunal”). This third party considers the evidence the disputing

parties have submitted and renders a decision called an “award.” The award is usually binding on the parties, however, in some cases,

the award can be non-binding.

Arbitration is a well-known method of dealing with disputes in many countries. However, in Cambodia, it is only applicable to labordisputes.

II. Kinds of Arbitration

1) Administered Arbitration - Administered arbitration refers to arbitration that is conducted at an arbitration center such as the ICC

in Paris or Cambodia’s Arbitration Council. These arbitration centers provide a room for the hearings, a list of arbitrators, a set of

procedural rules and various other services, usually for a fee.



2) Ad Hoc Arbitration - Ad hoc arbitration refers to the parties’ choosing to develop their own forum for the specific purpose of

resolving just one dispute. Usually, the decision between administered and ad hoc arbitration is made at the time of contract

formation.

III. Typical Arbitration Process

1. Initiation of Arbitration2. Selection of Arbitral Tribunal

3. Pre-hearing Procedure

4. Arbitration Hearing

5. Decision Making

6. Appeal and Enforcement

Sources:

http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2006/08/04/000310607_20060804140831/Rendered/PDF/368240Alternat1on0BIB91Cam11PUBLIC1.pdf

http://www.americanbar.org/content/dam/aba/directories/roli/cambodia/cambodia_adr_book_english_01_19_09.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/directories/roli/cambodia/cambodia_adr_book_english_01_19_09.authcheckdam.pdf

http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2006/08/04/000310607_20060804140831/Rendered/PDF/368240Alternat1on0BIB91Cam11PUBLIC1.pdf

Cambodian Legal System

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