0102 Copyright © Cambodian Society of Comparative Law March 2010 All rights reserved Printed with support from USAID Phnom Penh IL Virtue Unions publisher RMS 1318-20, Hollywood Plaza 610 Nathan Rd. Mongkok, Hong Kong Board of Editors Editor-in-Chief: Kuong Teilee Associate Editors (cont.) Associate Editors: Tep Vichet Steven Austermiller (team leader) Payton Deeks Peng Sokunthea Catherine Scott Dorothy Shapiro Phin Sovath Y Samphy Ly Sopheap This yearbook is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of the authors and do not necessarily reflect the views of USAID or the United States Government. In addition, the contents do not necessarily reflect the views of the East West Management Institute, the Nagoya University, the Cambodian Society of Comparative Law or the Board of Editors. The statements and analysis expressed are solely those of the authors, and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and do not represent the position or policy of the American Bar Association. Furthermore, nothing in this book is to be considered rendering legal advice for specific cases. USAID reserves a royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use the work for Government purposes. TABLE OF CONTENTS EDITORIAL NOTES i (ARTICLES) EXTENDING THE REACH OF COMPARATIVE LEGAL STUDIES 1 Kaino Michiatsu CAMBODIAN CONSTITUTIONAL PROVISIONS ON TREATIES: A STORY OF CONSTITUTIONAL EVOLUTION BEYOND RHETORIC 9 Kuong Teilee THE CONSTITUTION OF CAMBODIA AND THE RULE OF INTERPRETATION IN COMPARATIVE PERSPECTIVES 25 Hor Peng COMPARING THE CIVIL CODES AND THE CODES OF CIVIL PROCEDURE ACROSS BORDERS: THE CASES OF JAPAN AND CAMBODIA 37 Kamiki Atsushi THE FREEDOM OF CONTRACTS AND THE AGRICULTURAL LAND SYSTEM: A COMPARATIVE STUDY OF THE EXPERIENCES OF JAPAN AND FRANCE 53 Harada Sumitaka LAND LAW AND PLANING LAW IN CAMBODIA: PROBLEMS AND PERSPECTIVES 71 Fabian Thiel THE THEORY OF POST-MODERN AND THE PRINCIPLE OF “NULLUM CRIMEN, NULLA POENA SINE LEGE 87 Adachi Masakatsu DOMESTIC EXHAUSTION OF PATENT RIGHTS: A THEORETICAL AND PRACTICAL ANALYSIS 99 Phin Sovath DOING BUSINESS IN DEVELOPING MARKETS: NEW TOOLS AND INSIGHTS FROM DEVELOPMENT LAW 115 Veronica Taylor INTERNATIONAL HUMAN RIGHTS LAW IN CAMBODIA 129 Meas Bora ADR IN CAMBODIA’S LEGAL SYSTEM 147 Steven Austermiller (RECENT LEGISLATIVE DEVELOPMENTS) LABOR ARBITRATION IN CAMBODIA: LAW AND PRACTICE 163 Kong Phallack CAMBODIAN TRADE AND INDUSTRIAL POLICIES: AN INVENTORY OF TRADE-RELATED LAWS AND REGULATIONS 173 Ly Chantola NATIONAL ARBITRATION CENTER: LEGISLATIVE FRAMEWORK AND RECENT DEVELOPMENT 183 Seng Hun Cambodian Yearbook of Comparative Legal Studies Vol. 1 i EDITORIAL NOTES The practice of adopting foreign legal models and adapting parts of foreign legal thoughts to the local context has taken place in Cambodia since her earliest efforts to establish a westernized legal system and modern institutions in the beginning of the 20th century. Foreign scholars have always played an important role in legal education in Cambodia, and laws of foreign countries have become indispensable references in law classes, for all the periods of colonial, socialist or liberal democratic rule. But comparative law as an academic and scientific discipline has never been introduced as a major subject in the university curriculum. For the domestic legal community, comparative law exists only at the intuitive and practical level. The situation has become even more salient after the latest democratization process started in the 1990s. Legal reforms at home have been promoted in a highly multi-national and multi-cultural context, with experts bringing in legal models and knowledge from all corners of the world. Major legal education institutions in the US, Japan, France, Australia, Germany, Korea and some other Southeast Asian countries have been offering legal scholarships to young Cambodian students and legal professionals to pursue a few years of law courses overseas. However, the domestic academic circle in Cambodia remains unfamiliar with an integrated effort to capitalize on these resources and develop a mechanism to digest the invaluable knowledge and expertise being injected into the country. A group of legal scholars and professionals met in Phnom Penh in 2008 and talked of the need to organize an academic conference on the subject of comparative law. The informal dinner discussions later became a serious commitment. An organizing committee was formed to start elaborating on the topics and programs, soliciting financial and human resources for the conference. ii Editorial Notes The conference was held successfully in Phnom Penh on March 14-15, 2009. It was attended by legal scholars and experts from inside and outside of Cambodia. At the end of the Conference, participants agreed to the initiative suggested by the organizing committee to launch a publication of the revised papers and to make efforts to organize regular discussions and concentrated research on the practices and methodologies of comparative law, particularly those suitable for the context of developing countries seeking to benefit from this globalizing trend. This Cambodian Yearbook of Comparative Legal Studies is the outcome of such commitments and efforts. Although the publication does not claim to possess the virtue of being able to contribute much to the existing knowledge and “mainstream” discussions about comparative law and legal theories, it works in the direction of expanding the vision, testing the adjustability and applicability of existing knowledge to parts of the world where empirical data and material for a possible new approach to comparative legal studies of the 21st century seems to exist amidst a serious academic vacuum. The articles appearing in this issue may seem absent of a single consistent methodological or theoretical theme. This is because they were written to respond to the many different themes of the March conference. However, the discussions surely have provoked interesting questions of whether comparative law gives us the authority to claim “my laws” as being distinctive from “your laws” and whether interactions between these “laws” in the different tides of “globalization” have given birth to something we all can today call “our laws”. Some papers also demonstrate creative academic attempts to use existing tools and methods to explain legal phenomena in a different setting, as part of efforts to learn to compare “laws across borders” in a distinctive context of “legal transplant” or “legal transfer”, or “internationalization of laws”, mainly in the Cambodian setting of legal development, not hitherto analyzed carefully enough in most leading comparative law publications. To better reflect the merits of this publication, papers have been arranged into two parts, namely the general articles and the articles on recent legislative and judicial developments in Cambodia. Eleven papers that pay particular attention to the question of comparative studies are grouped together in the first part. The works of two other authors who examine the trend of legal development in Cambodia are grouped together in the second part, Cambodian Yearbook of Comparative Legal Studies Vol. 1 iii to offer some informative updates on the law in this country. Also to promote wider participation into this publication work, we have encouraged submissions of additional short papers written by other scholars who participated but did not speak at the 2009 Conference. As a result, one paper on recent legislative development in Cambodia has been submitted and it is now included as the third article in the second part of this issue. We hope that in the future there will also be some short reviews of interesting books and publications on Cambodian or other countries’ laws, which may be useful for the cause of legal development and research this publication seeks to promote. It is greatly regrettable that some speakers could not secure sufficient time to bring their papers to the final stage of completion for this publication. The editorial board hopes that these wonderful unpublished works will be completed and introduced to all interested scholars, researchers, practitioners and students in the future. Finally, on behalf of the editorial board of this Yearbook and members of the organizing committee for the 2009 Conference, I would like to thank the following institutions that have contributed invaluable financial and human support to the Conference and subsequent preparations for this compilation. The list of institutions includes the Nagoya University in Japan, the Royal University of Law and Economics (RULE) and the University of Pannhasastra (PUC) in Phnom Penh, the Center for Research and Education Center for Japanese Law inside RULE in Phnom Penh, the USAID and its implementers, East West Management Institute and the American Bar Association, the SIM/Konrad Adenaeur Foundation in Phnom Penh, the Kamenori Foundation in Japan, the Japan Jurists League for Cambodia in Japan and the IL Virtue Unions publishing company in Hong Kong. Thanks also go to the individuals, including university professors, law practitioners, graduate and undergraduate students, who have set aside their busy engagements in Japan, the US and Phnom Penh to participate at the two-day conference as speakers, moderators and staff of the organizing committee. With regard to the editing of this publication in particular, I am indebted to Steven Austermiller and Peng Sokunthea of the EWMI, for giving me much needed support in Phnom Penh, and the associate editors listed in this Yearbook for the efforts they have extended, on a fully volunteer basis, to the grammatical corrections and editorial comments on the drafts, as well as the final design for the appearance of the Yearbook, on tight iv Editorial Notes schedules to make sure that the final work would meet the deadline for dissemination in early March 2010. My expressions of gratitude could go on for many more paragraphs but the limited space available for these editorial notes requires that I stop it here. Cambridge, USA January 2010 Kuong Teilee Editor-in-chief Cambodian Yearbook of Comparative Legal Studies Vol. 1 1 (ARTICLES) Extending the Reach of Comparative Legal Studies Kaino Michiatsu* Comparative legal studies in retrospective1 Comparative legal studies are academic exercises to examine the laws of two or more countries or to compare two or more legal systems, in order to identify similarities and differences between them. These studies basically look into national laws. Since there are so many different nation states in the world today, even a simple comparison of the differences among them would be an extremely difficult work. Therefore, the mainstream approach to contemporary comparative legal studies seeks to identify common characteristics of different national laws, group them together along the line of these common characteristics, and then make comparisons among these legal groupings. Most research groups states into common law or civil law systems. ”Civil law” here does not refer to laws regarding civil matters, but refers to the so-called Roman law. Roman law was adopted by most countries in the continental Europe. Therefore, traditional way of approaching comparative legal studies usually started with comparisons between the common law system and the civil or the continental law system. This simple grouping does not always capture the whole picture. There are many countries in the world which belong neither to the * Professor Emeritus of Nagoya University and currently Professor of Law at Waseda University, Japan. 1 This paper presents an overview of the current trends of comparative legal studies in Japan. Reference to trends somewhere else will be made only in passing. For more details about topics presented in this paper, such as the issue of unification of laws among EU countries or the actual situations of reception of the common law system in Asian countries, readers are advised to refer to the short list of materials (mainly in Japanese) at the end of this paper. These materials offer more comprehensive discussions of current comparative legal studies in general. 2 Extending the Reach of Comparative Legal Studies common law system nor the civil law system. For instance, the Islamic law countries embrace a very different legal system, while Asian countries also have their own legal systems which deviate from these mainstream classifications. In this sense, comparative legal studies should be seen as Euro-centric and be deemed to represent only a very limited view. In the current era of globalization, we find it hard to confine our efforts to the work of comparisons alone. The main theme often addressed in recent comparative legal studies is legal “transfer,” or the transfer of laws from one place to another. This theme seems to be occupying a rather important place in the latest trend of comparative legal studies. In addition, questions related to global warming and the endless process of development are being reflected in the world of comparative law. For example, H. P. Glenn, the Canadian comparative legal scholar, calls attention to the Chthonic legal tradition. He attaches particular value and status to the indigenous law or laws of some under-explored societies of today which are living an ecologically friendly life.2 The mainstream comparative legal studies The Roman law which we talk about in today’s society, refers to the legal system established under the Emperor Justinianus of the East Roman Empire in the 6th century. The Emperor Justinianus mobilized scholars in an effort to systematize Roman law. Although the Roman Empire had collapsed and only the East Roman Empire existed, Roman law managed to survive to the merit of Emperor Justinianus. Moreover, among the major achievements of Justinianus was the compilation of the “Digest”(i.e., the Digesta). This is a collection of scholarly writings on the Roman legal system made by scholars in an effort mobilized by Justinianus. The Digesta, also referred to as Pandekten in Greek, continues to be very influential. The Japanese Civil Code also adopts the Pandekten system. This fact will be very important for Cambodian scholars to consider, since the new Cambodian Civil Code was created by 2 See “What is Legal Tradition?” [houdentou to wa nani ka], by Igarashi Kyoshi, in Challenges Facing Legal Studies on Civil Matters and the New Construct – Collection of Papers In Memorial of Professor Suzuki Rokuya [Suzuki Rokuya Sensei Tsuitou Ronshyu “Minji Hougaku e no Chousen to Aratana Kouchiku”] in Japanese. Cambodian Yearbook of Comparative Legal Studies Vol. 1 3 experts who were well informed about the Japanese Code. After the Roman Empire had ended, laws in Europe were overwhelmed by a disintegrated system of various national groups’ customs. This stood as a serious obstacle to various transactions across Europe as a whole. The Ius commune emerged widely across Europe as something to alleviate the problems caused by differences in customs. It was a mixture of the laws of the church (Canon law) and Roman law. It embodied an extremely plentiful source of knowledge and existed as if it were a kind of integrated European law. This was made possible by legal scholars who came from different countries to study jurisprudence at the University of Bologna in Italy and then applied their legal knowledge in combination with the local customs of each country. Through this process, a basic understanding on legal integration took shape in the form of Ius commune in medieval Europe. This reality has a particular significance in the contemporary context. In addition, based on natural law theory which preceded modern legal thoughts, renowned French scholars like Jean Domat and Robert Pothier tried to systematize the diverse customary laws. The most important of these efforts emerged in the 16th century, based on the thoughts of Rene Descartes. It claimed that the universal law of reason existed across national borders in Europe. In short, it is important to understand the base on which comparative legal studies flourished in Europe. Legal thinking related to comparison of customary laws, universal elements in law, and the concept of pluralization of law as reflected in Charles de Montesquieu’s book on “the Spirit of Law,” has existed for some time. It is important to realize that the foundation of comparative law in fact exists in Europe. The other issue to mention here is the common law system. Needless to say, the common law system emerged in England. It developed at the time of British imperialism and the British hegemony over the world. The common law system survived in other societies even after the withdrawal of the British power. It therefore remains influential also in many countries in Asia. And after the Second World War, common law influences through the US interventions are very significant, including in the case of Japan. But the limited length of this paper does not permit further elaboration of the details. Now let’s look at the mainstream comparative legal studies. One may wonder what mainstream comparative legal scholars pursue in their research. Rene David, a French scholar, wrote a representative 4 Extending the Reach of Comparative Legal Studies piece of work. The work was then revised by Professor Camille Jauffret-Spinosi, a former student of David. David’s work is well-known for his theory of legal systems (or legal families). There were also famous German scholars in this field. Konrad Zweigert and Hein Kötz wrote a famous textbook on comparative law which still stands out as one of the important works. In Japan, Hozumi Nobushige also stood out as a famous comparative legal scholar during the Meiji era. The works of these scholars have been to recapitulate some common features of laws in the world and categorize them into different legal families. Missions of mainstream comparative legal scholars were then to group different legal systems in line with these categorizations. The significance of classifying legal systems into different legal families lies in the usefulness of this exercise as an effective methodology for legal education. It is not possible to teach about hundreds of legal systems existing in the world. But effectiveness in teaching about these legal systems will be enhanced simply by grouping these legal systems into a few categories and focusing on some outstanding features. This method of teaching makes it possible to have a bird’s eye view of legal systems of the world. This exercise also contributes to the easy recognition of characteristics of a country’s legal system. From it, one can create a helpful reference for constructing the identity of a national legal system in its relationship to other national legal systems of the world. Besides, comparative legal studies also serve one important practical purpose. The theory of legal families is an extremely useful tool for promoting the process of legal unification. More will be elaborated below. Extending the reach Scholars in Cambodia are initiating an academic project to create a Cambodian Society of Comparative Law. As Cambodia imports foreign models or laws, this will allow Cambodian scholars to understand the cultural and social background from which the legal model or code emerged. An active society of comparative legal studies can be expected to fulfill this important mission by promoting the creation of comparative law as an academic discipline to enable scientific conduct of such research. Cambodia may also need to discover what legal model suits the country best by learning from the classifications of law, including Cambodian Yearbook of Comparative Legal Studies Vol. 1 5 those based on the theory of legal families. Comparative law as an academic discipline centering on the theory of legal families will be very helpful and important for this purpose. Comparative law will be necessary in enabling a country to choose among several possible options in order to secure “a law for itself.” By following the mainstream theories of legal system, legal family, or legal tradition, Cambodian comparative law scholars should pay attention to the fact that law is not only about norms or court cases. For example, in very simple terms, the main difference between the common law system and the continental law system is that the former centers on case laws or the courts, while the latter centers on legal norms and enacted laws. This is one of the findings based on comparative law theories. If one accepts this as the difference between the two systems, albeit an oversimplification, and decides to introduce a legal system similar to the common law model into a country, one needs to take into consideration the factor of actors, such as judges and lawyers, who are indispensable for operating the common law system. Otherwise, the introduction of a legal system modeled on the common law will be highly problematic. In contrast, if one wants to adopt the model of a law from a country whose legal system centers on codification, the first important thing to do is to find out whether or not the particular code to be imported was enacted in conformity with a democratic process. In addition, since a strong bureaucracy is indispensable for the work of codification, it is important for one to deal with the question of how to train and produce sufficient numbers of qualified bureaucrats who have excellent capacity in legal drafting. The most crucial question is whether a piece of law from a foreign country will be suitable for the Cambodian context since the law was originally enacted for a foreign context. In Japan, the academic discipline called the “sociology of law” plays an important role in responding to this question. Scholars from this discipline conduct extensive research on enacted laws, case laws, and living legal practices, or the so-called living law or lebende Recht, which develops in real life, and examine the possible compatibility of that foreign law with this living law. This exercise becomes very crucial. Therefore, law faculties or universities in Cambodia should consider establishment of a comprehensive study program, grouping together the disciplines of comparative law, sociology of law, and history of law that traces legal development in the Cambodian historical context. 6 Extending the Reach of Comparative Legal Studies From legal unification in Europe to comparative law in Cambodia Finally, in order to bring home the argument that whatever is happening to the Europe Union at the moment is not completely irrelevant to Cambodia from a comparative law perspective, the following paragraphs will be a brief, and somehow simplified, discussion about some latest developments in the European Union. European integration originally started with a form of economic cooperation. It then developed into an enormous European Union seeking deeper integration of the European Community, the political organization, and the social organization. The issue of unification of law is becoming the subject of candid debates. The European Union has succeeded in promoting the adoption of the Euro as a common currency. It is now even moving towards adoption of a European Constitution Treaty. In Europe, the “Commission on European Contract Law,” also known as the “Lando-Commission” after the commission chairman, was established. The “Lando-Commission” had drafted “the Principle of European Contract Law”. This new efforts is influential not only in Europe but also in other areas which have some European Law influence including Japan. As for European Private Law studies, one may find some very valuable works in Japanese, such as “YOROPPA SHIHOU NO TENKAI TO KADAI” (The Development and Challenges of European Judiciary) edited by Kawasumi, Nakata, Shiomi and Matsuoka (2008, Nihonhyoronsya). The home page of the Institute of Comparative Law of Waseda University offers a useful site on Japanese legal studies from a comparative law point of view (http://www.waseda.jp/hiken/index). Some other more comprehensive studies of current comparative law mainly from the Western viewpoint can be found in “The Oxford Handbook of Comparative Law” edited by Mathias Reimann and Reinhard Zimmermann. It is interesting to note that both Germany and France, two countries that adopted a civil law system, have taken varying stances with regard to the issue of European contract law principles and uniform law in Europe. Since France is the birthplace of the Napoleonic Code, it takes pride in its own Civil Code, while Germany has accepted reforms quite early on. Most recently, Cambodian Yearbook of Comparative Legal Studies Vol. 1 7 Germany has worked its way through the amendment of German law regarding obligations. In these reforms, Germany has taken an important lead in the direction of adjusting its law to fit European principles. At the same time, the Pandekten system mentioned earlier in this paper is also undergoing significant modifications. For example, legislative projects have been initiated to facilitate the insertion into the Civil Code various provisions which would otherwise have been treated as special laws. Information on the latest “situation” of Pandekten system can be found in the Proceedings of Symposium on “Beyond Pandekten”, compiled by the Waseda University Institute of Comparative Law. The Symposium was also attended by several leading scholars from East Asian countries. Following these European trends, Japan has also taken steps to begin amending the law on obligations. But the work is being confronted by some extremely important questions of how to handle the relationship between the Civil Code and various special laws such as the Law on Consumers’ Protection, etc. The Japanese Civil Code is in a period of drastic transformations. The reason for the transformations to take place is because Japan originally received its major laws from Germany and France. With the German and French laws now transforming, the Japanese legal system has to face some direct challenges from these transformations as well. Cambodia needs to understand this context too. It is very important for Cambodia to carefully consider how to structure a position towards the legal assistance provided by Japan. Currently, Cambodian scholars are attempting to initiate an academic project on comparative legal studies. This echoes the efforts of European scholars, who led the movement in Europe. Scholars have neither the power of the state nor other formal powers. They exercise substantial influence by means of academic power. In Europe, people are competing for academic power. It is very unfortunate that networking with these academic powers is non-existent in Japan. The world is now facing with a stormy period of employment crisis. In Japan, dispatch workers are easily laid off. In Europe, the same issue is debated radically leading to questions being asked with regard to the original nature of labour law or employment law. Scholars surely have in mind the interests of the nation to which they belong. But I believe that these scholars also belong to a larger idealistic community in which they are trying to share some common values of law with each other. In this sense, I hope that the 8 Extending the Reach of Comparative Legal Studies establishment of the comparative law society in Cambodia will encourage scholars to put aside narrow national interests and cross national borders to begin a strong common circle of scholars and professionals. By means of this common circle, they can initiate international discussions to seek for the best way to process legal assistance or legal transplants. References (Materials published by the Waseda University Institute of Comparative Law, edited by Kaino Michiatsu) “Hikakuho Kenkyuu no Shindankai” (A next stage of studies of comparative law: for theories of reception of law and legal transplants), Seibundoh, Tokyo, 2003. “Nihonho no Kokusaiteki Bunmyaku” (International context of Japanese law: index of linkage with West and Asia), Seibuntoh, Tokyo, 2005. “NIHOINHOU NO IDENTYTY NI KANSURU SOUGOUTEKI HIKAKUHOUTEKI KENKYU” (Japanese law in an international context: law in its origin and law in its global context), Seibuntoh, Tokyo, 2006. “HIKAKU TO REKISHINONAKANO NIHONHOUGAKU” (Japanese legal studies in comparative and historical context: its perspective of comparative law), Seibundoh, Tokyo, 2008 “HIKAKUHOU TO HOURITSUGAKU” (Comparative Law and Legal Studies), Waseda University Institute of Comparative Law, research project completed in academic year 2007-2008. Cambodian Yearbook of Comparative Legal Studies Vol. 1 9 Cambodian Constitutional Provisions on Treaties: A Story of Constitutional Evolution Beyond Rhetoric Kuong Teilee* Introduction When did modern written constitutional law begin in Cambodia? How is the Cambodian legal system connected to a continuously developing system of international law or global norms? From a legal perspective, in which direction is the country moving in its recent effort to integrate into regional and international communities? Prompted by these questions, this chapter seeks to examine the legal significance and functional development of Cambodian constitutional provisions on international treaties since 1993, by presenting two main arguments. First, when the Constitution of the Kingdom of Cambodia was adopted in 1993, its provisions regarding observance and respect for international treaties were included for two obvious reasons - political rhetoric and idealistic purposes. Second, although in the course of over 15 years, institutional weaknesses of the new constitutional order may have led to deterioration of the constitutional idealism, the desires and the efforts to gain international trust in recent years have added new dimensions to the significance and function of these provisions of the Cambodian constitution. Using the concept of “Constitutional moments”, the chapter starts with the observation that two historical periods in Cambodia, one from 1991 to1993 and the other starting in 2003, contributed to the conceptualization and practical application of the Constitutional provisions on international treaties. At the inauguration of the Constituent Assembly in June 1993, a * Associate Professor, Nagoya University Center for Asian Legal Exchange. Comments can be addressed to firstname.lastname@example.org 10 Constitutional Provisions on Treaties motion by Prince Norodom Ranariddh, then the First Prime Minister, was unanimously approved by the Assembly to denounce the “unconstitutional coup d’etat in 1970”.1 Through this motion, the status of the then Prince Norodom Sihanouk as the Chief of State 2 under the pre-1970 constitutions was restored. 3 Denunciation of the 1970 coup by the 1993 Constituent Assembly is significant in two ways. First, it traces not only the beginning but also the continuity of the written modern constitutions of the country to the first Constitution of 1947, which established the Kingdom of Cambodia under the auspices of the French colony. Second, it denotes that apart from this continuity, a difference exists between the two generations of the statehood, due to the interruptions triggered off by the 1970 incidents. The motion adopted unanimously by a Constituent Assembly should not be understood as re-introducing the previous Constitution after 23 years of civil wars had ended, but it implied that a new Constitution would be written with new concepts and contents. The latter point will be discussed in this short paper. The first question of when modern constitutional law developed in Cambodia will not be reviewed here. However political continuity is assumed following my simplified introductory comments above, in order to bring the focus of this paper to the more specific question of how to evaluate the relationship between the current Cambodian Constitutional Law and developing international law and global norms, especially when related to the protection of human rights and economic interactions in the international marketplace. The presumption of continuity is not meant to be an essential argument here, but is used as a convenient start for applying the transformative constitutional moments theory as will be elaborated in the following section. 1 See “For the Record: The Assembly”, Phnom Penh Post, July 16-29. 1993. 2 Norodom Sihanouk was enthroned on 28 October 1941. Then in order to be fully involved in politics, he resigned by handing over the throne to his father in March 1955. However, his father’s death in 1960 did not bring Sihanouk back to the throne but simply resulted in the latter being chosen by a referendum to be the Head of State in June 1960, after the Constitution was amended. He held this office until he was deposed by the 18 March 1970 coup. See chronological data in Raoul M. Jennar, Les Cles du Cambodge, Maisonneuve & Larose, 1995. 3 MacAlister Brown and Joseph J. Zasloff, Cambodia Confounds the Peacemakers 1970-1998, Cornell University Press, 1998, p. 174. Cambodian Yearbook of Comparative Legal Studies Vol. 1 11 The Theory of Transformative Moments Some recent studies on constitutional change have attempted to apply the theory of transformative moments promoted by Professor Bruce Ackerman in his well-known analyses of the development of Constitutional Law in the US. 4 He breaks constitutional law development in the US into three transformative moments, namely the founding period, the Reconstruction moment and the New Deal. Ackerman’s use of analytical framework of transformative moments enables him to present the development of the US Constitution in a chronological political order in order to elaborate the internal elements leading to Constitutional changes at a higher legal level. This allows him to avoid referring to the development of constitutional law doctrines in the UK or any other older constitutions of the world to explain the evolution of constitutional law in the US. Cambodia has a very different political, constitutional, and legal background from that of the US. This section does not solicit the application of Ackerman’s theory in elaborating Constitutional development in Cambodia. Rather, Ackerman’s theory is considered relevant to the extent that constitutional law development in Cambodia can be best explained by identifying key moments in the chronological political history, and next, narrating the constitutional changes associated with these transformative moments. This exercise is helpful for at least two reasons. First, it enables narration on constitutional development to overlap with domestic political and legal developments. In addition, this way of framing a country’s constitutional history will enhance understanding and be more useful for future legislative and policy making purposes. A second strength to this approach lies in the different way that historical transformative moments are defined by different people and within different countries. A mainly chronologically narrative version of transformative moments will be suitable for inducing dynamic explanations about the backgrounds and contexts of important constitutional changes, especially in countries where a new constitutional culture is just 4 Ackerman develops his theory in two well-known volumes We the People – Foundations and We the People – Transformations, published by the Harvard University Press in 1991 and 1998 respectively. For a review of Ackerman’s theory, see Maria Seferian “Recent Publication: We the People: Transformations, Bruce Ackerman”, 34 Harvard Civil Rights – Civil Liberties Law Review, Winter 1999, pp. 311-327. 12 Constitutional Provisions on Treaties about to develop. Based on the presumption of the constitutional continuity mentioned earlier, the following section will start with a brief review of the constitutional change in Cambodia, introduced by the 1993 Constitution, with regard to the relationship between domestic law and international treaties. Skipping detailed elaboration of this first Constitutional moment, i.e, the transformative moment that followed the 1991 Paris Peace Agreements and subsequent events leading to the promulgation of the 1993 Constitution, 5 the following section will only examine details of the provisions on international treaties. It will point out the provision's inherently rhetorical nature due to the shortage of necessary clarity for implementation and the particular political context in which they emerged. Subsequent sections will examine how the two constitutional moments have resulted in the emergence of legislative and judicial practices, which seem to have brought these constitutional commitments away from their pure rhetoric origin in the 1990s. The New Commitment to International Law Despite the continuity mentioned in the introduction, one of the important aspects making the 1993 Constitution discontinuous from its past is the new importance it gives to the status of international law in the issue of human rights. This is provided in Chapter 3 of the Constitution in which the issue of “rights and duty” is stipulated in detail. The Chapter starts with Article 31 stipulating Cambodia’s commitment to human rights norms provided for by the UN Charter and human rights covenants and conventions. It says: 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. Every Khmer citizen shall be equal before the law, enjoying the 5 Many books and articles have been written, from different perspectives, about this period of political and constitutional transformation in Cambodia. In addition to those appearing in the following footnotes, one can also consult Hughes Caroline, UNTAC in Cambodia: The Impact on Human Rights, Institute of Southeast Asian Studies, Singapore, 1996; The United Nations and Cambodia, 1991-1995, United Nations, New York, 1995. Cambodian Yearbook of Comparative Legal Studies Vol. 1 13 same rights, freedom and fulfilling the same obligations regardless of race, colour, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and freedom shall be in accordance with law.6 This Article binds Cambodia to the obligation to “respect” the provisions of human rights treaties adopted by the UN. But how can Cambodia fulfill this obligation? The answer should be found in the constitutional question of relationship between international treaties and the domestic laws of Cambodia. But there is no provision in the Constitution, which defines the status of international treaties within the hierarchical order of Cambodian laws. The only constitutional provision that seems to ensure the integrity of international treaties within the Cambodian domestic legal system may be found in Article 8 that reads “the King shall be .... the protector of rights and freedom for all citizens and the guarantor of international treaties”.7 This provision is ambiguous on two grounds. First, the role of a “guarantor” of international treaties is not clearly defined. Second, due to the mere symbolic existence of the King, as stipulated in Articles 7 and 8,8 one doubts whether this guarantee has any practical usage in securing a clear place for international law in the legal hierarchy. Nonetheless, international human rights treaties seem to occupy a special position under the Constitution9 by virtue of the Article 31. When compared to domestic laws, the obligation to observe these international human rights treaties may arguably supersede domestic laws which are found to be substantially contradicting 6 In this paper, unless indicated otherwise, the unofficial English translation of the Khmer legal provisions prepared and printed by the Cambodia Office of the UN High Commissioner for Human Rights, in A Selection of Laws Currently in Force in the Kingdom of Cambodia, second edition, 2002, is used. 7 The second paragraph of Article 8 of the 1993 Constitution. 8 Article 7: The King of Cambodia shall reign but shall not govern. Article 8: The King of Cambodia shall be a symbol of unity and eternity of the nation. 9 The provisions of this Article in fact seem to be going too far by stipulating that 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”. It will be absurd if this provision is intended to cover all international human rights treaties including those not yet ratified by the Cambodian legislative branch. The only reasonable interpretation should be that Cambodia commits itself to respect all international human rights treaties to which it is a party. 14 Constitutional Provisions on Treaties these treaty contents. But Article 49 of the Constitution only explicitly requires that “All Khmer citizens shall abide by the Constitution and abide by the law”, leaving the obligation to “abide by” international human rights treaties undeclared. Therefore, an interpreter will need to conclude that by means of a simple transformation, all international (human rights) treaties become part of the domestic law and will thus be “abided by”. In this case, any conflicts between a treaty-converted piece of law related to the protection of human rights and another piece of legislation initiated locally may have to be solved by the authoritative interpretation of the Constitutional Council established under Chapter X.10 The courts of Cambodia and the Constitutional Council have not ranked the international human rights treaties and the Constitutionally defined laws in hierarchical terms. The process of incorporating international treaties is completed by the National Assembly’s ratification of these treaties and the issuance of a Royal Decree by the King to promulgate them as part of the domestic law. This should give international treaties the same validity and applicability as any national law adopted by the National Assembly, with approval by the Senate, and promulgated by the King. Article 31 serves as a general commitment by Cambodia to respect human rights as stipulated in the UN Charter and all conventions adopted by the UN. However since these instruments are incorporated as part of the national law the problem of lex posterior may sometimes create a dubious situation if a new domestic legislation is alleged to be inconsistent with the provisions of a human rights treaty referred to in Article 31. The constitutionality issue may have to be solved by a Constitutional Council review regarding the compatibility of the later legislation with the norms of the human rights treaties, which are explicitly guaranteed by Article 31 of the Constitution. This approach accords a higher hierarchical order to international human rights treaties than the related domestic human rights law. In practice, this approach will require that the Constitutional Council not only refer to specific provisions of these international 10 The Constitutional Council was established in 1998, pursuant to Article 117, Chapter X of the 1993 Constitution. After the amendment in 1999, this Article becomes Article 136 of Chapter XII. The new Article 136 reads: “The Constitutional Council shall have the duty to safeguard the respect for the Constitution, to interpret the Constitution, and the laws passed by the Assembly and examined by the Senate. The Constitutional Council shall have the right to examine and decide on contested cases involving the election of Assembly members and Senate members”. Cambodian Yearbook of Comparative Legal Studies Vol. 1 15 instruments but also consult legal interpretations of these treaty provisions made by specialized international courts or treaty bodies as grounds for decisions. This will completely change the way business is currently conducted by the Constitutional Council. One can also argue that specific disputes regarding the normative conflicts between domestic and international human rights laws can be referred to the courts of Cambodia and the Constitutional Council in order to discover whether newer legislation is in violation of human rights guaranteed by articles 32 to 50 of the Constitution 11 , without having to bother about the question of international standards stipulated in Article 31. Although a lot of the provisions found in Articles 32 through 50 are derived from provisions of international human rights treaties mentioned in Article 31, they are nonetheless specific constitutional provisions. Compliance with these provisions is not a result of international human rights treaties having a dominant status vis-à-vis the domestic legislation, but is simply an issue of legislative implementation of specific constitutional provisions. Provisions of any international human rights treaties that are subsequently ratified by Cambodia and are not elucidated in Articles 32 through 50 will not be covered by these constitution provisions. In theory, compliance with these ratified human rights treaty provisions may not be similarly guaranteed by this approach. Other provisions related to international treaties are found in Articles 48, 49, 53, 55, 90, 150, 152 and 153. However, most of these provisions define the institutional arrangements and procedures for ratification of international treaties. The status of other international treaties not considered relevant to human rights protection is left even more uncertain, with only the meager promise of the Article 8 mentioned above. In the long run, the need to declare a clear hierarchical relationship between international treaties (human rights treaties in particular) and domestic laws is inevitable as Cambodia integrates itself deeper into the international community. Usually, this can be realized either by means of a constitutional amendment or by development of judicial decisions and practices. But since current judicial practice in Cambodia is short of consistency and coherence due to the lack of means to publish and follow precedents, decisions made by the judicial bodies may not bring forth change within a 11 Articles 32-50 of the 1993 Constitution listed specific freedom and human rights to be protected, similar to the Bill of Rights adopted by some constitutions. 16 Constitutional Provisions on Treaties reasonable period of time.12 Theoretically, decisions made by the Constitutional Council will bear much authority, but this institution has indicated its tendency to interpret its own mandate very narrowly for many years since its establishment.13 Despite these institutional problems, Cambodia’s efforts to uphold its commitment to international law have not been completely rhetorical. At times, legislative and judicial practices have given hierarchical dominance to international law in cases of a supposed conflict between the domestic and international norms. By applying the “transformative moments” theory introduced above, the following section will explain how these constitutional commitments are brought to real practices. Two Historical “Moments” of Accepting International Legal Norms Although Cambodia became a member of the United Nations in 1955, the then existing Constitution contains no provision on the legal status of the UN Charter or any international legal instruments adopted by the UN in relation to domestic laws of Cambodia. Subsequent Constitutional amendments and changes in constitutional politics did not lead to any legal considerations of this issue. It was only in 1993, when the new Constitution was drafted by the Constituent Assembly elected under the auspices of the United Nations, that provisions were written to consider international human rights laws. Unlike parallel provisions in most other constitutions,14 these provisions refer almost exclusively to the UN conventions and treaties, ignoring other international treaties. Despite the clear constitutional commitment to observing the rights and freedoms incorporated in these UN treaties, there is 12 Although recently selected court cases have been compiled for limited distributions by the Supreme Court and the Supreme Council of Magistracy, the selection standard is not clear and there has not been any indication that they are being used as any form of court precedents in practice. 13 See Teilee Kuong, “Development of the Post-Conflict Constitutionalism in Cambodia (1993-2003)”, Asia Law Review, vol.3, no.2, December 2006, pp. 73-99. 14 For an overview of the constitutions adopted by Central and Eastern European countries after the Cold War, see Andrew Valden S. Vereshchetin, “New Constitutions and the Old Problem of the Relationship between International Law and National Law”, European Journal of International Law, 7(1), 1996, pp. 29-41. Cambodian Yearbook of Comparative Legal Studies Vol. 1 17 nothing within the Constitution that specifies a course of action whenever conflicts between domestic laws and international treaties occur. Soon after the adoption of the 1993 Constitution, Cambodia was confronted with criticisms as a result of specific politically sensitive measures taken by the judiciary and the legislative branches, which sent out a negative image of the country’s real commitment to observe international human rights law. Serious weaknesses of institutionalization before, during and after the over-heated first constitutional moment led to critical failures in terms of implementing the new idealistic political system based on international norms. 15 For instance, criminal sentences for journalists charged of defaming some political leaders were criticized for not conforming with Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Many argued that the controversial removal of outspoken members of the National Assembly as a result of their loss of membership in the political party was against the spirit of freedom of expression guaranteed by the 1993 Constitution itself. 16 However, not only were these criticisms negatively received by Cambodian politicians, they also failed to provoke the kind of general discussion regarding whether or not these actions violated international human rights treaties and the Constitution that committed to observing them.17 Although criticisms may not always be credible, the lack of interests, capacity or preparedness of majority Cambodian legal professionals and lawmakers to debate about such issues in a legally and logically convincing way suggests that there was a technical failure at the time to enable most Cambodians to understand the conflict of relationship between international treaties and domestic laws and regulations as a serious problem in the establishment of a post-conflict rule of law.18 Had serious debates 15 For extensive empirical observations, see Sorpong Peou, International Democracy Assistance for Peacebuilding: Cambodia and Beyond, Palgrave Macmillan, 2007. 16 See Report of the UN Secretary General on Human Rights Questions, submitted to the General Assembly, UN Doc A/50/681, dated 26 October 1995, paras. 47-52, and Sorpong Peou, Intervention and Change in Cambodia – Towards Democracy? ISEAS, 2000, pp. 191-199. 17 Domestic discussions then were rather confined to a few opinions made by leading NGO activists and opposition newspapers with limited circulations at the time. 18 Although the political climate at the time may not have made such debates easy, the argument presented here is that technically those debates might not have been 18 Constitutional Provisions on Treaties been provoked by any powerful domestic community of legal professionals at that time, they would have however involved highly complicated questions, and perhaps the ambiguous constitutional provisions and the then non-existence of the Constitutional Council could only have resulted in leaving the decisions to be made by politicians at the highest level. But the lack of technically critical domestic debates on these problems itself testified to a form of constitutional failure to promote the healthy practice of a new democracy. In hindsight, the constitutional provisions with respect to international human rights treaties, while laudable for their historical significance and details, may indeed merely represent a sentimental political promise and a constitutional rhetoric responding to the political idealism at the end of tragic and enduring wars. These provisions were originally mandated by the 1991 Agreement on a Comprehensive Political Settlement of the Cambodia Conflict.19 Article 23 of the Agreement provides that basic principles regarding basic human rights and fundamental freedoms shall be incorporated in the new Cambodian Constitution. The contents of these principles are specified in Annex 5 to this Agreement. The Annex 5 states: ….. the constitution will contain a declaration of fundamental rights, including the rights of life, personal liberty, security, freedom of movement, freedom of religion, assembly and association including political parties and trade unions, due process and equality before the law, protection from arbitrary deprivation of property or deprivation of private property without just compensation, and freedom from racial, ethnic, religious or sexual discrimination. It will prohibit the retroactive application of criminal law. The declaration will be consistent with the provisions of the Universal Declaration of Human Rights and other relevant international instruments.”20 possible given the kind of political sentiments involved in the issues and the society's lack of a genuine academic capacity to debate these issues. 19 Hereinafter Paris Peace Agreements or simply Agreement. A brief review of the drafting process of the 1993 Constitution and the impacts of the Agreement on the human rights provisions can be found in MacAlister Brown and Joseph J. Zasloff eds., Cambodia confounds the peacemakers 1979-1998, Cornell University Press, pp. 190-210, and Stephen Marks “New Cambodian Constitution: From Civil War to Fragile Democracy”, 26 Columbia Human Rights Law Review, pp. 45-110, 1994-1995. 20 Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Annex 5: Principles for a New Constitution for Cambodia, para. 2. For detail Cambodian Yearbook of Comparative Legal Studies Vol. 1 19 As a result of the successful general elections in 1993, this Annex serves as part of the blue print for the 1993 Constitution regarding provisions on human rights. It stands as proof of Cambodia’s first explicit political attempt to bridge the gap between the Cambodian Constitutional legal order and international human rights law. It is interesting to note that the political promises made in Annex 5 became one of the important rhetorical methods that political parties used at electoral campaigns in the 1993 elections.21 The rhetoric finally found its way into the 1993 constitution. However, the wording of the constitution did not allow these provisions to move away from earlier rhetorical objectives. The first transformative moment, which began with the warring factions' acceptance of the Paris Peace Agreements and culminated with the promulgation of the 1993 Constitution, has added to the birth of new Cambodian constitutional politics that feature explicit constitutional recognition of the role international human rights law must have in shaping domestic human rights norms and practices. However, it was only one decade later that a second Constitutional moment came to bring these political commitments one step away from purely rhetorical existence. The following section will look into the coming of this second moment. Going Beyond Rhetoric Cambodia’s accession to the World Trade Organization (WTO) Cambodia’s accession to the World Trade Organization in 2003 and the establishment of the Extraordinary Chambers in the Court of Cambodia in 2004 are two important incidents marking the second transformative moment that enabled Cambodia to move forward in its commitment to implementing international laws and standards. Although Cambodia acceded to the WTO as a least developed introduction to the Agreement and some information on the political background, see Steven R. Ratner, “The Cambodian Settlement Agreements”, American Journal of International Law, vol. 89, Issue 1, January, 1993, pp. 1-41. 21 Grant Curtis, Cambodia Reborn? The Transition to Democracy and Development, Brookings Institution Press, 1998, p. 19. 20 Constitutional Provisions on Treaties country and enjoyed favorable terms of concession, Cambodia nonetheless had to take several legislative measures to clarify the hierarchical legal order defining the relationship between its domestic law and relevant international commercial treaties. This was particularly necessary in the field of intellectual property law. In 1999, when the WTO started its reviews of Cambodia’s application for membership submitted five years earlier, Cambodia was preparing draft laws on patent and industrial design, marks protection, copyright and geographical indicators.22 In response to the Memorandum on the Foreign Trade Regime submitted to the WTO by the Government of Cambodia, WTO Members submitted detailed questions to Cambodia inquiring about its legislative measures on the protection of intellectual property rights. The questions concerned not only draft legislations or enacted laws related to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), but also the details of mechanisms needed to address violations of these laws.23 Following discussions at the WTO, Cambodia carefully prepared domestic laws related to intellectual property rights to avoid conflicts with the TRIPS and other relevant international treaties. The government presented the Working Party with a list of legislative articles, provisions, and summaries thereof. The members of the Working Party were satisfied that these laws would be in conformity with the TRIPS requirements. 24 Despite the lack of explicit constitutional provisions on the status of international economic treaties, the Law on Trademarks and Law on Patents stipulate that in the event of conflict with international economic treaties related to intellectual property, the provisions of international treaties prevail. 25 It 22 WTO Document, Working Party on the Accession of Cambodia, WT/ACC/KHM/2, 22 June 1999 (99-2515), para. 47. 23 WTO documents, Working Party on the Accession of Cambodia, WT/ACC/KHM/3, 4 January 2001 (01-0023), particularly questions 157-160 and 164-167; WT/ACC/KHM/6, 11 December 2001 (01-6271), questions 94 and 97-103; WT/ACC/KHM/12, 29 July 2002 (02-4181), questions 84-89; WT/ACC/KHM/20, 3 March 2003 (03-1214), questions 63-85. 24 Checklist of TRIPS Requirements and Implementation by the Kingdom of Cambodia (Revision), WT/ACC/KHM/7/Rev.1, 31 July 2002 (02-4236). 25 Article 60 of the Law Concerning Marks, Trade Names and Acts of Unfair Competition promulgated on February 7, 2002 states “The provisions of any international treaties in respect of industrial property to which the Kingdom of Cambodia is a party shall apply to matters dealt with by this Law and, in case of conflict with provisions of this law, shall prevail over the latter”, English translation available at http/:www.gocambodia.com/laws/copyright3.asp (access date: November 7, 2009). Article 129 of the 2002 Law on Patents, Utility Models Cambodian Yearbook of Comparative Legal Studies Vol. 1 21 remains to be seen how these laws will be implemented by the courts, including the newly enacted Civil and Criminal Codes which drew much attention at the Working Party discussions but were not enacted at the time of Cambodia’s accession. However, the process of accession to the WTO has contributed to remarkable legislative efforts to ensure that international laws are given clear legal priority over Cambodian domestic laws, with intellectual property and trade rights in particular. Establishment of the Extraordinary Chambers in the Court of Cambodia Another incident which happened at almost the same time as Cambodia’s accession to the WTO and should be taken into account when analyzing the hierarchical relationship between Cambodian and international laws was the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC). These chambers were established to try senior leaders of the Democratic Kampuchea, or the Khmer Rouge, and persons most responsible for the heinous crimes against humanity committed in Cambodia from 17 April 1975 to 6 January 1979. The establishment was based on a law adopted and amended by the National Assembly on 27 October 2004,26 in implementation of a bilateral agreement between the Government of Cambodia and the United Nations.27 This process has brought the issue of trying individuals for past atrocities committed in Cambodia beyond mere promises and political rhetoric. The law provides material jurisdictions to the Chambers to try crimes set forth in the 1956 Penal Code regarding “homicide”, “torture” and “religious persecution”; 28 crimes of genocide “as defined in the Convention on the Prevention and Punishment of the Crimes of Genocide of 1948”;29 crimes against humanity;30 grave and Industrial Designs contains similar provisions. 26 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, available at http://www.eccc.gov.kh (last access date: 1 November, 2009) 27 Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, signed on 6 June 2003. 28 Ibid. Article 3. 29 Ibid. Article 4. 30 Ibid. Article 5. 22 Constitutional Provisions on Treaties breaches of the Geneva Convention of 12 August 1949;31 and, acts of destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict.32 Regarding the “trial proceedings” of the Chambers, Article 33 (new) of the Law states: The Extraordinary Chambers of the trial court shall ensure that trials are fair and expeditious and are conducted in accordance with existing procedures in force, with full respect for the rights of the accused and for the protection of victims and witnesses. If these existing procedure (sic) do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard, guidance may be sought in procedural rules established at the international level. The Article also explicitly refers to “international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights” as standards for the Extraordinary Chambers of the trial court to exercise their jurisdiction.33 Starting with an early decision regarding the defendant’s application for the disqualification of a sitting judge, the Pre-Trial Chamber did not hesitate to consult decisions made by other international courts. The Chamber cited the Judgment made by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in applying the appropriate test for bias. 34 There are many other examples of the Chamber's continual reference to international treaties, judgments of other international courts and recommendations made by international treaty bodies as the grounds for its decisions. All of these cases point to the serious attention to international law and practices that the Pre-Trial Chamber used during criminal court sessions. Although these 31 Ibid. Article 6. 32 Ibid. Article 7. 33 Ibid. Article 33, second paragraph. 34 See footnotes 4 and 5 and the relevant paragraph 15 of the Public Decision on the Co-Lawyers’ Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal against the Provisional Detention Order in the Case of Noun Chea, Pre-Trial Chamber criminal case file no.002/19-01-2007-ECCC/OCIJ (PTC 01), Cambodian Yearbook of Comparative Legal Studies Vol. 1 23 Chamber practices should not lead us to forget the highly international character of these chambers both in terms of their statutory mandates and multinational personnel structure,35 the fact that Cambodian judges are in the majority and that the Chambers have been created by a Cambodian law are significant and deserve being taken into consideration when reviewing Cambodia’s commitment to international law. Conclusions This paper suggests that the relationship between domestic law and international law in Cambodia can also be examined by applying the structural model of the Ackermanian transformative moments theory. It enables the analyses to be based on more than mere observations of formal constitutional structure of a hierarchical order, and reveals the political background of different stages of constitutional development. This political background is important for understanding how constitutional norms have been formed at specific levels with respect to particular legal issues. The constitutional relationship between domestic and international law normally defines a nation’s mode of interaction with other nation or group of nations in the form of an abstract international community or an organized international institution, in normative formation and communication of legal and normative values. But the interactions may take many different forms. Historical, political and cultural backgrounds all determine the specific forms of interaction. The emergence of the two constitutional moments in Cambodia during the last two decades shows that Cambodian politics reflect both strong intervention by foreign powers and international organizations involved in peace-building and economic development, and the complex interaction among different internal factors. These factors include Cambodia's recent political history, the way that Cambodians perceive an appropriate direction for re-building the nation after many destructive years, the way Cambodia wants to structure its own stance in the existing international context, and the way Cambodia accepts technical and political solutions to duck normative conflicts between domestic legal realities and the international practices demanded of it when 35 Although the ECCC is established as a domestic court, the bench is composed of Cambodian and international judges, with the former being the majority. 24 Constitutional Provisions on Treaties seeking international recognition and facilitation of its integration into the “international community”. As the Speaker for the Constituent Assembly noted in 1993, the Constitution “still needs further amendments until it meets the aspirations of the people.”36 The same has to be said regarding the constitutional definition of a technical relationship between domestic laws and international treaties. A well-defined rule of law is increasingly needed to govern this relationship, to let the nation and its people know how to sail their way safe in the shoreless ocean of the “international standards” to which they have committed their observance. 36 Ker Munthit, “Constitution Ratified”, Phnom Penh Post, 24 September 1993. Cambodian Yearbook of Comparative Legal Studies Vol. 1 25 The Constitution of Cambodia And the Rule of Interpretation In Comparative Perspectives Hor Peng* Introduction This article discusses the core concept of the Cambodian Constitution and then suggests proper methods of comparative constitutional interpretation. The aim of this article is to study what the core elements of the modern constitution are and how these elements should be interpreted. The study will be useful in making important contributions to the promotion of constitutional democracy in Cambodia in some concrete and practical aspects. I. The Constitution of the Kingdom of Cambodia The Western concept of modern constitutionalism, which contains elements of democracy, human rights, and rule of law, was introduced into Cambodia in 1947, but encountered limited success. 1 In 1993 after more than two decades of war and destruction, a new Cambodian Constitution (hereafter the Constitution) was adopted to re-introduce these Western constitutional elements into the Cambodian legal system. It is important to examine how the new Constitution is and will be interpreted in the Cambodian context from a comparative point of view. The Constitution incorporates core elements of democracy, human rights, and the rule of law based on the Western concept of constitutionalism. The preamble of the Constitution declares a political determination to restore the nation to an Island of Peace * LL.D, Professor, Royal University of Law and Economics, Cambodia 1 See Hor Peng, The Reform of Parliament in Cambodia: Towards an Effective Parliament in terms of Strong Representation, LL.D. Dissertation, Nagoya University Graduate School of Law, 2005. 26 Constitution and the Rule of Interpretation based upon the principles of a liberal multi-party democracy, human rights, and rule of law. 2 On the other hand, the Constitution provides for restoration of kingship, giving the King the mandate to reign, but not to govern, following the British monarchy model and the contemporary Japanese imperial system. In this context the King is the head of state, but shall be out of politics and not above politics. The restoration of kingship is not contradictory to the principle of a liberal multi-party democracy, which is theoretically based upon people’s sovereignty, and is instead under the law and has a constitutional right and duty to support (as a guarantor/protector) democracy, human rights, and rule of law.3 According to Brian Z. Tamanaha 4 , democracy and human rights, along with formal legality, are basic elements of a substantive concept of rule of law. The rule of law requires that not only democracy be safeguarded, but that individual rights (right to life, right to freedoms, right to property) must be protected by laws, and particularly protected from any manifestation of arbitrary power by public authorities. From this standpoint, the safeguarding of human rights and a liberal multi-party democracy requires an established rule of law where the system of constitutional review of legislative and administrative action is very important. II. The System of Constitutional Review In the civil law system, constitutional review is the power of a court to evaluate the constitutionality of a law and actions taken by the public sector5. In the common law system, the doctrine of judicial review gives the courts the power to invalidate government actions which are antithetical to the constitution.6 Cambodian Constitution 2 The Constitutions of the Kingdom of Cambodia, Article 1, Article 31, Article 51, and Article 150. 3 Ibid. Articles 8 and 9 4 See Brian Z. Tamanaha,On the Rule of Law : History, Politics, Theory (2004. Cambridge University Press, p. 110-113). 5 See Geraldina Gonzalez De La Vega, “Two Different Approaches in Constitutional Interpretation with Special Focus in Religious Freedom, A comparative Study between Germany and the United States”, published in the Bulentin Mexicano de Derecho Comparado nueva serie ano XLI num.122, mayo-agosto de 2008, pp.795-833 (available at www. juridica.unam.mx). 6 See Mikihisa Takano, The Theory of Avoiding Decision of Constitutional Issues, A Comparative Study of Judicial Self-Restraint in American Courts and Japanese Cambodian Yearbook of Comparative Legal Studies Vol. 1 27 mandates the creation of constitutional and administrative review to protect rule of law. The system of constitutional review is solely under the authority of the Constitutional Council which imitates the French approach, “Conseil Constitutionnel”. The Constitutional Council has a constitutional duty to safeguard and interpret the Constitution, and to review the constitutionality of legislation.7 The system of administrative review is under the authority of the ordinary courts,8 which settles not only civil and criminal cases, but also administrative cases.9 However, throughout the 16 years of constitutional enforcement, the Constitution has been amended six times by Parliament.10 The Constitutional Council, in response to some constitutional provisions that were controversial in practice, has interpreted these provisions, creating constitutional jurisprudence through their decisions.11 The Constitutional Council has also declared acts of legislation adopted by Parliament as partly or wholly unconstitutional,12 implying the established rule of law is evolving in its review of legislative/administrative powers. From a historical point of view, each constitutional review system was developed in accordance with a different constitutional tradition. According to Geraldina González De La Vega 13, two different paradigms have been developed; one, within the common law system, the so-called judicial review, and the other, within the civil law system, the so-called constitutional jurisdiction. Courts (1992, Shinzansha Publishing Co. p.23). 7 Chapter7 of the Constitution. The Constitutional Council reviews the constitutionality of the legislation and interpretation of constitutional provisions in both abstract and concrete cases, but in France only in abstract case. On the other constitutional role of Constitutional Council is also to settles all deputes in election. 8 Constitution of the Kingdom of Cambodia, Article 128. 9 Ibid. Article 128. 10 See Jörd Menzel, The Cambodian Constitution (First Edition, 2008, the Secretary of the Senate of Cambodia). It is a compilation of current constitutional text in three languages, Khmer, English and French. 11 See The Compilation of the Constitutional Council’s Decisions (1998-2008). The interpretation of article 82 in case concerned to question of the quorum and present of the king , the interpretation of the article 7 in case concerned to the question of the abdications or retirement of king, the interpretation of the article 113 in case concerned to the question of an emerging case of lawmaking ... 12 Id. The CC found the drafted law of establishment and functioning of the ministry of women affairs (1999) was unconstitutionally, but, , the drafted law of national auditing (2000) with article 40, and the drafted law of ECCC (2002) with several articles were partly unconstitutionally. 13 See Geraldina González De La Vega, see Supra note 5. 28 Constitution and the Rule of Interpretation According to De La Vega, the American constitutional review system is a classic example of a judicial review system. Established by the end of the 18th century, the American constitutional review system was structured to give supremacy to the judiciary. In Germany, which has the constitutional review system (the Constitutional Court with the constitutional jurisdiction) was developed in the 20th century to support the rule of law. 14 In the French constitutional review system a Constitutional Council (the “Conseil Constitutionnel”) was developed during the Fifth Republic with the important responsibility of conducting constitutional reviews of legislation.15 The Japanese Constitution adopted the American approach of judicial review. As a result, the Japanese Court has the power to interpret the Constitution, and to review legislative actions of the legislature as well as administrative actions of the government.16 As a matter of practice, three different approaches for the process of constitutional review have emerged. In the approach taken by the American and Japanese systems, the court reviews questions of constitutionality through concrete cases only. The French approach allows the Constitutional Council to conduct constitutional reviews through only abstract cases. In the German system, the Constitutional Court reviews constitutional questions through both abstract and concrete cases. In Cambodia, the Constitutional Council has adopted the German approach for the process of constitutional review because of its flexibility and practicality. III. Rules of Constitutional Interpretation The question becomes, how does the Cambodian Constitutional Council resolve questions of constitutional interpretation, and is there any proper system of interpretation which has applied in democratic countries? To answer these questions, this article will attempt to find a proper system of interpretation by using comparative aspects and examine some cases in which the Cambodian Constitutional Council has demonstrated its approach 14 Id. p.799 15 See Vicki C. Jackson & Mark Tushnet, Comparative Constitution (1999, New York Foundation Press). 16 See Mikihisa Takano, at supra note 6. Cambodian Yearbook of Comparative Legal Studies Vol. 1 29 to constitutional interpretation. From a practical point of view, when the meaning of a constitutional provision is vague, it produces controversial questions, causing the judiciary to act to determine the provision’s meaning through interpretation. The constitutional provisions should be interpreted so as to reinforce the nation’s system of democratic representation. 17 According to Aharon Barak, interpretation is a rational activity giving meaning to a legal text.18 The aim of interpretation is to realize the purpose of the law through the text (language of law) and sources outside of the text.19 There is no perfect system for interpreting the law. Each system is designed and developed based upon a nation’s legal system and by the Court’s jurisprudence. In interpreting the Constitution, judges have freedom in choosing their method of interpretation, but courts in democratic countries have adopted using some shared common approaches and sources when interpreting the constitution. In Amercia, Supreme Court judges are divided on whether subjective or objective elements should be considered and whether or not sources inside and outside the text should impact a court’s decision. 20 In Germany, according to Donald P. Kommers, the German Constitutional Court interprets Basic Law (the Constitution) using fourth approaches of interpretation – ie, historical, grammatical, systematic, and teleological. The Constitutional Court also embraces principles of proportionality and rationality that the state must satisfy to justify laws that limit basic rights. 21 According to Aharon Barak, interpretation of a constitution 17 See Mark Tushnet, “The United States: Eclecticism in Service of Pragmatism“ in Jeffrey Goldsworthy (edt.) Interpreting Constitution: A Comparative Study (2006, Oxford University Press, pp.161-214). 18 See Aharon Barak, Purposive Interpretation in Law (2005, Princeton University Press, p.3). 19 Id. Abaron Barak, The Judge in Democracy (2006, Princeton University Press, p.124). 20 Id. p.133. Abaron Barak noted that some justices give precedence to the subjective elements (intentionalism, framers’ intent), while others oppose privileging the subjective elements. Among these opponents, some wish to give the Constitution a meaning that does not necessarily accord with the will of its authors, but rather reflects the understanding at the time the Constitution was written (originalism). Others emphasize contemporary objective elements. According to him this split in American constitutional viewpoint is regrettable. 21 See Donald P. Kommers, “Germany: Balancing Rights and Duties” in Jeffrey Goldsworthy (edt.) Interpreting Constitution: A Comparative Study (2006, Oxford University Press, pp.161-214). 30 Constitution and the Rule of Interpretation requires rationality, which is based upon the proper balance between subjective and objective elements, taking into account the whole purpose of the constitution, including the intent of the framers of the constitution and the fundamental contemporary values of the country. To accomplish this, important and relevant sources from the constitution’s text, history, and precedents, as well as comparative aspects of law should be evaluated.22 Mark Tushnet also pointed out that a primary strategy for dealing with interpretive questions is to identify and rely on “sources” for constitutional interpretation. 23 According to Mark Tushnet, the sources for constitutional interpretation in the United States include precedents, original understandings, the overall structure of the Constitution, a combination of moral and political theory, and (most controversially recently) international and comparative law. On the other hand, if the international law point of view is assessed in the context of treaties, there is a general rule of interpretation which implies a treaty shall be interpreted in good faith in accordance with the ordinary meaning being given to the terms of the treaty in their context and in light of its objective and purpose.24 In Cambodia, the Constitutional Council (CC) has tried to resolve the question of constitutional interpretation through several rulings regarding interpretation. Take, for instance, the case concerning the abdication of the King (Article 7). In July 2003, after a third parliamentary election, there was a constitutional crisis because the winning parties could not agree on establishing a new coalition government. The King tried to fulfill his constitutional role reconcile the parties’ differences in order to form a coalition government, but was unsuccessful. After his failed attempt to facilitate a new coalition government, the King left Cambodia for Beijing in order to receive medical treatment. The constitutional crisis lasted one year until mid 2004 when the two political parties holding the majority, CPP and Funcinpec, successfully reached a party reconciliation by themselves. A new government was established following a “package vote” amendment of the 22 Id. p.127-128. 23 See Mark Tushnet, Constitutional Interpretation and Constitutional Theory, Keynote Address delivered on 12/01/2008 at the Conference of Academia Sinica (available at www.iias.sinica,edu.tw). See also Christopher Wolfe, From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in Amercia (2006, Published by The Heritage Foundation, No2, p.1-12). 24 See Vienna Convention on the Law of the Treaties between the States and International Organizations or Between International Organizations 1986, Article 31. Cambodian Yearbook of Comparative Legal Studies Vol. 1 31 constitution. Following the constitutional crisis, a rumor began that the king would like to retire and possibly abdicate the throne. Unfortunately there was a very controversial interpretation of Article 7 of the Constitution. Article 7 [Head of State] (1) The King of Cambodia shall reign but does not govern. (2) The King shall be the Head of State for life. (3) The King shall be inviolable. One group of parliamentary members wrote an official letter to ask the CC to interpret Article 7. The CC’s interpretation incorporated only written objective elements, textualism, and argued “the King reigns and is in a position of a head of state for a life ... and the abdication of the throne was not expressed in the Constitution,”25 placing this constitutional norm in a political vacuum. However, after this interpretation, on October 7, 2004, the king officially declared his retirement from the throne due to health conditions. Soon after, the Cambodian parliament passed a law regarding the throne on October 8, 2004, which legalized the act through Article 10. In this case, the State’s act is not bound by the doctrine of intra vires, but it is possible for the state to act ultra vires. In Germany it is also possible for the State to act in ultra vires, however it requires the act to be grounded in necessity, suitability, and proportionality26 or with good cause in UK.27 Another case concerned the initial opening session of the National Assembly (the interpretation of Article 82) after the 2003 general election. Questions arose regarding the legitimated quorum of the initial session and the presence of the King at it. Specifically the question was asked whether or not a quorum was required to be counted during the initial session of the National Assembly for it to be legitimate and whether or not the King had to participate in the initial session. Article 82 [Initial Session] (1) The assembly holds its initial session no later than sixty days after the election upon notice by the King. 25 See Constitutional Council's Decision (No.061/003/2004) dated September 07, 2004 (in paragraph 3 and 4) 26 See Geraldina González De La Vega in Supra note 5, p.809. 27 See Hilaire Barnet, Constitutional and Administrative Law (5th edt., 2004, Cavendish Publishing, p.707-733). 32 Constitution and the Rule of Interpretation (2) Before taking office, the assembly decides on the validity of each member's mandate and votes separately to choose a President, Vice-Presidents and members of each Commission by a two-third majority vote. (3) All assembly members must take the oath before taking office according to the text contained in Annex 5. The King wrote a royal message to the CC, asking for an advisory opinion in interpreting Article 82, with the key question being whether or not the King has to go to the initial session. The CC interpreted Article 82, applying not only the sources in the text, but also the sources outside the text (using of precedents, history of the rule and contemporary objects) to argue in support of the jurisprudence of ultra vires. The CC concluded that “during the initial session, quorum is not required because both the Constitution and Internal Regulation do not stipulate it. But after the initial session, it requires quorum to be counted (at least 7/10 of the whole members) for its legitimacy of the meeting”. 28 Concerning the second question, CC interpretation was that “the King ought to be at the initial session because the presence of the King is important for the Nation and customarily the King attended it...” but “the term ‘ought to be’ does not mean ‘must’ ...”29 This means when the written text is silent or does not express a view point explicitly, there is no necessary retrictions which may be imposed on the state’s actions or on individuals. The Constitution does limit government, but only in the way specified in its text.30 The key sources which the CC applied for this case, relied upon not only written sources inside the text (first jurisprudence), but also unwritten sources outside the text such as original understandings including customary practice and history of rule. In this case the CC tried to apply the case of abdication of throne as a unique standard for Cambodian jurisprudence. In case concerning interpretation of the Article 113 (the process of lawmaking in the parliament) proved to be controversial in its practical interpretation with the terminology "if in an emergency" and "the rule of counting of the day." 28 See Constitutional Council's Advisory Opinion to The King (No.20/2003), dated September 22, 2003 (in point 3 with paragraph 2). 29 See Constitutional Council's Advisory Opinion to The King (No.19/2003) dated September 18, 2003 (in paragraph 1) and Constitutional Council's Advisory Opinion to The King at Supra note 28 (in point 2). 30 Justice Jame Iredell, Cf. Mark Tushnet, at supra note 17, p.27. Cambodian Yearbook of Comparative Legal Studies Vol. 1 33 Article 113 [lawmaking] The Senate shall, within a period of not more than one month after a law or other matter is submitted to it, examine and make recommendations on draft laws or proposed law that have been adopted by the National Assembly and other matters that the National Assembly submits to the Senate. In an emergency this period shall be reduced to five days.... In this case, the CC interpreted the terms by using both objective and subjective elements in the light of contemporary objectives and by using relevant sources from precedents and comparative law.31 The CC argued in its decision that “we can examine the term of [in the case of an emergency] in four de-facto cases: (1) in case the draft or proposed law expresses in its Article that ‘this law is declared as a matter of urgency’; or (2) in case there is official letter of the government or the legislative initiator that requests the National Assembly to examine the draft/proposed law in an emergency; or (3) in case there is a request from the National Assembly asking the Senate to examine the draft/proposed law in an emergency, or (4) in case that the government or the legislative initiator request the Senate to examine it as a matter of urgency ...” Relating to the method of counting of day, the Constitutional Council said that “acknowledging that the rule of time-calculation or the rule of counting of the day is not expressed in our domestic written laws precisely……” and “According to administrative as well as judicial precedents, the rule of official counting of the day follows two practical types of formulas ... and our country used to apply these two formulas during the pre-civil-war (1970) period, and many countries in the world also applied these formulas including France as well”. Closing Remarks In Cambodia, the current constitution inherits elements of liberal multi-party democracy, human rights, and the rule of law with a kingship regime. To safeguard these important elements, the constitutional review system was established and developed parallel to the French institutional approach and the German procedural 31 See Constitutional Council's Decision (No.036/002/2000 ) dated June 15, 2000 (in paragraph 2 & 3). 34 Constitution and the Rule of Interpretation approach. In interpreting the Constitution, the Constitutional Council has freedom in choosing their method of constitutional interpretation. As a matter of fact, the CC has closely approached legal positivism (textualism) in compliance with principle of legal certainty and principle of separation of powers, however the use of sources outside the constitutional text are typically similar with other court of democratic country. Reference Hor Peng, The Reform of Parliament in Cambodia: Towards an Effective Parliament in terms of Strong Representation, LL.D. Dissertation, Nagoya University Graduate School of Law, 2005 (It is available at Graduate School of Law Library, Nagoya University). Geraldina Gonzalez De La Vega, Two Different Approaches in Constitutional Interpretation with Special Focus in Religious Freedom, A comparative Study between Germany and the United States, published in the Bulentin Mexicano de Derecho Comparado nueva serie ano XLI num.122, mayo-agosto de 2008, pp.795-833 (it is also available at www. juridica.unam.mx). Mikihisa Takano, The Theory of Avoiding Decision of Constitutional Issues, A Comparative Study of Judicial Self-Restraint in American Courts and Japanese Courts (1992, Shinzansha Publishing Co.). Aharon Barak, Purposive Interpretation in Law (2005, Princeton University Press). Aharon Barak, The Judge in a Democracy (2006, Princeton University Press). Jörd Menzel, The Cambodian Constitution (First Edition, 2008, the Secretary of the Senate of Cambodia). Jeffrey Goldsworthy (edt.) Interpreting Constitution: A Comparative Study (2006, Oxford University Press). Raoul M. Jennar, the Cambodian Constitutions (1953-1993) (1995, White Lotus) Mark Tushnet, Constitutional Interpretation and Constitutional Theory, his Keynote Address which delivered at 12/01/2008 at Academia Sinica (www.iias.sinica,edu.tw). Christopher Wolfe, From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in America (2006, Publishing by The Heritage Foundation, No2, p.1-12). Cambodian Yearbook of Comparative Legal Studies Vol. 1 35 Vicki C. Jackson & Mark Tushnet, Comparative Constitution (1999, New York Foundation Press). Vienna Convention on the Law of the Treaties between the States and International Organizations or Between International Organizations 1986, Article 31. The Documents of Constitutional Council's Decision and Advisory Opinions (1998-2008). published by the Constitutional Council in 2009. The Document of Cambodian Law, published by UNDP 1993-2005. 36 Constitution and the Rule of Interpretation Cambodian Yearbook of Comparative Legal studies Vol. 1 37 Comparing the Civil Codes and the Codes of Civil Procedure Across Borders: The Cases of Japan and Cambodia Kamiki Atsushi* (I) The Civil Code (CC) 1. Introduction The current Cambodian Civil Code (Cambodian Code) was mainly drafted by Japanese scholars, therefore its contents bear similarity to that of the Japanese Civil Code (Japanese Code). However, during the process of drafting, detailed surveys of Cambodian social situation and realities were conducted, and consultation with the old Cambodian Code drafted under the French colonial administration and a number of civil codes of other countries have made this new Cambodian Code a kind of hybrid code. This paper will highlight some provisions, which are substantively different from those stipulated in the Japanese Code; point out some special aspects inside the Cambodian Code; and single out other aspects of the Cambodian provisions which do not have parallel stipulations in the Japanese Code but whose essences have been established by judicial precedents in Japan. This paper will highlight some of the main differences between the two Codes. * Kamiki Atsushi is a practicing attorney in Japan. He served as JICA legal expert for the Cambodian Ministry of Justice from 2005 to 2008 and is currently working as a JICA legal expert/adviser to the Bar Association of the Kingdom of Cambodia in Phnom Penh. 38 Comparing Codes Across Borders 2. Issues of Difference from Provisions of the Japanese Code 2-1 Building is regarded as a component of land In principle, a building or structure immovably constructed on land is regarded as one component of the land by the Cambodian Code (Article 122), and not an independent piece that can be separated from the land. This differs from the stance taken by the Japanese Code, which treats buildings as independent and separate from the land. The Cambodian Code adopts the same approach as that of civil codes found in European countries. From a comparative perspective, this may be considered a more common approach.1 However, a building constructed by a person in exercising his/her legitimate right on somebody else’s land does not become a component of the land (Article 123). The building in this case is deemed a component of the right to occupy or use the land (Article 124). For example, if a person constructs a building on someone else’s land over which the person is a perpetual leaseholder (holding the right to use and obtain profits), the building does not become a component of the land but a component of the perpetual lease right. 2-2 Necessity to register the transfer of title over immovable properties With exceptions of possessory right, right of retention, right to use and right of residence, creation, transfer, alternation of the real rights over immovable properties shall be, in principle, registered in order to assert against third-party claims (the principle of assertion against third-party claims in the transfer of title (Article 134). An agreement to transfer ownership over immovable properties will not take effect unless the transfer is registered accordingly (Article 135). Registration therefore becomes the condition for legal effects to take place.2 1 Article-by-Article Commentaries on the Civil Code of the Kingdom of Cambodia, at Article 122. 2 For more details, see Yasuda Yoshiko “camboja ni okeru houseibi to hou no Cambodian Yearbook of Comparative Legal studies Vol. 1 39 2-3 Notarial authentication requirements for a transfer contract of ownership in immovable properties Transfer of ownership in immovable properties by contract does not come into effect without a notarized document (Article 336(2)). The reason for including this provision in the Code, is to ensure that the notarial authentication requirement will forestall loose transfer of land and protect proprietors. Authentication of the contractual contents also helps protect the transferee. Moreover, it is expected that availability of a document to be used as precise evidence will contribute to prevention of disputes, whenever contestations occur in a transfer of immovable properties.3 2-4 Defective manifestation of intention The Cambodian Code does not adopt the conceptual differentiation of unilateral juristic acts from juristic acts unified by one contract. The Book on Claims is mainly made up of provisions on contracts. Moreover, contracts are defined as based on conformity in the intentions of parties to give birth to, modify or terminate an obligation (Article 311). In principle, the provisions are confined to different categorizations of claims contracts. However, the term “contract” is also used to refer to agreements on mortgage, etc. It is not necessarily true that the term is given a clear-cut definition. Defective manifestation of intention does not result in rescission of the manifestation of intention but of the contract itself. Defective manifestation of intention may take place in cases of mistake (Article 346), fraud (Article 347), misrepresentation (Article 348), abuse of the circumstances (Article 349), duress (Article 350), an act of making excessive benefits (Article 351), and fictitious manifestation of intention (Article 353). Among these, misrepresentation, abuse of the circumstances, and an act of making excessive benefits are not stipulated in the Japanese Code. They are adopted from principles of the European Contract Law and the shihai (Legal Reform in Cambodia and the Rule of Law)”, Hougaku Shinho vol.112. 3 Article-by-Article Commentaries on the Civil Code of the Kingdom of Cambodia, at Article 336. 40 Comparing Codes Across Borders French Civil Code. 4 Mental reservation (Article 352) is not considered a defective manifestation of intention, although it is stipulated in the section related to defective manifestation of intention. With the exception of fictitious manifestation of intention, the effects of these elements lead to possible rescission. Although they are based on mistakes, they do not result in nullification of contract. Also, acts performed by any person incapable of manifesting intention only result in possible rescission but not nullification (Article 14). But in the Japanese Code, mistake, mental reservation, and fictitious manifestation of intention are treated as reasons for nullification of contract. When each of these cases is examined carefully, it also shows that elements of mistake in the Cambodian Code differ from those found in the Japanese Code. For example, unlike the Japanese Code, the Cambodian Code requires that the elements of mistake include mistakes in motivation, and there be the possibility of the other party having been aware of the mistake itself, in order to enable a rescission to take place. In the case of fraud committed by a third party, rescission is permissible not only if the other party of the contract knew of the fraud, but also if that same party’s knowledge would have been possible (Article 347(2)). Also in the case of fraud committed by the third party, claim against the third party is not permissible if the fraud resulted from good faith without negligence on the part of the third party. In the case of Japan, the Code only requires good faith on the part of the third party. 2-5 Warranty liability The nature of warranty liability of sellers under the Cambodian Code is related to the premise that such liability is a special case of liability for non-performance of obligation. That is to say, it is not based on the “dogma of specified things”. Even the issue of initial impossibility, which is found to have existed at the time of concluding the contract, does not lead to contract nullification (Article 355). It is treated as non-performance of a contractual obligation. However, other provisions on warranty against defects also exist separately from those dealing with non-performance of obligations, leaving the relationship between these two categories 4 Article-by-Article commentaries on the Civil Code of the Kingdom of Cambodia, from Article 348. Cambodian Yearbook of Comparative Legal studies Vol. 1 41 of warranty ambiguous. This is an issue to be sorted out by Cambodia in the future.5 2-6 Period of prescription The period of extinctive prescription of claims or acquisitive prescription of movables is 5 or 10 years. This is shorter than the period allowed by the Japanese Code. But regarding immovable properties, the period is set at 10 to 20 years, similar to the Japanese provisions. 2-7 Guaranty contract (suretyship) The Cambodian Code requires that guaranty contract take the form of a written contract. If the guaranty is not in writing (Article 901(1)), the amount to be guaranteed for monetary debt has not been hand-written by the guarantor (Article 901(2)), or if there was not sufficient time for the guarantor to think carefully (Article 900(3)), the guaranty contract may be rescinded. These are provisions made to reduce the responsibility of guarantors. This is an effort to place emphasis on formative conditions of a guaranty contract, given the current situation in Cambodia where the literacy rate of the population is low.6 3 Articles Unique to the Cambodian Code Based on Traditional Factors in Cambodia 3-1 Variety of real rights to use and obtain profits from other’s immovable property (Articles starting from 244) Cambodian Code provides for several real rights to use and obtain profits from other’s immovable property, namely perpetual lease,7 5 See Nomi Yoshihisa, “Camboja minpo ten to baibai hou (The Cambodian Civil Code and the Law on Sales)”, Comparative Legal Studies, 68. 6 See Yasuda Yoshiko, op cit., p. 871. 7 Cambodian Land Law Articles 106 para.2 and 108 para.1 42 Comparing Codes Across Borders usufruct,8 right of use, and right of residence.9 These rights are partly derived from the old French legal influence and the Cambodian Land Law. It is expected that a number of Cambodian laws and local regulations will be repealed by the Law on Application of the Civil Code, when application of the Civil Code starts. For this reason, these rights are incorporated into the provisions of the Civil Code. 3-2 Detailed articles related to land, such as alluvial deposit or islands (Article starting from 179) Being located in the Mekong region and composed mainly of lowlands, Cambodia experiences frequent geographical changes in shape or breadth caused by flood or river streams. There are specific provisions to deal with the questions of ownership in the alluvial deposits and claims for retrieval of soil washed away by downstream river flow etc. Such provisions are not necessary in the Japanese Code. 3-3 Profit-sharing lease (Articles starting from 622) Provisions on profit-sharing lease appear in the old Cambodian Civil Code and are stipulated in the French Civil Code starting from Article 1827. But they are not found in the Japanese Code or the Cambodian Land Law. These provisions find their way into the new Code, because such profit-sharing leases are widely practiced in the Cambodian countryside.10 4 Provisions Which Differ in Form and Are Similar in Substance Since its promulgation in 1898, the Japanese Code has been implemented through revisions for more than 100 years. There are 8 Cambodian Land Law Articles 119 and 121. 9 Cambodian Land Law Article 138 paras.1 and 2. 10 Article-by-Article Commentaries on the Civil Code of the Kingdom of Cambodia, at note preceding Article 622. Cambodian Yearbook of Comparative Legal studies Vol. 1 43 also a large number of court precedents. Besides, there are various other specific laws related to civil matters. Together with the Civil Code, all these form the substantive body of laws in civil matters. Despite the absence of these provisions in the Japanese Code, the Cambodian Code has incorporated theories upheld by Japanese court precedents and issues regulated by other relevant Japanese laws into its articles. Some concrete examples of this are provisions on the right to injunction based on personality right (starting from Article 11), real right claims based on actual ownership, the duty of the employer to care for safety of employees in the employment contract, etc. But since these provisions cannot be considered as amounting to differences in substance between the Japanese and the Cambodian Codes, no further elaboration is needed here. (II) The Codes of Civil Procedure 1 Overall Difference from the Japanese Law Since the Cambodian Code of Civil Procedure (Cambodian CCP) stipulates not only litigation procedure but also compulsory execution procedure and preservative relief procedure, its Japanese counterpart is not only the Japanese Code of Civil Procedure (Japanese CCP), but also includes the substantive combinations of the Japanese Laws on Compulsory Execution Procedure and Preservative Relief Procedure. Therefore, when making comparison of the two civil procedural laws, one must not focus only on the Japanese Code of Civil Procedure, but also refer to the comparisons with the Japanese Laws on Compulsory Execution Procedure and Preservative Relief Procedure. 2 Litigation Procedure 2-1 Mandatory preparatory proceeding for oral arguments (Article 80) In Japan, there are several procedures related to arrangement of 44 Comparing Codes Across Borders issues and evidence, namely, preliminary oral arguments (Japanese CCP, starting from Article 164), preparatory proceedings (Japanese CCP, starting from Article 168), and preparatory proceedings by means of documents (Japanese CCP, starting from Article 175). But to achieve the same objectives, the Cambodian CCP only requires the court to conduct mandatory preparatory proceedings for oral arguments. The Cambodian CCP does not enable judges to have multiple choices of procedures for arrangement of issues as a precautionary step to avoid unnecessary confusion among judges at the commencement of the application of Cambodian CCP. It is a result of a simplification of regulations and emphases on easy implementation even by judges whose professional competence is still in need of improvement. Practices of litigation in Cambodia prior to the implementation of the new Cambodian CCP consisted of a so-called inquiry procedure. To carry out the inquiry procedure, the judge had to question the parties and witnesses at his/her own discretion, in a closed door session, in order to comprehend the factual relationship in a specific case. In addition, there was no need for the party involved in the dispute to be present at the inquiry procedure against the other party. One may therefore wonder whether such practices violate the principle of parties’ rights to present their cases and the safeguard of parties’ equal right to be heard, i.e., the basic principles of civil procedure law. The inquiry procedure was therefore abolished in favor of the introduction of preparatory proceedings. 2-2 Court’s duty to attempt compromise Under the Cambodian CCP, the court has to attempt to seek compromise among parties first, unless the court considers such attempt to be improper or inadvisable (Article 104). This provision is in line with previous Cambodian practices, derived from the French law, to adopt the principle that the court has the duty to attempt compromise at the commencement of a litigation procedure. The provision was reintroduced in the new Code because of the Cambodian opinion that such principle is appropriate. Cambodian Yearbook of Comparative Legal studies Vol. 1 45 2-3 Transfer of disputed object Article 88 Under the Cambodian CCP, when the object in dispute has been transferred in the middle of the proceeding, such transfer does not affect the standing of the original proprietor as the party to the dispute. This is in order to retain concision of the proceeding. But it gives rise to some issues, quite different from those under the Japanese CCP, in the way due process is ensured in the transfer of the object to the transferee, and the way to safeguard the interest of the other party. The scope of the binding effect of the judgment (Article 198(3)) surely differs as a result of this difference. To elaborate on this issue, let’s take the example of a litigation occurring between X and Y when Y transfers the object in dispute to Z. In Japan, this leads to the legal issue of succession of suit and Z becomes the party in the original litigation. This approach strongly favors the protection of Z’s status. However, due to this change of defendant, X is confronted by disadvantages in substance, even though the original state of litigation remains. To prevent this from happening, X may submit a petition for provisional order of disposition to forestall any transfer of possession prior to the transfer. In some cases, this may be effective in tying up the other party. In contrast, the Cambodian CCP does not remove Y from the original status of being a party in the litigation between X and Y, even though Y has transferred the disputed object to Z (Article 88(2)). That is to say, Y is now legally made to participate in the litigation and to respond to the case on behalf of Z who is the rights-holder of the original object in dispute. In this litigation involving X and Y, Y has to assert the fact that the object in dispute has been transferred to Z. As a result, the subject matter of the litigation has to be changed theoretically. But, even though the subject matter of the litigation is changed, Y remains to hold the status of a defendant in the case. Since Z, the transferee of the object in dispute, is not qualified as a party in the litigation, Z cannot participate in the litigation between X and Y as a party concerned. It is expected that Z may protect his own interests by means of an assisting intervention in a joint litigation. This is one form of assisting intervention but offers more rights to the participant. Wherever Z possesses his own counterclaims in substantive legal terms, his status will be protected in line with the substantive law only if Y acts properly at the litigation. On the other hand, since the judgment pronounced at the end of the litigation between X and Y also binds Z as a result of third-party 46 Comparing Codes Across Borders standing (Article 198(2)), X may receive a certificate of enforcement attached to the judgment addressing to Y and use it against Z. Problems may occur when Y has failed to present Z’s counterclaim and ended up in losing the case. Settling these problems may then be controversial. One view may argue that, although due process has been guaranteed to Z formally as a result of Y being the respondent to the case on behalf of Z, Z cannot assert his cause before the conclusion of the oral argument proceeding in the litigation between X and Y. But another view may consider that, by means of stating objections to the service of the attached certificate of enforcement, he can assert his own counterclaims. In any event, the answer has to wait until a solution emerges in the future practices of this Code of Civil Procedure in Cambodia. 2-4 Examination of evidence at court’s own discretion (Article 124) The Cambodian CCP allows courts to exercise discretion in examining evidence, as an exceptional measure. This is because strict observance of the principle of parties’ rights to present their cases is difficult given the current small number of lawyers in Cambodia. There are also several differences between the two Codes in the procedure to conduct examination of evidence, such as the scope of entrustment of investigation (Article 130), the generalization of the duty to submit documents (Article 150), the sequential order to be followed in examining witnesses (Article 138(2)), etc. 2-5 Default judgment Starting from Articles 200 A system of default judgment is adopted following the traditional influence of the French Law and the practices of the old Code of Civil Procedure. It is included into the new Code pursuant to the strong desires expressed by the Cambodian side. An overview of the procedural flows with regard to cases of the parties’ absence from either the preparatory proceeding for oral arguments or the oral arguments proceeding itself, can be illustrated Cambodian Yearbook of Comparative Legal studies Vol. 1 47 as follows: Parties Absence on the Absence on Absence on the day of the first the subsequent day of oral preparatory dates of arguments proceeding for preparatory oral arguments proceedings for oral arguments Failure The plaintiff’s Preparatory Dismissal of the of the claims shall be proceedings plaintiff’s claims plaintiff to dismissed by the shall be by the default show up default judgment terminated, judgment (Article 200(1)) and the date (Article 200(3)) for oral arguments shall be designated (Article 200(2)) Failure Preparatory No specific By virtue of of the proceedings shall provisions constructive defendant be terminated and admission, the to show the date for oral claims shall be up arguments shall accepted by a be designated default judgment, (Article 201(1)) or shall be dismissed by an ordinary judgment (Article 201(2)) However, Article 202 provides for cases in which default judgment is not allowed. These include the case in which the party concerned has not been summoned in a legally proper way. An appellate procedure, different from the normal appeal, is created for filing of a petition to set aside the default judgment. If the failures to appear were due to reasons beyond the party’s control, the litigation shall be restored to its situation prior to the issuance of the default judgment (Article 208(1)). 48 Comparing Codes Across Borders By adopting this kind of default judgment regime, Cambodia certainly does not accept the system of “constructive statements in complaint”, which is made available by the Japanese CCP (Japanese CCP Article 158). 2-6 Variety of decisions The Cambodian CCP does not provide for “order” to be issued by the court (Article 179). Therefore, what is considered to be court orders in Japan will be handled by the usual procedure of judgment in Cambodia. The reason is because court order in Japan is a form of judgment made by a single judge, and it is considered not appropriate to over-exaggerate the power of a multi-judge panel in Cambodia. 3 Compulsory Execution and Preservative Relief Procedures 3-1 Action for issuance of an execution clause The Cambodian CCP does not have a provision on action for issuance of an execution clause. It is expected that the creditor, who has not been granted a special execution clause against a third party, will file an ordinary action demanding performance from that third party. Absence of a provision on action for issuance of an execution clause may have been due to the concern that stipulating such a special type of action will lead to unnecessary confusions in civil procedural practices in Cambodia. 3-2 Assignment order The Cambodian CCP does not provide for assignment orders, which is one way of compulsory execution related to claims (Japanese Civil Execution Law Article 159). The Cambodian CCP merely recognizes the method of debt collection by making monetary claims based on the face value of the actual claims. It Cambodian Yearbook of Comparative Legal studies Vol. 1 49 does not provide for the system of an attached assignment order. The reason why Cambodian CCP does not provide for an assignment order is because difficult questions exist regarding the interpretation of conditions which give effects to the assignment order. Under current circumstances, this practice is thought to be highly unfamiliar in Cambodia. 3-3 Compulsory execution against immovable property Only compulsory sale and not compulsory administration is stipulated in the Cambodian CCP. Compulsory administration is one way of compulsory execution against immovable property, by which an execution court declares the placing of the immovable property under the custody of an administrator. Profits or earnings collected from that immovable property shall be administered in such a way as to meet the performance of the obligations subject to compulsory execution (performance of the judgment debtor). This regime is appropriate for dealing with large-sized properties, such as cases of large buildings for leasing, etc. The regime of compulsory administration is not stipulated in the Cambodian CCP because of the conviction that necessity for its application in the current Cambodian context is not imminent. 3-4 Treatment of rights having priority over the right of judgment creditor Real security right, right to use and obtain profits, and leases on immovable property take priority over the rights of judgment creditor. After the sale of the immovable property, the remaining effects of these rights are handled in two different ways, namely by following the principle of extinguishment or the principle of acceptance. The principle of extinguishment requires that, by means of a sale, all burdens caused by these rights extinguish. Therefore the buyer acquires the property without the attached burdens. On the other hand, the principle of acceptance presupposes that the buyer acquires the property together with the bundle of burdens attached with it. Unlike Article 59 of the Japanese law which adopts the principle of extinguishment, Article 431 of the Cambodian CCP adopts the principle of acceptance. However, among those creditors 50 Comparing Codes Across Borders who hold the claim for profit distribution (Cambodian CCP, Article 426), the case of creditors who hold real right security which continues to exist after the sale of the immovable property is excluded from the application of this principle of acceptance. This is because, in conformity with the principle of acceptance, the price set in an auction is determined by subtracting the amount of the secured claim, which continues to exist after the auction, from the gross value of the property. Therefore, it is not reasonable that a creditor of a secured claim, which would continue to exist after the sale, should be counted among those who receive the profit distribution from the auction itself. 3-5 The need to have execution titles to execute the secured interest Even in execution of the secured interest, the execution titles are necessary. Only in exceptional cases of movable, if the movable which is the subject matter of the secured claim is under the possession of the judgment creditor him or herself, he/she shall submit the movable to the execution officer. Otherwise, even in cases where a third party other than the judgment creditor possesses the subject matter, if the judgment creditor can submit to the execution officer a documentary proof that the possessor agrees to an attachment, the execution of secured interest can take place. That fact that execution titles are needed even for executing secured interests makes the Cambodian CCP different from its Japanese counterpart. Efforts to achieve theoretical integrity in compulsory auction procedures and secured interests execution procedures can be detected in the Cambodian CCP. 3-6 Differences in preservative relief The Japanese CCP provides for various ways of executing orders of provisional disposition. But the Cambodian CCP has only one article on the question of execution of orders of provisional disposition, stating that “execution of orders of provisional disposition shall be carried out in the same manner as execution of orders of provisional attachment and compulsory execution”. The objective is considered to be that since there are various ways of Cambodian Yearbook of Comparative Legal studies Vol. 1 51 executing orders of provisional disposition, the Code stipulates no specific way but leaves it to the decision of the Cambodian court.11 Others There are many more differences between the Cambodian CCP and the Japanese CCP. For example, differences can be found regarding the appeal procedures; Cambodia’s lack of a summary court; and lack of procedures related to disclosure of assets. Therefore, clarifications regarding the differences mentioned heretofore are merely confined to those examples thought to be of particular importance. 11 See “Article-by-Article commentaries on the Code of Civil Procedure of the Kingdom of Cambodia”, at Article 570. 52 Comparing Codes Across Borders Cambodian Yearbook of Comparative Legal Studies Vol. 1 53 The Freedom of Contracts And The Agricultural Land System: A Comparative Study Of the Experiences of Japan and France Harada Sumitaka* 1. Introduction In any country, freedom and equality of legal subjects (legal personalities), freedom of contract, and freedom of property rights over legal objects (commodities) are indispensable for the modernization of society and the development of a capitalist market economy. In the Japanese and French Civil Codes, which follow the European continental law system, land has been regarded as an object of free private property rights. This means land is a commodity which can be subjected to free contracts, in the forms of sales or lease. However, land is a limited natural resource, i.e. a part of the earth’s surface which human beings cannot create at will, and.is the indispensable base for the lives, survival, and productive activities of all human beings. When land is privately owned and becomes a commodity for transactions in the marketplace, limitations and regulations regarding freedom of contract and land ownership come into play. Some examples of these limitations and regulations include: distribution of land ownership and usage; the legal relationship between land property rights and land use right; and the necessity of land use for social or public purposes. In the following discussion, I would like to address the issues of ownership and use of agricultural land, including the question of * Professor Emeritus of the University of Tokyo and Professor of the Chuo University Law School. The author used to teach civil law at the University of Tokyo Graduate Schools for Law and Politics. Currently he teaches at Chuo University Law School. He has been engaged in research on the land law system of Japan and France for about forty years, with particular focuses on the agricultural land law systems from a comparative perspective. 54 Freedom of Contracts and Agricultural Land System application of the agricultural land lease contract. What issues have arisen in France and Japan? And what kinds of systems have developed in these countries? Though the development of corresponding systems in the two countries has some similarities, the substance of the two systems could easily be found to be fairly antipodal. In these discussions, attention should be paid to the exceptional importance of the contracts by which landowners allow someone else to use and obtain profit from their land (the typical example is the agricultural land lease contracts), particularly in the agricultural land system. 2. Freedom of Land Ownership and the Agricultural Land System in the Modern Civil Codes - Background of the Development of Special Laws France I would like to begin with a brief historical review. Article 544 of the Civil Code of 1804 (the Napoleon Code) provides that “[O]wnership is the right to enjoy (jouir = to use and obtain profits) and dispose of (disposer) things in the most absolute manner (de la maniere la plus absolue) provided they are not used in a way prohibited by statutes or regulations (par les lois ou par les reglements).” This well-known provision, which is still in effect, was drafted with land ownership as the primary legislative target. According to Poltaris, the expression “in the most absolute manner” was included to secure “absolutely” land ownership (which is a free, individualistic, comprehensive, and exclusive right to own) created by the land reform initiatives of the French Revolution. This applied in all cases except where restrictions were mandated by statutes or regulations and condemnation for the purpose of public interest, which was permitted through Article 545 of the Civil Code. Then, what was the agricultural land system like under this statutory scheme? In reviewing the period between the nineteenth century and the early twentieth century, three important points can be discussed as follows. First, from the beginning, freedom of land ownership was Cambodian Yearbook of Comparative Legal Studies Vol. 1 55 expected to be “restricted or limited by statutes or regulations.” Although neighboring relationships and condemnation for the purpose of public interest sanctioned by the Civil Code were typical examples, in the outer margins there existed regulatory police powers regarding the use of urban land and construction activities as well as various rules and regulations governing the use of agricultural land, water, and woods in rural areas of France during the nineteenth century. Though the latter regulations were mostly customary regulations in each region, they were organized into a collection of regulations in the early nineteenth century called “The Rural Code.” In addition, there were many “communal lands” which were used communally by villagers in the middle and southern parts of France. French society still had a very rural character at that time. The regulatory systems dealing with the development, organization, and construction activities in urban areas were established following the urban developments of the early twentieth century. One symbolic example is the development of the urban planning system after 1919, followed by the comprehensive legislation of the Urban Planning Law in 1943. These institutional systems provided a framework to regulate the development and disorderly conversions of agricultural land in France. Second, because land was commonly owned by landlords (30% to 40% of agricultural land was held by landlords), the Civil Code had to be drafted with articles regulating the lease of agricultural land. These provisions were in conformity with the principle of freedom of contracts. But what was important about these provisions was the permission agricultural land leaseholders had to assert their rights against third parties, as a result of the land reform introduced during the French Revolution. Under the principle of freedom of contracts, landlords were in a much stronger position than tenant farmers. Demand for protection and consolidation of the legal status of tenant farmers gradually increased in the early twentieth century. As a result, the first special law on agricultural land lease was enacted in 1942 under the Vichy administration during the Second World War. This law led to the postwar reform of the agricultural land lease system which is discussed later. Third, a major issue existing in France since the late nineteenth century relates to the inheritance of agricultural property, specifically agricultural land when there were many independent farmers. Under the Civil Code, which embraces the doctrine of 56 Freedom of Contracts and Agricultural Land System equal inheritance among children, agricultural land was divided into small pieces every time the land was inherited, leading to an inability to secure the development of modern agricultural operations. Exceptional measures regarding inheritance of agricultural property—to be precise, measures to limit the physical division of agricultural land—were introduced for the first time in 1938 and 1939. After several revisions of these measures of the 1960s, this issue was eventually dealt with by a statute in 1980. However, the details of this statute are not addressed in this paper. Japan Reflecting on the provisions of the French Civil Code mentioned above, Article 206 of the 1896 Japanese Civil Code provides that “[A]n owner has the right to freely use, obtain profit from, and dispose of the thing owned, subject to the restrictions prescribed by laws and regulations.” The “restrictions prescribed by laws and regulations” include those related to neighboring relationships and condemnations, similar to the case of France. However, this article had a very different meaning from the French Civil Code’s related article. Four issues should be considered here. First, the principle of freedom of land ownership was not created for the first time by the provisions of the Civil Code. The Meiji Government acknowledged this principle long before the provisions of the French Civil code were enacted. In concrete terms, the government in 1871 and 1872 allowed for the freedom to farm and to buy or sell agricultural land (authorization for self-driven planting of alternative crops and de-prohibition of sales of agricultural land). The well-known large-scale Land Tax Reform project was implemented in 1873. The Land Tax Reform was a project that identified land tax-payers (a high-rate tax to be paid in cash, making up more than 80% of the Meiji Government’s national treasury receipts or source of revenue) and issued land titles to these taxpayers in the form of land certificates. These certificates greatly facilitated and promoted the sale of land. Because the land tax had to be paid in cash, independent farmers, who were the majority of landowners at that time, had to sell rice—then the most important produce—at the marketplace, and use the revenue to pay the high land tax. This raised the risk of collapse for small- or mid-sized farmers who were unable to compensate for poor harvests, natural disasters, or Cambodian Yearbook of Comparative Legal Studies Vol. 1 57 fluctuating rice prices. As a result of the imposed commoditization of land and rice, many independent farmers lost their agricultural land. Land possession by landlords therefore rapidly expanded. On the other hand, landlords were the taxpayers for their own land. Landlords collected mainly rice from their tenant farmers as in-kind rent, which amounted to as much as 50% to 60% of total rice production. This rice was then sold by the landlords in the market, who then paid the land tax with the resulting revenue. Therefore, for the Meiji Government, protecting the right of landlords to collect farm rent was a measure to secure payment of the land tax. Even though laws and regulations to protect landowners’ freedom of land ownership and mortgagees of agricultural land were enacted early on, laws and regulations on the lease of agricultural land were not enacted until adoption of the Civil Code in 1896. Under such circumstances, the so-called parasitic landlord system, which described the agricultural structure of prewar Japan, was established by the early 1890s. The percentage of tenant land was over 30% when the Civil Code was enacted, and eventually increased to over 40%. In other words, the freedom of land ownership provided for by the Civil Code of 1896 protected the freedom of ownership enjoyed by landlords. Second, in addition to the problem of small number of articles regarding the lease of agricultural land, the Civil Code also broadly recognized the principle of freedom of contracts, which benefited the landlords. While there was an article which was intended to give agricultural land lease-holders the legal power to assert land use rights against third parties, this provision could not be invoked by the leaseholders themselves (i.e., it did not bind the landowners). Moreover, it is important to note that the ability of landlords to terminate contracts at their own discretion was widely recognized. As a matter of course, the weakened status of agricultural land leaseholders (tenant farmers) under the Civil Code caused serious social problems. Agrarian disputes broke out in rural areas of the country from 1920 into the 1930s. To address this situation, the government attempted to enact a special law protecting the status of tenant farmers (the Law on Tenant Farmers), but the attempt failed due to strong objections of the House of Peers where the landlord class held strong political influence. Until the end of the Second World War, wartime legislation from 1938 containing two articles was enacted as a special provision to enable leasehold tenants, who had received transfer of land, to assert their rights against third 58 Freedom of Contracts and Agricultural Land System parties, and limit landlords’ discretion in depriving tenant farmers of agricultural land. Consequently, during the US occupation, after Japan’s defeat in the Second World War, agricultural land reform was implemented to dismantle the parasitic landlord system through forced purchases of agricultural land owned by landlords. It should also be mentioned that there were practices of agricultural irrigation and “common lands” (iriai-chi) which were collectively possessed and used by villagers, inherited from the long history of rice farming in Japan. However, these practices had been over taken by the rural social structure dominated by landlords in the process of developing the pre-war landlord system. Third, the relationship between agricultural land and urban land development deserves discussion here. The urban planning law and the regulations on construction activities were enacted in 1919 as they were in France. However, not only were these institutions substantively loose and with little practical effectiveness, but they also did not foster meaningful development. On the other hand, to secure wartime food production, a system controlling the conversions of agricultural land was introduced in 1937 and became a powerful control. This institutional condition continued into the postwar period, affecting the regulation of development and conversions of agricultural land in Japan. Fourth, the issue of agricultural land inheritance, a big issue in France, did not exist in prewar Japan. Since the Law on Relatives and Succession in the pre-war Civil Code (enacted in 1898) adopted the “ie” (traditional Japanese family) system which was constructed around the core idea of exclusive inheritance by the first born son, the problem of the division or fragmentation of “family assets,” namely agricultural land, due to inheritance, did not exist. This ie system, as well as the parasitic landlord system, supported the old semi-feudalistic element of prewar Japan. 3. Reforms after the Second World War and the Structure of Current System Japan I would first like to discuss the case of Japan following the Second Cambodian Yearbook of Comparative Legal Studies Vol. 1 59 World War. There are six points to be mentioned here. (1) For a few years just after Japan’s defeat in the Second World War, agricultural land reform was carried out under the strong influence of GHQ (the American occupation forces). The state forcefully purchased the land landlords had lent to tenant farmers, and sold it at cheap prices to the tenant farmers who were actually cultivating it. Such expressions as “the creation of independent farming” or “the doctrine of independent farming” were used to describe this reform since former tenant farmers became independent farmers. The maximum size of agricultural land to be owned and operated was limited to 3 hectares (10 hectares for the Hokkaido region), with the ownership of agricultural land and the operation of agriculture by corporations prohibited. The rate of tenant land decreased from about 45% to 9% and continued to decrease until 1970. In 1952, a law called the Agricultural Land Law was enacted to sustain the fruits of the agricultural land reform. This law emphasized three issues. First, it declared that it is most appropriate for the agricultural land to be owned by the person who is actually cultivating it and placed the sales of agricultural land under a system of approvals to be rendered by the administrative agencies. This measure ensured that only farmers who actually cultivated and engaged in agriculture could obtain the property right over the land. Second, the law placed serious restrictions on the rescission, termination, and refusal to renew the terms of a lease agreement. It also controlled the farm rents keeping them at a low level to protect leaseholders’ rights over tenant land which partially remained after the land reform. In addition, to prevent the revival of the landlord system, the law not only required official approvals for establishing new lease contracts, it also limited the size allowable for lease to no more than one hectare. Finally, the law made the wartime legislative control on the conversions of agricultural land a permanent system. This conversion control was aimed at tackling the short supply of food, creating as many independent farmers as possible, and securing the effectiveness of the approval system for agricultural land transactions. This was a truly major land reform, which contributed to the stabilization, democratization, and modernization of rural areas and Japanese society as a whole. By 1955 the production of rice was rapidly increasing on an annual basis (calculated by production per Tan, which is equal to approximately 9.9174 acres). However, this 60 Freedom of Contracts and Agricultural Land System reform was not a genuine “agricultural reform.” Though former tenant farmers became independent farmers, the situation of agricultural land, being small in scale, geographically scattered, and under mixed ownership, had not been addressed. It led to the emergence of structural problems in agriculture, and the implementation of agricultural structure policies after the 1960s. This will be discussed in the second issue below. (2) Japan entered into a period of high economic growth beginning in 1955. During this period, many issues started to emerge, including a disparity in production and income between the agricultural sector and the industrial sector; the migration of laborers from agriculture to industry; and the expansion of agricultural food imports due to dietary changes. To address these issues, in 1961 the government enacted the Basic Agricultural Act and introduced policies regulating agricultural structure, in order to promote the enlargement of the agricultural operations by facilitating the retirement of small-sized farmers, raising the agricultural productivity, and developing new types of agriculture (for example, livestock farming and fruit plantations). However, these policies were not very effective due to several important factors. One of the biggest factors was the price rise in agricultural land. During the period of high economic growth, urban land use was expanded dramatically for the sake of developing land for factories, new urbanization projects, and building infrastructures, such as roads, railways, and ports. As a result, there was a huge demand for the conversion of agricultural land. However, the cities did not have any framework for regulating the conversions of agricultural land and retaining some order, until the new Urban Planning Act was enacted in 1968. Although the agricultural sector attempted to preserve high quality agricultural land through conversion controls, these efforts gradually gave way to “economic development,” the rising flag of the day. The conversion control gradually backed out. City developers started to purchase and convert agricultural lands by offering high prices. These high conversion prices led to the general increase in agricultural land prices. As a result, farmers would not easily sell their land because it was regarded as a “land commodity with high asset value.” In addition, farmers were able to find employment outside of the agricultural sector because of the policy to promote regional dispersion of industries. Therefore, most of the farmers maintained Cambodian Yearbook of Comparative Legal Studies Vol. 1 61 part-time farming operations without selling their land even though the percentage of income from agriculture declined. Such decisions were possible due to the subsidized improvement of agricultural land, labor-saving technologies, and mechanization of rice cropping. Accordingly, structural reforms in agriculture did not move forward. It was a contradiction due to several cumulative factors. (3) The reforms of the agricultural land system in 1970 and 1975 were renewed attempts to address this situation. Briefly stated, the reform drastically loosened the principle of protection for leaseholders under the Agricultural Land Act. Especially, a type of leasehold called “the right to use land for agriculture” was introduced into the new system in 1975, which can be contracted for a short term (for example, 1- 3 years) and legally deemed to terminate at the end of the contracted term. In addition, the previous control over the tenant rents was relaxed, leading to a drastic increase in rent charges. In other words, by allowing farmers who had given up agriculture to continue owning their agricultural land as an asset, the system made it possible for them to lend their land to someone else through a short fixed term leasing contract “with security” and “without any limitation on the size of land for leasing.” Apparently, it was a major compromise between the demand for freedom of agricultural land ownership and ownership in land as a commodity. Today, most of the agricultural land leaseholds are shaped by “the right to use land for agriculture.” To date, the lease land rate has increased to about 30%, with an average length for leasing contracts of about 6 years. Even after the above mentioned revisions were passed, leaseholders were still required to be farmers, i.e., persons who actually farmed and engaged in agriculture on that piece of agricultural land. To counteract this, a system called “agricultural production legal entity”, which is a special legal person having the same nature as a farmer, was created at this stage of reform. However, this system was originally reserved for legal entities which presumably would be established by local farmers or people engaged in agricultural activities. (4) We have to look at how the issue of balancing between securing and preserving agricultural land on the one hand, and expanding the use of urban land on the other, was addressed. In Japan, since the mid-1970s, there have been significant developments in the regulation of urban land use, but these developments were unable to 62 Freedom of Contracts and Agricultural Land System rein in land problems, specifically those of skyrocketing land prices. The symbol of the failure was the outbreak of land bubbles most seriously around the Tokyo area in the late 1980s. During this period, a huge amount of agricultural land was sold and converted at high prices in many parts of Japan. As a result of the economic bubble bursting and the resulting economic downturn, agricultural land prices have decreased in disadvantaged areas such as hilly areas or in the purely agricultural area in the outlying regions (i.e., Hokkaido, Tohoku, and the southern part of the Kyushu area). However, generally speaking, agricultural land continues to be regarded as a high-priced land asset or land commodity by owners. Improvement of the agricultural structure has accomplished less than was expected, and problems such as a decreasing number of people engaged in the agricultural sector and their aging; the shortfall of young farm workers and operators; the expansion of uncultivated agricultural land (7-8% of all agricultural land) are becoming more serious than before. Only about 10,000 agricultural production legal entities were established. Food self-sufficiency rate (calorie-based) decreased from about 80% in 1960 to currently 40%. In addition, the pressure to further open Japanese domestic markets for agricultural products is becoming stronger year by year at the World Trade Organization negotiations on agriculture. (5) As a result, Japanese agriculture is facing serious problems. To address these problems, the Ministry of Agriculture, Forestry, and Fisheries in February 2009 officially proposed an amendment bill to start a major overhaul of the agricultural land system, and submitted it to the Diet in early March 2009. The proposed reform aims to reduce or liberalize the regulatory restrictions by the Agricultural Land Act, making it possible for “anyone, either an individual or a legal entity, to lease agricultural land and engage in farming freely anywhere he/she wants.” Needless to say, the main objective of the reform is to admit ordinary business enterprises (for instance, major food companies and supermarket corporations, etc.) into agriculture. Therefore, when compared to the period of agricultural land reforms 60 years ago, the efforts today are a 180- degree reversal of philosophy and objectives from the previous trends. But what will happen to agriculture and agricultural land use once this amendment is enacted is still unclear. One matter of serious concern is that the current amended bill submitted by the Cambodian Yearbook of Comparative Legal Studies Vol. 1 63 government (the government draft) only treats agricultural land as a “resource for production.” It makes no mention of the important future roles agricultural land should play in the society as “a regional resource,” “an environmental resource,” or “an environmental asset.” (6) The Diet adopted this amendment June 2009 (effective December 2009) after including some revisions. An overview of the institutional reforms introduced through the amendment, including revisions, is as follows: First, the primary purpose of the new agricultural land law is to place agricultural land under the control of farmers who will use it effectively, while regulating agricultural land conversions. The law also aims to ensure stable food provisions by defining measures to deal with unattended land. The original meaning of “farmers who will use agricultural land effectively” refers to well-settled local land cultivators, a language revision made by the Diet. But the new law also enables corporations in general to engage themselves freely in agriculture wherever they manage to lease land. Second, since land is both a resource for production and a resource of the local community, the law imposes a special requirement upon agricultural business entities, which do not belong to the local community but simply lease the land for agriculture as corporations or individuals, to work in harmony with “local agriculture as well as local farmers.” In case of a failure to fulfill this requirement the authorization for acquisition of an agricultural lease may be revoked by a decision of the local agricultural committee (a measure strengthened by the Diet’s revisions). Third, pre-conditions for establishment of an agricultural production legal entity are more flexible. For example, non-agricultural sectors can invest funds in and engage with an agricultural production legal entity more easily. Fourth, to allow for effective use of agricultural land, frameworks are established to facilitate the expansion of the use of agricultural land surface areas, primarily by grouping together leased fields. Fifth, in order to realize agricultural land use in conformity with the objectives mentioned above, a series of measures are stipulated to promote agricultural land lease, including the right to use agricultural land. These measures include stipulations to fully liberalize rents (abandoning the expression “tenant rents”) and to remove restrictions on the size of land for lease. 64 Freedom of Contracts and Agricultural Land System It is not clear what impact the institutional reforms will have. But with regard to the second point above, one does not know whether these regulatory measures will function effectively. However, one can be sure that the number of non-agricultural corporations and individuals engaging in agriculture will gradually increase. It is likely that a new trend will emerge that calls for the recognition of the right of these new farmers to acquire ownership in agricultural land, once the business of these newly engaged leasehold farmers becomes reasonably well established. After sixty years of agricultural land reform, the Japanese agricultural land system may change drastically, even reversing course. There are several concerns in this new experiment, such as not knowing how the agricultural structure and rural villages will turn out to be, but the new experiment is in its infancy and deserves careful attention. France Development of the agricultural land system in postwar France can be reviewed in four aspects as follows: 1) As discussed earlier, under the reform just after “Liberation,” special laws were enacted to fully protect and promote the rights of agricultural land leaseholders in 1945 and 1946. At this time tenant land covered more than 40% of farmland and stability in tenant farming were strongly ensured. This stability became a factor that immobilized the agricultural structure, resulting in problems with the agricultural structure that were characteristically almost identical to those mentioned in the Japanese case. In 1960, shortly before Japan took action, a policy on agriculture structural reform, with similar objectives as Japan’s, was adopted in France with the enactment of the Law on Agricultural Orientation (Loi d’orientation agricole; LOA). This might have been used as a reference for the Japanese actions. However, in the case of France, this structural policy enabled special laws on the lease of agricultural land to develop until the first half of the 1970s, in order to promote the stable development of tenant agricultural operations. For example, the duration of the right of leaseholders were articulated by law as more than 15 years, or exceeding 18 to 24 years. The special laws established the doctrine of “the priority of the right to use over ownership in agricultural land.” 2) A special organization called SAFER (Societe d’Amenagement Foncier et Etablissement Rural) was established in Cambodian Yearbook of Comparative Legal Studies Vol. 1 65 1962 to publicly intervene in the buying and selling of agricultural land with the right of preemption (droit de preemption). All transactions of agricultural land were reported to SAFER in advance. Compulsory agricultural land purchases were made by SAFER if it considered the land necessary for structural reform. Improvements to the land were made and then sold by SAFER to farm operators who intended to expand the size of their agricultural operations. If the original land price reported to SAFER was too high, the organization could invoke the right of preemption and ask the court to set a price according to the expropriation rate. In France, the scheme of “public regulation regarding the freedom of agricultural land transactions sustained by the control of land prices” was developed in large part for the purposes of promoting the policy on agricultural structure. 3) In order to make the two legal systems discussed above work, it was necessary to clearly distinguish between agricultural land and urban land, and to ensure land conversion prices accompanying the expanding use of urban land did not affect the general agricultural land prices. In France, the Urban Planning Law of 1943 was greatly improved in 1958, under the Administration of President Charles de Gaulle. Under de Gaulle, the basic framework of urban planning was established by the Law on Orientation of Land (Loi d’orientation fonciere: LOF) in 1967, which still guides the current system. During the early stage of the Fifth Republic, especially from1958 to 1962, various systems were implemented to strike a balance between the need to preserve and use agricultural land versus the demand for urban land use and the desire to restrain the rise of land prices caused by conversion of agricultural land. The Urban Planning Law continued to develop, leading to the current system of urban planning regulations that control the shaping of cities and villages, and the use of urban and agricultural land all around the country. This system maintains the well-known landscapes of French villages and ensures the preservation of environmental spaces. 4) A system called the “Control of Agricultural Operation Structures (Controle des structures des exploitations agricoles)” was established by the second Law on Agricultural Orientation (Loi d’orientation agricule = LOA) in 1980. This system controlled the acquisition of the right to operate agricultural land, through authorizations by provincial governors, who would make decisions based on the way each agricultural operation entity did business and the characteristics of the entity itself, as well as the size and 66 Freedom of Contracts and Agricultural Land System structure of the operation. No regard was given to the question of whether or not the operation was based on ownership or leasehold. The aim of this system was to control the disorderly expansion of large-scale operations, foster more family operations of an appropriate scale, and encourage young farmers to become independent agricultural operators. The “promotion of the independence of young farmers” (favoriser les installations des jeunes agriculteurs) has been regarded as the most important agenda item relating to agricultural policy, and as a practical result, France has fostered a large population of young agricultural operators at present. One could call the first three aspects discussed above “the Three Pillars of the French Agricultural Land System.” In short, the system 1) restricts the freedom of agricultural land ownership by means of private laws in the field of agricultural land leasehold; 2) publicly controls the freedom of sales and purchases between owners of agricultural land by means of public interventions executed by SAFER; and, 3) controls the freedom of agricultural operations, (or the freedom in the use of operation capitals), by means of “control over the operation structure,” in accordance with the purposes of the policies governing agricultural structure. France has become an agricultural power in the European Union (EU) thanks to the promotion of agricultural structure policies, with a food self-sufficiency rate well over 100%. Modern tenant-agricultural operations developed on a family basis (76% tenant land in 2005) supported the land-use-based agriculture policy and was the key to the country’s food self-sufficiency. The establishment of agricultural land systems played a decisive role in enabling this to happen. The system of agricultural production legal entities was also established earlier according to this same logic of agricultural land system. When family-based agricultural operations modernize and expand their production scales, it is reasonable to expect that they will adopt an entrepreneurial operation model rather than the individual self-employed model. Even in this aspect, one should pay attention to the theoretical differences in policies and practices between this French system of agricultural production legal entities and the Japanese “incorporation of agricultural operations.” In addition, the agricultural production legal entities in France have been seen to over-perform those in Japan both in terms of number and gravity. Presently, more than 40% of agricultural land is being cultivated by agricultural production legal entities. Cambodian Yearbook of Comparative Legal Studies Vol. 1 67 4. Final Remarks There is a methodological notion called “path dependency” in American historical sociology. As the development process of the agricultural land system in Japan and France is examined, one notices that each of these countries shows its unique “path dependency.” It seems possible somehow to elucidate the main factors which dictated the “path.” At the same time, it seems also possible to affirm the idea that to cut off the “path” that has been established so far, so as to put contemporary new problems onto a new “path,” is an extremely difficult task. Cambodia is facing many difficult problems of its own and seems to have just started choosing a “path” for itself. Hopefully the discussions in this paper will be useful references for Cambodian people, lawyers or the government in their search for an appropriate “way.” References: (A) General publications on agriculture and agricultural land system in Japan Sekiya, Shunsaku, Japan’s Agricultural Land System - the New Edition, Agricultural Policy Research Committee, 2002 (in Japanese) [ 2002 ] Harada, Sumitaka, Agricultural Land System Considered – History, Present Conditions and Future Prospects, National Chamber of Agriculture, 1997 (in Japanese) [ ―― 1997 ] Teruoka, Shuzo (ed.), Agriculture in the Modernization of Japan (1850-2000), MANOHAR, 2008 Ogura, Takekazu, Can Japanese Agriculture Survive? Agricultural Research Center, Tokyo, 1982 (the Third Edition) 68 Freedom of Contracts and Agricultural Land System (B) Publications by Harada Sumitaka on Japan-France Agricultural Land Systems (In Japanese, unless stated otherwise) “The French Agricultural Land System”, The Real estate research (quarterly journal), vol. 22, no. 2, April 1980 [ 22 2 1980 4 ] “Philosophy of Agricultural Land Law and Securitization of Agricultural Land”, Jurist, vol. 735, YUHIKAKU Publishing Co. Ltd., March 1981 [ 735 1981 3 ] “Agricultural Legislation and Legislative Studies”, Horitsu Jiho rinji zokan – Supplementary Edition on Civil Legislative Studies, December 1981,Nippon-Hyoron-sha Co. Ltd. [ ―― 1981 12 ] “Changes in EC Agricultural Policies and Development of Social Structural Policies – A Focus on Diversity in Agricultural Values and the Formation of New Theory on Policies”, Journal of Social Science, Institute of Social Science, University of Tokyo, vol. 44, number 6, March 1992, pp. 1-62 [ ―― 44 6 1992 3 1 62 ] “The New French ‘Law on Agricultural Orientation’ and Revision of the Policies on Agricultural Structure – The Early 1980s”, The Quarterly Journal of Agricultural Economy, National Research Institute of Agricultural Economics, vol. 46, number 3, July 1992, pp. 35-105 [ ――1980 46 3 1992 7 35 105 ] “Preservation of Agricultural Land, The Direction for Securitization Policies and Revision of the French Structural Policies” (Continued from the previous article), in Shimamoto Tomio and Tabata Tamotsu (eds) Land Problems and Agricultural Land Policies in a Time of Change, Nihon Keizai Hyouronsha Ltd., (National Research Institute of Agricultural Economics, Research Monograph Series No. 113), March 1992, pp. 405-490 [ Cambodian Yearbook of Comparative Legal Studies Vol. 1 69 ( ) 113 1992 3 405 490 ] “Le droit rural au Japan” (in French), U.M.A.U., AGRICULTURAL LAW /AGRARRECHT/ DIRITTO AGRARIO/ DROIT RULAL, vol. 1, Editizioni ETS, 1992, Pisa (Italy), pp.119-225 “The Direction for New Agriculture, Rural Villages, Agricultural Land Policies and the Issue of Agricultural Land System – On Enactment of the Laws Related to New Policies and Their Evaluations (in six parts)”, Horitsu Jiho, vol. 66, numbers 5-10, from April to September, 1994, Nippon-Hyoron-sha, totally 54 pages [ ―― 1 6 66 5 10 1994 4 9 54 ] “Deregulation and Local Decentralization Theories from the Perspectives of Agriculture and Agricultural Land”, Horitsu Jiho, vol. 69, number 4, Nippon-Hyoron-sha, April 1997, pp. 39-46 [ 69 4 1997 4 39 46 ] “Deregulation of Agricultural Land System – The Attempts and Aims of ‘Liberalization of Agricultural Land Markets’ Arguments” in Tanso Akinobu & Odanaka Toshiki (eds) Critiques of Structural Reform and the Legal Point of View – Deregulation, Judicial Reform and the Antimonopoly Act, Kadensha, June 2004, pp. 139-172 [ ―― ―― 2004 6 139-172 ] “The Position and Possibility of Family-Based Agricultural Operation as An Operation Entity – A View Based on Japan-France Comparisons”, in Japan Agricultural Law Association (ed) The Image of Caretakers in Agriculture and Rural Villages and Local Autonomy, (Research on Agricultural Law, vol. 39), June 2004, pp. 74-88 [ ―― 39 2004 6 74-88 ] “Where is the Agricultural Land System Directed to? – To Question 70 Freedom of Contracts and Agricultural Land System the Significance of Approaching From ‘Ownership’ to ‘Use’”, Agriculture and Economy, January/February 2008, vol.74, number 1, pp. 28-41 [ ―― 2008 2 74 1 2007 12 28 41 ] “Current Theories of Agricultural Land Ownership and the Future for Agricultural Land System”, in Kaino Michiatsu, Hara Sumitaka, Hirowatari Seigo (eds), Collection of Papers in Memorial of Professor Watanabe Yoso – Japanese Society and Legal Studies”, Nippon-Hyoron-sha, March 2009 [ 2009 3 ] “Disintegrating Agricultural Land System – Problems Relating to Draft Amendment Laws on Agricultural Land and Other Issues”, Horitsu Jiho, vol. 81, number 5, May 2009 [ ―― 81 5 2009 5 ] “The New Agricultural Land System and the Meaning of ‘Liberalization of Agricultural Land Leasehold’”, Jurist, vol. 1388, pp. 13-20 (November 2009) [ 1388 13 20 2009 11 ] Cambodian Yearbook of Comparative Legal Studies Vol. 1 71 Land Law and Planning Law in Cambodia: Problems and Perspectives Fabian Thiel* 1. Good Land Governance in Cambodia The Royal Government of Cambodia (RGC) “attaches priority to granting land ownership rights to poor households and vulnerable groups for housing, farming and small businesses” and wants to “ensure land use efficiency”. Cambodia has a high rural poverty rate, high land concentration and “anarchy in illegal land possession, illegal claim of state land and protected areas as privately owned and unlawful logging”.1 A national goal has been established in order to solve these problems, especially that of rural poverty. This goal hopes to alleviate poverty by ensuring food security, equitable economic and social development, fair distribution of land and national resources, secure housing and environmental protection.2 The Rectangular Strategy (RS), Phase II, and the National Strategic Development Plan (NSDP) follow the principles of good governance which shall thus be reflected within the modern methods and instruments of land management, land administration and land distribution in Cambodia. Land Laws, Planning Laws, Property Laws and Constitutions are of crucial importance for good land governance in each country, not only in Cambodia. The Land Law of Cambodia was expected to be implemented to ensure an equitable and efficient system of land management. This includes provisions for fair land distribution, land tenure security, eradication of illegal settlements, land grabbing, and the control of ownership concentration for * Dr. Fabian Thiel works as a Faculty Advisor and Lecturer at the Faculty of Land Management and Land Administration of the Royal University of Agriculture (RUA) in Phnom Penh. Comments may be sent to email@example.com 1 Royal Government of Cambodia, Rectangular Strategy (RS), Phase II, from September 26, 2008, nr. 11, 50 and 51, p. 6 and p. 24, Phnom Penh (2008). 2 Technical University of Munich, Concept Note of the Royal Government of Cambodia on Land Use Planning Policy, draft from November 21, 2008, p. 2 (2008). 72 Land Law and Planning Law speculative purpose.3 At present, it is not clear if this Land Law will be able to fulfil all of these expectations. In the future, the Land Law must be regulated and decisions regarding property, expropriation, and compensation by the Cambodian Constitutional Council must be implemented and published for the legal empowerment of Cambodian people.4 The term “tenure security” means the right of all individuals and groups to effective protection by the State against forced evictions, as defined by international human rights law. From the perspective of international law, secure tenure is one of the seven components of the right to adequate housing which is directly linked with the access to land.5 Secure land tenure should not be mixed up with private property rights on land. Accessibility, affordability, habitability and location, guaranteed by international human rights law, can be secured by the State without the designation of private property. Land policy is formed by an interlocking system of land administration, land management and land distribution.6 The need for a national land policy in Cambodia is obvious because of land speculation and land rent-seeking tendencies. Worldwide developments on the real estate land markets and real estate financial systems meet demands for a social and ecological land policy which bring in innovative regulations for real estate property, asset management, and real estate markets. Such a comprehensive and cross-cutting land policy can not be realised in Cambodia without a land leasehold tenure system which must be flanked by a coherent land use planning policy. 2. Land Property and Land Value 3 Royal Government of Cambodia, National Strategic Development Plan (NSDP) 2006-2010 from December 22, 2005, p. 48, Phnom Penh (2005). 4 At global level, four billion people are excluded from the rule of law. See the Report of the Commission on Legal Empowerment of the Poor/United Nations Development Programme, Making the Law Work for Everyone, Volume 1, p. 1, New York (2008). 5 United Nations Human Settlements Programme (UN-Habitat), Urban Land for All, p. 6, Nairobi (2004). 6 Kingdom of Cambodia, Declaration of the Royal Government of Cambodia on Land Policy from July 1, 2009, pp. 1-4. Cambodian Yearbook of Comparative Legal Studies Vol. 1 73 Private real property is protected under the Cambodian Constitution and the legal system through Art. 44 Cambodian Constitution7, Art. 14-17, 4, 8 and 66 of the Land Law 20018, Art. 2 of the Law on Land Management, Urban Planning and Construction9, and Art. 138-226 of the Civil Code. Special attention should be drawn to Art. 2 of the Land Law. Art. 2 describes three forms of immovable property. The land markets and the – still not codified, but currently drafted10 – land valuation system and manuals are legally based on the term “immovable property”. “Land in Cambodia” can includes both construction and property rights. Immovable properties can be appraised for the private sector to determine purchasing price, support mortgage, determine co-ownership value and capital gain on property.11 Land valuation is a sub-layer of the cadastral system. Given such multi-purpose land valuation system, provided by most of the Western States, the cadastral system shows the overwhelming importance of property on land as collateral and mortgage, based on the land value. It is the private and public real property that is appraised. This property always has rights and obligations, defined by the theory of property rights.12 This neo-institutional approach follows the doctrine of the total range of ownership interests in real property: ius abutendi, usus fructus, abusus and usus. 13 The Appraisal Institute of Canada gives the following example to help explain a bundle of rights system: Imagine a bundle of sticks where each stick represents a distinct and separate right or interest. The bundle of rights contains the interests of a real property owner.14 7 Kingdom of Cambodia, Constitution (as amended) from July 13, 2004. 8 Kingdom of Cambodia, Land Law from October 18, 2001. 9 Kingdom of Cambodia, Law on Land Management, Urban Planning and Construction from May 24, 1994. 10 Royal Government of Cambodia, Declaration of the Royal Government of Cambodia on Land Policy from July 1, 2009, p. 2. See also Royal Government of Cambodia/Supreme Council of State Reform/Council for Land Policy, Interim Paper on Strategy for Land Policy Framework (Green Paper) (2002). 11 LMAP Canada, Workshop on Land Valuation, Oct. 13/14-2008, p. 2-8, Phnom Penh (2008). 12 See Harold Demsetz, Towards a theory of property rights, 57 American Economic Review, pp. 347-359 (1967); Richard Posner, The Economic Analysis of Law (1992). 13 See Svetozar Pejovich (ed.), The economics of property rights: Towards a theory of comparative systems. Edward Elgar Publishing, Cheltenham/United Kingdom (1990). 14 Appraisal Institute of Canada/Appraisal Institute, The Appraisal of Real Estate, 74 Land Law and Planning Law According to the exclusivity of private property, an owner in the capitalistic land use system has nearly unlimited power to sell, lease, enter or give away the property, e.g. land, commodities, buildings or other constructions. To be sure, the common, provincial or federal law can limit and restrict certain rights or give possibilities for expropriation. But this is just the other site of the “real property medal”, which consists of rights and obligations. In land law reality, the law is often too weak to effectively penetrate the poly-rationalities of the land owners and their rent-seeking driven economic expectations and behaviours on the land markets. 3. Land Leasing Private land use does not have to be linked with private property. The property-oriented Western States have effectively created a situation in which private property rights have negative consequences for land use planning, land allocation, and land distribution because of the value and rent of the land. Private property rights are to some degree obstacles for a sustainable land use planning policy and for a social land law. The “control of ownership concentration for speculative purpose” – as one of the clear political aims of the National Strategic Development Plan (NSDP) from 2006-2010 – would not be necessary if there were no exclusive private property rights for non-renewable natural resources such as land, soils and other commodities. The RGC should try to avoid the consequences of exclusive private property rights for land use. Cambodia can instead achieve a land use right tenure system similar to that of the land leasehold tenure regulations in many modern States, in particular those in Africa. These States could skim-off the economic ground rent with an income tax, unused land tax and other constitutional taxation methods. Land hoarding for speculative purposes would not make sense; “sky rocketing” land prices would no longer exist.15 From an economic point of view, global land markets are governed by the principle of inelasticity of land supply. The supply of land cannot chapter 1.5, University of British Columbia, Second Canadian Edition, Sauder/Vancouver (2005). 15 Dirk Löhr, Public Land Leasehold Tenure Approaches – A Way towards an Efficient and Effective Land Use Management. In: UNESCO (ed.), ERSEC International Conference Proceeding Sustainable Land Use And Water Management, Beijing, P.R. China, pp. 287-313, Beijing (2009). Cambodian Yearbook of Comparative Legal Studies Vol. 1 75 be increased due to a higher demand. The amount of land stays more or less the same. As a consequence, only the land prices and the land rent will rise in the case of an increased demand. A leasehold tenure system can prevent against tenure insecurity for indigenous land owners and for communes. In Africa, customary land rights such as the indigenous rights of tribal landowners are protected under leasehold tenure and the land laws. 16 Leasehold tenure can also help to register land systematically to women who primarily achieve secure land use rights for their families to perform subsistence farming or operate a smallholder business. African countries such as Mali or Morocco17 provide an example of the importance of recognizing customary and sometimes archaic collective land use rights as well as leasehold tenure. The Land Law of Mali (Code Domanial et Foncier of 1986/2000) is the main legal reference regarding land. Art. 43 of the Malian Land Law determines customary land rights, either collective or individual, that are held over the land without an official title and which are fully recognized by basic State constitutional law. However, ensuring effective land ownership security for farmers and equality in land access for marginal groups remains a major challenge. This is true in Africa (e.g. in Mali, Ghana or Nigeria), a place where land policies are mostly dominated by local traditional practices and where investments in land are sometimes prevented or postponed by claims of traditional landowners and their customary rights.18 The country of Namibia provides another example. In Namibia, only the land users in communal areas have customary land rights. These land rights are mostly combined with leasehold tenure titles which contrast with freehold tenure land titles found in commercial areas. Leasehold titles and leasehold tenure land use rights are registered by the Namibian Communal Land Boards and therefore recognized by the Land Law.19 These 16 Willie Breytenbach, Land reform in southern Africa. In: Justine Hunter (ed.), Who should own the land? Analyses and views on land reform and the land question in Namibia and southern Africa, pp. 46, 49, Konrad-Adenauer-Stiftung, Windhoek/Namibia (2004). 17 Julia Bartels, Terres Collectives. Kollektiveigentum in Marokko, Logos/Berlin (2003). 18 Lassana Sacko and Sékou Ba, Land management in rural municipalities of Mali. Presentation at the conference “South-South Dialogue on land policies and food security” (Siem Reap, Cambodia), 1, 5.12.2008. 19 Land, Environment and Development (LEAD) Project, Legal Assistance Centre (LAC) Namibia: A Place We Want To Call Our Own. A study on land tenure 76 Land Law and Planning Law African countires clearly show the importance of recognizing customary (indigenous) and leasing rights within a comprehensive land policy as a potential innovation and model for the current Cambodian land policy. Instead, the Land Administration Sub Sector Program (LA-SSP) in Cambodia focuses on systematic land registration rather than registering time restricted land leasing rights in order to create private ownership and tenure security. Certainly leasing rights cannot solve any specific marital problems that threaten land tenure security such as separation, divorce, abandonment, multiple marriage relationship, death of the husband, or unregistered co-ownership of the land. 20 But leasehold tenure can reduce transaction costs for access to agricultural land. Leasehold tenure regulations that exist in the Cambodian Land Law 2001 (Art. 106-113) are excellent land tenure alternatives to private property rights and absolutely equivalent to secure land tenure rights. Leasehold tenure should also be a key element of secure land tenure rights within the Land Administration Sub Sector Program, the Land Management Sub Sector Program and the Land Distribution Sub Sector Program in Cambodia.21 Leasehold tenure can give legal security to foster political and economic stability and can avoid the occurrence of land conflicts.22 A private person can own a building, factory, hotel, farmhouse or any other improvement on the land, but not the land itself. The land remains public State property and cannot be privatized. Such a land use regulation is already provided by Art. 15-18 of the Sub-Decree No. 129.23 Land leasehold tenure fosters social land policy: access to land without exorbitant economic transaction costs is an important precondition for the realization of social housing projects. policy and securing housing rights in Namibia, p. 53, LAC Head Office Windhoek/Namibia (2005). 20 Mehrak Mehrvar, Chhay Kim Sore and My Sambath, Women’s Perspectives: A Case Study of Systematic Land Registration. Gender and Development for Cambodia/Heinrich Boell Stiftung Cambodia, Phnom Penh (2008). 21 See German Technical Cooperation (GTZ), Programmes and Projects in Cambodia: Land Management and Land Allocation for Social and Economic Development, GTZ in Cambodia (2009). 22 See also Babette Wehrmann, Land Conflicts. A practical guide to dealing with land disputes, GTZ study, Eschborn (2008). 23 Royal Government of Cambodia, Sub-Decree No. 129 on Rules and Procedures on Reclassification of State Public Properties and Public Entities from November 27, 2006; Royal Government of Cambodia, Royal Decree No. 0806/339 on Principles and Transitional Provisions on Transferring Public Properties of the State and Public Legal Entities from August 03, 2006. Cambodian Yearbook of Comparative Legal Studies Vol. 1 77 Land leasing creates “divided” property. Land leasing legally separates property of the State as a lessor for State public property24 and property of the private people as lessees for their improvement on the land. State public property is needed as a precondition to set up land leasehold tenure on non-transferable State public land for “public interest” in the sense of State land management. Under the leasehold tenure system, the individual does not have to buy the land, because it remains as State public property (Art. 17 Land Law). The lessees could put these savings to good use, investing in building quality, renewable energy, or in the education of their children for teaching fees, books, English courses etc. 4. Land Concessions The Cambodian Land Law includes two forms of land concessions: Social Land Concessions (SLC) and Economic Land Concessions (ELC). The term “Concession” in the context of the Land Law 2001 is delusive, because concessions are legal rights to occupy land for possession and private ownership (Art. 48-62 Land Law). A concession will often result in the creation of private property at the end of the transaction processes; it does not maintain State public property (Art. 17 Land Law). SLC are reserved for the landless and land poor citizens. SLC can achieve private property allocation, but not always equal distribution. In particular, SLC cannot eliminate the transaction costs that prohibit access to land. However, SLC play a central role in projects for land allocation. Pilot projects contain the reclassification of former State public land to be registered as State private land for SLC and which will after 5 years of latency be transformed into private property of the individual SLC-target land recipients (beneficiaries) (Art. 18 of Sub-Decree No. 19).25 SLC can form private property rights including the right for the concessionaire to exclude others from the use of the conceded land. This does not always result in equal distribution for social purposes. Moreover, SLC are difficult to implement due to a “skyrocketing” of land prices as a result of massive competition for land by private 24 See Land Law 2001, Art. 17. 25 Royal Government of Cambodia, Sub-Decree on Social Land Concessions, No. 19 ANK/BK from March 19, 2003; Council of Land Policy, Policy Paper on Social Land Concessions in the Kingdom of Cambodia from March 19, 2002. 78 Land Law and Planning Law developers and a loss of concession land for other (sometimes highly speculative) purposes. The inelasticity of the land supply creates further difficulties; the supply of land is fixed and cannot respond to increased demand. Only the land prices and the ground rent rise with increased demand which is the incentive behind land speculation, land hoarding and “land grabbing”. The consequence is that in the future, there may be no State public land left for SLC in Cambodia. ELC – on the other hand – do satisfy an economic need. They allow the beneficiaries to use the land for industrial purposes.26 ELC are restricted to a maximum size of 10.000 hectares (Art. 59 Land Law) and are time-restricted for up to 99 years (Art. 61 Land Law). Given this large time restriction, the right of an economic concessionaire is comparable to the right of a private owner. Economic concession land is de facto nearly private property land. ELC can also be used as a legal instrument to convert State public land into State private land (Art. 14 and 15 Land Law) by Sub-Decree. However, the maximum ELC-duration of 99 years may be too long. Average durations up to 20 years would promote efficient land use control with a possibility of determining alternative land use when the shorter concession contract ends. 5. Spatial And Land Use Planning Policy An ideal land use planning policy in Cambodia would develop, organize, and protect the entire territory. Legal protection would be achieved with integrative, strategic territorial planning and the harmonization of regionally significant instruments and measures. Sufficient compliance of the land use planning objectives would be achieved. Regionally significant plans and measures would be harmonized and carried out in comprehensive development concepts while satisfying the requirements of the current land use planning policy.27 Spatial and land use planning should start in Cambodia as part of the official land policy strategy and the Rectangular Strategy (RS), 26 See Royal Government of Cambodia, Sub-Decree on Economic Land Concessions, No. 146 ANK/BK/December 27, 2005. 27 Technical University of Munich, Concept Note of the Royal Government of Cambodia on Land Use Planning Policy, draft from November 21, 2008, p. 3 (2008). Cambodian Yearbook of Comparative Legal Studies Vol. 1 79 Phase II, of the Royal Government of Cambodia. 28 Land use planning and spatial planning are necessary preconditions for land leasehold tenure and therefore an alternative to land tenure security as mentioned above. The RS gives the following important guidelines and “core values” for the future spatial and land use planning policy: (Table 1) Issues related to spatial Spatial and land use planning and land use planning instruments responding to the in the Rectangular issues in the Rectangular Strategy Strategy (relevant page of the RS in brackets) Rural poverty rate Comprehensive spatial planning remains high (p. 6) Gap between the rich and Comprehensive spatial planning the poor remains a challenge (p. 6) Land concentration is on Comprehensive spatial planning and the rise (p. 6) sectoral land use planning Landless people are on Comprehensive spatial planning the rise (p. 6) Urban-rural inequality Land use planning remains a challenge (e.g. national urban development (p. 6) planning) Informal planning instruments (e.g. Masterplan; Zoning) Areas under economic Land use planning land concessions have not been utilized efficiently (p. 6) Anarchy in illegal land Land use planning possession (p. 6) Illegal claim of State Sectoral land use planning land and protected areas (e.g. Nature Protection Planning; as privately owned (p. 6) Environmental Planning) Unlawful logging (p. 6) Land use planning Natural resources at risk Sectoral land use planning of destruction through (e.g. Nature Protection Planning) 28 Royal Government of Cambodia, Rectangular Strategy (RS), Phase II, from September 26, 2008, Phnom Penh. 80 Land Law and Planning Law poverty and internal migration (p. 6) Rehabilitation and Sectoral land use planning re-construction of (e.g. National Traffic Planning; national road network Infrastructural Planning) across the country (p. 6) Access to electricity in Sectoral land use planning rural areas is still limited (e.g. National Energy Planning) (p. 7) Provision of quality Sectoral land use planning public health service is (e.g. National Healthcare Planning) still limited (p. 7) Health care, sanitation Sectoral land use planning and clean water service (e.g. Water Protection Planning) in rural areas is not sufficient (p. 7) Institutional capacity of Comprehensive spatial planning government is still limited due to low salary and improper incentive schemes (p. 7) Legal and regulatory Comprehensive spatial planning framework contains loopholes (p. 8) Further restoration and Sectoral land use planning construction transport (e.g. National Traffic Planning; infrastructure (inland, Infrastructural Planning) marine and air transport) has to be strengthened (p. 10) Agricultural Sectoral land use planning diversifica-tion has to be (e.g. Agriculture Development improved (p. 10) Planning) Fisheries reform Sectoral land use planning (p. 24/25) (e.g. Water and Seabed Development Planning) Forestry reform (p. 25) Sectoral land use planning (e.g. Forestry and Agriculture Development Planning; Environmental Planning) Cambodian Yearbook of Comparative Legal Studies Vol. 1 81 Development of the Sectoral land use planning Energy Sector (p. 10) (e.g. National Energy Planning) Decentralization of Land use planning public services at (e.g. Regional/Provincial/District/ com-mune levels Municipality Planning; Zoning) according to the “single window” strategy (p. 14) Exploitation of oil, Sectoral land use planning natural gas and other (e.g. National Energy Planning) mineral commodities (p. 30) Increased investment in Sectoral land use planning agricultural production (e.g. National Development needed to be able to Planning; Agriculture Development respond to high food Planning) prices (p. 21/22) Spatial and land use planning issues within the Rectangular Strategy, phase II, 2008 Therefore, spatial and land use planning are instruments of national property policy which serve land allocation, land distribution and land use intervention purposes. Land use plans should designate the permissible use of each plot of land through preparatory or development plans and legally binding zoning plans. Increased local land use planning will protect and promote sustainable urban development, social justice through land use and an appropriate and natural environment for the Cambodian people. This interlocking set of land use plans on a national, provincial, district and communal level is necessary to avoid urbanization, urban sprawl tendencies, underused land hoarding and destruction of fertile farm land. Land use plans can protect land that has been designated for a special purpose, such as the protection of a landscape for biodiversity/agricultural uses, or the prevention of an open space from development. To sum up, spatial and land use planning in Cambodia should be determined by: • the preferences of public and private land owners; • the rule of law and territorial planning regulations that are legally binding; • public and private finance institutes, real estate banks and 82 Land Law and Planning Law insurance companies; • the land market, based on land and business valuation methods to identify land rental value and to revise legal Sub-Decrees setting concession fee rates, usage charges for natural resources and royalties on a regular basis; • agreements meeting international leasing tenure standards for urban and rural agricultural State public and private land29 • land taxation. The Kingdom of Cambodia has excellent land use planning safeguards at hand, such as a municipality’s statutory right to buy land and to control land prices (pre-emption law) or to expropriate private land for public interest (public purposes) which is legally allowed by Art. 44 of the Cambodian constitution. Expropriation is constitutional only when it is in accordance with specific legal provisions, such as the provision that landowners must be duly compensated. As far as planning for rural areas is concerned, infrastructural development like village renewal can be very costly. It depends to some extent on the cooperation with the land owners who have to pay for the supply of infrastructure systems. In the future, the Cambodian municipalities should be entitled to limited value capture. In addition, to ensure the development of local public transportation, communication infrastructure, water and energy supply, public health services, and sanitation and water supply in the context of village renewal and rural development, land owners should be forced to take on some of these infrastructure costs. Moreover, development in rural areas depends on the poly-rationalities of the involved land owners. Therefore rural development needs a property steering component in order to integrate these rationalities of the land owners affected by rural development planning instruments and their modules. However, even the best plans are useless when they cannot be implemented. In some cases, plans are blocked by private land owners who do not accept the planning determinations for their plots and the restrictions of their private property. Instead, these private land owners hope to increase and bag the ground rent (“rent seeking”). A leasehold tenure system as mentioned above puts 29 See also the example of Laos: Gunda Schumann et al., German Technical Cooperation (GTZ), Study on State Land Leases and Concessions in Lao PDR. Land Policy Study No. 4 under the Lao Land Titling Project II in Lao PDR, Vientiane (2006). Cambodian Yearbook of Comparative Legal Studies Vol. 1 83 economic pressure to the private land owners so that the planning authorities are able to grant access to land without high transaction costs. 6. State Land Management State land management also needs a sound land use planning system. 30 The Cambodian Constitution explains that “the State shall protect the environment and the balance of natural resources and establish a precise plan for the management of land” (Art. 59 Constitutional Law). By putting a land use planning system in place, the Cambodian planning authorities are able to guide and restrict the use of State public property in order to protect and promote public interest. Land use plans designate the permissible use of each plot and promote a sustainable development, social justice in land use, and an appropriate and natural environment for the Cambodian people. Land use plans on the national, provincial, district and communal level achieve land use control because the plans include designated social and economic purposes. Suitable legal instruments can serve as safeguards when they prevent rent seeking for residential, agricultural and otherwise unused land. Planning and construction law safeguards could be, in particular, communal statutory rights to buy land (pre-emption rights). Planning for the public interest helps to conserve landscape for rural and urban biodiversity and also protects open space in cities for agricultural uses, which promotes food security. The State is always the main actor in the land sector and has to guarantee State public property which cannot be transformed into private property.State land management needs to be broadened within the Constitution, the Land Law, and Sub-Decrees. One of the main purposes of public oriented and constitutionally justified land management is that it ensures private land access for all Cambodian people. Private land use under the conditions of tenure security is more efficient than State land use. But that does not per se require the designation of private property. State public property with a guarantee for private land use is absolutely sufficient, efficient, effective, and sustainable. Land use regulations must satisfy the public interest. Art. 44 of 30 Fabian Thiel, Law for State Land Management in Cambodia, 3 Rural21, Focus Empowering Law, pp. 34-36 (2009). 84 Land Law and Planning Law the Cambodian Constitution says, “Expropriation of ownership from any person shall be exercised only in the public interest as provided for by law”. In addition, Art. 58 declares, “State property comprises land (…)”. The term “public interest” should be integrated into Art. 58 Constitutional Law in order to clarify that State public property is in the best interest of the public. The elimination of land speculation and illegal claims of State land must be a demanded goal within Art. 58 to guarantee a use of State public land that is in the public's best interest. Social housing and any sustainable use of forest, fishery, and other resources must also clearly be defined as land uses that are in the public interest of the Cambodian State. At present, public interest is not mentioned within Art. 58 of the Constitution. The Constitution and the Land Law shall empower the Government to guarantee a competitive market economy in a country composed of State public property that is not allowed to be sold to private citizens. In the future, public interest would be satisfied if the ground rent – or any economic gains from the land – are pooled and redistributed to all Cambodians in equal shares.31 7. Conclusion: Institutional Framework and Final Policy Recommendations The Royal Government of Cambodia has a unique opportunity to elucidate and improve social land policy throughout the whole territory of Cambodia.32 Hence, social land policy should include: • different property forms and tenure securities for land beyond the private property rights solution for the use of non-renewable natural resources and any immovable property; • effective and efficient State land management with non-transferable public property; • leasehold tenure contracts, eventually combined with 31 See also Dirk Löhr, Public Land Leasehold Tenure Approaches – A Way towards an Efficient and Effective Land Use Management. In: UNESCO (ed.), ERSEC International Conference Proceeding Sustainable Land Use And Water Management, Beijing, P.R. China, pp. 287-313, Beijing (2009). 32 See Royal Government of Cambodia, Rectangular Strategy, Phase II (2008); National Strategic Development Plan (2005); Cambodia’s Land Policy Declaration (2009); the Constitution; the Land Law, and the Civil Code of Cambodia. Cambodian Yearbook of Comparative Legal Studies Vol. 1 85 innovative land taxation models (redistribution of the ground rent for the benefit of the people as an “add up”); • indigenous, customary and other informal land use rights, eventually combined with leasehold rights; • rural development and village renewal as essential elements of land use planning policy; • property steering function of the spatial/land use planning policy (property policy) and • reduced transaction costs for the access to land. Social land policy, State land management and spatial/land use planning policy need framework arrangements guaranteed by the institutions responsible for land use development in Cambodia. The Council of Ministers of the Royal Government, national ministries, the legislature (National Assembly and Senate), the Council for Land Policy, the institutions of the provinces, districts, municipalities and the civil sector must consider these planning and property issues for the happiness, health, wealth and security of all Cambodian people. 86 Land Law and Planning Law Cambodian Yearbook of Comparative Legal Studies Vol. 1 87 The Theory of Post-Modern And the Principle of "Nullum crimen, nulla poena sine lege" Adachi Masakatsu* 1. Birth of modern criminal law 1) Special characteristics of criminal law in the ancient regime: Issues to be overcome Modern criminal law was born from criticisms of the system of state and society under the Ancient Regime. Four features characterized the pre-modern society. First, there was no separation of religion from the State. Religious crimes were tried under State criminal law. Second, the King or the feudal lord was the sovereign ruler. The sovereign ruler monopolized all powers. Only the sovereign ruler could define crimes and determine criminal punishment and did so according to his own will. Third, morality was not separated from law. Criminal punishments were sought on moral grounds. Fourth, the death penalty was the favored mode of criminal punishment. The severity of criminal punishment was defined by the degrees of pain that were inflicted on the convicts before their death. At this time, feudal lords defined crimes and imposed penalties at their own discretion. The treatment of witches provides an example of feudally created crime and punishment. Witches were treated as criminals despite an absence of legal statutes prohibiting their behavior. The concepts of human rights and freedom did not exist. * Professor of Law, Kanto-gakuin University, Odawara/Japan. 88 Nullum crimen, nulla poena sine lege 2) Ideological backgrounds and modern criminal legislation Out of these circumstances emerged the criminal thoughts of enlightenment. This ideology developed on the basis of the Renaissance Movement and called for the restoration of humanism. The Toskana Criminal Code, dated 30 December 1786, 1 represents one of the first pieces of criminal legislation and served as the foundation for modern criminal law. This code was enacted by Pietro Leopoldo, the feudal lord of the Toscana dukedom and son of Maria Theresia, the mother of Marie Antoinette who was executed with the guillotine during the French Revolution. The Code abolished death penalty. Then on 13 January 1787, Joseph II, the Emperor of Holy Roman Empire and elder brother of Pietro Leopoldo, enacted the “Josephina” Criminal Code.2 In addition to abolishing the death penalty, this later Code also required judges to be bound by law, and centered around the principle that crimes and their punishments shall be determined by the law. The Code also prohibited retroactive punishments. Shortly after, similar criminal 1 For details of this Code, see Cesare Beccaria, Dei Delitti e delle pena, Conuna reccolta di lettere e documenti relativi alla nascita dell’opera e alla sua fortuna nell7Europa del Settecento, A cura di Franco Venturi, Giulio Einaudi editore, Torino 1978, pp.258. Further research is made in Christian Daniel Erhard, Betrachtungen über Leopolds des Weisen Gesetzgebung in Toscana, Dresden und Leipzig 1791; Heinz Holldack, Die Reformpolitik Leopolds von Toscana: in Historische Zeitschrift, Bd. 165, München und Berlin 1942, pp.23; See also Adam Wandruszka, Leopold II., 2 Bde, Wien und München 1964/65. 2 The official title of this “Josephina” criminal code is “das allgemeine Gesetzbuch über Verbrechen und derselben Bestrafung”. More about this law can be found in Gesetze und Verfassungen im Justizfache (JGS), Nr. 611, and commentaries in Franz Sonnleithner, Anmerkungen zum neuen Josephinischen Kriminalgesetz, Wien 1787. Detail reviews of the relevant legislative materials at the time are available in Carl von Hock und Hermut Ignaz Bidermann, Der österreichische Staatsrath (1760—1848), Unveränderter Nachdruck der Ausgabe 1879, Wien 1972. However, the materials themselves were almost completely burnt out by fires set on the Ministtry of Justice by demonstrators in 1927. Significant research work on this Code has also been done by Hermann Conrad, Rechtsstaatliche Bestrebungen im Absolutismus Preußens und Österreichs am Ende des 18. Jahrhunderts, Köln und Opladen 1961; Derselbe, Zu den geistigen Grundlagen deer Strafrechtsreform Josephs II. (1780—1788): in Festschrift Hellmuth von Weber, Bonn 1963, pp.56; Derselbe, Der Staatsgedanke und Staatspraxis des aufgeklärten Absolutismus, Opladen 1971. The Japanese version is available in Adachi Masakatsu “The State’s Power of Criminal Punishment and the Origins of Modern Criminal Law” (kokka keibatsu kenryoku to kindai keihou no genten), Hakujunsha Publication, 1993, and “The True Features of Modern Criminal Law” (kindai keihou no jitsuzou), Hakujunsha Publication, 2000. Cambodian Yearbook of Comparative Legal Studies Vol. 1 89 codes were enacted, including the general Land Code of Prussian states in 1794, the Criminal Code of French Revolution in 1791, the French Napoleon criminal code in 1810 and the criminal code of Bayern in 1813. Modern criminal law developed in response to a distrust of the powers of the State to punish appropriately. Human history has revealed that if state powers were not reigned in, they could infringe upon human rights. Therefore, it was essential guard against supreme powers of the State, and with this in mind, the fundamental principles of modern criminal law emerged. 2. Fundamental principles of modern criminal law3 1) Background of fundamental principles In order to prevent the discretionary creation of crimes and punishments by a non-legislative body, crimes have to be stipulated by law. The law must be determined by the National Assembly which is composed of representatives of the people. The law must be promulgated and made public, so that everybody may know what constitutes a crime. This legitimizes the role of criminal law in setting normative limits to human conducts and defining grounds for punishment. This gives rise to the fundamental principle that only the law can define what acts constitute crimes. As a result, the mere commission of acts which may be socially or morally criticized as undesirable does not provide sufficient ground to justify punishment, unless these acts are defined by law as crimes. In the past, the violation of a customary practice was grounds for criminal punishment. However, customary practices differ from one region to another and also tend to be applied in discretionary ways. Therefore, the violation of a customary practice cannot be considered a crime under law. In addition, an act cannot be punished under law if the punishment has not been clearly stipulated prior to the commission 3 For detailed analyses of various principles of modern criminal law, see Adachi Masakatsu, “The True Features of Modern Criminal Law” (kindai keihou no jitsuzou), from p.93. 90 Nullum crimen, nulla poena sine lege of the act. This ensures that citizens will be appropriately deterred from committing the law-breaking act, but also protects citizens from being retroactively targeted for punishment by the creation of surprising laws. If these principles are not observed, those with powers will have ample chances to impose punishments on anybody simply because of the latter’s being opposed to them. Therefore, judges must declare sentences within the framework of statutory penalties stipulated in the criminal code. No matter what aggravating circumstances may exist, the sentence has to be within the framework of legally defined provisions on punishments. For example, in case of a random rifle gun shooting which kills 30 innocent persons, the act must be categorized as homicide. As such, the punishment must be within the limits of statutory penalty for the crime of homicide. 2) Nullum crimen, nulla poena sine lege a) Prohibition of retroactive punishments The criminal code outlines punishments in the service of justice but also sets a norm for actions. By indicating to the people what acts constitute crimes and what acts do not, the code sets standards of action for citizens. In order for this to be possible, the law defining the crime and imposing punishment must be in place before the citizen is able to violate it. When the actor knowingly commits an act in violation of the law, it gives rise to a legal ground for punishment. What will happen if a law is applied retroactively? It will lead to a situation where an act which was lawful when it was committed is made unlawful by an ex post facto law. A lawful act then becomes punishable by an ex post facto law. An ex post facto application of law cannot influence behavior and does not provide a standard for acts. In these circumstances, an actor made a decision in full confidence that his action was lawful, only to be punished by ex post facto legislation. If this were to be permitted, the law could be manipulated by tyrannical abuse. The state of the rule of law would simply disappear. Cambodian Yearbook of Comparative Legal Studies Vol. 1 91 b) Interpretation of the criminal code The criminal law is written in abstract language. Therefore, this language will not describe all concrete criminal facts. The meaning of written language must be interpreted in order to decide whether the facts in a performed act are applicable to the language currently written in the criminal code. As interpretation methods, we have the following: - The contextual interpretation and the teleological interpretation - The reduction (narrow) interpretation and the extended (broad) interpretation Although the contextual interpretation is the interpretation method which clarifies the meaning of language in an article, a teleological interpretation is a method of interpretation which takes into consideration the purposes and the legislative ideas of the law and goes beyond the frame of an article. When we compare these two interpretation methods, the contextual interpretation is narrower and the teleological interpretation is broader. Although commentators in Japan and Germany accept the teleological interpretation, it is not the interpretation method best understood from a civic viewpoint because citizens can only understand the written language and cannot go so far as to understand the purpose of the law not contained in the language. We have denotations and connotations in language. Denotation expresses the range of the meaning originally embodied in the language, while connotation means a spread of the language which can be extended within the limits of the routine exemplary use of a term subject to interpretation. It is the reduction interpretation which limits the interpretation of language to denotations, and it is the extended interpretation which allows the interpretation to cover connotations. Going beyond the denotation of the language, analogy relates similar concepts in language, and in a legal setting, can apply regulatory provisions to these concepts. Since an analogy does not clarify the exact meaning of language and the scope of language is simply extended to cover similar facts, the analogy is not an interpretation. In China, analogy was accepted by the former criminal law code. Its present criminal law code does not accept analogy and adopts the principle of “Nullum crimen, nulla poena sine lege.” 92 Nullum crimen, nulla poena sine lege If we are accepting a teleological interpretation as the interpretation method, we will have to face the danger of allowing analogy as a method of the interpretation. For this reason, we cannot accept teleological interpretation as the appropriate method for interpretation. c) The principle of clarity The criminal code outlines punishments in the service of justice but also sets a norm for action. In order to effectively set standards for action, the language of criminal provisions must be clear and comprehensible to citizens. This is called the principle of clarity. The code must distinguish acts which constitute crimes from those which do not, and specify the kind of acts which, if committed, will be considered crimes. Citizens learn standards for action from criminal provisions. But if the language of these provisions is ambiguous, citizens will not be able to understand the contents and will therefore not be able to understand what acts constitute crimes. Ambiguous language leaves much room for interpretation. In addition to the risk that citizens might not be able to understand which actions are prohibited, there is a risk that a ruler can impose his or her interpretation of an ambiguous rule. This can result in infringement upon citizens’ rights. In addition, this is not only an issue with defining the contents of crimes. The same can be said of punishments. If statutory penalties are not clearly provided for, there will not be clear indications as to what kind of sanctions will be imposed on acts in question. The simple expressions of “to be punishable”, “sentenced to imprisonment” or “subject to fines” do not have substantial clarity because they do not include concrete specifications such as the period of statutory penalty or the exact amount to be fined. This lack of criminal code clarity not only results in citizen confusion but also gives too much discretionary power to judges. It will probably result in interventions by ruling powers. We must not forget that modern criminal law grew out of strong opposition to such interventions and was an attempt to control the exercise of such powers. Cambodian Yearbook of Comparative Legal Studies Vol. 1 93 4. Some comments on the post-modern theory In order to understand modern criminal law, we must first discuss the post-modern theory. The post-modern theory claims that “the modern time" has finished. What does this mean exactly? Is it true that "the modern time" is over? When considered in the historical context, the modern time still continues. The "present age" is a changing concept. For the First Emperor of Qin, the time when he was alive is just “the present age”. The time when Christ was alive is “the present age” for Christ, and the time when Confucius was alive is “the present age” for Confucius. It is the same for Jayavalman VII. That is to say, the "present age" is relative, and exists in all times. In contrast, "modern time" is a concept within the historical context, referring to the age of capitalistic economy. Now is the time that capitalistic economy is spreading in our societies. We are living in the modern time. So, if we are living in the “modern time”, the distrust of the powers of state can only be strengthened but not relieved. Our human rights are most important. We must not allow our human rights to be infringed upon by arbitrary exercise of the powers of the state. Therefore, the principle of “Nullum crimen, nulla poena sine lege” must be more firmly established. On July 15, 1989, the Arch Summit Political Declaration on Human Rights announced: “Looking towards the future, we see opportunities as well as threats; this impels us to pledge our firm commitment to uphold international standards of human rights and to confirm our willingness to reaffirm them and to develop them further.” Another statement was issued in the Chair Declaration of Houston Summit on July 10, 1990. This statement considers the problem of diffusion, and explains that "A separate statement was issued on the transnational problems of terrorism and the proliferation of nuclear, chemical, and biological weapons, as well as ballistic missiles. These dangers, like the illicit trade in narcotics that will be addressed in tomorrow's Communique, know no boundaries. In the case of nuclear proliferation, the deliberations here take on added significance in this 20th anniversary year of the Nuclear Non-Proliferation Treaty.”4 4 Chairman’s Statement issued at the G7 Economic Summit, Houston, 1990. The document is available at http://www.g7.utoronto.ca/summit/1990houston/index.html (last access: January 94 Nullum crimen, nulla poena sine lege Here, transnational organized crime, such as terrorism and drug use, is defined and is considered "a threat to human rights". The necessity for consequences for these crimes is pointed out later in the statement. The Criminal Justice and Public Order Act was enacted in Britain on November 3, 1994 in response to this trend. In this Act, new provisions are added that deprive the accused of certain rights while increasing police powers. These amendments include: (1) Sections 34-39, which substantially changed the right to silence of an accused person. These changes may allow for inferences to be drawn from their silence. (2) Sections 54-59, which gave the police greater rights to take and retain intimate body samples. (3) Section 60, which increased police powers of unsupervised "stop and search". This is denial of the right of silence and is made possible based on the post-modern theory. The same situation has occurred in Japan. The movement to assist “criminal victims” has seen rapid increase in its influence in Japan. The extremist opinion that "a victim has the right to revenge in modern society " exists as a basis for this movement. This opinion arises from the post-modern theory of criminal law. People with this opinion are concerned with amending the basic rights and guidelines of a criminal trial in modern society. A different trial system needs be considered if this opinion is to prevail. 5. Present significance of the principles of modern criminal law 1) Are these measures a hasty protection of legal benefits? In analyzing these contemporary changes to criminal legislation, a few people have claimed that these measures are early protection of legal benefits, similar to the concepts adopted by the German 2010). Cambodian Yearbook of Comparative Legal Studies Vol. 1 95 criminal law. However, this phenomenon is not especially contemporary. History has indicated that various types of detailed provisions on penalties were quickly enacted, but for the purpose of keeping order. The motivation for altering legislation is different nowadays. In the past, the aspect of governmental administration and control was much emphasized, but the current tendency of legislating new criminal behavior is put in place to change civil consciousness. Thus, we cannot compare this current phenomenon with past tendencies. Laws and ordinances enacted in order to maintain civil safety bring with them serious problems which may disturb fundamental principles of modern criminal law. If we think that legislation of some particular categories of crimes is necessary merely as early protective measures for legal interests, we are in fact risking the denial of a basic principle of modern criminal law, namely the principle of social infringement. This principle is best reflected in Beccaria’s statement that "a true measurement of crime is the damage which the society suffers from the crime itself". This tells us that the act of social infringement should be the basis for the construction of crime in a modern criminal code. At that point, the ground for punishing a crime derives from its actual effects on social infringement. However, the new categories of crimes nowadays do not consider infringement as a constituent element. Since they are for the purpose of maintaining order, these crimes are established only based on formal process of criminalization. In this case, once a law is violated, the crime is immediately established. There are no requirements of outbreak of results and actual effects on social infringement. When this kind of crimes increases, we basically need to face the danger of having to deny various principles of modern criminal law. Therefore, although we may consider these to be early protection of legal interests phenomenally, they are not considered as such from the perspective of laws in general and the criminal law in particular. We should better construct theories of criminalization based on substantive acts. 96 Nullum crimen, nulla poena sine lege 2) Roles to be fulfilled by the various principles of modern criminal law The state in modern civil society was created as a nation state. This means that sovereignty now belongs to the people. Reacting against the harsh crimes and punishments that existed when sovereignty belonged to a tyrannical ruler, modern criminal law adopts the principles of “Nullum Crimen, nulla poena sine lege”, acts and responsibility, in order to restrain the powers of the state . Those principles come from a distrust of the state’s power to punish fairly and they will continue to have validity until the distrust and fear of tyrannical government ends. This begs the question; are these principles still valid today? Regional ethnic conflicts break out in every corner of the earth, and the crisis of collapsing nation states is alarming. But the form of the state itself has not changed. Moreover, distrust of the state’s power to punish still exists. In order for the state to exist there must be some degree of order. Wherever there is order, there must be a system of justice that gives the state the power to punish. Therefore, the "acts and responsibility" principles will continue to be valid as long as the distrust of the state's power to punish exists. These principles must continue to develop and evolve in order to meet future demands. However, the path of development should not lead to changes in the content of these principles. These principles must continue to serve their functions in controlling crimes but their contents should become more progressive and fruitful. Otherwise, the significance of these principles as a means of controlling the powers of the state will be lost. 6. Conclusions In Japan, all acts which are subject to the various forms of punishment categorized under article 9 of the Criminal Code are considered crimes. Moreover, the Criminal Code does not make a distinction between felony, misdemeanor and police offence which existed in the old Criminal Code. Therefore, even the smallest misdemeanors are considered crimes under the Criminal Code. If it is a crime, those who committed it will be labeled as a criminal offender and will be made the object of social discrimination. Cambodian Yearbook of Comparative Legal Studies Vol. 1 97 Moreover, the opportunity to exercise this power is given to the police. By constructing a criminal code in this manner, Japan blurs the lines between police state and democracy. When the draft proposal to revise the Criminal Code was made, it sought to decriminalize unnecessary provisions on crimes. Recently we have not heard any suggestions for decriminalization. Is this a good idea? There are various ways of sanctions in any society. Not all illegal acts have to be labeled crimes. We can avoid unnecessary criminalization if other forms of sanction are properly determined according to the grades of an illegal act. It will be necessary to attribute illegal acts to individual actors to promote proper deterrence and to aim to establish a society in which illegal acts do not take place. But there is no need to label an act as crime simply based on an abstract need to keep social order. So, by not labeling all illegal acts as crimes and by using other forms of social sanctions effectively, decriminalization will be advanced. To achieve a healthier civil society, police power must be reduced. 98 Nullum crimen, nulla poena sine lege Cambodian Yearbook of Comparative Legal Studies Vol. 1 99 Domestic Exhaustion of Patent Rights: A Theoretical and Practical Analysis Phin Sovath*1 I. Introduction Upon purchasing a patented product from a patent holder or with his consent, a purchaser is entitled to use and dispose of this patented product without any liability for an infringement of patent rights. This is called the doctrine of “exhaustion of patent rights” or “first sale doctrine.” Under this doctrine, a sale of a patented product by a patent holder exhausts his patent rights to control a patented product once it has been put on the market by the patent holder or with his consent. In other words, the patent holder has no longer the right to exclude the purchasers from their own usage and disposition after the patented products have been lawfully sold on the market. This doctrine has been widely recognized in many countries through case law or statutory provisions. In the United States, the doctrine of patent right exhaustion has been developed from case law for many years since the 19th century. During this period, a number of cases relating to extensions of the patent term were brought to the Supreme Court that frequently held that a purchaser, who lawfully bought a patented product, was entitled to continuously use the patented product even within the extended period of the patent protection. Later, the Supreme Court * Dr. Phin Sovath has recently rejoined DFDL Mekong as an adviser after completing his Doctor of Laws (Comparative Law) in Nagoya , Japan . As a member of the Corporate and Commercial Practice Group Sovath's practice focuses on Intellectual property, copyright and commercial matters. Dr. Phin Sovath is also an adjunct professor at Paññāsāstra University of Cambodia. 1 This paper is a summary of the author’s doctoral dissertation, which was submitted for an International Conference of Cambodian Society of Comparative Law held at Royal University of Law and Economics and Pannasastra University on March 14-15, 2009, in Phnom Penh, Cambodia. It was prepared for the purpose of discussion about Cambodia and TRIPS Agreement, and for this purpose, the paper presents a brief discussion in Japanese, German and the United States jurisdictions, and a broad discussion within the Cambodian context as shown in Part IV. 100 Domestic Exhaustion of Patent Rights in Adams v. Burke2 recognized the purchaser’s right to use the patented product in any place with no territorial restriction. Although the doctrine of the patent right exhaustion has been established for a long time in the United States, numerous cases have still been brought to and litigated in the courts. For example, in the recent Quanta Computer v. LG Electronics,3 the questions of whether or not patent exhaustion is also applicable to a process invention and of whether or not the patent holder can contract out the effect of the patent exhaustion have been brought to the Supreme Court for judicial clarification and determination. Similarly, recent cases concerning the domestic exhaustion of the patent rights have also been brought to courts in Japan and Germany. The most recent case in Japan was Canon Inc. v. Recycle Assist Inc.4 in which the legal issue concerned whether or not the patent holder could enforce the patent rights against recycled or reused products. In Germany, a case concerning a water consumption meter was also filed and litigated in 2004 in the Federal Supreme Court of Germany. 5 In most of these cases, litigations occurred due to two main problems: theoretical and practical. This study examines the doctrine of domestic exhaustion of patent rights in Japan, the United Sates and Germany and attempts to solve two theoretical and practical problems relating to the domestic exhaustion of patent rights. This study also examines what lessons other developing countries and Least Developed Countries (LDCs) could learn from the experience and practice of these three developed countries. All of these will be discussed in the following three parts and a final conclusion will be made at the last part of this paper. 2 See Adams v. Burke, 84 U.S. 453 (1873). 3 See Quanta Computer v. LG Electronics, 128 S. Ct. 2109 (2008), and its dockets No. 06-937. 4 See Judgment of the Supreme Court in Canon Inc. v. Recycle Assist Inc. (Sup. Ct. Nov. 8, 2007), available at <http://www.courts.go.jp/hanrei/pdf/20080111155502.pdf> (last visited July 17, 2008). 5 See Judgment of the Federal Supreme Court, May 4, 2004, Case No. X ZR 48/03 (“Impeller Flow Meter”), 36 IIC: INT’L REV. OF INTELL. PROP. & COMP. L. 963 (2005). Cambodian Yearbook of Comparative Legal Studies Vol. 1 101 II. Theoretical Problems The first problem concerns which theory is the most appropriate to justify the formation and the existence of the patent exhaustion doctrine. After discussing and analyzing four main theories: the theory of implied license, the one-chance reward theory, the theory of property rights, and the theory of free movement of goods, this study found that Japanese and German courts have adopted the theory of free movement of goods and the one-chance reward theory to recognize and establish the patent exhaustion doctrine. On the other hand, in the United States, while the Supreme Court has provided the justifications of the patent exhaustion based on the one-chance reward theory and the theory of property rights, the Federal Circuit has adopted the implied license theory whereby the patent holder can limit or prohibit the effect of the patent exhaustion. Different from the Federal Circuit of the United States, the implied license theory in Japan and Germany was completely rejected from the outset for it has many shortcomings in both theory and practice. Based on these similarities and differences in their rationales, nevertheless, this study concludes that the justifications of the exhaustion doctrine should include both ex-ante and ex-post justifications in order to make the exhaustion rule consistent, certain, and predictable. The concept underlying the ex-ante justifications is the theory of free movement of goods. This theory is complemented by the theory of property rights and the one-chance reward theory which are the subject for consideration under the ex-post justifications. In this respect, this paper suggests that the United States courts should take into account the ex-ante justifications in addition to the ex-post justifications and that the Japanese and German courts should put more emphasize on the theory of property rights when explaining the ex-post justifications of patent exhaustion. III. Practical Problems The second problem relates to the scope and limitations of patent exhaustion and a judicial standard for determining these scope and limitations. Suppose that X invented a new machine A and obtained a combination patent over this machine. In the patent application, X 102 Domestic Exhaustion of Patent Rights claimed “a machine A comprising part (a), part (b) and part (c).” Each of the three parts is not separately patented and among the three parts, part (c) plays an important function that is essential to the inventive concept of the invention. X manufactured and sold the patented machine to a retailer Y who later resold the machine to an end-user Z. Suppose now that the machine, after it has been used for one year, becomes dysfunctional due to the fact that part (a) or part (c) is broken. The end-user Z obtains a replacement part from another third party supplier, not the patent holder X, to replace the broken part so that the machine can continue to be used. Under the patent exhaustion doctrine, Y can resell the patented machine to the end-user Z as long as the machine had been lawfully acquired on the market. In this case, the patent holder X himself sold the patented machine to Y and it is assumed that Y could resell this machine to any person he likes as long as he obtained this machine from the patent holder X or his licensee. Many cases have already solved this aspect of the problem. However, there remain a number of questions regarding to what extent the end-user Z can use the patented machine after it has been put on the market. In the above example, is it possible for the end-user Z to repair the machine by replacing the worn-out part (a) or (c)? The parts (a), (b) and (c) were not separately patented, but the part (c) may be considered as an essential part of the patented machine.6 In this case, is the end-user Z permitted to buy the replacement part (c) from the third party supplier and replace the broken part with the new one? In addition, is the third party supplier allowed to supply the essential part of the invention without the consent of the patent holder? In seeking to answer these questions, this study has divided the discussion and analysis into two types: scope and limitations of the domestic exhaustion concerning product inventions and scope and limitations of the domestic exhaustion concerning process inventions. With respect to the product invention, this study, after examining three different approaches (“exhaustion versus manufacturing,” “repair versus reconstruction,” and “intended uses versus new making”) taken by Japanese, United States, and German courts, adopts a manufacturing approach in which the purchaser of the patented product can use, assign, or lease the patented product, 6 In cases where the parts (a), (b), and (c) are separately patented, the problem might not occur because no one is allowed to use or sell the patented product without the consent of the patent holder. Cambodian Yearbook of Comparative Legal Studies Vol. 1 103 but cannot newly manufacture the patented product. To judge whether or not the patented product was newly manufactured, this study suggests that two conditions must be satisfied. The first condition requires that the patented product loses its utility, which makes the patented product not function for its intended purpose, and the second condition is that the patented product loses the essential feature of the patent invention and an act of modification or replacement is carried out to any part which constitutes the essential feature of the patent invention whereby this essential feature is restored and the technical and economic utilities of the patent invention are realized again by such an act. In addition, this study suggests that parts or components which constitute the essential feature of the patent invention should be parts or components which functionally interact with the majority of the components mentioned in the claim and substantially contribute to the implementation of the technical idea of the invention. With respect to the process invention, this study discusses similarities and differences in approaches of courts of Japan, the United States, and Germany. The study found that in Japan and the United States, the exhaustion doctrine is equally applicable to the process or method patent. However, they are different in terms of the requirements that lead to the patent exhaustion. In Germany, on the other hand, the Federal Supreme Court has taken a different approach from those of Japan and the United States in the way that the sale of a device to be used in the process does not exhaust the process patent and has no relation at all to the exhaustion doctrine. This study, however, adopts the “exclusively used” approach and the “indispensable for solving the problem” approach of the Japanese Intellectual Property High Court (IPHC) because these two approaches are more certain and predictable than that of the Supreme Court of the United States. Nevertheless, because these approaches are reasonably applicable to only cases where the exclusively used article sold by the patent holder can work or relates to the whole process of the patent invention, the study also adopts the “implied permission” approach, in particular when the article works only one part of the whole process. This “implied permission” approach is different from the “implied license” approach in the way that the former has only a contractual effect while the latter may be invoked under the patent law. In addition to the two problems mentioned above, this study also examines and discusses the relationship between patent exhaustion and freedom of contract in the three jurisdictions. This study 104 Domestic Exhaustion of Patent Rights attempts to answer two questions regarding this relationship. The first question is whether or not private parties can conclude, under the principle of freedom of contract, a contract to prevent or limit the effect of the patent exhaustion and to seek remedies under the patent law when any person has breached this contract. Because it is necessary to protect both the freedom of contract and the public interests secured by the patent exhaustion, the second question then is what approach should be adopted to strike the right balance. In regard to this overlap of interests, the Japanese and German courts have taken a different approach from the Federal Circuit of the United States. This study, however, supports the approach taken by the Japanese and German courts as well as that of the Supreme Court of the United States, and argues that patent exhaustion is the policy-based mandatory rule the effects of which should be determined by the courts or the legislature based on the balancing of the interests of the patent holder and the interests of the public. This policy-based mandatory rule is more desirable than the contract-based default rule because the benefits of the former outweigh the costs incurred by the adoption of the latter. The contract-based default rule cannot ensure certainty and predictability for the parties concerned and causes annoyance, inconvenience, and inefficiency at the downstream level. On the contrary, the policy-based mandatory rule should be adopted to ensure certainty and predictability and to promote innovation and competition in the market. IV. Legal Implications for Developing and Least Developed Countries: A Cambodian Case Study In addition to the two problems discussed in Part II and Part III above, this study also examines the patent exhaustion under the international legal framework, in particular the Trade-Related Aspects of Intellectual Property Rights (The TRIPS Agreement), to show that the problem of the patent exhaustion under the TRIPS Agreement has been left unsettled and that State Members are free to choose any regime of exhaustion (national, regional or international) so long as the principles of national treatment and MFN are not violated. To take this advantage, a number of Cambodian Yearbook of Comparative Legal Studies Vol. 1 105 developing countries and LDCs have incorporated the exhaustion-related provision in their patent laws by taking the provision of a WIPO Draft Industrial Property Act as a model provision. 7 In short, these countries have taken a legislative approach to deal with the patent exhaustion problem, which is different from the judicial approach taken by Japan, the United States and Germany. The legislative approach, however, has certain ambiguities inherent in the exhaustion-related provision that need to be clarified. These ambiguities include the distinction between the exhaustion of the product patent and the exhaustion of the process patent, the scope of acts permitted under the patent exhaustion doctrine, the meaning of “put on the market,” and the intersection between patent exhaustion and freedom of contract. The following will examine legal provisions in a number of the selected countries concerning patent exhaustion to find out whether or not those legal solutions have taken into account the legal problems that have occurred in the developed countries. In particular, it will look at Cambodia, whose legal provisions for patent exhaustion follows exactly the model provision of the WIPO Model Law, as a case study to examine whether the corresponding provisions under the Cambodian patent law provide a clear scope and limitations for patent exhaustion as shown in Part III of this paper. A number of countries have received legislative assistances from the WIPO and adopted the exhaustion-related provision under the WIPO Draft Industrial Property Act in their own patent laws in order to take advantage from flexibilities provided under Article 6 of the TRIPS Agreement.8 Before the TRIPS Agreement came into force, patent laws of most countries of the Sub-Saharan Africa (SSA), especially changes made during the 1990s, followed the 1979 WIPO Model Law for Developing Countries on Inventions 7 Section 10(4)(i) of the Draft Industrial Property Act which says that: 10.(4)(a) The rights under the patent shall not extend: (i) “to acts in respect of articles which have been put on the market in [Country][any country] by the owner of the patent or with his consent. 8 For a list of some developing countries, see Legislative Assistance Provided by the World Intellectual Property Organization (WIPO) in Relation to the Implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) and the Doha Declaration, available at <http://www.wipo.int/cfdiplaw/en/trips/index.htm>. Since this page has been modified, the archive of this page can be found at <http://web.archive.org/web/20060629102322/http://www.wipo.int/cfdiplaw/en/tri ps/index.htm> (last visited Nov. 06, 2008). 106 Domestic Exhaustion of Patent Rights and adopted the national regime of patent exhaustion.9 In order to comply with and to take advantage from the TRIPS Agreement, however, changes have been made to their patent laws with legislative assistances from the WIPO and other organizations. Ghana, for example, adopted under Article 30(b) of its 1992 Patent Law the national exhaustion with the following provision: 30. The rights under the patent shall- (a) …. (b) not extend to acts in respect of articles which have been put on the market in Ghana by the owner of the patent or with his express consent;10 In order to fulfill its obligations and to take advantage from the flexibilities of the TRIPS Agreement,11 the Ghanaian government, with legislative assistance from the WIPO,12 reviewed the 1992 Patent Law and adopted a new patent act in early 2003.13 Section 11(4)(a) of the new Patent Act adopted the international exhaustion regime in which the patent rights are exhausted when the patented products were “put on the market in any country by the owner of the patent or with the owner’s consent.”14 This provision follows exactly the model provision of the WIPO Draft Industrial Property 9 See PATRICK LUMUMBA OSEWE ET AL., IMPROVING ACCESS TO HIV/AIDS MEDICINES IN AFRICA 20 (World Bank 2008). 10 See Article 30(b) of the Patent Law of Ghana, Dated December 30, 1992, available at <http://www.wipo.int/clea/en/text_html.jsp?lang=EN&id=1778#P285_34345> (last visited Nov. 6, 2008). For a general observation regarding the adoption of this 1992 Patent Law, see D. M. Mills, Some Observations on the New Patent Law of Ghana, 17 WORLD PAT. INFO. 235 (1995). 11 For a general discussion regarding how developing countries have taken advantages from these flexibilities, see Christopher Garrison, Exceptions on Patent Rights in Developing Countries, UNCTAD-ICTSD Project on IPRs and Sustainable Development, Issue Paper No. 17 (August 2006). 12 See Report of the Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD), 5 (WO/CF/19/2, Oct. 03, 2001). See also Report of the Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD), 5 (WO/CF/17/2, Sept. 29, 1999) (“WIPO had organized numerous advisory missions to Ghana, on various subjects, but particularly in the area of legislative drafting.”). 13 For a general discussion of the new patent act, see JC Cohen et al., TRIPS, the Doha Declaration and Increasing Access to Medicines: Policy Options for Ghana, 1 GLOBAL HEALTH 17 (2005), available at <http://www.globalizationandhealth.com/content/1/1/17> (last visited Nov. 6, 2008). 14 See id. Cambodian Yearbook of Comparative Legal Studies Vol. 1 107 Act. Not only Ghana, but Kenya also has a provision concerning patent exhaustion under its own patent law, the texts of which are almost the same as those written under the WIPO Draft Industrial Property Act. Article 58(2) of the Kenya Industrial Property Act says that: “The rights under the patent shall not extend to acts in respect of articles which have been put on the market in Kenya or in any other country or imported into Kenya.”15 In June 4, 2002, this provision was amended by deleting the full stop and added the following phrase: “by the owner of the patent or with his express consent.” 16 This amendment, however, was reversed in August 2002 due to a controversy in the Parliamentary rule.17 In sum, the case of Ghana and Kenya has shown that much attention has been paid to the geographic extent of patent exhaustion and to whether or not there was the consent of the patent holder, but no much debate has been made about other parts of the provision, including the scope of the “acts” permitted, the meanings of the terms “articles” and “put on the market,” and the relationship between the patent exhaustion and the freedom of contract. Cambodia has a similar case in which a patent law was introduced for the first time in 2003 in a bid to become one of the WTO members.18 The first draft of the patent law was initiated in 1995 by the Canadian International Development Agency (CIDA) and submitted by the Cambodian government to the WIPO in 1997 for advice and suggestion.19 At the same time the WIPO made a new draft law following the WIPO model law for the Cambodian government. Because Cambodia has become one of the WIPO members since 1995, Cambodia receives technical assistances from the WIPO in the form of sending and receiving correspondences 15 See Section 58(2) of the Industrial Property Act of Kenya, available at <http://www.wipo.int/clea/docs_new/pdf/en/ke/ke001en.pdf> (last visited Nov. 6, 2008). 16 See Robert Lewis-Lettington & Peter Munyi, Willingness and Ability to Use TRIPS Flexibilities: Kenya Case Study, Sept. 2004, available at <http://www.dfid.gov.uk/pubs/files/dfidkenyareport.pdf> (last visited Nov. 6, 2008). 17 For a general discussion regarding this controversy, see Robert Lewis-Lettington & Peter Munyi, id. at 17-20. 18 See Report of the Cambodian National Assembly on the Discussion of the Draft Law on Patents, Utility Model Certificates, and Industrial Designs 52-54 (2002) (on file with author). 19 See id. 108 Domestic Exhaustion of Patent Rights and legal experts. 20 Finally, a Law on Patents, Utility Model Certificates and Industrial Designs was submitted to the National Assembly in 2002 and promulgated by the King in 2003. With respect to patent exhaustion, the WIPO failed to inform the Cambodian government of the flexibilities under Article 6 of the TRIPS Agreement and under the Doha Declaration.21 Because of this failure, the 1999 draft version and the 2001 draft version approved by the Council of Ministers adopted the domestic exhaustion regime by saying that “the rights under the patent shall not extend to acts in respect of articles which have been put on the market in the Kingdom of Cambodia by the owner of the patent or with his consent.”22 However, the Cambodian government later learnt of these flexibilities and revised this provision to take advantage of the TRIPS Agreement and the Doha Declaration by adopting the international exhaustion of patent rights. The current provision regarding patent exhaustion follows exactly the model provision which was written in the WIPO Draft Industrial Property Act. Thus, the exhaustion of the patent rights has been incorporated into the Cambodian patent law as an exception to the exclusive right, which is different from Japan, the United States and Germany whose exhaustion regimes have been developed from case law. The Cambodian patent law has a provision for the domestic and international exhaustion of patent rights whereby a patent holder can no longer control a product which has already been put on a market in or outside Cambodia by the patentee himself or with his consent.23 In other words, upon lawfully putting a patented product any where in the world, the patent right is exhausted thereby the 20 See id. 21 See Suerie Moon, Conference Report on Implementation of the Doha Declaration on the TRIPS Agreement and Public Health: Technical Assistance – How to Get It Right 3 (Médecins Sans Frontières 2002), available at <http://www.haiweb.org/campaign/access/ReportPostDoha.pdf> (last visited Nov. 6, 2008). 22 See Section 10-4(a)(i) of the 1999 Draft Law on the Protection of Patents and Industrial Designs (file with author) and Article 44(i) of the Draft Law on the Protection of Patents, Utility Model Certificates and Industrial Designs, adopted by the Council of Ministers on October 12, 2001, available at <http://www.moc.gov.kh/laws_regulation/draft_laws-comment/> (last visited Nov. 6, 2008). 23 See Article 44(i) of the Cambodian Law on the Patents, Utility Model Certificates and Industrial Designs, Promulgated by Royal Kram No. NS/RKM/0103/005, dated January 22, 2003 (hereinafter referred to “Cambodian Patent Law”) (on file with author). Cambodian Yearbook of Comparative Legal Studies Vol. 1 109 patent owner cannot exclude others, who have acquired the patented products on the market, from doing any act in respect of that product. Having a provision regarding the doctrine of the patent right exhaustion does not mean that all problems relevant to the domestic exhaustion of the patent rights can be settled under this stipulation of the patent law. Article 44(i) of the Cambodian patent law provides that: Article 44.- The rights under the patent shall not extend: (i) to acts in respect of articles which have been put on the market in the Kingdom of Cambodia or outside the Kingdom of Cambodia by the owner of the patent or with his consent;24 There are a number of questions regarding this provision. The first question concerns whether the patent exhaustion under this Article is applicable to both product and process patents or to only product patents. Because rights under the patent under Article 42 of the Cambodian Patent Law refers to both cases of product and process invention, it seems that the term “rights under the patent” under Article 44 also means patent rights in cases of both product inventions and process inventions. It is worthy to note, however, that in cases of process inventions, there are two types of rights granted under the patent law: the right to exclude others from using the patented process and the right to exclude others from making, selling or using a product produced by the patented process.25 Therefore, it will become problematic to conclude that the right to use the process is exhausted whenever the patent holder puts an article, regardless of being patented, unpatented, exclusively used or commonly used, on the market. For 24 Id. (emphasis added). 25 Article 42 of the Cambodian Patent Law says that: “Article 42.- For the purposes of this Law “exploitation” of a patented invention means any of the following acts: (i) when the patent has been granted in respect of a product: (a) making, importing, offering for sale, selling and using the product; (b) stocking such product for the purposes of offering for sale, selling or using; (ii) when the patent has been granted in respect of a process: (a) using the process; (b) doing any of the acts referred to in items (a) and (b) of the subparagraph (i) of this Article in respect of a product obtained directly by means of the process.” 110 Domestic Exhaustion of Patent Rights example, if the right to use the patented process was exhausted when a patentee has put on the market only one article or apparatus, which was unpatented and not exclusively used, to be used for working the patented process, this would injure the interests of the patent holder in that he would not have a chance to obtain royalties or compensation from the use of the patented process. This would be contrary to the purpose and justifications of the patent exhaustion in which one of the requirements is that the exhaustion occurs only when the patent holder has already had a chance to obtain profits from the patented invention. This ambiguous point can be clarified only when we clearly define the meaning of the term “articles” used under Article 44(i), which is the second problem of this provision. Other provisions of the Cambodian patent law do not make it clear and even discussions in the National Assembly and the Senate did not shed any light on this point. However, under the commentary of the WIPO Draft Industrial Property Act, the term “articles” referred to patented products or products made by a patented process.26 From this, it seems that the term “articles” do not refer to an apparatus or equipment to be used for working the process invention and the right to use the patented process is not within the scope of the exhaustion under Article 44(i).27 Nevertheless, the commentary of the WIPO Draft Industrial Property Act do not distinguish between the exhaustion of the product patent and the exhaustion of the process patent, in particular the right to use the patented process. This may cause confusion for countries which have little experience in the patent law and which have adopted the WIPO model provision in their patent law. Thus, clarification is significantly required regarding this distinction. The third question refers to what extent the term “acts” should embrace. Does the term include the acts of using, distributing, importing, offering for sale, selling, and stocking patented products? How about the acts of repairing, modifying, or refurbishing the patented products? Does this provision allow users 26 The commentary of the WIPO Draft Industrial Property Act explains that: “Under that principle, once a patent protected article (a patented product or a product made by a patented process) has been lawfully put on the market, the patent owner's rights in respect of that product are exhausted.” (emphasis added) 27 There is a problem with the translation from English into Khmer language in which the term “article” was translated to mean “apparatus” or “equipment,” not “product.” This may cause confusion when Cambodian courts literally interpret this term without referring to the original English version. Cambodian Yearbook of Comparative Legal Studies Vol. 1 111 to repair their purchased product in order to preserve or extend its useful life? If the repair right is permitted, to what extent is the right recognized and permitted? And if not, when does this repair right constitute a patent infringement? Suppose that a person bought used patented machines, disassembled them, took away broken parts and workable parts, and reassemble them again. In this case, it is not clear whether or not Article 44(i) permits such acts because all of these acts have been carried out only with products which the patent holder put on the market. Thus, the scope of “acts” mentioned under Article 44(i) is not always clear regarding the above-mentioned acts. The fourth related question arises concerning the phrase “in respect of articles.” One possible interpretation is that the term “articles” refers to “original products” which have been put on the market by the patent holder or with his consent. In other words, the acts resulting from the exhaustion of the patent rights are limited to only products which stay in the same form without any alteration or modification to the original products or without changes to their identities. Another possible interpretation is that the “articles” should include both “original products” and “modified products.” This later interpretation will permit purchasers to carry out all acts in respect of both original products and modified products without being liable for an infringement of the patent rights. In this case, it is not always clear as to what level of change or modification should be permitted under the patent exhaustion.28 This question is closely related to the third question regarding the scope of the “acts” of Article 44(i). The fifth question concerns when a product should be considered as being “put on the market.” Whether it refers to when a product was sold by the patent holder or when a patent holder has leased the patented product to any person is not clear under the Cambodian patent law, and the commentary of the WIPO Draft Industrial Property Act does not discuss this issue. In addition, there is a semantic problem when the Cambodian government translated this phrase into Khmer language. In the present patent law, the Cambodian government decided to use the word “Dak Taing,” which literally means “displayed,” rather than “put” or “sold.” The literal interpretation of this phrase will lead to confusion that the patent rights are exhausted whenever the patentee displays or 28 For example, when a used disposable camera is changed with a new battery and film inserted so that it can be used once again, does Article 44(i) allow this reuse? 112 Domestic Exhaustion of Patent Rights exhibits the product on the market. Such an interpretation will severely affect the interests of the patent holder in not even having a chance to obtain compensation. This problem might arise from the facts that the concept of “put on the market” did not exist in Cambodia at the time of translation and that the WIPO Draft Industrial Property Act does not clearly explain the meaning of this phrase. Thus, an explanation and a clarification are needed to avoid such confusion in the future. The sixth and last question concerns a situation in which the patent holder lawfully put the patented products on the market with certain conditions restricting subsequent circulation of the patented products. For example, the patent holder may put a condition “Single Use Only.” In this case, it is not clear whether or not the patent holder’s imposition of such restrictive conditions may escape from enforcement of Article 44 (i). If permitted, the patent holder could impose restrictive conditions whenever he decides to put the products on the market. In addition, if such restrictive conditions are permitted, to what extent they are considered lawful, valid, and enforceable is also not clear under the Cambodian patent law. Can a patent holder put a condition “single use only” on relevant products, and then invoke this condition under the patent law against any consumer who uses the product for the second time? Can a patent holder restrict consumers by excluding the right to repair from the products sold on the market? In other words, can a patent holder use contractual means to prevent the exhaustion effect of the patent rights and enforce the patent rights against any person who violated the restrictive contract? This is a question of the relationship between patent exhaustion and freedom of contract in which the WIPO model provision and the Cambodian exhaustion regime do not make clear. In sum, all the above-mentioned points are ambiguities inherent in Article 44(i) regarding patent exhaustion in Cambodian patent law. These ambiguities partly came from the fact that the Cambodian government had little experience in patent law and that it had adopted the model provision of the WIPO Draft Industrial Property Act without deeply understanding the justifications and substantial meanings of the exhaustion-related provision. These inherent ambiguities may also arise due to the attention that was paid to the territorial scope of patent exhaustion (national, regional or international) and the consent of the patent owner as shown in Ghanaian and Kenyan cases, rather than the scope of the acts permitted under the patent exhaustion and the other substantial Cambodian Yearbook of Comparative Legal Studies Vol. 1 113 meanings of the patent exhaustion provision. In addition, because the commentary of the WIPO Draft Industrial Property Act itself fails to discuss and explain these ambiguous points in details, this means that countries, that have adopted the model provision, may easily get confused during the adoption process as well as when this provision is applied in real cases. Different from the countries that have adopted the legislative approach to deal with patent exhaustion, Japan, the United States and Germany have no corresponding provision in their patent laws. The domestic exhaustion of the patent rights in these three jurisdictions has been established by case law and is not codified into their patent laws. In spite of this, courts in these three jurisdictions have dealt with all of the above-mentioned ambiguities for years as discussed and pointed out in previous parts of this paper. Based on the experience of the developed countries, this paper provides suggestions and recommendations, as to how to clarify these ambiguities in the commentary of the WIPO Draft Industrial Property Act as well as in the patent laws of those countries that have used this Act in their own legislation. V. Conclusion In the past, a lot of debates have focused on the geographical effect of patent exhaustion (national, regional or international) within the framework of the international conventions and treaties, but little literature has been made with respect to individual country practices in regard to the domestic exhaustion of the patent rights. In addition, recent problems have emerged as to how to apply the domestic exhaustion doctrine to cases of refilled cartridges, reused cameras or recycled products. Any of these acts might be lawful in one country, but unlawful in another, and when these recycled or reused products are imported into other countries, the domestic laws of those countries will be applicable to those products. These problems have become more and more significant in the era of globalization where various products are expected to move freely from one country to another. Varying, uncertain and unpredictable rules will become barriers to this future movement and a harmonization program is needed to deal with these problems. In addition, there have been some recent debates regarding the relationship between patent exhaustion doctrine and contributory infringement theory, in particular with respect to spare parts or 114 Domestic Exhaustion of Patent Rights replacement parts. On the one hand, the exhaustion doctrine aims to protect the interests of consumers and as long as the consumers’ repairing or replacing unpatented parts does not constitute a patent infringement, third parties who supply these spare parts are not liable for the patent infringement. On the other hand, the contributory infringement aims to provide patent holders with protection over spare parts that meet statutory and case law requirements. In this aspect, a question arises as to how to compromise these two doctrines in order to strike the right balance between the patentees’ interests and the consumers’ interests. Due to the time constraint and the complexity of the contributory infringement theory in each jurisdiction, this study has not explored and analyzed this relationship and suggests that future research and studies should be conducted on this important subject. Finally, this study hopes that its findings and conclusions will contribute to the literature on this particular issue and to any efforts towards future harmonization on this subject. In addition, it is hoped that experience and lessons from developed countries, as shown in this study, will be helpful for those developing countries and LDCs that wish to amend and clarify their patent laws with respect to this particular subject. Cambodian Yearbook of Comparative Legal Studies Vol. 1 115 Doing Business in Developing Markets: New Tools and Insights from Development Law Veronica L. Taylor* Introduction The 19th and 20th centuries marked the era of empires and the emergence of the modern ‘nation state’. In 1900, more than half of the world’s people lived under colonial rule and this geographic and political reality was reflected in 20th century legal knowledge. The European comparative law tradition of the 20th century saw the world as ‘civil’, ‘common’ and ‘socialist’ legal systems, often grouped as ‘legal families’ or as colonial powers and their satellites. Islamic law – if it was considered at all - was seen as marginal, private, and part of economically underdeveloped states or colonies. That 20th century legal world-view persists today, even in the face of significant global changes that make the classical taxonomy of comparative law outdated (eg Taylor, 1997a). The emergence of new states Our 21st century map of world legal systems began to emerge after the Second World War. From 1950 we saw new states emerge rapidly, as the result of: (a) de-colonization; (b) self-determination and wars of independence; and (c) the fall of non-democratic regimes (Berger, 2004). Examples within the Asia Pacific region * Affiliate Professor of Law and Senior Advisor, Asian Law Center, University of Washington School of Law: firstname.lastname@example.org; Director, School of Regulation, Justice and Diplomacy, Australian National University: Veronica.Taylor@anu.edu.au. This article was originally published as “Doing Business in Developing Markets: New Tools and Insights from Development Law", (2009) University of Tokyo Journal of Comparative Law and Politics (ICCPL) and is reproduced here with kind permission of the editors. 116 Doing Business in Development Markets include South Africa, Timor Leste, many Pacific Island states, Vietnam, the Lao Peoples’ Democratic Republic (Lao PDR) and Cambodia. After 1990 and the collapse of the Soviet Union we saw the re-definition -- and in some cases restoration -- of new national boundaries in Europe and Eurasia. Key examples from this period include Russia, Ukraine and the splintering and re-emergence of nation-states in central Europe, the Baltics, and the Caucuses. In a separate category are those economies that during the 20th century were (and remain) independent states, but whose economic and geopolitical significance has fundamentally altered. The key examples here are China and India, but we might also include Turkey – the modern, aspiring EU member whose border still symbolizes the divide between Islam and Christianity. Turkey is particularly important in the redrawing of legal conceptual maps because it marks the limits of European definitions of ‘modern’ law, even while being an influential example of secular modernism within a Muslim culture (eg Menski, 2006:354). New states as ‘developing markets’ New global geography calls forward a need for new political, economic and legal maps of the world. As a shorthand expression in this essay I treat the focus of the creation of these ‘new’ boundaries as ‘developing markets’. Here, however, ‘developing markets’ stands as a synonym for: ‘emerging markets’, ‘transitional economies’, ‘new democracies’ and ‘middle income’ or ‘low-income’ states. As we will see below, a proliferation of new legal and economic tools for classifying legal systems produces a host of new labels, most of which are relatively malleable terms. At the same time, economic, legal and political ‘development’ remains uneven and unpredictable throughout the world and thus we also see a new geography of ‘fragile states’, ‘failing states’, ‘post-conflict states’ and even ‘pre-post-conflict states’ (such as Iraq and Afghanistan). What is relevant for our discussion is that all new developing markets have a range of political systems, whether capitalist, market socialist or foreign-aid supported. Virtually all of them have very new (or substantially reformed) legal systems. North Korea, of course, remains a singular exception, with little meaningful political, economic or legal transition in recent decades, apart from the Cambodian Yearbook of Comparative Legal Studies Vol. 1 117 creation of its special economic zone (Goedde, 2004a; 2004b and 2003). The rapid re-making of the word’s legal systems means that lawyers and businesspeople are now faced with a new and largely unfamiliar legal and regulatory environment in many of the markets that will be engines for global development and economic growth this century. This suggests a need to re-think our classification and understanding of legal and regulatory systems worldwide – both for practical and for intellectual reasons. Do law or legal systems and regulation matter for doing business in developing markets? Does the way that we classify or label legal systems really matter for the purposes of doing business in developing markets? Our first reaction this proposition may be negative. After all, if we think about the last few decades of economic growth in China, India – or even a much smaller economy such as Thailand, Indonesia or Cambodia – the connection between profitability for local and foreign businesses and the surrounding legal environment seems indirect at best. That is, business seems to have flourished even where legal and regulatory systems were either not well-developed or not particularly designed to assist business. This is well-illustrated in Clarke’s argument in relation to China that enforceability of contract rights in China has not been a necessary precondition for economic growth, whereas predictability, rather than enforceability, of property rights has been important (Clarke, 2003 and 2006). We know anecdotally and from research observation that the state of the local legal system has generally not been a major deterrent to businesses that wanted to invest in or transact with developing markets. In Indonesia prior to the 1997 financial crisis, for example, foreign investors in Indonesia showed little concern about the legal system during its high growth period (Taylor, 1997b and 1999). Indeed, for most of the 20th century formal law in the host state had minimal impact on simple business transactions (Deakin, 2008). That is, faced with weak or outmoded local legal systems, domestic and foreign business simply used functional substitutes to underpin business transactions. 118 Doing Business in Development Markets Business alternatives to formal law in 20th developing markets These functional substitutes, or alternatives to formal legal procedures and institutions, have varied from country to country and from industry to industry, but examples include: • Political guarantees from (autocratic) rulers, such as Presidential decrees issues by Suharto in pre-reformasi Indonesia; • Participation by ruling family members or business oligarchs in foreign investment projects as a form of political security; • Payments to government officials to ‘facilitate’ business licences or market entry; • Customized regulations for particular investments such as extractive industries – mining, forestry, minerals; • Relational contracting with local partners – bringing in a well-connected local joint venture partner and cultivating social and political ties to local transaction partners; • Contract design that insulates the sale/investment/joint venture from the local legal system, particularly the courts in the case of a serious dispute e.g. the use of arbitration clauses nominating third country locations, explicitly intended to move any disputes out of the local legal system. Law begins to ‘matter’ in developing markets What we see in the early 21st century is a series of regulatory shifts that are inducing changes to that old pattern of doing business in developing markets, without much reference to local or international law, or to the law of states that may regulate the foreign corporation. Here as examples I consider four of those regulatory shifts. (a) Legal framework changes All developing markets are now surrounded by regional or multilateral entities that impose legal standards that are increasingly onerous: key examples are the World Trade Organization, the EU, Cambodian Yearbook of Comparative Legal Studies Vol. 1 119 the North American Free Trade Agreement and the OECD. Membership of the WTO and EU requires extensive domestic legal change and compliance. Moreover, the legal ‘cost’ of entry to WTO (particularly for recent entrants such as China and Vietnam) has risen dramatically in recent decades. Foreign aid flows are also responsible for the active re-writing of national laws. If we take just countries in which Japan has been active in legislative reform through its government international development agency JICA, the list includes Mongolia, Uzbekistan, the Lao PDR and Cambodia. More importantly, as the WTO negotiating process has stalled (the current Doha Round appears deadlocked at the time of writing), we have also seen a decade of exponential growth in bilateral trade agreements (BTAs), bilateral investment treaties (BITs) and multilateral trade agreements (MTAs) – what some in Asia Pacific have termed the ‘noodle-bowl’ approach to regional law-making. One very significant aspect of bilateral and multilateral agreements is their impact on the local regulatory environment, as parties make ‘trade facilitation’ changes to their border control, customs, standards, intellectual property and administrative law systems. Moreover, many of these agreements contain guarantees of procedural legal standards. (b) Shifts in surrounding regulatory regimes One of the drivers for the extensive reform of local legal and regulatory systems has been systemic failure – in Asia the 1997 Asian financial crisis being the key example before the 2008-09 world financial crisis emerged. The remaking of financial and corporations law in South Korea under IMF conditionality, the upswing in new insolvency laws in the region and the new emphasis on corporate governance and risk management all illustrate this. Another 21st century change is the way that the implementation and operation of local/national law is monitored by users and third parties. Locally these include business groups, investors, professional groups, and NGOs. Internationally these include foreign aid donors and international NGOs. An early mover in the field of monitoring was Transparency International, which produces a perceptions-based corruption index that ranks economies in relation to the ease of doing business as measured by the absence 120 Doing Business in Development Markets (or universal presence) of corrupt payments: (http://www.transparency.org/policy_research/surveys_indices/cpi). In some cases these new forms of monitoring have led to regional competition in law reform, and competition for legal reform funding (Taylor, 2007). (c) Impact of technological change A further shift that has occurred in the late 20th century is technological change, leading to global businesses that require a different kind of legal support than that of 20 years ago. Examples include: – The rise in intangible components, leading to a need for intellectual property protection for global sellers and international investors; – Complex, multi-location supply chains that require enabling technology and the ability to create and monitory electronic funds transmissions, electronic ordering, inventory and quality controls systems; – The need to comply with importer legal systems that themselves are also subject to escalating regulation. Examples familiar to Japanese business include food sanitation, safety and quality of product inputs, and consumer protection regulations. (d) Risk management Law increasingly ‘matters’ for business partners or foreign investors in developing markets because their own corporation – parent and subsidiaries – are now subject to more rigorous risk management (businesses in advanced economies are more regulated now than 10-20 years ago). Moreover, rising corporate governance standards (including Japan’s) make compliance with local and international laws mandatory. Listed corporations are both subject to increased and sustained scrutiny of their business practices from local and international third parties, and are also likely to suffer real economic and business costs for failures in compliance. One example is the increased surveillance of corrupt practices committed by multinational businesses in developing markets (e.g. Indonesia Corruption Watch http://www.antikorupsi.org/eng/). Cambodian Yearbook of Comparative Legal Studies Vol. 1 121 The implication of these shifts for doing business in developing markets is fairly clear: investor or foreign partner ignorance of local legal and regulatory systems is now a business and a legal liability. To be sure, one effect of the changes is some regulatory convergence to EU and US models, but there is also abundant evidence of ongoing local differences as well. New tools for navigating developing market A prudent response would be to increase our baseline knowledge of developing markets’ legal and regulatory systems. To do that, we need to recognize some key shared characteristics: ¥ All new legal systems (or newly reformed) legal systems in the 21st century are hybrid (complex mix of multiple kinds of law from different sources); ¥ Many are Islamic (or have significant components of Islamic law); ¥ Information and transparency about local laws and regulations remain scarce, even in a digital information age; ¥ Public sector corruption and selective non-enforcement of law remain common; ¥ Most transitional systems are in the process of building effective legal and regulatory institutions -- we cannot assume that these are fully built-out. These shared characteristics present fairly formidable barriers to a quick or easy understanding of what makes up the legal and regulatory system of e.g. Turkmenistan, Moldova or Azerbaijan. Recognizing this reality, scholars and policy makers in the field of law and development are beginning to develop investigative tools that may have direct application for doing business in developing markets. Here I briefly introduce four new examples of information resources for business that focus on accurately describing the legal contours of newly reformed or reforming markets. Primary Sources The first is a plan to build, within 2 years a specialist legal library at Nagoya University to house primary materials – legislation and 122 Doing Business in Development Markets commentaries – on the legal systems of Central Asia and Southeast Asia at the Center for Asian Legal Exchange (CALE) http://cale.law.nagoya-u.ac.jp/. This is being planned in collaboration with US, Australian and European universities and public libraries and has the potential to be an information collection of world significance. Descriptive and Analytical Studies At Leiden University in the Netherlands, the Van Vollenhoven Institute – the Dutch Center for the study of SE Asia and development -- has begun a 15 country survey of Islamic Legal Systems (http://www.law.leiden.edu/organisation/metajuridica/vvi/ about-vvi.jsp#N100A6). This project, for the first time, describes key areas of civil, family and commercial law in a range of countries in which Islamic law functions as (a) state law; (b) a component of what has become secular state law; or (c) an independent strand within a pluralist legal system. The preliminary findings are very informative and allow us to make balanced comparisons of types of Islamic law concepts and how these actually operate in different legal systems. Evaluative/Benchmarking The third group of new studies is evaluative – they seek to both describe and measure legal systems in developing markets. The newest is a project by the American Bar Association. Building on what had been their Central and Eastern European legal reform activities (ABA-CEELI), the ABA has rebadged its implementation of rule of law projects as the ABA Rule of Law Initiative (ABA-ROLI) (http://www.abanet.org/rol/). In parallel with this, the ABA’s World Justice Project is engaged in beta-testing a global rule of law index that seeks to improve on the many and varied indices of ‘rule of law’ being used by multilateral and bilateral agencies at present. The ABA’s rule of law index has been developed in response to other influential diagnostic and descriptive indices. OF these, perhaps the best known is the World Bank’s Doing Business project and reports (www.doingbusiness.org). Cambodian Yearbook of Comparative Legal Studies Vol. 1 123 (a) Doing Business ‘Doing Business’ is the best known evaluative instrument for looking at legal systems developed in recent years. It was first released in 2004 as a survey of 145 countries (rising to 155 countries in 2006 and currently 181 countries). The method used was to ask one participating law firm or consultancy per country to answer a questionnaire about key areas of business law and procedure. These focused on (a) starting a business (b) hiring and firing workers (c) enforcing a contract (d) getting credit and (e) closing a business. Later the study added questions about paying tax, trading across borders, dealing with licences and registering property. Each of these is stylized transactions. The study aims to collect all this data for all countries and then benchmark the countries against one another. This should, in theory, also be useful for monitoring which countries are reforming actively and thus be a guide for decisions for development assistance funding. The designers also hoped to make more explicit the relationship between the legal and regulatory environment and how this might affect economic growth. This is clear in the publication of annual rankings such as the ‘top ten reformers’; countries identified as making reforms within the last 12 months within this study’s rubric: http://www.doingbusiness.org/Features/ Feature-2008-21.aspx. One of the claims of the study is that regulatory reform itself is an indicator of economic development. Countries that are not reforming are placing economic burdens on business and thus undercutting their own economic performance. One of the strong critiques of the study, however, is that it ignores political and social factors that influence regulatory choice (Davis and Kruse, 2007). The labor market, for example, is an area that is politically sensitive and difficult to reform in any kind of economy. As a whole the Doing Business evaluative project has been hugely influential. It is now built in as a measure to a number of development assistance funding mechanisms that are performance based particularly the United States’ Millenium Development Account aid projects. Japan has not yet moved in this direction – tying aid flows to measurable regulatory reform performance – but it does represent a strong stream within development practice. The project has also been highly controversial. Certainly it yields a great deal of data. 124 Doing Business in Development Markets But legal scholars also object that the core message is that reducing regulation is good, and that what works for rich developed countries should also work in developing markets. This is not clear. Because the study ignores history, politics and social norms, it is entirely unclear whether countries have good regulation because they are rich, or whether the good regulation helps their economic performance. The answer is probably both, but in that same sequence. At an intuitive level, we want the study to be true. Anyone (including me) who has ever paid a bribe in a developing country would like administrative systems that work efficiently and cleanly. However, the study by itself does not provide the answers. Doing Business is completely focused on formal processes, so it fails to capture the informal processes and human behavior that make up the full range of business transactions. It treats ‘business’ as a single category, so it also misses the particular business patterns and norms for individual industries – which we know vary greatly. As Kevin Davis points out (Davis and Kruse, 2007), it also fails to measure uncertainty – whether the players involved really know the processes and whether these are predictable. If they do, then the time taken to complete them may not be something that particularly troubles local business. A better approach would be to embark on the more difficult task of actually interviewing real businesses about their real interactions with the legal system. In the absence of that kind of data, however, the Doing Business study does provide interesting information for business that can be evaluated in line with you actual experience in that country. (b) USAID – CLIR The USAID CLIR Diagnostic reports (http://www.bizlawreform.com/) are part of US Agency for International Development’s Commercial Legal and Institutional Reform project. The USAID-CLIR study is influenced by the Doing Business approach, but differs from the World Bank’s methodology in that it is based on interviews with the actual government officials, business organizations and professionals in the countries that it covers. On the basis of 360-degree interviewing, it tries to establish what Cambodian Yearbook of Comparative Legal Studies Vol. 1 125 the state of the law is in 12-15 areas affecting business and then to determine which aspects of the law – particularly its implementation, require reform. Most importantly, it focuses on the profiles of the implementing institutions – courts, bailiffs, accountants, lawyers – and also institutions that support the operation of law, including the media. The key question that the CLIR studies ask is “Is there a desire to reform and if so, who are the key proponents or supporters of reform?” The idea here is to try to align foreign development assistance funding with the actual prospect of support in the target country. For business, the most interesting aspect of the study is the country reports. These are 70-100 pages or so and describe in some detail the state of the law and what key stakeholders indentify as problems. The project is also evaluative in that it seeks to compare countries within a region and then compare countries’ legal reform performance across the globe. The evaluative part of the project has some major methodological problems and has led some consultants to exclaim “I get it – Indonesia is just like Bulgaria.” (Taylor, 2007). After working in Indonesia and researching Indonesian law for 15 years, I would suggest that it is nothing like Bulgaria. But setting aside the temptation to be dazzled by arbitrary ‘scores’ assigned to countries, the reports themselves are valuable for both business and lawyers likely to have contact with those countries. Conclusion None of projects I describe above are methodologically perfect. In relation to evaluative/benchmarking projects I have participated as a researcher and analysis in both the World Bank Doing Business and in the USAID-CLIR activities. I have also been critical of both projects, because there are significant problems with the methods used to gather the data and the conclusions that are drawn from it. However, all of these projects, whether descriptive or normative advance our knowledge of rapidly changing legal and regulatory environments in different ways. The utility of these (imperfect) descriptive tools is that they represent an evolving body of new data and research – in varying styles – that is relevant for business and legal practice. Significantly, the information is publically available at little or no cost. The data is fresh. In many cases it confirms stereotypes or our 126 Doing Business in Development Markets anecdotal knowledge about the legal systems of developing markets. In other cases it contradicts the stereotypes. In the short term this has instrumental utility for development funding and planning purposes, and provides a wealth of free information to business. In the aggregate, however, the projects also invite us to fundamentally rethink how we view the world’s legal systems and our own - particularly the difficulty of linking legal reform to economic development; how and why we design regulatory environments; and what impact this has on business. References Berger, Mark T (2004) The Battle for Asia: From Decolonization to Globalization, RoutledgeCurzon. Clarke, Donald (2003) ‘Economic Development and the Rights Hypothesis: The China Problem’, American J. Comp. L. 51:109 Clarke Donald et al., (2006) ‘The Role of Law in China’s Economic Development’ (George Wash. Univ. Sch. Pub. Law & Legal Theory, Working Paper No. 187), available at <http://papers.ssrn.com/sp13/papers.cfm?abstract_id=878672> Davis Kevin and Kruse, Michael B (2007) ‘Taking the Measure of Law; The Case of the Doing Business Project’ Law and Social Inquiry 32(4) 1095 Deakin, Simon (2008) ‘Legal Origins, Juridical Form and Industrialization in Historical Perspective’ CLPE Research Paper 36/2008 Vol 04 No 07 available at: http://papers.ssrn.com/sp13/papers.cfm?abstract_id=1292790> Goedde, Patricia (2004a) ‘Still Trading with the Enemy: U.S. Trade Laws Concerning North Korea’, Sungkyunkwan Law Review, 16:2. Goedde, Patricia (2004b) ‘Law “Of Our Own Style”: The Evolution and Challenges of the North Korean Legal System’, Fordham International Law Journal, 27:4. Goedde, Patricia (2003) ‘The Basic Law of the Sinuiju Special Administrative Region: A Happy Medium Between the DPRK Constitution and the Hong Kong Basic Law?’[with translation], Journal of Korean Law, 3: 2. Menski, Werner (2006) Comparative Law in a Global Context: the Legal Systems of Asia and Africa, 2nd edition, Cambridge: Cambridge University Press Taylor, Veronica L. (2007) ‘The Law Reform Olympics: Measuring Cambodian Yearbook of Comparative Legal Studies Vol. 1 127 Technical Legal Assistance in Transition Economies’ in T Lindsey (ed) Law Reform in Developing and Transitional States Routledge Taylor, Veronica L. (1999) ‘The Transformation of Indonesian Commercial Contracts and Legal Advisers’ in T Lindsey (ed), Law and Society in Indonesia Sydney: Federation Press 279-290 Taylor, Veronica L. (1997a) ‘Beyond Legal Orientalism’ in V. Taylor (ed) Asian Laws Through Australian Eyes, Sydney: Law Book Company Taylor , Veronica L. (1997b) ‘‘Asian’ Contracts? An Indonesian Case Study’ in A Milner and M Quilty (Eds) Australia-Asia Perceptions: Episodes Sydney: Oxford University Press 159-180 128 Doing Business in Development Markets Cambodian Yearbook of Comparative Legal Studies Vol. 1 129 International Human Rights Law in Cambodia Meas Bora* Introduction Since 1993, the Kingdom of Cambodia has acceded to or ratified several human rights treaties.1 Many human rights norms, such as one related to fair trial, were incorporated into national laws. While there may be studies with brief discussion on implementation of human rights provisions in Cambodia, there are no discussions regarding how these provisions have been applied by the courts of Cambodia, and in the case of conflicts between provisions of national laws and human rights treaties, which norm should prevail. These questions are significant for discussion because they can provide guidance to judges, prosecutors, lawyers, and human rights activists in dealing with human rights cases. To accomplish this objective, this paper will focus on theoretically applying international norms in treaties, but not customary international law since there are no legal texts discussing customary international law. The paper will end with a preliminary conclusion that is open for further discussion. The paper first discusses how human rights treaties have been acceded to or ratified by Cambodia and how these provisions were incorporated into national laws, by indicating concrete provisions. Next, it focuses on the issue of invoking human rights treaty provisions in the Cambodian legal context. Finally, with a concrete discussion of potential conflicts between provisions of national law * Mr. Meas Bora got his LLM and LLD from the Nagoya University Graduate School of Law in 2007, majoring in international human rights law. Currently, he is a lecturer of international law, international human rights law, and a legal officer of the Office of the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia. 1 Cambodia acceded to and ratified six principal conventions on human rights of the United Nations, see THE CAMBODIAN OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, A SELECTION OF LAWS CURRENTLY IN FORCE IN THE KINGDOM OF CAMBODIA, 53 (2005), available at http://cambodia.ohchr.org/KLC_pages/klc_english.htm 130 International Human Rights Law in Cambodia and human rights treaties, it proposes approaches to solve these problems. A. Accession to and Ratification of Human Rights Treaties by Cambodia Treaty ratification or accession depends on respective national processes. The Kingdom of Cambodia follows a parliamentary democratic regime of government, and the National Assembly participates in the treaty ratification process.2 A representative3 of the government might join in the drafting of a treaty, or may just sign it. Once the treaty is signed, the government submits it to the National Assembly, seeking an approval on the ratification from the National Assembly. 4 The government’s request to the National Assembly explains, with technical assistance from institutions or ministries concerned, the contents and purposes of the treaty to be ratified or acceded to and the reasons why Cambodia would like to become its party.5 The National Assembly generally adopts a draft law of a few Articles reflecting the Assembly’s approval for the government to ratify the treaty. For instance, regarding the adoption of the Treaty on Extradition between the Kingdom of Cambodia and the Kingdom of Thailand, the National Assembly adopted a two-article Law on Approval to the treaty. Article 1 expressed approval of the treaty signed in Bangkok on May 6, 1998, and required the government to follow what is required by the treaty to become its party (Article 2).6 To date, it is unclear on how many occasions the National Assembly has rejected proposals or whether the National Assembly might ask government to make some reservations to provisions of a treaty. Additionally, it is unclear what the actual 2 A SELECTION OF LAWS, see id. 5. 3 In general, the Minister of Foreign Affairs and International Cooperation. 4 For example, for seeking the approval from the National Assembly, the Prime Minister made a statement regarding the request on ratification of the Hague Convention on the Protection of the Child and International Cooperation related to Inter-State Adoption. The statement refers to the “best interest of the child” principle, relevant policy of the government, laws and situation of child adoption; contents of the conventions; advantages of being a party to the convention, see the Statement, No. 51 S.Ch.Nor. K.Bor.Chor, dated September 09, 2006. 5 Statement, No. 51 S.Ch.Nor. K.Bor.Chor, dated September 09, 2006 (on file with author). 6 Extradition Treaty, see SELECTION OF LAWS, supra note 1, p. 2478. Cambodian Yearbook of Comparative Legal Studies Vol. 1 131 processes are in dealing with draft proposals of the government, such as a time limitation for the discussion of a proposal to be ratified or whether the National Assembly will discuss proposals to ratify in the same manner in which it discusses other laws. When the National Assembly accepts a proposal, the National Assembly sends the adopted law to the Senate for approval. If the Senate does not oppose 7 , then the Minister of Foreign Affairs writes an annotation on the law adopted by the National Assembly giving approval to the treaty. The law is then sent to the Prime Minister, who then sends it to the King for promulgation.8 After obtaining the approval from the legislative bodies, the government shall follow procedures required by the respective treaties, such as sending a letter to the United Nations Secretary-General, informing the Secretary-General that Cambodia would like to become a party to the treaty.9 Then, Cambodia would be bound internationally by the treaty, sometimes one month after the receipt by the United Nations Secretary General of depository letter of Cambodia.10 After ratification or accession, the treaty is published in the Royal Gazette “Reach Kech” so that invocation becomes acceptable, but there is no defined time period for this action.11 7 In case that the Senate revised a draft law or a proposed law, the National Assembly shall consider immediately, objecting all or keeping some revisions proposed by the Senate. In this case, the National Assembly shall adopt the draft or proposed law by open votes and follow absolute majority, see Article 113 (New) of the 1993 Constitution, see A SELECTION OF LAWS, supra note 1. 8 The King, upon receipt of the letter from the government, issues Royal Decree promulgating the adopted law, see A SELECTION OF LAWS, supra note 1, p. 2477. 9 Treaty enters into effect three months after the date of the deposit of its own instrument of ratification or instrument of accession, Article 49 of the ICCPR, see the International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171. Instrument of Ratification on the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committee during the Period of Democratic Kampuchea singed by the Minister of Foreign Affairs and International Cooperation Hor Namhong refers to requirement of the Agreement, and acting as a head of State, ratified the Agreement and undertakes faithfully to carry out the stipulations therein contained, available at http://www.eccc.gov.kh 10 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. 11 Provisions relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period, Article 74, see A SELECTION OF LAWS, supra note 1, 2197. This law is still applicable except procedural provisions. It is according to the 2007 Code of Criminal Procedure, Art. 611. 132 International Human Rights Law in Cambodia It is not clear whether a treaty that has been signed but not ratified is binding. Neither the courts, the National Assembly, nor representatives of the government have commented on this issue. One might argue that a signed treaty is binding since ratification process is just formality of the national legal system and is part of the national legal regime. Secondly, Cambodia follows the French Civil Law System, which theoretically means that treaty is directly applied.12 Law of Treaties makes clear that States shall not do anything effecting objects of treaties. 13 Finally, if the norms codified in the treaty are customary international law, then the treaty is declaratory. Therefore, it binds States even before signing.14 From the above discussion, treaty practice of Cambodia is different from that of the United Kingdom whose process of the signature or ratification of treaty does not require involvement of the parliament; thus, after the ratification, the parliament transforms a treaty to be part of national laws so that courts can apply treaties.15 B. Human Rights Provisions in National Laws Following ratification, some human rights provisions were incorporated into both substantive and procedural laws. It is interesting to note that many rights were mentioned in the 1993 constitution; thus, those rights have constitutional status. These rights include the right to life, the right to freedom from torture, and others. Overall it could be said that the following three types of differences between provisions of human rights in national laws and those of human rights treaties exist as regards rights, obligations holders and contents of the provisions. Some provisions 12 WARD N. FERDINANDUSSE, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, 61-62 (2006). 13 The Vienna Convention on the Law of Treaties (VCLT), May 23, 1969, 1155 U.N.T.S.331, Article 31. 14 Y. Distein, “The Interaction between Customary International Law and Treaties”, Recueil des Cours, v. 322, pp. 357-359 (2006). 15 Michael K. Addo, the Legal Condition of Refugees in the United Kingdom, 7 JOURNAL OF REFUGEE STUDIES, 96, 97 (1994); R v. Secretary of State for the Home Department, ex parte Chahal (Court of Appeal), Oct. 22, 1993, 108 INT. LAW REPORT, 363-364 (1993); WARD N. FERDINANDUSSE, supra note 12, p. 57. Cambodian Yearbook of Comparative Legal Studies Vol. 1 133 narrow down original contents of human rights in treaty, while others are broader, but inconsistent with the provisions of human rights treaties, and finally, national laws adopted to help implementation of human rights treaty failed to produce provision required by the relevant treaties. B.1. Narrowing Down of Human Rights Provisions Article 31 of the 1993 Constitution prescribes overall adherence to human rights treaties by the Kingdom. While the Constitution acknowledges respect for the Universal Declaration of Human Rights, it remains simple a declaration and not law. The Article refers clearly to “Khmer citizen”, meaning only rights of Khmers mentioned in the relevant treaties shall be respected. This pronouncement is narrowed further to rights holders indicated in the human rights treaties. For example, Article 2 of the International Covenant on the Civil and Political Rights (ICCPR) obliges State party to respect for right of individuals within its territory and subjected to its jurisdiction. The provision of the Article 2 emphasizes the respect for rights of both nationals and foreigners; it is in se non-discrimination. The Convention against Torture requires State parties to make an act of torture a crime. Cambodia law (1956 Criminal Code) already criminalizes the act of torture; however, the definition of torture is narrow. It does not include mental torture, acts inflicted with instigation of public authority, or acts committed by a person acting in a public capacity. 16 The Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (the ECCC), provides just moral and collective reparation17; thus, it was considered narrower than forms of reparation recognized under international human rights treaty.18 16 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, Article 1; Cambodian Criminal Code of 1956 (in the file with the author); newly Drafted Criminal Code does not define the meaning of “torture”, but in the commentary, it was referred to the Article 1 of the 1984 Convention against Torture, see Article 2221-1 of Draft Code in the Draft Code: Contribution to studies of Cambodian criminal law, the Ministry of Justice (2005), p. 186. 17 The Internal Rules of the ECCC, Rule 23, available at http://www.eccc.gov.kh 18 Reparation consists of restitution, compensation, satisfaction, rehabilitation, guarantee of non-repetition, see Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human 134 International Human Rights Law in Cambodia B.2. Broadening, but Inconsistent Drafters of human rights treaties, being aware of difficulties faced by States in fulfilling imposed obligations, provide some provisions allowing limitation on enjoying of rights. Measures undertaken to limit rights must have their legal basis; they shall not be inconsistent with obligations under international law. Limitation shall be for the protection of national security, public order or health.19 The Law on Statute of National Assembly Members, Article 5 says that: “people representative shall not use immunity arbitrarily, causing harm to individual reputation, good customs of society, public order and national security”. 20 It provides implicitly limitation of freedom of expression on several grounds, one of them is the protection of custom. These broad grounds mentioned in Article 5 are not consistent with provisions on limitations of freedom of expression in the ICCPR to which Cambodia is a party, and they go against the tendency of narrowing interpretation of exception to enjoyment of human rights.21 B.3. Lack of Required Human Rights Provisions Cambodia lacks laws or provisions required by human rights treaties to which Cambodia is a party. This is the case among many party States, regardless of governmental regime.22 Some laws on human rights were adopted before the treaty and therefore are not in line with the treaty. There is no clear guidance on exactly where provisions and laws are lacking, and even with such a guidance, the legislature does not have a keen interest in closing loopholes so the Rights Law and Serious Violations of International Humanitarian Law, C.H.R. Res. 2005/35, U.N. Doc. E/CN.4/2005/L.10/Add.11 (19 April 2005). 19 The International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171. 20 Law on Statute of the National Assembly, promulgated by the King on October 21, 2006 (in the file with the author). 21 Handyside v. United Kingdom 1 EHRR 737; Sunday Times v. United Kingdom 2 EHRR 245; Lingens v. Austria (1986) EHRR 103; Home Office v. Harman  AC 280, 312 or  1 All ER 532 22 Concluding Observations of the Committee on the Rights of the Child: Cambodia. 28/06/2000, CRC/C/15/Add.128, paras 9-10. Cambodian Yearbook of Comparative Legal Studies Vol. 1 135 process to make laws would stagnate. Article 3 of the Torture Convention prohibits States from sending any person to other countries where he or she would be subjected to torture upon the arrival in that country.23 This Article pronounces similar prohibitions in other articles such as Article 33 of the 1951 Refugee Convention. 24 There are no clear national laws or provisions of any laws incorporated this prohibition. The immigration law says nothing; while Article 98 of the Law on Anti-Terrorist Acts allows denial of extradition if it subjects persons to torture; it covers just extradition.25 The 2007 Code of Criminal Procedure is also silent on this point although it contains details regarding extradition issues. 26 Extradition agreements between Cambodia and China, Lao, or Thailand, do not mention prohibition of extradition to face torture although some of their provisions prohibit extradition to face death penalty.27 If one might interpret that those provisions contain such a prohibition; however, it is just in the case of extradition, different from Articles 3 and 33 which cover broadly, including prohibition of deportation. C. Application of Human Rights Provisions C.1. Direct Applicability of Human Rights Treaty Direct application means that a human rights treaty provision shall be applied without any requirement of adopting any laws by legislative organ to enable the treaty to be applicable in a domestic 23 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. 24 The Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150. 25 Law on the Anti-Terrorism, promulgated on July 20, 2007 (in the file with the author). 26 The Code of Criminal Procedure of the Kingdom of Cambodia, Khmer-English Translation by the ECCC (2008), Articles 566-594 (in the file with author). 27 See A SELECTION OF LAWS, Section XIV, Articles 3 and 4 of Extradition Treaty between the Kingdom of Cambodia and the Lao People’s Democratic Republic, see A SELECTION OF LAWS supra note 1p. 2513. Cambodia is also a member of Treaty on Mutual Legal Assistance in Criminal Matters of the ASEAN, singed on November 29, 2004, Article 3 provides limitation on assistance; but it does not inclusion of prohibition of torture are ground for denying assistance (on file with the author). 136 International Human Rights Law in Cambodia legal system after ratification.28 Thus, courts can consider whether any acts of authorities violate any Articles of a treaty after the treaty was ratified. Likewise, individuals can raise allegation of violations of human rights before courts or competent authorities. It needs to be emphasized that there are requirements of amending or adopting laws by treaty such as the criminalization of some acts. This is the legal basis for the authorities or courts of a State to prosecute those committed crimes. This is mainly required for States following the Civil Law System, which strictly adheres to the principle of legality. Article 4 of the Torture Convention which obliges the State to criminalize an act of torture is one of the examples.29 To fulfill the requirement of the principle of legality is different from the direct application. For discussion whether Cambodian legal regime allows direct application of human rights treaty or not, one needs to start referring to the 1993 Constitution. Its Article 31 says: 1. 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. 2. Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. 3. The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and freedom shall be in accordance with law.30 First, the human rights instruments referred in this Article are various, including so called “soft law”, as well as customary international law. It is argued that the provision of Article 31 does not indicate a direct application of treaties. 31 It is correct, considering the means of the words “recognize and respect” which strictly indicate the requirement of making laws or refraining authorities from violations of rights. Direct application goes beyond 28 WARD N. FERDINANDUSSE, supra note 12, p.29. 29 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. 30 The 1993 Constitution, A SELECTION OF LAW, supra note 1, p. 5. 31 Application of Customary International Law in Domestic Courts, p.11 (A paper produced by the ECCC defense lawyer, on file with author). Cambodian Yearbook of Comparative Legal Studies Vol. 1 137 this; direct application concerns whether or not the need of law transforming treaty to a part of national law; it requires the courts to apply human rights in practical cases, and order remedies for violations if found. If it was agreed that Article 31 stipulates direct application, only some rights were incorporated in the constitution, although slightly different or the same contents of human rights provisions from provisions of the Constitution, and shall be applied directly.32 Provisions relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (UNTAC law) note that the United Nations instruments shall be applied as legislative guidelines in Cambodia once they were officially published by the UNTAC.33 This applies to a limited number of treaties that are applicable, but uses these treaties as guidelines or as a way to fill existing gaps in national laws. Guidelines from the Ministry of Justice relating to the rights of the child indicate that human rights noted in the Constitution were not yet fully applied.34 The Ministry’s guidelines urged for these to be adopted completely. 35 It is a positive move as regards the implementation of human rights treaties; however, the guidelines are not binding and dynamically refer to just the rights of the child. The Cambodian Constitutional Council in 2007 established a direct application of human rights treaties. The Council asserted that: “considering that, in principle, in adjudicating, and with imposing sentences upon criminals, judges not only base on Article 8 of Law on Aggravating Circumstances but also laws.” The term “law” refers to national laws (including the Constitution, which is the supreme law), other enforceable laws, and international law which the Kingdom recognized, especially the Convention on the Rights of the Child.36 32 Article 32-50 of the 1993 Constitution, see A SELECTION OF LAWS, supra note 1, p. 5. 33 The UNTAC Law, see A SELECTION OF LAWS, supra note 1. Article 74 of this law is still effect; see Article 611 of the Code of Criminal Procedure of the Kingdom of Cambodia, Khmer-English Translation by the ECCC (2008). 34 Guidelines on the Application of Principles in National and International Law in Force Related to Juvenile Justice, in the Rights of the Child and Legal Protection of the Child in Cambodia, the UNICEF in Cambodia (2005), Annex (on file with author). 35 See Annex of the Guidelines, final provision of the guidelines of the Ministry of Justice. 36 Constitutional Council of Cambodia (CCC), decision dated on June 26, 2007, http://www.ccc.gov.kh/english/cont_dec_year.php (accessed on Jan 21, 2009). The 138 International Human Rights Law in Cambodia It is unclear about the meaning of the term “recognition”; whether it refers to ratification if it has a broader meaning than this, or if it includes acceptance of international customary law. If it is, the decision makes better clear about applicable norms, comparing with Article 31 of the Constitution. Finally, it is clear that some instruments, not just ones related to human rights, are directly applied. Article 67 of the Law on Copyrights and Related Rights says that: “provisions of international treaties related to this law to which Cambodia is a party shall be used with this law”.37 It is clear from the above examples that, at least, theoretically, human rights treaties are applied directly in Cambodia. This conclusion is reflected by referring to the provisions of some laws and decision of the Cambodian Constitutional Council. This is reinforced by the fact that the Cambodian legal system is predominantly influenced by French Civil Law system, which adopts a “direct application” approach. Thus, unlike the practice of the United Kingdom 38 , Cambodia does not need to transform treaties into national laws by the National Assembly. National law provisions of Cambodia do not indicate explicitly or implicitly whether or not international customary law is directly applied in Cambodia. It may not be directly applied, and this may be the same approach found in other national legal systems. C.2. Invocation of the Human Rights Provisions Invocation is the allegation of violations of human rights by any persons before the courts or competent authorities so that they consider whether the violation has occurred. The circumstance under which national courts are officially or legally allowed to consider whether the facts submitted before them are violating any decision of the CCC is final and binding, see Article 142 (new) of the 1993 Constitution, see A SELECTION OF LAWS, supra note 1, p. 5. 37 The Law on the Copyrights and Related Rights, Article 67, para. 2: in case of conflicts, the provision of international treaty shall be principal, see A SELECTION OF LAWS, supra note 1, p. 2585; the Article 129 of Law on Letters of Patents, Certificates of Useful Models and Industrial Drawings (2002), see A SELECTION OF LAWS, supra note 1, p. 2535. 38 Michael K. Addo, supra note 13, pp. 96-97; R v. Secretary of State for the Home Department, ex parte Chahal (Court of Appeal), Oct. 22, 1993, 108 International Law Report, 363-364 (1993). Cambodian Yearbook of Comparative Legal Studies Vol. 1 139 human right varies among countries. The Human Rights Committee of the UN makes clear that the measure for imposing respect for human rights is left with State choice depending on its domestic legal process.39 For the United Kingdom, invocation is accepted by courts after the treaty becomes part of national law through an act of transformation by the parliament.40 This process is necessary because if the courts consider a case on violations of human rights before the National Assembly has transformed a treaty, the courts may be accused of interfering in the affairs of the Parliament. Invocation can be made any time, even before the ratification of treaty, based on the status of customary relevant human rights. The related questions are: when is invocation legally or officially accepted by courts; whether all rights, regardless of their incorporation to national laws, are considered or if only incorporated rights are; are they referred or considered only in the case where there are loopholes in national laws; are courts considering other rights which were not raised by complainants, and the status and application of international customary law. Invocation and application are not separate issues. States have a tendency to apply ratified treaties and strictly follow national legal processes. Therefore, it might be acceptable that invocation is legally accepted by courts after treaties are published in “Reach Kech” in the case of Cambodia so that they become part of national law and enforceable accordingly.41 A corresponding question to ask is the time period for publishing these treaties. Currently, there are no any provisions of law in Cambodia which answers this. Establishing a time period for publication of treaties similar to that of national laws would be sound and acceptable. National laws, after promulgated by the king, shall be published before the date of entry into effect.42 To secure the treaty’s status, the transforming 39 Human Rights Committee, General Comment 3, Article 2 Implementation at the national level (Thirteenth session, 1981), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 4 (1994), para.2; ANTONIO CASSESE, INTERNATIONAL LAW, (2nd ed. 2005), p. 219. WARD N. FERDINANDUSSE, supra note 12, p. 132. 40 Michael K. Addo, supra note 13, pp. 96-97; R v. Secretary of State for the Home Department, ex parte Chahal (Court of Appeal), Oct. 22, 1993, 108 INT. LAW REPORT, 363-364 (1993). 41 Article 74 of the UNTAC Law, see A SELECTION OF LAWS, supra note 1, p. 2197. 42 Article 93 (new) of the 1993 Constitution, see A SELECTION OF LAWS, supra note 1, p. 5. 140 International Human Rights Law in Cambodia act, the required new laws, and the publication of the treaty are strongly recommended to follow immediately after the treaty is ratified. Lawyers in human rights cases raised some provisions of human rights before Cambodian courts; however, it is asserted that some courts completely denied consideration of human rights treaties, saying that national laws are sufficient. While a few judges might consider both national laws and human rights law at the same time, they mentioned only violation of national laws. Finally, some applied human rights treaty provisions in the case where there are not national law provisions applicable or when the national laws are unclear.43 This last point is clear as indicated in national laws.44 The Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Courts of Cambodia45 also applies international law in cases where there are no national norms applicable. 46 Practically, the judicial organs of the ECCC applied all relevant norms of international laws regardless of whether or not they are incorporated into its constitutive laws or internal rules. In deciding the appeal by charged person IENG Sary against the provisional detention, the PTC referred to relevant Articles of the Universal Declaration of the Human Rights which is a substantive instrument and not clearly mentioned in the ECCC law, and considered provisions of both Cambodian Criminal Procedural Code and the International Covenant on the Civil and Political Rights. 47 It 43 Based on my discussions with some judges and experts. 44 Article 2 of the Law on Anti-terrorism said that in case that the provisions of this law are unclear, international treaties relevant to the suppression of terrorist shall be resorted to. (on file with author). 45 The Extraordinary Chambers in the Courts of Cambodia (ECCC) is a mixed court created basing on the agreement between the Royal Government of Cambodia and the United Nations, available at http://www.eccc.gov.kh. 46 Article 12 of the Agreement between the United Nations and the Royal Government Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea; Article 33 of the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea; Internal Rules of the ECCC, Rule 2, available at http://www.eccc.gov.kh. 47 Public Decision on Appeal against Provisional Detention Order, C22-I-74-EN, paras. 14, 42-44, available at http://www.eccc.gov.kh. In adjudicating whether 8 year detention of Duch at Cambodian military court detention facilities before transferring Duch to the detention facilities of the ECCC bars the ECCC from prosecution of Duch, PTC examined applicable domestic law, and then referring to the international human rights law since there are not domestic laws applicable. The PTC referred to rights not mentioned in the ECCC laws and internal rules. Cambodian Yearbook of Comparative Legal Studies Vol. 1 141 applied norms which were not even raised by parties concerned.48 Other units, such as the Office of the Co-Investigating Judges (OCIJ) and Prosecutor, also followed this approach.49 In spite of this, it is still unclear about the application of customary international law (CIL). It can be inferred that CIL can be directly applied only when referred to or incorporated into national law.50 The practice of the ECCC is a very positive one; the court works as a real court of law and adapts to legal tendency and reflects a mixture of Civil Law and Common Law traditions. Finally, it has aided in the clarification of direct application and invocation of human rights treaties. The ECCC’s attitude is different from that of national courts. Applying only human rights mentioned in national laws implicitly treats human rights norms differently, which is not recognized under international law. It is impossible to repeat all human rights provisions in national laws; it might be against the doctrine of direct application which Cambodia holds, as indicated above, and obligation to respect for all human rights. It is recommended that all human rights norms shall be applied and it is necessary in the case of Cambodia which lacks laws and whose existing laws contain many loopholes. C.3. Place of International Law in Domestic Sphere Regarding the place of international law in the domestic legal sphere, the 1993 Constitution does not indicate anything. The Constitution’s one provision prescribes that the Constitution is the supreme law of the nation.51 This is not strange when compared with the positions of many States around the world. Other 48 Public Decision on Appeal against Provisional Detention Order, C22-I-74-EN, para. 14, available at http://www.eccc.gov.kh. 49 Prosecutors referred to human rights instruments several times. This is due to its common law influenced attitude. Although the visitation rights is not directly related to the right to family, the prosecutors consider the content of right to family and relevant jurisprudence thereof, whether or not the right to family contains allowing visit by charged person to his wife, a charged person also, see Co-Prosecutors’ Response to the Defense Submission on the Admissibility of the Appeal on Visitation Rights, 02/19-09-2007-ECCC-OCIJ (PTC 05), March 13, 2008, para. 18, available at http://www.eccc.gov.kh.. 50 Incorporation refers as reference of human rights treaty provision in national laws. 51 Article 132 (new) of Constitution, see A SELECTION OF LAWS, supra note 1, p. 5. 142 International Human Rights Law in Cambodia provisions make clear that treaties which violate, for example, the sovereignty of Cambodia, will be void.52 The constitution protects sovereignty meaning no treaty shall affect this. Thus, it might be inferred that treaties shall be below the Constitution, but they are above the laws adopted by the National Assembly; Article 129 of the Patent Law points out this implicitly. “Provisions of international treaties on industrial rights to which the Kingdom of Cambodia is party shall apply to problems arising related to this law. In case of conflicting with the provision of this law, treaty provisions shall be main provisions”.53 The place of the customary international law (CIL) is not known. Since CIL is bound automatically; it is hard for States to know the emerging and binding status of the CIL, together with the reluctance of States to accept the CIL54, the sound position is that the CIL shall be below national laws. It is with exception where the CIL having status of jus cogens55, which, in some cases, is higher than norm in the constitution. D. Conflicts of Provisions of Human Rights Laws and National Laws D.1. Concrete Potential Conflicts Human rights treaties were drafted by representatives from various States; thus, of course, their statements which might had been incorporated in an adopted treaty would reflect their own State’s interest. The interest might be different from one State to the other. Due to urgency for the adoption of treaties to avoid long time delays, provisions of treaty were agreed to based on consensus, 52 Article 5 of the 1993 Constitutions, see A SELECTION OF LAWS, supra note 1, p. 5. 53 The Article 129 of Law on Letters of Patents, Certificates of Useful Models and Industrial Drawings (2002), see A SELECTION OF LAWS, supra note 1, p. 2535. 54 For the position of the United Kingdom, see R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 3), 24 March, 1999,  1 AC 147, at 276. 55 The prohibition of genocide, torture, slavery. Cambodian Yearbook of Comparative Legal Studies Vol. 1 143 leaving vagueness and many loopholes in the treaty itself56, and causing hardships for adapting national laws to the treaty. Therefore, it is generally accepted that there are unclear human rights provisions of national laws. At the domestic level, provisions of human rights in national laws through incorporation are sometimes narrow, broad or vague if compared with the provisions of a human rights treaty. This generally happens in developing States, and not only Cambodia.57 The section above already mentioned the potential conflict between both norms. The following paragraphs try to provide a solution to the problems. D.2. Solution to the Problem D.2.1. Supremacy of the Constitution There might be a case where national law itself or acting pursuant to this law would be against the provision of a treaty. For example, immigration law supposedly allows authorities to deport illegal immigrants regardless of the torture the deportee receives upon arrival in their home country. However, the Convention against Torture prohibits such a deportation.58 This reflects a conflict of norms. The state does not have a choice but to comply with the obligation imposed by treaty which is above a normal law. However, if the underlined law is pursuant to the Constitution, such an act is although against treaty obligation, but it shall be upheld since the law is not contrary to the constitution which has higher status than the treaty. The above argument sounds acceptable; however, it is strange since the constitution is itself sometimes prescribed in the respect for the provisions of the treaty, and the relevant treaty to which law or acts are contrary, as multilateral treaty, which reflects interest of the international community of States as a whole and each State party shall not play its obligations down. Solutions might be that States should review their domestic law, including constitution, to 56 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. 57 See Section B. 58 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. 144 International Human Rights Law in Cambodia much extend to avoid the conflict between norms of national laws and international law, or adopt interpretative approach to avoid conflict. D.2.2. Interpretation to Avoid Conflict This way of interpretation is an approach followed by courts of some States to give integrity to their national laws or to avoid accusation of violation of treaty obligations. In the interpretation of the prohibition of non-refoulement, the Supreme Court of the United States asserted that the protection against non-refoulement is applicable to the person in the territory of the State; thus, deportation of any person on the high sea did not violate the obligation of non-refoulement.59 Likewise, the Canadian Supreme Court, referring to the text of Article 3 of the Torture Convention, said that the obligation of non-refoulement is not absolute. 60 Senegalese courts said that it did not violate obligations to prosecute or extradite on the grounds that its legislature did not make law, creating universal jurisdiction which paves the way for the courts to prosecute torturer found in its territory.61 Regarding the controversial view on content of the right to reparation under the Internal Rule of the ECCC, it might be argued that the right to reparation is not absolute, and even if absolute, all components of the reparation shall not be required since it might depend on the case at hand. In the case of illegal detention of any person, only compensation and restitution might be relevant; thus, rehabilitation is not needed. For reparation to victims of Khmer Rogue crimes, it shall not be individual compensation (money) to victims since if one interprets “victim” broadly, all Cambodians might be victims; they are either actual victims or relatives of victims. This might cause the ECCC problematic. The ECCC faces financial crisis, and cannot afford to pay compensation individually. Thus, limits of reparation to just moral and collective one does not violate of right to reparation and it is reasonably sound. 59 Petitioners v. Haitian Centers Council, Inc, et al., No. 92-344 (June 21, 1993), 113 S. Ct. 2549, para. 49. 60 Suresh v Canada (Minister of Citizenship and Immigration),  1 S.C.R.3, para.78. 61 Hissene Habre: Senegal´ s Albatross, Litmus Test for Africa, Angola Press, November 28, 2005. http://www.globalpolicy.org/intlústice/universal/2005/1128habre.htm Cambodian Yearbook of Comparative Legal Studies Vol. 1 145 It needs to be emphasized that “to avoid conflict interpretation approach” is hardly acceptable since States voluntarily becomes parties; thus, States shall not invoke any failure in laws to justify failure to comply with obligations imposed upon it. This is a principle of international law.62 This approach and its rationale behind are not as strong as “constitutional supremacy approach” since other States do not support the approach, and States that use this approach sometimes hold inconsistent stances over time. D.2.3. Direct Application Approach and Clarification by Relevant Authorities As mentioned in the section above on lack of laws required by treaties in Cambodia, to avoid allegation of breach of obligation to adopt laws, “direct application based approach” might help; however, it depends on the willingness of the judicial authority. Statements of human rights experts or representatives of the government might help avoid violation of international obligations. In response to the questions of the members of the Human Rights Committee regarding the holders of rights and respect for theirs are indicated in Article 31 of the Constitution, Cambodian expert asserted that Cambodia holds respect for rights of all persons. In connection with respect for the principle of equal rights, it should be stressed that, even though article 31 of the Constitution referred only to Cambodian citizens, all inhabitants of Cambodia, including aliens, were protected by the law. Anyone who believed himself to have suffered a violation of his rights could take his case to court.63 E. Preliminary Concluding Remarks It is a very welcomed attitude that many Cambodian laws incorporate provisions of human rights treaties. However, practical application remains unclear and inconsistent. Theoretically, the Cambodian legal regime allows direct application of human rights treaties; however, practically, courts apply directly human rights 62 The Vienna Convention on the Law of Treaties (VCLT), May 23, 1969, 1155 U.N.T.S.331, Article 27. 63 Summary Record of the 1758th meeting: Cambodia, 25/10/99, CCPR/C/SR.1758, para.11. 146 International Human Rights Law in Cambodia referred to or mentioned in national laws and in cases where national laws are not applicable or are unclear. Invocation of human rights provisions is officially accepted by courts after a treaty is published in the Royal Gazette. The practice of the ECCC is encouraging, indicating that the application of a wide range of human rights, does not limit what is mentioned within laws and is considered right even without raising by party to case. . International law does not force States to follow specific measures for implementing obligations, but requires that States shall give effect to all obligations and rights mentioned in treaties to which they are parties. Direct application and broad reference to various human rights provisions are necessary and significant and encouraged since provisions of Cambodian laws are vague and contain many loopholes. Treaties have shown to be below the Constitution, but above national laws. This order can guide questions of conflict between national and international law. The analyses above did not reveal practices related to the application and the place of customary international law. It might be said that some customary international norms shall prevail if they have the status of jus cogens. Still, it is necessary to have a survey or analysis of customary international laws having or not having jus cogens status, whether they were actually applied by the courts of Cambodia, and whether they shall or shall not prevail in the case of their conflict with national law. Cambodian Yearbook of Comparative Legal Studies Vol. 1 147 ADR in Cambodia’s Legal System Steven Austermiller* I. Introduction ADR stands for Alternative Dispute Resolution. It refers to the various ways parties can settle disputes outside of the traditional, court-centered adjudication system. ADR encompasses many forms of dispute resolution, some of which are common and some of which are quite new. Arbitration, negotiation and mediation are the most common forms of ADR. In Cambodia, informal ADR has been practiced for centuries. However, until recently, ADR was never formally part of the official dispute resolution regime. Now, with a number of new laws passed, Cambodia has begun to incorporate ADR techniques into its legal system. This paper will focus on how these three main forms of ADR have been incorporated into the Cambodian legal system and whether they meet international standards. II. Negotiation Negotiation is the process of back and forth communication, whereby parties submit and consider offers until an offer is made and accepted.1 Negotiation is the most common form of dispute resolution process in the world, found both in civil law and common law jurisdictions. Many jurisdictions favor negotiated settlement. Because most jurisdictions have significant case backlogs, one way to resolve disputes in a timely manner is to encourage the parties to discuss their disputes among themselves and try to reach an agreement. In the U.S., for instance, 90% of all cases are resolved by ADR,2 and * Steven Austermiller is currently the American Bar Association’s Legal Education Advisor in Cambodia. 1 Gainey v. Brotherhood of Railway and S.S. Clerks, Freight Handlers, Exp. & Station Employees, 275 F. Supp. 292, 300 (E.D. Pa. 1967). 2 SUSAN PATTERSON AND GRANT SEABOLT, ESSENTIALS OF ALTERNATIVE DISPUTE 148 ADR in Cambodia’s Legal System negotiation is the most popular form of ADR. In Cambodia, a World Bank survey of small firms found that negotiation was the most preferred method of dispute resolution.3 This should not be surprising to anybody who has spent time in Cambodia. Negotiations are common everywhere, from purchases at the market to resolution of high-level land disputes. A. Cambodian Negotiation The new Code of Civil Procedure of the Kingdom of Cambodia (CCP-KC) explicitly emphasizes negotiated settlement throughout the litigation process. Article 97 provides that “the court may attempt to effect a compromise settlement at any stage of the litigation.” 4 Article 220 provides for the same, but with the emphasis on the parties. 5 It 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.” 6 The compromise may even be entered into outside the courtroom. 7 Article 104 goes further and requires that “at the preparatory proceedings for oral argument, the court shall first seek to effect a compromise settlement . . .” [emphasis added]. 8 Under these articles, 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 CCP-KC 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 RESOLUTION 5 (2nd ed., 2001). 3 The Provincial Business Environment Scorecard in Cambodia: A Measure of Economic Governance and Regulatory Policy, World Bank/IFC-MPDF and AusAid/The Asia Foundation, 40 (2007)[hereinafter Business Environment Scorecard]. The survey found that 92% of Cambodian firms choose negotiation as their top dispute resolution option. In contrast, only 1% of firms cited local courts as their most common dispute resolution method. 4 CODE OF CIVIL PROCEDURE OF THE KINGDOM OF CAMBODIA, 55 Official Gazette of Kingdom of Cambodia 5296, 5336, art. 97 (2006) [hereinafter CCP-KC]. 5 CCP-KC, art 220. 6 Id. 7 Id. 8 Id. art. 104. Cambodian Yearbook of Comparative Legal Studies Vol. 1 149 recorded in the court protocol (court record).9 Once all required steps are completed, this judicial compromise can be enforced like a court judgment.10 This means that if one party fails to abide by the terms of the parties’ agreement (such as making a required payment), the other party may petition the courts to enforce the agreement without having to re-litigate the merits of the dispute. If a party has breached the compromise, the aggrieved party should find the enforcement of that agreement expedited by the courts. Without this judicial compromise feature, the aggrieved party would have to file a new breach of contract lawsuit in the general civil courts. This should contribute to enforcement efficiency. However, a judicial compromise is not sacred. Under the CCP-KC, a judicial compromise can be undone for fraud (and presumably misrepresentation or duress) in connection with either party’s declaration of intention in the agreement.11 Therefore, a party can invalidate its compromise and block its execution if it can successfully prove fraud12 (or, presumably, misrepresentation or duress). If the parties to a dispute are not in a formal lawsuit, they can still settle. However, their settlement agreement cannot become a judicial compromise and does not enjoy any special enforceability characteristics. The parties’ settlement agreement is merely a contract that must be enforced with a breach of contract lawsuit in the general civil courts.13 Of course, a party can void a negotiated settlement if she can prove that the other side engaged in duress or fraud in order to induce her to enter into the settlement.14 As a result, these rules create an incentive for parties to file a complaint first and then try to settle the issues, so that the parties can claim a judicial compromise and enjoy the benefits of expedited 9 Id. art. 222. 10 Id. 11 TEXTBOOK ON CODE OF CIVIL PROCEDURE OF KINGDOM OF CAMBODIA, Working Group on the Code of Civil Procedure of Cambodia, Book Three, Ch. Four, Section II (V)(3)(a) at 110 (2007) [hereinafter CCP-KC COMMENTARY]. 12 Id. 13 CIVIL CODE OF THE KINGDOM OF CAMBODIA, art. 724 (2008)[hereinafter CC-KC]; CCP-KC COMMENTARY, supra note 11, at Book Three, Ch. Four, Section II (V)(1), p. 108. 14 See DECREE 38 ON CONTRACTS AND OTHER LIABILITIES, arts. 6 – 10, [hereinafter Decree 38]. Under Article 10, acts of deception, dishonesty, or misrepresentation can constitute a fraudulent act sufficient to void a contract such as a settlement agreement. In general Cambodian contract law, this can be called rescission based on fraud, misrepresentation or duress. See also.CC-KC, supra, note 13, at arts. 347 – 349. 150 ADR in Cambodia’s Legal System enforceability. If they settle their disputes too soon, without resort to court action, they risk a more difficult future settlement enforcement process. In other words, there is a pre-litigation dis-incentive to settle. B. Negotiation Conclusions In general, these are excellent rules that will serve to encourage private negotiation between disputing parties. Since this is in the Cambodian state’s interest as well as the parties’ interests, these rules constitute good public policy. In addition, these rules are consistent with Cambodia’s tradition of private negotiation of disputes. These rules are similar to those of developed countries, where the policy is to encourage out of court settlement, where possible. Anecdotal evidence indicates that judges in the US and Europe, however, take a more systematic and proactive approach to settlement, whereas in Cambodia, the judges do not emphasize settlement as much. III. Mediation The second major form of ADR is called mediation. Mediation can be broadly defined as assisted or facilitated negotiation. 15 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 a mediation session, the mediator typically 1) listens to each party, 2) encourages each party to listen and consider compromise, 3) assists in the exploration of creative solutions, 4) helps the parties understand the facts and law as viewed by a neutral, and when appropriate, 5) helps develop the specific items in a settlement agreement.16 The term mediation and the term conciliation have been 15 Patterson et al., supra note 2, at 53. 16 STEVEN AUSTERMILLER, ALTERNATIVE DISPUTE RESOLUTION: CAMBODIA, A TEXTBOOK OF ESSENTIAL CONCEPTS 82 (American Bar Assoc., 2009). Cambodian Yearbook of Comparative Legal Studies Vol. 1 151 confused over the years, even by legal and judicial professionals and academics. Today, mediation and conciliation are often used interchangeably to refer to the same process. Although some have tried to draw a distinction, there is no common international legal authority defining how the terms might differ.17 Although the term mediation is found internationally, conciliation is the term most commonly used in international documents. For example, the UNCITRAL Model Law on International Commercial Conciliation (the “UNCITRAL Conciliation Law”) 18 uses the term “conciliation” to refer to all types of proceedings where a neutral person or persons assists parties to reach an amicable settlement, including mediation proceedings.19 In contrast, mediation is the term most commonly used in the American legal system, with the term conciliation falling out of use. An example would be the American Uniform Mediation Act. 20 17 In Australia, the National Alternative Dispute Resolution Advisory Council (NADRAC) states that there is considerable confusion in both Australia and elsewhere regarding these terms. See generally, NADRAC Terminology Discussion Paper, available at http://www.nadrac.gov.au/agd/www/Disputeresolutionhome.nsf/Page/RWP7E251 CA71B8E7700CA256BD100135550?OpenDocument (last visited Oct. 19, 2008). 18 UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION, U.N. GAOR, 57th Sess, Supp. No. 17, U.N. Doc. A/57/17, Annex I, art.9 (2002) available at http://www.uncitral.org/pdf/english/texts/arbitration/ml-conc/ml-conc-e.pdf (last visited June 30, 2009) [hereinafter UNCITRAL Conciliation Law]. UNCITRAL stands for United Nations Commission on International Trade Law. The UNCITRAL Conciliation Law is the UN’s effort at recognizing the growing interest in mediation and in promoting non-contentious methods of dealing with disputes. Luis M. Diaz & Nancy A. Oretskin, The U.S. Uniform Mediation Act and the Draft UNCITRAL Model Law on International Commercial Conciliation, in INTERNATIONAL BUSINESS LITIGATION AND ARBITRATION 2002, at 791, 797 (PLI Litig. & Admin. Practice Course, Handbook Series, Order No. H0-00GP, 2002). It also represents an effort to provide uniform mediation rules across various countries, especially in emerging commercial fields like Internet disputes. GUIDE TO ENACTMENT AND USE OF THE UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION, ¶ 17 (2002) [hereinafter UNCITRAL Conciliation Guide]. In this author’s experience, the UNCITRAL Conciliation Law has gained widespread acceptance and many transitional countries have looked to it as an appropriate model. This may be due to the fact that the UNCITRAL Working Group was composed of representatives from a wide range of countries and legal traditions. 19 UNCITRAL Conciliation Guide, supra note 18, at ¶ 7; Diaz & Oretskin, supra note 18, at 797. 20 UNIFORM MEDIATION ACT (amended 2003), available at http://www.law.upenn.edu/bll/ulc/mediat/2003finaldraft.pdf (last visited June 30, 2009) [hereinafter UMA]. This was the result of collaboration between the 152 ADR in Cambodia’s Legal System Both terms refer to a negotiation process facilitated by a neutral third party. In different countries and traditions, there is wide variation in the process and in the level of involvement by the neutral. 21 In some traditions, the neutral is given freedom to actively promote settlement through private meetings with parties (sometimes called caucuses) and through suggesting specific solutions.22 In other traditions, the mediator or conciliator takes a more passive approach and allows the parties to control the process. Both approaches are valid and for the purposes of this article, the term mediation is used to refer to either conciliation or mediation. However, when a specific law uses the term conciliation, that term will be used. A. Cambodian Mediation Uniform Law Commission of the National Conference of Commissioners on Uniform State Laws (NCCUSL) and a drafting committee of the American Bar Association. See Diaz & Oretskin, supra note 18, at 793. It was completed and approved in 2001. The purpose of the UMA is to provide uniformity in mediation laws throughout the United States. The UMA Prefatory Note indicates that legal rules affecting mediation in the United States can be found in more than 2,500 statutes, many of which could be replaced by this Act. UMA, at Prefatory Note, § 3. Ten American states (Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington) and the District of Columbia have already adopted the UMA and the UMA has been introduced as legislation in four others. See NCCUSL website at http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-uma2001.asp (last visited June 30, 2009). In 2003, the UMA was amended to incorporate by reference the UNCITRAL Conciliation Law for international proceedings under the UMA. See 2003 AMENDMENT TO THE UNIFORM MEDIATION ACT, § 11. 21 Id.; M. Jagannadha Rao, Concepts of Conciliation and Mediation and Their Differences (2002) (compares the terms conciliation and mediation as used in India), available at http://18.104.22.168/472008168/472002888T080531111635.txt.binXMysM0dapplication/ pdfXsysM0dhttp://lawcommissionofindia.nic.in/adr_conf/concepts%20med%20Ra o%201.pdf (last visited Oct. 19, 2008). 22 There is authority in some countries to define conciliation as the process where the neutral takes a more active, solution-proposing role, while mediation is defined as the process where the neutral engages in a more passive, facilitative role. See, e.g., Dispute Resolution Terms, National Alternative Dispute Resolution Advisory Council (Australia) at 3 (2003), available at http://22.214.171.124/467929504/472002888T080531121212.txt.binXMysM0dapplication/ pdfXsysM0dhttp://www.nadrac.gov.au/agd/WWW/rwpattach.nsf/VAP/(CFD7369 FCAE9B8F32F341DBE097801FF)~1Report8_6Dec.pdf/$file/1Report8_6Dec.pdf (last visited Oct. 19, 2008). Cambodian Yearbook of Comparative Legal Studies Vol. 1 153 In Cambodia, mediation has always played an important role in society. According to one report, “Cambodian culture and its legal system has traditionally favored mediation over adversarial conflict and adjudication. Thus compromise solutions are the norm…”23 For example, family disputes were historically mediated by other family members or respected local leaders. Today, mediation continues to play an important role in Cambodian dispute resolution. A World Bank survey of small firms in Cambodia found that mediation was the most preferred method of dispute resolution after negotiation.24 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.25 The Ministry of Labor helps mediate labor disputes between employers and employees. 26 If there is a land dispute, parties can request mediation from the government’s Cadastral Commission or from the National Authority for Land Dispute Resolution.27 Parties to a commercial dispute will soon be able to seek mediation at the new National Arbitration Center, under the auspices of the Ministry of Commerce. 28 Small civil disputes over issues such as debts, 23 United States Department of Commerce, Country Commercial Guide for Cambodia, 53 (2006). See also, United Nations Conference on Trade and Development (UNCTAD) and International Chamber of Commerce (ICC), An Investment Guide to Cambodia: Opportunities and Conditions, 46, UNCTAD/IIE/IIA/2003/6 (Sept. 2003). 24 Business Environment Scorecard, supra note 3, at 40. The survey found that local firms choose mediation as their second best option, far ahead of court litigation. 25 LAW ON MARRIAGE AND FAMILY OF THE KINGDOM OF CAMBODIA, art. 42 (1989). 26 LABOR LAW OF THE KINGDOM OF CAMBODIA, arts. 300 – 301, 303 (1997). The Ministry’s full name was “Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation.” In 2004, the name changed to “Ministry of Labor and Vocational Training.” 27 ROYAL SUB-DECREE ON ORGANIZATION AND FUNCTIONING OF THE CADASTRAL COMMISSION, arts. 7 – 11, Royal Government of Cambodia, Sub-Decree #47 (2002); ROYAL DECREE ON THE ESTABLISHMENT OF THE NATIONAL AUTHORITY FOR LAND DISPUTE RESOLUTION, art. 3, 15 Official Gazette of the Kingdom of Cambodia 1190 (2006). 28 LAW ON COMMERCIAL ARBITRATION OF THE KINGDOM OF CAMBODIA, 37 154 ADR in Cambodia’s Legal System contracts, land borders, farms, slander, and violence without injury may be mediated at the local Commune Council level, through the government’s Justice Service Center Program (also called Maison de la Justice).29 Cambodian judges are also empowered under the new Civil Procedure Code to mediate between parties in a formal lawsuit.30 As mentioned in the previous section, CCP-KC Article 97 allows the court to “attempt to effect a compromise settlement at any stage of the litigation.” This could mean encouraging the parties to negotiate or it could mean the court actually serving as mediator. CCP-KC art. 104 goes one step further and actually mandates that the court must try to settle the dispute at the preparatory proceedings for oral argument31 unless it is 1) improper (i.e., rights or obligations at issue are by their nature not disposable by agreement), or 2) inadvisable (i.e., the parties have no intention of compromising).32 The Code’s Commentary states that in attempting to mediate a compromise, the court may consider holding private caucuses (called cross-interviewing in the drafters’ commentaries).33 This is a technique whereby the mediator holds private discussions with one party and (usually) then the other party. Private caucuses allow parties to share private information with the mediator that they might not be comfortable sharing in front of the other side. For example, the party might not want to reveal a particular interest (like the company is short on cash and might have to file for bankruptcy/insolvency). Or, the party might want to further explore a settlement option that it was uncomfortable taking seriously in front of the other side, for fear of showing weakness.34 In commercial disputes, under the new Law on Commercial Arbitration (LCA), which will be discussed in the next section, an arbitration forum may engage in mediation. The LCA provides liberal settlement provisions: prior to the commencement of formal proceedings, the tribunal 1) may confer with the parties for the purpose of exploring whether the possibility exists of a voluntary Official Gazette of the Kingdom of Cambodia 3000, (2006) [hereinafter LCA]. 29 MINISTRY OF JUSTICE AND INTERIOR PRAKAS #85, art. 3-4 (2006). 30 CCP-KC, supra note 4, art. 97 and art. 104. 31 “At the preparatory proceedings for oral argument, the court shall first seek to effect a compromise settlement . . .” Id. art. 104. 32 Id. art. 104; CCP-KC COMMENTARY, supra note 11, at Book Three, Ch. Two, Section II (II)(3), p. 51. 33 Id. at 52. 34 Austermiller, supra note 16, at 116-117. Cambodian Yearbook of Comparative Legal Studies Vol. 1 155 settlement . . . and 2) assist the parties in any manner it deems appropriate.35 Any settlement made hereunder can have the force and effect of a court judgment.36 As a result, arbitrators at the new National Arbitration Center, currently being established under the auspices of the Ministry of Commerce, will have the opportunity to mediate cases. Finally, parties can always resort to mediation outside the formal Cambodian legal framework. In fact, this probably remains a more popular way to resolve disputes than through the formal system. One Cambodian legal expert found: In rural areas where the court is perceived as remote and alien from the village point of view, the Wat (Buddhist temple) is more familiar and it is used by local people for resolving their differences with the assistance of a monk or Achar. Frequently such a settlement is conducted in daily life.37 B. International Comparisons in Mediation Private mediation enforcement rules vary widely throughout the world. In most Australian states, agreements reached through mediation outside the sphere of court-annexed mediation schemes cannot be registered with the court unless court proceedings are underway.38 The rules are similar in the U.S. However, if there is a U.S. court proceeding underway, the court can usually decide to enter an order that incorporates the parties’ settlement agreement into the judgment and this will be enforceable like a court order.39 If the court does not incorporate the agreement into the order, the mediated agreement is merely a contract, enforceable through a breach of contract lawsuit. One exception is family law cases (divorce, child custody, visitation and support), where mediated 35 LCA, supra note 28, art. 38 (2006). 36 Id. art. 38 (3). 37 Kong Phallack, Shaping Alternative Dispute Resolution System in Cambodia, Master Thesis, Nagoya University Graduate School of Law, 47 (2001). Phallack also describes an interesting Cambodian ADR tradition called the Preah Reach Savnakar (Royal Hearing), whereby the Cambodian King hears disputes and provides a non-binding opinion. This was applied before 1970, reinstated for a short period in 1994 and then suspended for unknown reasons. Id. at 54-55. 38 UNCITRAL Conciliation Guide, supra note 18, at ¶ 90. 39 See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a)(b) (West. Supp. 1997). 156 ADR in Cambodia’s Legal System agreements are almost always considered court judgments. 40 In contrast, the new Law on Mediation for Bosnia and Herzegovina appears to make all mediated settlements, whether private or court-annexed, enforceable like court orders.41 In some jurisdictions, such as Germany, India, Bermuda, Hong Kong and China, a private, mediated settlement can be converted into an arbitral award, thereby enjoying the same enforceability as a court judgment.42 It is likely that mediation in Cambodia will have similar enforcement rules as these states. C. Mediation Conclusions The Cambodian legal regime for mediation is helpful and encourages mediation in various ways. The CPP-KC provides some clarity on the judges’ potential to mediate settlements, however, as with negotiation, there is anecdotal evidence that these rules are often ignored. Judges need administrative guidance on how and when to mediate, otherwise, they might not feel confident enough to mediate. In addition, mediation training would be helpful. The CPP-KC is an effective first step, but more is needed before mediation can begin to have an effect on the judicial culture. A new, specific law on mediation would also represent a significant improvement. It would more effectively encourage mediation and provide enhanced protection in areas like confidentiality43 and enforcement44 that are currently lacking. 40 Patterson et al., supra note 2, at 108. 41 ZAKON O POSTUPKU MEDIJACIJE BOSNE I HERCEGOVINE [BIH LAW ON MEDIATION PROCEDURE], art. 25 (2004). 42 See, e.g., ARBITRATION ACT (1986) (Bermuda); ARBITRATION AND CONCILIATION ORDINANCE, arts. 73 – 74 (1996) (India); ZIVILPROZEßORDNUNG [GERMAN CODE OF CIVIL PROCEDURE], Tenth Book, § 1053 (Germany); ARBITRATION ORDINANCE, § 2C, Cap. 341 (1997) (Hong Kong); ARBITRATION LAW OF THE PEOPLE’S REPUBLIC OF CHINA, art. 51 (1995) (China). 43 Most mediation laws provide guarantees of confidentiality. See UNCITRAL Conciliation Law, supra note 18, at art. 9. 44 Under the current regime, mediated settlements must be resolved within the framework of an arbitration institution in order for them to be enforceable like a court order. Settlements mediated outside a recognized arbitration forum do not have this enforcement feature. Cambodian Yearbook of Comparative Legal Studies Vol. 1 157 IV. Arbitration Arbitration is the third major ADR method to be discussed. 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.” A. Cambodian Arbitration In 2006, Cambodia passed its second ADR law, the Law on Commercial Arbitration (LCA).45 Cambodia was obligated to enact the LCA when it joined the World Trade Organization (“WTO”) in 2004.46 The LCA largely follows the UNCITRAL Model Law on International Commercial Arbitration47 (“UNCITRAL Arbitration Law”), with a few interesting departures. As a result, Cambodia’s arbitration laws are now largely harmonized with over 60 nations, including important trading partners such as Japan, South Korea, 45 LCA, supra note 28. The LCA can be considered the second ADR law after the law creating the Arbitration Council. There are other laws with ADR components in them, but this is only the second Cambodian law specifically related to ADR. 46 Key commercial laws cited by the WTO that may be enacted in the future include, the Secured Transactions Law, Commercial Leasing Law, Law on the Issuance and Trade of Non-Government Securities, Insolvency Law, Commercial Contracts Law, Competition Law, and Law Establishing a Commercial Court. 47 UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION (2006), UNCITRAL website, available at http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf (last visited June 30, 2009)[hereinafter UNCITRAL Arbitration Law]. According to UNCITRAL: the Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration . . . It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world. UNCITRAL website, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitratio n.html (last visited June 30, 2009). 158 ADR in Cambodia’s Legal System Singapore, Thailand and Australia.48 Under the LCA, a commercial dispute is subject to arbitration if the parties’ contract has a written arbitration clause or if they agreed to arbitration in a separate written arbitration agreement.49 This agreement to submit to arbitration must be in writing, but this requirement can be fulfilled by a written exchange of communications that demonstrates an agreement to arbitrate.50 For instance, parties may send emails or letters to each other stating that they agree to arbitrate any disputes between them but fail to actually include such a clause in their agreement. Under LCA Article 7, this might suffice as an agreement to arbitrate. The LCA covers the landscape of arbitration matters including: arbitration agreements, composition and jurisdiction of the tribunal, conduct of the proceedings, recognition and enforcement of the award and a section entitled “National Center of Commercial Arbitration.” The law governs only commercial disputes but that term is given the same wide interpretation in the definitions section as can be found in the UNCITRAL Arbitration Law.51 48 States that have adopted the UNCITRAL Arbitration Law include: Armenia (2006), Australia (1991), Austria (2005), Azerbaijan (1999), Bahrain (1994), Bangladesh (2001), Belarus (1999), Bulgaria (2002), Cambodia (2006), Canada (1986), Chile (2004), China (the Hong Kong Special Administrative Region (1996) and the Macao Special Administrative Region (1998)), Croatia (2001), Cyprus, Denmark (2005), Dominican Republic (2008), Egypt (1996), Estonia (2006), Germany (1998), Greece (1999), Guatemala (1995), Hungary (1994), India (1996), Iran (Islamic Republic of) (1997), Ireland (1998), Japan (2003), Jordan (2001), Kenya (1995), Lithuania (1996), Madagascar (1998), Malta (1995), Mauritius (2008*), Mexico (1993), New Zealand (1996, 2007*), Nicaragua (2005), Nigeria (1990), Norway (2004), Oman (1997), Paraguay (2002), Peru (1996, 2008*), the Philippines (2004), Poland (2005), the Republic of Korea (1999), the Russian Federation (1993), Serbia (2006), Singapore (2001), Slovenia (2008*), Spain (2003), Sri Lanka (1995), Thailand (2002), the former Yugoslav Republic of Macedonia (2006), Tunisia (1993), Turkey (2001), Uganda (2000), Ukraine (1994), the United Kingdom of Great Britain and Northern Ireland (Scotland (1990) and Bermuda, an overseas territory of the United Kingdom), the United States of America (the States of California (1996), Connecticut (2000), Illinois (1998), Louisiana (2006), Oregon and Texas), Venezuela (Bolivarian Republic of) (1998), Zambia (2000) and Zimbabwe (1996). UNCITRAL website, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitratio n_status.html (last visited June 30, 2009). 49 LCA, supra note 28, art. 7. 50 Id. art. 7 (2). 51 LCA Article 2(i) states “the term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not, relationships of a commercial nature include, Cambodian Yearbook of Comparative Legal Studies Vol. 1 159 It is important to note that the LCA is an arbitration law that provides for arbitration standards. The parties can deviate from these standards, especially with regard to the specific arbitration rules of procedure. For example, if the parties chose the AAA (American Arbitration Association) or ICC (International Chamber of Commerce) as the arbitration administrator, they will likely also choose the AAA or ICC arbitration rules. Those rules are slightly different from the LCA rules, but the LCA allows for this deviation. The LCA follows the UNCITRAL Arbitration Law in limiting court intervention in arbitration proceedings.52 However, there is some confusion regarding the supervisory role of the courts. Article 6 of the LCA indicates that a range of supervisory functions (such as arbitrator appointment, challenge, termination, failure to act and tribunal jurisdiction) is to be “performed by the Court (Commercial, or Appeal, or Supreme) or the National Arbitration Center.”53 This language could be read to indicate that a party can appeal directly to any of these four bodies for supervisory assistance.54 Or it could indicate that there are only two appeal choices: 1) the “Court,” which means the court system generally, or 2) the National Arbitration Center. Since the language is unclear, there may be some confusion and inconsistent practices. Given the current situation, the best practice may be to petition the Cambodian Court of Appeals 55 when seeking supervisory assistance from the courts. Future revisions to the LCA should perhaps address this matter. While LCA rules governing arbitrator composition and jurisdiction are consistent with the UNCITRAL Arbitration Law, the ‘interim measures’ section follows the 1985 version of the UNCITRAL Arbitration Law and omits the extensive framework found in the new UNCITRAL Arbitration Law relating to preliminary orders and recognition and enforcement of interim but are not limited to, the following transactions: any trade transaction of the supply or exchange of good [sic] or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; and carriage of goods or passenger by air, sea, rail or road.” LCA, supra note 28, art. 2(i). 52 Id. art. 5. 53 Id. arts. 6, 19(3), 19(4), 19(5), 21(3), 22 and 24(3). 54 The Commercial Court referenced has not yet been established. 55 The Court of Appeals is the lowest national court currently in operation that is listed in Article 6. 160 ADR in Cambodia’s Legal System measures. 56 Because of this, preliminary orders and interim measures may be an uncertain area in Cambodian arbitration. The conduct of arbitral proceedings follows the Model Law without any significant deviation—freedom to design all aspects of procedure, including location and language but with reasonable default provisions in the absence of party agreement.57 As with the UNCITRAL Arbitration Law, unless otherwise agreed, awards must be in writing and state the reasons. 58 Applications to set aside arbitral awards must be made within 30 days instead of UNCITRAL’s more generous 90-day period.59 The LCA’s most significant departure from the UNCITRAL Arbitration Law is the inclusion of a chapter that establishes a National Arbitration Center (“NAC”) inside the Ministry of Commerce.60 The NAC has potentially conflicting responsibilities as an arbitration forum and as a licensing and supervisory authority for all arbitrators in Cambodia, even those who might serve at other forums. 61 Competition is limited as only the Chamber of Commerce and other professional associations are allowed to establish arbitration forums.62 Nonetheless, this chapter creates specific guidelines for the establishment of a quasi-official forum that may serve as the principal center for commercial arbitration and mediation in Cambodia. It may help jumpstart the use of arbitration in the local business community. If all relevant stakeholders are satisfied with 56 Id. art. 25. See also, UNCITRAL Arbitration Law, supra note 47, arts. 17 – 17(j). “Preliminary orders provide a means for preserving the status quo until the arbitral tribunal issues an interim measure adopting or modifying the preliminary order.” Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration as Amended in 2006, Para. 26 (2006), available at http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf (last visited June 30, 2009). 57 Id. art. 26-35. Article 26 adds to the UNCITRAL Arbitration Law when it states that each party shall be given a full opportunity to present his case, “including representation by any party of his choice.” This seems to underscore the freedom to choose any legal counsel. 58 Id. art. 39. 59 Id. art. 44 (3). Otherwise, the LCA is consistent with the UNCITRAL Arbitration Law and the New York Convention (infra) in relation to recognition and challenges to enforcement. 60 Id. arts. 10 – 17. 61 Id. However, under Article 11, parties to arbitration outside of the NAC are still allowed to choose arbitrators outside the official NAC list. 62 Id. art. 13. These forums would only be available if one or more of the parties to the dispute were a member of that forum organization. Cambodian Yearbook of Comparative Legal Studies Vol. 1 161 its structure, the NAC could become a very successful alternative to the Cambodian courts. At the time of this writing, the Ministry of Commerce, with help from international organizations, was involved in completing the NAC’s Sub-Decree which will set forth the actual rules of operation for the NAC.63 B. International Arbitration The passage of the LCA has brought Cambodia into full compliance with the requirements of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York Convention”). The New York Convention provides the main international framework for the recognition and enforcement of foreign arbitral awards and awards of an international character. It was passed under the auspices of the United Nations, prior to the creation of UNCITRAL. Cambodia signed the New York Convention in 1960 and it entered into force in Cambodia in 2001. 64 Over 142 countries have ratified the agreement, including all of Cambodia’s main trading partners.65 Under the New York Convention, Cambodia was required to enforce foreign arbitral awards. However, until the LCA was passed, there was no clear method of enforcement. Now that the LCA is entered into law, there is a clear Cambodian legal framework for this enforcement process. As LCA Article 45 states, “an arbitral award, irrespective of the country in which it was made, 63 Those organizations involved in this effort include the Asian Development Bank (ADB), the United States Agency for International Development (USAID), which funds the American Bar Association (ABA) and East West Management Institute (EWMI), the World Bank’s International Finance Corporation--Mekong Private Sector Development Facility (IFC-MPDF) and the United Nations Development Programme (UNDP). In addition, the Cambodia Chamber of Commerce was also involved in the process. 64 See UNCITRAL website, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status .html (last visited June 30, 2009) In 2001, Cambodia passed the LAW ON THE IMPLEMENTATION OF THE NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRATION AWARDS, which essentially ratifies Cambodia’s participation in the worldwide enforcement regime. However, to date, there has been no reported case of a Cambodian court ruling on the enforceability of a foreign arbitration award. See United States Department of Commerce, Country Commercial Guide for Cambodia, 54 (2006). 65 Id. 162 ADR in Cambodia’s Legal System shall be recognized as binding and . . . shall be enforced . . . “66 [emphasis added] Unless one of the limited grounds for refusal are present, the Cambodian Court must enforce the award. So, not only does the LCA provide for the enforcement of Cambodian arbitration awards, but it also provides for the enforcement of international arbitration awards. C. Arbitration Conclusions The LCA is very similar to the UNCITRAL Arbitration Law. This means that Cambodia has an arbitration law that, in most respects, meets international standards. The Cambodian courts’ supervisory roles and the manner in which supervision is invoked need to be clarified. In addition, this author hopes that the NAC, which represents an ambitious and potentially successful project, does not crowd out other potential arbitration forums. The LCA also brings Cambodia into compliance with its New York Convention and WTO obligations, at least with regard to commercial arbitration. This is a welcome development. Now, arbitration awards from any New York Convention country can be enforced in Cambodia. And, under the law, local arbitration awards are to be respected and enforced. The LCA is a much-needed step forward for Cambodia’s commercial law framework. It provides new, additional options for the resolution of commercial, and potentially other, disputes and will hopefully encourage foreign investment in its fast-growing economy. If the NAC is properly implemented, the commercial arbitration will be off to an excellent start in Cambodia 66 LCA, supra note 28, art. 45. Cambodian Yearbook of Comparative Legal Studies Vol. 1 163 (RECENT LEGISLATIVE DEVELOPMENTS) LABOR ARBITRATION IN CAMBODIA: LAW AND PRACTICE Kong Phallack* This paper elucidates the history of the establishment of Cambodia’s labor arbitration body, the Arbitration Council, its structures, functions, and characteristics. It also discusses the arbitral processes and arbitral awards as well as its opposition. The Arbitration Council was established by Prakas No. 338 on Arbitration Council1 of MOSALVY2 dated December 11, 2002, pursuant to Chapter 12 of 1997 Labor Law.3 It started operation on May 1, 2003, with the support from ILO-Labor Dispute Resolution Project. The Arbitration Council is not a legal entity and consists of thirty * Dean and Professor of Law, Faculty of Law and Public Affairs, Paññãsãstra University of Cambodia (PUC); Managing Partner and Attorney at Law of KhmerLex Legal Solutions, a locally established law firm; and arbitrator of the Arbitration Council. He has handled 350 cases among 820 cases registered at the Arbitration Council. Dr. KONG Phallack has been selected to serve as a chairman of the Board of Director of the Arbitration Council. 1 Prakas is a ministerial regulation. The Prakas 338 on Arbitration Council dated 11 December 2002 was amended in 2004 and substituted by Prakas 099 on Arbitration Council dated 21 April 2004 2 MOSALVY stands for Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation. MOSALVY was split into two ministries after settlement of political deadlock in 2004, namely the Ministry of Labor and Vocational Training and Ministry of Social Affairs and Youth Rehabilitation. The Arbitration Council receives its labor cases from the Ministry of Labor and Vocational Training 3 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 317 164 Labor Arbitration in Cambodia: Law and Practice part-time volunteer arbitrators.4 The Council has no president and staff. It is administratively supported by the Secretariat of the Arbitration Council5 and supported technically by the Arbitration Council Foundation, through financial assistance from development partners such as the US Department of Labor; the United States Agency for International Development; New Zealand’s International Aid and Development Agency through the ILO-Labor Dispute Resolution Project, 6 the World Bank, the Australian Agency for International Development; Interchurch Organization for Development Cooperation; the Asia Foundation; and the Levi Strauss Foundation. The Secretariat of the Arbitration Council is under the Department of Labor Dispute Resolution of the Ministry of Labor and Vocational Training (MOLVT).7 It is headed by a chief with support from two staff appointed by the MOLVT. The Secretariat’s main roles are to administer and coordinate the clerical requirements for collective labor dispute resolution by the Arbitration Council.8 The main function of the Arbitration Council is to settle “collective labor disputes” as described by the Minister of Labor under article 310 of the Labor Law.9 Under the Labor Law, a “collective labor dispute” is defined as: “any dispute that arises between one or more employers and a certain number of their staff over working conditions, the exercise of the recognized rights of professional organizations, the recognition of professional organizations within the enterprise, and issues regarding relations between employers and workers, and this dispute could jeopardize the effective operation of the enterprise or social peacefulness.”10 4 An honorarium of $US120 is paid to each arbitrator while he or she is elected by parties to settle a case. There are three arbitrators per case. 5 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 48 6 Recently, the Arbitration Council Foundation has been established in order to take over the responsibilities and activities originally carried out by the ILO-Dispute Resolution Project. 7 See Annex 1 for Organization Chart. 8 Prakas 174 on the Establishment of the Secretariat of the Arbitration Council dated 9 May 2003, Art. 1 9 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 310 Article 310 of the Labor Law provides that "... the Minister in Charge of Labor shall refer the case to the Council of Arbitration within three days following the receipt of the report from the conciliator….." 10 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation Cambodian Yearbook of Comparative Legal Studies Vol. 1 165 However, the Arbitration Council has no duty to examine issues other than those specified in the non-conciliation report or matters which arise from events subsequent to the report and which are the direct consequence of the current dispute.11 The Arbitration Council is characterized as a tripartite, independent, effective, professional, and quasi-judicial body. It is a tripartite body12 because it is composed of 30 arbitrators13 from three lists consisting of an employer's list, employee's list, and the MOLVT’s list.14 The arbitrators are appointed annually by Prakas (Ministerial Regulation) of the MOLVT annually15 and they are reappointed, unless they have died, resigned, or committed professional misconduct.16 The Arbitration Council is an independent body 17 because arbitrators have the power to make decisions independently within the scope of their lawful authority without any interference from the tripartite parties (namely employers), employees, and the ministry though they are nominated respectively by each party. There are several factors contributing to the independence of Arbitration Council namely all arbitrators were properly selected by the ILO-Labor Dispute Resolution Project in consultation with MOLVT at the establishment of the Arbitration Council. The arbitrators are well-educated and highly ethical because they have followed a self-established code of conduct. Arbitral awards are well-structured based on the laws and equity, which helps to promote the respect of the Arbitration Council among all stakeholders. of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 302 11 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 312. 12 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 3 13 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 1 The article states that this Prakas establishes an Arbitration Council composed of at least 15 members pursuant to Article 317 of the Labor Law 14 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 2 15 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 51 The article provides that in a transition period, during the first, second, and third term of the Arbitration Council, all members of the Arbitration Council shall be appointed by the Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation on the nomination of the Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation after consultation of the ILO Labor Dispute Resolution Project 16 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 2 17 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 11 166 Labor Arbitration in Cambodia: Law and Practice The Arbitration Council has proven itself effective18 by settling cases within fifteen working days of the Arbitration Panel’s formation date. There are no backlog cases at the Arbitration Council. The arbitration process in Cambodia is considered one of the speediest arbitration systems in the world because it can settle cases within fifteen working days stipulated in the Cambodian Labor Law in comparison with foreign arbitration laws. Although all arbitrators are part-time, they can work quickly due to support from the competent Cambodian legal support staff and foreign legal advisers to the Arbitration Council Foundation. Faced with a complicated case, arbitrators ask parties to suspend the due date of the awards and in practice either parties or arbitrators can ask for a suspension of arbitral awards. The Arbitration Council is a professional body19 composed of arbitrators who are qualified experts in labor law and have the skills of mediation, conciliation, and arbitration. They have been educated and trained locally and internationally by foreign experts. With the power to interpret laws like a court, as well as, make decisions based in equity, the Arbitration Council is considered a quasi judicial body. They are also empowered to make inquiries into all enterprises or professional organizations which may be relevant to a labor dispute case, conduct hearings, weigh evidence, and make decision on cases like the court according to Cambodian Labor Law and Prakas on Arbitration Council.20 Hearings of the Arbitration Council are conducted in a closed session, 21 with awards determined based on the facts, law, and equity surrounding each case. 22 In practice, parties are responsible for submitting evidence, which is then coomunicated to the other party. Sufficient time is given by the arbitrator for a party to disqualify the evidence of the other parties. The arbitrators rarely visit and inquire into the enterprises or professional organizations where dipsutes arise to collect evidence due to budget constraints and neutrality issues. 18 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 39 and Art. 50 19 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 6 20 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 312; and Prakas 099 on Arbitration Council dated 21 April 2004, Art. 34 21 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 312; and Prakas 099 on Arbitration Council dated 21 April 2004, Art. 29 22 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 312 Cambodian Yearbook of Comparative Legal Studies Vol. 1 167 When a case is referred to the Secretariat of the Arbitration Council by the MOLVT, both employer and worker parties are required to select an arbitrator from their respective lists to hear the case. The employer party selects one arbitrator from the ten arbitrators on the employer list,23 while the worker party or union selects one arbitrator from the ten arbitrators on the employee list.24 The two selected arbitrators have to select the third arbitrator from the ten arbitrators on the ministry’s list to form an Arbitration Panel. The third arbitrator acts as the Chairman of the Arbitration Panel. In cases of disagreement regarding selection of the third arbitrator, the arbitrator is chosen by lot from the ministry list.25 After the Arbitration Panel is formed, under Labor Law, the Arbitration Council26 must meet within three days27 and issue an arbitral award within fifteen working days28 starting from the date of its receipt of the case. 29 The arbitral award can be binding or non-binding depending on the parties’ wishes.30 The arbitral award is binding if both parties agree on the binding award and if no party lodges an opposition within 8 days. In cases where one party chooses a binding award and the other chooses a non-binding award, then the award become non-binding. In principle, the arbitral award of an Arbitration Panel is considered as an arbitral award of the Arbitration Council.31 Most arbitral awards are written by the panel chairman with assistance from Arbitration Council Foundation’s legal support staff and then communicated to the other two arbitrators. If they agree on the draft award, the award is issued. If any arbitrator does not agree with the draft award, he/she can write 23 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 (A) 24 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 (B) 25 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 (C) 26 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 The article states any collective dispute submitted to the Arbitration Council under Article 309 of the Labor Law shall be settled by an arbitration panel specially constituted for the consideration of that dispute. 27 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 310 28 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 50 The Prakas stipulates that unless otherwise expressly stated, in articles of this Prakas the term (days) means working days for civil government officials. 29 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 313 30 The arbitral award of labor arbitration in non-binding under the law, which is different from an arbitral award which is always binding according to the Law on Commercial Arbitration. 31 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 168 Labor Arbitration in Cambodia: Law and Practice a dissenting opinion in accordance with Labor Law and Prakas on Arbitration Council, but the law requires the arbitration panel to reach consensus in its decisions which means an agreement from three arbitrators in the panel on a written award. If consensus is not possible, the arbitration panel shall make its decisions by majority.32 After issuing the award, the Arbitration Council must communicate its decision to the Minister of Labor and Vocational Training and he/she immediately notifies the parties. The Labor Law allows parties to lodge an opposition to the arbitral decision by informing the Minister through registered mail or other reliable method within eight calendar days from the date of receiving the notification.33 However, the Labor Law does not define the term “reliable method”, and in practice, all parties lodge an opposition at the Secretariat of the Arbitration Council and then it is submitted directly to the Minister through the administrative structure of the Ministry of Labor and Vocational Training. If one party lodges an opposition to the arbitral award, the other party can file a lawsuit to a competent court or conduct an industrial action (strike or lockout). In practice, any opposition against the arbitral decision is made through the Secretariat of the Arbitration Council as well.34 The final arbitral decision (if not opposed by either party) is implemented immediately and filed and registered in a manner similar to a collective agreement.35 In conclusion, Labor Arbitration is a strong example of a well-functioning dispute mechanism in Cambodia. The former Minister of Labor and Vocational Training referred to the Arbitration Council as a model of legal and judicial reform.36 The ILO has attributed the Arbitration Council's success to date to a high level of cooperation between key stakeholders including the Royal Government of Cambodia, employer associations, and the 32 Prakas 099 on Arbitration Council dated 21 April 2004, Art. 36. The arbitration panel shall attempt to reach consensus in its decisions. If consensus is not possible, the arbitration panel shall make its decisions by majority 33 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 313 34 Though the law does not clearly state, in practice, in the award of the Arbitration Council, party is required to appeal against arbitral award through a written letter and sends it to the Secretariat of the Arbitration Council 35 ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 314 36 H.E Nhep Bunchin’s message dated October 6 2004 (Please see Blue Book, p.2) Cambodian Yearbook of Comparative Legal Studies Vol. 1 169 unions.37 Further research on the Arbitration Council’s success and its roles that contribute to the model for legal and judicial reform is recommended. 37 ILO, Improving Cambodia's Economy through Better Industrial Relations, p.2 170 Labor Arbitration in Cambodia: Law and Practice ANNEX 1: STRUCTURE OF ARBITRATION COUNCIL Ministry of Labor and Vocational Training Arbitration Panel (3 Arbitrators) A B C Workers Employer Cambodian Yearbook of Comparative Legal Studies Vol. 1 171 Reference: ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation of Labor Law, Ch.XII, Settlement of Labor Disputes Prakas 099 on Arbitration Council dated 21 April 2004 Arbitration Council Procedural Rules Secretariat of Arbitration Council, Case Statistics, December 20,2006 MOLVT/ILO/CLEC, The Arbitration Council and the Process for Labour Dispute Resolution in Cambodia (2004) Lejo Sibbel ( June 2005), Arbitration Council Review ILO, Improving Cambodia's Economy through Better Industrial Relations 172 Labor Arbitration in Cambodia: Law and Practice Cambodian Yearbook of Comparative Legal Studies Vol. 1 173 Cambodian Trade And Industrial Policies: An Inventory Of Trade-Related Laws And Regulations Ly Chantola* 1. Cambodian General information Situated in the Indo-Chinese peninsular, the Kingdom of Cambodia has a relatively small territorial area of 181,035 square kilometres. The country shares its borders with three neighbours: Thailand to the north and the west, Vietnam to the southeast and the east and Laos to the north. In the south and southwest, Cambodia borders the Gulf of Thailand. Cambodia’s rich resources of alluvial soils, abundant water for irrigation, and a tropical monsoon climate, hold great potential for agricultural development. Cambodia has a total population of about 14 million people with an annual growth rate of approximately 1.80%, according to the National Institute of Statistics (NIS). A large majority of the population is Khmer ethnic. There are some minority ethnic groups such as Chinese, Vietnamese, Cham (Khmer Muslim minority), in addition to some indigenous minorities. Population density is around 74 people per square kilometre. 2. The Establishment of Trade and Industrial Policies After the collapse of the Khmer Rouge regime in 1979, Cambodia pursued a centrally planned economic system. In 1989, Cambodia * Law Professor, Royal University of Law and Economics, Phnom Penh. 174 Trade-related Laws and Regulations began its transformation into a free market-oriented economic system; however the country was still distracted by civil war during the subsequent period, limiting the scope for economic development. The support of the international community led to the 1991 Paris Peace Accord that unified all conflict parties. In addition, in 1993, Cambodia hosted the first free and fair national election under the auspices of the United Nations peace-keeping operation known as the United Nations Transitional Authority in Cambodia (UNTAC). With the establishment of the first coalition government, Cambodia intended in earnest to restore a stable peace to the country. As one of the Least Developed Countries (LDCs) that is now on the way to carrying out market-oriented reforms, Cambodia is striving to mobilise all domestic and international resources available. Cambodia hopes to grasp opportunities for growth and development by issuing various beneficial trade and economic policies. Cambodia’s membership in the Association of South-east Asian Nations (ASEAN) in 1999 and the World Trade Organisation (WTO) in 2005 also require economic and trade strategies and reforms, which are more adaptable to the changing environment. All these changes demand a policy framework that will provide flexibility for market players and, at the same time, require the least amount of regulatory intervention. These reforms also require stable institutions to enforce contracts and property rights, and enhance the predictability, transparency, and accountability of state actions. The government commitments to reform the economy and its trade policies are mainly inscribed in the 1993 Constitution, Triangular Strategic Plan and Rectangular Strategic Plans. a. Triangular Strategic Plan: 1998-2003 (30 Nov 1998): The 3 strategies are as follows: 1. Restoring peace and stability, and maintaining security for the nation and people; 2. Cambodia's integration into the region and normalization of relationships with the international community; 3. Promotion of economic and social development through the implementation of an extensive reform program Cambodian Yearbook of Comparative Legal Studies Vol. 1 175 b. Rectangular Strategic Plan: 2003-2008 and Rectangular Strategic Plan: 2008-2013 The rectangular strategy is an integrated structure of interlocking rectangles, as follows: First, the core of the rectangular strategy is good governance, focused at four reform areas: (1) anti-corruption, (2) legal and judicial reform, (3) public administration, and (4) reform of the armed forces, especially demobilization; Second, the overall environment for the implementation of the rectangular strategy consists of four elements: (1) peace, political stability and social order; (2) partnership in development with all stakeholders, including the private sector, donor community and civil society; (3) favourable economic and financial environment; and (4) the integration of Cambodia into the region and the world. Third, the four strategic “growth rectangles” are: (1) enhancement of agricultural sector; (2) private sector development and employment generation; (3) continued rehabilitation and construction of physical infrastructure, and (4) capacity building and human resource development. Fourth, each strategic “growth sector” has four sides: - Rectangle 1: Enhancement of Agricultural Sector which covers: (1) improved productivity and diversification of agriculture; (2) land reform and clearing of mines; (3) fisheries reform; and (4) forestry reform. - - Rectangle 2: Further Rehabilitation and Construction of Physical Infrastructure, involving: (1) further restoration and construction transport infrastructure (inland, marine and air transport); (2) management of water resources and irrigation; (3) development of energy and power grids, and (4) development of information and communication technology. - Rectangle 3: Private Sector Development and Employment Generation covers (1) strengthened private sector and attraction of investments; (2) promotion of SMEs; (3) creation of jobs and ensuring improved working conditions; and (4) establishment of social safety nets for civil servants, employees and workers; and - Rectangle 4: Capacity Building and Human Resource Development, including: (1) enhanced quality of education; (2) improvement of health services; (3) fostering of gender 176 Trade-related Laws and Regulations equality, and (4) implementation of population policy. Cambodian Yearbook of Comparative Legal Studies Vol. 1 177 178 Trade-related Laws and Regulations Source: EIC Economic Watch, April 2009 3. Trade and Industrial Policies and Laws To back the political aims, many policies and reforms have been undertaken with assistance from the international community. Privatisation Trade Liberalisation Investment Intellectual Property Rights Banking and Financial Competition and Consumer Protection Judicial Reforms Trade Facilitation Cambodian Yearbook of Comparative Legal Studies Vol. 1 179 A. Privatisation 1987-1989: Starting of Privatisation Policy - Abolition of the State Monopoly for Foreign Trade (Until 1987 citizens were required to sell their products to the State). - Privatisation of State-Owned Enterprises 118-22-13 B. Trade Liberalisation 1994: The Tariff Regime Reform: Elimination of all quantitative restrictions on external trade. 1999: Membership in the Association of South East Asian Nations (ASEAN) and The ASEAN Free Trade Agreement (AFTA). 2003: Accession to the World Trade Organization (WTO). This resulted in reduced tariffs on goods, an open service sector, protection of Intellectual Property Rights and Legal and Institutional reforms. Full membership on October 11, 2004 due to political deadlock after 2003 election. C. Investment 1989: Foreign Investment Law: removed restrictions placed upon firms and individuals engaged in international trade 1994: FDI: Investment Law: Ended restrictions on foreign investment and created incentives to attract investors. Creation of CDC 2003:Amendement Law on Investment 2005: Sub Decree on the Establishment and Management of Special Economic Zones (SEZs), 29 Dec 2005 (14 SEZs) 2007: Sub-Decree on the Mortgage and Transfer of the Rights over a Long-Term Lease or an Economic Land Concession, 29 August 2007 180 Trade-related Laws and Regulations D. Intellectual Property Rights Law on Marks, Trade Name and Acts of Unfair Competition, promulgated on 7 February 2002; Law on Patents, Utility Models and Industrial Designs promulgated on 22 January 2003; and Law on Copyright and Related Rights promulgated on 5 March 2003 Draft: – Law on trade secrets – Law on undisclosure information and Compulsory licensing for public health – Law on Geographical Indications – Law on layout Design of Integrated Circuit E. Banking and Financial Law governing Commercial Banks and Financial Institutions, Oct 1999 National Bank of Cambodia Insurance Law, 21 June 2000 Law on negotiable instruments and payment transactions, 2005 Secured Transactions Law, 06 April 2007 (in force 24 May 2007) Law on Issuance and Trade of Non-Government Securities, 2007 (Stock Exchange) Law on financial leasing, 2009 F. Competition and Consumer Protection Draft law on competition (Anti-Trust law): Scope, National Competition Council Law controlling the quality and safety of goods and services, 2001 Law on Cambodian Standard, 25 April 2007 (in force 24 June 2007) Draft Code of Consumer Protection with assistance from UNCTAD and Consumer International Cambodian Yearbook of Comparative Legal Studies Vol. 1 181 G. Judicial Reforms Law on the Recognition and Enforcement of Foreign Arbitral Awards, 23 Jul 2001 Law on Commercial Arbitration, March 2006 Civil Procedure Code, 2006 Criminal Procedure Code, 2007 Ethic Code for Judges and Prosecutors, 05 Feb 2007 Draft Law on Commercial court, Administrative Court and labour Court (Draft law on the organisation and functioning of the courts) Draft law on statute of Judges and Prosecutors Draft law on the Amendment of the Organisation and Functioning of the SCM Draft Criminal Code Draft Law on Anti-corruption H. Trade Facilitation Annual Public-Private Sector Forum Law on commercial rules and commercial registration, 1995-1999, and registration fees Labor law 1997 and Law on Social Security, 2000 Law on Commercial Enterprises, 17 May 2005 Insolvency Law, 16 Oct 2007, into force 08 Dec 2007 Commercial Contract Law Civil Code 05 Oct 2007 (in force 08 December 2007) Law on Customs, 22 Jun 2007 (in force 20 Jul 2007) ASYCUDA: Automated System for Customs Data in Shanouk Ville Autonomous Port: 05 May 2008 182 Trade-related Laws and Regulations Cambodian Yearbook of Comparative Legal Studies Vol. 1 183 National Arbitration Center: Legislative Framework And Recent Development Seng Hun* Introduction Dispute is a fact and inevitable part of life. Dispute may arise whenever people interact. It may occur between friends, family members, neighbors, colleagues, and business partners, a necessary aspect of a vital society and free-market economy. As world trade increases, more businesses and specific forms of commercial transactions are now conducted across national boundaries. When businesses and commercial activities become more global, there is a greater need for global dispute settlement mechanisms1. Despite its long history of being considered one of the optional means in disputes resolution2, arbitration fell out of favor as a mechanism to be used in settling disputes outside the court during the fifteenth century. It is only becoming more popular among business people in the last few decades. 3 Its role as a key mechanism for commercial disputes processing in both domestic and international contexts are being better recognized in the increasing trend of economic globalization. When recommending arbitration to his fellow Americans, Chief Justice Warren E. Burger of the United States Supreme Court noted: “There are better ways of resolving private disputes, and we must in the public interest move toward taking a large volume * Nagoya University Graduate School of Law, LL.D. Candidate 2007-2010 specializing in the field of International Commercial Arbitration Law. 1 Yasunobu Sato, Commercial Dispute Processing and Japan, the Hague Kluwer Law International, 2001, page 1. 2 Steven M. Austermiller, Esq., Alternative Dispute Resolution: Cambodia, A Textbook of Essential Concepts, United States Agency for International Development, January 2009, History of Arbitration page 138. 3 Pieter Sanders, Quo Vadis Arbitration: Sixty Years of Arbitration Practice, The Kluwer Law International, 1999, Advantages of Arbitration page 2-5. 184 Recent Development: National Arbitration Center of private conflicts out the courts and into the channels of arbitration4.” Nowadays, arbitration as a means of settling international commercial dispute is becoming more important and popular not only in developed countries but also in developing countries which are trying to introduce a functional market economy and gain the confidence of foreign and domestic investors. Therefore, developing countries are trying to adopt laws and regulations necessary for the successful conduct of arbitration in order to ensure business sustainability and to provide an alternative venue for the business community to have their disputes settled in a reliable, predictable and speedy manner. The Legal Framework for NAC in Cambodia (1) Establishment and Operations Civil wars in Cambodia, which went on for more than two decades until the end of the last century, resulted in tremendous loss of human resources in the field of law. The large backlog of civil cases, shortage of trained clerks, lack of experienced judges in commercial matters and some negative allegations against the judiciary have made commercial litigation a time-consuming and unpopular choice for many business people. Moreover, in response to the conditions for its accession to the Word Trade Organization (WTO), and in order to implement Cambodia’s commitment under the New York Convention and to fulfill the business community’s demand for an informal dispute settlement mechanism, the Cambodian National Assembly adopted a Law on Commercial Arbitration 5 March 6, 2006. The Law consists of 9 chapters and 47 articles. It was first drafted in 2001, 4 See Robert Coulson, President of American Arbitration Association, Business Arbitration: What You Need to Know, New York, 2nd Ed, American Arbitration Association, 1982, on the note of Chief Justice Warren E. Burger of the United States Supreme Court in recommending arbitration to his fellow Americans. 5 LCA: Law on Commercial Arbitration, adopted by the National Assembly of the King of Cambodia on March 6, 2006 available at http://www.camcl.org/sub/laws/law_on_commercial_arbitration.pdf (access date: January 20, 2010). Cambodian Yearbook of Comparative Legal Studies Vol. 1 185 under the technical and financial support from the Asian Development Bank (ADB), by a group of legal experts affiliated to with the Ministry of Commerce of Cambodia. This Law stipulates the rules and procedure for commercial dispute settlement in both domestic and international contexts, adopting most of the principles of the UNCITRAL Model law. Chapter 3 (Articles 10-17) of the Law provides for a National Arbitration Center (NAC) to be organized under the auspices of the Ministry of Commerce. Article 17 delegates to a sub-decree the power to define the organization and functions of the Center. The implementing Sub-Decree on Organization and Functioning of the National Arbitration Center6 was therefore adopted by the Council of Ministers on August 12, 2009. It consists of 56 articles divided into 7 chapters. The International Finance Corporation (IFC), a member of the World Bank Group, signed a Memorandum of Understanding (MOU) with the Ministry of Commerce to implement a project to support the setting up and operations of the NAC 7 in its first three years, in collaboration with the Asian Development Bank (ADB) and other partners. (2) Registration of Arbitrators One month after the adoption of the Sub-decree, the selection of the first batch of arbitrators started with the recruitment announcement made by the Selection Commission’s Secretariat located in the Department of Legal Affair of the Ministry of Commerce of Cambodia8. Chapter 5 of the Sub-decree delegates to the Ministry of Commerce the power to organize the “first selection of arbitrators”. Article 45 provides that the Ministry of Commerce lead a selection commission of not more than 12 persons, including 6 representatives each from the Chamber of Commerce, the Bar 6 Sub-Decree No. 124 ANKR/BT on Organization and Functioning of the National Arbitration Center (NAC) of Cambodia dated August 12, 2009. 7 See “IFC helps Establish Cambodia’s First National Arbitration Center to Resolve Commercial Dispute” posted August 10, 2009 available at http://www.pressreleasepoint.com/ifc-helps-establish-cambodia (access date: January 2010). 8 See Recruitment Announcement for 50-60 people to arbitrate commercial disputes for National Arbitration Center of Cambodia available at http://www.adb.org/Documents/Others/P34389-CAM-NAC-Announcemet.pdf (access date: January 2010). 186 Recent Development: National Arbitration Center Association and other three employers’ associations, three representatives from other ministerial offices and another two individuals considered suitable by the Ministry of Commerce and the Ministry of Justice. Although the public-private divide seems even in this formula, in case of an equal vote the Chair, representing the Ministry of Commerce, is the final deciding vote.9 Arbitrators are selected based on criteria set forth in Article 29 of the Sub-decree. The candidates can be Cambodian or foreign national, and are required to be not younger than 30 years old, a university graduate with at least a bachelor degree issued by either a domestic or foreign educational institution. They are also required to complete a training course on arbitration organized by the NAC or any international arbitration center recognized by the NAC. Exceptions may be considered for anybody who is a member of a professional commercial arbitration institution recognized by the NAC or an arbitrator or representative in arbitration proceedings on three (3) or more occasions or have written at least three (3) arbitral awards when acting as arbitrator. In addition, Article 30 bars any officer of the executive, legislative and judicial branches or anybody who has been convicted of misdemeanor or felony to be selected as an arbitrator. However, the provision is so unspecific that one may question what exact level of officers shall be barred from this process and whether a private professional working as long-term advisor to these institutions is also included in this category of illegitimate candidates. However, the first batch of arbitrators has been selected by the Commission in October 2009. But the last selection seems to have suggested some issues to be discussed to improve the transparency and fairness of the process. The announcement of the Ministry of Commerce dated … states that “Applications will be accepted during working hours, starting from September 29, 2009 up to 1700 Hours on October 20, 2009. The Commission will stop accepting applications once it has received qualified 60 applications.” 10 Although the announcement made it clear that the deadline of September 29, 2009 (1700hrs) was not absolute and decisive, it 9 Article 49 of the Sub-Decree No. 124 ANKR/BT on Organization and Functioning of the National Arbitration Center (NAC) of Cambodia dated August 12, 2009. 10 See Recruitment Announcement for 50-60 people to arbitrate commercial disputes for National Arbitration Center of Cambodia available at http://www.adb.org/Documents/Others/P34389-CAM-NAC-Announcemet.pdf (access date: January 2010). Cambodian Yearbook of Comparative Legal Studies Vol. 1 187 revealed a rather curious way of accepting and screening applications. It may not have given potential candidates enough information on when to hand in the application to secure a fair screening and competition for the service, and whether the selection was able to pick the best qualified candidates for the task to ensure quality performance and effectiveness of the long-awaited center for commercial arbitration in Cambodia. Both the 2006 Law (Article 14) and the 2009 Sub-decree (Article 3) provide for the General Assembly to be the highest governing organ of the NAC. An Executive Board of not more than seven members assists the General Assembly in running the NAC between the sessions. Part IV of the Sub-decree, specifically selecting arbitrators for the NAC and rejecting those who do not satisfy the necessary conditions. In addition to the selection criteria set forth in Article 29, the Executive Board “may determine more selection criteria as it thinks appropriate and beneficial for the NAC” 11 , provided the decision is approved by the General Assembly. How will the Executive Board will implement this mandate is yet to be seen. The Law and the Sub-decree do not explicitly stipulate how the Executive Board makes decisions and what measures can be taken if actions or decisions of the Board are deemed to be against the Law or how individual arbitrator or arbitrators can reverse these actions and decisions. Perhaps the Executive Board, once established, will have to prepare detail rules and procedures to govern its activities. Concluding Remarks: The Road Ahead One may understand that the public sector’s role in selection of arbitrators for NAC will fade out after the NAC is fully established and the governing bodies become fully operational. However, the provision of Article 10 of the 2006 Law, stating that “An independent National Arbitration Center (“NAC”) shall be established under the auspices of Ministry of Commerce” may sound dubious for some skeptical business people. It may be important for them to see to what extent this provision remains significant after the NAC is fully established and operational. This skepticism has been clear among the business community in Cambodia, as one can see in the recent remarks made by Nguon 11 Article 29 of the Subdecree No. 124. 188 Recent Development: National Arbitration Center Tech, the director of the Cambodia Chamber of Commerce, to the press that “I am happy [It is being set up], but it is really hard for me to say that the arbitration center will be independent because it is under the supervision of the public sector”12. The Chamber of Commerce is reportedly seeking to establish a separate arbitration center of its own.13 Remarks like this may be a premature reaction. But they are nothing new. Soon after the enactment of the 2006 Law, the IFC published in its bulletin the voices of business people and some members of the private sector expressing their hopes for and their concerns about the prospects of a commercial arbitration center in Cambodia. Among these concerns were the fundamental issues of competence, independence and neutrality of the arbitrators, and efficiency of the arbitration center in offering services, The questions seem to be more than a well-intended sub-decree can possibly answer.14 As pointed out by Bretton Sciaroni, 15 a long-time business and legal consultant in Phnom Penh, “If business communities have no confidence, nobody will use it”16, there is clearly much to be done to improve the existing legislative framework and to make sure that not only the laws or the sub-decrees are written with clarity but practices based on this framework should also be as transparent and predictable as possible to make sure that the NAC will quickly start doing well the job it has been long expected to do. 12 Concerns about arbitration centre available at http://www.sa-cambodia.com/files/PPP20Oct2002.pdf (access date: January 2010) 13 May Kunmakara, “Concerns about arbitration center”, The Phnom Penh Post, Friday, October 2, 2009. 14 The IFC has also published a discussion paper to raise some issues facing commercial arbitration services in Cambodia. See Private Sector Discussions Paper Number 24 “The Establishment of Commercial Arbitration Services in Cambodia”, September 2009, available at http://www.ifc.org/ifcext/mekongpsdf.nsf/Content/PSDP24 (access date: January 2010). 15 Co-Chair of The Government-Private sector forum’s working group on law, taxation and governance; and also Partner of the Sciaroni & Associates. 16 Id.