Cambodian Yearbook of Comparative Law

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   Copyright © Cambodian Society of Comparative Law March 2010
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                 Printed with support from USAID
                            Phnom Penh

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                           Board of Editors
  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.

EDITORIAL NOTES                           i


LEGAL STUDIES                             1
Kaino Michiatsu

Kuong Teilee

PERSPECTIVES                             25
Hor Peng

Kamiki Atsushi

OF JAPAN AND FRANCE                      53
Harada Sumitaka

Fabian Thiel
SINE LEGE                                87
Adachi Masakatsu

Phin Sovath

DEVELOPMENT LAW                          115
Veronica Taylor

IN CAMBODIA                              129
Meas Bora

Steven Austermiller


LAW AND PRACTICE                         163
Kong Phallack

REGULATIONS                              173
Ly Chantola

Seng Hun
    Cambodian Yearbook of Comparative Legal Studies Vol. 1         i


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
   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
   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
     Cambodian Yearbook of Comparative Legal Studies Vol. 1                       1


             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.
  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

  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
    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
   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,
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 (
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.


(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.
  HIKAKUHOUTEKI KENKYU” (Japanese law in an
  international context: law in its origin and law in its global
  context), Seibuntoh, Tokyo, 2006.
  (Japanese legal studies in comparative and historical context: its
  perspective of comparative law), Seibundoh, Tokyo, 2008
  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*

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
   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
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.

  See “For the Record: The Assembly”, Phnom Penh Post, July 16-29. 1993.
  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.
  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

  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

  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

  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.
  The second paragraph of Article 8 of the 1993 Constitution.
  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.
  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

   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

   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

    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.
   See Teilee Kuong, “Development of the Post-Conflict Constitutionalism in
Cambodia (1993-2003)”, Asia Law Review, vol.3, no.2, December 2006, pp.
   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
   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

    For extensive empirical observations, see Sorpong Peou, International
Democracy Assistance for Peacebuilding: Cambodia and Beyond, Palgrave
Macmillan, 2007.
   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.
   Domestic discussions then were rather confined to a few opinions made by
leading NGO activists and opposition newspapers with limited circulations at the
   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

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.
   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,
   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

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.
    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

    WTO Document, Working Party on the Accession of Cambodia,
WT/ACC/KHM/2, 22 June 1999 (99-2515), para. 47.
    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.
   Checklist of TRIPS Requirements and Implementation by the Kingdom of
Cambodia (Revision), WT/ACC/KHM/7/Rev.1, 31 July 2002 (02-4236).
   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/ (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

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.
   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 (last access date: 1
November, 2009)
   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.
   Ibid. Article 3.
   Ibid. Article 4.
   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

   Ibid. Article 6.
   Ibid. Article 7.
   Ibid. Article 33, second paragraph.
   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
     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.

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

   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.

     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*

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
   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
 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

  The Constitutions of the Kingdom of Cambodia, Article 1, Article 31, Article 51,
and Article 150.
  Ibid. Articles 8 and 9
  See Brian Z. Tamanaha,On the Rule of Law : History, Politics, Theory (2004.
Cambridge University Press, p. 110-113).
   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.
  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).
    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
   Constitution of the Kingdom of Cambodia, Article 128[3].
   Ibid. Article 128[2].
    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.
    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 ...
    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.
    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

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

   Id. p.799
   See Vicki C. Jackson & Mark Tushnet, Comparative Constitution (1999, New
York Foundation Press).
   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

    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).
   See Aharon Barak, Purposive Interpretation in Law (2005, Princeton University
Press, p.3).
   Id. Abaron Barak, The Judge in Democracy (2006, Princeton University Press,
   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.
   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

   Id. p.127-128.
   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, 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).
   See Vienna Convention on the Law of the Treaties between the States and
International Organizations or Between International Organizations 1986, Article
     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.

   See Constitutional Council's Decision (No.061/003/2004) dated September 07,
2004 (in paragraph 3 and 4)
   See Geraldina González De La Vega in Supra note 5, p.809.
   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."

   See Constitutional Council's Advisory Opinion to The King (No.20/2003),
dated September 22, 2003 (in point 3 with paragraph 2).
   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).
   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

   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.


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
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.
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,
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
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

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

  Article-by-Article Commentaries on the Civil Code of the Kingdom of
Cambodia, at Article 122.
  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
  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

  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

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

  See Nomi Yoshihisa, “Camboja minpo ten to baibai hou (The Cambodian Civil
Code and the Law on Sales)”, Comparative Legal Studies, 68.
  See Yasuda Yoshiko, op cit., p. 871.
  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

   Cambodian Land Law Articles 119 and 121.
   Cambodian Land Law Article 138 paras.1 and 2.
   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

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
   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
  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
                                        shall be
  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
                                                      (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

3 Compulsory Execution and Preservative Relief

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

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


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

  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, 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


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
   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.


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


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
   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
   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
   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.


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.”


(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

“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 [
                  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 [                               ――
  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
  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).
  Technical University of Munich, Concept Note of the Royal Government of
Cambodia on Land Use Planning Policy, draft from November 21, 2008, p. 2
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

  Royal Government of Cambodia, National Strategic Development Plan (NSDP)
2006-2010 from December 22, 2005, p. 48, Phnom Penh (2005).
  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).
  United Nations Human Settlements Programme (UN-Habitat), Urban Land for
All, p. 6, Nairobi (2004).
  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

   Kingdom of Cambodia, Constitution (as amended) from July 13, 2004.
   Kingdom of Cambodia, Land Law from October 18, 2001.
   Kingdom of Cambodia, Law on Land Management, Urban Planning and
Construction from May 24, 1994.
   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).
   LMAP Canada, Workshop on Land Valuation, Oct. 13/14-2008, p. 2-8, Phnom
Penh (2008).
    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).
   See Svetozar Pejovich (ed.), The economics of property rights: Towards a
theory of comparative systems. Edward Elgar Publishing, Cheltenham/United
Kingdom (1990).
   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).
   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

   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).
   Julia Bartels, Terres Collectives. Kollektiveigentum in Marokko, Logos/Berlin
   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.
   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).
   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).
   See German Technical Cooperation (GTZ), Programmes and Projects in
Cambodia: Land Management and Land Allocation for Social and Economic
Development, GTZ in Cambodia (2009).
   See also Babette Wehrmann, Land Conflicts. A practical guide to dealing with
land disputes, GTZ study, Eschborn (2008).
   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

  See Land Law 2001, Art. 17.
  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),

   See Royal Government of Cambodia, Sub-Decree on Economic Land
Concessions, No. 146 ANK/BK/December 27, 2005.
   Technical University of Munich, Concept Note of the Royal Government of
Cambodia on Land Use Planning Policy, draft from November 21, 2008, p. 3
     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)

  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,

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
     • 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

  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

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

  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
      • effective and efficient State land management with
        non-transferable public property;
      • leasehold tenure contracts, eventually combined with

   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).
   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

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

   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.
   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

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

   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
   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
    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
      - 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
   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

  Chairman’s Statement issued at the G7 Economic Summit, Houston, 1990. The
document is available at (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

5. Present significance of the principles of modern
   criminal law

1) Are these measures a hasty protection of legal

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

    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
   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
   When this kind of crimes increases, we basically need to face the
danger of having to deny various principles of modern criminal
   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.
  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.

  See Adams v. Burke, 84 U.S. 453 (1873).
  See Quanta Computer v. LG Electronics, 128 S. Ct. 2109 (2008), and its dockets
No. 06-937.
  See Judgment of the Supreme Court in Canon Inc. v. Recycle Assist Inc. (Sup.
Ct. Nov. 8, 2007), available at
<> (last visited July 17,
  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
    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
   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,

  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
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

   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.
   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
<>. Since this page has been
modified,       the    archive     of     this    page    can     be      found  at
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

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

MEDICINES IN AFRICA 20 (World Bank 2008).
   See Article 30(b) of the Patent Law of Ghana, Dated December 30, 1992,
available                                                                          at
(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).
    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).
   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.”).
   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
<> (last visited Nov. 6,
   See id.
     Cambodian Yearbook of Comparative Legal Studies Vol. 1 107

   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

   See Section 58(2) of the Industrial Property Act of Kenya, available at
  <> (last visited Nov. 6,
   See Robert Lewis-Lettington & Peter Munyi, Willingness and Ability to Use
TRIPS Flexibilities: Kenya Case Study, Sept. 2004, available at
  <> (last visited Nov. 6,
     For a general discussion regarding this controversy, see Robert
Lewis-Lettington & Peter Munyi, id. at 17-20.
   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).
   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
   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

   See id.
    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
<> (last visited Nov.
6, 2008).
   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
<> (last visited Nov.
6, 2008).
    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

     Id. (emphasis added).
     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
         (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
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

   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)
   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

   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*

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:; Director, School of
Regulation, Justice and Diplomacy, Australian National University:
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
   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
   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

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
     • 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

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:
   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
     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
     ¥ 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) 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 (
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.


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
   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
    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:
   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
   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
   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
( 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.

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.


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
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:>
Goedde, Patricia (2004a) ‘Still Trading with the Enemy: U.S. Trade
  Laws Concerning North Korea’, Sungkyunkwan Law Review,
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
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
128   Doing Business in Development Markets
     Cambodian Yearbook of Comparative Legal Studies Vol. 1 129

      International Human Rights Law
                 in Cambodia

                                    Meas Bora*

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.
   Cambodia acceded to and ratified six principal conventions on human rights of
available at
130          International Human Rights Law in Cambodia

and human rights treaties, it proposes approaches to solve these

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

  A SELECTION OF LAWS, see id. 5.
  In general, the Minister of Foreign Affairs and International Cooperation.
  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.
  Statement, No. 51 S.Ch.Nor. K.Bor.Chor, dated September 09, 2006 (on file
with author).
  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

   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.
   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.
   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
    The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
    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
   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

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

   The Vienna Convention on the Law of Treaties (VCLT), May 23, 1969, 1155
U.N.T.S.331, Article 31.
    Y. Distein, “The Interaction between Customary International Law and
Treaties”, Recueil des Cours, v. 322, pp. 357-359 (2006).
   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

   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.
   The Internal Rules of the ECCC, Rule 23, available at
   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
   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).
   The International Covenant on Civil and Political Rights, 16 Dec. 1966, 999
U.N.T.S. 171.
   Law on Statute of the National Assembly, promulgated by the King on October
21, 2006 (in the file with the author).
   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 [1983] AC 280, 312 or [1982] 1 All ER 532
   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

    The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
    The Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S.
    Law on the Anti-Terrorism, promulgated on July 20, 2007 (in the file with the
    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).
    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

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

   WARD N. FERDINANDUSSE, supra note 12, p.29.
   The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
   The 1993 Constitution, A SELECTION OF LAW, supra note 1, p. 5.
   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
   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

   Article 32-50 of the 1993 Constitution, see A SELECTION OF LAWS, supra
note 1, p. 5.
   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).
   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
   See Annex of the Guidelines, final provision of the guidelines of the Ministry of
   Constitutional Council of Cambodia (CCC), decision dated on June 26, 2007, (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.
   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.
   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

   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.
LAW, (2nd ed. 2005), p. 219. WARD N. FERDINANDUSSE, supra note 12, p.
   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).
   Article 74 of the UNTAC Law, see A SELECTION OF LAWS, supra note 1, p.
   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
   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

   Based on my discussions with some judges and experts.
   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).
   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
   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
   Public Decision on Appeal against Provisional Detention Order, C22-I-74-EN,
paras. 14, 42-44, available at 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

   Public Decision on Appeal against Provisional Detention Order, C22-I-74-EN,
para. 14, available at
   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
   Incorporation refers as reference of human rights treaty provision in national
   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,

   Article 5 of the 1993 Constitutions, see A SELECTION OF LAWS, supra note 1,
p. 5.
    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.
    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, [2000] 1 AC 147, at 276.
    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

   The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
   See Section B.
   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

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.

   Petitioners v. Haitian Centers Council, Inc, et al., No. 92-344 (June 21, 1993),
113 S. Ct. 2549, para. 49.
   Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R.3,
   Hissene Habre: Senegal´ s Albatross, Litmus Test for Africa, Angola Press,
November 28, 2005.ústice/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

   The Vienna Convention on the Law of Treaties (VCLT), May 23, 1969, 1155
U.N.T.S.331, Article 27.
    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.
  Gainey v. Brotherhood of Railway and S.S. Clerks, Freight Handlers, Exp. &
Station Employees, 275 F. Supp. 292, 300 (E.D. Pa. 1967).
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).
   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.
of Kingdom of Cambodia 5296, 5336, art. 97 (2006) [hereinafter CCP-KC].
   CCP-KC, art 220.
  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
   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

   Id. art. 222.
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].
     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.
    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
   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

   Patterson et al., supra note 2, at 53.
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

     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
CA71B8E7700CA256BD100135550?OpenDocument (last visited Oct. 19, 2008).
U.N. GAOR, 57th Sess, Supp. No. 17, U.N. Doc. A/57/17, Annex I, art.9 (2002)
available at
(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
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
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
    UNCITRAL Conciliation Guide, supra note 18, at ¶ 7; Diaz & Oretskin, supra
note 18, at 797.
     UNIFORM MEDIATION ACT (amended 2003), available at (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
(last visited June 30, 2009). In 2003, the UMA was amended to incorporate by
reference the UNCITRAL Conciliation Law for international proceedings under
     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
o%201.pdf (last visited Oct. 19, 2008).
     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
(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
   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,

     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).
     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
     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.”
COMMISSION, arts. 7 – 11, Royal Government of Cambodia, Sub-Decree #47
FOR LAND DISPUTE RESOLUTION, art. 3, 15 Official Gazette of the Kingdom of
Cambodia 1190 (2006).
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
   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].
    CCP-KC, supra note 4, art. 97 and art. 104.
    “At the preparatory proceedings for oral argument, the court shall first seek to
effect a compromise settlement . . .” Id. art. 104.
    Id. art. 104; CCP-KC COMMENTARY, supra note 11, at Book Three, Ch. Two,
Section II (II)(3), p. 51.
    Id. at 52.
    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

    LCA, supra note 28, art. 38 (2006).
    Id. art. 38 (3).
    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.
    UNCITRAL Conciliation Guide, supra note 18, at ¶ 90.
    See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a)(b) (West. Supp.
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.

    Patterson et al., supra note 2, at 108.
MEDIATION PROCEDURE], art. 25 (2004).
      See, e.g., ARBITRATION ACT (1986) (Bermuda); ARBITRATION AND
[GERMAN CODE OF CIVIL PROCEDURE], Tenth Book, § 1053 (Germany);
LAW OF THE PEOPLE’S REPUBLIC OF CHINA, art. 51 (1995) (China).
    Most mediation laws provide guarantees of confidentiality. See UNCITRAL
Conciliation Law, supra note 18, at art. 9.
    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,

     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.
     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.
(2006),             UNCITRAL                website,            available            at
  (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
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

    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
n_status.html (last visited June 30, 2009).
    LCA, supra note 28, art. 7.
    Id. art. 7 (2).
      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).
     Id. art. 5.
     Id. arts. 6, 19(3), 19(4), 19(5), 21(3), 22 and 24(3).
     The Commercial Court referenced has not yet been established.
     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

      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
(last visited June 30, 2009).
      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.
      Id. art. 39.
      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.
      Id. arts. 10 – 17.
      Id. However, under Article 11, parties to arbitration outside of the NAC are
still allowed to choose arbitrators outside the official NAC list.
      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,

     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.
                  See       UNCITRAL             website,        available      at
.html (last visited June 30, 2009) In 2001, Cambodia passed the LAW ON THE
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).
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

     LCA, supra note 28, art. 45.
     Cambodian Yearbook of Comparative Legal Studies Vol. 1 163


                  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
   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.
  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
  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
  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

   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.
   Prakas 099 on Arbitration Council dated 21 April 2004, Art. 48
   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.
   See Annex 1 for Organization Chart.
   Prakas 174 on the Establishment of the Secretariat of the Arbitration Council
dated 9 May 2003, Art. 1
   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….."
    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

of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 302
    ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation
of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 312.
    Prakas 099 on Arbitration Council dated 21 April 2004, Art. 3
    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
    Prakas 099 on Arbitration Council dated 21 April 2004, Art. 2
    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
    Prakas 099 on Arbitration Council dated 21 April 2004, Art. 2
    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.

   Prakas 099 on Arbitration Council dated 21 April 2004, Art. 39 and Art. 50
   Prakas 099 on Arbitration Council dated 21 April 2004, Art. 6
   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
   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
   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

   Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 (A)
   Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 (B)
   Prakas 099 on Arbitration Council dated 21 April 2004, Art. 12 (C)
   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.
   ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation
of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 310
   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.
   ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation
of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 313
   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.
   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
   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

   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
   ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation
of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 313
   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
   ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the Promulgation
of Labor Law, Ch.XII, Settlement of Labor Disputes, Art. 314
   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

     ILO, Improving Cambodia's Economy through Better Industrial Relations, p.2
170    Labor Arbitration in Cambodia: Law and Practice

                                           Ministry of
                                           Labor and

              Arbitration Panel (3 Arbitrators)

          B           C

        Workers                               Employer
    Cambodian Yearbook of Comparative Legal Studies Vol. 1 171


ROYAL KRAM CS/RKM/0397/01 dated 13 March 1997 on the
 Promulgation of Labor Law, Ch.XII, Settlement of Labor

Prakas 099 on Arbitration Council dated 21 April 2004

Arbitration Council Procedural Rules

Secretariat of Arbitration Council, Case Statistics, December

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
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
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
   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
   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

    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
      - 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
    - 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
    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
    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,
    Secured Transactions Law, 06 April 2007 (in force 24 May
    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*

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.
  Yasunobu Sato, Commercial Dispute Processing and Japan, the Hague Kluwer
Law International, 2001, page 1.
  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.
  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

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,

  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.
   LCA: Law on Commercial Arbitration, adopted by the National Assembly of the
King      of    Cambodia      on     March      6,      2006     available   at (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

   Sub-Decree No. 124 ANKR/BT on Organization and Functioning of the
National Arbitration Center (NAC) of Cambodia dated August 12, 2009.
   See “IFC helps Establish Cambodia’s First National Arbitration Center to
Resolve Commercial Dispute” posted August 10, 2009 available at  (access date:
January 2010).
   See Recruitment Announcement for 50-60 people to arbitrate commercial
disputes for National Arbitration Center of Cambodia available at
(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
(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.

         Concerns       about       arbitration      centre      available    at (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 (access date: January
   Co-Chair of The Government-Private sector forum’s working group on law,
taxation and governance; and also Partner of the Sciaroni & Associates.

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