Commercial litigation in a Cambodian court can be a complicated and frustrating event

because of the court's lack of experience in commercial law and the fact that the

court is understaffed and overburdened by heavy case loads.

The rule of thumb in Cambodia is to avoid litigation if at all possible. However,

there are times when there is no other way to resolve a commercial dispute other

than through litigation.

Thus, it is important for investors to be aware of Cambodia's court system and its

limitations prior to doing business in Cambodia.

This article seeks to summarize the process whereby a potential litigant may proceed

with a law suit and the means by which a litigant may appeal a lower court decision.

Laws governing the Cambodian court system include "Law on Organization and Activities

of the Adjudicate Court" (1993) and "Law on Court Fees" (1993).

Jurisdiction

Before suit can be brought in a Cambodian court, the court must exercise jurisdiction

over the person or subject matter of the commercial dispute.

Normally, the court's forum is determined by the residency of the defendant. However,

if the subject of the dispute is real property, then the plaintiff must file suit

where the land is located.

Most commercial disputes are usually filed at the Phnom Penh Municipal Court, with

the rest filed at the appropriate provincial courts.

Lower Court (Municipal and Provincial Courts)

Once jurisdiction is established, a complaint is attached with all supporting documents

and filed at the Municipal Court or Provincial Court.

The court requires both plaintiff and defendant to engage in conciliation efforts

before actual litigation begins. This requirement is due, in part, to Cambodia's

traditional emphasis on mediation rather than litigation to resolve disputes. These

conciliation meetings are arranged by the court, and summons/notices of the meetings

are sent to both the plaintiff and defendant.

Within one month, both parties must meet twice to attempt a reconciliation; additional

meetings require the consent of both parties.

A judge will be assigned to serve as a mediator in all conciliation meeting, and

the same judge will oversee the case until it is finalized in the lower court.

If the dispute cannot be resolved through mediation, then the plaintiff must pay

a filing fee and file a list of witnesses and/or evidence in order to proceed to

litigation.

Once this is completed, the judge will investigate the case by interviewing each

party individually and all relevant witnesses. This is not done in the presence of

the opposing party or the opposing party's attorney.

After this preliminary investigation, the judge will write a summary of the investigation

and set a trial date. During trial, the Judge will initially ask each party questions

relating to the case.

Thereafter, the Judge will begin to call the witnesses to the stand. The judge will

do the initial examination of the witness(es), and thereafter the plaintiff and defendant

may examine the witness(es).

Presently, no jury trial is available for parties litigating in the Cambodian court

system.

Appellate Review

Under Cambodian law, all requests for review must be granted, and judges do not

have the discretion to deny this request.

If a party wants to appeal the lower court's decision, that party must notify (orally

or in writing) the trial judge of such intent within two months of judgment.

Thereafter, the trial judge must transfer all case files to the appellate court.

At present, there is only one appellate court in Cambodia.

The Cambodian Appellate Court has seven judges of which a panel of three judges will

review any appeal. These three judges have the power to review both questions of

law and fact.

The appellate court has discretion to accept new evidence or hear additional witnesses

when reviewing a case. The power of the appellate court is limited to the ability

to affirm or reverse the decision of the lower court. It does not have the power

to send a case back for re-trial in the lower court. If a party is unhappy with the

Appellate Court's decision then he/she may notify the Appellate Court of its decision

to appeal to the Supreme Court. Thereafter, the Appellate Court is required to transfer

all files to the Supreme Court.

There are nine Supreme Court judges. Normally five Supreme Court judges are designated

to review only questions of law; thus, no new evidence is allowed.

The Supreme Court has the power to affirm, reverse or send a case back with specific

instructions for a second review by the Appellate Court.

A new set of three Appellate Court judges will determine whether a revision of its

prior decision is warranted during its second review.

If a party is still unhappy with the decision of the Appellate Court's second review,

that party may request the Supreme Court to review the case a second time. Unlike

the Supreme Court's first review, the powers granted to the Supreme Court in its

second review are broader because it allows the Supreme Court to examine both questions

of law and fact.

After the Supreme Court reviews a case the second time, its decision/judgment is

final and no additional review is permitted.

At the end of the litigation process (where judgment is finalized), the losing party

is required to pay all the filing fees incurred by the winning party and additional

court costs, calculated as one per cent of the amount awarded to the winning party.

The current laws regulating the Cambodian court system provide a rough guideline

to Cambodian Courts.

However, additional laws are needed in order to provide the courts with a more thorough

and efficient procedure.

- (Ratha L. Panh is an attorney associated with Dirksen Flipse Doran &

Le an international law firm with offices in Cambodia, Laos and Vietnam.)