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.)
