Alternative Dispute Resolution in Cambodia
Posted by khmernews on November 10, 2006
Alternative Dispute Resolution in Cambodia is a formal name for a type of process that has long existed, in different forms, all over the world. It appears that many Cambodian communities have preferred non-judicial dispute resolution for some time.
Clearly, numerous legal disputes have been resolved here through negotiation or methods comparable to what this text has called mediation.
A dispute resolution method called “reconciliation” is also used in certain situations in Cambodia. Basically, reconciliation is a process conducted by a judge after a party brings a civil dispute to a Cambodian court. It appears that the reconciliating judge tries to help resolve the dispute before it reaches the formal litigation stage, and proposing solutions. Technically, the reconciliating judge does not have the power to impose a solution on the parties at this stage. If the reconciliation fails, the parties proceed with formal litigation, usually with the reconciliating judge as the trial judge. Parties can challenge the nomination of the reconciliating judge. To do so successfully, they must provide some evidence to show that the judge cannot perform fairly or properly.
This reconciliation process could be seen as an example of what we have described as the hybrid forms of dispute resolution. Reconciliation seems in some ways to resemble what this text has called mediation or conciliation. That is because in theory the reconciliating judge is actively encouraging the parties to settle their dispute, but no imposing a solution. However, since the reconciliating judge will usually be the trial judge if the reconciliation fails, the judge would appear to have more power than the mediators discussed earlier. A party may find it hard to resist a judge’s “suggestions” about how to resolve a dispute if the party knows she will have her formal court case decided by the same judge. In addition, a judge may have more power than the average mediator, simply by virtue of the judge’s governmental authority. The result may be that although the judge may appear to be acting as a mediator, with no power to impose a solution, the judge may actually have some of the power of an adjudicator. This could be viewed as a combination of some of the power of formal adjudication with fewer formal rules to guide that power.
If the parties reach an agreement as a result of the reconciliation, it appears that the resolution is considered to be a “final and binding” one, endorsed to some degree by the court. This endorsement may give the agreement more force than an ordinary settlement of a civil dispute. It also appears that a party cannot appeal or otherwise challenge this type of resolution.
Court-conducted reconciliation is used in a variety of cases in Cambodia. For example, reconciliation is mandatory in divorce cases. Under the current Cambodian Law on Marriage and the Family (1989), the parties in a divorce case must reconciliate their dispute with a court judge at least twice. Under the law, the role of the judge is to protect the interests of both parties, and to act as an impartial referee to ensure that they reach an acceptable solution.
The spouses meet with the judge and try to solve their problems. Sometimes the parents of the couple are allowed to participate, but usually the proceedings are restricted to the couple and the judge. Generally, there is one month between the meetings. If a judge decides that the parties are near an agreement, he may order one more meeting in order for the parties to reach a solution. Some feel that, in practice, the reconciliation process in divorce cases can be long and difficult, that there is strong pressure on women not to divorce, and that it is difficult for women to protect their rights, particularly in cases involving domestic violence.
Reconciliation is also used in Cambodian contract and property disputes. Apparently there is no law authorizing this reconciliation, but the courts have adopted it because they believe it can be effective. In contract or property disputes there is typically only one reconciliation proceeding. However, as in divorce cases, if the judge believes the parties are close to an agreement, he may order one more proceeding.
Cambodia is a signatory to the New York Convention, which provides a way to enforce arbitration a wards issued in foreign nations, as explained above. Because so many other nations- including most in South East Asia-are also signatories to the Convention, this could provide an effective way to enforce foreign arbitration awards in Cambodia, and enforce Cambodian arbitration awards elsewhere. Very recently, the National Assembly of Cambodia adopted the Law on Approval and Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (2001). This law puts into effect the New York Convention, providing procedures for enforcing foreign arbitral awards in Cambodia through an application of the Court of Appeals.
-The Asia Foundation : Alternative Dispute Resolution, Edition 2001 Phnom Penh, Cambodia.