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Today’s Phnom Penh Post has an interview with the President of the new National Arbitration Centre, Ros Monin. The article is entitled “Arbitration centre facing hurdles”, which is a fair assessment. Although a launching ceremony was held earlier this year, the Mr. Ros doesn’t expect the NAC to be able to handle cases until early 2014. One hurdle is funding to construct offices and for startup operations, which he calls on the Ministry of Commerce to contribute. He also describes briefly how the Arbitration Centre will work and opines on the current state of dispute resolution in the Kingdom. Stay tuned
In the last few months there has been quite a bit of news about ancient Cambodian cultural relics and who owns them. The New York Times has a couple of articles on the fight over several gorgeous Angkorian statues at Sotheby’s and at the Metropolitan Museum of Art (stories here and here). These cases involve some fascinating moral and legal issues a bit too complex to be dealt with in the scope of this blog.
We’ve had a look through Cambodia’s 1993 Decision on the Protection of Cultural Property (a copy can be found here). According to the decision, what sort of obligations and responsibilities come with owning a cultural artifact? Very generally, It sets up a system where the government can classify any property that it considers to be of “scientific, historic, artistic or religious nature which bears witness to a certain stage in the development of a civilization or of the natural world and whose protection is in the public interest.” There are several categories of objects – from unregistered, to registered, proposed for classification, and finally classified. Each category sets certain restrictions on ownership and the owner’s ability to sell or give away the object. For instance, classified property may not even be moved, altered or repaired without approval from the government. However, the law does provide that the government can reimburse an owner of a classified property for restoration, repair or maintenance of the property. If the government deems a repair or restoration to be urgent, it can repair or restore the item at its own expense, even without the owner’s consent.
Punishments for not complying with the law can be quite significant: jail time from six months to five years and/or a fine equal to the value of the object can be imposed on anyone who negligently “alienates, moves, destroys, modifies, alters, repairs or restores a registered cultural object”. Keep an eye out for how these cases play out.
The long-awaited National Arbitration Center, for settling commercial disputes, is finally taking shape. According to recent statements by government ministers, the NAC is scheduled to open by the end of this year.
Resolving a dispute through the court system can be a long and expensive process. The World Bank estimates it takes on average 401 days at a cost of 103% of the value of a debt in order to enforce a commercial contract. The NAC will offer parties to a commercial contract an alternative venue, which hopefully will be swifter and more efficient.
In preparation, the Cambodian government passed a Law on Commercial Arbitration in 2006 based on UN guidelines and a further sub-decree last July to establish its structure. The NAC will be supported by the International Finance Corporation, a member of the World Bank Group, for its first three years. During that time it will be run by the Ministry of Commerce, but the goal is to establish the reputation and capacity of the NAC so that it can be spun off as an independent, non-profit, entity.
Say you’re hit by a car, or a bathtub falls on you through the ceiling of your hotel. Is the driver or hotel owner at fault? What sort of compensation are you owed? The answers are a matter of tort law – “tort” being the French word for wrong.
So does Cambodia have a tort law? Good question, you’d be excused for answering no.
The correct answer is yes, but it’s not entitled “Tort Law”. The provisions are hidden away at the end of the Law on Contract and Other Liabilities, passed way back in 1988. The fourteen articles on “Other Liabilities” are fairly straightforward and barebones. The two main provisions are as follows:
Any person who causes damages to others by reason of his own fault, shall be liable in
compensation for such damage. Even where the damage is caused by involuntary acts such as
carelessness or negligence, the offender shall be liable.
Property owners shall be liable for damage caused to others if such damage is due to the owner
negligently failing to properly maintain, control or repair the property.
Those are the basic rules, and there isn’t much further guidance on the matter. All of this will be replaced when the Civil Code comes into place, hopefully sometime this year. So next time you’re hit by a car or crushed by a bathtub, remember the Contract Law and Other Liabilities…and hope the other guy is insured.