Factors affecting successful fiscal decentralisation in Cambodia

Alterations to Cambodia’s political and administrative structures under the Royal Government of Cambodia’s Sub-National Democratic Development (SNDD) reforms are still relatively new. The 2002 Law on Administrative Management of the Commune/Sangkat introduced directly-elected councils charged with producing development plans for their jurisdictions through participatory processes and given discretionary funds to carry out projects that met needs stated in these plans. The2008 Law on Administrative Management of the Capital, Province, Municipality, District and Khan (the ‘Organic Law’) allowed for indirectly-elected councils at provincial and district level, began the process of detailing and mapping the functions and fiscal resources to be assigned or delegated to sub-national authorities (SNAs) and defined the relationship between Cambodia’s 24 provinces, 193 rural districts, urban municipalities and khans, and 1,633 communes/sankgats (hereafter ‘communes’)(download).

The Rights of Indigenous Cambodians

This paper will address four points relevant to indigenous rights and welfare: access to education; access to health services; political inclusion; and land rights. An overview of each topic and current challenges will be provided, along with the results of recent field research conducted by the PIC. Field research was conducted in Adoung Meas, Bar Kaev districts in Ratanakiri and Pech Chreada in Mondulkiri, highlighted in Map 1, below.

In broad terms, indigenous Cambodians have worse outcomes than the national average in terms of health, education and land related indicators, except for their political inclusion. However, efforts have been made to address this imbalance, most successfully in education. Cambodia is now considered a regional leader in providing effective education programmes to its indigenous population. Health related issues have also gradually been improving. However land rights issues are more complex(download).

Oil and Gas Revenue Management Options for Cambodia

At a moderate rate of production, Cambodia’s oil and gas revenue could provide revenues of around $500 million a year for 20-25 years, and is estimated to peak in revenue at between $1.7 billion and $6 billion per annum for a small number of years. However, a recent drop in the value of oil and gas, which is forecast to continue into the foreseeable future, largely due to a number of large gas projects commencing production across the world, may have reduced the interest and profitability in developing Cambodia’s oil and gas reserves(download).

ការគ្រប់គ្រងចំណូលពីឧស្ម័ន និងប្រេង

ក្នុងអត្រាមធ្យមនៃផលិតកម្ម ចំណូលពីប្រេង និងឧស្ម័នក្នុងប្រទេសកម្ពុជា ត្រូវបាន​ប៉ាន់​ស្មាន​ថាមាន​តម្លៃ​ប្រហែល ៥ រយលាន​ដុល្លាអាមេរិក​​​​ក្នុង​មួយ​​ឆ្នាំ ក្នុងរយៈពេលពី ២០ ទៅ ២៥ ឆ្នាំហើយ​ក៏​មាន​​ការ​ប៉ាន់​ស្មាន​​​​ថា​នឹងកើនឡើង​ខ្ពស់បំផុត​ក្នុងចន្លោះ ១.៧ ពាន់លានដុល្លាសហរដ្ឋអាមេរិក ដល់​ ៦ ពាន់​លាន​​ដុល្លាសហរដ្ឋ​អាមេរិក ក្នុង​មួយឆ្នាំៗ ក្នុងអំឡុងពេលមិនច្រើនឆ្នាំប៉ុន្មានឡើយ។ ប៉ុន្តែ ការធា្លក់ចុះ​តម្លៃ​​ប្រេង និង​ឧស្ម័ន​ពេលកន្លងទៅ​ថ្មី​ៗ​នេះ ​ ដែលត្រូវបាន​​ព្យាករណ៍ថានឹងបន្តធ្លាក់ចុះ​នាពេល​អនា​គត​​​ខាងមុខ ​មូល​ហេតុ​​​ចំបងដោយ​សារមាន​​គម្រោង​រុករកឧស្ម័នធំៗ ​ កំពុងបាន​​ចាប់​ផ្តើម​ដំណើ​រការ​ផលិត​កម្មរបស់ខ្លួននៅ​​ទូទាំង​ពិភព​លោកនោះ ការចាប់អារម្មណ៍ និងផលចំណេញ ក្នុង​ការអភិវឌ្ឍវិស័យ​ប្រេង​ និង​ឧស្ម័ន​បម្រុងនៅ​កម្ពុជា​​ អាចថយចុះ។ (download)

Rent Control Laws End Up Strangling Housing Supplies

New rent control laws were passed by the National Assembly with support from both major parties, and will be implemented in the coming year. The law mandates a freeze on rental prices for garment workers for two years, during which time the rental price may not be increased.

Electricite du Cambodge (EdC), the state electricity provider, has been tasked with surveying the areas with a high density of dwellings rented by garment workers in order to assess rent prices, which will be fixed when the law is implemented. The rent control laws are implemented concurrently with laws to reduce the price of electricity for tenants using less than 50 kilowatt-hours per month, which will cut the expenses of low-income workers including those in the garment industry (read more).

Restricting alcohol marketing

The government of Cambodia has introduced restrictions for broadcasted alcohol advertisements, in an effort to ‘reduce the number of fatalities resulting from drunk driving.’

 

Going into effect on October first, television and radio stations will be prohibited from broadcasting alcohol advertisements between 6 p.m. to 8 p.m., according to the Ministry of Information. Following this 2 hour time ban, will be a more general ban on beer and liquor advertisements, going into effect in January of 2015. However, details of the 2015 ban have not yet been made public(read more).

Q&A: BNG Legal counsel Sujeet Karkala

As Asean nears its already delayed deadline of becoming a single market by the end of this year, Indian companies are recognizing the opportunities here, says Sujeet Karkala, counsel with BNG Legal. He moved to Cambodia seven months ago to blaze a trail for his enterprising countrymen and spoke to Khmer Times about some of the legal opportunities and challenges Indian companies face in the region. (read more)

UN APERÇU DES TRADIT IONS JURIDIQUES KHMÈ RES

Article de Gregory Mikaelian lors du Campus Asie 2014.

http://precedents.avocatcampusinternational.org/interventions/1_Gregory_Mikaelian.pdf

Government Releases Draft Law on Food Safety

The Commerce Ministry on Wednesday released a draft of the country’s first food law, which establishes a Food Safety Authority charged with protecting domestic consumers and ensuring that exports meet international standards.

The law—expected to be finalized and sent to the Council of Ministers by the end of next month—lays out a long list of punishable offenses, including selling food that contains harmful substances, mislabeling food, preparing or selling food in unsanitary conditions and operating a food business without a license(more).

https://www.cambodiadaily.com/news/government-releases-draft-law-on-food-safety-88533/

Recent Developments in Commercial Arbitration in Cambodia

2014 has witnessed a number of significant positive developments in commercial arbitration in Cambodia. It has seen the first Cambodian final appellate court decision enforcing a foreign arbitral award and the adoption of arbitration rules by the Cambodian National Commercial Arbitration Center (NCAC). These developments have the potential to transform Cambodia rapidly into a jurisdiction where commercial disputes can be resolved efficiently and with a maximum of transparency. They may catapult Cambodia ahead of some other ASEAN jurisdictions which, by comparison, are lagging in the area of commercial dispute resolution(more).

http://www.dfdl.com/images/stories/Articles/Cambodia/DFDL_Article_Recent_Developments_in_Commercial_Asian_on_Dispute_Review_January_2015.pdf

Arbitration Body Takes On Code of Ethics

Almost five years after it was established, the National Commercial Arbitration Center (NCAC) on Monday met in Phnom Penh to adopt a code of ethics in a bid to attract more clients to its alternative dispute resolution services.

The arbitration center was created in 2010 to provide businesses an alternative to the country’s courts but has still not heard a single case. Ros Monin, its president, said Monday he hoped the code of ethics would change that(more).

https://www.cambodiadaily.com/business/arbitration-body-takes-on-code-of-ethics-81556/

Arbitration Body Receives First Complaint

The National Commercial Arbitration Center (NCAC) received its first complaint last week, almost five years after it was set up, the center’s president said Tuesday.

Ros Monin, NCAC president, said that the arbitration body received the complaint—involving a dispute between a foreign national who rented a factory building in Phnom Penh and that building’s owner—on Thursday.

“Since we announced that we are ready to receive cases, now we have just received our first complaint, which involves a conflict over the implementing obligations of a factorybuilding rental agreement in Phnom Penh,” Mr. Monin said (more).

https://www.cambodiadaily.com/business/arbitration-body-receives-first-complaint-84450/

Cambodia's swift accession to Madrid Protocol

The Madrid System for the international registration of marks, governed by the Madrid Protocol, is gaining popularity across Southeast Asia. Several countries in the region are preparing to implement Madrid as part of their commitments toward regional integration via the ASEAN Economic Community, which will be created at the end of 2015(read more). 

http://www.managingip.com/Article/3456797/Thailand-Cambodias-swift-accession-to-the-Madrid-Protocol.html

Cambodia intellectual property laws & regulations

While Cambodia’s accession to the World Trade Organisation (“WTO”) in September 2004 brought with it obligations  to implement a number of intellectual property (“IP”) related laws and regulations, the application, registration and enforcement mechanisms, while strengthening year on year, remain relatively nascent in comparison with more developed IP protection regimes in Europe and elsewhere.  Recently,  Cambodian authorities dealing with patents, copyright, design rights and trademarks, in conjunction with attendees from the European Patent Office and the Office of Harmonization for the Internal Market (“OHIM”), have indicated a pro-active approach to strengthening intellectual property rights (“IPR”) protection in Cambodia. The laws implemented to date in relation to IPR protection include the Law on Trade Marks, Trade Names, and Acts of Unfair Competition (2002) (“Trade Mark Law”); the Law on Patents, Utility Model Certificates and Industrial Designs (2003) (“Patent Law”); the Law on Copyright and Related Rights (2003); and the Law on Management of Seeds and Breeders’ Rights (2008). In addition to these laws, the Royal Government of Cambodia has also recently issued sub-decrees and regulations for implementing these laws such as the Sub-Decree on Implementation of the Law on Trade Marks, Trade Names, and Acts of Unfair Competition (2006); the Prakas on Procedures for Granting Patents and Utility Model Certificates (2006); and the Prakas on Procedures for Registration of Industrial Designs (2006). The recently implemented Law on Geographical Indications of Goods (2014) and the number of products granted such protection thus far is yet another indication of Cambodia’s commitment to providing robust protection to IPR holders(read more).

http://www.lexology.com/library/detail.aspx?g=f3634aa5-d093-4f16-97ea-c3863ad3be4e

BOOK : DEVELOPMENT OF CAMBODIAN ADMINISTRATIVE LAW

In Cambodia significant laws have been developed since 1993 but some building stones of a strong building called ‘rule of law’ are still missing. Whereas comprehensive legislation has been adopted in the fields of civil law and criminal law in recent years important aspects of administrative law are still not covered by modern legislation.

In this regard, KONRAD-ADENAUER-STIFTUNG has published a book called "Devlopment of cambodian administrative law" in 2014. This book can freely downloaded here.

Cambodian parliament passes draft law on disaster management

The National Assembly of Cambodia on Monday adopted a draft law on disaster management, aiming to effectively control any natural or man-made disasters through preparedness, mitigation, and timely response.

Ninety-six out of 99 lawmakers in attendance, including Prime Minister Hun Sen, passed the law(read more).

Cambodia: Proposed Union Law a Rights Disaster

 Cambodia’s draft trade union law would violate the right to organize and be a major step backwards for workers, Human Rights Watch said today in a letter to Prime Minister Hun Sen. Cambodia’s donors and global brands that source garments and other products from Cambodia should call on the government to ensure that any legislation on unions meets international standards and is considered only after full and meaningful public consultation ((read more).

Renforcer la dynamique de formation délocalisée au Cambodge

Du 20 au 25 avril 2015, une délégation de l'Université Lumière Lyon 2 a rencontré à Phnom Penh son partenaire historique qui est le Cambodge afin de renforcer la dynamique de formation délocalisée dans ce pays.

Pour lire le compte-rendu de ce déplacement, cliquez ici.

US Warns Bar Over Rules on Foreign Lawyers

BY KANG SOTHEAR AND ZSOMBOR PETER | APRIL 29, 2015

U.S. Ambassador William Todd said this week that the Cambodian bar association’s threats to fine and jail foreign lawyers working here without a license could violate the country’s World Trade Organization (WTO) commitments and scare off much-needed investment.

In December, the Bar Association of the Kingdom of Cambodia (BAKC) put out a statement saying all foreign lawyers at work in the country without a license were doing so illegally. Drawing on the 1995 Law on the Bar, it said they could not represent clients but could still practice with the association’s approval—so long as their home country extended the same rights to lawyers from Cambodia.

At the time, association spokesman Yim Sary said foreign lawyers who continued to work without getting their home bar associations to clear the way for Cambodian lawyers “could be sent to jail or face cash penalties for continuing their illegal operations.”

But in his latest column for The Cambodia Herald, published on Sunday, Mr. Todd said the Cambodian Bar was out of tune with international opinion.

“A number of foreign legal advisors have said that the BAKC’s actions violate Cambodia’s World Trade Organization (WTO) commitments, which specifically permit foreign legal advisers to provide legal services relating to Cambodian law when in a commercial association with a Cambodian law firm on international/foreign law even without any commercial association,” he wrote.

WTO rules, Mr. Todd said, forbid any provisions defining how foreign and local lawyers can work together.

“By preventing companies from working with the law firms of their choice, BAKC’s actions discourage foreign companies from investing in Cambodia.”

The warning was part of the ambassador’s thoughts on what the country could do to bring in more foreign direct investment, which last year totaled $1.7 billion—roughly 10 percent of gross domestic product —according to the World Bank.

Foreign lawyers have been working as consultants and legal advisers in Cambodia since its economy opened in the 1990s and, often alongside local lawyers, have helped attract much of the outside investment in the country.

But Bun Hun, president of the bar association, on Tuesday rejected the ambassador’s claim about potential violations of WTO rules.

“We always respect the WTO commitments, but that doesn’t mean foreign lawyers can practice their profession here without respecting the laws of Cambodia,” he said. “They are just required to be registered, like in other countries, and the U.S. Embassy should reconsider and do some…legal research.”

As for luring foreign investors, he said there were plenty of capable and qualified local lawyers to do the job.

Mr. Hun said the Bar called in about 15 foreign lawyers between November and February to gauge their legal standing and found that none were registered.

“Cambodia has never banned foreign lawyers from practicing their profession here, but based on our law on the bar, they are required to be registered with the Bar Association,” he said. “Yet they have never come to register with us.”

He said the lawyers were not given a deadline but were asked to register “as soon as possible.”

Mr. Hun confirmed that part of the process will involve proving reciprocity, “which means that if the foreign bar association where the foreign lawyer is registered lets Cambodian lawyers practice their profession then the Cambodia Bar Association will do the same.”

Mr. Hun made no threats to sue any of the lawyers if they failed to follow through, except for one U.S. attorney whom he declined to name but said had made a great ruckus about having to register.

“If it is necessary to take legal action, I will file a suit,” he said.

One foreign lawyer who has worked here for the past five years said he was called to the Bar a few months ago but was not asked to register and left the meeting confused about what exactly was expected of him.

“They sort of assume you’re practicing law here illegally and they’re just asking questions to confirm that,” said the lawyer, who spoke on condition of anonymity because of the sensitivity of the issue. “But it’s not really clear what foreign lawyers are supposed to do.”

As for why the association was now getting tough with a 20-year-old law, he said some Cambodian lawyers may have started complaining about the pressure from foreign competitors. He estimated that there were no more than 50 foreign lawyers working in the country, not including at NGOs or the Khmer Rouge tribunal, a fraction of the nearly 1,000 Cambodian lawyers currently registered with the Bar.

The lawyer agreed with the U.S. ambassador that the local laws were probably “inconsistent” with Cambodia’s WTO obligations and that forcing all foreign lawyers to meet the Bar’s strict interpretation on registration would hurt investment.

“They do a lot of work in selling Cambodia as an investment environment,” he said, and having foreign lawyers here “makes them [investors] feel more comfortable.”

Foreign firms already have to weigh the costs of investing in one of the most corrupt countries in the world. Convincing them to come here just as the government is getting tougher on collecting corporate taxes, he added, could make the work of foreign lawyers all the more important.

While foreign investment would not collapse without them, he said, “I think there would be some effect.”

sothear@cambodiadaily.com, peter@cambodiadaily.com

https://www.cambodiadaily.com/news/us-warns-bar-over-rules-on-foreign-lawyers-82859/

An Analytical Study on Identifying Current Disputes and Major Challenges in Accessing to Land Tenure Security in Cambodia

Authors : Yen Yat & Zhanqi Wang, European academic research, vol.II, issue 10, jan. 2015

Abstract: Cambodia is an agrarian country where land is the most important contributor to economic growth and subsistence of majority of population. However, land of the whole country has not yet been completely registered and secured from ownership claim from one person to another. Methodologically, this paper aims to find out what the current issues and challenges to land tenure security which cause serious land disputes recently in Cambodia. All data and information are collected to analyse the challenge of land tenure. The paper revealed several challenges such as impact of economic land concession, historical changes of political and economic systems, uncertainty of boundaries and possession, lack of transparency in land management, lack of financial and technical support and population growth as well. The government shall put land issue as a priority on the table to discuss and seek for effective mechanisms to resolve. To finish land registration and demarcation is priority while land legislations shall also strongly be enforced. (read more)

Cambodia intellectual property laws & regulations update 2015 by DFDL

While Cambodia’s accession to the World Trade Organisation (“WTO”) in September 2004 brought with it obligations  to implement a number of intellectual property (“IP”) related laws and regulations, the application, registration and enforcement mechanisms, while strengthening year on year, remain relatively nascent in comparison with more developed IP protection regimes in Europe and elsewhere.  Recently,  Cambodian authorities dealing with patents, copyright, design rights and trademarks, in conjunction with attendees from the European Patent Office and the Office of Harmonization for the Internal Market (“OHIM”), have indicated a pro-active approach to strengthening intellectual property rights (“IPR”) protection in Cambodia. The laws implemented to date in relation to IPR protection include the Law on Trade Marks, Trade Names, and Acts of Unfair Competition (2002) (“Trade Mark Law”); the Law on Patents, Utility Model Certificates and Industrial Designs (2003) (“Patent Law”); the Law on Copyright and Related Rights (2003); and the Law on Management of Seeds and Breeders’ Rights (2008). In addition to these laws, the Royal Government of Cambodia has also recently issued sub-decrees and regulations for implementing these laws such as the Sub-Decree on Implementation of the Law on Trade Marks, Trade Names, and Acts of Unfair Competition (2006); the Prakas on Procedures for Granting Patents and Utility Model Certificates (2006); and the Prakas on Procedures for Registration of Industrial Designs (2006). The recently implemented Law on Geographical Indications of Goods (2014) and the number of products granted such protection thus far is yet another indication of Cambodia’s commitment to providing robust protection to IPR holders.

In Cambodia, patent registration is effected by the filing of a patent application to the Ministry of Industry and Handicraft (“MIH”) and must consist of the application form, description, claims drawings (if applicable), abstract, information concerning any previous international registrations and evidence of such prior registrations.  As in many jurisdictions, an invention is patentable only if it is new, involves an inventive step and is industrially applicable. While official timelines for actions to be performed by the applicant or the patent examiner are stipulated in the Patent Law and applicable regulation, these are generally extendable at the discretion of the MIH.  In practice, and while no patents have yet been granted in Cambodia, it will take around 54 months for issuance of a patent from the date of application.  The fact that the application forms must be translated into the national language of Cambodia (Khmer) also contributes to this lengthy approval process timeline. During the patent prosecution process, the MIH undertakes two examinations: a formalities examination and a substantive examination.  The former is to ensure whether or not the application satisfies the requirements of the Patent Law, while the latter is to ensure that all substantive requirements have been satisfied by the applicant.  The patent application must disclose the invention in such a way as to be sufficiently clear and complete for the invention claimed to be carried out by a person skilled in the art, and the description must indicate the best mode known to the applicant for carrying out the invention claimed.  Given that Cambodia is a signatory to the Paris Convention for the Protection of Intellectual Property, and, to date, all pending patent applications in Cambodia have claimed priority from a foreign patent (as of 2013 there were 75 pending applications), there is arguably great reliance placed on the search and examination reports from the country from which priority is claimed.

While the present patent registration system in Cambodia arguably does not appear to meet international standards, the trade mark system for application, registration and enforcement is much more developed, and has been used extensively.  Prior to application, a search is usually undertaken to ascertain whether or not a trademark can be registered before the application is filed (i.e. to determine whether there are any identical or confusingly similar marks and whether the mark is capable of registration).  The application for a trademark search must be submitted to the Department of Intellectual Property Rights of the Ministry of Commerce (“DIPR”).  Normally, the DIPR will respond in writing stating the result of the search within 50 to 60 working days following receipt of the application. In order to file an application for a trademark search, the applicant must provide a specimen of the trademark, classification and information regarding previous registrations in other jurisdictions, if any.

In summary, once an application has been filed with the DIPR, the trademark will be registered if it satisfies two basic requirements: (i) it must be distinctive, capable of distinguishing the products or services of one person (natural or legal) from those of another; and (ii) it must not fall into and of the categories excluded under Article 4 of the Trade Mark Law (e.g. if the mark is commonly used in the particular field of trade, if it is identical or confusingly similar to an earlier mark, if it is descriptive of the goods/services to which it relates or is contrary to morality, public order or custom).

The regulations and common practices governing the processes of applying for patents, trademarks, copyrights, and the like, are subject to further change and refinement as Cambodia continues to develop its regulatory framework in this area.

(https://www.lexology.com/library/detail.aspx?g=f3634aa5-d093-4f16-97ea-c3863ad3be4e)

Cambodia Law and Policy Journal n°1, n°2, n°3

The Cambodia Law and Policy Journal is bi-annual academic journal published in both English and Khmer, by the Documentation Center of Cambodia (CD-Cam), since 2013.

Issue 3, december 2014 (download)

Issue 2, july 2014 (download)

Issue 1, january 2014 (download)