Access to Legal Information in Cambodia: Initial Steps, Future Possibilities
Daniel Adler
Community Legal Education Center, Phnom Penh
[email protected]
Abstract
Following a brief review of the literature on access to legal information (particularly in electronic form), the author finds a lack of empirical research on the relationship between access to legal information and the establishment of the rule of law, particularly in developing countries. Using the example of Cambodia this article considers why the publication of legal information has been so difficult in the past. It then provides a case study of a new tribunal (a council for the arbitration of labour disputes) which is taking steps to publicize its decisions online and reflects on the effects which the distribution of such information may be having on the conduct of industrial relations in Cambodia. Finally the article undertakes an assessment of the extent to which the model established by the Arbitration Council could be used as a basis for the development of legal publishing in Cambodia.
Keywords: Cambodia, rule of law, online publication of legal information.
This is a refereed article published on: 30 January 2006.
Citation : Adler, 'Access to Legal Information in Cambodia: Initial Steps, Future Possibilities’, 2005 (2-3) The Journal of Information, Law and Technology (JILT).< http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_2-3/adler/>.
1. Introduction
The literature on the impact of access to law online is full of promise for countries where liberal democracy and the rule of law are works in progress. Thus for example Legal Information Institute founder, Peter Martin, states that ‘efforts to make the law more accessible, more understandable, (and) more clearly expressed are ultimately efforts to make law more effective and in a democracy more accountable and responsive’ (2001, p.5). Even more assertive is Takato Natsui of the SHIP (Social, Human and Information Platform) Project who claims that ‘the degree of public presentation of legal information can be a barometer of whether a specific country is law governed or not’ (2001, p.49).
Though sympathetic to the assumptions of Martin, Natsui and company, I am somewhat disappointed that a review of the literature does not reveal more cohesive arguments to back their claims, particularly in the context of those countries which have most at stake; transitional societies where democracy is new, governance is fragile and the hold of the rule of law is weak. On the contrary, a significant body of scholarship which examines attempts to promote legal and judicial reform in the developing world requires critical engagement with the assumption that development of certain laws or institutional forms will automatically deliver “the rule of law.” 1
The strongest arguments on the relationships between online access to legal information, democracy and the rule of law seem to be historical and theoretical rather than empirical. One such historical argument comes from Martin who finds that ‘communication has been central to the law’ from the earliest times. He then proceeds to track what are described as profound changes in the legal process as new technology has been co-opted in the communication of law. 2 Martin’s thesis is that because law relies so strongly on communication for its efficacy, the adoption of more efficient means of communicating law (both to the citizens and between institutions of government) improves the strength of the rule of law itself. Further, with its potential to extend law to the people, Martin (1999, p.188) sees the internet as overcoming the inequality of print based communication which played into the hands of an elite group of legal experts.
Though the focus of Martin’s work has been on the transformation of developed legal systems 3 as they move from print to electronic communication, this scholarship is informative for the current study of access to legal information in Cambodia because it establishes a relationship between the ways in which societies think about law and the technology they use in its operation and distribution. In a country like Cambodia, however, which has only the most basic infrastructure for the print based distribution of legal information, the possibilities of online access to law raise their own distinct possibilities and challenges. 4
Addressing those possibilities and challenges this paper will consider the roots of the problem of access to law in Cambodia; examine previous attempts by the Royal Government and others to overcome it; and, taking the recent establishment of an arbitration tribunal for labour disputes as a case study, it will examine some of the issues which arise if online systems are considered as a model for tackling the problems of legal information. The empirical basis for this paper is derived from a review of relevant literature, unstructured interviews with key informants, and reflections based on the author’s experience working at a Cambodian non-government organization with a focus on justice sector reform. As such the paper should be read as a ‘note from the field’ rather than an attempt at scientifically rigorous empirical research.
The paper commences with an overview of the situation with regard to access to information in Cambodia.
2. Access to Information in Cambodia – An Overview
Emerging from more than two decades of civil war, establishing and strengthening legal and judicial institutions has been a priority for Royal Government of Cambodia since the promulgation of the current constitution in 1993. This commitment is reflected in the Royal Government of Cambodia (RGC)’s Rectangular Strategy for Growth, Employment, Equity and Efficiency in Cambodia (2004) which states that the development of the rule of law is a crucial element of the RGC’s efforts to promote good governance. Similarly, the national Legal and Judicial Reform Strategy adopted in June 2003 stresses the importance of the legal and judicial sector in upholding the rule of law by “ensuring effective access to justice for all” (RGC, 2003, p.6).
The same Legal and Judicial Reform Strategy provides that “free access to information (…) as a fundamental prerequisite for the functioning of a liberal democracy,” and that “access to information [will] only [be] restricted in accordance with the law and when it is deemed necessary in a democratic society.” Despite this on paper commitment to a free flow of information access to even the most fundamental of public documents remains problematic in Cambodia. Though provision is made for all laws and regulations to be published in the form of an Official Gazette , this record is neither complete, nor is it published on a regular basis (Rubacki & Sagi, 2004).
Court hearings in both civil and criminal cases are generally open to the public though judges do have a power to close criminal hearings at the request of the victim (Art, 23 UNTAC (United Nations Transitional Authority in Cambodia) Criminal Law (1992)). In practice, however, judges order the closure of hearings at their discretion. 5 Though there is no law restricting access to court judgments, they are not publically available in any form, nor are they available for third parties to inspect through the court registries.
With regard to internal documents of the executive such as policy papers, draft laws or directives, a legal officer at the Cambodian Council of Ministers pointed out in discussion with the author that “Cambodia has no law on the classification of such documents. If people want to get access to a document then we need to follow informal procedures. If I am not sure whether to give the document, then I will ask my boss; if he is not sure then he will ask his boss; and so it goes until someone can decide yes or no.” 6
3. Specific Problems in Access to Legal Information
There are a number of obstacles which face any lawyer, academic, policy maker or concerned citizen who wants to get access to legal information relating to Cambodia. Some of these problems will be familiar to practitioners in other countries, others are peculiarly Cambodian.
Unlike many civil law countries where comprehensive codes are enacted, most Cambodian laws provide only a framework of policies and principles which leave the detailed law making to be completed by executive regulations. These regulations may be made either by the Royal Government (Anukret) or by individual ministries (Prakas) but in either case there is no requirement that such regulation be submitted to or approved by parliament. This leads to competition between regulatory and administrative bodies each of which will try to assert its authority over a field of law. Taking an example from the Cambodian Labour Law, Chapter VIII places a broad duty on employers to maintain a healthy and safe workforce, but provides few further details. Executive regulations which impact on workplace health and safety are issued by bodies including, The Council of Ministers, The Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation, The Ministry of Health, The Ministry of Environment, and The Ministry of Industry.
Though Article 13 of the Law on the Organization and Functioning of the Council of Ministers (1994) provides that “all norms and standards with general effect must be published in the Official Gazette” the publication of Cambodian laws is intermittent, incomplete and poorly distributed. This problem is compounded by the fact that the 1993 Constitution expressly saves laws which were made under previous regimes, arguably including laws from the pre-Khmer Rouge period. For these reasons there is no definitive collection of Cambodian laws currently in force. Finding a law then requires the researcher to visit such Ministries as one might assume regulate the field of interest. Continuing the example of occupational health and safety regulation from the previous paragraph; such regulations are not published in any indexed form, thus researcher wishing to compile a comprehensive collection of law relating to workplace health and safety would need to contact no fewer than 5 public authorities, none of which would necessarily have complete or up-to-date collections of even their own regulations on the subject matter.
While laws and regulations are at least in principle public documents, the same cannot be said about Cambodian court judgments. Court documents are not published in any regular way, and requests from researchers or lawyers for judgments are inevitably rebuffed unless the researcher has connections within the court system. The situation with regard to other official legal documents such as draft laws, policy papers, and administrative decisions is similarly bleak.
4. Previous Attempts to Tackle the Problem
In the 12 years since Cambodia made its formal transition to liberal democracy there have been a number of attempts to address the issue of access to legal information. I will now proceed to provide a brief overview of each of these efforts together with an analysis of why they are less than entirely satisfactory.
1. The Official Gazette (Rijekec):The Official Gazette is the official organ for publishing law in the Kingdom of Cambodia. Publication in the Official Gazette is considered to satisfy the publication requirement under the Law on the Organization and Functioning of the Council of Ministers . The Gazette has been described as “a poor quality publication” with production methods which are “archaic by modern standards.” (Rubacki & Sagi, 2004). The coverage of the Official Gazette is seen as being comprehensive in terms of laws and regulations of the Royal Government (those issued by the Council of Ministers). However, as Cambodia lacks a reliable system for the centralization and compilation of legal instruments issued by the various Ministries, these are often not published in the Gazette . This leads to a situation whereby even the central government may have difficulty in ascertaining the law on a particular subject.
2. UNDP Project to Compile Tri-Lingual Database of Laws:The UNDP funded a project together with the Council of Ministers to compile Cambodian laws on a CDROM database. This database is useful as it is searchable and contains a relatively comprehensive selection of laws and regulations in Khmer (with many English and French translations). However, the project was unsuccessful in developing a model for its sustainability. Funding ceased in 1998 and the database has not been updated since then.
3. World Bank Funded Journal and Council of Jurists (Legal Reform Unit) Website:From 1999 - 2001, the World Bank funded journal of Cambodian laws published in English and French every two months. The project also funded a Council of Jurists website. The journal and the website published a selection of important new laws and regulations in Khmer, English and French. For the purpose of legal research, however, these resources were of limited use as they only published a selection of the laws and regulations passed. The project was also expensive to run as it required a team of translators to produce the English and French versions of the laws. Cost recovery was not viable in the short period of time during which the project was funded. The reasons for this related to the state of the Cambodian book market; expensive production costs; a lack of advertising and poor distribution networks. The venture ended once the original funds ran out.
4. WorldLII/DIAL (Development of the Internet for Asian Law) Project: Worldlii/DIAL ( http://www.worldlii.org/catalog/dial ) has developed a index of Cambodian legal resources online. As there is such a paucity of Cambodian legal materials available online, however, the Worldlii/DIAL efforts at indexing current materials is somewhat unsatisfying. Addressing this deficit, Worldlii/DIAL have taken initial steps towards generating new online legal resources. This has involved the online publication of the UNDP database (see above) as well as materials provided by local NGO, the Community Legal Education Center and the non-profit publisher Cambodian Legal Resource Development Center (CLRDC). Recently Worldii has also published a selection of law, regulations and arbitral awards relating to labour law. Unfortunately, however, lack of resources and difficulties in the presentation of Khmer script are hampering the further development of the Worldlii Cambodian databases.
5. The Arbitration Council: A Case Study on the Effects of Access to Legal Information
One exception to the rather gloomy situation described above comes from the newly established Arbitration Council, a tribunal which conducts mandatory (but non-binding) arbitration of collective labour disputes. Though this tribunal is required by law to hold hearings behind closed doors, as of June 2003 its judgments have been published on the Internet in both English and Khmer ( www.arbitrationcouncil.org). In taking what might, in other contexts, be seen as a rather mundane step the Arbitration Council became the first Cambodian institution of justice to regularly publish its decisions in any broadly available form.
Commenting on the importance of publishing judgments Tuon Siphann, an arbitrator of the Cambodian Arbitration Council, said that:
Access to information is the cornerstone of accountable decision making. As arbitrators, we publish our judgments for everyone to read. Sometimes people criticize us but that is OK. It encourages us to improve our work. We try to set an example to a judiciary which seems afraid to let the people know how they decide. 7
While not pretending to provide more than a scant qualitative evaluation of the impact of the publication of the decisions of a tribunal which has been operating for less than two years, initial research based on the author’s observations and interviews with stakeholders 8 form a basis for some preliminary reflections, which are summarized below.
As indicated in the quote from Mr Tuon Siphann above, the knowledge that awards are published and widely read by colleagues gives the arbitrators an incentive to develop well reasoned and justified awards. 9 Discussions with arbitrators indicate that they feel as though their professional reputation is tied to these published awards in a way which would not be the case if the awards were available only to the parties to the dispute. Arbitrators also feel that criticism of the awards which is generated through their publication allows for a cycle of learning and self reflection which would otherwise be absent. Interestingly a minority of arbitrators also feel as though the sort of reasoned decision which is promoted through the publication of judgments is out of step with Cambodian traditions, overly complicated, confusing to parties and unduly time consuming for arbitrators.
Anecdotal evidence from stakeholders indicates that awards are widely circulated and read, particularly among the union movement, the legal profession and employers. 10 . Employers, unions and government, although (or perhaps because) they are not always happy with the decisions of the Council, agree that the advent of the Council with its online publication of judgments has lead to increased discussion of labour law. In a number of key cases there is also evidence that industry or sector-wide changes in practice are occurring based on principles established in awards of the Council. Thus, for example, a recent decision of the Council relating to the distribution of tips in the hotel industry 11 provoked national hotel associations to conduct a review of its members’ policies with regard to tips and service charges.
This experience of the impact of publication reflects Marc Galanter’s (1985, p.545) oft quoted assertion that law:
usually works not by the exercise of force but by information transfer, by communication of what is expected forbidden or allowable as well as the consequences of acting in certain ways. […] Similarly when we describe ‘bargaining in the shadow of the law,’ we refer to regulation accomplished by the flow of information rather than directly by an authoritative decision. […] In the vast number of instances the application of law is, so to speak, self administered – people regulate their conduct (and judge the conduct of others) on the basis of their knowledge about legal standards, possibilities and constraints… .
Information transfer is arguably even more important for the Arbitration Council than for other tribunals given that the Council has no power to issue a binding award without the agreement of the parties. 12 As unenforceable applications of law and equity to particular factual situations Awards have no innate legal power. Accordingly the authority of the Council rests almost entirely on the credibility of its arbitrators and the respect which is generated through the publication of well reasoned awards. 13
Another interesting aspect of the publication of the Council’s awards relates to the accessibility of the internet to a global audience. At this stage some 90% of the cases referred to the Arbitration Council deal with factories producing garments for the international market. Thus despite the fact that the Council is operating in one of Southeast Asia’s smallest economies, its awards have potential to generate interest outside Cambodia. The international readership of the Council’s decisions includes buyers, such as NIKE and GAP, who source their produce in Cambodia and whose corporate images have proven sensitive to allegations regarding compliance and human rights violations in the developing world, the US Department of Labour, which both funds the Council (through the ILO) and monitors working conditions in Cambodia as part of the US-Cambodia Textile Agreement, as well as unions and consumer organizations, which are concerned with workers’ rights in the developing world. 14 As such the publication of the Council’s awards on the internet have the potential to integrate the jurisdiction into a global public sphere in a way which would be far less effective were the Council to restrict itself to paper publication.
The natural corollary of the fact that Cambodian courts do not publish reasoned judgments is that there is very little, if any, discussion of Cambodian jurisprudence. The publication of awards of the Arbitration Council is starting a new tradition in this respect. A related development is that through the publication of arbitral awards online, many legal academics and law students are for the first time able to read decisions of a tribunal which deal with Cambodian law. This is particularly important in a country where law is largely studied by learning to read statutes and where secondary legal materials such as scholarly articles and commentaries are rare. In these circumstances the publication of awards online opens up new possibilities for the development of a more analytical study of the law.
Though the Council has only been in operation for nine months the importance of access to law to legal learning can already be seen as the Cambodian Bar Association’s Lawyer Training School, with support from the American Bar Association, is planning a clinical legal education program which will incorporate study of the Council’s awards. The study of awards of the Arbitration Council is also being incorporated into texts on Cambodian labour law. 15
In a particularly encouraging development, the wide ranging awareness of arbitral awards, both within Cambodia and among international interests as outlined above, seems to have encouraged the executive to reflect on issues of the separation of powers. 16 Prior to the establishment of the Council and in the absence of an effective court system to deal with labour disputes, the responsibility for interpreting and applying the labour law fell largely to the ministry responsible for labour. One of the effects of having another body publishing its interpretations of law with broad circulation has been to confront this assumption.
In two notable arbitral awards 17 which were delivered and in the first months of the Council’s operation, employers disagreed with the interpretation of the law as set out by the Council. In both cases, employer organizations requested the Ministry to clarify the point of law in question. In both cases the Ministry quite correctly declined to intervene in the matter referring the employers to the courts if they desired a review of any interpretation or application of law contained in an award. It is of course difficult to determine the impact which online distribution of awards had on the Ministry’s decision not to intervene in these cases. Nevertheless, given the general dominance of the executive in the Cambodian legal system, it is tempting to speculate that the public status and wide distribution of the awards in question played a role in securing them against executive intervention.
6. Reproducing the Model
Although the above reflections on the impact of the publication of laws and judgments online are anecdotal, it seems uncontroversial to argue that the Arbitration Council’s efforts in this field represent a worthwhile experiment in the development of Cambodia’s legal/judicial system. Proceding on this assumption this paper will now devote some consideration to the issues which would need to be thought out if one were to attempt a broader project in online access to Cambodian law.
Problem 1: Political Will
One of the reasons why the Arbitration Council publishes its awards is that it is an independent statutory body with backing from organizations like the International Labour Organization and the US Department of Labour which have a strong institutional commitment to the development of the rule of law in Cambodia.
The failure of previous efforts to coordinate the publication of laws and judgments could give reason to doubt that the provision of public access to information is a priority of the Cambodian government. On the other hand recent statements from the Council of Legal and Judicial Reform (RGC, 2003), The Minister for the Council of Ministers (Sok An, 2002) and the Ministry of Commerce (Sok Sipana, undated) indicate gathering momentum for the publication of laws and regulations, if not judicial decisions.
Problem 2: Resources
The Arbitration Council is has a limited jurisdiction (it deals with only collective labour disputes). It also has a donor funding and thus can afford to maintain its publication activities. Sufficient medium term funding for this venture is likely to come from government, stakeholders and donors, however, a system wide approach to publication of legal information, however, would require significant resources on a long-term basis. Past experience shows that the government has not been able to commit funds to publish more than a most basic journal of laws and regulations. Where steps have been taken to do more than this it has been with short term donor funding and it has been difficult to sustain these efforts.
Problem 3: Online v. Print
In a situation of scarce resources as in Cambodia there is a question of whether it is preferable to invest in online or print publication.Arguing against a focus on online publication, one could raise the following issues:
1. The limited scope of coverage : The Internet in Cambodia has limited coverage (major cities and towns only), is slow by international standards (few connections over 128kps, most 64kps or less) and is unaffordable for an average citizen (internet café prices of US$0.50 per hour compare with a factory worker’s salary of US$45 per month).
2. Font problems : Though Unicode exists for Khmer fonts, Worldlii’s experiments in publishing Khmer language materials in html indicate that there are some difficulties in processing large volumes of information in Khmer. These problems may, however, be alleviated as Khmer Unicode is integrated into new computer systems.
3. Higher start-up costs : The use of a new technology require additional inputs for the development of infrastructure, hardware, software, and human resources which is not required for the publication of simple printed compilations of law. These are not quickly recoverable in the same way as is possible through the sale of printed materials.
4. Risks of un-sustainability : One of the risks of choosing more complex/higher technology options for the publication of law is that sufficient capacity may not be built during the period of any initial project funding. Alternatively, if sufficient capacity is built then it may not be possible to retain highly trained staff without donor funding. If this is the case then electronic publication may cease again once project funding stops (as happened with the United National Development Fund (UNDP) and World Bank funded projects noted above). On the other hand, simple print publication may be easier to sustain without ongoing external inputs.
However, one could argue in favor of a focus on online publication, pointing out the following:
1. Consistent with international trends, Internet usage in Cambodia is increasing and prices are falling.
2. The Arbitration Council experience shows that key stakeholders (lawyers, legal academics; government and civil society organizations) are open to electronic distribution of legal information.
3. Other media CDROMs and print can be used in conjunction with online databases without incurring significant extra costs. Sale of these media can also be used for cost recovery.
In considerations about which path to pursue, the author is reminded of a 1999 article where Legal Information Institute Co-Director, Peter Martin, looks at the digitization of the Encyclopedia Britannica as case study for the transformations which were going on in the American legal system at the end of the 20th Century (Martin, 1999).
In the Cambodian context, Martin’s piece invites a reflection on a different case study. Australians traveling to Phnom Penh, a city different from Sydney or Canberra in almost every way, will find at least one familiar sight; telephone booths complete with the old style burnt orange logo, ripped up from Australia in the early 90s and transplanted by Telstra at a time when that corporation had a contract to develop Cambodia’s telecommunications infrastructure. The assumption was clearly that all cities need telephone booths, just like Sydney or Canberra. However, a period of observation of these booths reveals that they are rarely if ever used. Instead, chronically underemployed Cambodian youths sit by the roadside with their mobile phones, renting these to passing trade for 7 cents a minute.
What are the implications of our neglected Telstra booths for the development of legal resources in Cambodia? Rusting they remind us that when it comes to the use of technology you don’t have to learn to walk before you learn to run. Cambodia’s history gives the country a chance to leap frog stages in the development of legal information systems. In this context it would seem unfortunate make significant further investments in a print infrastructure when this is unlikely to be the primary way in which people will want to access legal information, 10 or even 5 years in the future.
7. Conclusion: Next Steps
On the basis of the Cambodian specific experience of the Arbitration Council there is an argument that the publication and distribution of law in electronic form is an appropriate tool to address the question of access to information in a legal system which has operated without adequate access to even the most basic legal information.
Though there are issues to consider with regard to the development of a legal information system which will work in the Cambodian context, the country would appear to be at a juncture whereby there is sufficient political will to commence a dialogue with government, academia and civil society with a view to developing a model for the sustainable provision of legal information via the internet. Ideally, any movements in this direction would be accompanied by a regulation requiring all institutions of state to provide certain identified classes of documents for free electronic distribution.
In imagining the impact that such systems will have on the future of law in Cambodia, it is important to remember that as with the printed word, the internet is not automatically a progressive force. Though access to information is a necessary prerequisite for democratic change the publication of law, whether online or in books, should not alone be expected to drive legal and judicial reform in a system which has been resistant to such transformations for over a decade. To paraphrase the Dalai Lama, ‘freedom, equality and human dignity’ (Lafitte, 1994, p.15) are not technologically determined but are always the result of concerted effort on behalf of those who hold such values to be universal. Thus in Cambodia, as elsewhere in the world, we should anticipate that the development of the rule of law will be dependent not only information sharing, but on the establishment of networks of people who are determined to use that information to promote a legal system which is independent, predicable and just.
Notes and References
1 1 See, for example, Trubeck and Galanter (1974), Merryman (1977), Trubreck (2003) and Gardner (1980).
2 In his list of technologies which have changed the law Martin includes the printing press and technologies of writing, along with widespread literacy and organized libraries. It is interesting to note that the latter items are not strictly speaking technologies but societal developments which arose through human intervention many centuries after the technologies on which they were based were discovered.
3 Though Martin’s focus has been on developed legal systems he has also published on the establishment of Zamlii (Martin 1996), a legal information institute which Cornell helped to establish in Zambia.
4 Of more direct relevance to the case of Cambodia may be experiences of countries like South Africa, Zambia and the Pacific Islands covered by the PacLII network, all of which have taken steps toward the delivery of legal information online in the past few years. Unfortunately from my position in Cambodia, I have been unable to find more than brief descriptive accounts of the issues which the online legal publishers in these countries have faced in the establishment of their services. Given what appears to be a lack of systematic empirical research on the impact of online legal information services, this could be a fruitful area for further study.
5 Thus for example in the recent case of Lee U Meng v. The Bar Association of the Kingdom of Cambodia the Appeals Court closed a hearing to the public at the request of the President of the Bar Association of the Kingdom of Cambodia. This case, heard on 18 March 2004 involved the appeal of law graduate Lee U Meng against the Bar Association's decision to reject his application for admission to practice law and involved no obvious issue of privacy.
6 6 Interview with the author 15 September 2003.
7 7 Interview with the author 19 September 2003.
8 8 Interviews conducted with representatives of unions and employer organizations, as well as lawyers and legal academics.
9 9 Note that this represents a major departure from the practice of Cambodian court judgments which will generally not contain a legal analysis of the case. Rather the judgment will provide a brief statement of facts, a list of provisions on which the decision is based, and orders.
10 10 Statistics from the Arbitration Council website total over 1000 downloads of awards from July 2003 through February 2004. Though meager by international standards, these statistics indicate good levels of use given the novelty of the service and the small audience for such information in Cambodia. At the time of writing only 26 awards had been issued. Note also that the country has less than 250 lawyers, and an industrial workforce estimated at no more than 300,000.
11 11 Cambodiana v. Cambodiana Employees Union, Arbitraiton Council Case #11/03 (< www.arbitrationcouncil.org/page4.html >).
12 12 Awards of the Arbitration Council are binding in the case that neither party lodges an objection to an award within 8 days of its notification or if the parties have agreed to binding arbitration (see Labour Law (1997), Chapter XII and Prakas on the Arbitration Council #338 of 2002).
13 13 It is interesting to note that despite the fact that parties have an eight day period in which to object to awards (in which case they become non-binding) to date over two thrids of cases referred to the Arbitration Council have been resolved successfully, either by implementation of an award or by agreement between the parties (Statistics on outcomes of Arbitration Council cases are cited from ILO (2005).
14 14 See for example coverage of the Council's decisions relating to service charges in the hotel industry at: < http://www.asianfoodworker.net/cambodia/service01.htm > & < http://www.asianlabour.org/archives/cat_cambodia.html > .
15 15 See for example Adler et al (2005).
16 16 Separation of powers and the independence of the judiciary are major issues in a country where executive interventions in the judicial process are commonly reported. For example, after the arrest of a number of senior customs officials in October 2003 national English language newspaper, the Cambodia Daily [15 Oct 2003] quoted the Prime Minister as saying “the court must let these people go because they are innocent”.
17 17 See arbitral awards of the cases of Jacqsintex (#10/03) and Cambodiana (#11/03)
Bibliography
Adler, D et al (2005) Guide to the Cambodian Labour Law for the Garment Industry (ILO)
ILO (2005) Arbitration Council Review
Galanter, M (1985) ‘The Legal Malaise: Or Justice Observed,’ 19 Law & Society Review 537.
Gardner, J (1980) Legal Imperialism: American Lawyers and Foreign Aid in Latin America. Madison: University of Wisconsin Press.
Lafitte, G (1994) ‘Reorientation’ 12 Arena Magazine 13.
Martin, P (2001) SHIP Project Review. Also online available at: < http://ship.mind.meiji.ac.jp >.
Martin, P (1999) ‘The Internet: “Full and Unfettered Access” to Lawsome Implications,’ 26 N. Ky. Rev. 181. An earlier version of this paper is available online at:
< http://www.law.cornell.edu/lii.htm >.
Martin, P (1996) ‘Digital Technology, Access to Legal Information, and Dispute Resolution – Viewed from a Developing Country,’ Paper presented to the NCAIR Conference (22 May 1996), available online at: < http://www.law.cornell.edu/papers/ncr96pwm.htm > .
Merryman, J.H (1977) “Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and Development Movement.” The American Journal of Comparative Law 25: 457-83.
Natsui, T (2001) SHIP Project Review. Also available online at: < http://ship.mind.meiji.ac.jp >.
Royal Government of Cambodia (RGC) (2003), Justice Sector Reform Program.
Rubacki, M. & Sagi, M (2004) Access to Legal and Judicial Information (UNDP).
Sok An (2002), Opening address at the Workshop on Doctrine of Precedents, Separation of Power, Checks and Balances . Also available online at:
< http://www.camnet.com.kh/ocm/government/government122.htm >.
Sok Siphanna (Undated) Legal and Judicial Reform Strategy for Cambodia . Available online at:
< http://www.moc.gov.kh/laws_regulation/legal_reform_strategy-fnal_draft.htm >.
Trubek, D.M. and Galanter, M (1974) “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development” Wisconsin Law Review : 1062-1101.
Trubreck, D.M (2003) “The ‘Rule of Law’ in Development Assistance: Past, Present, and Future”. Paper given at Conference on Law and Economic Development: Critiques and Beyond. Harvard Law School, Cambridge MA, April 12-13, 2003.
