The Establishment of Commercial Court

Transcription

1 Dissemination Seminar The Establishment of Commercial Court By: Chea Samnang Cambodiana Hotel, Phnom Penh 8 th December 2003 Objectives of the Study Assessing Cambodia s Legal and Judicial Systems Trying to answer these following questions: 1. Why Commercial Court? 2. What Types of Commercial Court? 3. When will Commercial Court be established? Highlighting some key issues and challenges related to the establishment of the Commercial Court in Cambodia.

2 History of Legal and Judicial System Cambodia legal system today is a result of many origins. Before the French protectorate, the legal system was based on customary rules. From the French protectorate to the 1960s, modern French legislations were put in practice. During the Khmer Rouge period, legal system was completely overhauled. After the Paris Peace Accord, a new constitution was promulgated in 1993 and a new legal and judicial systems were developed. Cambodia s Judicial System King, Head of State National Assembly Government Judiciary Legislation Commission Ministry of Justice Supreme Council of Magistracy Constitutional Council Supreme Court Appeal Court Provincial, Municipals Specialised Court Military Court Labour Court Commercial Court Administration Court Source: EIC, Compiled from various sources

3 Cambodia s Judicial System King, Head of State National Assembly Government Judiciary Legislation Commission Ministry of Justice Supreme Council of Magistracy Constitutional Council Supreme Court Appeal Court Provincial, Municipals Specialised Court Military Court Labour Court Commercial Court Administration Court Source: EIC, Compiled from various sources Cambodia s Judicial System Ministry of Justice Monitoring the execution of judgments and providing guidelines to judges on application of laws and regulations. Assuring uniformity and consistency in the drafting laws, and their implementation. Appointing prosecutors Supreme Council of Magistracy Composing of nine members headed by the King Ensuring the independency of the judicial system. Appointing judges

4 Cambodia s Judicial System Supreme Court Highest level of court whose jurisdiction covers the whole territory of the Kingdom. It consists of two chambers: civil and social chamber, and penal chamber Appeal Court Covers all cases appealed from the court of first instance. In principle, the Appeal Court should be composed of specialised sections dealing exclusively with cases of particular type (civil, criminal, administrative, and commercial) Cambodia s Judicial System Court of first instance Provincial and municipal court : currently covers all cases in its own territory Military court: covers the national security and military cases Specialised court : Commercial Court, Labour Court, and Administrative Court to be established Other Fora Royal hearing Arbitration

5 Why Commercial Court? WTO s membership commitment Would stimulate the economy by providing better legal certainty in business transactions Could provide a new image of court Would be more efficient and effective What Types of Commercial Court? The 1995 draft law on Reform and the Organisation of Cambodian Tribunal : Specialised chamber Minimum amount for dispute is 10 million riels The draft law of August 2003: Separate, Specialised and Mobile court Same level as the court of first instance Covers all business cases, civil and criminal No minimum amount of dispute

6 Lessons learned from abroad Thai Case Two separated Commercial Courts: Intellectual Property and International Trade Court (IP&IT), 1997 Bankruptcy Court, 1999 Canadian Case The notion of mobile court has emerged from the successful experience of Canadian commercial court. Timetable for Commercial Court End of 2001, the preparation of law on Commercial Court was listed as first priority August 2003, first draft law was prepared by the Ministry of Commerce, in collaboration with the Ministry of Justice December 2003, the draft law is to be submitted to the Council of Ministers March 2004, the draft law will be sent to the Parliament, and expected to be passed by December 2004 June 2005, the Commercial Court will be established, if all supported laws are promulgated

7 Key Issues Independence Efficiency and effectiveness Human Resources and Finance Key Issue no 1: Independence Heavy influence from Executive branch Appointment of associate judges by IMC (Inter( Inter-Ministerial Commission) Rules governing judges and prosecutors, and the functioning of the judiciary are not clear

8 Box 2: Composition of Inter-Ministerial Commission (IMC) 1. Representative of Ministry of Commerce, 2. Representative of Ministry of Finance, 3. Representative of Ministry of Justice, 4. Representative of National Bank of Cambodia, 5. Representative of the Phnom Penh Chamber of Commerce. Key Issue no 2: Efficiency and Effectiveness The current jurisdiction of the court is too wide Experience learned from Thailand, there is a separation between IT&IP and Bankruptcy court No minimum amount for dispute Mobile court will generate more substantial cost Each judge in the panel must give reasons for their own judgment

9 Other Key Issues Human Resource Lacking both quantity and quality of judges Royal School of Magistrate could play a very important role Financing Insignificant budget for the Ministry of Justice (0.3 percent of total budget in 2002) Low Salary (US$500 for judges and less than US$30 for other staffs) Concluding Remarks Royal School of Magistrate is absolutely necessary to response to the urgent need, compulsory to have on- going professional development programme Rethinking about the judicial independence Should the incoming Cambodia s Commercial Court be a Specialised Chamber, or a Separated Commercial Court as adopted by the current draft law?. Should each judge have their own decision with reasons, or should all judges in a panel deliver one single decision with reasons? Should the minimum amount of dispute be fixed for Commercial Court, and strengthening the arbitration mechanism? Should the Commercial Court cover Criminal Case?

10 Thank you for your attention Justice without force is impotent, force without justice is tyranny Blaise Pascal ( ), French philosopher, mathematician.