07 Jan 2024
Djamel El Akra provides an overview of the institutional commercial mediation services in the Kingdom of Cambodia.
Modelled on the 1985 version of the UNCITRAL Model Law on International Commercial Arbitration (Model Law), the Law on Commercial Arbitration of Cambodia (the LCA) was promulgated on 5 May 2006, and its implementing regulations constitute the main statutory legal framework governing commercial arbitration in Cambodia. The LCA established a specialised dispute resolution centre - the National Commercial Arbitration Centre (NCAC). On 18 March 2023, the NCAC approved the Rules on Mediation (Mediation Rules) and the Code of Conduct for Mediators. In this article, we will focus on provisions that may be construed as facilitating the settlement of disputes through the parties’ agreement.
Institutional commercial mediation framework
The Mediation Rules
The Mediation Rules provide the institutional framework for conducting mediation under NCAC administration. The Mediation Rules regulate the mediation process, including the commencement of a mediation, the appointment or replacement of a mediator, the duties of the mediator, the conduct of mediation, and the termination of mediation. The definitions of “mediator” and “mediation” are in line with Article 2 (3) of the Singapore Convention on Mediation. The “Mediation Clause” means “a contractual provision requiring parties to resort to mediation to resolve their disputes. [It] may take the form of an electronic record”.
The NCAC Mediation Rules are (Art. 2.1). “Commercial disputes” are defined by the Mediation Rules in similar terms as in the LCA. The Mediation Rules do not explicitly exclude other types of disputes, Nonetheless, it must be read in the context of the need to comply with the national legal framework (Art. 2.4).
The Mediation Rules stipulate that “the NCAC is the only body authorised to administer mediation proceedings under the Rules” (Art. 2.5) and that “the Rules shall apply to all mediations administered by NCAC” (Art. 2.2).
The parties may resort to mediation “at any time” regardless of any other proceedings already initiated, including arbitration. Such provision is in line with the UNCITRAL Mediation Rules which, read in conjunction with the LCA and the NCAC Arbitration Rules 2021, open the door to the parties agreeing on resolving their commercial dispute through Arbitration-Mediation-Arbitration.
The Code of Conduct for Mediators
The Code of Conduct for Mediators applies to “all persons appointed by the General Secretariat to act as Mediators in Mediation administered by NCAC, including those not registered in NCAC’s list of mediators” (Article I).
The Code of Conduct indirectly addresses aspects of the Arb-Med-Arb procedure, which are impartiality, independence, and the prevention of conflicts of interest, as well as the conditions for termination of the mediation by the mediator. Subsequently, a non-exhaustive list of behaviours is provided concerning circumstances that may raise a reasonable doubt as to the mediator’s independence.
Prospects for use of the Commercial Mediation Services
Mediation services as a stand-alone mechanism
The ultimate purpose of the relevant legislation is to establish a framework for parties to resolve their commercial disputes in a way that is beneficial to the development of the Cambodian economy. The LCA may not explicitly deal with resolving commercial disputes through mediation but, at the same time, it does not prohibit any institution from offering services that contribute to accomplishing such a purpose.
Mediation services as a necessary infrastructure for the administration of arbitration cases
Mediation services may also be considered as part of the “necessary infrastructure and rules for the administration of arbitration cases in the Kingdom of Cambodia” (LCA, Art. 10 (2)). Under such an interpretation, mediation services could still be developed as a support mechanism to arbitration.
Article 35.3. (Exploring amicable resolution) and Article 45 of the NCAC Arbitration Rules 2021 are in line with Articles 38 and 39 of the LCA, which stipulate that if the parties reach a settlement agreement as per the provisions and rules, then the consent award shall comply with the form and content requirements stipulated in Article 39 of the LCA and Article 49 of the NCAC Arbitration Rules 2021.
In acting as facilitators, the members of the arbitral tribunal may compromise their ability to determine (and to be seen to determine) the parties’ dispute impartially if the parties do not reach a settlement. Article 6.5 of the Code of Conduct for Arbitrators cautions about the necessity of the express agreement by the parties in this regard.
Conclusion
Cambodia (as per Thailand, Vietnam, and Indonesia) is not a signatory to the Singapore Convention on Mediation, unlike other ASEAN (Association of Southeast Asian Nations) states including Singapore, Malaysia, Brunei, Philippines, Laos and Myanmar. Of all these ASEAN states, only Singapore has ratified the Singapore Convention. To develop a comprehensive regime on mediation, Cambodia may consider adopting the UNCITRAL Model Law on Mediation and the Singapore Convention.
About the author: Djamel El Akra is registered on the panel of arbitrators of several institutions, including the National Commercial Arbitration Centre (NCAC) in Cambodia, where he is a member of the Education and Training Committee, and the Thailand Arbitration Center (THAC). Djamel is a registered mediator with the Asian International Arbitration Center (AIAC). He is an Accredited Mediator and an International Mediation Institute (IMI) and Singapore International Mediation Institute (SIMI) certified mediator. He holds a Master's Degree in International Business Law (Paris 2), in Japanese Studies (Lille 3), and a University Diploma in Chinese Mandarin. His doctoral studies cover public-private partnerships and dispute resolution mechanisms. Djamel has lectured on international law programmess for over 12 years.