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Canadian Lawyers Making a Difference in Cambodia 1/14/2016

By Louise Barrington, John Claydon and Chuck Gastle[i]

 
 
Rathana works for the Cambodian Council of Ministers on property disputes and land reform, a vital contribution to alleviating poverty and encouraging respect for the rule of law in a country that is one of the poorest and most corrupt in the world.  As the Kingdom recovers from the many years of civil strife culminating in the horrors of the Pol Pot genocide[ii], over half of the Cambodian people are under 25 years old; many adults missed out on education while universities were closed.  Remote countryside areas lack basic infrastructure and services.  Land grabs and corruption are everyday facts of life.  In a country of nearly 15 million, there are only about 800 lawyers.  Some law professors have dubious credentials. Those who are qualified are poorly paid and over-worked, mostly working at least two jobs to make ends meet.  The rule of law is a faraway concept from the lives of most people.[iii]

In 2007 Rathana was one of a couple of girls to complete high school in her small southern village, while helping her family farm their two-and-a-half acre plot of land. Her future would likely have entailed marriage to a local villager and, if she was lucky, work as a teacher in a local school.  Less fortunate girls face long hours of labour on family farms, in Korean sweatshops, or in the clandestine Asian sex trade. 
Instead, Rathana was the first person from her village to attend university, entering law school at the Royal University for Law and Economics in Phnom Penh.  In her four years at RULE, she learned English and obtained degrees in both Cambodian and common law.   Rathana represented Cambodia at the Jessup International Law Moot and wrote a thesis on the International Criminal Court.  After graduation she interned at the Ministry of Justice to take a post as a valued Ministry official.  She can provide financial support for her family while contributing to Cambodia’s development under the rule of law.  In 2015 Rathana received a full scholarship to Lund University in Sweden, and is currently studying for a Master of Laws degree in international human rights.

Cambodian Legal Education for Women (CLEW)

Rathana was one of the first of 59 young women from rural Cambodia to benefit from the financial support of Bennett Gastle, a three-lawyer Toronto law firm.  In 2008 the firm started Cambodian Legal Education for Women, supporting five entrants to first year law studies.  CLEW now typically supports more than 20 students each year. Bennett Gastle partners visit Cambodia several times each year to identify promising young women for CLEW and persuade their families to allow them to attend RULE.  The annual cost of the program is approximately Cdn$50,000, including tuition, living expenses and administration. Bennett Gastle covers all administrative costs and makes up any shortfall in overall funding. One hundred per cent of CLEW’s funds – raised partly from outside donations and annual fund-raising events - goes to cover the students’ tuition and living expenses.
The 29 graduates of CLEW have gone on to work in both the public and private sectors. Their positions include work with an NGO and in the Ministry of Women’s Affairs coordinating resources for abused women,, helping farmers to regularize ownership of their land, liaising with the United Nations in matters affecting Cambodia’s indigenous populations, and working for multinational corporations operating in Cambodia.
In September and October, a small team of educators visited Phnom Penh for the second year. Teachers at RULE, eager to find a coach for their Vis East International Commercial Arbitration Moot team in 2014, had asked for advice from Chuck Gastle, who put them in touch with the Vis East Moot Foundation, the organisation founded by Canadian lawyer Louise Barrington to administer the annual Vis East Moot. 

The Vis Moots

Most people in the community of international arbitration are aware of the Willem C Vis International Commercial Arbitration Moot in Vienna, and its sister competition, the Vis East in Hong Kong.  Anyone who has participated in a Vis, either competing or judging as a professional, can testify to its enormous benefits.  Vis participants get to put their law school theory into action as they concentrate on a realistic legal problem and prepare to argue on behalf of first one side and then the other, on both procedural and substantive issues.  The Moots complement law school education with the opportunity to practice analytical reading and issue spotting, drafting, and oral advocacy.  Mooties also acquire great social skills, learning to work as a team and to assume responsibility for their own roles.
Originally envisaged by its creators as “an educational experience in the form of a competition”, the Vis has evolved over the decades.  The Moot’s growing prestige has made it more competitive, with teams spend countless hours preparing, practicing and attending pre-moot practice rounds.  By the time they arrive in Vienna or Hong Kong, most students will have argued the same case up to 50 times, visiting at least one or perhaps several pre-Moot competitions on their way.  They arrive at the Moot as polished and confident oralists, competing to win.  They are indeed a formidable group.
Other schools however, are not so lucky.  In Cambodia, aside from the inevitable financial issues, arbitration expertise is simply not available.  The country needs experienced arbitration counsel and judges who appreciate it.  Without local expertise, most law schools do not teach arbitration and lack even the most basic international law or arbitration texts.
Cambodia’s dismal reputation is hardly attractive to a foreign commercial partner seeking assurance that its legal rights will be respected in Cambodia.  Facing the risk that their legal rights are unenforceable, foreign business operators either steer clear of Cambodia, or charge a premium for doing business there.  The weakness of the rule of law hinders Cambodian economic growth, development and prosperity.

International arbitration as a catalyst for change

International arbitration offers foreign and local business operators an alternative to Cambodia’s limping legal system, independent from traditional legal channels and open to the scrutiny of the international community.   While still in its infancy, arbitration has the potential to be a powerful factor in developing the rule of law in Cambodia, bringing internationally recognized instruction and standards to the Kingdom.     
Cambodia became a member of the New York Convention in 1960, but only recently has arbitration come into its commercial relations. With minimal foreign involvement in the Kingdom there were few arbitration clauses, and even fewer disputes.  Model Law-based arbitration legislation came into force in 2006, but thus far there has been little opportunity to use it.  Realising the potential of arbitration to encourage and reassure foreign investors, in 2010 the government legislated the creation of the Cambodian National Arbitration Centre, which opened its doors in June of 2015.  The first judicial conference on arbitration took place in Cambodia this year, and a second is planned for January of 2016.  Although there is not yet record of a successful enforcement by Cambodian courts of an award under the New York Convention, there are two cases currently in progress, and Cambodia did successfully resist one claim from a foreign investor under a bilateral investment treaty.  With a couple of notable exceptions, there is no international “arbitration community” in Cambodia, but a few lawyers have acted in these few cases.  And, despite the inhospitable legal environment, courageous foreign investors are coming into the country. 
With this in mind, and prompted by the request from RULE, the Vis East Moot Foundation located its first Capacity Building Programme in Phnom Penh. The goal was not only to provide the knowledge and skills necessary for students to participate successfully in the Vis Moot competition, but also to create a sustainable framework and resource base in Cambodia for future training of international lawyers and business executives to conduct international arbitrations on behalf of both foreign and Cambodian parties.
Students from four Phnom Penh schools joined the first CBP. Most of them had had no prior access to arbitration experts, books or internet resources.  For those studying law only in their native Khmer, language was an additional challenge.  But students and coaches and trainers worked determinedly together to make the initiative a wonderful success. 
The ten-day 75-hour programme began with four days of “boot camp” on international law offered by three Canadian lawyers[iv].  Then came a two-day segment on arbitration practice which was also open to lawyers and to others with legal training or substantial international business experience and an interest in international arbitration. Vis Moot coaches then worked intensively with the students as the Cambodian professors looked on and assisted with tutorials. 
Twenty-eight students “survived” the grueling program.  Several went on to participate in the Vis East Moot in March. Back in Cambodia in 2015 for the second CBP, eight “survivors” organized everything from classroom arrangements to catering, registration, accounting, taking attendance, printing, and even the end-of-course party.  A couple of alumni went even further, delivering an impressive 3-hour workshop about on-line research techniques and resources for working with the Convention on the International Sale of Goods, earning the applause and admiration of this year’s cohort. 
Mooties Chun Lei Zhao of China and Dany Channraksmeychhoukroth of Cambodia remained in Phnom Penh until December to coach, organize and mentor this year’s participants.  Lawyers from Hong Kong and India have now volunteered to help with long distance coaching.  In March of 2016 two Cambodian teams – including students from CLEW -  will attend the Vis East Moot.  Other law schools have indicated their interest in sending students if the programme can be offered next year. 

And what comes next?

CLEW will run indefinitely, as long as the need exists.  The Vis project is to continue for another three to five years, until there are enough Mooties established in the Cambodian legal community to continue the work independently.  Scores of newly minted enthusiasts are eager to promote international arbitration and the rule of law in their country.    Many are now poised to benefit from international scholarships to European, North American and Asian law schools. Returning graduates will be perfectly placed to transform the Cambodian arbitration community, to continue developing the rule of law in the Kingdom, to help Cambodia earn the respect of the international legal community.
Rathana’s success story, made possible by CLEW, and the success of the Vis East Moot Foundation project are striking examples of how individuals or small organizations with expertise, energy, and commitment can work together to empower young people to alleviate poverty, promote the rule of law and advance economic development.
For more information, see www.clewcanada.ca and www.cisgmoot.org
 

[i] Louise Barrington, International Arbitrator  associated with ADR Chambers Ltd in Toronto an founder-director of Vis East Moot in Hong Kong.  John Claydon, former international law professor at Queen’s University and knowledge management specialist based in Toronto.  Chuck Gastle, partner in the Toronto litigation firm of Bennett Gastle.
[ii] Between 1975 and 1978 the Khmer Rouge exterminated over a quarter of the Cambodian population, with estimates ranging between 2 and 3 million of its people imprisoned, tortured and murdered.
[iii] Cambodia scored dismally in the 2015 rule of law ranking by the World Justice Project, at 99th of 102 countries and the worst in southeast Asia.
[iv] Louise Barrington, John Claydon and Chuck Gastle

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