Some Case Preparation Tips
Effective case preparation is very important to assist the Arbitration Council (AC)’s arbitrators to make a just and reason-based decision in accordance with law. It is during the open and supportive forum of the hearing that parties have the opportunity to have lively and interactive communication between each other and with the arbitrators, so being prepared for these discussions is extremely useful. There are represented and unrepresented parties before the AC, however, either type of the parties need to be well-prepared in order to make their cases before the AC. Good case preparation will assist parties to make a good case and good argument before the arbitrators.
Below are the tips for successful case preparation shared by the Legal Services Department (LSD), whose main role is to manage the provision of arbitration services, provide legal support to the arbitrators of the AC:
Q1. What is case preparation?
A1. Refer to the steps which you need to take to prepare your case for proceedings to settle disputes at the AC; having good knowledge of the facts of your dispute, and supporting those facts with evidence, and having an understanding of the related legal provisions will make good case preparation.
Q2. How it is important?
A2. It is very necessary as it is the best opportunity for the parties to present all their arguments and information to the Arbitrators. The Arbitration Panel, as the decision makers will have to consider any allegations made and statements raised by each party into account in order to make the decision in favor of any sides. Therefore it is important to be prepared to give your side of the story so the Arbitrators have all the information necessary to make their decision.
Q3. What will make a good case preparation?
A3. Firstly, you should consult the Labour Law (1997) and regulations, including the Prakas on the Arbitration Council No. 099 dated 21 April 2004. You should also read other AC’s publications including: The Arbitration Council: Questions and Answers and, The Arbitration Council and the Process for Labour Dispute Resolution in Cambodia. These guides are available on our website, and are also available in hardcopy from the Arbitration Council office in Tuol Kork.
In addition to reading these documents, you should also consider the following:
If you have someone representing you before the Arbitration Panel like a lawyer or another representative, it is advisable to authorise them in the form of written authorization letter for them to represent you and resolve the dispute on your behalf. The Arbitration Council seeks to provide fair and reasoned decisions; and they know their decisions can affect many workers and employers, therefore it is important that your representative understands the significance and impact of their role as well as having a good knowledge of the facts and evidence about the dispute before the hearing.
As a party to the dispute, you should be able to describe the relevant facts to support the demand in your case. For example, if there is a demand for reinstatement of a worker, you should be able to describe the employment relationship that worker has with the company, how long he/she been working at the company, what position the person has held in the company, what were the facts surrounding the end of the employment contract, who else can speak about what happened… etc.
Your facts and application of the facts to the law you present at the hearing can be disputed by other party and you should be ready to argue for your position. The Arbitrators will hear arguments from both sides and make a determination on which of the argument is more convincing.
Evidence is additional material to support your arguments and prove what the real facts in a case are. In some cases, facts are disputed (for example, parties do not agree on what really happened); in those cases, evidence can help resolve the disputed facts. The AC will decide if the evidence is acceptable or not. Both parties are also encouraged to inform the Arbitration Panel of any agreed facts and or undisputed evidence (for example all parties might agree that an employment contract presented as evidence, is the contract that both parties signed). Evidence includes written documents that support the argument you are trying to make, such as a contract or a written testimony from a witness, or a video capturing what really happens in a case.
Besides the above-mentioned evidence type, there can also be testimony by witnesses who see or hear what happened in a case. There can be witnesses from both sides who first are asked to swear that their testimony is true and they will be responsible before the law if it is not. Then, they will give their evidence orally in the hearing. The AC and both sides of the case have the opportunity to question the witness, both in the direct and cross-examination.
Q4. Is it a must to prepare for the case before the AC?
A4. No, it is not compulsory but remember that you are more likely to be able to make a good argument to succeed in your case than a party who is less prepared or not prepared at all. The arbitrators will make a just and reasoned decision based on law and the merits of the case – the more information they have to consider the better the outcome for all parties.