2019 28 October

Cambodia Legal Update November 2019

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Draft Law on E-Commerce, adopted by the National Assembly on 08 October 2019.

The Draft Law on E-Commerce (“Draft Law”) was adopted by the National Assembly on 08 October 2019 and is currently subject to review by the Senate. The Draft Law aims to govern electronic commerce in Cambodia, provide legal certainty in commercial and civil transactions by electronic system, and promote public confidence in using electronic communication. However, the Draft Law does not apply to  activities, documents and transactions related to: (i)  the formation or enforcement of powers of attorney; (ii) the formation or execution of a testament, codicil or other matters relating to succession; (iii) any contract for the sale, transfer or disposition of rights to immovable property or any interests in such immovable property; (iv) the transfer of immovable property or any interests relating to the immovable property; and (v) any other exceptions as provided for by a sub-decree.

The Draft Law consist of 67 Articles and it provides legal recognition on the validity of electronic communications and signatures, supports the use of electronic communications in contract formation and as evidence, sets requirements on electronic records and signatures, imposes liabilities on intermediaries and electronic commerce service providers, and lays the foundation for electronic filing with governmental institutions.

The Draft Law requires an electronic payment business, an intermediary, and an electronic commerce service provider to obtain approvals/licenses from relevant authorities. The Draft Law defines the following terms as:

(i) an electronic commerce service provider means a person who uses electronic means to supply goods and/or services, save for insurance establishment;

(ii) an intermediary means a person who provides sending, receiving, transmitting or storing services, either on a temporary or permanent basis, of the electronic communication or provides other services relating to the electronic communication; and

(iii) an electronic payment instrument means any card/payment card or any payment instrument which is in electronic form and has the function for making a cash payment.   

An intermediary and an electronic commerce service provider must obtain (1) a permission or license for operating an electronic business from the Ministry of Commerce and (2) an online service certificate from the Ministry of Posts and Telecommunications under the Article 26. Further, any person operating a payment system, providing payment services, issuing electronic payment instruments or providing electronic means of payment, or conducting any other operations considered to be an electronic payment to the public” has to obtain an approval or a license from the National Bank of Cambodia according to the Article 46.

There are also consumer protection provisions under the Draft Law but they are limited to electronic commerce, given that the Draft Law on Consumer Protection, which was also adopted by the National Assembly on 08 October 2019, will be the statute providing protection for consumers in general. The Draft Law imposes disclosure and data protection requirements, bans counterfeit electronic system and malicious code, and requires the options for customers to reject unsolicited commercial communications to be provided.

It is expected that there will be a number of subordinating regulations following the promulgation of the Draft Law to provide further clarity and to enforce certain provisions of the Draft Law.

TRUSTS

SERVICE FEES FOR THE REGISTRATION OF TRUSTS, Prakas № 854 of the Ministry of Economy and Finance (“MEF”), 30 September 2019.

The purpose of this Prakas is to determine the level of fees for the registration of trusts in Cambodia. The registration and renewal fees include administrative and annual certification fees, the respective amounts for which are to be determined by the type and the value of the trust to be registered.

This Prakas outlines the service fees applicable to four types of trust: commercial, public, social, and individual trusts. The value of each must be assessed by an expert in the relevant field who is recognized and accredited by the relevant regulators in Cambodia.

The Certificate of Trust Registration is valid for the duration determined in the trust document. However, the validity of the Certificate of Trust Registration is limited to five years if the trust document itself has a validity period of five years or more.

This Prakas also sets out the fees for prior-approval of trust registration and amendments to the trust documents and their registration documents for any change to the purposes of the trust or any other changes to the trust documents or their registration documents. These fees are KHR 5 million (approximately USD 1,250).


The information provided here is for information purposes only and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situation.


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