IP Protection in Cambodia (Update 2025)

Posted on April 1, 2025 by admin

Intellectual Property (“IP”) is a vital asset for businesses around the world as well as in Cambodia as it plays a crucial role in fostering economic growth, innovation, and attracting foreign investment. Strong IP protection is essential for encouraging local and international businesses to invest in research and development, knowing that their creations and innovations will be safeguarded. This protection provides an incentive for inventors, creators, and entrepreneurs to invest time, resources, and effort into developing new products, technologies, and creative works.

IP Protection in Cambodia is governed by a comprehensive legal framework aimed at safeguarding the rights of creators and innovators. Such a legal framework includes but is not limited to the Law Concerning Marks, Trade Names and Acts of Unfair Competition of 2002, the Law on Patents, Utility Model Certificates, and Industrial Designs of 2003, and the Law on Copyright and Related Rights of 2003. These laws provide robust protection for trademarks, copyrights, patents, utility models, and industrial designs, fostering an environment conducive to innovation and creativity. Furthermore, the country has made significant strides in aligning its intellectual property laws with international standards, such as joining the World Intellectual Property Organization (“WIPO”) and acceding to various international treaties. At present, Cambodia is a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), and the Madrid Protocol Concerning International Registration of Marks.

Despite ongoing legal development, Cambodia has already established relatively efficient procedures for registering and enforcing important IP rights.

II. TRADEMARK

Trademarks are essential for businesses to protect their brand identity and prevent others from using identical, or confusingly similar marks to identify their goods and services. Indeed, registering and enforcing one’s trademarks is crucial to differentiating one’s products from those of competitors. While unregistered trade names receive a degree of protection, proper registration is vital for any successful business.

Trademarks and related rights are principally protected under the Law on Marks, Trade Names, and Acts of Unfair Competition (the “Trademark Law”), adopted on January 08, 2002. The Law sets out the requirements for registering a trademark and provides for a range of protection for trademark owners. Under the Trademark Law, a mark cannot be registered with the Department of Intellectual Property Rights of the Ministry of Commerce of Cambodia (the “DIP-MOC”) if it falls under any of the following categories:

If it is incapable of distinguishing the goods or services of one enterprise from those of another enterprise;
If it is contrary to public order or morality or good custom;
If it is likely to mislead the public or trade circles, regarding the geographical origin of the goods or services concerned or their nature or characteristics;
If it is identical with, or is an imitation of or contains as an element, an armorial bearing, flag and other emblems, a name or abbreviation or initials of the name of, or official sign or hallmark adopted by any State, Intergovernmental Organization or Organization created by an international convention unless authorized by the competent authority of that State or Organization;
If it is identical with, or confusingly similar to, or constitutes a translation of, a mark or trade name that is well-known in the Kingdom of Cambodia for identical or similar goods or services of another enterprise;
If it is identical with, or confusingly similar to, or constitutes a translation of a mark or trade name that is well-known and registered in the Kingdom of Cambodia for goods or services that are not identical or similar to those in respect of which registration is applied for, provided that use of the mark in relation to those goods or services would indicate a connection between those goods and services and the owner of the well-known mark that the interests of the owner of the well-known mark are likely to be damaged by such use; or
If it is identical with a mark belonging to a different proprietor and already on the Register, or with an earlier filing or priority date, in respect of the same goods or services or closely related goods or services, or if it so nearly resembles such a mark as to be likely to deceive or cause confusion.

Trademark Registration is valid for ten (10) years and renewable for successive ten-year terms, with no limit on the number of renewals. As of now, renewal applications will not be undergone re-examination. In the sixth (6^th) year of the initial term or each renewal term, the mark owner is also required to submit an affidavit of use or non-use (the “Affidavit”). If the owner of the registered mark fails to file the Affidavit within the prescribed timeline, the registered mark shall be removed from the registry. In accordance with a Prakas by the Ministry of Commerce (“MOC”) on August 11, 2023, the Ministry of Commerce encouraged mark owners to complete the requirement to file the Affidavit and warned that registered marks would be withdrawn from the Registry.[1]

When a trademark is duly registered in Cambodia, the trademark owner shall be entitled to the enjoyment of their exclusive rights over their trademark. This prohibits a third party from exploiting the registered mark and/or a confusingly similar or identical mark in the commercial context. In the event of exploitation, the trademark owner has the right to prevent others from infringing on their mark. Prior to taking serious measures against the infringer, the mark owner is encouraged to submit a request for a dispute settlement hearing with the DIP-MOC. This hearing will allow the trademark owner and the infringer to submit their arguments and reasons to the DIP-MOC. At the end of the hearing, the DIP-MOC will issue a minute of the meeting for both the mark owner and the infringer. Even though the minute of the meeting is not enforceable by either party, it serves as strong evidence for the mark owner or the infringer to proceed with further action.

The main enforcement options for the trademark owner are:

Filing a complaint with the Anti-Economic Crime Police for confiscation of the counterfeit products.
Filing a lawsuit in a civil court for damages and/or specific relief,
Requesting the customs authorities to suspend the clearance of imported infringing goods, and
Seeking criminal prosecution and/or fines.

The Trademark Law also provides the possibility to oppose, cancel, and/or invalidate the marks of third parties. This measure can be crucial to prevent others from registering marks that are either identical or confusingly similar to one’s own. By utilizing these enforcement options, trademark owners can protect their rights and deter others from unauthorized use or infringement.

Notably, under the Paris Convention, applicants who have registered a mark in another member country can claim priority in registering that mark in Cambodia. Having become the 95^th member of the Madrid System in 2015, Cambodia can now be either the designated state in an international trademark application or the state of origin when applying for a trademark in multiple countries. Since becoming a signatory to the Madrid Protocol, there has been a significant increase in trademark applications.

Furthermore, it is now possible for both local and foreign Certification Marks to be registered in Cambodia[2]. To ease the registration process as well as encourage applicants to register their trademarks, Cambodia has made it possible for applicants to register their trademark(s) via the online system[3].

Additional Update

The DIP-MOC has recently adjusted the document requirements for certain trademark recordal procedures, including but not limited to the recordal of a change of name or address of the trademark owner, the recordal of trademark assignments, etc. Therefore, some of the original documents, such as registration/renewal certificates and other recordals, will no longer be required for submission and copies of the documents are now sufficient.

In September 2024, the Department of Custom and Excise also launched the Intellectual Property Rights Recordation System, an online-filing system for intellectual property rights registration and recordal of exclusive distributorship. This provides the holders of intellectual property rights an additional protection at the borders.

III. PATENTS & UTILITY MODELS

Patents and Utility Models protect the technical aspects of inventions, and are governed by the Law on Patents, Utility Models, and Industrial Designs (the “Patent Law”) adopted on November 28, 2002.

Under the Patent Law, a patent is defined as the title granted to protect an idea of an inventor that permits in practice the solution to a specific problem in the field of technology, and it may be, or may relate to, a product or a process (“Patent”). At the same time, a utility model certificate is a certificate that is granted for the protection of a utility model, which is any invention that is new and industrially applicable and may be, or may relate to, a product or process (“Utility Model Certificate”).

To obtain a Grant of Patent or Utility Model Certificate, the invention must meet the criteria set out under the Patent Law. For a patent, it needs to be new, involve an inventive step, and be industrially applicable. Whereas, for a utility model, there is no requirement for an inventive step. This is the key difference between the patent and utility model; while a utility model can be obvious, a patentable invention must possess a non-obvious element.

Furthermore, not all inventions are eligible for protection. The Patent Law excludes protection for certain types of inventions, including:

discoveries, scientific theories, and mathematical methods;
schemes, rules, or methods for doing business, performing purely mental acts, or playing games;
methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body, excluding products for use in any of those methods;
plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals;
plant varieties.

Under the Patent Law, pharmaceutical products are currently excluded from patent protection in Cambodia until 2033, unless legal changes occur before that date. The Patent Law also excludes inventions that are not socially “useful”, such as illegal narcotics, as they would harm public health or morality.

Both patent and utility model applications are filed with the Department of Industrial Property of the Ministry of Industry, Science, Technology, and Innovation (the “DIP-MISTI”). In exchange for a patent or a utility model, the inventor must be required to disclose the invention to the public. This promotes the growth of public knowledge, which becomes accessible to everyone once the protection period expires. Patents last for a non-renewable 20-year term from the date of filing, while utility models have a shorter validity period of 7 years, and cannot be renewed. As utility models are considered less inventive than patented inventions, they are granted a shorter term of exclusivity. Owners of either are required to pay an annual maintenance fee to maintain and keep the registration valid. Late filing of annuity is now subject to penalties per day.

The Patent owner has the right to exclude others from making, importing, stocking, offering for sale, or using infringing products. Both licensees and the patent owner have the right to bring a civil suit for monetary damages and injunctive relief. Cambodian law does not, however, provide procedures for suspending customs clearance of the infringing goods. Moreover, patent rights are not absolute and may be challenged or limited under certain circumstances. Any interested party can request to invalidate a patent or industrial design registration if the requirements of the applicable law are not fulfilled. Therefore, Patent owners shall be aware that their rights may be subject to revocation and abridgment by MISTI. In Cambodia, MISTI has also the right to exploit a patented invention itself or grant permission to a third party to do so, to promote a public interest after the expiry of the 20-year protection period (e.g. national defense, nutrition, health, and development). In case of patent infringement, the patent owner may institute court proceedings against the infringer.

First Memorandum of Understanding on the Co-operation in Industrial Property (“MOU”) between the Ministry of Industry and Handicraft (currently MISTI) and the Intellectual Property Office of Singapore (“IPOS”) dated January 20, 2015, and valid until January 14, 2025 and Second Renewal of the MOU signed on January 23, 2025. This MOU allows either MISTI or IPOS to be the representative of either state to receive patent design applications. IPOS functions as the search and examination authority for patents on behalf of MISTI and MISTI recognizes patents granted through IPOS.
A Joint Statement of Intention on Cooperation for Facilitating Patent Grant (“CPG”) between Cambodia and Japan signed on May 4, 2016, allows applicants to expedite patent application processing in Cambodia for patents already registered in Japan. MISTI does not conduct further examination if a successful examination has been conducted by the Japan Patent Office.
The Patent Cooperation Treaty (“PCT”) acceded by Cambodia on September 08, 2016, and entered into force on December 08, 2016. This allows international patent applications filed on or after December 8, 2016, to designate Cambodia for patent filing within 30 months from the priority date of the international application.
Agreement on European Patents Validation entered into force on March 1, 2018, this agreement allows a European patent filed from March 1, 2018, to be validated in Cambodia.
Memorandum of Understanding (“MOU”) on the Intellectual Property Cooperation between Ministry of Industry, Science, Technology and Innovation and the State Intellectual Property Office of the People’s Republic of China (“SIPO”) signed on September 21, 2017, and came into effect in April 2018. This MOU allows the Chinese patent application filed on or after January 22, 2003, granted by SIPO to be validated, registered, and take effect in Cambodia by following the Cambodia formality registration.
Cooperation on Memorandum of Understanding on Acceleration of Certification between the Ministry of Industry, Science, Technology and Innovation and the Korean Intellectual Property Unit (KIPO) on 16 August 2019. The Korean Intellectual Property Organization is also the International Research and Review Authority for International Initiatives under this Cooperation.
Work-sharing Agreement between the Ministry of Industry, Science, Technology & Innovation and United States Patent and Trademark Office in 2020.
Cooperation Agreement between Ministry of Industry, Science, Technology & Innovation and World Intellectual Property Organization on 17th November 2021.

Memorandum of Cooperation in the Field of Intellectual Property Right (IPR) between the Ministry of Industry, Science, Technology & Innovation and Economic Research Institute for ASEAN and East Asia and the Japan Patent Office on 30th March 2023.

Additional Update

As of 15^th January 2025, the Ministry of Industry, Science, Technology & Innovation announced the launch of an electronic filing system for all the patent applications. The applicants or their duly representatives can now submit application forms, amendment forms, and supporting documents with the Ministry of Industry, Science, Technology & Innovation anytime and anywhere. This achievement is the success of the collaboration between the aforementioned ministry and World Intellectual Property Organization.

IV. INDUSTRIAL DESIGNS

As with Patents and Utility Models, an application for registration of an Industrial Design may be filed with the DIP-MISTI and is also governed under the Patent Law. An Industrial Design refers to any composition of lines or colors or any three-dimensional form, or any material, whether associated with lines or colors, provided that such composition, form, or material gives a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft, and appeals to and is judged by the eye.

To qualify for protection, the industrial design must be new and not contrary to public order or morality. However, technical product features are not covered by Industrial Design protection, as they fall under the domain of Patent Law. Furthermore, the protection does not extend to arbitrary features of appearance.

In practice, the registration procedures for Industrial Design are similar to those of the Patent and Utility Model. Once registered, Industrial Designs are protected for five (05) years from the filing date, renewable for two further consecutive five (05) year terms. The total term of protection would be fifteen (15) years of protection. The owner of a registered Industrial Design has the right to exclude others from exploiting the design in Cambodia, by any means including making, importing, selling, offering for sale, and using the product, as well as from stocking the product for sale or use.

Under the Memorandum of Understanding between MISTI and IPOS, the same rules also apply to the recognition of the Industrial Design registered by either MISTI or IPOS.

On February 25, 2017, Cambodia became a member of the Hague Agreement and therefore the applicant can designate Cambodia to apply for the registration of their application through this international system.

Additional Update

As of 15th January 2025, the MISTI announced the launch of an electronic filing system for all the industrial design applications. The applicants or their duly representatives can now submit application forms, amendment forms, and supporting documents with the DIP-MISTI anytime and anywhere. This achievement is the success of the collaboration between the aforementioned ministry and World Intellectual Property Organization.

V. COPYRIGHT

In compliance with the WTO’s obligation, Cambodia enacted the Law on Copyright and Related Rights (the “Copyright Law”) to protect original works. Under the Copyright Law, Work is defined as a product in which thoughts or sentiments are expressed creatively, and which falls within the literary, scientific, artistic, or musical domain. It includes books, sculptures, architecture, computer programs, paintings, photographs, musical compositions, and many other types of work. A work must be “original”, which means that it must be the true intellectual creation of its author.

The Copyright Law protects the following subject matters:

All kinds of reading books or other literary, scientific, and educational documents;
Lectures, speeches, sermons, oral or written pleadings, and similar works;
Dramatic works and musical dramas;
Choreographic works, whether modern or adapted from traditional works, or folklores;
Circus performances and pantomimes;
Musical compositions, with or without words;
Audio-visual works;
Works of painting, engraving, sculpture, or other works of collages, or applied arts;
Photographic works or those realized with the aid of techniques similar to photography;
Architectural works;
Maps, plans, sketches, or other works pertaining to geography, topography, or other sciences;
Computer programs and the design, encyclopedia, and documentation relevant to those programs;
Products of collage work in handicraft, hand-made textile products, or other clothing fashions.

Authors are granted both Economic and Moral Rights to their works. Economic rights refer to the exclusive rights to exploit the work and prevent others from making copies or derivative works. Moral rights, on the other hand, allow an author to prevent the destruction or modification of their work, to insist on public attribution as the author, and to decide on the manner and timing of the work’s publication.

Copyright protection begins the moment the author creates the work. Moral Rights last forever and they extend beyond the life of the author and pass on to their heirs. However, for most authors, the protection of Economic Rights starts from the date of the creation of a work, and it covers the life of the author and the whole fifty (50) years following their death. However, special rules apply for anonymous, pseudonymous, posthumous, collective, and audiovisual works.

The Copyright Law limits the protection in several ways. For instance, reproducing work for non-commercial, educational, or private home use is generally permitted. Contrary to public perception, copyright is not an absolute right to prohibit all uses of one’s work.

Unlike Trademarks, Patents, and many other forms of IPRs, Copyright does not necessitate registration. Works are protected automatically from the time of their creation. Nevertheless, the Copyright Law provides a voluntary procedure to register works with the Ministry of Culture and Fine Arts, which will enable the author to receive a registration certificate protecting his original work. Though the Law does not require such registration, it may facilitate the enforcement of an author’s rights in administrative, or judicial, proceedings.

Under the Copyright Law, a contract of exploitation or a contract transferring the economic rights of the author must be stated in writing. The transfer of rights for exploitation may be done wholly or partly. The author will receive the benefit from this transfer by the provisions of the contract.

On March 27, 2019, Cambodia acceded to the Beijing Treaty on Audiovisual Performances (the “Beijing Treaty”). The Treaty grants performers four kinds of economic rights for their performances fixed in audiovisual fixations, such as motion pictures: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available. Furthermore, Cambodia has become the latest member of the Berne Conventions for the Protection of Literary and Artistic Works through its accession back on December 9, 2021. This means that foreign copyright owner can protect their rights in Cambodia in a more effective manner.

VI. GEOGRAPHICAL INDICATIONS

The Law on Geographical Indication (“GI”) was promulgated on January 20, 2014 (the “GIs Law”). Under the GIs Law, a Geographical Indication is a distinctive name, symbol, and/or any other sign used on certain products that are associated with a specific location, where the quality or reputation of the goods is attributable to its geographical origin.

The MOC is the competent authority in charge of managing, possessing, and registering all GIs in Cambodia. An applicant must be a GI associative group or a group/unit representative of producers/operators who will receive benefits from GI registration.

Foreign GI applications are eligible for registration and protection in Cambodia if they are successfully and validly registered in the applicant’s country of origin. An application for a foreign GI shall be submitted by its legal representative through a legal agent in Cambodia.

Furthermore, a GI cannot be registered if:

It contradicts laws and regulations, morality, religion, good custom, or public order;
It has the potential to mislead or confuse the public on the characteristics, the nature, the quality, the place of origin, the production process of the goods and/or its use;
It is used as a name for a plant variety animal breed; or
It is considered a generic term.

Unlike the previous Law on GI registrations, which protected it for only ten (10) years from the filing date, a registered GI, under the new Law, is protected from the filing date, until any cancellation is affected.

In Cambodia, seven domestic geographical indications have been registered up to date: Kampot Pepper, Kampong Speu Palm Sugar, Mondulkiri wild honey,Koh Trong pomelo, Kampot salt and salt flower, Takeo lobster, and Kampot-Kep fish sauce.

Furthermore, Cambodia also became a member of the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, on March 09, 2018 (the “Geneva Act of the Lisbon Agreement”). This ensures further protection for GIs owner both local and foreign.

VII. INTEGRATED CIRCUITS

Integrated circuits (popularly known as microchips) are the core components of the information technology industry. They are essential parts of any digital equipment and have been incorporated into a great variety of other industrial articles, ranging from machine tools to all kinds of household and consumer devices. To fulfill the obligations under the WTO, MISTI’s predecessor, the Ministry of Industry and Handicraft has issued a Prakas on the Registration of Layout-Design of Integrated Circuit to govern and protect integrated circuits in Cambodia. Under the Prakas, an Integrated Circuit is defined as a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all the interconnections are integrally formed in or on a piece of material, and which is intended to perform an electronic function. Whereas Layout Design refers to a three-dimensional disposition of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture.

The layout design of an integrated circuit can be registered with MISTI along with other IPs including patents, utility models, and industrial design. To be eligible for registration, the design must not have been commercially exploited before or have been subject to commercial exploitation anywhere in the world for a period of not exceeding two (02) years. In addition, it must be an original creation, reflecting the intellectual effort of its creator and not commonly found among other designers and manufacturers of integrated circuits at the time of its creation.

Once registered, the protection for integrated circuit layout designs is granted for ten (10) years. However, to maintain the validity of the registration, annual payment is required.

VIII. TRADE SECRETS AND UNDISCLOSED INFORMATION

Trade secrets and undisclosed information are typically defined as any valuable commercial information that is not publicly known or readily ascertainable and is subject to reasonable efforts to maintain its confidentiality.

In Cambodia, whilst there is currently no specific law related to trade secrets and undisclosed information, a draft law is currently under consideration. Nevertheless, provisions of several existing laws impose duties of confidentiality and penalties for the divulgence of commercial secrets.

Non-disclosure agreements are often used to maintain the confidentiality of information that needs to be shared with, for example, an employee or a contractor. Such agreements function as legally binding contracts that can be enforced under the Civil Code (2011).

The Law on Commercial Enterprises adopted on April 26, 2005, prohibits the unauthorized publication of a firm’s financial statements. It also requires the Ministry of Commerce to maintain the confidentiality of most company documents in its records. The Law on Audit (2000) imposes a duty of confidentiality on government auditors.

The Law Concerning Marks, Trade Names and Acts of Unfair Competition (2002) indicates the implied meaning of contrary acts to honest practices in commercial matters for stealing a trade secret, considered as an act of unfair competition. In particular, the Article 23 of the Law constitutes an act of unfair competition:

all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial, commercial, or service activities of a competitor;
false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial, commercial, or service activities of a competitor;
indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity of the goods.

Various Laws have imposed duties of confidentiality such as:

Article 23 of The Law concerning Marks, Trade Names, and Acts of Unfair Competition;
Article 221 of the Law on Negotiable Instruments and Payment Transactions;
Article 47 of the Law on Banking and Financial Institutions;
Articles 10 to 15 of the Civil Code;
Article 308 of the Criminal Code;
Article 58 of the Law on the Bar.

IX. RIGHT OF PUBLICITY

The Right of Publicity allows an individual to control the use of his identity for commercial purposes, thereby prohibiting actions like featuring a photograph of someone on product packaging, without their permission. There is no specific law in Cambodia addressing the right of publicity and there are no current drafts under consideration.

The unauthorized use of someone’s identity for commercial purposes may be considered a form of unfair competition, breaching the principle of “honest practice”.

Currently, there is no dedicated law on the Right of Publicity except for the provision under Article 26 of the Law on Copyright and Related Rights (2003) which directly addresses the issue by prohibiting unauthorized biographies.

X. PLANT VARIETY

The Law on Seed Management and Breeder Rights (the “LSMBR”), which went into effect in 2008, allows Cambodia to provide protection to newly produced plant varieties. A novel plant variety is one that was discovered and produced by plant breeders and can be broadly protected for a limited time. The LSMBR provides guidelines on how inventors can classify their invention as newly plant varieties, which the newly plant varieties shall have the following characteristics: novelty, distinctiveness, stability, and uniformity. It should be mentioned that the plant varieties that the inventor intends to apply for protection are not traded or sold in the market yet. In August 2024, the Ministry of Agriculture, Forestry and Fisheries together with MISTI announced that both authorities are prepared and welcomed for new plant varieties applications. The authorities ensure that they are well-equipped and well-trained to examine the applied plant varieties.

XI. SUMMARY OF IP PROTECTION IN CAMBODIA

NAME	SUBJECT MATTER	TERM OF PROTECTION	REGISTRATION
Trademark	Any visible sign capable of distinguishing the goods or services of an enterprise	10 years, renewable indefinitely	Mandatory Ministry of Commerce
Patent	Inventions that are new, industrially applicable, and involve an inventive step	20 years with an annual fee	Mandatory Ministry of Industry. Science, Technology & Innovation
Utility Model	Inventions that are new and industrially applicable	7 years with an annual fee	Mandatory Ministry of Industry, Science, Technology & Innovation
Industrial Design	Any composition of lines or colors, or any three-dimensional forms, or any material, so long as it gives a special appearance to a product	5 years, renewable twice	Mandatory Department of Intellectual Property under the Ministry of Commerce of Myanmar
Copyright	Original works of authorship	Life of the author + 50 years, with certain exceptions	Mandatory Department of Intellectual Property under the Ministry of Commerce of Myanmar
Geographical Indications	A name or sign used on a product that corresponds to a specific location, where the quality or reputation of the goods is essentially attributable to its place of origin.	Permanent unless cancellation or invalidation	Mandatory Ministry of Commerce
Integrated Circuit Layout Design	A product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material, and which is intended to perform an electronic function	10 years, nonrenewable	Mandatory Ministry of Industry, Science, Technology & Innovation
Plant Varieties	A novel plant variety is one that was discovered and produced by plant breeders	20 to 25 years depends on the type of the plant with an annual fee	Mandatory Ministry of Industry, Science, Technology & InnovationMinistry of Agriculture, Forestry and Fisheries

_______________________________

[1] Prakas No. 293 on the Procedure for Registration and Protection of Certification Marks issued by the Ministry of Commerce on August 30, 2016.

[2] Prakas No. 125 on the procedure for TM E-filing both local and foreign marks issued by the Ministry of Commerce on May 4, 2017

[3] Prakas No. 2652 on the Requirement to Submit an Affidavit of Use/Non-use for Registered Mark issued by the Ministry of Commerce on August 11, 2023

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 situations. For more details or any question related to the IP Protection in Myanmar, please contact our professionals via [email protected] / [email protected].

I.	INTRODUCTION
II.	TRADEMARKS
III.	PATENTS & UTILITY MODELS
IV.	INDUSTRIAL DESIGNS
V.	COPYRIGHT
VI.	GEOGRAPHICAL INDICATIONS
VII.	INTEGRATED CIRCUITS
VIII.	TRADE SECRETS AND UNDISCLOSED INFORMATION
IX.	RIGHT OF PUBLICITY
X.	PLANT VARIETY
XI.	SUMMARY OF IP PROTECTION IN CAMBODIA

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BNG Legal believes expanding access to legal information is crucial to rule of law. To that end, several of our legal professionals write a blog discussing recent developments in the legal landscape.

Notification on the Benefits Received after Termination of An Employment Contract

Posted on August 1, 2024 by admin

On 21st March 2024, the Ministry of Labour and Vocational Training (“MLVT”) issued a Notification on the benefit received after the termination of employment contract (“Notification”). The Notification aims to avoid misinterpretation of the contents of labour law and regulations related to the payment of severance pay.

Employment contracts are governed by both the labour law and the general rules of contract law. People are free to enter into a contract as per contract law (Article 3 of Civil Code 2007), although some exceptions may apply with respect to the constitution and public order, however the labour law sets limitations on this freedom. For example, where the Labour Law sets the floor of benefits for employees the parties cannot lower that floor by mutual agreement. The floor of benefits provides the least favourable benefits or working conditions accorded by law to the employees.

The Labour Law also provides self-help remedies that allow the parties to exit from the contractual relationship. For example, a party can terminate another party without resorting to the court when the contract is breached by serious misconduct.

II. Type of Employment Contracts

A. Fixed Duration Contract (“FDC”)

An FDC is an employment contract which is made for a specific duration. This contract shall be made in writing with a clear start and end date. An FDC may be made with unspecified ending if that contract is made for: (i) replacing a worker who is temporarily absent, (ii) for personal work, and (iii) occasional period of extra work or the non-customary activity to the enterprise.

An FDC without a specific end date may therefore be ended by any of the following: (i) the returning to work of the worker who was temporarily absent or the termination of labour contract of those employees, (ii) at the end of season, and (iii) at the end of the occasional period of extra work or the non-customary activity to the enterprise.

Based on Article 67 point 2 of the Labour Law, an employment contract signed for a specific duration cannot be longer than two years. It can be renewed, as long as the renewal does not surpass the maximum duration of two years. In the event of a renewal exceeding the maximum of four years (two 2-year periods); the FDC shall become undetermined duration contract.

B. Undetermined Duration Contract (“UDC”)

A UDC is an employment contract where the end date is not specified. It may arise by operation of law when an employment contract is concluded verbally, or when a contract is signed for a fixed duration but is renewed one or more times and the total duration of the contract exceeds four years. Since the law does not require that a UDC employee works works full time, a UDC may also be used for part-time work.

The UDC is often used for a permanent employee when the nature of the work means that it does not have a specified end date. An employer who needs employees for a permanent, lasting activity of the business may hire permanent employees under a UDC.

III. Termination of Employees

On 21st March 2024, the Ministry of Labour and Vocational Training (“MLVT”) issued a Notification on the benefits received after the termination of an employment contract (“Notification”). The notification highlights the benefits received after the termination of an employment contract in two situations; either by an employer or through the bankruptcy of an employer.

A. Termination by the Employer

The termination of an employment contract by the will of an employer without a valid reason, where the worker did not commit any serious misconduct as stated in either Article 83 of the Labour Law or as stipulated in the internal rules of the enterprise.

For a Fixed Duration Contract (FDC), the employee shall receive:

– Unpaid wages (Article 116 of Labour Law);

– Remuneration for the remaining annual leave (Article 166 and Article 167 of Labour Law);

– Severance Pay of at least 5% (five percent) of wages paid to the worker during the term of the employment contract (Article 73 of Labour Law); and

– Damages in an amount at least equal to the remuneration that employee would have received until the end of the contract. (Article 73 of Labour Law).

For an Undetermined Duration Contract (UDC), the employee shall receive:

– Unpaid wages (Article 116 of Labour Law);

– Remuneration for the remaining annual leave (Article 166 and Article 167 of Labour Law);

– Compensation as a replacement of prior notice in case the employer did not give prior notice in accordance with the Labour Law (Articles 75 and 77 of Labour Law);

– Seniority indemnity in any semester in which the employee is terminated and the total back pay of seniority indemnity that the employer has not yet paid (Article 89 new of Labour Law); and

– For damages, the worker may claim an indemnity payment equal to the seniority indemnity received during the term of the employment contract (Article 91 (new) of Labour Law).

B. Termination by the Employer when the Employee has Committed Serious Misconduct

The termination of an employment contract by the will of employer when the employee has committed serious misconduct, either as stated in Article 83 of the Labour Law or as stipulated in the internal regulations of the enterprise.

For a Fixed Duration Contract (FDC), the employee shall receive:

– Unpaid wages (Article 116 of Labour Law)

– Payment in lieu of the remaining annual leave (Article 166 and Article 167 of Labour Law).

For an Undetermined Duration Contract (UDC), the employee shall receive:

– Unpaid wages (Article 116 of Labour Law)

– Payment in lieu of the remaining annual leave (Article 166 and Article 167 of Labour Law).

C. Termination of an Employment Contract in the Case of Bankrupty of the Employer

For a Fixed Duration Contract (FDC), the employee shall receive:

– Unpaid wages (Article 116 of Labour Law);

– Remuneration for the remaining annual leave (Article 166 and Article 167 of Labour Law); and

– Severance pay at least 5% of wages paid to the worker during the term of the employment contract (Article 73 of Labour Law).

For an Undetermined Duration Contract (UDC), the employee shall receive:

– Unpaid wages (Article 116 of Labour Law);

– Remuneration for the remaining annual leave (Article 166 and Article 167 of Labour Law);

– Compensation as a replacement of prior notice in case the employer did not give prior notice in accordance with the Labour Law (Articles 75 and 77 of Labour Law); and

– Seniority indemnity in any semester in which the employee is terminated and the total back pay of seniority indemnity that the employer has not yet paid (Article 89 new of Labour Law).

The Notification states that bankruptcy does not lead to the entitlement to damages as it does not affect the honour or dignity of the employee, and nor does it create a misconception of the employee the public that they are incompetent or lack productivity.

IV. Conclusion

The notification on the benefits received after the termination of an employment contract provides clear understanding on the wage payments and compensation which are the entitlement of employees and obligation of the employer. The notification protects the interests of the employees while providing the employers with clarity as to their labour compliance responsibilities relating to the payment of wages and payment for damages.

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 situations. For more details or any question related to the The Notification on the Benefits Received after Termination of an Employment Contract, please contact our professionals via [email protected].

Foreign Ownership of Immovable Property (Jul, 2024)

Posted on July 1, 2024 by admin

Under the 1993 Cambodian Constitution and the 2001 Land Law, only those with Cambodian nationality are permitted to own land in Cambodia. The subsequent years have seen various methods to allow foreign control over immovable property, beginning with nominee arrangements, developing into land holding companies, and now, with the introduction of the Law on Trusts in 2019, trusts. This newsletter will provide the readers with an overview of the different mechanisms for foreign control over immovable property in Cambodia, their benefits and drawbacks.

II. Methods for Foreigners to Control Immovable Property in Cambodia

1. Nominee Arrangement

In terms of market practice, historically foreigners buying real estate in Cambodia have implemented the nominee structure, as follows:

Step 1: A foreign buyer (i.e. a non-Cambodian individual(s)) (“Foreign Investor”) shall choose a Cambodian individual (“Cambodian Nominee”) whom the buyer trusts. The Cambodian Nominee is the legal owner of the land purchased by the Foreign Investor.

Step 2: The Foreign Investor funds the purchase of the land or building, and the new title is transferred to the Cambodian Nominee’s name.

Step 3: After the title is transferred to the Cambodian Nominee, the Foreign Investor and the Cambodian Nominee entered into a loan secured by a hypothec (creating a legally binding charge which, crucially, is registered with the land authorities).

Loan Agreement and Hypothec Agreement: Accordingly, the Foreign Investor documents a loan from the Foreign Investor as the lender to the Cambodian Nominee as the borrower. The Foreign Investor loans the purchase monies needed to purchase the real property to the Cambodian Designee pursuant to a loan agreement. The Cambodian Designee and the Foreign Investor would enter into a hypothec agreement pursuant to the legal title to the land to be acquired was subject to charge in favour of the Foreign Investor. Notably, the Foreign Investors interest in the land is formally registered with the Provincial/Municipal Department of Land Management, Urban Planning, Construction and Cadastre (“Department of Land Management”), via the registration of a hypothec securing repayment of funds loaned to the Cambodian Nominee to acquire real estate. Practically, after hypothec registration, they have another agreement allowing the Foreign Investor to keep the original copy of the land title to the acquired land. The Cambodian Nominee is prevented from transferring the land to a third party, without the original land title[1]; or
Long Lease Agreement/Perpetual Lease: the nominee is the lessor, and the foreign buyer is the lessee. They may create a long-term lease with period of time from 15 years to 50 years and shall register the lease at the Department of Land Management in accordance with Article 244, Article 246 and Article 247 of the Civil Code. The foreign buyer may keep the certificate of long-term lease to assert against the third party in case the nominee disposes the land to the third party.

2. Land Holding Company

Pursuant to Article 101 of the Law on Commercial Enterprise (“LCE”) and Article 3 of the Law on Investment (“LI”), a company is considered to have Cambodian nationality when 51% of the shares are owned by Cambodian shareholders and a maximum of 49% of the shares are held by foreign shareholder(s).

A minority foreign shareholder (MFS) can be either an individual or a foreign company. The majority Cambodian shareholder (MCS) can be any Cambodian individual, Cambodian company or nominee(s) of the foreign shareholder. Therefore, should the foreigners choose this method of land holding, then they would incorporate a company, with the foreigner(s) holding 49% of the shares and one or more Cambodian nationals nominated would hold the remaining 51% of the shares.

The creation of a land holding company creates certain corporate responsibilities, such as the requirement for monthly tax filings to the General Department of Taxation along with other matters of compliance, including, but not limited to, the renewal of its Patent Certificate each year.

3. Perpetual Leases (“PL”)

For foreign individuals or investors who would like to control land in the long term for either their investment or for business purposes may choose the mechanism of long-term lease or perpetual lease in accordance with the land law, investment law and Civil Code of Cambodia. A long-term lease provides a period of time for lease from 15 years to 50 years and it may be renewed in accordance with Article 244 and Article 247 of Civil Code 2007. The foreigners shall register their long-term lease at the Department of Land Management to assert against the third party in accordance with Article 246 of the Civil Code.

The steps for the establishment and registration of the lease are as follows:

Step 1: the PL is made between the foreign lessee and the landlord on the land which already registered (Land with Certificate of Ownership over the Land).

Step 2: Fulfil the required documents to register the PL at the Department of Land Management

Step 3: the Department of Land Management issues a Certificate of PL for the foreign lessee. The foreign lessee may hold the certificate of PL to assert against the third party.

Upon registration with the Department of Land Management, the Department of Land Management issues a lease certificate which gives the perpetual lessee a legal right in rem over the land. The registration of the PL also puts any third party on notice of the perpetual lessee’s interest.

Finally, the registration of the PL is commercially useful since upon registration the PL may be used as collateral for secured lending[2].

4. Economic Land Concession (“ELC”)

Pursuant to Article 3 of Sub-Decree No. 146 ANK/BK of the Royal Government of Cambodia on Economic Land Concession dated 27 December 2005 (“Sub-Decree No. 146”), economic land concessions may be granted to achieve the following purposes:

To develop intensive agricultural and industrial-agricultural activities that requires a high rate and appropriate level of initial capital investment.
To achieve a specific set of agreements from the investor for developing the land in an appropriate and perpetual manner based on a land use plan for the area.
To increase employment in rural areas within a framework of intensification and diversification of livelihood opportunities and within a framework of natural resource management based on appropriate ecological system,
To encourage small as well as large investments in economic land concession projects, and
To generate state revenues or the provincial or communal revenues through economic land use fees, taxation and related services charges.

To limit the ELC term and size of land for ELC, the Law on Management Usage and Handling of State Properties (Article 53), sates that ELC shall not exceed 50 years and the size of the land for economic land concession shall not exceed 10,000 hectares.

According to Article 29 of Sub-Decree No. 146 the Minister of Agriculture, Forestry and Fisheries is authorized and responsible for granting economic land concessions with a total concession land area of 1,000 (one thousand) hectares or more. The relevant provincial/municipal governor is authorized and responsible for granting economic land concession with a total concession land area of less than 1,000 (one thousand) hectares.

5. Co-owned Building (Strata Title)

Pursuant to Art. 5 of Law on Providing Foreigners with Ownership Rights in Private Units of Co-owned Buildings (“LPFORPUCOB”), legally qualified foreigners have ownership rights in private units of co-owned buildings and rights to use and enjoy the benefits of the common areas. Article 6 of LPFORPUCOB also added that foreigners have ownership rights in private units of co-owned buildings only from the first (1st) floor up. The ground floors and underground floors cannot be owned by foreigners.

However, to limit the above ownership right, on 29 July 2010, the Government issued Sub-Decree No. 82 on Determination of Proportion and Calculation of Percentage of Private Units That Can Be Owned by Foreigners in a Co-Owned Building (“Sub-Decree No. 82”). According to Art. 2 of this Sub-Decree No. 82, legally qualified foreigners can have ownership rights in private units of a co-owned building not exceeding 70 (seventy) percent of the total surface size of all private units of the co-owned building.

To get the Strata Title for certifying ownership over a unit of the co-owned building, the foreigner may:

Step 1: Contact to the Developers to buy a unit of Co-Owned Building

Step 2: Make a Sale-Purchase Agreement (“SPA”) with the Developer or an owner of the unit

Step 3: Fulfil the required documents at the Department of Land Management to register the unite and pay registration tax of 4% of the unit value to the General Department of Taxation (“GDT”) in accordance with Prakas No 273 on Registration Tax Collection.

6.Trust

The Trust mechanism may be the most reliable form of foreign land control in Cambodia since the Trust Law (“TL”) was promulgated in 2019.

The concept of the trust is imported from common law jurisdictions, which has its roots in the Courts of equity going back centuries in England. The principle behind the trust as conceived in England is that it separates legal ownership rights from so-called “beneficial” ownership rights (or economic ownership rights).

In its Cambodian form the TL encapsulates a separation of legal ownership rights to land (conferred on a trustee) with economic ownership of right in land that are vested in an investor in land (who might be a foreign citizen or a foreign owned or controlled company) (beneficiary). In Cambodia, the principle has been modified to fit a civil law legal system and has a specific character. Notably any trust must be registered (so the privacy enjoyed under the common law concept is missing) and there are mandatory obligations that apply to trustees intended to ensure that trustees act fairly (with statutory obligations). The law on trust in England has evolved through case law. We cannot guarantee statutory legislation will be implemented in a way which fairly protects trustor, trustee and beneficiaries safeguarding their respective interests in an equitable way.

Pursuant to Article 9 of the TL, there are four types of trusts:

Commercial trust: earn the profit for the benefit of contributor or other specific persons.
Public trust: established for the benefit of Cambodian citizens.
Social trust: non-profit and non-commercial enterprise which established for general interest of society such as culture, education, religion, human-being or scient.
Individual trust: created for trustor in his/her own accord or for the benefit of any specific person.

As mentioned above, a trust shall be registered with the Trust Regulator (“TR”) in accordance with Article 28 of TL and Sub-Decree No. 114 AN.Kr.BK on Trust Registration dated 02 August 2019 (“Sub-Decree No. 114”).

The foreigner may choose the individual trust and create the trust deed with the trustee and register the trust with the TR as follows:

Step 1: Contact a Trust Company as a trustee who has received a license from the TR.

Step 2: Make a trust agreement with the trustee. The trust agreement shall clearly identify the rights and obligations of trustor, trustee and beneficiary. The trustor and the beneficiary may be as one, therefore, the foreign buyer can be the trustor and beneficiary at the same time.

Step 3: The trustee shall register the trust at the trust regulator in accordance with the TL and Sub-Decree No. 114.

Step 4: the TR after reviewing the documents, will issue a trust certificate over the trust property. With a certificate issued by the TR, the foreigners’ property may be safe because the trustee cannot dispose that property without any approval from the Trustor and TR.

Tax Implications: The use of a trust structure is relatively new, and the tax implications have yet to be settled. However, it is clear the transfer of the legal title from one person to the trustee prior to the investment in Cambodian real estate might give rise to a taxable event. Will the trustee need to pay stamp duty on the transfer? Secondly, while the trust’s asset is held under trust, will the trustee be liable to property tax? Thirdly, upon realizing an investment, will the acquirer pay stamp duty on real estate transferred to the acquirer by the trust. These questions and more remain to be answered to the satisfaction of investors.

III. Conclusion

Legally, the safest vehicle through which foreigners may invest in land in Cambodia is using a registered trust. There is an exception for foreign investors proposing to acquire units in co-owned property pursuant to the LPFORPUCOB. The trust mechanism is the highly recommended form for foreign control over property in Cambodia. The trust agreement is made among the trustor (establishing the trust), trustee (that holds legal title to land) and beneficiary (which owns the economic interest in land), and is registered at the TR. The property may be safe because the trustee cannot dispose of the property without the consent of the trustor and the TR. So far, the tax implications of buying land using a trust lack a degree of clarity, although we expect this may change in the near future.
The nominee arrangement is the simplest form for foreign land control, however it creates a high degree of risk for a foreign investor as the ownership is transferred to the nominee. This arrangement is becoming less common in practice, as when conflict occurs among the parties, it is problematic for the Foreign Investor to claim their rights over the property since it is contradictory to both the constitution and the land law. BNG Legal does not endorse the use of nominees for foreign investors considering investment in Cambodian land.
A land holding company is legally recognized, but it still gives rise to risks to Foreign Investors since the law permits foreigners to only hold 49% of the total shares. To mitigate these risks, there are agreements made among the company’s shareholders on the minority control over the property. The use of a land holding structures is expensive, and estate agent fees or legal fees may be excessive in practice. As such the use of land holding companies involves a high level of trust, not just in the nominee shareholder but also in the intermediaries that implement the arrangement. For these reasons, BNG Legal does not endorse or recommend the use of land holding companies.
A perpetual lease is legally recognized, but it has only a 50-year maximum period, although it may be renewed many times. The risk is that a foreigner may need a longer period for the investment or business purposes whilst the lessor may not intend to renew the lease.
An ELC is the common form for foreign land control in Cambodian for the purposes of investment on agricultural production. An ELC application may be complicated because it takes many steps to negotiate with the relevant authority. The authority shall grant an ELC to one person of only 10,000 hectares and the same person may not be granted over 10,000 hectares. The maximum duration of an ELC is 50 years and it is renewable.
A foreigner may own units of co-owned buildings (Condominium), but the ownership shall not exceed 70% of the total size of the building. They may purchase the units from the developers and be issued with strata titles from the Department of Land Management.

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[1] A variation on this arrangement is the use of so-called “land holding companies” in which the arrangement is supplement by various documentation intended to create addition al security for the Foreign Purchaser, including powers of attorney in favour of the Foreign Purchaser. This arrangement proved popular in the past since at one level might be construed as legally compliant and legal risk was more than off-set by commercial returns in Cambodia. There was always question mark owing to Sub-Decree (2005) on the Implementation to the Amendment to the Law on Investment (“Sub-Decree 111”). Article 3.2 of Sub-Decree 111 expressly prohibits the use of Cambodian nominees (which would also cover nominee shareholders in a landholding company. This casts doubt over the legality of nominee arrangements irrespective of whether a land holding company is used, or it is a straightforward nominee arrangement. We note that Sub-Decree 11 relates to the incentives given to companies registering registered with the Council for Development of Cambodia. As such it is not relevant. In practical terms, the use of nominees through the use of land holding companies has been widespread and this has not been challenged in Cambodia, to date so far as we are aware.

[2] The practical value for lender’s receiving collateral by way of hypothec over perpetual lease rights is not without risk. Any lender upon enforcement of a hypothec over a PL must acquire a land valuation. The land valuation of a PL is subject to market conditions. In a suppressed market without investors this form of collateral may be insufficient to cover the liabilities secured by a PL.

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 situations. For more details or any question related to the Foreign Ownership of Immovable Property in Cambodia, please contact our professionals via [email protected].

Foreign Marriage Registration (Jun, 2024)

Posted on June 1, 2024 by admin

Marriage is an individual right that is guaranteed by the constitution. Men and women are equal in all fields, especially with respect to marriage and family matters, and marriage shall be conducted according to the conditions determined by law based on the principle of mutual consent between a man and a woman. In 2000, the government issued Sub-Decree No.103 អនក្រ.បក on Civil Registration. This Sub-Decree, which paved the way for the nationwide implementation of civil registration with unified formality, began in 2002, as implemented in the Declaration of the Ministry of Interior on the Nationwide Implementation of Civil Registration in Cambodia dated 11 July 2002. Registration of marriages between Cambodian citizens and foreigners and marriages between foreigners and foreigners has been practiced since then.

In order to prevent and combat human trafficking through marriage, Cambodia issued Sub-Decree No.183 អនក្រ.បក on the Determining the Processes and Procedures for Marriage between Cambodian Citizens and Foreigners dated November 03, 2008. This legislation created the requirement that a foreigner wishing to marry a Cambodian citizen must fulfil additional processes and procedures as stipulated in Sub-Decree No.183 អនក្រ.បក. However, marriages between two foreign parties in Cambodia need only follow the conditions stated in Sub-Decree no.103 អនក្រ.បក.

In July 2023, Cambodia enacted the new Law on Civil Registration, Vital Statistics and Identification in order to provide comprehensive conditions to improve civil registration and identification in Cambodia. The law will be implemented one year from the promulgation, 01 July 2024, other than Art. 173 and 174 which shall be implemented in accordance with future Sub-Decrees. Thus, Sub-Decree No.103 អនក្រ.បក and Sub-Decree No.183 អនក្រ.បក are still applicable and in-force.

II. Foreign Marriage Registration in Cambodia

An individual seeking to execute a Qualified Investment Project (“QIP”) is required to present a written application for Investment Project Registration to either the Council for Development of Cambodia (“CDC”) or the Provincial-Municipal Investment Sub-committee (“PMIS”). This is necessary to secure the associated incentives, guarantees, and protections in accordance with prevailing laws and regulations.

There are three (03) different types of marriage registration that may apply to foreign marriages as follows :

A. Marriage Between Two Foreign Parties

Two foreign partners who legally reside in Cambodia and wish to get married in Cambodia may register their marriage in accordance with the laws of Cambodia or may register their marriage at the Embassy of its own country located in Cambodia. To register their marriage in accordance with the laws of Cambodia, the couple shall request to the registrar at the place of their permanent residence, specifying the place and time of the wedding. They are required to complete the marriage application form and attach the certificate of single status, birth certificate, residential book and copy of their passport with a valid visa.

B. Marriage Between a Foreigner and a Cambodian Citizen

For a marriage between a foreigner and a Cambodian citizen in Cambodia, the foreign party must be present in Cambodia to complete the marriage procedure. The process begins with the completion of the marriage application by the future couple to the Ministry of Foreign Affairs and International Cooperation; the documents will then be sent to the Ministry of Interior (General Department of Identification) for further processing.
The foreign partner shall have:

Completed marriage application form with 4×6 facial photos (taken in front of the face within the last 03 months).
Copy of passport showing valid visa and legal entry into Cambodia.
Certificate of single status or widow issued by the authority of their country.
Health certificate issued by a hospital recognized by the Ministry of Health of the Kingdom of Cambodia.
Letter of condemnation (criminal record check) issued by the authorities of their country.
Letter of condemnation (criminal record check) issued by Cambodian authorities.
Occupation letter that shows monthly income.
Work permit in Cambodia (if any).

The foreign partner shall have:

Completed marriage application form with 4×6 facial photos (taken in front of the face within the last 03 months).
Birth certificate.
Certificate of single status or widow status issued by the Commune/Sangkat Chief of their permanence resident (in case they are a widow, they must attach the death certificate of the deceased, and if they have divorced then they must attach the final verdict from the court).
Health certificate issued by a hospital recognized by the Ministry of Health of the Kingdom of Cambodia.
Family book or residential book.

The process in the Ministry of of Foreign Affairs and International Cooperation will take 15 days with an official fee of 500,000 Riels (approximately 120 USD) in order to review and approve the marriage application. They will then issue an official letter addressed to the Ministry of Interior. After receiving the documents from the Ministry of Foreign Affairs and International Cooperation, the Ministry of Interior shall review all the attached documents again, focusing on the required conditions contained in the Sub-Decree No.183 អនក្រ.បក. At this stage the couple must present themselves at the Ministry of Interior, and they will be interviewed by the concerned officials. The process at the Ministry of Interior will take at least 15 days with an official fee of 800,000 Riels (approximately 200 USD).

The approval of the marriage application by the Ministry of Interior (General Department of Identification and as the General Registrar) will result in the issuance of an official decision to allow the future couple to continue to register their marriage at the Commune/Sangkat at the permanent residence of the Cambodian partner. After receiving this official decision, the Cambodian partner shall submit the marriage application to the registrar with the following attached documents:

Marriage application,
Birth certificate,
Certificate of single status or widow status issued by the Commune/Sangkat Chief of their permanence resident,
Health certificate issued by a hospital recognized by the Ministry of Health of the Kingdom of Cambodia.

At this stage, the documents of Cambodian partner and foreign partner shall be submitted together to the Commune/Sangkat registrar at the permanent residence of the Cambodian partner and the registration will take around 02 weeks. The Commune/Sangkat registrar will review all the documents and if everything is correct, they will issue 05 copies of the “Marriage Proclamation”. The Marriage Proclamation shall be publicly posted for a 10 day period at 1) The permanence resident of the Cambodian partner, 2) The Commune/Sangkat at the permanent residence of the Cambodian partner, and the other three copies shall be 1) Kept in the archive at Commune/Sangkat at the permanent residence of the Cambodian partner, 2) Kept at the Consulate/Embassy of the foreign partner, if any, and 2) At the residence of the foreign partner in Cambodia, if any. If there is no complaint within the 10 days period of public posting, then the couple may register their marriage.

C. Marriage Between a Foreigner and a Cambodian Citizen

A Cambodian and foreign couple who have been issued with a marriage certificate from a foreign authority may have their marriage recognized by Cambodian law, as long as their marriage is not contradictory to the requirements and conditions stipulated in the laws of Cambodia. The couple can request re-registration of the marriage certificate in Cambodia by using their marriage certificate from the foreign authority as the prime supporting document. To do so, the couple need only submit the application to the General Department of Identification, and the General Department of Identification will then issue an official decision to allow the couple to continue to register their marriage at the Commune/ Sangkat at the permanent residence of the Cambodian partner.

III. Common Difficulties in Registration

As per our observation, there are some common complexities that arise from the filling of documents to apply for the marriage registration, and thus, preparing all of the supporting documents is a crucial stage. Some documents have a validity period, such as the criminal record check (03 months validity period), the Certificate of single status or widow status (03 months validity period), therefore the arrangement in obtaining these documents should be carried out timely manner so they do not need to be re-issued. The required supporting documents can often differ year-on-year, therefore the applicant should know beforehand whether the documents obtained are usable and/or can be replaced by a similar document. Some required documents of the foreign partner may need to be certified as a true copy from their consulate/embassy in Cambodia or may need to be certified as a true copy from a notary public in their home country, and thus this should be taken into account. It is also not uncommon for documents of the Cambodian partner to contain some typo errors of their identity information, which can also prove to be an obstacle of the entire process.

IV. Conclusion

The process to register a marriage under the laws of Cambodia can be smooth as long as the applicants understand how to prepare the required documents are well prepared prior to submitting the application to the competent authority.
You may look for legal assistance from a law office in Cambodia to prepare the required documents for submitting to relevant authority.
A foreigner who gets marries a Cambodian citizen and legally registers their marriage in Cambodia may request Khmer nationality by fulfilling the conditions in accordance with Cambodian Law on Nationality.

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 situations. For more details or any question related to the QIP Tax Insights in Cambodia, please contact our professionals via [email protected].

QIP Tax Implications in Cambodia (May, 2024)

Posted on May 1, 2024 by admin

As Cambodia continues to be a promising destination for investment, keeping abreast of Qualified Investment Project (“QIP”) tax laws is instrumental for both businesses and professionals. In this newsletter we will highlight the legislative benefits and procedure of QIP status, equipping you with the knowledge needed to navigate the ever-changing tax scenario effectively.

On 15 October 2021, Cambodia promulgated the Law on Investment (LOI) to establish an open, transparent, and predictable legal framework to attract and promote quality, effective, and efficient investments. Additionally, on 26 June 2023, the Royal Government of Cambodia promulgated Sub-Decree No.139 on the implementation of the LOI of the Kingdom of Cambodia.

II. INCENTIVIZED INVESTMENR SECTORS AND ACTIVITIES

In cases where an individual intends to invest and engage in multiple Investment Activities, separate Investment Project Applications must be submitted for each activity. An exception is made for activities that provide support to the primary Investment Project or for an Expansion Qualified Investment Project.

Investment incentives are granted to the sectors and activities listed below, unless they are specifically included in the negative list, upon acquiring a registration certificate confirming their Qualified Investment Project status:

High-tech industries involving innovation or research and development.
Innovative or highly competitive new industries or manufacturing with high added value.
Industries supplying regional and global production chains.
Industries supporting agriculture, tourism, manufacturing, regional and global production chains, and supply chains.
Electrical and electronic industries.
Spare parts, assembly, and installation industries.
Mechanical and machinery industries.
Agriculture, agro-industry, agro-processing industry, and food processing industries serving the domestic market or export.
Small and medium-sized enterprises in priority sectors and small and medium-sized enterprise cluster development, industrial rks, and science, technology, and innovation parks.
Tourism and tourism-related activities.
Special Economic Zones.
Digital industries.
Digital industries.
Education, vocational training, and productivity promotion.
Health.
Physical infrastructure.
Logistics.
Environmental management and protection, biodiversity conservation, and the circular economy.
Green energy, technology contributing to climate change adaptation and mitigation.
Other sectors and investment activities not listed by the LOI but deemed by the Royal Government of Cambodia to have the tential for socio-economic development.
e Negative List comprises investment activities or categories ineligible for investment incentives, as outlined in Annex 1 of Sub-cree No.139, pertaining to the implementation of the Law on Investment of the Kingdom of Cambodia.
The Agricultural Sector includes 4 main investment activities or investment activity categories;
The Service Sector includes 43 main investment activities or investment activity categories;
The Industrial Sector includes 49 main investment activities or investment activity categories; and
The Infrastructure Sector includes 11 main investment activities or investment activity categories;

III. TAX EXEMPTIONS FOR QIPS IN CAMBODIA

The investment activities have been divided into three (03) Groups:

Group 1 includes 37 investment activity categories that are considered as high-tech and priority sectors of the Royal Government;
Group 2 includes 65 investment activity categories that are considered mid-tech; and
Group 3 includes 32 investment activity categories that are considered low-tech.

In order to qualify for fundamental tax incentives, the QIP must fulfill the criteria related to investment capital, land size, and/or other specified conditions outlined in Sub-Decree No. 139, governing the implementation of the Law on Investment. This qualification should be met within the earlier timeframe; either during the period indicated in the QIP investment plan submitted at the time of application or the year in which the QIP generates its initial revenue.

Upon registration as a Qualified Investment Project, the Investment Activity is entitled to choose one of the fundamental incentive options from the following:

Option 1 will receive the following incentives:
- Income tax exemption from the time of first earning its income for activities:
  - 9 years for Group 1;
  - 6 years for Group 2;
  - 3 years for Group 3.
- Payment of income tax at a progressive rate for 6 years after the expiration of the income tax exemption period:
  - First 2 years: 25%;
  - Next 2 years: 50%;
  - Last 2 years: 75%
- Prepayment tax exemption for activities:
  - 9 years for Group 1;
  - 6 years for Group 2;
  - 3 years for Group 3.
- Minimum tax exemption provided that an independent audit report has been obtained.
- Export tax exemption, unless otherwise provided in other laws and regulations.

Option 2 will receive the following incentives:
- Deduction of capital expenditure through special depreciation.
- Eligible for deducting up to 200% of specific expenses incurred for activities:
  - 9 years for Group 1;
  - 6 years for Group 2;
  - 3 years for Group 3.
- Specific expenses include:
  - Skill training;
  - Use of accounting system online
  - Study, research, and development, and hire foreign experts to train on new technology, IR 4.0.
- Prepayment tax exemption for activities:
  - 9 years for Group 1;
  - 6 years for Group 2;
  - 3 years for Group 3.
- Minimum tax exemption provided that an independent audit report has been obtained.
- Export tax exemption, unless otherwise provided in other laws and regulations.

In addition to the incentives provided by the above options, QIPs are also entitled to the following:

A QIP that has the right to import construction material, construction equipment, and production equipment to serve its production line will have customs duty, special tax, and value-added tax exemption.
VAT exemption for the purchase of locally made production inputs for implementation of the QIP. VAT at 0% rate.
Deduction of 150% from the tax base for any of the following activities:
- Research, development, and innovation;
- Provision of vocational training
- Construction of accommodation, canteens, nurseries, and other facilities;
- Upgrade of machinery;
- Provision of welfare for Cambodia workers/employees; and
- Investment or infrastructure of waste treatment such as solid, hazardous waste, liquid waste, and smoke.

IV. BUSINESS REGISTRATION

Prior to initiating the registration process for a business in Cambodia, it is imperative to assess whether the business qualifies as a Qualified Investment Project. If eligible, the business stands to receive incentives outlined in the LOI and its associated Sub-Decree. Once eligibility as a QIP is confirmed, the investor can proceed to submit the investment project application for QIP registration to either the Council for Development of Cambodia or the Provincial-Municipal Investment Sub-committee to obtain a registration certificate, thereby gaining access to QIP incentives.

Here are the specific steps based on the capital amount:

For investment projects with capital exceeding US$ 5 million, the application should be directed to the Cambodia Investment Board (CIB) of the CDC.
For investment projects with capital of less than US$ 5 million, the application should be directed to the PMIS.
If the investment project application aligns with all of the QIP criteria and requirements, the investor will receive a registration certificate confirming QIP status from the CDC or PMIS within 20 working days post-submission. Subsequently, the QIP is required to register the business with the Ministry of Commerce (MoC), the General Department of Taxation (GDT), and the Ministry of Labor and Vocational Training (MoLVT). Additionally, obtaining licenses for the specific sector from the relevant authorities may be necessary.

In cases where the investment project is ineligible for QIP status, the investor must undergo the business registration process through the Ministry of Commerce (MoC), General Department of Taxation (GDT), and Ministry of Labor and Vocational Training (MoLVT). Similarly, acquiring sector-specific licenses from the relevant authorities may be a requirement for the new business.

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 situations. For more details or any question related to the QIP Tax Insights in Cambodia, please contact our professionals via [email protected].

Listing on the Cambodian Stock Exchange (Apr, 2024)

Posted on April 1, 2024 by admin

Profitable companies that seek to raise capital for expansion should consider listing shares on the Cambodian Securities Exchange (CSX). Listing on the CSX allows shares of the company to be sold to the public, allowing the issuing company to raise funds and the public to participate in the growth of the company as shareholders. The CSX offers equity listing options for profitable large companies with shareholder equity above USD $7.5 million as well as for SMEs (small and medium enterprises) with shareholder equity above USD $500,000. The CSX remains in its infancy, however as capital becomes more scarce in a high-interest rate environment, more companies may be willing to offer equity to the public in order to fulfill company requirements for capital. This newsletter articulates the requirements that a company will need to fulfill in order to list shares on the CSX.

2. Benefits of Listing

– Capital for Expansion

One of the primary reasons a company may want to sell shares to the public is to raise capital for expansion. In Cambodia, foreigners and Cambodians can purchase shares via the CSX, thereby allowing greater access to potential funds than if shares could be held by Cambodians alone. A profitable company should have a ‘formula for success’ but may require a significant amount of capital to expand this formula to address different markets. Raising capital via a share sale will allow the company to grow faster through expansion. This can enable the company to become more competitive via strategic investments, and thereby more profitable.

Publicly listing could also allow founders to “cash out” by selling shares to the public. The founders will be able to realize some profit after their work in building the company, and selling shares imposes no capital expenditure paid to the providers of capital (unlike a bond or loan).

– Tax Incentives

Companies that list shares on the CSX may not only raise capital but could also increase equity value via tax incentives. Tax incentives include a 50% reduction of the annual income tax liability for the first three years, or for any period approved by the MEF, and pre-listing tax liability waivers.

Furthermore, listing shares on the CSX will make other forms of fund-raising easier and should enhance the public profile and reputation of the company amongst the Cambodian public.

3. Requirements to List

Listing requires processing and approvals from two main parties: the Securities and Exchange Regulator of Cambodia (SERC) and the CSX.

– Listing Eligibility Review from CSX

As a first step in the listing process, an applicant will need to assemble an IPO team consisting of at least an underwriter, lawyer, and accountant to prepare the complex documentation and undertake the necessary risk required to list. As an early step in the process, the team will help to prepare the application required for a listing eligibility review by the CSX. The review is to be completed no longer than one (01) month from the date of receiving the complete application. According to the Prakas on Listing Rules of the Cambodia Security Exchange (2020), the following information is required to complete the listing review:

General Information
Listing Applicant’s representative information;
Shareholder information;
Financial information of listing Applicant;
Business information of listing Applicant;
The plan of IPO proceeds usage; and
Any other relevant information.

In addition to this initial review by the CSX, according to the Prakas on Public Offering of Equity Securities (2015), the following will be required by the SERC to further the listing process.

– Financial Statements

The company needs historical financial statements and/or consolidated historical financial statements within the latest two (02) financial years which are audited in accordance with the laws and regulations in force in the Kingdom of Cambodia prior to the date of filing the application for eligible companies to list on “the Main Board,” the group of well-established companies with listings on the CSX.

The following are the main thresholds required to list equity on the Main Board*:

Shareholders’ equity	≥ KHR30 billion ($7.5 m)
Net profit	≥ KHR 2 billion ($500,000) for the latest year; and ≥ KHR3 billion ($750,000) for the latest 2 years
Minority shareholder	≥ 200 shareholders; and ≥ 7% of the total voting shares
Audited financial report	2 years

*chart from the CSX website http://www.csx.com.kh/en/product/mainboard.jsp?MNCD=30102

– Growth Board

The vast majority of Cambodian enterprises are SMEs and many require growth capital. While we often associate a stock market listing with a very large company, in a very practical move, the CSX allows relatively small enterprises to raise capital from the public through listing on the “growth board.” The growth board has significantly lower thresholds for listing in terms of shareholder equity, net profit, minority shareholder, and audited financial reports which allow many more companies to qualify for a potential listing.

The following are the main thresholds required to list equity on the Growth Board*:

Quantitative Requirements
Shareholders’ equity	≥ KHR2 billion ($500,000)
Minority shareholder	≥ 100 shareholders; and ≥ 10% of the total voting shares
Audited financial report	1 years

*chart from the CSX website http://www.csx.com.kh/en/product/mainboard.jsp?MNCD=30102

– Corporate Governance Requirements

Major corporate governance requirements include a qualified board of directors consisting of 5-15 directors, with at least 20% of the board being independent. In addition, an audit committee must be established. A risk management committee must be established if assets exceed USD $50 million, whilst a Nomination Committee is suggested but not mandated.

For a more detailed description of corporate governance requirements, please see our BNG Legal newsletter “Corporate Governance in the Limited Liability Company” here.

– The Disclosure Document

The disclosure document is a comprehensive document prepared by the IPO team for submission to the SERC. The disclosure document presents a comprehensive picture of the company, often hundreds of pages long, allowing potential investors to assess the investment potential and risks of any potential investment. Per the Prakas on Public Offering of Equity Securities (2015), a detailed description of the following information is required in the disclosure document:

General information relating to the public offering (name of the issuer, amount and type of equity securities being issued, offering price, aggregate amount, name and address of underwriter, opening and closing date of subscription, registration date of the disclosure document, liability for information submitted);
Risk factors (financial risks, economic risks, operational risks, other risks);
Use of proceeds;
Investment project;
Description of business;
Operating and financial review and prospects (operating result, liquidity and funding source, research and development, trend and profit and cash flow forecast);
Description of property, plant, and equipment;
Asset valuation or/and revaluation;
Directors, senior officers and shareholders;
Involvement of directors, senior officers and shareholders in certain legal proceedings;
Certain relationships related parties transaction;
Director and senior officer compensation;
Options granted to directors, senior officers and employees;
Transaction with directors and shareholders;
Net assets per share and earnings per share;
Ownership of the issuer’s equity securities;
Factors determining the offering price;
Rights of holders of equity securities being offered;
Historical financial information and/or consolidated historical financial information

In addition to the above, according to the Anukret on the Implementation of the Law on Issuance and Trading of Non-Government Securities (2009) a number of relevant documents shall be attached to the disclosure document including:

All contracts used as reference in the disclosure document;
Expert’s report used as reference in the disclosure document; and
Other documents determined by the SERC.

4. Approval and Registration of the Disclosure Document

Following submission of the required documents, the SERC may either refuse or grant in-principle approval within 2 (two) months.

If approved in-principle, the company may then proceed to prepare a Term of Offer including the securities pricing for approval by the CSX and SERC, and finally receive approval and registration of the disclosure document of the issuer by the SERC. Shares should be listed on the CSX within 6 (six) months of the approval of the disclosure document.

5. Book Building and Subscription

After the approval and registration of the disclosure document, shares will be sold through book building and later through public subscription conducted via an underwriting firm or firms licensed by SERC. By law, 20% of the total offering is reserved for Cambodian citizens while 80% of remaining offering amount is open to investors who are Cambodian or non-Cambodians, unless the Director General of the SERC intervenes.

During the book building process the underwriter attempts to sell shares to institutional investors to help determine market pricing prior to selling shares to the public via subscription. At the end of the subscription period, in the event that some equity securities remain unsubscribed, the underwriter of the issuer shall subscribe to those remaining securities or those as stated in the underwriting agreement and pay fully the issuer in cash or with other financial instruments within 30 days of the closing date of the subscription application.

6. Official Listing

Following the subscription period, the listing will officially be public within five (05) working days after the issuer submits the following to the CSX and signs a Securities Listing Agreement with the SERC:

Disclosure documents registered with SERC;
Documents proving the securities subscription settlement;
Copy of the contract with the Securities Transfer Agent;
Copy of the contract with the Securities Paying Agent;
Securities allotment report; and
Letter confirming securities deposited at the Operator of Securities Depository.

In addition to this initial review by the CSX, according to the Prakas on Public Offering of Equity Securities (2015), the following will be required by the SERC to further the listing process.

7. Lock Up Period

Even though the shares are listed, certain shares of significant shareholders cannot be sold for a limited amount of time after the listing, known as the “lock up period.” For a period of 1 (one) year from the official listing date, the controlling interest shareholder shall not sell or transfer their shares for the first 6 (six) months and is able to sell or transfer its shares up to 50% for the last 6 (six) months. The shareholder(s) holding voting shares of at least 15% and any “strategic shareholder” shall not sell or transfer their shares for a period of at least 6 (six) months from the listing date.

8. Summary Timeline

About
6 months

About
1 months

About
6 months

5 days
after Submission

➤

Preparation

* May submit an intent letter of public offering to SECC
* Appoint an underwriter
* Create an IPO team
* Due Diligence

Listing Eligibility Review

* Submit listing eligibility review application to CSX
* Approval for listing eligibility review/div>

Initial Public Offering

* Pricing via book building process
* Apply for confirmation of pricing to CSX
* Submit application for approval on Term of Offer to SECC
* Process of securities subscription
* Report the result of subscription to SECC

Official Listing on CSX

* Submit application form to CSX for official listing (7 working days after the securities have been transferred to subscribers)
* Approval from CSX for listing and trading (5 working days after the submission of application)

9. Conclusion

In the current higher-interest rate environment, investment funding is becoming more difficult to access. Listing on the CSX is a good way for profitable companies – both large and SME – to raise local funds, receive tax benefits, attract international funding, and enhance their public profile. A skilled IPO team including an underwriter, lawyer and accountant can help to navigate the complex path toward a public listing. Once listed, a company will require continuous compliance incorporating accountability and transparency into the corporate culture. As the economy of Cambodia matures and more companies list on the CSX, we can expect interest to grow and listings to accelerate.

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 situations. For more details or any question related to the Listing on the Cambodian Stock Exchange, please contact our professionals via [email protected].

1.	Introduction
2.	Benefits of Listing
3.	Requirements to List
4.	Approval and Registration of the Disclosure Document
5.	Book Building and Subscription
6.	Official Listing
7.	Lock Up Period
8.	Summary Timeline
9.	Conclusion

LAW BLOG

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Website	cambodianlaw.wordpress.com

BNG Legal believes expanding access to legal information is crucial to rule of law. To that end, several of our legal professionals write a blog discussing recent developments in the legal landscape.

IP Protection in Cambodia (Mar, 2024)

Posted on March 15, 2024 by admin

Intellectual Property (IP) is a vital asset for businesses around the world as well as in Cambodia as it plays a crucial role in fostering economic growth, and innovation, and attracting foreign investment. Strong IP protection is essential for encouraging local and international businesses to invest in research and development, knowing that their creations and innovation will be safeguarded. This protection provides an incentive for inventors, creators, and entrepreneurs to invest time, resources, and effort into developing new products, technologies, and creative works.

IP Protection in Cambodia is governed by a comprehensive legal framework aimed at safeguarding the rights of creators and innovators. Such legal framework includes but is not limited to the Law Concerning Marks, Trade Names and Acts of Unfair Competition of 2002, the Law on Patents, Utility Model Certificates, and Industrial Designs of 2003, and the Law on Copyright and Related Rights of 2003. These laws provide robust protection for trademarks, copyrights, patents, utility models, and industrial designs, fostering an environment conducive to innovation and creativity. Furthermore, the country has made significant strides in aligning its intellectual property laws with international standards, such as joining the World Intellectual Property Organization (“WIPO”) and acceding to various international treaties. At present Cambodia is a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), and the Madrid Protocol Concerning International Registration of Marks.

Despite ongoing legal development, Cambodia has already established relatively efficient procedures for registering and enforcing important IP rights.

II. TRADEMARKS

Trademarks and related rights are principally protected under the Law on Marks, Trade Names, and Acts of Unfair Competition (the “Trademark Law”), adopted on January 08, 2002. The Law sets out the requirements for registering a trademark and also provides for a range of protection for trademark owners. Under the Trademark Law, a mark cannot be registered with the Department of Intellectual Property Rights of the Ministry of Commerce of Cambodia (the “DIP”) if it aligns with one of the following:

If it is incapable of distinguishing the goods or services of one enterprise from those of another enterprise;
If it is contrary to public order or morality or good custom;
If it is likely to mislead the public or trade circles, regarding the geographical origin of the goods or services concerned or their nature or characteristics;
If it is identical with, or is an imitation of or contains as an element, an armorial bearing, flag and other emblems, a name or abbreviation or initials of the name of, or official sign or hallmark adopted by any State, Intergovernmental Organization or Organization created by an international convention unless authorized by the competent authority of that State or Organization;
If it is identical with, or confusingly similar to, or constitutes a translation of, a mark or trade name that is well-known in the Kingdom of Cambodia for identical or similar goods or services of another enterprise;
If it is identical with, or confusingly similar to, or constitutes a translation of a mark or trade name that is well-known and registered in the Kingdom of Cambodia for goods or services that are not identical or similar to those in respect of which registration is applied for, provided that use of the mark in relation to those goods or service would indicate a connection between those goods and service s and the owner of the well-known mark that the interests of the owner of the well-known mark are likely to be damaged by such use; or
If it is identical with a mark belonging to a different proprietor and already on the Register, or with an earlier filing or priority date, in respect of the same goods or services or closely related goods or services, or if it so nearly resembles such a mark as to be likely to deceive or cause confusion.

Trademark Registration is valid for ten (10) years and renewable for successive ten-year terms. In the sixth year of the initial term, and of each renewal term, the mark owner is also required to submit an affidavit of use or non-use and pay an official fee. If the owner of the registered mark fails to file the Affidavit within the prescribed timeline, the registered mark shall be removed from the registry.

When a trademark is duly registered in Cambodia, the Trademark Owner shall be entitled to the enjoyment of their exclusive rights over their trademark. This prohibits a third party from exploiting the registered mark and/or a similar or identical mark in the commercial context. In the event of exploitation, the Trademark Owner has the right to prevent others from infringing on their mark. The three main enforcement options are:

File a lawsuit in a civil court for damages and/or specific relief,
Request the customs authorities suspend the clearance of imported infringing goods, and
Seek criminal prosecution and/or fines.

Notably, under the Paris Convention, applicants who have registered a mark in another member country will receive priority in registering that mark in Cambodia. Having become the 95th member of the Madrid System in 2015, Cambodia can now be either the designated state or the state of origin when applying for a trademark in multiple countries. Since becoming a signatory to the Madrid Protocol, there has been a significant increase in trademark applications.

Furthermore, it is now possible for both local and foreign Certification Marks to be registered in Cambodia¹. To ease the registration process as well as encourage applicants to register their trademarks, Cambodia has made it possible for applicants to register their trademark(s) via the online system².

III. PATENTS & UTILITY MODELS

Patents and Utility Models protect the technical aspects of inventions, and it is governed by the Law on Patents, Utility Models, and Industrial Designs (the “Patent Law”) adopted on November 28, 2002..

Under the Patent Law, a Patent is defined as the title granted to protect an idea of an inventor that permits in practice the solution to a specific problem in the field of technology, and it may be, or may relate to, a product or a process. At the same time, a Utility Model Certificate is a certificate that is granted for the protection of a Utility Model, which is any invention that is new and industrially applicable and may be, or may relate to, a product or process.

To obtain a Grant of Patent or Utility Model, the invention must meet the criteria set out under the Patent Law. For a Patent, it needs to be new, involve an inventive step, and be industrially applicable. Whereas, for a Utility Model, there is no requirement for an inventive step. This is the key difference between the Patent and Utility Model; while a utility model can be obvious, a patentable invention must possess a non-obvious element.

Furthermore, not all inventions can be protected, the Patent Law excludes patent protection for certain types of inventions, including:

discoveries, scientific theories, and mathematical methods;
schemes, rules, or methods for doing business, performing purely mental acts, or playing games;
methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body, excluding products for use in any of those methods;
plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals;
plant varieties.

The Patent Law also excludes inventions that are not socially “useful”, such as illegal narcotics, as they would harm public health or morality.

Both patent and utility model applications are filed with the Department of Industrial Property of the Ministry of Industry, Science, Technology, and Innovation (the “DIP-MISTI”). In exchange for a patent or a utility model, the inventor must be required to disclose the invention to the public. This promotes the growth of public knowledge, which becomes accessible to everyone once the protection period expires. Patents last for a non-renewable 20-year term from the date of filing, while utility models have a shorter validity period of 7 years. As utility models are less inventive than patented inventions, they are deemed to merit a shorter term of exclusivity. Owners of either are required to pay an annual maintenance fee to maintain and keep the registration alive.

The Patent Owner has the right to exclude others from making, importing, stocking, offering for sale, or using infringing products. Both licensees and the patent owner have the right to bring a civil suit for monetary damages and injunctive relief. Cambodian law does not, however, provide procedures for suspending customs clearance of the infringing goods. Furthermore, Patent Owners shall be aware that their rights are subject to revocation and abridgment by MISTI. In Cambodia, MISTI has the right to exploit a patented invention itself or grant permission to a third party to do so, to promote a public interest after the expiry of the 20-year protection period (e.g. national defense, nutrition, health, and development). In case of patent infringement, the patent owner may institute court proceedings against the infringer.

To promote patent filings and their protection, the Ministry of Industry and Handicraft (current MISTI) on behalf of the Kingdom of Cambodia has signed various MOUs and has become a member of international instruments with other International IP Office and International Organizations, such as:

Memorandum of Understanding on the Co-operation in Industrial Property (“MOU”) between the Ministry of Industry and Handicraft (currently MISTI) and the Intellectual Property Office of Singapore (“IPOS”) dated January 20, 2015, and valid until January 14, 2025, after the renewal was made on January 14, 2020. This MOU allows either MISTI or IPOS to be the representative of either state to receive patent design applications. IPOS functions as the search and examination authority for patents on behalf of MISTI and MISTI recognizes patents granted through IPOS.
A Joint Statement of Intention on Cooperation for Facilitating Patent Grant (“CPG”)between Cambodia and Japan signed on May 4, 2016, allows applicants to expedite patent application processing in Cambodia for patents already registered in Japan. MISTI does not conduct further examination if a successful examination has been conducted by the Japan Patent Office.
The Patent Cooperation Treaty (“PCT”)acceded by Cambodia on September 08, 2016, and entered into force on December 08, 2016. This allows international patent applications filed on or after December 8, 2016, to designate Cambodia for patent filing within 30 months from the priority date of the international application.
Agreement on European Patents Validation entered into force on March 1, 2018, this agreement allows a European patent filed from March 1, 2018, to be validated in Cambodia.
Memorandum of Understanding (“MOU”) on the Intellectual Property Cooperation between the State Intellectual Property Office of the People’s Republic of China (“SIPO”) signed on September 21, 2017, and came into effect in April 2018. This MOU allows the Chinese patent application filed on or after January 22, 2003, granted by SIPO to be validated, registered, and take effect in Cambodia by following the Cambodia formality registration.

IV. INDUSTRIAL DESIGNS

To qualify for protection, the industrial design must be new and not contrary to public order or morality. However, technical product features are not covered by Industrial Design protection, as they fall under the domain of patent law. Furthermore, the protection does not extend to arbitrary features of appearance.

Under the Memorandum of Understanding (MoU) between MISTI and IPOS, the same rules also apply to the recognition of the Industrial Design registered by either MISTI or IPOS.

V. COPYRIGHT

In compliance with the WTO’s obligation, Cambodia enacted the Law on Copyright and Related Rights (the “Copyright Law”) to protect original works. Under the Copyright Law, Work is defined as a product in which thoughts or sentiments are expressed creatively, and which falls within the literary, scientific, artistic, or musical domain. It includes books, sculptures, architecture, computer programs, paintings, photographs, musical compositions, and many other types of work. A work must be “original”, which means that it must be the true intellectual creation of its author.

The Copyright Law protects the following subject matter:

All kinds of reading books or other literary, scientific, and educational documents;
Lectures, speeches, sermons, oral or written pleadings, and similar works;
Dramatic works and musical dramas;
Choreographic works, whether modern or adapted from traditional works, or folklores;
Circus performances and pantomimes;
Musical compositions, with or without words;
Audio-visual works;
Works of painting, engraving, sculpture, or other works of collages, or applied arts;
Photographic works or those realized with the aid of techniques similar to photography;
Architectural works;
Maps, plans, sketches, or other works pertaining to geography, topography, or other sciences;
Computer programs and the design, encyclopedia, and documentation relevant to those programs;
Products of collage work in handicraft, hand-made textile products, or other clothing fashions.

Authors are granted both Economic and Moral Rights to their works. Economic rights refer to the exclusive rights to exploit the work and prevent others from making copies or derivative works. For most authors, the economic rights expire fifty years after the author’s death. However, special rules apply for anonymous, pseudonymous, posthumous, collective, and audiovisual works. Moral rights, on the other hand, allow an author to prevent the destruction or modification of their work, to insist on public attribution as the author, and to decide on the manner and timing of the work’s publication.

Copyright protection begins the moment the author creates the work. Moral Rights last forever and they extend beyond the life of the author and pass on to their heirs. However, the protection of Economic Rights starts from the date of the creation of a work, and it covers the life of the author and the whole 50 (fifty) years following their death.

Unlike Trademarks, Patents, and many other forms of IPRs, Copyright does not necessitate registration. Works are protected automatically from the time of their creation. Nevertheless, the Law provides a voluntary procedure to register works with the Ministry of Culture and Fine Art, which will enable the author to receive a registration certificate protecting his original work. Though the Law does not require such registration, it may facilitate the enforcement of an author’s rights in administrative, or judicial, proceedings.

Under the Law, a Contract of Exploitation or a Contract Transferring the economic rights of the author must be stated in writing. The transfer of rights for exploitation may be done wholly or partly. The author will receive the benefit from this transfer by the provisions of the contract.

On March 27, 2019, Cambodia acceded to the Beijing Treaty on Audiovisual Performances (the “Beijing Treaty”). The Treaty grants performers four kinds of economic rights for their performances fixed in audiovisual fixations, such as motion pictures: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available. Furthermore, Cambodia has become the latest member of the Berne Conventions for the Protection of Literary and Artistic Works through its accession back on December 9, 2021. This means that foreign copyright owner can protect their rights in Cambodia in a more effective manner.

VI. GEOGRAPHICAL INDICATIONS

The Law on Geographical Indication (GI) was promulgated on January 20, 2014 (the “GIs Law”). Under the GIs Law, a Geographical Indication is a distinctive name, symbol, and/or any other sign used on certain products that are associated with a specific location, where the quality or reputation of the goods is attributable to its geographical origin.

Furthermore, a GI cannot be registered if:

It contradicts laws and regulations, morality, religion, good custom, or public order;
It has the potential to mislead or confuse the public on the characteristics, the nature, the
quality, the place of origin, the production process of the goods and/or its use;
It is considered a generic term.

Unlike the previous law on GI registrations, which protected for only 10 years from the filing date, a registered GI, under the new law, is protected from the filing date, until any cancellation is affected.

Two Cambodian GIs were registered with the Ministry of Commerce on April 02, 2010, before the promulgation of the Law on GIs, one being Kampot Pepper, and the other Kampong Speu Palm Sugar.

Furthermore, Cambodia also become a member of the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, on March 09, 2018 (the “Geneva Act of the Lisbon Agreement”). This ensures further protection for GIs owner both local and foreign.

VII. INTEGRATED CIRCUITS

Integrated circuits (popularly known as microchips) are the core components of the information technology industry. They are essential parts of any digital equipment and have been incorporated into a great variety of other industrial articles, ranging from machine tools to all kinds of household and consumer devices. To fulfill the obligations under the WTO, MISTI’s predecessor, the Ministry of Industry and Handicraft has issued a Prakas on the Registration of Layout-Design of Integrated Circuit to govern and protect integrated circuits in Cambodia. Under the Prakas, an Integrated Circuit is defined as a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all the interconnections are integrally formed in or on a piece of material, and which is intended to perform an electronic function. Whereas Layout Design refers to a three-dimensional disposition of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture.

The layout design of an integrated circuit can be registered with MISTI along with other IPs including patents, utility models, and industrial design. To be eligible for registration, the design must not have been commercially exploited before or have been subject to commercial exploitation anywhere in the world for a period of not exceeding two years. In addition, it must be an original creation, reflecting the intellectual effort of its creator and not commonly found among other designers and manufacturers of integrated circuits at the time of its creation.

Once registered, the protection for integrated circuit layout designs is granted for ten years. However, to maintain the validity of the registration, annual payment is required.

VIII. TRADE SECRETS AND UNDISCLOSED INFORMATION

all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial, commercial, or service activities of a competitor;
false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial, commercial, or service activities of a competitor;
c) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity of the goods.

– Article 23 of The Law concerning Marks, Trade Names, and Acts of Unfair Competition

– Article 221 of the Law on Negotiable Instruments and Payment Transactions

– Article 47 of the Law on Banking and Financial Institutions

– Articles 10 to 15 of the Law on Civil Code

– Article 308 of the Criminal Code

– Article 58 of the Law on the Bar

IX. RIGHT OF PUBLICITY

X. SUMMARY OF IP PROTECTION IN CAMBODIA

Name	Trust Fund Size	Administrative Fee	Certificate Fee
Trademark	Any visible sign capable of distinguishing the goods or services of an enterprise	10 years, renewable indefinitely	Mandatory Mandatory Ministry of Commerce
Patent	Inventions that are new, industrially applicable, and involve an inventive step	20 years with an annual fee	Mandatory Ministry of Industry. Science, Technology & Innovation
Utility Model	Inventions that are new and industrially applicable	7 years with an annual fee	Mandatory Ministry of Industry, Science, Technology & Innovation
Industrial Design	Any composition of lines or colors, or any three-dimensional forms, or any material, so long as it gives a special appearance to a product	5 years, renewable twice	Mandatory Ministry of Industry, Science, Technology & Innovation
Copyright	Original works of authorship	Life of the author + 50 years, with certain exceptions	Mandatory Ministry of Culture & Fine Arts
Geographical Indications	A name or sign used on a product that corresponds to a specific location, where the quality or reputation of the goods is essentially attributable to its place of origin.	Permanent unless cancellation or invalidation	Mandatory Ministry of Commerce
Integrated Circuit Layout Design	A product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material, and which is intended to perform an electronic function	10 years, nonrenewable invalidation	Mandatory Ministry of Industry, Science, Technology & Innovation

Reference:

¹ Prakas No. 293 on the Procedure for Registration and Protection of Certification Marks issued by the Ministry of Commerce on August 30, 2016.

² Prakas No. 125 on the procedure for TM E-filing both local and foreign marks issued by the Ministry of Commerce on May 4, 2017

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 situations. For more details or any question related to the IP Protection in Cambodia , please contact our professionals via [email protected].

I.	INTRODUCTION
II.	TRADEMARKS
III.	PATENTS & UTILITY MODELS
IV.	INDUSTRIAL DESIGNS
V.	COPYRIGHT
VI.	GEOGRAPHICAL INDICATIONS
VII.	INTEGRATED CIRCUITS
VIII.	TRADE SECRETS AND UNDISCLOSED INFORMATION
IX.	RIGHT OF PUBLICITY
X.	SUMMARY OF IP PROTECTION IN CAMBODIA

LAW BLOG

Facebook	fb.com/bnglegal
Website	cambodianlaw.wordpress.com

BNG Legal believes expanding access to legal information is crucial to rule of law. To that end, several of our legal professionals write a blog discussing recent developments in the legal landscape.

Types of Trusts, Trust Registration, and Trust Licenses under the Cambodian Trust Law 2019 (Mar, 2024)

Posted on March 1, 2024 by admin

1. INTRODUCTION

The Law on Trusts was promulgated in 2019 (“Trust Law”) to manage trusts which are established in Cambodia. The trust law determines not only the rules and procedure for the establishment, registration, management and control of financial trusts, but also of all types of trusts established in Cambodia. Previously, financial trusts were managed by Sub Decree No. 476 ANKr.BK (“Sub Decree No. 476”) dated 26 August 2013. The Trust Law does not invalidate those trust registrations under this Sub-Decree, but brings those registrations under the Trust Law (Art. 55 of the Trust Law).

2. TYPES OF TRUSTS

Commercial trusts are created to make a profit for the benefit of the trust contributor(s). The beneficiary can be, for instance, a pension or an education foundation.
Public trusts are created for the benefit of the Cambodian people. They pertain to the development of the banking and microfinance sectors in Cambodia and other public benefits. The financial trusts defined under Sub Decree 476, which is still in force, fall within the category of public trusts.
Social trusts are created through a donation or a will to a special fund for the cultural, educational, humanitarian, religious or scientific benefit of the general public. These trusts cannot seek profit or conduct any commercial activity.
Private trusts are created for the benefit of the grantor by natural persons who can be either alive or have made a will.
Financial Trust: Funds received from foreign donors that have entered into an agreement with the Royal Government of Cambodia to provide funds for the development of the banking and finance sector in Cambodia.

3. TRUST PARTIES

A. Trust Settlor/Contributor to Trust

The trust settlor or Contributor to the Trust may be one or more natural person(s) or legal entity(ies). They may request to establish one or many trusts of either the same or different types of trusts. In the event that there are many trust settlors or contributors to a trust, they shall create a joint agreement to establish the trust and then request approval from the trust regulator (Art. 5 of Prakas No. 003).

After the live birth registration, the competent civil registrar shall issue an original copy of the birth certificate to the informant free of charge (Art. 27 of LCRVSI).

B. Beneficiary

The trust settlor or contributor to the trust with the assistance of the trustee shall determine the actual beneficiary in the trust instrument and shall submit to the Trust Regulator the information and the determination of the beneficiary identity with truth, clarity and without fraud nor with any involvement in money laundering, terrorist financing and proliferation financing Art. 6 of Prakas No.003).

C. Trustee

Who can be a trustee?

Natural person or group of natural persons
Legal entity or group of entities
Mixed group of natural persons and legal entities. (Art. 20 of the Trust law)

Nobody can be appointed or conduct activities as a trustee or a trust representative in Cambodia without receiving the necessary license/permit/registration from the Director General of the Trust Regulator.

* Requirements for the Trust License of a Legal Entity/Legal Person

As a company incorporated and registered in the Kingdom of Cambodia.
Having tax registration in accordance with the taxation law and regulations.
Shall have minimum capital depending on the types of trust, as follows:
- Public Trust: 6,000,000,000 Riels (Approx. US$ 1,500,000)
- Commercial Trust: 4,000,000,000 Riels (Approx. US$ 1,000,000)
- Social Trust: 2,000,000,000 Riles (Approx. US$ 500,000)
- Individual Trust: 600,000,000 Riels (Approx. US$ 150,000)
an applicant shall keep a security bond in the amount of 15% of the minimum capital of the company in the account of TR at National Bank of Cambodia (NBC).
Fulfil Human Resource Requirements (Director, CEO, Operation Manager, Compliance Officer and accountant are the approved persons recognized by the TR and trustee as a natural person received a license from Director General of TR).
Having a director and senior staff who are not working as a director and senior staff of other trust companies, having not previously been a director of a company whose license was rescinded, and having not been involved in money laundering, terrorist financing and proliferation financing.
Having the building and compound appropriately located and separated from other business.
Having the required IT system, tools and physical materials for providing service as trust company.
Having Operational Rules.
Having a three-year business plan commencing date of application.
Having appropriate Policy for Risk Management and Internal Inspection.
Having Knowing Customer Principle.
Having Code of Conduct.
Having implementation and monitoring principle on actions against money laundering, terrorist financing and proliferation financing.

=> Official Fees for the Trust License of Legal Entities/Legal Person

Application fee for license/permit/registration 20,000 Riels (US$ 5) per copy
Document study fee for license request 4,000,000 Riels (US$ 100)
Document study fee for permit request 2,000,000 Riels (US$ 500)

=> License Fee:

For a public trust: 40,000,000 Riels (Approx. US$ 10,000) for the first 2 years and 60,000,000 Riels (Approx. US$ 15,000) for renewal of 3 years
For a commercial trust: 30,000,000 Riels (Approx. US$ 7,500) for the first 2 years and 45,000,000 Riels (US$ 11,250) for renewal of 3 years
For a social trust: 20,000,000 Riels (Approx. US$ 5,000) for the first 2 years and 30,000,000 Riels (Approx. US$ 7,500) for renewal of 3 years
For an individual trust: 20,000,000 Riels (Approx. US$ 5,000) for the first 2 years and 30,000,000 Riels (Approx. US$ 7,500) for renewal of 3 years

=> Permit Fee

For a public trust: 16,000,000 Riels (Approx. US$ 4,000) for the first 2 years and 24,000,000 Riels (Approx. US$ 6,000) for renewal of 3 years
For a commercial trust: 12,000,000 Riels (Approx. US$ 3,000) for the first 2 years and 18,000,000 Riels (Approx. US$ 4,500) for renewal of 3 years
For a social trust: 8,000,000 Riels (US$ 2,000) for the first 2 years and 12,000,000 Riels (Approx. US$ 3,000) for renewal of 3 years
For an individual trust: 8,000,000 Riels (Approx. US$ 2,000) for the first 2 years and 12,000,000 (Approx. US$ 3,000) Riels for renewal of 3 years.

=> Registration fee for trust executor/trust safety protector 4,000,000 Riels (Approx. US$ 1,000) for 1 years.

Requirement for the Trust License of a Trustee as a Natural Person
A Trustee as a natural person may receive the license as either:
- A trustee as an independent natural person of an individual trust or other trusts; or
- A trustee as a natural person of a trust company.
A Trustee as an independent natural person may be the trustee of trust property, the value of which does not exceed 10,000,000,000 Riels (Approx. US$ 2,500,000). The trustee as an independent natural person may request to operate the trust with the registered trust property having the value over 10,000,000,000 Riels (Approx. US$ 2,500,000) to be approved by the Director General of TR. (Art. 23 of Prakas No. 003).

=> Requirement for the License of a Trustee as a Natural Person (of a trust company)

Good qualification and behavior
A person of full capacity and having residence in Cambodia
Fulfil the conditions to be a trustee of a trust company
Letter of agreement with the applicant to be a trustee as a natural person of the company from the trust company
Fulfil the qualification as stated in point 5 of paragraph 1 of Article 17 of Prakas 003
Other requirements (Art. 26 of Prakas 003)

C. Trustee

Who can be a trustee?

Natural person or group of natural persons
Legal entity or group of entities
Mixed group of natural persons and legal entities. (Art. 20 of the Trust law)

4. TRUST INSTRUMENT

According to Article 6 of Sub-Decree No. 114 ANKr.BK on Trust Registration dated 02 August 2019 (“Sub-Decree No. 114”), the trust shall be established by a written letter complying with the following form and content:

Name and address of the trustee, beneficiary, and trust settlor and/or nominee settlor and / or trust contributor
Purposes of trust
Legal document certifying the trust property such as:
The certification of origin of trust property
Total amount and / or balance of trust fund
Trust Period
Rights and Obligations of the trustee, beneficiary, and trust settlor and / or nominee settlor and / or trust contributor
Conditions of trust termination
The disposition of the trust upon trust is terminated
Condition of trust amendment
Purpose of investment and / or use of trust property
List of the trust property as the subject to trust
Other components depending on the purposes of the trust settlor and/or nominee settlor and / or trust contributor
Remuneration of a trustee which is determined based on qualification and working experience.

For the form of the Trust Instrument, please refer to Annex 1 of Sub-Decree No. 114.

5. TRUST REGULATOR AND TRUST REGISTRATION

Trust Regulator (https://www.trustregulator.gov.kh)

Whilst Sub-Decree No. 476 and the Trust Law have clearly expressed the jurisdiction of the Ministry of Economy and Finance (“MEF”) as the regulator in the trust sector, Cambodia adopted the law on Organization and Functioning of Non-Banking Financial Services Authority (“LOFNBFSA”) in 2021 establishing the Trust Regulator (“TR”). The TR shall execute the Ministry of Economy and Finance’s jurisdiction as stated in the Trust Law and other relevant regulations in the trust sector (Art. 20 of LOFNBFSA).

The main duties and responsibilities of the TR are clearly stated in Article 24 of Sub-Decree No. 113 ANKr.BK dated 14 July 2021 and Prakas 006 A.S.H.PrK dated 01 October 2021 on Organization and Functioning of Departments and Institutions under the TR.

Trust Registration, Official Fee and Penalty

Whilst Sub-Decree No. 476 and the Trust Law have clearly expressed the jurisdiction of the Ministry of Economy and Finance (“MEF”) as the regulator in the trust sector, Cambodia adopted the law on Organization and Functioning of Non-Banking Financial Services Authority (“LOFNBFSA”) in 2021 establishing the Trust Regulator (“TR”). The TR shall execute the Ministry of Economy and Finance’s jurisdiction as stated in the Trust Law and other relevant regulations in the trust sector (Art. 20 of LOFNBFSA).

The main duties and responsibilities of the TR are clearly stated in Article 24 of Sub-Decree No. 113 ANKr.BK dated 14 July 2021 and Prakas 006 A.S.H.PrK dated 01 October 2021 on Organization and Functioning of Departments and Institutions under the TR.

Registration
According to Article 7 of Sub-Decree 114 on Trust Registration, the trust shall be registered at the Trust Regulator and it is the obligation of the trustee to register the trust. The validity of the certificate of trust registration depends on the term set in the trust instrument or can be set out by the regulator. The validity can be extended through the request of the trustee 60 days before the expiration of the trust registration certificate (Art. 14 of Sub-Decree No. 114). For the application form of trust registration, please refer to Annex 2 of Sub-Decree No. 114 and the registration checklist can be requested from the TR.
The trust shall be valid only if it is registered within three months after the date of establishment of the trust (Art. 28 of the Trust Law).

Official Fee

According to Prakas No. 010 A.S.H.PrK dated 18 February 2022 on the Service Fee of Trust Registration issued by the Non-Banking Financial Services Authority, the applicant shall pay for the application form for the establishment or registration of the trust in amount of 20,000 Riels (Approx. US$5). The applicant shall then pay for annual administrative fee and certificate fee as follows:

– For a Commercial Trust , annual administrative and certificate fees based on trust fund balance size are as follows:

Nº	Trust Fund Size	Administrative Fee	Certificate Fee
1	Under 400,000,000 Riels (Approx. <US$ 100,000)	40,000 Riels (Approx. US$ 10)	300,000 Riels (US$ 75)
2	From 400,000,000 Riels to 2,000,000,000 Riels (Approx. US$ 100,000 to US$ 500,000)	200,000 Riels (Approx. US$ 50)	500,000 Riels (Approx. US$ 125)
3	More than 2,000,000,000 Riels to 4,000,000,000 Riels (Approx. >US$ 500,000 to US$ 1,000,000)	400,000 Riels (Approx. US$ 100)	600,000 Riels (Approx. US$ 150)
4	More than 4,000,000,000 Riels to 20,000,000,000 Riels (Approx. >US$ 1,000,000 to US$ 5,000,000)	400,000 Riels (Approx. US$ 100)	800,000 Riels (Approx. US$ 200)
5	More than 20,000,000,000 Riels to 40,000,000,000 Riels (Approx. >US$ 5,000,000 to US$ 10,000,000)	2,000,000 Riels (Approx. US$ 500)	800,000 Riels (Approx. US$ 200)
6	More than 40,000,000,000 Riels to 80,000,000,000 Riels (Approx. >US$ 10,000,000 to US$ 20,000,000)	4,000,000 Riels (Approx. US$ 1,000)	2,400,000 Riels (Approx. US$ 600)
7	More than 80,000,000,000 Riels (Approx. >US$ 20,000,000)	8,000,000 Riels (Approx. US$ 2,000)	3,000,000 Riels (Approx. US$ 750)

– For a Public Trust or Social Trust, annual administrative and certificate fees based on trust fund balance size are as follows:

Nº	Trust Fund Size	Administrative Fee	Certificate Fee
1	Under 400,000,000 Riels (Approx. <US$ 100,000)	40,000 Riels (Approx. US$ 10)	200,000 Riels (Approx. US$ 50)
2	From 400,000,000 Riels to 2,000,000,000 Riels (Approx. US$ 100,000 to US$ 500,000)	120,000 Riels (Approx. US$ 30)	300,000 Riels (Approx. US$ 75)
3	More than 2,000,000,000 Riels to 4,000,000,000 Riels (Approx. >US$ 500,000 to US$ 1,000,000)	200,000 Riels (Approx. US$ 50)	400,000 Riels (Approx. US$ 100)
4	More than 4,000,000,000 Riels to 20,000,000,000 Riels (Approx. >US$ 1,000,000 to US$ 5,000,000)	600,000 Riels (Approx. US$ 150)	600,000 Riels (Approx. US$ 150)
5	More than 20,000,000,000 Riels to 40,000,000,000 Riels (Approx. >US$ 5,000,000 to US$ 10,000,000)	1,000,000 Riels (Approx. US$ 250)	1,000,000 Riels (Approx. US$ 250)
6	More than 40,000,000,000 Riels to 80,000,000,000 Riels (Approx. >US$ 10,000,000 to US$ 20,000,000)	1,500,000 Riels (Approx. US$ 375)	2,000,000 Riels (Approx. US$ 500)
7	More than 80,000,000,000 Riels (Approx. >US$ 20,000,000)	2,000,000 Riels (Approx.US$ 500)	3,000,000 Riels (Approx. US$ 750)

– For a Private/Individual Trust, annual administrative and certificate fees based on trust fund balance size are as follows:

Nº	Trust Fund Size	Administrative Fee	Certificate Fee
1	Under 400,000,000 Riels (Approx. <US$ 100,000)	40,000 Riels (Approx. US$ 10)	200,000 Riels (Approx. US$ 50)
2	From 400,000,000 Riels to 2,000,000,000 Riels (Approx. US$ 100,000 to US$ 500,000)	120,000 Riels (Approx. US$ 30)	300,000 Riels (Approx. US$ 75)
3	More than 2,000,000,000 Riels to 4,000,000,000 Riels (Approx. >US$ 500,000 to US$ 1,000,000)	200,000 Riels (Approx. US$ 50)	400,000 Riels (Approx. US$ 100)
4	More than 4,000,000,000 Riels to 20,000,000,000 Riels (Approx. >US$ 1,000,000 to US$ 5,000,000)	400,000 Riels (Approx. US$ 100)	600,000 Riels (Approx. US$ 150)
5	More than 20,000,000,000 Riels to 40,000,000,000 Riels (Approx. >US$ 5,000,000 to US$ 10,000,000)	1,000,000 Riels (Approx. US$ 250)	1,200,000 Riels (Approx. US$ 300)
6	More than 40,000,000,000 Riels to 80,000,000,000 Riels (Approx. >US$ 10,000,000 to US$ 20,000,000)	1,600,000 Riels (Approx. US$ 400)	1,600,000 Riels (Approx. US$ 400)
7	More than 80,000,000,000 Riels (Approx. >US$ 20,000,000)	2,000,000 Riels (Approx. US$ 500)	2,000,000 Riels (Approx. US$ 500)

Penalty
A trustee who operates the trust without trust registration shall be fined by the trust inspectors as follows:
Fine from 20,000,000 Riels (Approx. US$ 5,000) to 50,000,000 Riels (Approx. US$ 12,500) and the trustee must immediately stop any trust activities, and requires the trustee to register the trust at TR.
In case of any subsequent offense, the fine shall be from 50,000,000 Riels (Approx. US$ 12,500) to 100,000,000 Riels (Approx. US$ 25,000) and/or imprison from 01 month to 01 year (Art. 43 of Trust Law).

6. CONCLUSION

The trust sector is now regulated and governed by the Trust Regulator under the provisions of the Trust Law, the Law on Organization and Functioning of Non-Banking Financial Service Authority and other related regulations.
There are five main types of trust governed by the trust regulators: public trust, commercial trust, social trust, individual trust, and financial trust.
The trust parties consists of the trust settlor or contributor to trust, the trustee and the beneficiary. The trustee may be a natural person or a legal entity who has received a license/permit/registration from the Trust Regulator. The trustee shall apply for the license/permit/registration from the TR. Any failure of a trustee to comply with the provisions on license/permit/registration shall result in financial penalty and/or imprisonment (Implementation of Imprisonment in Lieu of Payment).
The trust shall be registered by the trustee at the Trust Regulator. Any failure of a trustee to register the trust at the Trust Regulator will result in financial penalty and/or imprisonment.
For the real estate sector, the trust mechanism as a fully and legally recognized method of foreign ownership of land may come to replace the nominee mechanism as the traditional practice in real estate purchasing and management.

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 situations. For more details or any question related to the Types of Trusts, Trust Registration, and Trust Licenses under
the Cambodian Trust Law 2019, please contact our professionals via [email protected].

Civil Registration in Cambodia (Feb, 2024)

Posted on February 1, 2024 by admin

1. INTRODUCTION

On 29 December 2000, the Royal Government of Cambodia issued Sub-Decree No. 103 to define the formality and the procedure for Civil Registration affairs in the Kingdom of Cambodia. The Sub-Decree has, until recently, been the primary legislation for civil status registration and the main source for registrars to use for civil registration in the Kingdom.
Responding to the population growth and the need for population management, the Law on Civil Registration, Vital Statistics and Identification (“LCRVSI”) was promulgated on 01 July 2023. This law sets out the rules and procedures relating to civil registration, residence registration, vital statistics, personal identification registration and population registry management, and this law applies to all persons living in territories of the Kingdom of Cambodia in addition to Cambodians living abroad. Whilst this law provides the framework, it is anticipated that many other regulations related to formality and procedure will be issued by the competent ministries and institution for effective implementation.

2. TYPES OF CIVIL REGISTRATION

The three (03) vital events that need to be registered are live birth, death and marriage (Art. 4 of LCRVSI).

* Birth Registration and Certificate

Every live birth must be informed to and registered at the commune/sangkat. An informant shall submit an application for live birth registration within 30 days from the birth date of the child (Art. 17, 28 and 19 of LCRVSI).

After the live birth registration, the competent civil registrar shall issue an original copy of the birth certificate to the informant free of charge (Art. 27 of LCRVSI).

Live Birth registration for the child of foreign parents living in Cambodia shall be done in the same manner as mentioned above (Art. 37 of LCRVSI).

* Death Registration and Certificate

Every death must be informed to and registered at the commune/sangkat. An informant shall submit an application for death registration within 15 days from the date of death (Art. 41, 42 and 43 of LCRVSI).

After the death registration, the civil registrar shall issue an original copy of the death certificate to the informer free of charge (Art. 55 of LCRVSI).

For the death of foreigner in Cambodia, the death registration process is the same as mentioned above, however the civil registrar shall issue the death certificate as soon as possible for enable cross-border transportation of the dead body and cremation or burial (Art. 59 of LCRVSI).

* Marriage Registration and Certificate

Marriage between Cambodians in Cambodia

A marriage is legal only if the man and woman register their marriage in front of a civil registrar at the commune/sangkat where the marriage application was received (Art. 70 of LCRVSI).

After the marriage registration, the competent civil registrar shall issue an original copy of the marriage certificate to the spouses free of charge (Art. 71 of LCRVSI).

* Marriage between Cambodians outside Cambodia

A marriage between a Cambodian man and a Cambodian woman living abroad which has been done in accordance with the form set out by the law where the marriage takes place shall be recognized and registered in Cambodia if that marriage is not contrary to legal provisions of Cambodia. This marriage can be registered in front of the competent consular official of Cambodia abroad where the marriage takes place (i.e. the Cambodian embassy of that nation) or can be registered at commune/sangkat of the spouses by presenting a marriage certificate from the foreign country and other necessary information determined by the Prakas issued by the Minister of Interior.

After the marriage registration, the civil registrar to the consular official of Cambodia or a competent civil registrar shall issue an original copy of the marriage certificate to the spouses (Art. 75 of LCRVSI).

* Marriage between a Cambodian and a Foreigner outside Cambodia

Recognition and registration of marriage between a Cambodian and a foreigner outside Cambodia is conducted in the same manner as a marriage between a Cambodian man and a Cambodian woman as mentioned above.

In present practice, if the couple have a marriage certificate from abroard and would like to register their marriage in Cambodia, they should prepare their application together with marriage certificate and other supporting documents including, but not limited to; a criminal record check, passport copy of the foreigner etc. and submit them to the General Department of Identification. The national civil registrar under the General Department of Identification will issue a decision that the couple can take in order to register their marriage in front of the Commune/Sangkat civil registrar of the residence of the Cambodian party.

* Marriage between Foreigners in Cambodia

A marriage between a Cambodian and a foreigner living in Cambodia shall be done in accordance with Cambodian laws. Form, formality and procedure for marriage between Cambodian and foreigner shall be determined by a Sub-Decree (Art. 76 of LCRVSI).

As of today, the formulation of a Sub-Decree as mentioned in Art. 76 of LCSCCSI has not yet finalized the procedure of marriage between a Cambodian and a Foreigner, thus the provisions stated in the Sub-Decree 183 dated on 03 November 2008 should still be followed.

* Marriage between Foreigners in Cambodia

A foreigner legally living in Cambodia may marry another foreigner legally living in Cambodia in accordance with Cambodian laws. This marriage can be registered in Khmer language accompanied by Latin letters (Art. 77 of LCRVSI).

3. RESIDENCE AND IDENTIFICATION

The Chief of the Commune Administrative Police Post is a residence registrar (Art. 107 of LCRVSI). Residence registration can be done at the Commune Administrative Police Post where the residence of the person in question is located in, or other places as determined by legal documents issued by the Ministry of Interior (Art. 112).

The persons responsible for and are able to request residence registration are as follows: each representative of the residence, the landlord, the tenant or a representative in the case that the house is subject to a lease, the director of the institution or the manager or representative in the case of concentrated residence, an actual resident and other persons or the director of institution or the manager or representative authorized by this law or other laws.

After residence registration, the residence registrar shall issue an original copy of residence certificate to a person who has requested the residence registration (Art. 114).
Identification Registration and Card.

The Cambodian Identification Card is an official document for certifying the identity of each person who is a Cambodian national, and it shall not be allowed to be transferred from person to person nor used create any security right (Art. 129 of LCRVSI).

To implement this article especially on the form, identity, information, validity and determination of age to provide Cambodian Identification Card, the law refers to a Sub-Decree. Therefore, while current practice allows a person to request a Cambodian Identification Card at the age of fifteen (15) years old, the new Sub-Decree will clarify the age requirements upon its issuance.

According to Art. 131 of LCRVSI, a person with Cambodian nationality whose age complies with above Sub-Decree can request for Cambodian Identification Card registration. A person with Cambodian nationality can request for Cambodian Identification Card registration only once. The card can be renewed in case of damage, loss, or expiry or if the recorded information must be corrected (Art. 131).

After the registration of Cambodian Identification Card, the registrar shall provide a Cambodian Identification Card to the person in question (Art. 132).

For those who have received Cambodian nationality, but the civil registration has not yet been completed, they may request to correct their identity data on the Cambodian Identification Card in accordance with the Royal Decree on Naturalization (Art. 133).

4. CONCLUSION

1) Law on Civil Registration, Vital Statistics and Identification was promulgated on 01 July 2023 and provides very comprehensive conditions and universal registration for civil registration and identification in Cambodia that comply with the United Nation Recommendations on Civil Registration and Vital Statistics. The law will be implemented one year after the promulgation, other than Art. 179, 180 and 180 which shall be implemented in accordance with the future Sub-Decrees.

2) There are several points of law and formality which are not yet clear, as the law refers to not-yet-issued Sub-Decrees and Prakas of the Ministry of Interior. Therefore, to effectively implement this law, the issuances of Sub-Decrees and Prakas or Inter-Ministerial Prakas clarifying the requirements, public service fee, form, formality and procedure are required.

3) The law does, however, undoubtedly improve the civil registration and identification process and should result in greater clarity, quality of service, lower payments, and ease of access.

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 situations. For more details or any question related to the Civil Registration and Identification, please contact our professionals via [email protected].

*	Introduction
*	Scope
*	Registration for Simplified VAT
*	Tax Obligation
*	Exempt from Tax Obligation
*	Is Withholding Tax Applying for the Simplified VAT Registered Non-resident Taxpayer Supply?
*	Issuing the Invoice
*	De-register from the Simplified VAT Registration

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BNG Legal believes expanding access to legal information is crucial to rule of law. To that end, several of our legal professionals write a blog discussing recent developments in the legal landscape.

Environmental trusts under the Code of ENR (Jan, 2024)

Posted on January 1, 2024 by admin

1. INTRODUCTION

The Trust law (“TL”) of the Kingdom of Cambodia, promulgated on 02 January 2019, provided for four types of trusts: a commercial trust, a public trust, a social trust and an individual trust. Additionally, the financial trust was introduced by Sub-Decree No. 476 dated 26 August 2013.

An Environmental Trust (“ET”) was introduced by the Code of Environment and Natural Resources (“CENR”) or “the Code” promulgated on 29 June 2023. The purpose of an ET is to encourage environmental protection, sustainability, and conservation. According to Article 865 of the Code, the CENR will come into force one (01) year on from the promulgation of the Code. Therefore, the implementation of ETs shall commence from the beginning of July 2024.

2. MANAGEMENT OF ENVIRONMENTAL TRUSTS

a) Types of ETs

An Environmental Trust may include trust properties for environmental protection, biodiversity conservation, proper and the sustainable use of natural resources and sustainable living and other forms of social and economic benefit distributions in the Kingdom of Cambodia.

ETs shall be managed by the trustee through the transfer of the property or funds as the trust properties from the settlor to the trustee, to manage for the benefit of the beneficiary as determined by the settlor. (Art. 782 of the Code)

b) Competent Authority

According to Article 20 of Law on the Organization and Functioning of the Non-Bank Financial Services Authority, the Trust Regulator shall execute the Ministry of Economy and Finance’s jurisdiction, as stated in the Trust Law which was promulgated through Royal Decree NS/RMK/1119/002 dated 02 January 2019, and other relevant regulations in trust sector.

The Ministry of Economy and Finance shall collaborate with the Ministry of Environment and Natural Resource to prepare the relevant legal documents to clarify the rules and procedures for the establishment, management and control of environmental trusts and fund accounts (Art. 781 of the Code).

c) ET Registration

An Environmental Trust is valid only if registered at the Ministry of Economy and Finance within three (03) months after the start date of the Environmental Trust. The Ministry of Economy and Finance shall decide on the registration application within ninety (90) working days from receiving the request and the complete conditions for the registration. Formality and procedure on Environmental Trust registration shall be determined by the Ministry in of Economy and Finance (Art. 782 of the Code).

d) Termination of an ET

An Environmental Trust shall be terminated in the following circumstances:

Reaching of the deadline set out in the trust instrument
The goal of the trust is reached
Decision with discretion or consensus of the settlors
Decision of the competent court
Other reasons as stipulated in the trust instrument (Art. 787 of the Code)

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. Rights and Obligations of Settlor

A) Rights of the Settlor

Receive information related to trust management including financial report, auditing report and other related documents
Appoint and terminate the trustee in accordance with the conditions set out in the trust instrument. (Art. 773 of the Code)

B) Obligations of the Settlor

Transfer trust property or fund to the trustee to manage and allocate for the benefit of beneficiary
Join to facilitate in the process of transferring the trust property to trustee for managing and allocating
Notify in writing to the Ministry/Institution in charge of economy and finance for change of settlor or trust contributor or modification of a condition of the trust instrument
Follow the conditions set out in the trust instrument and existing provisions. (Art. 774 of the Code)

4. CONCLUSION

An Environmental Trust is a new type of trust created by the Code of Environment and Natural Resource which was promulgated on 29 June 2023, and this code shall be implemented one (01) year from the promulgation.

An Environmental Trust is valid only if it is registered at the Ministry of Economy and, as executed by the Trust Regulator, in the same manner as other types of trusts under the Trust Law, 2019.

Environmental Trusts are very important for those who wish to manage and allocate funds for protecting the environment and natural resources through a trust mechanism once the Code of Environment and Natural Resource is implemented.

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 situations. For more details or any question related to the Environmental Trusts, please contact our professionals via [email protected].

1.	Introduction
2.	Management of Enviromental Trusts
3.	Rights and Obligations of the Parties
4.	Conclusion

LAW BLOG

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BNG Legal believes expanding access to legal information is crucial to rule of law. To that end, several of our legal professionals write a blog discussing recent developments in the legal landscape.

I.	INTRODUCTION
II.	TYPE OF EMPLOYMENT CONTRACTS
III.	TERMINATION OF EMPLOYEES
IV.	CONCLUSION

III. PATENTS & UTILITY MODELS

TABLE OF CONTENTS

LAW BLOG

II. Type of Employment Contracts

III. Termination of Employees

IV. Conclusion

TABLE OF CONTENTS

LAW BLOG

II. Methods for Foreigners to Control Immovable Property in Cambodia

1. Nominee Arrangement

2. Land Holding Company

3. Perpetual Leases (“PL”)

4. Economic Land Concession (“ELC”)

5. Co-owned Building (Strata Title)

6.Trust

III. Conclusion

TABLE OF CONTENTS

LAW BLOG

II. Foreign Marriage Registration in Cambodia

A. Marriage Between Two Foreign Parties

B. Marriage Between a Foreigner and a Cambodian Citizen

C. Marriage Between a Foreigner and a Cambodian Citizen

III. Common Difficulties in Registration

IV. Conclusion

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LAW BLOG

TABLE OF CONTENTS

LAW BLOG

TABLE OF CONTENTS

LAW BLOG

TABLE OF CONTENTS

LAW BLOG

TABLE OF CONTENTS

LAW BLOG

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LAW BLOG

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LAW BLOG

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