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The Ministry of Justice (MOJ) has promoted ‘arbitration’ as a means of alternative dispute resolution, since it recognises that it is a matter of Thailand’s economic interest to promote arbitration, and to develop an arbitration centre of its own. In developing such a centre, the Thai Arbitration Institute (TAI) was formed in 1990 and under the auspices of the Office of the Judiciary of Thailand.
The Act covers out of court arbitration. Important features of the Act are as follows.
Where court proceedings are commenced in breach of an arbitration agreement, the Courts will, upon the application of the party against whom the proceedings have been commenced, dismiss those proceedings unless the arbitration agreement is found to be void, inoperative, unenforceable or incapable or being performed.
Unless otherwise provided by the arbitration agreement or by law, an arbitrator is empowered to conduct the proceedings as he deems appropriate, having regard to the principle of natural justice.
However, the tribunal must render its award within 180 days from its appointment, unless such time period is extended by agreement of the parties or with the leave of the Court. The consequence of this deadline being breached may render the award unenforceable an, for that reason, it will normally be preferable to exclude by express mention in the arbitration agreement.
The party seeking to enforce an award rendered in Thailand must apply to the court of competent jurisdiction for a judgement confirming the award.
Under section 40 of the Act, the Courts are empowered to deny enforcement in circumstances where ‘an award is contrary to the law governing the dispute, is the result of any unjustified act or procedure, or is outside the scope of the binding arbitration agreement or relief sought by the party.
The language of Section 40 would appear to give the Courts wide discretionary powers to deny enforcement. In particular, the issue of whether an award is contrary to the law governing the dispute would presumably require the Court to decide whether the tribunal had correctly applied the governing law of the contract (Thai or Foreign). Some legal scholars have suggested that the phrase should be interpreted by the Thai Courts as meaning ‘contrary to any law concerning the public order and good morals of Thailand’ and that the words ‘unjustified act or procedure should be construed as meaning ‘ contrary to the principles of natural justice’. However, there is a lack of official guidance on this point.
The court may, upon the application of an arbitrator, issue witness subpoenas, order the disclosure of documents, order that witnesses testify on oath, grant interim measures of protection and give ‘ preliminary decisions’ on any question of law.
There are no restrictions regarding the qualification or nationality of arbitrators.
The Act imposes no restriction on the right of foreign lawyer to represent their clients as counsel in Thai arbitration proceedings. That there are no such restrictions is supported by the fact that the promotional literature of the Arbitration Office indicates that, in case involving foreign parties, foreign lawyers are welcome either as arbitrators or legal advisers. Nevertheless, it would appear that some doubts remains over this issue and certain legal scholars have pointed to Thailand’s Alien Occupation Act, the terms of which would appear to prohibit the participation of foreign lawyers. In such case, a foreign arbitrator or a foreign advisor would be required to obtain a work permit to work in such capacity in Thailand.
In the absence of any specific provision in the arbitration agreement, the court of competent jurisdiction under the Act is the court under the territory where the arbitration proceedings are being conducted, or the court where one of the parties is domiciled, or the court which would otherwise normally have jurisdiction to hear and decide the dispute submitted to that arbitration.
Section 41 to Section 45 of the Act provide the means by which a foreign arbitral award may be recognised and enforced by Thai courts in Thailand.
Under Section 41 of the Act, a foreign arbitral award will be recognised and enforced in Thailand only if it is covered by a treaty, convention, or international agreement to which Thailand is a party.
Thailand did not adopt any reservations when acceding to the New York Convention. As a result, the courts must recognised and enforce foreign arbitral awards even if the awards were made in the territory of a state not party to the New York Convention. Similarly, foreign arbitral awards must be recognised and enforced regardless of the nationality and domicile of the parties in dispute. However, Sections 43 and 44 of the Arbitration Act empower Thai courts to refuse recognition and enforcement of the award on various grounds, for instance, if the award is contrary to public policy or the goods morals of Thailand, or principles of international reciprocity.
As all statements in Court need to be submitted in Thai, unless fluent in both written and spoken Thai, it is advisable for a foreigner to instruct a lawyer in Thailand to act on his/her behalf.
As a result, M & S Law Office 2006 offers all methods of communication to our clients and we do our best to answer client’s queries on the same day. We do our best to represent you and to keep you informed of the progress of the case. We make the effort to tell you, (either by phone, email, fax or letter) every time a step is taken. If things are held up for any reason, we will tell you why. We also make sure that all our communications are in plain clear English.
Proceedings in Civil and Commercial cases in Thailand are governed by the Civil Procedure Code 1935. The rules in the Code are practical, giving the court wide discretion in directing proceedings. It is a fundamental Principle of the Code that all trials must be held in open court and in the presence of all parties except in case of default of appearance or in case of a necessity to maintain order in court...
The main provisions of criminal procedural law in Thailand are contained in the Criminal Procedure Code 1935. This Code applies to criminal case in all courts of Justice except in Kwaeng courts (District Court), Procedural laws in Kwaeng courts are governed by the Setting up and Criminal Procedure of Kwaeng Courts Act 1956.
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