Arbitration in Thailand

Currently, these treaties and conventions are the 1927 Convention on the Enforcement of Foreign Arbitral Awards (Geneva Convention); the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention); and the Treaty of Amity and Economic Relations between the Kingdom of Thailand and the United States of America.

The Arbitration Act of 1987 expressly states that the action for enforcement of arbitral award (by way of a confirmed judgment) must be initiated in a Thai court within one year from the date the award was sent to the parties by the arbitrators. The Act also states clearly the preconditions for enforcement as well as the reservations made by Thailand under both the Geneva and New York conventions. For instance, the court may refuse recognition if the subject matter of the dispute is not resolvable by arbitration or the recognition would be contrary to public policy or the good morals of Thailand. In addition, it must be legally valid and final in the country where the arbitration was held and at least one of the parties to the dispute must be a subject of one of the member countries of these conventions.

Entering Arbitration
Thai courts will compel arbitration if a written agreement to arbitrate exists between the parties.

Interlocutory arbitration may be sanctioned by the courts upon the written request from the litigants concerned, if the court’s view is that expeditions and fair resolutions of the cases can be achieved by arbitration. Such a request may be made at any time during the trial, but must be submitted before the final judgment. An arbitrator will be appointed pursuant to the agreement of the litigants. Failing such an agreement, the court may appoint any arbitrator as it deems appropriate.

Prehearing Procedure
Pre-arbitration remedies are available as “temporary measures before judgment”. Good cause must be shown to the court by a petitioner, that there is an urgent necessity to protect his interests during the arbitration proceedings. Temporary measures are granted by the court in the form of orders for attachment, seizure, restraint or through a cease or desist order.

There are no definite requirements regarding advanced notice to the parties concerned. The court merely wishes to be satisfied that an action by one party be made known to the other party and that this party has sufficient time to respond.

Procedure at the Hearing
Before giving an award, the arbitrators are required to hear all the parties and may make enquiries as they deem appropriate. In the absence of a written agreement of the parties concerned or an order of the court, the arbitrators are also empowered to define issues or disputes and to adopt their own rules and procedures for hearings. The parties may present evidence and examine or cross-examine witnesses during the arbitration proceedings. Through the authority of the court, the arbitrators may summon documents, subpoena witnesses and request witnesses to testify under oath. The rules of evidence and procedure stipulated in the Civil Procedures Code may be made applicable to arbitration mutatis mutandis. Arbitrators’ fees may be fixed by agreement of the parties or by the courts. Witnesses’ fees may be fixed by the arbitrators, taking into consideration the “going rates”, which are generally approved by the courts.

Institutional Arbitration
An institutional arbitration may be conducted in Thailand under the auspices of either the Arbitration Tribunal of the Board of Trade (The Thai Chamber of Commerce) or under the rules called the “Thai Commercial Arbitration Rules”, which were modeled after the ICC’s Conciliation and Arbitration Rules. The Arbitration Office of the Ministry of Justice adopts its own arbitration rules. These rules are quite comprehensive and substantially reflect a constructive combination of the ICC’s, UNICITRAL’s and American Arbitration Association’s rules. The Office has maintained a list of experts and experienced persons, 128 in total, who are capable of serving as arbitrators in such areas as labor, investment, international trade, maritime law, intellectual property, insurance, land, minerals and petroleum, torts and contracts, etc. The Office also makes available to interested parties facilities and office equipment for conciliation and arbitration proceedings at a nominal cost.

Sources of Law
The statutes that deal with the subject matter herein are:

• The Civil and Commercial Code, Section 850-852 and the Civil Procedure Code, Section 138, for conciliation and compromising agreements;

• The Arbitration Act B.E. 2530 (1987) for extra-judicial arbitration; and

• The Civil Procedure Code, Sections 210-222, for interlocutory arbitration.

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