The arbitration in Thailand is governed by the Arbitration Act B.E. 2530 (1987). Arbitration means settlement of civil disputes amicably by appointing an impartial arbitrator or a person to judge the dispute and pass an award after hearing to both the parties in dispute. The process saves time and money by not going to the general court to resolve the matter. To invoke arbitration there must be a separate arbitration agreement between the parties or at least a clause for arbitration in the main agreement.
ESSENTIAL INGREDIENTS OF ARBITRATION
- An arbitration agreement or at least an arbitration clause to invoke arbitration
- Either party must not oppose to go for arbitration.
- The appointment of impartial arbitrator.
Place of arbitration.
The arbitration agreement is applicable to all civil disputes concerning commercial transactions viz. Real estate (Rent, Lease etc.) matters, Contracts, Debt enforcement matters etc. But may not be applicable to a dispute between a business enterprise and a consumer concerns goods, services, or any other products supplied principally for private use. It is not applicable to any criminal matter.
The arbitration starts following a dispute as per the arbitration agreement or the arbitration clause of the contract. The clause or the agreement determines the venue of arbitration, person who is going to adjudicate the matter or the Arbitrator, and the Laws to be applicable.
The process of arbitration begins with the appointment of one or several arbitrators. If the arbitration agreement is silent about the appointment of arbitrator then each of the disputing party has to appoint one arbitrator and then the arbitrators so appointed they appoint the third arbitrator. The appointment of arbitrators has to be done with in a stipulated time period if specified in the agreement, if not then with in a reasonable time period. If the parties fail to do so they may file a petition with the competent court for the appointment of arbitrator.
The grounds which are of such serious nature as may prejudice the impartiality of hearing or the rendering of an award an appointment of an arbitrator be challenged or on any other ground to challenge the appointment of a judge as described in Thai Civil Procedure Code may be taken into account.
Before rendering an award, the arbitrator shall hear the case presented by the parties. The arbitrators have the power to make an enquiry into the dispute submitted, as he deems appropriate. Unless otherwise provided by the arbitration agreement or law, an arbitrator shall have the power to conduct any procedure as he deems appropriate taking the principle of natural justice as prime consideration.
Where resort to the power of the court is required in regard to the summons of a witness, the administration of oath, etc. or the application of provisional measures for the protection of interests of the party during arbitration proceedings, or the giving of a preliminary decision on any question of law, an arbitrator may file a petition requesting a competent court to conduct the said proceedings.
FEES, EXPENSES AND REMUNERATION
If it is not specified in the arbitration agreement, the fees and expenses of the arbitration proceedings and the remuneration for arbitrator or umpire, excluding attorney's fees and expenses, shall be stipulated in the award of the arbitrator or umpire. However, the said fees, expenses or remuneration may be reviewed and adjusted by a competent court on petition by the party or the aribtrator. The Court may pass an order, as it deems appropriate, basing upon the principle of reasonableness irrespective of the fact that the award is specified in the agreement or in the award.
FOREIGN ARBITRATION AND ENFORCEMENT OF FOREIGN AWARD IN THAILAND
It means an arbitration conducted wholly or mainly outside the Kingdom of Thailand and any party thereto is not of Thai national. A foreign arbitral award shall be recognized and enforced in the Kingdom of Thailand only if it is covered by the treaty, convention or international agreement to which Thailand is a party.
A party who wants to execute a foreign arbitral award may file a request with a competent court within aperiod of one year from the date of the sending of a copy of the award to the parties.
An applicant for a judgment on foreign arbitral award has to produce the following documents:
- Original or a certified copy of the award;
- Original or a certified copy of the arbitration agreement;
- Translation in Thai of the award and arbitration agreement which certified by a sworn translator, an officer of the Ministry of Foreign Affairs, a diplomatic delegate or a Thai consul.
An application for the execution of a foreign arbitral award under the auspices of the Convention for the Execution of Foreign Arbitral Awards, signed at Geneva, 26 September 1927, shall be sanctioned by the court if the party applying for the execution can prove that the award fulfills all the following conditions that the award:
- has been made in a territory of one of the High Contracting Parties to which the Convention and between persons who are subject to the jurisdiction of one of the High Contracting Parties;
- has been made by virtue of an arbitration agreement sanctioned by the Protocol on Arbitration Clauses, signed at Geneva, 24 September 1923 ;
- has been made in pursuance of an arbitration agreement which is valid under the law applicable thereto;
- has been made by the Arbitral Tribunal provided for in the arbitration agreement or constituted in the manner agreed upon by the parties;
- has been made in conformity with the law governing the arbitration procedure;
- is capable of settlement by arbitration under Thai law;
- is binding and final in the country in which it has been made;
- the recognition or enforcement is not contrary to Thai law or public policy or good morals.