International Arbitration

The relevant legislation is the Arbitration Act BE 2545 (2002), which largely follows the UNCITRAL Model Law on International Commercial Arbitration. However, the act does not recognise oral arbitration agreements. In addition to the Arbitration Act, the Civil Procedure Code allows the parties to submit a dispute that is pending in a court of first instance to arbitration (Section 210 of the Civil Procedure Code).

The Arbitration Act does not differentiate between domestic and international arbitration.

Yes, for the most part.

No. Most provisions afford the parties the freedom to run the arbitration proceedings as they wish.

Not in the foreseeable future.

Yes, with no reservation. Thailand ratified the convention on 21 December 1959.

Thailand signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States on 6 December 1985, but has not ratified it. Thailand has also entered into bilateral investment treaties and free trade agreements with select countries; some of these treaties and agreements contain arbitration clauses.

The Arbitration Act does not specify which kinds of disputes are arbitrable and which are not. It follows the UNCITRAL Model Law, which broadly recognises as arbitrable certain disputes that have arisen or may arise between the parties to an arbitration agreement in respect of a defined legal relationship, whether contractual or not. Clear examples of disputes which are not arbitrable are disputes arising from a non-compoundable criminal offence, such as murder, and other offences against the state.

No.

An arbitration agreement must be evidenced in writing and signed by the parties, unless it is:

• contained in an exchange between the parties by means of letters, faxes, telegrams, telex, data interchange with electronic signatures or other means which provide a record of the agreement; or
• referred to in a statement of claim or defence in which the existence of an agreement is alleged by one party and not denied by the other (Section 11 of the Arbitration Act).

Yes. The Arbitration Act provides that the arbitral tribunal is competent to rule on its own jurisdiction, including:

• the existence or validity of the arbitration agreement;
• the validity of the appointment of the arbitral tribunal; and
• the issues of dispute that fall within the scope of its authority.

To this end, an arbitration clause which forms part of the main contract will be treated as an agreement that is independent of the main contract. A decision by the arbitral tribunal that the main contract is null and void will not affect the validity of the arbitration clause (Section 24 of the Arbitration Act).

The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration will be determined by the arbitral tribunal, having regard to the circumstances of the case, including the convenience of the parties (Section 26 of the Arbitration Act).

The parties are free to agree on the language to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal will determine the language to be used in the proceedings. This agreement or determination, unless otherwise specified therein, will apply to any statement by a party, any hearing and any award, decision or other communication by or to the arbitral tribunal (Section 28 of the Arbitration Act).

A challenge to the competence of the tribunal must be raised no later than the date of submission of the statement of defence. The parties will not be precluded from raising a challenge on the grounds that they appointed or participated in the appointment of the arbitrator. A plea that the arbitral tribunal has exceeded the scope of its authority must be raised as soon as the alleged matter occurs during the arbitral proceedings. However, if the arbitral tribunal considers that there are reasonable grounds to delay the challenge, it may allow the party to file a challenge after the expiration of the stipulated period (Section 24 of the Arbitration Act).

Yes. The arbitral tribunal is competent to rule on its own jurisdiction (Section 24 of the Arbitration Act; see also question 3.2).

Yes. If the arbitral tribunal rules, as a preliminary issue, that it has jurisdiction, either party may file a motion requesting the competent court to decide the matter within 30 days of receipt of the ruling on the preliminary issue. While the motion is pending consideration by the court, the arbitral tribunal may continue the arbitral proceedings and render an award (Section 24 of the Arbitration Act).

A minor (ie, someone under the age of 20) may enter into an arbitration agreement with the prior consent of his or her statutory representative; without such consent, the agreement is voidable (Section 21 of the Civil and Commercial Code (CCC)). An arbitration agreement that is entered into by someone who has been adjudged incompetent by the court is voidable (Section 29 of the CCC). A person who has been adjudged quasi-incompetent by the court can validly enter into an arbitration agreement, but must obtain the prior consent of his or her guardian before he or she can submit the dispute to arbitration; without such consent, the submission is voidable (Section 34(11) of the CCC).

A legal or natural person whose property has been put into receivership by the court will be restricted under the bankruptcy law from entering into an arbitration agreement (Section 24 of the Bankruptcy Act BE 2483 [1940]). A limited company, a public limited company or another legal person designated by ministerial regulation which is undergoing court-supervised reorganisation may be restricted from entering into an arbitration agreement pursuant to Section 90(12) of the Bankruptcy Act.

The parties must honour the duties set out in the arbitration agreement and are bound by the award (Section 41 of the Arbitration Act).

No. This is left to the arbitration agreement.

The law of the arbitration agreement is determined by the parties. In the absence of such agreement, the arbitrators will apply Thai law. If there is a conflict of laws, the arbitrators will apply the law determined by the conflict of laws rules which they consider applicable (Section 34 of the Arbitration Act).

The tribunal will uphold an agreement between the parties on the substantive law of the dispute. If the substantive law is unclear, the answer set out in question 6.1 will apply.

The Arbitration Act is silent on the consolidation of separate arbitrations. It is left to the tribunal to determine this pursuant to its general powers to conduct the arbitration (Section 25 of the Arbitration Act), subject to the agreement of the parties.

See question 7.1.

When any claim or liability is transferred, the transferee will be bound by the arbitration agreement concerning such claim or liability (Section 13 of the Arbitration Act). Other than this, the arbitration agreement does not bind other third parties.

Unless otherwise agreed by the parties, the procedure for appointing the arbitral tribunal is as follows:

• In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, either party may request the competent court to appoint the arbitrator.
• Where the arbitral tribunal consists of more than one arbitrator, each party will appoint an equal number of arbitrators and the appointed arbitrators will appoint one additional arbitrator. If either party fails to appoint an arbitrator within 30 days of receipt of notification from the other party or if the appointed arbitrators are unable to jointly appoint the chairperson of the tribunal within 30 days of their appointment, either party may request the competent court to appoint the arbitrator or the chairperson of the tribunal.

If, for some reason, the procedure above results in a failure to appoint an arbitrator, either party may request the court to appoint an arbitrator (Section 18 of the Arbitration Act).

The arbitral tribunal will consist of an uneven number of arbitrators. If the parties have agreed on an even number of arbitrators, the arbitrators will jointly appoint an additional arbitrator, who will act as the chairperson of the tribunal. If the parties fail to agree on the number of arbitrators, a sole arbitrator will be appointed (Section 17 of the Arbitration Act).

An arbitrator must possess the qualifications prescribed in the arbitration agreement or in the arbitration rules (Section 19 of the Arbitration Act).

An arbitrator may be challenged if:

• circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence; or
• he or she does not possess the qualifications agreed to by the parties.

No party may challenge the arbitrator whom he or she has appointed or in whose appointment he or she has participated, except where that party did not become aware or could not have become aware of the grounds for challenge at the time of the appointment (Section 19 of the Arbitration Act).

Unless otherwise agreed by the parties, a party that intends to challenge an arbitrator must, within 15 days of becoming aware of the appointment of the arbitrator or the grounds for the challenge, file a statement stating the grounds for the challenge with the tribunal. Unless the challenged arbitrator withdraws or the other party agrees to the challenge, the tribunal will then decide on the challenge (Section 20 of the Arbitration Act).

In the same manner as the initial arbitrator was appointed, as outlined in question 8.1 (Section 22 of the Arbitration Act).

An arbitrator must:

• be impartial and independent;
• possess the qualifications specified in the arbitration agreement or as prescribed by the institution which supervises the applicable arbitration rules (Section 19 of the Arbitration Act); and
• disclose to the parties any circumstances that may give rise to justifiable doubts as to his or her impartiality or independence, from the time of his or her appointment and throughout the arbitral proceedings, unless the parties have already been informed of them by the arbitrator (Section 19 of the Arbitration Act).

In addition, an arbitrator must comply with the duties imposed on him or her in the arbitration agreement or the applicable arbitration rules (if any).

(a) Procedure, including evidence?

In the absence of agreement by the parties or the provision of this Act otherwise, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate. The powers conferred upon the arbitral tribunal include the power to determine the admissibility, relevance, materiality and weight of any evidence (Section 25 of the Arbitration Act). The arbitral tribunal may apply the provisions of the Civil Procedure Code concerning evidence mutatis mutandis (Section 25 of the Arbitration Act).

(b) Interim relief?

As far as the Arbitration Act is concerned, it is still unclear whether an arbitrator can grant interim relief even if the arbitration agreement or the arbitration rules allow him or her to do so. However, a party to an arbitration agreement may request the court of competent jurisdiction to grant interim relief before or during the arbitration proceedings. If the court considers that the relief is of a nature that can be granted by the court, it will do so. In making such decision, the court will apply the provisions of the court’s procedure mutatis mutandis (Section 16 of the Arbitration Act). If the court grants the interim measure, but the party which requested the measure does not commence arbitration proceedings within 30 days of grant or within the period prescribed by the court, the order will lapse (Section 16 of the Arbitration Act).

(c) Parties which do not comply with its orders?

Parties which do not comply with the court’s orders granting interim relief may be subject to imprisonment, a fine or both (Section 187 of the Penal Code).

(d) Issuing partial final awards?

The Arbitration Act is silent on whether an arbitrator can issue partial final awards; this is left to the parties’ agreement (including the applicable arbitration rules). In the absence of the parties’ agreement and a provision of the Arbitration Act on a particular issue, the act grants the tribunal the power to conduct the arbitration proceedings in the manner it sees fit, which may include the power to issue partial final awards (Section 25 of the Arbitration Act).

(e) The remedies it can grant in a final award?

The remedies that an arbitrator can grant in the final award must not be beyond the scope of the relief sought by the parties, except:

• in an award rendered in accordance with the settlement agreement; or
• in relation to the fixing of arbitration fees, expenses or remuneration of the arbitrator.

Otherwise, the award may be set aside or not enforced by the court (Section 37 of the Arbitration Act).

(f) Interest?

In the absence of a specific request by a party in the written submission, it is unclear whether an arbitrator can award interest on his or her own initiative. In practice, the party concerned will, in its relief sought, request the arbitrator to grant any other remedy that he or she considers appropriate, which will cover the grant of interest.

In the absence of agreement between the parties, the arbitral tribunal, after due inquiry, may proceed with the arbitration without participation by the other party (Section 31 of the Arbitration Act).

Arbitrators acting in the course of their duties are not subject to civil liability, unless their actions constitute misconduct or gross negligence causing damage to a party (Section 23 of the Arbitration Act). An arbitrator who wrongly demands, accepts or agrees to accept property or other benefits for himself or herself, or for another person, in order to discharge or omit to discharge his or her duty is subject to a fine, imprisonment or both (Section 23 of the Arbitration Act).

The role of the court during an arbitration is that of a facilitator:

• It appoints an arbitrator whenever there is a deadlock (Section 18 of the Arbitration Act);
• It prescribes interim measures (Section 16 of the Arbitration Act);
• It subpoenas witnesses, documents and objects, upon request by the arbitral tribunal, an arbitrator or either party, with the consent of the majority of the arbitral tribunal (Section 33 of the Arbitration Act); and
• It determines the arbitration fees, the costs of the arbitration and the arbitrators’ remuneration in the absence of agreement between the parties or upon the request of either party or the arbitral tribunal (Section 46 of the Arbitration Act).

Yes, if the party being sued so requests by no later than the deadline for submitting its answer, unless the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed (Section 14 of the Arbitration Act).

The court of competent jurisdiction (as defined in Section 9 of the Arbitration Act) has the following powers over an arbitration seated in its jurisdiction:

• the power to facilitate arbitration as described in question 9.1;
• the power to determine the jurisdiction of the arbitral tribunal upon the request of one of the parties within 30 days of the arbitration tribunal making a preliminary ruling that it has jurisdiction (Section 24 of the Arbitration Act);
• the power to determine the challenge of an arbitrator if the challenge under the procedure agreed by the parties or, in the absence of which, the challenge as determined by the arbitral tribunal is unsuccessful (Section 20 of the Arbitration Act);
• the power to set aside awards on specific grounds (see question 14) (Section 40 of the Arbitration Act); and
• the power to enforce or refuse enforcement of awards on specific grounds (see question 14).

The court has no power over arbitrations seated outside Thailand.

For the most part, the Arbitration Act allows the parties to choose the manner in which to conduct the arbitration. However, the parties cannot exclude the court’s mandatory powers (as listed in question 9.2) by agreement.

Subject to the parties’ agreement, the tribunal has total discretion as to how to allocate costs.

No.

The law is silent on this issue.

As far as procedure is concerned, unless the parties have agreed otherwise, the award must be in accordance with the majority votes of the tribunal, failing which the chairperson of the tribunal will solely issue the award (Section 35 of the Arbitration Act). The following substantive requirements apply:

The award must be made in writing and signed by the arbitral tribunal. If there is more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal will suffice, provided that the reason for any omitted signature is stated (Section 37 of the Arbitration Act);

Unless the parties have agreed otherwise, the award must state:

• the reasons upon which it is based, or that the award is an award on agreed terms under Section 36;
• the award of arbitration fees, the costs of arbitration and the remuneration of the arbitrators (Article 35 of the Arbitration Act); and
• the date, the place of arbitration according to Section 26 of the Arbitration Act and that the award is deemed to have been made at such place (Section 35 of the Arbitration Act).

This is very much left to the agreement of the parties.

Irrespective of the country in which it was made, an arbitral award will be recognised as binding on the parties and, upon petition to the competent court, can be enforced subject to the following requirements:

• The party seeking enforcement of the arbitral award must file an application with the competent court within three years of the date on which the award becomes enforceable.
• The applicant for enforcement of the award must produce the following documents to the court:
• • an original or certified copy of the arbitral award;
  • an original or certified copy of the arbitration agreement; and
  • a Thai translation of the award and the arbitration agreement by a translator who has taken an oath or who affirmed before the court, or in the presence of an official or a person authorised to administer oath or certified by an official authorised to certify such translations, or by a Thai envoy or consul in the country where the award or the arbitration was made.

Where an arbitral award was made in a foreign country, it will be enforced by the competent court only if it is subject to an international convention, treaty or agreement to which Thailand is a party, and only to the extent that Thailand commits to be bound (Sections 41–42 of the Arbitration Act).

The court may dismiss the application to enforce the award if it finds that:

• the award relates to a dispute that is not capable of settlement by arbitration under the law; or
• enforcement of the award would be contrary to public policy or the good morals of the people (Section 44 of the Arbitration Act).

An award may be set aside if the party filing the motion can furnish proof that:

• a party to the arbitration agreement was under some incapacity under the law applicable to such party;
• the arbitration agreement is not binding under the law of the country agreed to by the parties or, failing any indication thereof, the law of Thailand;
• the party making the application was not given proper advance notice of the appointment of the arbitral tribunal or of the arbitral proceedings, or was otherwise unable to present its case in the arbitral proceedings;
• the award deals with a dispute not falling within the scope of the arbitration agreement or contains a decision on a matter that is beyond the scope of the arbitration agreement (however, if the award on a matter which is beyond the scope thereof can be separated from the part that is within the scope of arbitration agreement, the court may set aside only the part that is beyond the scope of the arbitration agreement or clause); or
• the composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement of the parties or, unless otherwise agreed by the parties, in accordance with the Arbitration Act (Section 40 of the Arbitration Act).

In addition, the award may be set aside by the court if it finds that:

• the award deals with a dispute that is not capable of settlement by arbitration under the law; or
• recognition or enforcement of the award would be contrary to public order or good morals of the people (Section 40 of the Arbitration Act).

The motion to set aside the award must be filed within 90 days of receipt of a copy of the award or after the correction or interpretation or the making of an additional award (Section 40 of the Arbitration Act).

The Arbitration Act is silent on this point, but it is likely that such exclusion would be considered by the court to be against public policy and would be null and void.

The Arbitration Act is silent on this point; it is left to the agreement of the parties.

The parties can make exceptions to confidentiality.