Enforcement
of Foreign Arbitral Award
Foreign arbitral award refers to an award resulting
from arbitration, the proceedings of which were in whole,
or in the most part, conducted outside Thailand and
wherein one of the parties involved in the dispute was
not a person of Thai nationality.
Under
section 29 of the Arbitration Act of 1987, a foreign
arbitral award will be recognized and enforceable in
Thailand, only if it is made in accordance with bilateral
or multilateral treaties or conventions which Thailand
is a party of or has acceded to.
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 inquiries 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 mutates 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.
