Arbitration Act

For purposes of the Act, the courts with jurisdiction are the Central Intellectual Property and International Trade Court, a regional Intellectual Property and International Trade Court, the court in whose district the arbitration is being held, the court in whose district either party is domiciled, or the court with jurisdiction over the dispute that was referred to arbitration.

An arbitration agreement is an agreement to settle all or part of an existing or future dispute by arbitration, whether or not the dispute arises from a contract; it may be a clause in a main contract or a separate agreement. It must be evidenced in writing signed by the parties. An arbitration agreement is also deemed to exist where the terms appear in correspondence, fax, telegram, telex or an exchange of data with electronic signatures or other recorded means, or where one party asserts the agreement in a claim or defence and the other does not deny it. A written contract that refers to a document containing an arbitration clause, intending it to form part of the main contract, also counts.

If a party sues on a dispute covered by an arbitration agreement without referring it to arbitration, the defendant may apply to the competent court, no later than the date of filing the answer or within the time allowed for answering, for an order striking the case off the docket (จำหน่ายคดี) so the parties go to arbitration. After a hearing, the court strikes the case off unless the agreement is void, unenforceable or impossible to perform. This is a striking-off, not a stay. While the application is pending, arbitration may be started or continued and an award made.

A party to an arbitration agreement may ask the competent court, before or during arbitration, for interim measures to protect its interests, and the court grants what it could grant in its own proceedings. These measures are ordered by the court. The Act gives the tribunal no express interim-measures power; Section 25 gives it general discretion over procedure. A court order lapses if the applicant does not start arbitration within thirty days of the order or within the time the court sets. An appeal against an order on interim measures is one of the five permitted exceptions to the bar on appeals in Section 45.

The tribunal must have an odd number of arbitrators: if the parties choose an even number, the arbitrators jointly appoint one more as chair, and if the parties cannot agree on the number there is a sole arbitrator (Section 17). Unless the parties set another method, for a sole arbitrator a party applies to the court to appoint if the parties cannot agree; for a panel, each side appoints an equal number and they appoint the chair, and if a party fails to appoint within thirty days of notice, or the arbitrators cannot agree on a chair within thirty days of their appointment, a party may apply to the court (Section 18).

Section 19 requires arbitrators to be impartial and independent, to have the agreed qualifications and to disclose facts that could raise doubt; a party cannot challenge an arbitrator it appointed unless it neither knew nor should have known the ground when appointing. Under Section 20, unless the parties agree otherwise, the challenge is filed in writing with the tribunal within fifteen days of learning of the appointment or the Section 19 facts, and the tribunal may extend that period by up to fifteen days. If the challenge fails, or there is a sole arbitrator, the challenging party may apply to the court within thirty days of receiving notice of the decision, or from the date it learned of the appointment or the facts, as the case may be. The proceedings may continue while the court decides, unless the court orders otherwise.

The tribunal may rule on its own jurisdiction, including the existence or validity of the arbitration agreement. An arbitration clause that is part of a main contract is treated as separate from it, so a ruling that the main contract is void does not affect the clause. An objection to jurisdiction must be raised no later than the statement of defence. If the tribunal rules in a preliminary ruling that it has jurisdiction, a party may apply to the court within thirty days of notice of the ruling, and the tribunal may continue meanwhile.

The parties must be treated equally and given an opportunity to present evidence and arguments. Unless the parties agree otherwise or the Act provides otherwise, the tribunal may conduct the proceedings as it sees fit, including deciding on the admission and weighing of evidence, and may apply the Civil Procedure Code provisions on evidence by analogy. Related provisions cover the seat (Section 26), commencement (Section 27), language (Section 28) and court help with witnesses and documents (Section 33).

The tribunal decides under the law the parties choose; a reference to a country's law means its substantive law unless stated otherwise. If the parties chose no law, the tribunal applies Thai law, except that where a conflict of laws arises it applies the conflict rules it considers appropriate. It may decide on the basis of good faith and fairness only if the parties expressly so authorise. It must follow the contract terms and, in commercial disputes, take account of trade usage.

The award must be in writing and signed by the tribunal; with more than one arbitrator the signatures of a majority suffice if the reason for any missing signature is recorded. Unless the parties agree otherwise, it must state its reasons. It may not go beyond the arbitration agreement or the parties' claims, except for a settlement award under Section 36 or fixing arbitration fees and expenses. It must state the date and the place of arbitration, and the tribunal must send a copy to every party.

A party may apply to the competent court to set aside an award within ninety days of receiving a copy of the award, or, where correction, interpretation or an additional award was requested, from the date the tribunal dealt with that request. The court may set aside an award if the applicant proves incapacity of a party, an agreement not binding under the chosen law (or Thai law), lack of proper notice or inability to present its case, a decision beyond the scope of the agreement or submission (setting aside only the excess part if separable), or a tribunal composition or procedure contrary to the parties' agreement or the Act; or if the court finds that the dispute is not arbitrable by law, or that accepting or enforcing the award would be contrary to public order or good morals. The court may adjourn to let the tribunal remove the ground. Setting aside is Section 40; enforcement is in Sections 41 and 42.

Subject to Sections 42, 43 and 44, an arbitral award, whichever country it was made in, binds the parties and is enforceable on application to the competent court. Where the award was made abroad, the court will give judgment enforcing it only if it falls under a treaty, convention or international agreement to which Thailand is a party, and only to the extent Thailand has bound itself.

A party seeking to enforce an award applies to the competent court within three years of the date the award became enforceable; the court is to hear the application promptly and give judgment promptly. The applicant must produce the original or a certified copy of the award, the original or a certified copy of the arbitration agreement, and Thai translations of both by a sworn translator, an authorised certifying official, or a Thai diplomatic or consular representative in the country where the award or agreement was made.

Section 43: the court may refuse to enforce an award made in any country if the party resisting enforcement proves one of six grounds: incapacity of a party; the arbitration agreement not binding under the chosen law or the law of the country of the award; no proper notice or inability to present its case; a decision beyond the scope of the agreement or submission (the court may enforce a separable in-scope part); tribunal composition or procedure contrary to the parties' agreement or the law of the country of the award; or the award not yet binding, or set aside or suspended by a competent court or under the law of the country of the award (the court may adjourn and require security). Section 44 adds two grounds that the court may apply where it appears to the court: the dispute is not arbitrable by law, or enforcement would be contrary to public order or good morals.

Appeals against court orders or judgments under the Act are barred except in five cases: (1) accepting or enforcing the award would be contrary to public order or good morals; (2) the order or judgment breaches a law concerning public order; (3) it does not match the award; (4) the judge or judges dissented in the judgment; or (5) it is an order on interim measures under Section 16. So an appeal against an interim-measures order is permitted. An appeal goes to the Supreme Court or the Supreme Administrative Court, as the case may be.