Thailand - Baker & McKenzie International Arbitration Yearbook: 2010-2011

Chirachai Okanurak is a Partner in Baker & McKenzie’s Bangkok office. Mr. Okanurak currently serves as Head of the Firm’s Dispute Resolution Practice Group in Bangkok and is a leading practitioner in dispute resolution, particularly with regard to the construction, finance and infrastructure sectors. He has extensive experience in dealing with matters of insurance, bankruptcy, debt restructuring, breaches of contract, enforcement of assets, defense of insurance claims and responding to events of default.

Timothy Breier is a Consultant at the Bangkok office of Baker & McKenzie. Mr. Breier is a member of the Firm's global Dispute Resolution Practice Group and has extensive experience offering counsel on cases involving real estate, energy, mining and infrastructure sectors, as well as international trade and commerce.

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Originally from Baker & McKenzie International Arbitration Yearbook 2010-2011

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A. LEGISLATION, TRENDS AND TENDENCIES

A.1 Legislative Framework

All arbitrations in Thailand are governed by the Thai Arbitration Act B.E. 2545 (2002) (the “Act”), which replaced the Arbitration Act B.E. 2530 (1987). The earlier act had been widely criticized, because it insufficiently applied the principles of international arbitration law set forth in the UNCITRAL Model Law. Consequently, a significant impetus behind the repeal of the previous act was to largely adopt the UNCITRAL Model Law as a basis for the development of an arbitration system in Thailand so as to keep pace with other advanced nations. The law was also drafted for the explicit purpose of encouraging the settlement of disputes in international civil and commercial matters through arbitration. In this regard, and in order to promote foreign and domestic investment, the Act sets the same standard for enforcement of both domestic and international arbitrations awards. The key provisions of the Act are outlined below.

Table of Contents:

A. Legislation, Trends and Tendencies A.1 Legislative Framework A.1.1 Arbitrability A.1.2 Formalities of the arbitration agreement A.1.3 Validity of an agreement between a governmental agency and a private party A.1.4 Stay of legal proceedings A.1.5 Appointment of arbitrators A.1.6 Duties and qualifications of arbitrators A.1.7 Liability of arbitrators A.1.8 The power of the arbitration tribunal to rule on its own jurisdiction and the separability of the arbitration agreement A.1.9 Interim relief A.1.10 The arbitral proceedings A.1.11 The award A.1.12 Setting aside the award A.1.13 Recognition and enforcement of the award A.1.14 Grounds for refusal of enforcement A.1.15 Appeal against the order or judgment of the court A.2 Arbitral Institutions A.2.1 TAI B. Cases B.1 Arbitration Award under Investment Treaty B.2 Validity of an Arbitration Agreement between a Governmental Agency and a Private Party B.2.1 Expressway case B.2.2 ITV case B.3 Arbitral Proceedings and Appointment of Arbitrators B.4 Arbitrability of Employment Contracts B.4.1 Statutory entitlements not subject to arbitration clause B.4.2 Unfair contracts subject to arbitration B.5 Stay of Proceedings C. Insolvency Issues in Arbitration C.1 Framework for Claiming against Debtor in Bankruptcy C.2 Treatment of Arbitration Proceedings after Issuance of Absolute Receivership Order C.3 Treatment of Arbitration Award Ratified by Thai Court Judgment C.4 Treatment of Foreign Arbitration Aimed at Assets Located outside Thailand C.5 Treatment of Domestic Arbitration Aimed at Assets Located outside Thailand C.5.1 TAI declines to proceed with arbitration claim C.5.2 TAI proceeds with arbitration claim