Thailand - Chapter 14 - International Commercial Arbitration in Asia - 3rd Edition

Surapol Srangsomwong is Managing Partner of the Bangkok office of Herbert Smith Freehills and is a litigation and arbitration specialist with almost 30 years' experience in Thai dispute resolution.

Christopher Bailey is a Consultant in Herbert Smith Freehills’ Bangkok dispute resolution practice.

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Originally from: International Commercial Arbitration in Asia - 3rd Edition

I. INTRODUCTION

In previous editions of this book, Associate Professor Anan Chantara-Opakorn 1 provided a historical context for the following discussion about arbitration in Thailand. This remains an invaluable summary of the topic from a leading figure in the field; therefore, we reproduce it verbatim below:

There is no clear evidence as to when arbitration first emerged in Thailand. However, arbitration is clearly contemplated in the Code of the Three Great Seals (Kotmai tra sam duang), promulgated in 1805 during the reign of King Rama I. The Code of the Three Great Seals, which bound even the King, was a revision of earlier laws that reflected both Buddhist and Hindu ideas.2 The notion of arbitration under the Code of the Three Great Seals was of a voluntary nature and similar to the modern practice of arbitration.

Table of Contents:

Chapter 14

Arbitration in Thailand
I. Introduction
II. The Legal Framework for International Arbitration in Thailand
A. Applicable Laws
1. Overview
2. Relationship between the Lex Arbitri and the Arbitration rules
3. Key International Treaties and Conventions
B. Choice of Law in Arbitration Proceedings
1. Substantive Law
2. Proof of Foreign Law
3. Procedural Law
4. Law Governing the Arbitration Agreement
5. Choice of Transnational Law
C. Form and Scope of Arbitration Agreements
1. Requirements for a Valid Arbitration Agreement
2. Legal Capacity
D. Arbitrability of Claims
1. General Position
2. Special Cases
E. Selection of and Challenge of Arbitrators
1. Constituting the Tribunal
a. Number of Arbitrators
b. Appointment of Arbitrators
c. Choice of Arbitrators
2. Challenge and Replacement of Arbitrators
F. Place and Language of Arbitration
1. Place of Arbitration
2. Language
G. Conduct of Proceedings
1. Introduction
2. Main Stages of the Arbitration
3. General Principles
a. Party Autonomy
b. Equality of Treatment
c. Right to be Heard
d. Default by a Party
4. Preliminary Meeting
5. Documents
6. Witnesses
a. Factual Witnesses
b. Expert Witnesses
7. Interlocutory Applications
8. The Hearing
9. Confidentiality
H. Interim Measures
1. Interim Measures from the Arbitral Tribunal
a. Available Interim Measures and Related Orders
b. Procedure and Applicable Tests
2. Court Assistance
3. Court Assistance in Aid of Foreign Arbitrations
I. Issuance and Correction of the Arbitral Award
1. Issuance of Award
2. Correction of Award
J. Costs
1. Categories of Costs Incurred
2. Allocation of Costs
a. Applicable Principles
b. Procedure and Taxation
III. Arbitration Practice in Thailand
A. Arbitration Institutions
1. Leading Arbitral Institutions
2. Leading Arbitration-related Organisations
3. Popular Foreign Arbitral Institutions
B. Role of Conciliation
1. Attitude towards Alternative Dispute Resolution
2. Settlement
IV. Enforcement of Arbitral Awards
A. Setting Aside/Challenging Awards
1. Overview
2. Setting Aside
a. Procedure
b. Scope
B. Recognition and Enforcement of Awards
1. Overview
2. Awards Made in Thailand
a. Procedure and Timeline
b. Grounds for Refusing Recognition and Enforcement
3. Foreign Awards
a. Overview
b. Grounds for Refusing Recognition and Enforcement
c. Recognition and Enforcement—in Practice
V. Conclusion