Thailand Law Journal 2010 Spring Issue 1 Volume 13

To understand the nature of this adaptation, we first have to look into the detail of what actually happens in the restorative justice process. In the restorative justice process, if both the victims and the accused or defendants agree to participate in the process, the so-called RJ facilitator will make an appointment with both parities to meet face-to-face. In the meeting, the facilitator will let both parties express their information regarding incidents in the case, consequences effecting life and well-being of each party and each party’s feeling toward the incident. This process is more or less similar to what happen in mediation when a mediator lets the parties express their information regarding the dispute in question in order to learn the actual root causes of the disputes and the real interests of both parties. Although, in mediation, the mediator may use the so-called shuttle diplomacy method to convey the message back and forth between the parties in order to prevent harmful confrontation, the mediator may also let the parties exchange their information face-to-face. If we closely examine this process, we will find out that all essential skills a mediator needs in carrying out the exchange of information between the parties, for example, listening skill, questioning skill and other communication skills, are necessary for the facilitator in restorative justice process as well. Once all information, consequences and effects endured by both parties have been shared and understood, all parties will discuss about how to heal such consequences and effects. In this process, the facilitator will brainstorm the possible conducts by both parties in order to help both the victims and the accused reintegrate themselves into their family, community and society. This process is quite similar to what happens in mediation when a mediator helps the parties to find out the possible solution to their disputes that can satisfy both parties real interest and is acceptable by all parties concerned. Again, the necessary skills that a mediator needs in the process are similar to what a facilitator needs in restorative justice process. Due to the similarities in skills used by both mediators and facilitators, in Thailand, we train mediators to be facilitators in restorative justice process by educating the additional knowledge specially needed to successfully achieve the goal of restorative justice process, for example, their roles in the administration of criminal justice.

What is the crucial difference between those two distinct-but-similar processes is the goal and emphasis of each process. For mediation, the primary task of the mediator is to help the parties settle their disputes. If he or she can bring about the settlement, his or her task is virtually completed. For restorative justice, the agreement to compensate for damage by the accused or defendant is not the primary goal of the process. Instead, the facilitator should help the accused or defendant understand the consequences of his or her conduct, and thereby avoid any future incident. Moreover, the facilitator should help the victim heal the wound caused by the accused or defendant’s conduct; in the healing process, the facilitator should help the defendant find his or her proper roles to rectify the consequence of his or her misconduct. In essence, restorative justice emphasizes less on settlement, but more on reintegrating both victims and defendants into community.

3. ARBITRATION
Along side mediation, arbitration has always been a widely-used alternative dispute resolution mechanism. The benefits of arbitration have vastly been recognized, especially in the business community. It almost becomes a standard way for settlement of commercial disputes, both domestic and international. However, the degree of popularity of arbitration, in Thailand, is not consistent in all levels of business and commercial transactions. It can be fairly said that arbitration is more popular in high-value transactions, less used in transactions with relatively not so high value. This is understandable because, in arbitration, there are some costs and expenses that the parties have to consider in determining its cost-effectiveness in that particular transactions, such as the arbitrators’ fee and the institution fee etc. It might be beyond the scope of this paper to discuss in detail of various aspects of arbitration in Thailand. Therefore, in this part, we will take a look at the Thai arbitration law in order to understand the framework within which arbitration is practiced in Thailand. After that, this paper will give you a glimpse of some interesting aspects of arbitration law and practices in Thailand.

3.1 Brief Overview of Thailand’s Arbitration Law and Framework
3.1.1 Background of the Arbitration Law
Arbitration has been a part of the Civil Procedure Code since 1934. The code has provided for two kinds of arbitration, i.e., court-annexed and out-of-court arbitration. In 1987, Thailand enacted the Arbitration Act of 1987 which separately prescribes the laws on out-of-court arbitration, while court-annexed arbitration is still governed by the Civil Procedure Code. The act helps instigate the practice of arbitration in Thailand due to its arbitration-friendly approach. In 2002, the new Arbitration Act has been promulgated. The Arbitration Act of 2002 is based mainly on the UNCITRAL Model Law on International Commercial Arbitration.

The Act applies to both domestic and international commercial arbitration alike. The main reason causing Thailand to adopt a single framework for both types of arbitration is the increasingly intermingled nature of trade and investment transactions in today business community renders it practically complicated to differentiate between domestic disputes and those with international character. Having different laws for different kinds of arbitration will trigger more arguments and controversies as to the applicable law.

The Act, in essence, replicates all vital principles of the UNCITRAL Model Law. It gives the parties the autonomy to frame arbitral proceedings according to what they deem the most efficient way for carrying out their arbitral proceedings. The Act also provides protection for all parties to ensure that the arbitral proceedings offer the parties a reasonable opportunity to be heard and present their claims and arguments.

3.1.2 Thailand and the New York Convention 1958
On December 21, 1959, Thailand accessed to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the New York Convention 1958. On March 20, 1960, Thailand ratified the convention without making any reservation. Since then, enforcement of foreign arbitral awards has become part of the Thai arbitration regime. Many foreign arbitral awards have been constantly enforced by the Thai courts without any undue difficulty. The current Arbitration Act 2002 also explicitly provides for enforcement of arbitral awards, regardless of the place where the awards were made.⁵ The grounds for refusal of enforcement of foreign arbitral awards are the same as those of domestic awards. The act adopts the grounds for refusal of enforcement from the New York Convention 1958 almost verbatim. The criteria, in general, have been strictly applied and construed.