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The party wishing to enforce an arbitral award may request the competent court to do so within the period of 3 years from the date on which the award may be enforced. If the obligation to pay occurs immediately after the award becomes binding, the period will commence immediately. If the debtor has a grace period to repay their debt because of, for example, the terms in a consent award, the period will commence after the expiration of the grace period, because during that period the award may not be enforced against the debtor.
The competent court for enforcing foreign arbitral awards is the Central Intellectual Property and International Trade Court, which has been established to handle disputes and cases that are internationally oriented and give more consideration to trade practices and customs. Judges in this court will sit along side lay judges who have extensive backgrounds in trade or business. The process for enforcing an arbitral award is much more uncomplicated than those of ordinary cases. The party wishing to enforce an award has to file a request with the court asking for the enforcement. The request has to be accompanied by relevant documents, such as a copy of the award, a copy of the arbitration agreement and the translation of such documents into Thai. The court will then serve a copy of the request as well as the relevant documents on the other party, and will conduct an enquiry as to the enforceability of the award. The order of the court cannot be appealed unless it falls into some very limited grounds prescribed by the law6.
3.1.3 Practice of Foreign Arbitrators and Attorneys
Since the year 2000, there is no restriction or limitation as to nationality of persons whom the parties intend to appoint as arbitrators due to the modification on the law governing occupations and professions that can be done by foreigners in Thailand. Therefore, parties can appoint whomever they deem appropriate to be the arbitrators, regardless of their nationality. Regarding lawyers to represent parties in arbitral proceedings, foreign lawyers can represent their clients as such if the laws governing the disputes are foreign laws, or the award will be enforced in other countries. There is, however, a practice of allowing parties to appoint their representatives who look after their interests but do not act as lawyers in arbitral proceedings even though the persons may have educational or practical backgrounds in laws.
3.2 Arbitration Institution and Practices in Thailand
Arbitration has drawn a lot of attention from many corners in Thailand, since the enactment of the then-new Arbitration Act of 1987. The attention has been shown through the implementation or adoption of some kind of arbitration programs by various agencies and organizations to promote the use of arbitration in their works or business. Arbitration then continually grows in Thailand.
3.2.1 Thai Arbitration Institute (TAI)
The first organization to start the wave of attention toward arbitration under the Arbitration Act of 1987 is the Thai Arbitration Institute (TAI). The Institute is first established under the umbrella of the Ministry of Justice which, at that time, was responsible for the administration of the courts of justice in Thailand. The reason that this Institute was established within the framework of the Ministry of Justice was to lend the credibility of the courts that have long been recognized by the general Thai public to the newly established organization the work of which was virtually unknown to the business community and the legal profession at that time. When there was a separation between the Court of Justice and the Ministry of Justice in 2000, the Institute was assigned to be under supervision of the Court of Justice ever since.
Since its inception, the Institute has promoted arbitration to the business community and legal profession through publications, seminars and training programs. This campaign aimed at resolving the root cause of unpopularity of arbitration in the past, i.e., the lack of knowledge and understanding of arbitration laws and arbitral proceedings to the extent that the parties and their lawyers can comfortably participate in the proceedings. Over the years, these courses and programs have significantly increased the number of arbitration practitioners as well as the number of contracts stipulating arbitration clauses.
Throughout its 16 years of operation, the Institute has handled a significant number of arbitral proceedings in Thailand. Virtually, almost all high-profile disputes in Thailand required to be settled by arbitration have been administered by the Institute. In 2004, there were 128 newly-filed arbitration cases, with the monetary amount in dispute totaling 133 billion baht (approximately more than 3.5 billion US dollar7) In 2005, the number of new arbitration cases went up still further. The Institute received 136 new arbitration cases in 2005. The monetary amount in dispute totals 74 billion baht (approximately almost 2 billion US dollar). The number of newly-filed arbitration cases in 2005 represents a 112.5 % increase8 from the number five years ago.
3.2.2 Thai Arbitration Committee, Board of Trade of Thailand
The Board of Trade of Thailand has also been one of the pioneers in the arbitration field in Thailand. It has established the first arbitration institution in Thailand since 1968. The Committee has constantly been active in promoting arbitration among the business community in which it plays a key role and has closely worked with business entities and organizations. Several years ago, the Committee has significantly improved its arbitration practice by adopting a new set of arbitration rules and refurbishing its facilities to accommodate arbitral proceedings under its auspices.
3.2.3 Office of Arbitration, Department of Insurance
The Department of Insurance has recognized the potential of arbitration in reducing the number of disputes litigated in court regarding insurance claims and, at the same, providing more protection for beneficiaries under insurance policies by accelerating the claim process. It has set up the Office of Arbitration to handle arbitral proceedings relating to claims under insurance policies. It has also imposed a regulation requiring all insurance companies to include an arbitration clause in their policies. The clause allows beneficiaries of insurance policies to choose to process their claims through arbitration, or pursue their claims in court, at his or her discretion. It is, however, mandatory for insurance companies to participate in arbitral proceedings if the beneficiaries decide to refer their claims to arbitration. In terms of number of new arbitration cases, the Office received thousands of cases each year.
3.2.4 Other Arbitration Organizations
Other than the previously mentioned organizations, there are a couple of other organizations working in the field of arbitration in Thailand. The Security and Exchange Commission has established its arbitration service in 2001 to handle arbitral proceedings regarding claims under its laws on security and exchange. Many brokerage firms have participated in the SEC arbitration program by unilaterally agreeing to participate in arbitral proceedings if their customers pursue their claims through arbitration. |
