Thailand Law Journal 2010 Spring Issue 1 Volume 13

The Department of Intellectual Property has set up its arbitration service in 2002 to handle arbitration relating to disputes in intellectual property rights which have significantly increase recently. The department provides both arbitration and mediation services to those who request for its services. Mediation is, however, more successful in this area, because, in this kind of disputes, the parties did not have any binding arbitration clause between them. It is, therefore, difficult to convince the parties to agree to arbitration after the disputes have already erupted. In few cases, the parties agree to settle their claims through arbitration.

3.3 Interaction of Court and Arbitral Tribunal in Thailand
Under the Arbitration Act 2002, arbitral proceedings and the courts will interact throughout the proceedings. In framing the rules governing this delicate relationship and interaction between courts and arbitral proceedings, the Act tries to strike a balance between giving the court the necessary authority to supervise arbitral proceedings to ensure the fairness of the proceedings, and freedom of the parties to carry out arbitral proceedings as they deem appropriate as well as their will to have their disputes settled by arbitration. Moreover, the Act also entrusts the court with the duty to assist and support arbitral proceedings when the court’s authority is needed.

From the beginning, the court is responsible for enforcing arbitration agreements if a party to an arbitration agreement fails to comply with the agreement by litigating their claims in court. The court will dispose of the cases if it is found that there is a binding arbitration agreement between the parties in the cases and the relevant claims have not been arbitrated.⁹ In case where the parties fail to appoint arbitrator(s) according to the agreed procedure, a party may request the court to appoint arbitrators on behalf of the party who did not comply with the procedure, or on behalf of both parties in case of appointment of a sole arbitrator.¹⁰

The Act did not provide for interim or provisional measures of protection ordered by arbitral tribunals, because it is more effective to let the party wishing to have a provisional measure in place to directly request the court to order such measure¹¹. If the party has to request the arbitral tribunal to order such measure and the other party refuses to comply with the order of the arbitral tribunal, the requesting party still has to ask the court for enforcement of such order. Until that time, it may become futile to have a provisional measure because the other party has already irreversibly changed the circumstances to the detriment of the party requesting for such measure. Furthermore, the order of the arbitral tribunal is, by no means, binding upon a third party to the disputes in case where such third party possesses the asset that the party intends to protect and preserve, while a court order can do just that.

The most delicate part of the relationship and interaction between courts and arbitration is probably that relating to the enforcement of arbitral awards, because the roles of the court in this aspect may substantially affect the whole purposes of arbitration. The Act adopts the same framework and criteria under which courts review arbitral awards under the New York Convention 1958 and the UNCITRAL Model Law. In essence, the court will primarily look into the process of arbitral proceedings to ensure that there is a binding arbitration agreement between the parties, all parties have been given opportunity to be heard and present their claims and arguments, the appointment of arbitral tribunals is in accordance with the agreement and the applicable laws,¹² the dispute is arbitrable¹³, and the award is not contrary to public policy. The court may not intrude into the area that is within the exclusive realm of the arbitral tribunals’ discretion such as the determination of damages, the construction of contractual terms and conditions etc. The court may not also refuse to enforce and recognize arbitral awards on other criteria that are not prescribed the law.

As a general practical matter, it is fair to say that Thai courts have been facilitative to arbitral proceedings when arbitral tribunals need any support and assistance such as summoning witnesses to testify before the arbitral tribunals, providing provisional measures of protection etc. In this era, the courts, in general, fairly understand the essential roles of arbitral tribunals and the separation of power between those of the arbitral tribunals and those supportive and supervisory roles of the courts. Having said that, it is not meant to say that there is no atypical case where it is dubious about the exact domain of power and the inherent tension of separation of duties between courts and arbitral tribunals. Such cases, however, is not the norm and cannot be treated as a precedent due to their uncharacteristic nature of the disputes in question.

3.4 Public Policy in the Enforcement and Challenge of Arbitral Award
Among the laws and treaties on arbitration and enforcement of arbitral awards, one of the perennial dilemmas is the application of “public policy” in refusing enforcement and recognition of arbitral awards which is identically provided in the New York Convention 1958¹⁴ and the Thai Arbitration Act 2002.¹⁵ It has long been the subject of debates as to its scope of construction and application. It has been proposed to construe the terms to mean only the so-called “international public policy” which essentially may include only those grave abuses of power and irregularities in arbitral proceedings. The construction has, however, still not been widely adopted in many countries. The terms have also created difficulties in its application in Thailand as well.

Since the Arbitration Act 1987 came into force, there are many cases involving enforcement and recognition of arbitral awards, both domestic and foreign. In vast majority of such cases, the courts have recognized and enforced arbitral awards without any undue intrusion into the discretion of the arbitral tribunals if there is no undue irregularity in arbitral proceedings as prescribed by the laws. Some of such cases involve high-profile disputes between state agencies and private investors or contractors. In a dispute involving construction of toll-way between a state agency and the private contractor, the court enforced the arbitral award ordering the state agency to pay a record amount of damages when the court was satisfied that the arbitral proceeding was properly carried out and the award contained no serious flaw. Recently, however, there is a case¹⁶ involving arbitration on dispute relating to concession to operate a television station in which there have been questions as to the construction and application of the terms “public policy” in the law.