This information is for reference only and is not legal advice. Consult a licensed lawyer before any transaction.
Arbitration Act B.E. 2545 (2002)
Arbitration Act B.E. 2545 (2002)
The information is reviewed and updated monthly against official sources.
In short
Lets you resolve disputes in private arbitration instead of court: awards, including foreign ones under the New York Convention, are enforceable in Thailand.
Section 11: Arbitration agreement (must be in writing)
An arbitration agreement is an agreement by which the parties decide to settle all or certain disputes, arising or that may arise from a defined legal relationship (whether contractual or not), by arbitration. It may be a clause inside a contract or a separate agreement. The agreement must be in writing and signed by the parties, but it is also treated as existing where it appears in an exchange of letters, fax, telegram, telex, electronically signed messages or other recorded communication, or where one party alleges it in a claim or defence and the other does not deny it.
Section 14: Court must refer a dispute to arbitration
If one party brings a court action on a matter covered by an arbitration agreement, the other party may ask the competent court, no later than the date or period set for filing its statement, to dismiss the case so it can go to arbitration. After inquiry the court must dismiss the case and send the parties to arbitration, unless it finds that the arbitration agreement is void, inoperative or incapable of being performed. While that request is pending, the arbitration may still be started or continued.
Sections 17-19: The arbitral tribunal: number, appointment, independence
The tribunal must consist of an odd number of arbitrators; if the parties agree on an even number, those arbitrators jointly appoint one more as chairperson, and if the parties cannot agree on the number, there is a sole arbitrator (Section 17). The parties may agree on how arbitrators are appointed, and the competent court will step in to appoint where a party or the arbitrators fail to act in time (Section 18). Every arbitrator must be impartial and independent and must disclose any circumstances likely to raise justifiable doubts about that impartiality or independence; a party may challenge an arbitrator on such grounds or for lacking agreed qualifications (Section 19).
Section 24: Tribunal rules on its own jurisdiction (competence-competence)
The arbitral tribunal may decide on its own jurisdiction, including whether the arbitration agreement exists or is valid and whether the tribunal was properly appointed. An arbitration clause inside a contract is treated as an agreement independent of the rest of the contract, so a finding that the contract is void or invalid does not by itself make the arbitration clause invalid. An objection to the tribunal's jurisdiction must generally be raised no later than the statement of defence, and if the tribunal rules as a preliminary question that it has jurisdiction, a party may ask the competent court to decide the point within thirty days.
Sections 25-27: Conduct of the arbitral proceedings (equal treatment)
The parties must be treated equally and each must be given a fair opportunity to present its witnesses, evidence and defences (Section 25). Where there is no agreement and no provision in the Act, the tribunal may conduct the proceedings as it thinks fit and decides the admissibility and weight of evidence, and it may apply the witness and evidence rules of the Civil Procedure Code by analogy. The parties may agree on the place of arbitration, failing which the tribunal sets it (Section 26), and the Act fixes the point at which the arbitration is deemed to have commenced (Section 27).
Sections 37 and 40: The award and the limited grounds to set it aside
The award must be in writing and signed by the tribunal (a majority of signatures suffices if reasons are given for any missing one), it must as a rule state the reasons on which it is based, and a copy is delivered to the parties (Section 37). The only recourse against an award is an application to the competent court to set it aside, which must be filed within ninety days of receiving the award (Section 40). The court may set the award aside only on narrow grounds: a party lacked legal capacity; the arbitration agreement is not binding; a party had no proper notice or could not present its case; the award goes beyond the scope of the arbitration; or the tribunal or procedure did not follow the parties' agreement or the Act. The court may also act on its own where the subject matter is not arbitrable or where recognition or enforcement would be contrary to public order or good morals.
Sections 41-43: Recognition and enforcement, including foreign (New York Convention) awards
An arbitral award, regardless of the country where it was made, is recognised as binding and, on application to the competent court, is enforced; a foreign award is enforced only where it is covered by a treaty, convention or international agreement to which Thailand is a party (such as the New York Convention) and only to the extent Thailand has agreed to be bound (Section 41). The party seeking enforcement must apply within three years of the date the award becomes enforceable and must file the award, the arbitration agreement and certified Thai translations (Section 42). The court may refuse enforcement only on grounds that mirror the New York Convention, for example incapacity of a party, an invalid arbitration agreement, lack of proper notice, the award exceeding the scope of the submission, an improperly constituted tribunal or procedure, or the award not yet being binding or having been set aside or suspended where it was made (Section 43).
Sections 44-45: Public order limit and the very limited right of appeal
The court must refuse to enforce an award if the dispute is not one that may be settled by arbitration under the law, or if enforcement would be contrary to public order or good morals (Section 44). A court order or judgment under this Act generally cannot be appealed; appeal is allowed only in narrow situations, for example where recognition or enforcement is contrary to public order or good morals, where the order conflicts with law relating to public order, where the order does not match the award, where the trial judge gave a dissenting opinion, or where it is an order on a provisional measure (Section 45). Any permitted appeal goes to the Supreme Court or the Supreme Administrative Court.