Guide to Arbitration Rules and Procedures in Thailand
Our Country Chapters set out key aspects of the arbitration framework of each jurisdiction highlighted in our website, covering basics like judicial hierarchy and domestic arbitral institutions to substantive issues such as conflicts of laws and the extent of adoption of the UNCITRAL Model Law.
1. Legal System and Framework
Thailand has a civil law legal system. Primary legislation is enacted by parliament, and subsidiary legislation such as rules and regulations are made by various government ministries and agencies under powers conferred by primary legislation.
The Thai legal system does not have the doctrine of precedent, and rulings from the higher courts are not binding upon the lower courts. However, in practice, judgments of the Supreme Court in relation to the same factual and legal matters do have much influence on the decision-making process of the judges of the lower courts. It would be very unusual for a judge to decline to follow a previous judgment of a superior court, and in particular a ruling of the Supreme Court, dealing with the same or similar issue. Only selected judgments of the Supreme Court are summarised and published.
The Thai judiciary has a three-tier system: (i) the Courts of First Instance, (ii) the Courts of Appeal and (iii) the Supreme Court. For arbitration, only the Courts of First Instance and the Supreme Court are relevant.
According to section 45 of the Arbitration Act B.E. 2545 (A.D. 2002), as amended, (“Arbitration Act“), orders or judgments of the Courts of First Instance which have been issued under the Arbitration Act cannot be appealed except in the following cases:
- the recognition or enforcement of the award is contrary to public policy;
- the order or judgment is contrary to the provisions of law concerning public policy;
- the order or judgment is not in accordance with the arbitral award;
- a judge who sat in the case gave a dissenting opinion; or
- the order is an order concerning interim measures for protection.
An appeal against an order or judgment of the Court of First Instance must be filed with the Supreme Court or the Supreme Administrative Court, as the case may be.
Under the Arbitration Act, parties cannot appeal on substantive grounds against an award. An application for enforcement of an award may be filed with the Court of First Instance. After the Court of First Instance has issued an order enforcing or refusing recognition of the award, an appeal against such order of the Court of First Instance may be filed with the Supreme Court or the Supreme Administrative Court, as the case may be.
The Arbitration Act is the main source of law in Thailand which governs arbitral proceedings.
The Arbitration Act explicitly acknowledges that it is based on the UNCITRAL Model Law. The two main differences between the Arbitration Act and the UNCITRAL Model law are that the Arbitration Act (i) draws no distinction between international and domestic arbitration, and (ii) does not provide the arbitral tribunal with the power to order interim measures.
The Arbitration Act does not draw a distinction between international and domestic arbitration.
Based on our review of past Supreme Court decisions which are publicly available, there is yet to be a Supreme Court decision on whether the provisions of the Arbitration Act are only applicable to arbitral proceedings seated in Thailand, with the exception of section 40. Section 40 relates to the challenge of an award, and the Supreme Court has held it to be applicable only to awards that have been rendered in Thailand. In reaching such conclusion, the Supreme Court considered the fact that the Arbitration Act was drafted based on the UNCITRAL Model Law and interpreted section 40 in accordance with the UNCITRAL Model Law.
The courts in Thailand are empowered to support and assist arbitral proceedings. Under the Arbitration Act, the courts can assist by: (a) issuing an order imposing interim measures to protect a party’s interests before or during the arbitral proceedings; and (b) issuing a subpoena or an order for submission of any documents or materials.
2. Arbitral Institutions
The significant arbitral institutions in Thailand are the Thai Arbitration Institute (“TAI“), which is an agency of the Office of the Judiciary, and the Thailand Arbitration Center (“THAC“).
Both TAI and THAC have introduced an e-arbitration system. In order to provide a quicker and more cost-effective arbitration process, TAI and THAC have introduced arbitration rules for small claims. The TAI arbitration rules for small claims are applicable where the combined claim amount under the claim and counterclaim is no more than THB 2 million. The THAC arbitration rules for small claims are applicable where the combined claim amount under the claim and counterclaim is no more than THB 35 million.
The TAI Arbitration Rules provide the arbitral tribunal with the power to grant interim measures of protection as it deems appropriate, and to direct the party requesting such interim measures to provide appropriate security for any damage that may arise in connection with the measures.
The THAC Arbitration Rules provide the arbitral tribunal with the power to issue an order for any party to provide security for legal or other costs as the arbitral tribunal finds appropriate. THAC has also enacted rules on mediation which would apply where the parties have agreed to mediate under the management of THAC.
The Arbitration Act is silent on the issue of confidentiality. Confidentiality can be ensured by agreement between the parties, in the terms of reference or by the rules of the arbitral institution.
Article 36 of TAI Arbitration Rules provides that:
All arbitration proceedings, the statement of claims, the statement of defence, correspondences, documents, evidences, hearings, orders, and awards are confidential.
The parties, the arbitral tribunal and the Institute shall not disclose all or certain matters relating to the arbitral proceedings except
- with the consent of the parties;
- for the purpose of obtaining protection or exercising rights under the law, or enforcing or challenging an award; or
- where there is a duty to disclose as prescribed by the law.
Article 87 of THAC Rules 2015 provides that:
A party or any arbitrator, including the President, the Registrar, officials, employees and staff shall not disclose to a third person any matter relating to the arbitration proceedings, except where the parties have provided written consent, or in the following circumstances:
- to file a motion to a court to enforce or set aside an award;
- to comply with an order or summons from a court with jurisdiction over the arbitration proceedings;
- to enforce a legal right;
- to comply with the legal provisions of a country which are binding on the party making the disclosure;
- to comply with the request or requirement of an entity which regulates activities related to arbitration proceedings; or
- to comply with an order by the arbitral tribunal pursuant to a request by a party which has been notified the other party.
The matters relating to arbitration proceedings include the facts relating to the proceedings, the names of arbitrators, statements, evidence, witness, or any object used in the proceedings and all the documents produced by the other party during the proceedings as well as the award made following the proceedings, except for matters already in the public domain.
4. The Law of the Arbitration and Conflicts of Law
The Arbitration Act is silent on this. Section 25 of the Arbitration Act provides that the arbitral tribunal has the power to conduct any proceedings in any manner as it deems appropriate and, in conducting the proceedings, may apply the provision on the law of evidence under the Civil Procedure Code to the proceedings mutatis mutandis.
Based on our review of past Supreme Court decisions which are publicly available, there is yet to be a Supreme Court decision on whether the provisions of the Arbitration Act are only applicable to arbitral proceedings seated in Thailand, with the exception of section 40. Section 40 relates to the challenge of an award, and the Supreme Court has held it to be applicable only to awards that have been rendered in Thailand.
The concept of the seat of arbitration appears to be implicitly recognised in section 43(5) of the Arbitration Act, which provides that the Thai Court may refuse enforcement of the arbitral award if the arbitration procedure was not in accordance with the agreement of the parties or, in the absence of such agreement, was not in accordance with the law of the country where the award was rendered.
Section 34 of the Arbitration Act requires the arbitral tribunal to decide the substance of the parties’ dispute in accordance with the governing law chosen by the parties. If no agreement between the parties on the governing law exists, the arbitral tribunal will have to decide the dispute in accordance with Thai law, unless there is a conflict of laws. In such cases, the arbitral tribunal may apply the law it considers appropriate with reference to the principles applicable to conflict of laws.
The arbitral tribunal in Thailand is able to recognise that parties have agreed to apply the law of another jurisdiction to their substantive obligations with respect to the subject matter of the dispute.
The Arbitration Act is silent on this. According to the Conflict of Laws Act B.E. 2481 (A.D. 1938), foreign laws can be applied only to the extent that the foreign law provision in question is not contrary to public order or good morals of the people of Thailand.
The Arbitration Act is silent on this. According to the Conflict of Laws Act B.E. 2481 (A.D. 1938), the applicable law to claims in tort is the law of the place where the facts constituting such tort have taken place; however, damages or remedies can only be claimed to the extent that they are available under Thai law.
Section 34 of the Arbitration Act requires the arbitral tribunal to decide the substance of the parties’ dispute in accordance with the governing law chosen by the parties. Therefore, unless specified otherwise, the law governing the contract in which the arbitration agreement is contained should be considered to be the law governing the arbitration agreement.
With regard to the law applicable to the conduct of the arbitral proceedings, section 25 of the Arbitration Act provides that the arbitral tribunal has the power to conduct any proceedings in any manner as it deems appropriate. In conducting the proceedings, the arbitral tribunal may apply the provision on the law of evidence under the Civil Procedure Code to the proceedings mutatis mutandis.
Limitation periods are considered substantive issues and are therefore determined by reference to the law of the contract.
Where the substantive law governing the dispute is Thai law, an action founded on contract must be brought within 10 years from the date on which the cause of action accrued.
Based on our review of past Supreme Court decisions which are publicly available, there is yet to be a Supreme Court decision on whether the limitation period stipulated by the applicable foreign law will apply if the substantive law governing the dispute is not Thai law.
5. Arbitration Agreements
An arbitration agreement must be in writing and signed by the parties, with an exception provided for the following two cases:
- where it is contained in an exchange between the parties by means of letters, facsimiles, telegrams, telex, data interchanges with electronic signatures, or other means which provide a record of the agreement; or
- where there is an exchange of statements of claim and defence in which the existence of an arbitration agreement is alleged by one party and no objection is raised by the other party.
Based on our review of past Supreme Court decisions which are publicly available, there is yet to be a Supreme Court decision which deals with the validity of electronic arbitration agreements. Electronic arbitration agreements should be recognised provided that they satisfy the requirements under section 11, paragraph 2 of the Arbitration Act which provides that an arbitration agreement may be contained in an exchange between the parties by means of data interchanges with electronic signatures or other means which provide a record of the agreement.
Section 11, paragraph 3 of the Arbitration Act provides that “the reference in a contract evidenced in writing to any document containing an arbitration clause constitutes an arbitration agreement, provided that the reference is such as to make that clause part of the contract.”
Section 11, paragraph 1 of the Arbitration Act provides that an arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. This suggests that the parties may agree to submit non-contractual claims to arbitration.
Section 44 of the Arbitration Act provides that the Thai Court may dismiss the application for enforcement of an award if it finds that the award involves a dispute not capable of settlement by arbitration under the law or if the enforcement would be contrary to public policy or good morals of the people.
The Arbitration Act and the Civil Procedure Code are silent as to which kinds of dispute are subject to the mandatory jurisdiction of Thai Courts.
In light of the above, it could be inferred that disputes which are not arbitrable include disputes which would result in a violation of public policy or good morals of the people if they are allowed to be determined by arbitration. It is generally accepted that a dispute which relates to a person’s status, such as a dispute concerning whether a person is married or divorced, is not arbitrable. Based on our review of past Supreme Court decisions which are publicly available, there is yet to be a Supreme Court decision which deals with whether claims in fraud are arbitrable.
Thai law recognises the separability of arbitration agreements. An arbitration clause that forms part of a contract is treated as an agreement independent of the other terms of the contract. Therefore, a decision by the arbitral tribunal that a contract is null and void does not in and of itself mean that the arbitration clause contained therein is invalid (section 24 of the Arbitration Act).