Enforcing and Executing Foreign Arbitral Awards in Thailand

Introduction

The enforcement of an arbitral award is the last and most crucial step of the arbitral process, as it enables the successful party to obtain the practical benefits of the award. It is important for parties to understand how an award may be enforced, as it varies by jurisdiction. A jurisdiction may also have different legal regimes and legal procedures for enforcement of an award, depending on whether the arbitration was seated within the jurisdiction or outside of the jurisdiction.

Under Thai law, arbitral awards made inside and outside of Thailand are treated alike in terms of recognition and enforcement. Below, we cover:

1. the filing of an enforcement application, as well as the applicable limitation period;
2. the grounds on which enforcement may be refused; and
3. the procedure for enforcement, including timeframes, appeals, and execution of the award.

Filing of Enforcement Application

Thailand has been part of the New York Convention (which helps countries enforce arbitration awards internationally) since 1959. Under the Thai Arbitration Act B.E. 2545 (2002) (updated in 2019) (“TAA“), anyone who wants to enforce a foreign arbitral award in Thailand must:

1. File a court application within three years from the date the award became enforceable;
2. Submit the original award and arbitration agreement (or certified copies); and
3. Provide official Thai translations for documents that are not in the Thai language.

It is important to understand that enforcing an arbitral award in the Thai courts is not merely a routine or automatic process. The applicant must provide supporting documents and witness testimony during the hearing. However, the court will not review the facts of the original case or re-evaluate the decision on the merit of the case. The respondents may only raise arguments related to due process, public order, or good morals.

Grounds to Refuse Enforcement

Thai courts may refuse to enforce a foreign award if the opposing party can prove any of the following (based on sections 43–44 of the TAA, which mirror the New York Convention):

1. One of the parties lacked legal capacity (e.g., being a minor or mentally incompetent);
2. The arbitration agreement was not valid under the chosen law or the law of the country where the award was made;
3. The other party did not receive proper notice of the arbitration or could not present their case;
4. The award covers matters beyond the arbitration agreement (only the impugned part of the award may be set aside);
5. The tribunal was not formed properly in accordance with the parties’ agreement or the applicable law;
6. The award has not yet become binding, or has been suspended or set aside by a competent court or under the law of the place where it was made;
7. The award involves a dispute not capable of settlement by arbitration under the law; and
8. Enforcing the award would go against Thai public order or good morals. This ground is broad and not clearly defined in Thai law. The court must interpret it case by case, and may raise this ground on its own initiative, even if neither party does. This is especially relevant in cases involving state agencies or public interests.

Procedure for Enforcement

The Civil Procedure Code (“CPC“) governs court proceedings, including enforcement proceedings.

Upon filing an application for enforcement, the applicant is required to pay a court fee calculated as follows: (i) 1% of the portion of the claim amount up to THB 50,000,000, subject to a maximum fee of THB 100,000 for this portion, and (ii) 0.1% of any claim amount exceeding THB 50,000,000.

Once a petition for enforcement is accepted, the court will issue a writ of summons and a copy of the petition to the respondent. The court will then schedule a procedural hearing to establish a timeline for the proceedings, including submission of witness statement and witness hearing dates.

The applicant must present at least one witness, along with the arbitration agreement and the award, to show that the dispute could be settled through arbitration and to counter any objections to enforcement. As the applicant does not need to reargue the merits of the case during enforcement, their witness is often someone who participated in the arbitration, such as the claimant’s legal counsel or an in-house lawyer.

If the respondent challenges the petition, it is their responsibility to prove one of the eight legal grounds for refusing enforcement. The TAA does not forbid the submission of new evidence that was not presented during the arbitration. However, in practice, Thai courts rarely consider new evidence when deciding on enforcement petitions. That said, under Supreme Court Decision No. 7277/2549 (2006), courts may review new evidence if it shows that enforcing the arbitral award would violate public order or good morals.

Appeal

The enforcement process usually takes between 12 and 24 months, depending on the case’s complexity. During enforcement, the claimant may request a temporary injunction to stop the respondent from transferring, selling, or disposing of their assets. However, securing this order is difficult, as the claimant must prove that the respondent plans to move assets to avoid fulfilling the judgment.

Any decisions regarding the enforcement of awards can be appealed directly to the Supreme Court (section 45 of the TAA). Appeals are only based on written submissions, and obtaining a decision from the Supreme Court can take another 12 to 24 months. Parties who are reluctant to comply may use the appeal process to delay payment or to negotiate a settlement for a reduced amount than the original award.

Execution

If the competent court recognises and enforces the award, the claimant is entitled to execute the judgment accordingly. Filing an appeal does not suspend the execution of the judgment or order, but the respondent may request a stay of execution. The court may grant a stay subject to conditions, such as requiring the respondent to provide security or other guarantees.

If you have any queries or need clarifications on the above, please contact our team.

This article was authored by Krida Phoonwathu and Prat Naka. A PDF version is available here.

Krida Phoonwathu

Partner, Thailand | +66 2656 1991 | krida.phoonwathu@rajahtann.com | CV