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The award

Requirements

What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?

Sections 41 to 44 of the Arbitration Act set out the requirements for the recognition of awards.

Under Section 41 of the Arbitration Act, arbitral award are binding on the parties. A foreign arbitral award will be enforced by the competent court only if it is subject to an international convention, treaty or agreement to which Thailand is a party. Such award will apply only to the extent that Thailand accedes to be bound.

Under Article 46(2) of the Thai Arbitration Institute (TAI) Rules, reasons must be given for the award.

Under Article 47 of the TAI Rules, before signing the award, the tribunal must send the draft award to the TAI so that it can review the form of the award.

Timeframe for delivery

Are there any time limits on delivery of the award?

Under Article 45 of the TAI Rules, the award must be made within 30 days of completing the hearings or the expiry date for submitting closing statements, unless extended by the TAI on the arbitral tribunal’s request.

Remedies

Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?

Remedies will be available in accordance with Section 222 of the Civil and Commercial Code, which states as follows:

The claim of damages is for compensation for all such damage as usually arises from non-performance.

The creditor may demand compensation even for such damage that has arisen from special circumstances, if the party concerned foresaw or ought to have foreseen such circumstances.”

At present, exemplary damages (or punitive damages) are available only in specific circumstances, including but not limited to cases involving:

  • the protection of trade secrets (the Trade Secrets Act, BE 2545 (2002));
  • the empowerment of disabled persons (the Persons with Disabilities Empowerment Act, BE 2550 (2007));
  • consumer protection (the Consumer Case Procedure Act, BE 2551 (2008)); and
  • liability for unsafe products (the Product Liability Act, BE 2551 (2008)).

What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?

Interim measures to protect parties’ interests are available under Section 16 of the Arbitration Act. A party to an arbitration agreement may file a motion requesting the competent court to issue an order imposing provisional measures to protect his or her interests before or during the arbitral proceedings. If the court believes that it would have been able to issue such order had the proceedings been conducted in court, it may proceed as requested. The provisional measures under the Civil Procedure Code (BE 2477 (1934)) apply mutatis mutandis pursuant to Section 16 of the Arbitration Act.

Yes, local courts can issue interim measures while the constitution of the tribunal is still pending. Where the court issues an order at the party’s request, the party filing the motion for the interim measures must carry out the arbitral proceedings within 30 days of the court order or within the period prescribed by the court; otherwise, the order will be deemed cancelled pursuant to Section 16(2) of the Arbitration Act.

Interest

Can interest be awarded?

Yes, interest is awarded in accordance with Section 224 of the Civil and Commercial Code, which states that:

A money debt bears interest during default at 7.5 percent per annum. If the creditor can demand higher interest on any other legitimate ground, this shall continue to be paid.

Interest for default shall not be paid upon interest.

Proof of further damage is admissible.”

At what rate?

Under Section 224 of the Civil and Commercial Code, a debt bears interest during default at 7.5% per year.

Finality

Is the award final and binding?

Yes, the award is final and binding on the parties. 

What if there are any mistakes?

For insignificant mistakes, a party can file a motion requesting the tribunal to correct any error in computation, any clerical or typographical errors or any other insignificant error in the award, or to give an interpretation or explanation of a specific point or part of the award, within 30 days of receipt of the award, pursuant to Sections 39(1)(1) and (2) of the Arbitration Act.

Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

In general, the parties cannot agree to exclude any right of appeal or other recourse under the Civil Procedure Code, as to do so would be regarded as violating public order and good morals. 

Appeal

What is the procedure for challenging awards?

To challenge the awards, Section 40 of the Arbitration Act provides that:

  • a challenge must be made by a motion with the competent court; and
  • within 90 days of receipt of a copy of the award or after the correction or interpretation or the making of an additional award, a party may file a motion for setting aside of the award with the competent court.

On what grounds can parties appeal an award?

Section 40 of the Arbitration Act provides that the court will set aside the arbitral award in the following cases:

  • The party filing the motion can provide proof that:
    • a party to the arbitration agreement was under some incapacity under the law applicable to that party;
    • the arbitration agreement is not binding under the law of the country agreed to by the parties, or failing any indication thereon, under Thai law;
    • the party making the application was not given proper advance notice of the appointment of the arbitral tribunal or the arbitral proceedings or was otherwise unable to defend the case in the arbitral proceedings;
    • the award deals with a dispute outside the scope of the arbitration agreement or contains a decision on matters beyond the scope of the arbitration agreement; however, if the award on the matter which is beyond the scope thereof can be separated from the part that is within the scope of arbitration agreement, the court may set aside only the part that is outside of the scope thereof; or
    • the composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement of the parties or, unless otherwise agreed by the parties, in accordance with the Arbitration Act.
  • Where the court finds that:
    • the award deals with a dispute not capable of settlement by arbitration under the law; or
    • the recognition or enforcement of the award would be contrary to public policy.

In considering an application to set aside an award, if a party so requests and the court considers it reasonably justified, the court may adjourn the hearing of the case so that the arbitral tribunal can resume the case or carry out any act as it deems fit to eliminate the grounds for setting aside.

Enforcement

What steps can be taken to enforce the award if there is a failure to comply?

The party under the arbitral agreement may request enforcement of the awards up to three years after the award is enforceable (Section 42 of the Arbitration Act).

When either party intends to enforce the tribunal’s award, it can file a motion with the competent court within three years of the date on which the award is enforceable. After the court receives the motion, it will promptly examine and give judgment accordingly. The applicant for enforcement of the award must provide the following documents to the court:

  • an original or certified copy of the arbitral award;
  • an original or certified copy of the arbitration agreement;
  • a Thai translation of the award and arbitration agreement that has been:
    • performed by a translator who has taken an oath before the court or in the presence of an official or an authorised person; or
    • certified by an official authorised to certify translations or by a Thai envoy or consul in the country where the award or the arbitration agreement was made

Can awards be enforced in local courts?

The awards must be enforced by local courts pursuant to Section 42 of the Arbitration Act.

How enforceable is the award internationally?

The awards are basically enforceable among the countries which are parties to the New York Convention. 

To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Under Section 1307 of the Civil and Commercial Code, state property cannot be seized. 

Are there any other bases on which an award may be challenged, and if so, by what?

Under Section 43 of the Arbitration Act, the court may refuse the enforcement of the award on the following grounds:

  • a party under the arbitral agreement was under some incapacity under the law applicable to that party;
  • the arbitration agreement is not binding under the law of the country agreed to by the parties, or failing any indication thereon, under Thai law;
  • the party making the application was not given proper advance notice of the appointment of the arbitral tribunal or of the arbitral proceedings or was otherwise unable to defend the case in the arbitral proceedings;
  • the award deals with a dispute outside the scope of the arbitration agreement or contains a decision on matters beyond the scope of the arbitration agreement; however, if the award on the matter outside the scope thereof can be separated from the part that is within the scope of the arbitration agreement, the court may set aside only the part that is outside the scope of the arbitration agreement or clause;
  • the composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement of the parties or, if not otherwise agreed by the parties, in accordance with the Arbitration Act; or
  • the arbitral award has not yet become binding, or has been set aside or suspended by a competent court or under the law of the country where it was made.

Save where the setting aside or suspension of the award is being sought from the competent court, the court may adjourn the hearing of this case as it thinks fit. If requested by the party making the application, the court may order the party against whom enforcement is sought to provide appropriate security.

Under Section 44 of the Arbitration Act, the court may dismiss the application for enforcement if it finds that:

  • the award involves a dispute incapable of settlement by arbitration under the law; or
  • the enforcement of the award would be contrary to public policy.

How enforceable are foreign arbitral awards in your jurisdiction?

The foreign arbitral awards must be enforced by the competent court if it is subject to an international convention, treaty or agreement to which Thailand is a party. Such award will apply only to the extent that Thailand accedes to be bound (Section 41(2) of the Arbitration Act).

Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

The foreign arbitral awards must be enforced by the competent court if it is subject to an international convention, treaty or agreement to which Thailand is a party. Such award will apply only to the extent that Thailand accedes to be bound (Section 41(2) of the Arbitration Act).

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