Arbitration

Legal framework

National arbitration laws

What legislation applies to arbitration in your jurisdiction?

The Arbitration Act (BE 2545 (2002)) and Sections 210 to 222 of the Civil Procedure Code (BE 2477 (1934)).

Mandatory laws

Are there any mandatory laws?

Yes, mandatory laws are set out in the Arbitration Act and the Civil Procedure Code.

New York Convention

Is your country a signatory to the New York Convention?  If so, what is the date of entry into force?

Thailand ratified the New York Convention on 21 December 1959.

Are there any reservations to the general obligations of the convention?

No reservations have been raised by Thailand.

Treaties and conventions

What other treaties and conventions in relation to arbitration is your jurisdiction party to?

Thailand ratified the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 on 29 December 1954.

UNCITRAL

Has your jurisdiction adopted the UNCITRAL Model Law?

The Arbitration Act explicitly acknowledges that it is based on the UNCITRAL Model Law. This has been recognised by the Supreme Court in Judgments 9476/2558 (2015) and 8539/2560 (2017).

Reform

Are there any impending plans to reform the arbitration laws in your jurisdiction?

The Arbitration Act (BE 2562 (2019)), which amended the previous Arbitration Act, reformed the law to allow foreign arbitrators and lawyers to perform their duties in arbitral proceedings conducted in Thailand without having to obtain work permits.  

Arbitration agreements

Validity

What are the validity requirements for an arbitration agreement?

Section 11 of the Arbitration Act prescribes the requirements for an arbitration agreement as follows:

  • An ‘arbitration agreement’ means an agreement between the parties to submit to arbitration all or certain disputes which have arisen or may arise between them in respect of a defined legal relationship, whether contractual or not.
  • An arbitration agreement may be in the form of an arbitration clause in a contract or a separate agreement.
  • An arbitration agreement must be in writing.
  • An arbitration agreement must be signed by the parties. An arbitration clause constitutes an arbitration agreement if 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 agreements; or
    • an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and no objection is raised by the other party.

Enforcement of agreements

How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

Under Section 14 of the Arbitration Act, where a party to an arbitration agreement commences legal proceedings in court in respect of any dispute which is the subject of the arbitration agreement, the other party may file a motion requesting the competent court to strike out the case no later than the date on which the statement of defence was filed or within the filing period of the statement of defence prescribed by law.

If the court finds no grounds for rendering the arbitration agreement void, unenforceable or impossible to perform after completing an inquiry, it will usually issue an order to strike out the case, enabling the parties to enter into arbitration proceedings.

Consolidation

Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

The Arbitration Act is silent on this matter. If agreed by the parties, the arbitral tribunal should be able to consolidate separate arbitral proceedings under one or more contracts. 

The Arbitration Rules of the Thai Arbitration Institute, Office of the Judiciary expressly provide for consolidation of proceedings under Article 13, which states as follows:

  • In case where disputed issues in an arbitral proceeding related to those in another arbitral proceeding, regardless of whether the relevant arbitration agreements are identical, the Institute may order that the relevant arbitral proceedings under the auspices of the Institute shall be consolidated, if such consolidation will render the proceedings to be carried out more conveniently, or a party or the Arbitral Tribunal requests, and the Institute deems appropriate.
  • In case where the relevant arbitration agreements provide for different proceedings, the Institute may specify the proceeding in question.
  • In case where the Arbitral Tribunal deems proper that an arbitral proceeding should be consolidated with another proceeding, the tribunal shall notify the Institute of their opinion for consideration and order.

Choice of law

How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Under Section 34 of the Arbitration Act, the arbitral tribunal must decide the dispute in accordance with the governing law chosen by the parties. Any designation of the law or legal system of a country shall be construed, unless otherwise expressed, as directly referring to the substantive law of the country and not to its conflict of laws rules.

Where the parties have not designated the governing law of the dispute, the arbitral tribunal will decide the dispute in accordance with Thai law. Where there is a conflict of laws, the arbitral tribunal will apply the law that it considers appropriate in view of the conflict of laws principle.

Separability

Are there any provisions on the separability of arbitration agreements?

Yes, Section 24 of the Arbitration Act provides that: "An arbitration clause, which forms part of a contract, shall be treated as an agreement independent of the main contract. A decision by the arbitral tribunal that the contract is null and void shall not affect the validity of the arbitration clause."

Multiparty agreements

Are multiparty agreements recognised?

Yes, multiparty arbitration agreements are recognised under Thai law.

Arbitral tribunal

Criteria for arbitrators

Are there any restrictions?

Under Section 19 of the Arbitration Act, an arbitrator must be impartial and independent and must possess the qualifications prescribed in the arbitration agreement. If the parties agree to submit the dispute to an institution established for the purpose of administering arbitration, the arbitrator must have the qualifications prescribed by the institute. 

Contractual stipulations

What can be stipulated about the tribunal in the agreement?

The agreement may stipulate matters such as:

  • the number of arbitrators;
  • the procedure for appointment of the tribunal; and
  • the necessary qualifications for the arbitrators. 

Default requirements

Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics?

Chapter 2 of the Arbitration Act provides certain requirements as to the selection of a tribunal. For example, the arbitral tribunal must be composed of an uneven number of arbitrators and arbitrators must be impartial and independent and must possess the qualifications prescribed in the arbitration agreement or, if the parties agree to submit the dispute to an arbitration institution, the arbitrator must have the qualifications prescribed by such institution. 

Challenging the appointment of an arbitrator

Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?

Under Section 19, paragraph 3 of the Arbitration Act, the appointment of an arbitrator can be challenged if there are circumstances that give rise to justifiable doubts as to their impartiality or independence or they lack the qualifications specified by the parties. However, a party cannot challenge the arbitrator that it has appointed or in whose appointment it has participated, except where said party was not aware of or could not have become aware of the grounds for challenge at the time of their appointment.

The procedures for challenging the appointment of an arbitrator are set out in Section 20 of the Arbitration Act. Within 15 days of becoming aware of the appointment or fact stipulated in Section 19, paragraph 3 of the Arbitration Act, the party intending to challenge the appointment can file a statement with the arbitral tribunal stating the grounds of the challenge. Following this, the tribunal will decide on the challenge unless the challenged arbitrator has already withdrawn from office or the other party has already agreed to the challenge.

Where a challenge under such procedure is unsuccessful or there is only one arbitrator, the challenging party can request the competent court to decide on the challenge within 30 days of receiving notice of the decision to reject the challenge or the date of knowing of either the appointment of the arbitrator or the fact stipulated in Section 19, paragraph 3 of the Arbitration Act. 

An arbitrator can also cease to become an arbitrator on their withdrawal or by mutual agreement between the parties where any circumstances set out in Section 21, paragraph 2 of the Arbitration Act exist (eg, where the arbitrator is subject to an absolute receivership or fails to perform their duties within a reasonable time for whatever cause).

Jurisdictional objections

How should an objection to jurisdiction be raised?

An objection to the arbitral tribunal's jurisdiction must be raised no later than the date on which the answer/statement of defence is submitted. The parties are not precluded from raising such an objection by the fact that they appointed or participated in the appointment of the arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter occurs during the arbitral proceedings.  

The arbitral tribunal is competent to rule on its own jurisdiction, including on:

  • the existence and validity of the arbitration agreement;
  • the validity of the appointment of the arbitral tribunal; and
  • issues of dispute falling within the scope of its authority. 

The arbitral tribunal may rule on its jurisdiction, either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, either party may file a motion requesting the competent court to decide the matter within 30 days of receipt of the ruling on the preliminary issue. 

Replacement of an arbitrator

Why and how can an arbitrator be replaced?

Section 22 of the Arbitration Act states that where the appointment of an arbitrator has been terminated as a result of an agreement by the parties under Section 20, by other grounds set out in Section 21 of the Arbitration Act or because his or her mandate has been terminated or revoked by an agreement between the parties, a substitute arbitrator can be appointed under the same rules as applied to the appointment of the arbitrator who is being replaced.

Powers and obligations

What powers and obligations do arbitrators have?

In addition to the power to rule on its jurisdiction, the arbitral tribunal has the power to conduct proceedings as it deems appropriate, which includes the power to determine the admissibility and weight of evidence, unless otherwise agreed by the parties. The arbitral tribunal may apply the provisions on the law of evidences under the Civil Procedure Code to the arbitration proceedings mutatis mutandis. 

Liability of arbitrators

Are arbitrators immune from liability?

According to Section 23 of the Arbitration Act, arbitrators will not be liable for civil liabilities arising during their performance of their duties as arbitrators, unless such duties have been performed wilfully or with gross negligence causing damage to either party.

Communicating with the tribunal

How do the parties communicate with the tribunal?

The Arbitration Act is silent on this matter. Where an arbitration is administered by a particular arbitration institution, communication with the tribunal must be in accordance with the rules of such institution.  

Reaching decisions

Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?

Unless otherwise agreed by the parties, any awards, orders or rulings of the arbitral tribunal must be made by a majority vote, in accordance with Section 35 paragraph 1of the Arbitration Act. However, in the event that the arbitral tribunal cannot reach a majority vote, the chair of the tribunal will solely render the award, order or rule.

Arbitrability

Are there any disputes incapable of being referred to arbitration?

Disputes which cannot be referred to arbitration include:

  • criminal disputes;
  • commercial disputes which are against public policy or relate to a person’s status (eg, disputes concerning whether a person is married or divorced); and
  • disputes which the law expressly requires be submitted to the courts for adjudication (eg, claims for a limited company’s dissolution).

Can the arbitrability of a dispute be challenged?

The arbitrability of a dispute can be challenged by either party pursuant to Section 24 paragraph 2 of the Arbitration Act, which allows the parties to an arbitration to challenge the tribunal’s jurisdiction and actions beyond the scope of its authority.

Jurisdiction and competence-competence

Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

The principle of competence-competence is recognised in Thailand. After the arbitral tribunal has ruled on its jurisdiction, either party may file a motion requesting the competent court to decide the matter within 30 days of receipt of the ruling under Section 24 of the Arbitration Act.

Arbitral proceedings

Starting an arbitration proceeding

What is needed to commence arbitration?

The Arbitration Act is silent on what is needed to commence arbitration. Where an arbitration is administered by a particular arbitration institution, the requirements on what is needed to commence arbitration must be in accordance with the rules of such institution. 

Limitation periods

Are there any limitation periods for the commencement of arbitration?

For the purpose of limitation periods, an arbitral proceeding will be deemed to have commenced when:

  • a party receives a letter from the other party requesting that the dispute be settled by arbitration;
  • a party notifies the other party in writing to appoint an arbitrator or approve the appointment of an arbitrator;
  • a party sends a written notice of the disputed issues to the arbitral tribunal designated in the arbitration agreement; or
  • either party submits the dispute to an agreed arbitration institution. 

The limitation periods vary according to the types of dispute and are prescribed in the Civil and Commercial Code. The limitation period will be interrupted when a party has submitted the dispute to arbitration. 

Procedural rules

Are there any procedural rules that arbitrators must follow?

Arbitrators must comply with the Thai procedural laws set out in the Arbitration Act and the Civil Procedure Code (BE 2477 (1934)), as well as the rules of the arbitration institution to which the parties have agreed. 

Dissenting arbitrators

Are dissenting opinions permitted under the law of your jurisdiction?

Dissenting opinions are permitted under Thai law. 

Judicial assistance

Can local courts intervene in proceedings?

Local courts can intervene in arbitration proceedings to the extent permitted by the Arbitration Act. 

Can the local courts assist in choosing arbitrators?

Yes, the local courts can assist in appointing arbitrators if the procedure agreed by the parties for choosing the arbitral tribunal is unsuccessful.  

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?  Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?

Section 31 of the Arbitration Act provides that, unless otherwise agreed by the parties, the arbitral tribunal will continue with the proceedings where a respondent fails to participate in an arbitration. The courts cannot compel parties to arbitrate. 

The courts may issue a subpoena or an order to submit any documents or materials when requested by the arbitral tribunal, an arbitrator or a party with the consent of the majority of the arbitral tribunal pursuant to Section 33 of the Arbitration Act.

Third parties

In what instances can third parties be bound by an arbitration agreement or award?

Third parties are not legally bound by an arbitration agreement or award. However, where there is a transfer of any claim or liability, the transferee will be bound by the arbitration agreement concerning such claim or liability pursuant to Section 13 of the Arbitration Act.

Default language and seat

Unless agreed by the parties, what is the default language and location for arbitrations?

Unless agreed by the parties, the language and place of arbitration will be determined by the arbitral tribunal.

Gathering evidence

How is evidence obtained by the tribunal?

The arbitral tribunal will decide whether to hold oral hearings for the presentation of evidence or whether the proceedings will be conducted solely on the basis of documents or other evidence presented. Unless otherwise agreed by the parties, the arbitral tribubal can take evidence at any stage during the course of the proceedings as it thinks fit if so requested by a party.

What kinds of evidence are acceptable?

Acceptable forms of evidence include materials, documents and expert reports.

Confidentiality

Is confidentiality ensured?

The Arbitration Act is silent on the issue of confidentiality. Confidentiality can be ensured in the terms of reference or by the rules of the arbitration institution.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

Please see above.

Ethical codes

What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

No ethical codes or other professional standards apply to arbitrators, other than the requirements under the Arbitration Act. No ethical codes or other professional standards apply specifically to counsel conducting proceedings in Thailand. 

Costs

Estimation & allocation

How are the costs of arbitration proceedings estimated and allocated?

The Arbitration Act is silent on the estimation and allocation of the costs of arbitration proceedings. The allocation of such costs is at the discretion of the arbitral tribunal.

Security for costs

Can the national court or tribunal order security for costs under the law in your jurisdiction?

The Arbitration Act is silent on the power of the national court or tribunal to order security for costs. The arbitral tribunal may have the power to order security for costs if such power is provided under the arbitration rules to which the parties have agreed. The courts cannot order security for costs of arbitration proceedings.

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?

The award must be made in writing and signed by members of the arbitral tribunal. Where there is more than one arbitrator, the signatures of the majority will suffice, provided that the reason for the omission of signature is stated. The award must also state the date and place of arbitration. After the award is made, the arbitral tribunal will send a copy of the award to all parties. 

Unless otherwise agreed by the parties, reasons must be given for the award.

The Arbitration Act does not require the award to be reviewed by any other body. 

Timeframe for delivery

Are there any time limits on delivery of the award?

The Arbitration Act does not prescribe any time limits on delivery of the award.

Remedies

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

The law imposes no limits on the available remedies which may be awarded by an arbitral tribunal. However, any remedies awarded should not be contrary to public policy, as Section 44 of the Arbitration Act provides that the courts may dismiss the enforcement of an arbitral award if they find that the enforcement would be contrary to public policy.

In this regard, where Thai law is the governing law, Section 213 of the Civil and Commercial Code states as follows:

If a debtor fails to perform his obligation, the creditor may request the Court for compulsory performance, except where the nature of the obligation does not permit it.

When the nature of an obligation does not permit of compulsory performance, if the subject of the obligation is the doing of an act, the creditor may apply to the court to have it done by a third person at the debtor's expense; but if the subject of the obligation is doing of a juristic act, a judgment may be substituted for a declaration of intention by the debtor.

As to an obligation whose subject is the forbearance from an act, the creditor may demand the removal of what has been done at the expense of the debtor and have proper measures adopted for the future.

The provisions of the foregoing paragraphs do not affect the right to claim damages.

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 its interests before or during the arbitral proceedings. If the court believes that it would have been able to issue such an 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.

Interest

Can interest be awarded?

Where Thai law is the governing law, interest can be awarded in accordance with Section 224 of the Civil and Commercial Code. Section 224, paragraph 1 of the code provides 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." 

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 Section 39 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

On what grounds can parties appeal an award?

An arbitral award cannot be appealed under the Arbitration Act. 

What is the procedure for challenging awards?

To challenge an arbitral award, a petition for setting aside must be filed with the competent court within 90 days of receipt of a copy of the award or the correction, interpretation or making of an additional award.

The court will set aside the arbitral award issued in Thailand in the following cases:

  • The party filing the petition can prove that:
    • a party to the arbitration agreement lacked legal 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, if no such agreement was made, under Thai law;
    • the party filing the petition was not given proper advance notice of the appointment of the arbitral tribunal or of the arbitral proceeding or was otherwise unable to defend the case in the arbitral proceeding;
    • the award deals with a dispute not falling within the scope of the arbitration agreement or contains a decision on a matter 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 the arbitration agreement, the court may set aside only the part that is beyond the scope of the arbitration agreement; 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 involves 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 or good morals.

Enforcement

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

If there is a failure to comply, a petition can be filed with the competent court to enforce the award within three years from the day that the award became enforceable. 

The following documents are required to be filed with the petition for enforcement of the award: 

  • 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 or is affirmed 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.

However, the enforcement of arbitral awards by the Thai court is not an administrative rubber stamp and documentary evidence and witnesses must typically be introduced to support the petition during trial. Nevertheless, the Thai court will not re-examine facts or consider the merits of the case. Arguments which can be raised in the hearing by the opposing party should be limited to the grounds for refusal for enforcement of awards under Section 43 of the Arbitration Act or claims that the award involves a dispute not capable of settlement by arbitration under the law or that the enforcement would be contrary to public policy under Section 44 of the Arbitration Act. 

Can awards be enforced in local courts?

An application for enforcement of an arbitral award can be filed with the competent court within three years from the day that the award has become enforceable. 

The competent court is prescribed in Section 9 of the Arbitration Act as"the Central Intellectual Property and International Trade Court, or the Regional Intellectual Property and International Trade Court, or a court where the arbitral proceedings are conducted, or a court in which either party is domiciled, or a court which has jurisdiction over the dispute submitted to arbitration, as the case may be".

However, if an award deals with any matter falling within the scope of the jurisdiction of the Intellectual Property and International Trade Court, a petition for enforcement of the award must be filed with the Intellectual Property and International Trade Court. 

How enforceable is the award internationally?

As Thailand is a party to the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 and the New York Convention, arbitral awards issued in Thailand are enforceable in the jurisdictions that are parties to these conventions.  

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

In principle, if the state is a party to the arbitration clause, it should be subject to the enforcement of the arbitral award. To the extent that the arbitral award results in the enforcement of state property, it is possible for the state to raise a defence that the state property is not subject to seizure (Section 1307 of the Civil and Commercial Code).

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.

6.7.6 How enforceable are foreign arbitral awards in your jurisdiction?

Under Section 41, paragraph 2 of the Arbitration Act, 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 an award will be applicable only to the extent that Thailand accedes to be bound. 

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

Section 43(6) of the Arbitration Act provides that the courts may refuse the enforcement of an arbitral award if a person against whom it will be enforced can prove that the award has already been set aside by a competent court or under the law of the country where it was made.

Third-party funding

Rules and restrictions

Are there rules or restrictions on third-party funders?

The Arbitration Act is silent on this matter.

Class-action or group arbitration

Concept

Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?

The Arbitration Act is silent on this matter.

Hot topics

Emerging trends

Are there any hot topics or trends emerging in arbitration in your jurisdiction?

N/A.