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Starting an arbitration proceeding
What is needed to commence arbitration?
Under Section 27 of the Arbitration Act, arbitral proceedings will be 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 established for settlement of disputes by arbitration as has been agreed.
Are there any limitation periods for the commencement of arbitration?
There is a period of limitation for each dispute under Section 193 of the Civil and Commercial Code. Section 193/14(4) of the Civil and Commercial Code stipulates that such period will be interrupted in cases where a creditor submits the dispute to arbitration.
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)). For instance, Section 25 of the Arbitration Act stipulates that “unless otherwise agreed by parties or provided by this Act, the arbitral tribunal shall apply the provisions on the law of evidences mutatis mutandis under the Civil Procedure Code”.
However, where the parties to the arbitration agree to apply the Thai Arbitration Institute (TAI) Rules, the arbitrators must follow the TAI Rules and the laws set out in the Arbitration Act and the Civil Procedure Code.
Are dissenting opinions permitted under the law of your jurisdiction?
Dissenting opinions are permitted under Thai law. For example, Section 45(4) of the Arbitration Act stipulates that “no appeal shall lie against the order or judgment of the court under this Act unless… the judge who sat in the case gave a dissenting opinion”.
Can local courts intervene in proceedings?
Local courts can intervene in arbitration proceedings to the extent permitted by law. For instance, Section 18 of the Arbitration Act provides that:
“Where the arbitral tribunal shall be a sole arbitrator, if the parties are unable to agree on the arbitrator, either party may file a motion with the competent court requesting appointment of the arbitrator.”
Can the local courts assist in choosing arbitrators?
Yes. Local courts can assist in choosing arbitrators in the following cases:
- Where the arbitral tribunal will have a sole arbitrator, if the parties cannot agree on the arbitrator, either party may file a motion with the competent court requesting an appointment of the arbitrator pursuant to Section 18(1) of the Arbitration Act.
- Where the tribunal will consist of multiple arbitrators, each party must appoint an equal number of arbitrators and the appointed arbitrators must appoint an additional arbitrator. However, if either party fails to appoint its arbitrators within 30 days of receipt of the notification from the other party, or if the appointed arbitrators cannot jointly appoint a chair, either party can file a motion with the competent court requesting an order to appoint an arbitrator or chair pursuant to Section 18(2) of the Arbitration Act.
- If, pursuant to the appointment procedures above, no other procedures for successful appointment of arbitrators are provided, either party may file a motion with the competent court to appoint the arbitrator as it deems appropriate where:
- a party fails to act as required under the procedure;
- the parties or the party-appointed arbitrators cannot reach an agreement expected of them under the procedure; or
- a third party, including an institution, fails to perform any function entrusted to it under the procedure.
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?
Under Sections 31(2) and (3) of the Arbitration Act, unless otherwise agreed by the parties, the arbitral tribunal will still continue the proceedings where:
- the respondent fails to submit its statement of defence; or
- any party fails to appear at a hearing or produce documentary evidence.
Where the parties agree to apply the TAI Rules, Article 40(2) of the TAI Rules provides that:
“In case where the Respondent fails to submit the Statement of Defense without justifiable reason, to attend the arbitral proceedings, or to carry out any act directed by the Arbitral Tribunal or the Institute, the Arbitral Tribunal or the Institute may continue with the proceedings.”
No, the courts cannot compel parties to arbitrate.
Yes. The courts may issue a subpoena or an order to submit any documents or materials on a request by the tribunal, an arbitrator or a party with the consent of the majority of the arbitral tribunal pursuant to Section 33 of the Arbitration Act.
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 claim or liability, the transferee will be bound by the arbitration agreement concerning such claim or liability (Section 13 of the Arbitration Act).
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
If the parties do not agree on a language for the arbitration, the arbitral tribunal will determine the language(s) to be used in the proceedings (Section 28 of the Arbitration Act). If the parties do not agree on the place of arbitration, this will be determined by the arbitral tribunal, having regard to the circumstances of the case, including the convenience of the parties (Section 26 of the Arbitration Act).
How is evidence obtained by the tribunal?
The arbitral tribunal can take evidence at any stage during the course of the proceedings as it thinks fit if so requested by a party (Section 30 of the Arbitration Act).
What kinds of evidence are acceptable?
Acceptable forms of evidence include materials, documents and expert reports.
Is confidentiality ensured?
The Arbitration Act is silent on the confidentiality issue. However, the arbitral tribunal may address confidentiality in its terms of reference.
Article 36 of the TAI Rules states that:
“All arbitral proceedings, the Statement of Claims, the Statement of Defense, documents, evidence, hearings, orders, and award are confidential.
The parties, the arbitral tribunal and the Institute shall not disclose the proceedings whether in whole or in part, unless the disclosure is:
(1) with the consents of the parties;
(2) for the purpose of protection or exercise of legal rights, or enforcement or setting aside of an award;
(3) as prescribed by law.”
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Please see above.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
The ethical codes include the 2002 and 2015 versions of the Code of Ethics for Arbitrators issued by the TAI.
Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?
Article 55 of the Thai Arbitration Institute (TAI) Rules sets out the costs and expenses in relation to conducting arbitration and arbitrators’ fee.
Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?
Under Article 58 of the TAI Rules, the arbitral tribunal can order security for costs.
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