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.
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.
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."
Are multiparty agreements recognised?
Yes, multiparty arbitration agreements are recognised under Thai law.