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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. However, if agreed by the parties, the arbitral tribunal should be able to consolidate separate arbitral proceedings under one or more contracts.
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?
The Arbitration Act is silent on this matter.
Are multiparty agreements recognised?
Yes, multiparty arbitration agreements are recognised under Thai law.
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