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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 awards 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 be enforced only to the extent that Thailand accedes to be bound (ie, subject to reservations made by Thailand in relation to the relevant treaty, convention or agreement).

Under Article 46 paragraph 2 of the 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 from the date of completing the hearings or the deadline 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?

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 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, the local courts can issue interim measures prior to the commencement of or during arbitral proceedings. Where the court issues an order at the party’s request, the party filing the motion for the interim measures must commence 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 paragraph 2 of the Arbitration Act.

Interest

Can interest be awarded?

Where Thai law is the governing law, interest will be 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) and (2) of the Arbitration Act.

Under Article 52 of the TAI Rules, either party may request the Arbitral Tribunal to decide on any material issue which in the opinion of that party, was not covered in the original award, within 30 days from the day on which a copy of the award reaches the party. If the arbitral tribunal considers the request justifiable, the arbitral tribunal must complete the award within 30 days from the day on which the request has been filed.

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?

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.

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.

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.

6.7.6 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 paragraph 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?

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.

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