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?

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 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.