ALTERNATIVE DISPUTE RESOLUTION
Alternative dispute resolution is an important part of the Thai legal system, and instead of litigation, an increasing number of local and international disputes are now being settled in Thailand through mediation and arbitration. Thailand is not a particularly litigious society, especially when compared to the United States and the European Union, and there are many in-court and out-of-court options available for alternative dispute resolution. Mediation has always been part of conflict resolution in Thai culture, but was mostly confined to smaller disputes within the community. In today’s practice, judicial settlement of a dispute is part of the Civil Procedure Code (CPC), originally enacted in 1935, where conciliation before a trial can be voluntary or ordered by the trial judge. In the Courts of Justice, for all civil and commercial cases, the trial judge will inquire into any preliminary mediation between the parties and will recommend mediation before the matter advances any further. During a trial, the parties can always opt to halt the proceedings and settle the case through mediation, using either a court appointed or an out-of-court mediator. Under the CPC, the chief trial judge may, at his discretion, require the principal parties of the case to appear in court in person for conciliation. And if there is a possibility of settlement, the case will be sent to another judge for conciliation. The chief trial judge also has the option to administer the dispute if it is, in their opinion, a simple issue. At any time during a trial, the judge can facilitate a compromise between the parties and can appoint a reconciler from outside the court. A judge can also convene closed door sessions with a single party or all parties to bring about reconciliation. Outside the courts, mediation services are available at various places, depending on the nature of the case, and include the Mediation Center in the Alternative Dispute Resolution Center, Office of the Judiciary, Ministry of Justice, the THAC Mediation Center, and the Lawyers Council of Thailand, among others.
Out-of-court arbitration disputes can be administered by selected arbitrators under the rules of the Thai Arbitration Institute (TAI), the THAC Arbitration Center (THAC), the Office of Insurance Commission (OIC), the Stock Exchange of Thailand (SET), and the International Chamber of Commerce (ICC Rules) or under the statutes of the United Nations Commission on International Trade Law (UNCITRAL). Direct enforcement of foreign judgments is not available in the Kingdom; however, as a signatory to the 1958 New York Convention on the Uniform Enforcement of Arbitral Awards, Thailand does ensure the effective enforcement of arbitral awards made in other signatories’ jurisdictions.
Out-of-court arbitration in Thailand is covered by the Arbitration Act B.E.2545 (2002). This comprehensive redrafting of the original Arbitration Act is based on the UNCITRAL Model Law on International Commercial Arbitration and contains all of its core principles together with Thailand specific additions. Under the 2002 Arbitration Act, an arbitration agreement can be included in a contract or drafted as a separate agreement. The parties choose the number of arbitrators, but the total must always be an odd number. The parties also select the venue for the proceedings and the language and rules to be used. The competent court for an arbitral dispute can be a court having jurisdiction over the arbitration venue, jurisdiction over the parties’ domiciles, jurisdiction to adjudicate an arbitral dispute, or the Central Intellectual Property and International Trade Court. There are no regulations on the timeframe for arbitration, and the scheduling of the different phases of an arbitration is at the discretion of the parties and the arbitrator. On average, out-of-court arbitral proceedings in Thailand take at least one year. The costs of an arbitration depends on the rules used and the venue. At the Thai Arbitration Institute, for a matter concerning a disputed amount under THB 2 million, the arbitrator’s fee is THB 30,000. For amounts over THB 2 million, there are fixed prices and percentages of the disputed amount, e.g., for an amount between THB 20 to 50 million, the fee is THB 95,000 plus 0.2% of the amount exceeding THB 20 million. Arbitration proceedings are confidential and an arbitral award is private and cannot be publicly disseminated.
Out-of-court arbitration comes in two forms, ad hoc arbitration and institutional arbitration, and the main difference between the two is how the proceedings are managed. If the parties agree to an ad hoc arbitration, the proceedings will be controlled in their entirety by the disputing parties and their chosen arbitrator without the involvement of an arbitral institution. A major benefit of an ad hoc arbitration is the reduction in costs. The parties can freely negotiate with the arbitrator on fees and will not have to pay for services provided by an arbitral institution such as scheduled hearings or distributing documents. Another benefit to the parties is that there is much more flexibility in the management of an ad hoc proceeding. In an institutional arbitration, the parties are required to abide by all of an institution’s regulations and processes which can increase costs and significantly extend the timespan of an arbitration. With the less formal option of an ad hoc arbitration, the parties can manage and organize the proceedings according to their preferences. This can save time and potentially create more opportunities to reach a settlement as the parties may find themselves more open to negotiation when they do not have to follow an institution’s rules. One drawback to ad hoc arbitration is the potential of abuse of control over the arbitration’s timetable by one party refusing to participate in the proceedings that ultimately results in the arbitration’s failure. In an institutional arbitration, the chosen institution supervises the proceeding and keeps things moving forward.
The Thai Arbitration Institute (TAI) in the Alternative Dispute Resolution Office, the Office of the Judiciary, is the main out-of-court arbitration service provider in Thailand for both local and international disputes. Arbitration proceedings at the TAI follow the Arbitration Rules for the Thai Arbitration Institute (TAI Rules). A standard out-of-court arbitration proceeds as follows:
• The party initiating the arbitration, the claimant, submits a statement of claim against the respondent with the TAI. The TAI sends the statement of claim to the respondent who then has 15 days to file a defense and a counterclaim. After receiving the defense and any counterclaim, the claimant has 15 days to file a defense against the counterclaim.
• The parties agree on the venue for the proceedings and the language and rules to be used.
• Before the matter proceeds further, the parties are encouraged the settle the dispute and a conciliator will be appointed if the parties agree.
• Unless otherwise agreed, the parties can have either a one or three arbitrator tribunal. For a single arbitrator, if the parties cannot agree on an arbitrator, a list of three arbitrator’s names is sent to each party. The parties then have 15 days to remove any names they wish to and then list the remaining names in the order of preference. The TAI then chooses the most preferred arbitrator. For three arbitrators, each party chooses one and then the two chosen arbitrators pick the third who then acts as the presiding arbitrator. The parties can challenge the appointments within 15 days of being notified on the makeup of the tribunal. For tribunals of three or more, the arbitral award is made on a majority basis.
• The TAI arranges a meeting with the parties to set the schedule, decide on procedure and evidence matters, and formally appoint the tribunal. Regarding an arbitration’s proceedings, as long as the parties are treated equally and have full opportunity to present their cases, the proceedings of an arbitration are up to the discretion of the tribunal.
• On the first day of the hearing, the parties submit all documents to support their claim or defense. A tribunal can order a party to submit their documents. The burden of proof is on each party to prove the facts used to support their claim or defense. The tribunal can take evidence and conduct witness testimony and can employ experts to examine evidence. Each party has the right to question any expert witness. The hearing is closed after the parties declare there is no more proof to be submitted. All arbitration hearings are held in private.
• According to the TAI Rules, unless otherwise agreed, the arbitral award must be made within 180 days of the last arbitrator’s appointment. However, the parties usually agree to waive the 180-day requirement for an unrestricted timeframe to make the award. An award cannot exceed the scope of the arbitration agreement or relief sought except for costs, expenses incurred in the proceedings, and the arbitrator’s fees.
• After the TAI sends a copy of the award to the parties, each party has 30 days to request the tribunal to interpret the contents of the award or to request an additional award for claims presented in the proceeding, but not included in the award. For recourse against an arbitral award, a party must petition the competent court within 90 days of receiving the award. To enforce an arbitral award, a party must petition the competent court within three years of the award becoming enforceable. Appeals go directly to the Supreme Court or the Administrative Court.
At this time, the number of disputes successfully resolved through arbitration in Thailand continues to increase, and more than civil cases are being settled by arbitration. A large number of administrative cases are now being referred to arbitration in lieu of the courts of justice; e.g., disagreements over hiring contracts between the public and private sector and disputes between the Securities and Exchange Commission and listed public companies. Because the Arbitration Act ensures the validity of an arbitration clause in a contract between a government agency and private party, these types of arbitration will continue to play an important role and be accepted as an effective means of alternative dispute resolution in Thailand.
The Thai Mediation Center (TMC) in the Alternative Dispute Resolution Office, the Office of the Judiciary, is responsible for coordinating and conducting court-annexed and out-of-court mediation and providing legal advice on mediation and conciliation to the public. The ADRO also develops the systems, methods and standards for mediation in Thailand. The TMC describes the mediation system in Thailand as one that allows for mutually satisfactory settlements where there are no winners or losers. And that by providing win-win solutions, mediation leads to a more harmonious society with people actively involved in the dispute settlement process. Also, mediation saves both time and money for the Kingdom by reducing the work load of the court system.
In out-of-court mediation, the parties agree to use a neutral mediator to settle a dispute. The parties can appoint a mutually agreed upon person as the mediator or use the services of an organization like the TMC. If the parties come to a mutually acceptable solution during the mediation, they then either enter into a binding, enforceable compromise agreement or withdraw the case from the court. Even if a dispute has made it to trial, the parties can decide to enter mediation and have it proceed without any court involvement as it will be considered out-of-court mediation and not be bound by the Civil Procedure Code rules. All mediation proceedings are confidential. The mediator and the parties cannot divulge any information about the proceedings nor can any facts or evidence be used in court proceedings, unless previously agreed upon by the parties. A mediation can be terminated if a party withdraws, if the parties request a judgment from the court, if a mediator cannot successfully meet the mediation’s deadline, or if the mediator decides that mediation will not resolve the dispute.
A wide range of local and international disputes can be settled through out-of-court mediation including civil and commercial disputes involving banking and finance, construction, transportation, and international trade as well as compoundable criminal disputes. Mediation proceedings at the TMC follow the Office of the Judiciary Out-of-Court Mediation Rules (TMC Rules). A typical out-of-court mediation proceeds as follows:
• One party sends a written Request for Mediation to the Alternative Dispute Resolution Office (ADRO). The ADRO sends a copy to the other party who has 15 days to accept or decline participating in the mediation. If the other party does not reply within 15 days, the mediation is automatically declined.
• If the other party agrees to the mediation, the ADRO then arranges a meeting between the parties to appoint a mediator and commence the proceedings. The parties can choose a mediator from the ADRO’s list of mediators or mutually agree on a mediator. For any potential conflict of interest, the ADRO can appoint a new mediator if the parties cannot agree on one.
• The parties choose the language(s) to be used and sign a written acknowledgement of the mediation process. The mediator can choose the language(s) if the parties cannot agree on the language(s) to be used.
• The mediator will conduct the proceedings according to conditions decided upon by the parties. However, if there is no agreement, the proceedings of a mediation are at the discretion of the mediator, but must follow the TMC Rules. The parties must cooperate in good faith with the mediator including any necessary requests for documents and other evidence. The mediator must be guided by the principles of fairness, impartiality, neutrality, and independence in conjunction with the wishes of the parties. The mediator has no power to impose a settlement on the parties. A routine TMC mediation has four phases:
1. Preparation – the mediator examines the dispute using the case files and can also request more information from the parties.
2. Opening – The mediator makes an opening statement which includes an introduction of the mediator and the participating parties, an explanation of everyone’s roles, and any ground rules.
3. Interest – Using the provided and discovered information, the mediator identifies each party’s interests and the areas of dispute.
4. Solution – The mediator works to reduce the number of disputed issues and offer possible solutions.
Thailand Arbitration Act B.E.2545 (2002)
Arbitration Rules for the Thai Arbitration Institute
Alternative Dispute Resolution Office Out-of-Court Mediation Rules
Alternative Dispute Resolution Office Mediation Handbook
Alternative Dispute Resolution Office www.adro.coj.go.th/
Disclaimer: All material provided here by Dej-Udom & Associates is for informational purposes only. It does not constitute legal advice from this law firm nor any of its attorneys. It was compiled from multiple sources, and while every effort has been made to verify the material, Thailand’s laws and rules can change suddenly with no notice. Before acting on any of the information contained herein, please obtain professional advice from a qualified lawyer.