THAILAND Law and Practice Contributed by: Phatsawat Siwawej, Piyachon Jiraratmethakorn and Ketsirin Wisetwatcharawong, Weerawong C&P
ruling in situations where a majority vote cannot be secured. 2.2 Changes to National Law Thai arbitration law has not undergone any signifi - cant modifications in the past year. There is currently no prospective legislation in the pipeline that might potentially alter the arbitration landscape in Thailand.
• criminal disputes; • insolvency disputes;
• civil and commercial disputes involving the viola - tion of public policy or related to a person’s legal status (eg, marital status); • certain categories of labour disputes that are sub - jected to dispute resolution mechanisms under the Labour Relations Act BE 2518; and • disputes explicitly required by law to be adjudicat - ed by courts – for example, those involving claims for a company’s dissolution. The general approach to determining arbitrability hinges on whether exclusive jurisdiction for certain matters is vested with the courts. This means that if a specific type of dispute or subject matter is explic - itly assigned to be resolved by courts per the law, then such matters cannot be arbitrated and must be The courts have generally respected the choice made by the parties regarding the governing law of the arbi - tration agreement. They will enforce and interpret the agreement in accordance with the law chosen by the parties. In cases where the parties have not explicitly designated the governing law for the arbitration agree - ment, the approach of the courts has been to apply Thai law. resolved through court proceedings. 3.3 National Courts’ Approach Under Thai law, two forms of arbitration are recog - nised: in-court arbitration and out-of-court arbitration. In-court arbitration, or so-called judicial arbitration, refers to a process at the court of first instance where - by the parties agree to refer their disputed issues to arbitration before the court. It is viewed as a case management technique and is governed by Sections 210–220 and 222 of the Civil Procedure Code (CPC) (rather than the Thai Arbitration Law), which stipulate: • the procedures for establishing an arbitral tribunal (either by the parties themselves, the court or a combination of both); • the procedural rules the tribunal must adhere to; • the formulation of an arbitral award; and • the enforcement of said award.
3. The Arbitration Agreement 3.1 Enforceability
To be enforceable, an arbitration agreement must take the form of an arbitration clause within a contract or as a standalone agreement. In principle, it must also be in writing and signed by all parties involved. An arbitration agreement can also be recognised as such if it has been concluded in an exchange between the parties by means of letters, facsimiles, telegrams, telex, exchange of data with electronic signatures affixed or other methods that can provide a record of the agreement. This can also be in the form of an exchange of a statement of claim and statement of defence in which the existence of an agreement is not merely alleged by one party and denied by the other. Additionally, provided they are documented in writ - ing, any references in a contract to a document con - taining an arbitration clause can be considered as an arbitration agreement. This holds true as long as the reference is such that it makes that clause a part of the contract. 3.2 Arbitrability The Thai Arbitration Law does not provide compre - hensive guidelines on what constitutes an arbitrable matter. It simply stipulates that courts may dismiss an application for the enforcement of an arbitral award if it finds that the award pertains to a dispute “not capable of settlement by arbitration under the law”. The determination of arbitrability is thus left to the dis - cretion of the courts and is assessed on a case-by- case basis. Nevertheless, it is generally acknowledged that the following types of disputes are not arbitrable:
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