THAILAND Law and Practice Contributed by: Phatsawat Siwawej, Piyachon Jiraratmethakorn and Ketsirin Wisetwatcharawong, Weerawong C&P
Where the parties have agreed to an appointing pro - cedure but it has not been complied with success - fully, either party may file a petition with the competent court to appoint the arbitrator as it deems appropriate where: • a party fails to perform as required under such procedure; • the parties, or the arbitrators appointed by each party, are unable to reach an agreement under such procedure; or • a third party, including an institution, fails to fulfil any duty entrusted to it under such procedure. The default process does not differ for multiparty arbi - trations. 4.3 Court Intervention The court is vested with the authority to appoint arbi - trators as stipulated under Section 18 of the Thai Arbi - tration Law. Please refer to 4.2 Default Procedures . 4.4 Challenge and Removal of Arbitrators The appointment of an arbitrator can be challenged if there are circumstances that lead to justifiable doubts about their impartiality or independence, or if they lack the qualifications agreed upon by the parties pursuant to Section 19 of the Thai Arbitration Law. However, a party may not challenge the appointment of an arbitra - tor they have appointed or in whose appointment they have participated, unless they were not aware – or could not have been aware – of the grounds for such challenge at the time of appointment. 4.5 Arbitrator Requirements Please refer to 4.1 Limits on Selection and 4.4 Chal- lenge and Removal of Arbitrators . With respect to the TAI Rules, the arbitrator shall be impartial, independent and possess the qualifications prescribed in the arbitration agreement, as well as be prepared to execute his/her duties with speed and efficiency. In case there are justifiable doubts as to the arbitrator’s impartiality and independence, the arbitra - tor shall disclose any facts that may give rise to such doubts.
Under the THAC Rules, the arbitrator shall perform his/her duties with impartiality and independence and shall not act as the defence for a party even if nomi - nated by that party. The arbitrator shall also disclose the facts that may raise doubts over his/her impartial - ity and independence.
5. Jurisdiction 5.1 Challenges to Jurisdiction
The principle of competence-competence is applica - ble in Thailand. Under this principle, an arbitral tribunal has the authority to rule on its own jurisdiction. This includes issues related to: • the existence or validity of the arbitration agree - ment; • the validity of the appointment of the arbitral tribu - nal; and • determining whether the dispute at hand falls within the scope of its authority. Any challenge to the jurisdiction of the arbitral tribunal to hear the dispute must be raised before the tribunal no later than the date of the submission of the state- ment of defence on the merits of the case. A party to the dispute is not precluded from raising such a chal - lenge by the reason that such party has appointed – or participated in the appointment of – an arbitrator. In raising a challenge that the arbitral tribunal is exceed - ing the scope of its authority, any party to the dispute must raise it immediately upon the occurrence of the incidence during the arbitral proceedings, unless the arbitral tribunal considers the delay justified – in which case, the arbitral tribunal may permit a party to the dispute to make a challenge later than the time limit specified. Another important case is where a party becomes aware that any provision of the Thai Arbitration Act from which the parties may derogate, or any require - ment under the arbitration agreement, has not been complied with; such party must raise an objection within a reasonable period of time or within the time limit prescribed. Otherwise, the party shall be deemed to have waived its right to object to such non-com - pliance.
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