THAILAND Law and Practice Contributed by: Phatsawat Siwawej, Piyachon Jiraratmethakorn and Ketsirin Wisetwatcharawong, Weerawong C&P
5.2 Circumstances for Court Intervention In a case brought before the Thai Supreme Court involving a competence-competence challenge seek - ing to set aside an arbitral award, the court demon - strated a reluctance to intervene and dismissed the argument in favour of arbitration (Supreme Court Judgment No 7801/2561 (2018)). The Thai Supreme Court has consistently interpreted the grounds for set - ting aside arbitral awards narrowly (Supreme Court Judgment No 10668/2553 (2010)), thereby preserv - ing the principle of finality in arbitration. Accordingly, where an arbitral tribunal renders an award within the scope of the arbitration agreement (Supreme Court Judgment No 2963/2563 (2010)), the award is binding on the parties, and there are no grounds for setting it aside. Typically, the court treats the motion requesting a rul - ing on the jurisdictional issue in the same manner as other cases. All procedural submissions exchanged during the proceedings – including rulings from the arbitral tribunal affirming or denying jurisdiction – are usually considered as supporting evidence. 5.3 Timing of Challenge If the arbitral tribunal renders a preliminary ruling stat - ing that it has jurisdiction over a case, either party may file a motion requesting the competent court to rule on the matter within 30 days of receiving the preliminary ruling. If the tribunal’s jurisdiction is addressed in the final award instead, the award debtor can challenge the tribunal’s competence during an annulment action or by objecting to the enforcement action initiated by the award creditor. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility To determine the admissibility and jurisdiction of a case, the court will evaluate the existence or validity of the arbitration agreement and other relevant factors under the de novo standard of judicial review. How - ever, if the tribunal issues a preliminary ruling affirming its jurisdiction, it may be accorded a certain level of deference. This means that, although the court retains the authority to independently determine whether the arbitral tribunal has jurisdiction, it may take into account the tribunal’s prior analysis and findings on jurisdictional issues.
The enforcement or refusal of an arbitral award enforcement by a Thai court is determined based on a limited set of grounds, as outlined under Section 43 of the Thai Arbitration Law. This provision specifies that a court may refuse the enforcement of the arbi - tral award, irrespective of the country in which it was issued, provided the party against whom the enforce - ment is sought can prove one of the following. • A party involved in the arbitration agreement lacks legal incapacity according to the law applicable to that party. • The arbitration agreement is not binding under the law of the country agreed upon by the parties (or, in the absence of any indication thereof, under the law of the country where the award is issued). • The applicant party did not receive proper advance notice of the appointment of the arbitral tribunal or the arbitral proceedings or was otherwise unable to present their defence in the arbitral proceedings. • The award involves a dispute not falling within the scope of the arbitration agreement or containing a decision on a matter beyond the scope of the arbitration agreement. However, if the award on the matter beyond the scope can be separated from the part within the scope of the arbitration agree - ment, the court may set aside only the part that exceeds the scope of the arbitration agreement or clause. • The composition of the arbitral tribunal or the arbi - tral proceedings was not in accordance with the agreement of the parties (or, in the absence of any agreement by the parties, in accordance with the law of the country where the award is issued). • The arbitral award has not yet become binding, or it has been set aside or suspended by a compe - tent court (or under the law of the country where it was made). Unless the setting aside or suspen - sion of the award is sought from a competent court, the court may postpone the hearing for the enforcement of the award as it deems appropri - ate. Furthermore, upon the request of the applicant party, the court may order the party against whom enforcement is sought to provide suitable security. 5.5 Breach of Arbitration Agreement In 2017, Thailand’s Supreme Court ruled on a sub - contract agreement arbitration clause, asserting in
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