THAILAND Law and Practice Contributed by: Phatsawat Siwawej, Piyachon Jiraratmethakorn and Ketsirin Wisetwatcharawong, Weerawong C&P
Supreme Court Judgment No 1115/2560 that such clause does not oblige parties exclusively to submit to arbitration – litigation is also permissible. However, in 2019, a revised stance was taken. In Supreme Court Judgment No 3427/2562, the Supreme Court ruled that the defendant’s witness presentation showed substantiated evidence that the phrase “may refer the dispute to arbitration” in an arbitration clause does not provide for a choice between litigation and arbitration. Instead, the parties in this specific case intended for arbitration to be the only means of resolv- ing their dispute once the 60-day period for amica - ble settlement had elapsed. Consequently, the court enforced the arbitration agreement, dismissing the litigation. This welcome ruling signalled clear support for arbitration in Thailand. The key takeaway from these cases is the court’s pref - erence for mandatory language to be used in arbi - tration agreements to ensure enforceability. These judgments sparked debates on the extent to which the court should consider the parties’ intentions, as well as the perceived validity and enforceability of the arbitration clause. 5.6 Jurisdiction Over Third Parties Thai laws only permit a case to be brought to the arbi - tration process when the parties give their consent to the arbitration proceedings in line with the Thai Arbitration Law. Therefore, in the absence of a clear arbitration agreement in writing or in a specified form under Thai Arbitration Law, there is no circumstance in which Thai laws would allow an arbitral tribunal to assume jurisdiction over those individuals or entities who do not consent to the arbitral proceeding.
Consequently, in a practical context, rather than requesting the tribunal-ordered interim relief, a party will instead submit a request to a competent court to seek the issuance of interim remedies. 6.2 Role of Courts The courts have the authority to grant interim relief in arbitral proceedings. If a party to an arbitration agree - ment wishes to protect their interests, they may file a motion requesting the competent court to issue an order imposing provisional measures before or during the arbitral proceedings. If the court determines that it would have been able to issue such an order had the proceedings been conducted in court, it may proceed as requested. The provisions governing provisional measures under the CPC will apply mutatis mutandis; thus, the court can also issue seizure orders, grant injunctions and even issue orders requiring govern - ment authorities to suspend any registration related to the property in dispute. It is worth noting that Thai courts are generally con - servative when granting interim remedies. This is because interim remedies are considered to infringe on the rights of the opposing party prior to the conclu - sion of the proceedings. As such, when considering an interim remedy, Thai courts typically set a very high threshold in practice. This means they exercise their discretion sparingly and usually require a strong case to be presented before they will grant such remedies. Thai legislation does not include any provisions for the use of emergency arbitrators. The Thai Arbitration Law does not specifically address whether the right to apply for an order of interim relief from the competent Thai court is available when the arbitration is seated in a foreign jurisdiction. Nonethe - less, if the interim relief being sought falls within the jurisdiction of the Thai competent court (ie, assets are located in Thailand) and the court determines that the case has sufficient grounds and it would have been able to issue such an order had the proceedings been conducted in court, it may proceed as requested. 6.3 Security for Costs Thailand incorporates a provision within the CPC anal - ogous to the concept of security for costs. However,
6. Preliminary and Interim Relief 6.1 Types of Relief
The Thai Arbitration Law does not provide the arbi - tral tribunal with the authority to grant interim relief. Even though some arbitration institutions’ rules within Thailand permit arbitrators to grant interim measures, such orders inherently lack enforcement power and rely more on the parties’ compliance therewith.
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