THAILAND Law and Practice Contributed by: Phatsawat Siwawej, Piyachon Jiraratmethakorn and Ketsirin Wisetwatcharawong, Weerawong C&P
7.2 Procedural Steps The particular procedural steps in arbitral proceedings that are required by law include, but are not limited to, the following: • the parties must have a valid arbitration agreement providing for the settlement of disputes by arbitra - tion; • a party must take the necessary steps to com - mence the arbitral proceedings, such as serving a written notice on the other party requesting that the dispute be referred to arbitration or submitting the dispute to an arbitral institution; and • the arbitral tribunal must be properly constituted in accordance with the arbitration agreement or the Thai Arbitration Law. 7.3 Powers and Duties of Arbitrators The Thai Arbitration Law provides that the arbitral tri - bunal has the power to conduct any proceedings in any manner it deems appropriate. This includes the power to determine the admissibility and weight of the evidence presented by each party. The arbitral tri - bunal may choose to apply the provisions of the CPC relating to the rules of evidence, as appropriate, on a mutatis mutandis basis. In addition to the foregoing, arbitrators have a duty to uphold impartiality and independence at all times and must possess the qualifications stipulated by the arbitration agreement. If the parties to the contract agree that an agency established for dispute resolu - tion via arbitration is to conduct the proceedings, the arbitrator should also meet the qualifications required by that agency. In essence, this duty imposes the obligation to dis - close any such circumstances that might raise doubts about impartiality or independence. Such disclosure should be made as soon as these circumstances become known and should be consistently updated throughout the arbitral proceedings. If the parties are already aware of these circumstances, the arbitrator need not make any further disclosure. Failure to make these necessary disclosures can lead to the arbitrator’s disqualification by the competent court (Supreme Court Judgment No 2231-2233/2553
this provision only empowers the respondent to seek such a remedy. In the context of arbitration proceed - ings, the Thai Arbitration Law also provides that the relevant provisions of the CPC governing this concept shall apply mutatis mutandis. If a respondent desires to seek this form of interim relief, they must file an application with the court requesting the claimant to deposit a sum of money or furnish a guarantee to secure the payment of court fees or costs, which the claimant might be liable for should they lose the case. The burden lies with the respondent to demonstrate that either: • the claimant is not a resident of Thailand and does not possess any assets within the country; or • there is reasonable cause to believe the claimant would not be able to pay the court fees if they were to lose the case. In Thailand, parties are at liberty to choose the arbitra - tion rules that would govern the conduct of the pro - ceedings, so as long as they are not contrary to the mandatory provisions of the Thai Arbitration Law. Parties may choose institutional rules as they often provide more detailed procedural guidelines com - pared to the Thai Arbitration Law. International con - ventions to which Thailand is a party, such as the New York Convention, may also affect the procedure and enforcement of arbitration in Thailand. To be precise, since Thailand is a member state of the New York Convention, Thailand is obligated to recognise and enforce arbitral awards made in the territory of other member states of the New York Convention. It is important to note that Thai law also has certain mandatory rules that cannot be overridden by agree - ment between the parties – for example, the rules concerning public policy and order. 7. Procedure 7.1 Governing Rules
1007 CHAMBERS.COM
Powered by FlippingBook