THAILAND Law and Practice Contributed by: Phatsawat Siwawej, Piyachon Jiraratmethakorn and Ketsirin Wisetwatcharawong, Weerawong C&P
8.2 Rules of Evidence The Thai Arbitration Act does not expressly provide for rules of evidence. Instead, it provides that the arbitral tribunal may apply the provisions of the CPC relating to the rules of evidence, as appropriate, on a muta - tis mutandis basis. Therefore, if the rules of evidence under the CPC are applied by the arbitral tribunal to the arbitral proceedings conducted in Thailand, they are the same rules that apply to domestic litigation. 8.3 Powers of Compulsion Under the Thai Arbitration Law, an arbitrator does not have the powers of compulsion to order the produc - tion of documents or require the attendance of wit - nesses. Any document submission is strictly volun - tary, and there are no penalties for failure to comply. If a party wishes to request evidence from any third party or summon a third party to the hearing, such party is recommended to file an application with the court to issue a summons. This court process will entail legal effect and enforceability, which may not otherwise be available through the arbitral proceed - ings alone. While the Thai Arbitration Law does not explicitly address confidentiality, it can be assured through agreement between the involved parties, the terms of reference or the rules of the arbitral institution. By way of an example, Article 36 of the TAI Arbitration Rules maintains that all arbitration proceedings, claims, defences, documents, evidence, orders and awards must remain confidential. Disclosure is only permitted, with the consent of the parties, for: • the protection of legal rights; • the enforcement of or challenging an award; or • under a legal duty to disclose. 9. Confidentiality 9.1 Extent of Confidentiality However, the arbitral proceedings and certain fac - tual matters may be disclosed before the court, to the extent necessary, if a party applies for recognition
and enforcement of the arbitral award as the court’s proceedings in Thailand are generally open for public observation. Similarly, Article 87 of the THAC Rules 2015 also reinforces confidentiality in arbitration proceedings. Exceptions are made for instances such as enforc - ing or setting aside an award, complying with a court order or legal provisions, enforcing a legal right or complying with a regulatory entity’s request related to arbitration proceedings. Confidentiality extends to all aspects of the proceedings, including the names of arbitrators, statements, evidence, documents and the award itself – unless such information is already in the public domain. The arbitral tribunal in Thailand will make decisions according to the terms of the contract, while also considering the relevant trade usage in the event of a trade dispute. In terms of decision-making, all awards, orders and rulings are determined by a majority vote – unless oth - erwise agreed between the parties. If a majority cannot be reached, the presiding arbitrator has the authority to make the decision. Procedural questions are also decided by the presiding arbitrator if authorised by the parties or all members of the arbitral tribunal. 10. The Award 10.1 Legal Requirements The tribunal’s award must be in writing and signed by the tribunal members. If there is more than one arbitrator, signatures from the majority will suffice if the reason for any missing signature(s) is given. The award must clearly state the reasons for its decisions, unless the parties agree otherwise. However, it cannot decide on matters beyond the scope of the arbitration agreement or the relief sought by the parties, except for an award made in accordance with a settlement agreement or the fixing of arbitration fees or arbitrator remuneration. The award must also state the date and place of arbi - tration and is considered made at that place. After the
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