Thailand: Challenging And Enforcing Arbitration Awards Guide

Michael Ramirez, Noppramart Thammateeradaycho and Anyamani Yimsaard¹

Applicable requirements as to the form of arbitral awards

Applicable legislation as to the form of awards

1 Must an award take any particular form?

The award must be made in accordance with requirements under Section  37 of the Arbitration Act BE 2545 (2002), which reads as follows:

Applicable procedural law for recourse against an award (other than applications for setting aside)

Applicable legislation governing recourse against an award

2 Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Pursuant to Section 39 of the Arbitration Act, within 30 days of the date of receipt of the award, a party to the dispute may file a motion requesting the arbitral tribunal to correct any errors in numerical computation, clerical or typographical errors or minor mistakes in the award. Further, if so agreed, a party to the dispute may also file a motion requesting the arbitral tribunal to give an interpretation or clarification of any point or part of the award, provided that a copy of the request is also delivered to the other party. A copy of the request must be delivered to the other party.

If the arbitral tribunal considers the request for correction or interpretation to be justified, it will make the correction or give an interpretation within 30 days of the date of receipt of the request. The interpretation or clarification is deemed to form part of the award.

The arbitral tribunal may correct any errors or mistakes in numerical computation, clerical or typographical errors or minor mistakes on its own initiative within 30 days of the date of the award.

Unless otherwise agreed by the parties, any party to the dispute, with notice to the other party, may file a motion within 30 days of the date of receipt of the award, requesting the arbitral tribunal to make an additional award regarding the claims omitted from the award. If the tribunal considers the request to be justified, it will make the additional award within 60 days of the date of receipt of the request, which can be extended if necessary.

Appeals from an award

3 May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards? An award can only be set aside by the courts.

An award can only be set aside by the courts. Under Thai law, appeals are for challenges on the merits or on legal issues of the court decision. They must be submitted in the form of an appeal to the court, and the opposing party must reply. Alternatively, an application for setting aside can be submitted as an ex parte application, and the opposing party can file an opposition against the application.

Applicable procedural law for setting aside of arbitral awards

Time limit

4 Is there a time limit for applying for the setting aside of an arbitral award?

Yes, applications for setting aside must be filed within 90 days of receipt of a copy of the award. For requests to the arbitral tribunal regarding making a correction or interpretation of the award, or for making an additional award, the 90-day period is counted from the date of correction or interpretation of the award or the additional award by the arbitral tribunal.

Award

5 What kind of arbitral decision can be set aside in your jurisdiction? What are the criteria to distinguish between arbitral awards and procedural orders in your jurisdiction? Can courts set aside partial or interim awards? 

Arbitral awards are the only kind of arbitral decisions that can be set aside. Partial or interim awards have unclear legal status in terms of whether the court should consider them as awards. A partial or interim award would be considered as a request from a party asking the court to assist in the arbitral tribunal's order.

Thai courts, therefore, will apply differing approaches to accept or dismiss a partial or interim order of the arbitral tribunal. This would not the same as enforcing or setting aside an arbitral award.

Competent court

6 Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

The Intellectual Property and International Trade Court has jurisdiction over applications for setting aside. There is no specific court or chamber with specific sets of rules that apply to international arbitral awards.

Form of application and required documentation

7 What documentation is required when applying for the setting aside of an arbitral award? 

There are no specific requirements regarding documentation when applying to the competent court for the setting aside of an arbitral award. The applicant must submit the application and the grounds for setting aside.

Translation of required documentation

8 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

There are no required documents regarding setting-aside applications; however, any foreign documentation submitted must be accompanied by certified translations into Thai.

Other practical requirements

9 What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

There are no other practical requirements for setting aside apart from the submission of the setting-aside application pursuant to Section 40 of the Arbitration Act. There is no limitation on the length of the submission or documentation filed by parties. Documents in other languages should be translated into Thai.

Form of the setting-aside proceedings

10 What are the different steps of the proceedings?

Proceedings start with filing the setting-aside application. A copy of the application will be delivered to the opposing party, and the court will schedule a hearing to consider the application. The opposing party can file an opposition. Both parties are allowed to present witnesses and supporting evidence.

Suspensive effect

11 May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction? Do setting-aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting-aside proceedings, what are the different steps of the proceedings, and what are the criteria to be met?

No. Courts in Thailand are entitled to enforce or set aside the arbitral award regardless of pending setting-aside proceedings.

For commercial contract disputes, the Intellectual Property and International Trade Court, the court where the arbitration took place and the court for the area where either the claimant or the respondent resides have jurisdiction over an application to stay the enforcement of an award pending setting-aside proceedings.

For disputes over an administrative contact – in which one party is the government, a state enterprise or a local administrative unit – the Administrative Court will have jurisdiction.

Proceedings for the enforcement of such an award do not differ from those for normal arbitral awards.

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Footnote

1. Michael Ramirez is a counsel, Noppramart Thammateeradaycho is a partner and Anyamani Yimsaard is an associate at Tilleke & Gibbins.

Originally published by GAR

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.