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The Thai Arbitration Institute (TAI) announced on April 19, 2024, that it has jointly set up an in-court arbitration pilot project with five courts in Thailand—namely, the Civil Court, Taling Chan Civil Court, Central Intellectual Property and International Trade Court, Samut Prakan Provincial Court, and Samut Prakan Khwaeng Court. The pilot project launched on May 1, 2024.

Pilot Project

This project is designed to encourage the parties in cases submitted to these courts to consider having parts of the case, or even the entire case, heard and determined by arbitrators under the Civil Procedural Code (CPC). The objective of the project is to provide faster and more efficient judicial services to the public by reducing the number of cases to be fully tried in the courts through providing an option for parties to engage in in-court arbitration. Still, the court remains largely involved in the process, as the court will consider the award in detail before determining whether to render a judgment in accordance with the award without any edits. Therefore, in-court arbitration favors parties who prefer to have a court judgment instead of an out-of-court arbitral award, which could lead to enforcement challenges under the Arbitration Act.

Parties who participate in this pilot project will pay the TAI a fee for its administrative assistance and related services. The TAI will assist in setting up and facilitating meetings, witness hearings, and the necessary logistics pertaining to case files involving the arbitrators, the parties, and the court. After the arbitrators hear the case, the case files, including the witness statements, exhibits, and reports during the arbitration proceedings, are collected and sent back to the respective court along with the award. Under the pilot project, the arbitrators will issue awards within 30 days of the last day of the trial or the date the closing statements are received, with the total timeframe for the TAI having an award issued set at 180 days from the date on which the latest arbitrator is appointed.

The TAI has noted that appropriate cases for the in-court arbitration pilot program would be civil disputes requiring expertise in complex legal or factual matters. Such cases would include, for example, disputes with a high claim value, medical malpractice, large construction disputes, liability for defects, patent disputes, international contract disputes, international logistics disputes, and cases that would require more than six months for court trial dates.

The benefits provided by in-court arbitration include having the case heard sooner, maintaining trade secrets and confidentiality, having experts in the relevant field decide on the issue, and retaining good relations among the parties.

Considerations

There are a number of key factors that a party should consider before agreeing to participate in the in-court arbitration pilot project:

  • Although the court may encourage the parties to agree not only to the arbitration clause but also to the arbitrator, it is still up to the parties themselves whether to agree to these terms. The court cannot force the parties into participating in the pilot project. This means the parties have the option of agreeing to in-court arbitration that does not fall within the scope of the pilot project, and are not limited to choosing only arbitrators from the court’s list. Parties can also agree to an in-court arbitration clause even if the court handling the dispute is not one of the five courts mentioned above.
  • Although it is possible that portions of the court fees could be returned after the court renders a judgment in accordance with the award, the parties should carefully consider the TAI fees and expenses before agreeing to in-court arbitration. These fees vary depending on the amount claimed and whether a single or multiple arbitrators are sought, as indicated in the table below.
  • If a case is complex, it may take more than 180 days to complete the in-court arbitration process. Therefore, the timeframe may be flexible in practice. This flexibility can potentially benefit the parties, as the additional time would allow the parties to present their cases well and would also provide the arbitrator with additional time to go through the details of the case thoroughly and to issue a well-drafted and well-reasoned award of high quality. While in-court arbitration may allow the parties to have a case decided more quickly than if the case proceeded through the usual civil trial process, it is also important to keep in mind that speed is not always the ultimate objective for the stakeholders.

WRITTEN BY

For further information, please contact:

Suruswadee Jaimsuwan – Counsel,
suruswadee.j@tilleke.com

BIOGRAPHY

Suruswadee Jaimsuwan is a senior litigator in the firm’s dispute resolution group, advising clients in both criminal and civil cases. As a former judge with the Thai Courts of Justice, Suruswadee uses her unique insight to identify creative ways to help clients achieve their goals.

Suruswadee has extensive legal experience on and off the bench, bolstered by a deep knowledge of Thai law and court procedure. She uses her expertise to develop strong and practical legal strategies, and to provide flawless advocacy in the courtroom. She presents facts and evidence to the courts and regulators clearly and persuasively, for the benefit of her clients. Moreover, as a mediation expert, she has a superb ability to explore alternative dispute resolution options and identify areas of agreement to seek solutions. Suruswadee works closely with the firm’s litigators to share her insights on potential solutions, negotiation techniques, and Thai court practice and procedure, thus giving our clients a competitive edge.

In addition to her judicial career, Suruswadee worked for Thailand’s Department of Labour Protection and Welfare under a scholarship from the Office of the Civil Service Commission. In that position, she worked closely with various governmental authorities on labor law research and development. This opportunity provided her with an outstanding comprehension of the practical workings of labor law.

A trusted and respected legal advisor and attorney, Suruswadee is regularly invited to present her insights on a wide range of legal issues in Thailand, including those related to employment law, arbitration, class actions, white-collar crime, and administrative proceedings. She has also been entrusted by local legislators to contribute to the formation of new laws and regulations, including Thailand’s recent Civil Partnership Bill.

Suruswadee received her legal education in Thailand, the United Kingdom, and Australia. She also received litigation, mediation, legislative development, and judicial training from the Straus Institute for Dispute Resolution at Pepperdine University, the Centre for Asia-Pacific Initiatives at the University of Victoria, and the International Training Centre of the International Labour Organization.

Suruswadee is a barrister-at-law qualified by the Thai Bar Association, a notary public, an arbitrator on the rosters of both the Thai Arbitration Institute and Thailand Arbitration Center, an active member of the Thailand Board of Trade, and a leader of the AMCHAM Women Committee. She is also known as an advocate on criminal justice, mediation, and vocational guidance for legal practitioners.

EXPERIENCE

  • Successfully defended a leading multinational electronics company against criminal charges alleging breach of agreements relating to employment conditions, collective bargaining agreements, and an award by assisting client’s on legal advice, developing case strategy and representing client in court with the result that the court did not allow any of the plaintiff’s complaints to proceed further.
  • Defended a high-profile case in the Supreme Court Criminal Case Division for Persons Holding Political Positions and secured a historical best outcome for cases involved allegations of similar offenses, including by developing case strategy and representing the client in court.
  • Defended a multinational electronics company against false claims in connection with a subcontractor that failed to deliver work as agreed in upon in a construction agreement.
  • Advised on case strategy in relation to an ongoing contagious estate division dispute involving heirs in multiple jurisdictions in Southeast Asia.
  • Advised high-profile individuals on prenuptial agreements, family constitutions, and wills to prevent issues among future heirs.
  • Advised various multinational companies on draft agreements containing multitier dispute resolution clause concerning negotiation, mediation, and arbitration.
  • Advised a multinational company on its online multilevel marketing business in relation to various legal concerns including potential criminal liabilities.
  • Defended directors and employees against criminal charges in relation to forgery and false documents by proposing and executing legal strategy, advising clients at inquiry meetings with related authorities, and getting warrants revoked in an ongoing investigation process.
  • Prosecuted and defended numerous highly contentious divorce cases, bringing a satisfactory conclusion to each by strategically negotiating favorable settlement based on legal issues overlooked by the counterparty.
  • Represented a client at the appeal stage of a high-profile divorce case and advised the client’s overseas legal team in relation to Thai law and practice, assisted in negotiating terms of the agreement, and succeeded in concluding amicable agreements in both Thailand and the overseas jurisdiction, and ensured a smooth and efficient process involving the Thai courts and the transition to implementing the agreement in Thailand.
  • Represented a multinational cosmetics company in the witness examination process and succeeded in enforcing a noncompete agreement and securing damages for a breach of the agreement.
  • Represented over 10 international insurance companies in multibillion-baht claims regarding product liability and wrongful acts, and won challenges on choice of court with jurisdiction over the case.
  • Advised on drafting a petition to the Criminal Court for Corruption and Misconduct Cases to request that the matter be considered by the Constitutional Court; the court granted the request without delay.
  • Helped a multinational transportation company with negotiation strategy for a lease agreement as an alternate resolution to costly litigation.
  • Advised regional office of global insurance company on dismissal of employees resulting from the company’s structural changes.
  • Advised a leading multinational company on devising and executing disciplinary procedures and litigation strategy in a case potentially involving internal organized fraud and labor disputes, successfully preventing directors from facing potential criminal liabilities.
  • Advised on case strategy to have a criminal case filed by a juristic committee against our client withdrawn before further inquiry by the court. Besides securing withdrawal of the case, our advice kept the client from having to go through bail and court proceedings as the strategy was implemented.
  • Advised on weight of evidence in relation to expert witness and how to counter unfavorable expert witness opinion in a criminal forgery case.
  • Assisted a British client who was transferred to serve time in his home country by liaising with the Criminal Court, the Department of Corrections, and the British embassy in relation to a Thai court order for abatement and release under previously issued royal pardons.
  • Led an extensive research project into relevant portions of Thai criminal law as part of an international organization’s initiative concerning international and domestic legal instruments related to human trafficking, forced labor, and modern slavery. The research also involved exploring legislation on immigration, migrant workers, and labor law in order to identify potential areas for improvement and possible solutions for impacted parties.
  • Worked with the firm’s litigators to provide strategic advice to clients on a broad range of civil and criminal cases, including labor disputes, fraud and white-collar crime, corruption and misconduct offenses, commercial disputes, bankruptcy proceedings, and family disputes.
  • Presided in various courts over a numerous criminal and civil cases, demonstrating a level of professionalism that led both plaintiffs and defendants to have confidence in the judicial system.
  • Worked as part of the legal development teams of the Department of Labour Protection and Welfare on drafting the Maritime Labour Act and on amending the Labour Protection Act and Labour Relations Act, relying on her knowledge of international labor law to provide recommendations and becoming known as an enthusiastic proponent of safe and healthy working conditions.

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