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11 July, 2017
Enforcement of Foreign Arbitral Awards in Thailand
Unlike foreign court judgments, foreign arbitral awards are recognised and enforceable in Thailand provided that such foreign arbitral award meets certain criteria. Although there were many setbacks in enforcing the foreign arbitral awards on state contracts related disputes in the last several years, the Thai government acknowledges the change of global business trends and is promoting dispute resolution by arbitration between private entities.
Criteria for the enforcement of foreign arbitral awards in Thailand
The basic requirements for the enforcement of foreign arbitral awards are as follows:
- the nationalities of the parties in the arbitral award and the country the arbitral award was made are to be considered to ascertain whether they are contracting states to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958)
- the dispute in the award is capable of settlement by arbitration under the law
- the enforcement must not be contrary to public policy.
Required documents for the enforcement of foreign arbitral awards in Thailand
The party seeking enforcement of the arbitral award must file an application with the competent court within 3 years from the day that the award is enforceable. The applicant for enforcement of the award must produce the following documents to the court:
- original or certified copy of the arbitral award
- original or certified copy of the arbitration agreement
- a certified Thai translation of the award and of the arbitration agreement After it receives the application, the court will examine and give judgment accordingly. The Court may refuse enforcement of the arbitral award, irrespective of the country in which it was made, if the objecting party provides proof that:
- a party to the arbitration agreement lacked legal capacity;
- the arbitration agreement is not binding under the law of the country agreed to by the parties, or failing any indication thereon, under Thai law;
- the objecting party was not given proper advance notice of the appointment of the arbitral tribunal or of the arbitral proceedings or was otherwise unable to defend itself;
- the award deals with a dispute not falling within the scope of the arbitration agreement or contains a decision on a matter beyond the scope of the arbitration agreement; However, if the award on the matter which is beyond the scope thereof can be separated from the part that is within the scope of arbitration agreement, the court may set aside only the part that is beyond the scope of arbitration agreement or clause;
- the composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement of the parties or, if not otherwise agreed by the parties, in accordance with this Act; or
- the arbitral award has not yet become binding, or has been set aside or suspended by a competent court or under the law of the country where it was made. Save where the setting aside or suspension of the award is being sought from the competent court, the court may adjourn the hearing of this case as it thinks fit; and if requested by the party making the application, the court may order the party against whom enforcement is sought to provide appropriate security.
It can be seen that the process of enforcement of a foreign award in Thailand is not overly complicated compared to other countries and in recent years the Thai government has also been raising awareness of such enforcement within the enforcement related agencies. This means that the enforcement of an arbitral award, either domestic or foreign, is facilitated and supported by the Thai justice systems which makes it easier for any business to make transactions with Thai private entities without the fear of biased business related dispute resolution and enforcement.
For more information, please contact:
Threenuch Bunruangthaworn, Partner, ZICO Law (Thailand) Limited (a member of ZICO Law)
threenuch@zicolaw.com
