Practical Considerations on Enforceability of Arbitratral Awards

Vichai AriyanuntakaChief Judge of the Central Labour

Court

Seeking Enforcement in Court

• Which Forum?• Court of Justice or Administrative Court• Court of Justice

– Intellectual Property and International Trade Court

– Civil Court

• Commission on Conflict of Jurisdictions• Different regime for ‘administrative

contracts’

Options available for respondent

• File a petition for setting aside (offensive strategy)– Time limit 90 days– Burden of proof on the debtor– Popular grounds – due process, composition of the panel, public

policy

• Wait for the creditor of the award to file an action for enforcement of the award (defensive strategy)– Time limit within 3 yrs.– Burden of proof on the debtor– Same grounds as above– Defensive strategy could prove expensive taking into account

the amount of ‘interests’ added

Who pays for the expenses?

• Each party to bear its own costs at arbitration/ or• Loser pays for the winner – arbitrator’s fee

(panel) , administrative fee of the arbitration institution, attorneys’ fee and expenses

• Court fee and expenses at trial• Court fee for enforcement of arbitral award – 1%

of the award but not exceeding 80,000 baht, loser will require to pay expenses including attorney’s fee for the winner but not more than 5% Max.

• In Thailand costs usually not a prohibiting factor

Enforcement in IP&IT Court

• Applicable Law and salient features– IP&IT Court Act and Rules of the IP&IT Court– Arbitration Act 2002– Quorum of three judges including one expert

associate judge– Only arbitration awards on the disputes over

IP&IT– Written statements, video conferencing,

consent out of translation– More expertise

Enforcement in the Civil Court

• Applicable law– Civil Procedural Code– Arbitration Act 2002– Appeal directly to the Supreme Court

• Grounds – contrary to public policy – a dissenting opinion at the lower court – appeal an order for interim measure

– A quorum of two judges

Enforcement in the Administrative court

• Administrative Court Act sec. 3 def. for ‘administrative contract’

• Def. illustrative not exhaustive ‘shall include…’ – at least one of the parties is a government body or acting on its behalf and the nature of the contracts is for public utilities, public services or concession contracts

• Administrative court judges --- not necessarily legal experts but experts on public administration, economics etc.

• Applicable law – public law, the notion of ‘public interest’• Appeal to the Supreme Administrative Court

Cabinet Resolutions

• 24 January 2547 (2004)– Preferred choice of dispute resolution in Concession

Contracts – Applicable law– Language

• 16 March 2547 (2004)– Exception to Resolution 24 January 2547

• 4 May 2547– Emphasis the applicability of 24 Jan 2547 Resolution

on concession contract alone

Miscellaneous Provisions

• Sec. 23 Arb. Act – while providing immunity to arbitrator for civil liabilities save in gross negligence and willful misconduct, does create criminal liability for malfeasance (both for arbitrator and the provider)

• Foreign arbitrator accepted for practice• Counsel – yes, if applicable law not Thai or the

enforcement of the award is outside Thailand• Although Thailand is not an ICSID member, it is

a MIGA member

Never to Forget Re-Negotiation

• Although enforcement via the court takes the form of leap-frog procedure i.e. bypassing the Court of Appeal, it could take years

• Interests on the award could mount to a formidable figure – not ‘politically correct’ for any government to ‘lose’

• Negotiation is always an option for the government

Questions & Answers

Thank you

Vichai Ariyanuntaka