Chandler MHM has a highly-regarded litigation and arbitration team capable of handling a wide range of disputes for both Thai and international clients. These include aviation, shipping and energy cases, as well as insurance claims and fraud matters.
Thailand’s mediation system is designed to ensure satisfactory settlements, with no winners or losers. It also promotes harmony as people proactively participate in Thailand dispute resolution and saves time and money for the court system by reducing its workload.
Litigation
Litigation is the primary method of resolving disputes through Thailand’s Court system. In general, litigation is a lengthy and expensive process. Regardless, resolving a legal dispute through the courts is often the only way for parties to protect their legal rights and interests.
Generally, a party that wishes to initiate legal proceedings in Thailand must first file an initial complaint with the Court. The complaint must be filed in writing or orally presented at the hearing. A court case is usually heard by a judge or panel of judges.
The Court may require parties to submit evidence and witnesses for examination in support of their claims. Witness testimony must be given in the language of Thai. Unlike the US, there is no discovery system in Thailand but parties must prepare lists containing descriptions of witnesses and documents to be adduced.
Outside the courts, alternative dispute resolution options such as mediation and arbitration are available. These are governed by the CPC and the Arbitration Act B.E. 2545 (2002).
Arbitration
In Thailand, arbitration is a common method for resolving disputes. In Thailand, there are both domestic and international arbitral bodies. Arbitral awards in Thailand are generally enforceable. However, there are some caveats.
The 2002 Arbitration Act is based on UNCITRAL Model Law with certain Thailand specific additions. Arbitration agreements may be incorporated in contracts or drafted separately. Parties can choose their arbitrators and the amount of time for the proceedings. Arbitration hearings are generally conducted in private.
There are a limited number of grounds for challenging an arbitration award. One such ground is the lack of jurisdiction of the tribunal. In this context, it is important to note that courts in Thailand adhere to the principle of actor sequitur forum rei (a claimant must bring its case in the defendant’s forum). In the past, court decisions on this issue have been influenced by Supreme Court rulings. However, the recent enactment of the new Rules of Procedure in 2017 has significantly improved the situation.
Conciliation
The duration of arbitration depends on a number of factors, and in some cases can take more than a year before conflict resolution is achieved. The cost of settling disputes by arbitration is relatively high, in comparison to other options.
Although negotiations and mediation have been used in Thailand for a long time, these processes remain under-utilised. Nevertheless, they are becoming increasingly popular. The main reason for this is the growing case backlogs in Thai courts.
In order to address the case backlogs, the judiciary has implemented ADR programs in order to settle disputes outside of court proceedings. Court-annexed conciliation is one of these programmes that has been shown to be effective. It is now practised by the civil courts, the labour court and the central intellectual property and international trade court with encouraging figures of success. It is also possible to apply for conciliation at any stage of the litigation. The judge acting as the conciliator will schedule a meeting with the disputing parties to establish a timeline, decide on evidence and procedure matters.
Mediation
While Thailand is not a particularly litigious society, the trend towards alternative dispute resolution has been increasing in recent years. This has included an increase in both domestic and international arbitration and mediation.
A mediator can be appointed to a case either if the parties agree to have one or three arbitrators or if the judge of the trial court deems it appropriate. The disputing parties are required to submit a list of potential arbitrators. The judges will then decide on the most suitable arbitrator and appoint him or her.
Mediation is a less formal process where a mediator facilitates communications between the disputing parties and attempts to bring about a compromise settlement. The outcome of a mediation is non-binding until and unless it is converted into a binding compromise agreement by the court or the parties. Mediation can be used in conjunction with conciliation and the court is empowered by the Civil Procedure Code to order mediation regardless of whether the trial has already begun.
