Arbitral Awards and a Binding to the Parties

Arbitral Awards and a Binding to the Parties

Arbitration is a type of civil dispute resolution where parties [TS1] agree to bring a current or future dispute to arbitration to determine a judgment by entering into a contract called an “arbitration agreement.” If there is no arbitration agreement or that arbitration agreement [TS2] is unenforceable or does not cover a dispute, the parties shall not be obligated to proceed with arbitration. If any dispute arises, the parties can file a case before a court [1] [TS3]. On the other hand, if there is an arbitration agreement in existence, an agreement will be binding to the parties to proceed with arbitration. Suppose one party files a case to a court arbitrarily, and the other party contests a filing to a court. In such a case, a court will dismiss a case without determining the content of such a case for the parties to continue proceeding with arbitration [2]. Nevertheless, the scope of arbitration power to determine a case is limited to only matters agreed upon within an arbitration agreement. Therefore, any matter outside of the scope of an agreement shall not fall within an arbitral power, and the parties must bring that matter to court [3]. However, a dispute resolution by arbitration is only applicable to the disputes the law stipulates that they can be resolved through arbitration [4]. The private sector cannot predicate on the matters regarding the status or competency of a person; only a court shall have this jurisdiction.

There are currently 2 Thai laws relating to arbitration, i.e., Civil Procedure Code B.E. 2477 in Article 210 to Article 220, which prescribes an in-court arbitration procedure, and Arbitration Act B.E. 2545, which governs an out-of-court arbitration. Both legislations apply to every civil dispute resolution by arbitration, including business disputes regarding trades and investments within Thailand [5].

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A dispute resolution by arbitration

Ad Hoc Arbitration or arbitration that the parties proceed on their own [TS4] or for a specific occasion [TS5] is arbitration where parties [TS6] would like to resolve a dispute using their procedures without requesting an arbitration service from the arbitral institutes. They appoint arbitrators and set down the details of procedures; then, the arbitrators will determine a case accordingly.

Institutional Arbitration or arbitration proceeded by the arbitral institute is arbitration where parties agree [TS7] to use an arbitration service from arbitral institutes such as Thailand Arbitration Center or Thai Arbitration Institute by Office of the Judiciary, and including The Thai Chamber of Commerce [TS8].

Arbitration service is more convenient than Ad Hoc arbitration because [TS9] every arbitral institute has its own arbitration rule such as an appointment and a challenge of arbitrators, a procedure for arbitration, a making of an arbitral award, and rules on fees, costs, and arbitrator procuration. The institutes will assist the parties during the proceedings; hence the parties [TS10] do not have to carry out the proceedings themselves [6][TS11].

Arbitral award

An award is a judgment by an arbitral tribunal to resolve every disputing matter the parties request before an arbitral tribunal, including a decision [TS12] on the jurisdiction of the arbitral tribunal and arbitral proceedings. An arbitral award is final and binding on the parties [TS13] [7]. Any arbitral award shall be made within 45 days from the date the proceeding ends [8], with a vote of absolute majority [9].

Recognition and enforcement of an arbitral award

An arbitral award is generally final and binding on the parties [TS14], in which the question of fact and the question of law have been concluded. If a losing party [TS15] refuses to comply with an award, a winning party can request before a court to enforce an award [10]. Regardless, since a deliberation and a decision of the arbitral tribunal is not made under judicial sovereignty [11], therefore, enforcement of an arbitral award in other countries is easier than enforcement of court judgment [TS16]; since it is not an enforcement of a country’s sovereignty over other countries, but it is an award made by a specific organization, in which it is usually related to international conventions.

However, before enforcing an arbitral award [TS17] [TS18], there must be a request to a court [12]. In general, a court will conduct a preliminary query on whether the award is existent and correct and provide an opportunity to challenge enforcement only in specific cases according to the law. If a court determines a challenge is unfounded and an award was genuinely delivered, a court will enforce such award accordingly without further determination on a matter of an award.

Reference:

• Thai Arbitration Institute. Arbitration Office [TS19], Office of the Judiciary. Arbitration Handbook: Court Judgement Guidelines Relating to Arbitration.
• https://tai.coj.go.th/th/file/get/file/20190327a3309340b041b991ff3722f55956bba6104329.pdf (in Thai).
• Jarunee Maneerat. A dispute resolution by arbitration in small capital cases: A study on time frame and cost in a case proceeding. https://core.ac.uk/download/pdf/233619955.pdf (in Thai).
• Administrative Courts Journal. Arbitration and Mediation in Thai Administrative Courts, a lecture by Dr. Manit Wongserie, administrative judge of Central Administrative Court. http://www.admincourt.go.th/admincourt/upload/webcms/Oldnews/09-ARTICLE/Dr-Marnit.pdf (in Thai).
• [1] Deka judgment no. 11949/2556
• [2] Arbitration Act B.E. 2545 Article 14
•   [3] Deka judgment no. 8627/2550
• [4] Thai Arbitration Institute. Arbitration Office, Office of the Judiciary. Arbitration Handbook: Court Judgement Guidelines Relating to Arbitration, p.17.
• [5] Jarunee Maneerat. A dispute resolution by arbitration in small capital cases: A study on a time frame and cost in a case proceeding, p.112.
• [6]Saowanee Atsawarote, Business Dispute Resolution by Arbitration, 3rd edition (Bangkok: Thammasat University Press, 2011), p.49.
• [7] Supra note 5, p.119.
• [8] Arbitration Institute Rules, Chapter 6 Section 70.
• [9] Arbitration Institute Rules, Chapter 6 Section 69.
• [10] Administrative Courts Journal. Arbitration and Mediation in Thai Administrative Courts, a lecture by Dr. Manit Wongserie, administrative judge of Central Administrative Court. Vol. 2, No. 3, September – December 2002, p. 111.
• [11] Ibid.
• 12] Arbitration Act B.E. 2545 Article 41

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