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Alternative Dispute Resolution: How foreign arbitrators can work in Thailand
Thailand is an attractive destination for investors and business people from around the world. Unfortunately, in the course of doing business, disputes can arise between parties. In such cases, many prudent people prefer to settle their conflicts through Alternative Dispute Resolution (ADR), such as arbitration, rather than court. This is because litigation through the courts can be time- and cost-consuming, whereas arbitration offers greater control and expediency, and Thailand is a member of the international arbitration community.
In the past, foreign arbitrators representing international parties found it difficult to be certified and authorized to participate in arbitration proceedings. This obstacle proved to deter many foreign parties, both individuals and business entities, from entering into contracts or investments in Thailand. However, Thailand’s laws and regulations have changed, streamlining the process for foreign arbitrators to travel to Thailand and participate in arbitrations in the Kingdom.
Alternative Dispute Resolution in Thailand
Thailand has signed the New York Convention on Arbitral Awards, which means that arbitration decisions made in Thailand are enforceable in other countries that have also signed on to the Convention and vice versa. In addition, over 160 jurisdictions party to the Convention, providing a level of assurance for those who enter into arbitrations involving these countries.
For Thailand specifically, this can be appealing for investors because, while arbitral awards are enforceable under the Convention, foreign judgements (i.e., awards from courts in other countries) are not necessarily enforceable under Thai law. Furthermore, the various costs involved in arbitration, from travel and accommodation to facilities and fees, are much more affordable in Thailand than other international arbitration centers like Hong Kong and Singapore. With these benefits, along with the less restrictive regimen for foreign arbitrators discussed below, Thailand is fast becoming a preferred destination for international arbitration.
Nevertheless, parties who choose Thailand for arbitration still must take steps to ensure they take full advantage of the benefits. For example, while some local arbitration rules provide for the recovery of certain fees, Thailand’s arbitration rules and regulations do not. This is where a well-drafted arbitration clause or agreement is essential, which should hold true for all parties in any jurisdiction. Conferring with arbitration experts, such as at the Thailand Arbitration Center, can help forestall any issues such as this.
Foreign arbitrators allowed in Thailand
There are many well-trained, skilled Thai arbitration professionals available for alternative dispute resolution proceedings in the Kingdom. Nevertheless, an arbitration agreement may require the participation of foreign arbitrators, such as in the case where the neutral third-party needs to be an expert in a specific subject matter. While arbitration rules may not restrict an arbitrator’s nationality, foreign arbitrators have found Thailand’s immigration and labor laws to be overly restrictive. One would think that a foreign arbitrator who only needed to attend hearings for a short period of time would receive special dispensation. This was not so; they would still have to endure a laborious process and would still be subject to jurisdictional carve-outs regarding the types of arbitrations they could oversee.
Luckily, with such developments as the amended Arbitration Act of 2019 and with the assistance of organizations such as the Thailand Arbitration Center, foreign arbitrators now have a much easier time receiving authorization to work in Thailand.
Foreign arbitrators’ options for working in Thailand
This authorization is essential to legitimizing the arbitral award. This is why the recent easing of restrictions has made Thailand a more appealing arbitration location. Now, there are two ways for arbitrators to enter and work in Thailand:
- Non-B visa/work permit: Traditionally, foreigners conducting business can apply for a non-immigrant B visa (non-B visa) from the Ministry of Foreign Affairs through an embassy or consulate or at the Immigration Department. They can petition for a work permit through the Labor Department.
- SMART visa: This is a relatively new program under the auspices of Thailand’s Board of Investment that targets certain sectors that the government wants to promote and grow. Qualified foreigners can apply for a long-term (four-year renewable) visa that allows them and their families to stay and work in Thailand in their approved field. A SMART visa holder is also exempt from the work permit requirement.
Underlying both these options for foreigners are certifications from authorized entities that essentially endorse their qualifications and allow them to pursue their approved professions. For arbitrators, this certification would come from either the Thailand Arbitration Institute or the Thailand Arbitration Center (THAC).
THAC can facilitate foreign arbitrators’ entry into Thailand
THAC is pleased to help promote Thailand as an arbitration destination. Foreign arbitrators can rely on THAC for the necessary certification for their visa and work permit applications, whether or not they are involved in a proceeding at THAC. THAC is an international-level dispute resolution located in the center of Bangkok and easily accessible from public transport and main thoroughfares. With state-of-the-art equipment and full-service administrative support, parties will find THAC convenient for in-person and remote hearings. THAC also offers resources such as model clauses for those seeking to draft an Alternative Dispute Resolution clause or agreement, as well as access to skilled ADR practitioners who are also experts on a range of subjects and disciplines. If you are a non-Thai arbitrator involved in a proceeding in Thailand, or if you would like to work from Thailand on a long-term basis, please contact us at [email protected] or +66 (0)2018 1615. THAC is looking forward to helping you with all your ADR needs.
