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Thailand Arbitration Centre Episode 1
The Logic of Arbitration
Arbitration is an alternative dispute settlement method, it can be used instead of court litigation. Courts play a complementary role in the arbitration proceedings, especially for what concerns evidence, interim measures, challenges of arbitrators; the most important role of courts is related to recognition and enforcement. Arbitration can be divided in two categories: one is domestic arbitration, the other is international arbitration. The difference between these two categories is the presence in the latter of international elements, i.e. different nationalities of the parties.
Arbitration is not a new system to solve disputes, it is well known since ancient time when people instead of going to court, they chose to ask the elderly to solve their dispute. This can be considered the first form of arbitration, where parties devolve dispute to someone else instead of court. At that time, parties chose the elderly because they hold specific knowledge and experience that are crucial to solve the dispute. In the same way today, parties are free to agree on the characteristics and expertise that an arbitrator must possess and to choose the arbitrator itself.
The parties’ agreement is necessary to devolve the dispute to an arbitral tribunal, without it, the competent authority to solve the dispute is the court. It is important to note that not every type of dispute could be settled by arbitration because certain subjects are covered by a reserve by the States. Arbitration is the main competitor of litigation in a national court, it aims to become the first choice to settle the dispute, offering parties involved a mechanism that is efficient, flexible, and time-saving.
Arbitration cannot exclude completely courts since this kind of method lacks enforcement power. The courts are responsible to recognize and enforce of the decision contained in the award. Moreover, courts are necessary for other stages of the arbitral proceedings, i.e. taking of evidence, witnesses, render, and/or enforce provisional measures. For these reasons, it is not possible to choose arbitration excluding any contact with the national courts.
