Institutional Arbitration in Thailand – The Thai Arbitration Institute: PART 1 – procedure and timing

The Thai Arbitration Institute (TAI) — currently under the auspices of the Thai government’s judiciary — is the most commonly chosen institutional arbitration service provider by commercial parties to administer their contractual dispute arbitrations seated in Thailand. Unless the parties agree to deviate from the TAI Rules — and somewhat controversially — “with the consent of the Director of the Alternative Dispute Resolution Office,” the TAI Rules will apply to any arbitration proceeding under its administration. In Part 1 of this article we summarize the procedure and timing of a TAI arbitration.

Procedure

1. The first step is for the claimant to file a “statement of claim” against the “respondent” together with a payment of preliminary advance on costs to the TAI.
2. The TAI then sends the statement of claim to the respondent.
3. The respondent may file a statement of defense (and a counterclaim, if any) to the TAI within fifteen days of receipt of the statement of claim.
4. The TAI then sends the statement of defense (and counterclaim, if any) to the claimant.
5. The claimant may file a defense to the counterclaim to the TAI within fifteen days of receipt of the counterclaim.
6. The TAI will then encourage the parties to settle the dispute amicably, offering an opportunity to meet and discuss settlement. Failing that, the parties are asked to agree on the place of arbitration, language used, and choice of law, if not already decided.
7. The parties then nominate their arbitrator(s). Standard TAI Rules require a tribunal of either one or three arbitrators:
   • Sole arbitrator: If the parties can’t agree, each nominates three names to the TAI. If none match, the TAI adds three more names and sends all nine to the parties to rank in order of preference. The TAI appoints the most-preferred candidate agreed by both parties.
   • Three arbitrators: Each party nominates one arbitrator; those two then choose a third, who chairs the tribunal.
   • Note: if the parties haven’t specified the number of arbitrators, the Act defaults to a sole arbitrator.
8. The TAI coordinates a meeting to formally appoint the arbitrator(s), settle the issues to be decided, determine procedural and evidentiary matters, and schedule the proceedings.
9. The parties submit relevant supporting documents per the proceedings schedule — usually within one to three months of the scheduling meeting.
10. A formal hearing of evidence follows, if needed — usually within four to six months of the scheduling meeting.
11. The TAI Rules require the tribunal to issue the award within 180 days of the last arbitrator’s appointment. In practice, however, the TAI often presents a minutes-of-meeting template that waives this deadline and grants an open-ended award issuance period — this waiver is not required, and parties should not agree to it unless they actually wish to.
12. Once the award is completed, the TAI sends a copy to each party.
13. If a party fails to comply, the other party may petition a competent Thai court to enforce the award within three years from the date it becomes enforceable. Alternatively, if the arbitration didn’t comply with the Act, either party may request the court to vacate the award within three months.

Timing

It generally takes nine to twenty-four months from filing the statement of claim to issuance of the final award. Complicated cases, or a dilatory respondent, can extend this timeline further.

Enforcement of an arbitration award within Thailand, if needed, can take anywhere from a few months to several years. It is hoped the reasons for such enforcement delays will be addressed in time. Notably, Thailand is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), meaning any international arbitration award administered by the TAI in Thailand is enforceable in any of the more than 150 countries that have also signed the Convention.