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. Part 2 of this article covers the Costs of the arbitration and the arbitrator’s Fee — and who pays them — in a TAI arbitration.
COSTS
The TAI’s current cost rates are as follows:
| Types of Costs |
Rate (Thai Baht) |
| A. Services provided by TAI | |
| 1. Refreshment and snacks | 100/meal |
|
600/hour |
|
2,000/hour |
4.1 business day after 16.30 hrs. 4.2 holiday with not less than 7 hours of work (not including 1-hour break) |
In both cases, 210/hour/person but not exceeding 1,250/person
|
|
300/day/person |
|
Actual cost |
|
As set by the arbitral tribunal |
| B. Other equipment used in the arbitral proceedings | |
| 8. Equipment for preparing case files- Folder
– Index – Box file |
200/folder
50/set 100/box file |
|
50/CD or DVD |
| 10. Video recoding onto DVD | 200/DVD |
| 11. Delivery of documents (each party is responsible for its own documents delivery) | Actual cost |
| 12. Other expenses relating to arbitral proceedings for example, transportation, accommodation, etc | As set by the arbitral tribunal |
| 13. Certified copy of the award and/or any rectifications thereof (excluding photocopy fee)Certified copy of other case-related documents | 100/copy50/copy |
| 14. Photocopy | 2/page |
| 15. Other office supplies (if any) | Actual cost |
The parties must each pay an advance for costs and expenses to the TAI. The TAI will normally ask that the payment be made within 30 days from receipt of the payment notification from the TAI. The amount of advance payment may vary as it depends on the TAI’s discretion. The minimum amount is usually Thai Baht 15,000 each.
The Claimant must pay the first installment of its share of the advance Costs payment upon filing of the statement of claim. The first installment amount may vary pursuant to TAI’s discretion, for example:
- Thai Baht 5,000 if the language of the proceedings is Thai and both parties reside in Thailand;
- Thai Baht 10,000 if the language of the proceedings is Thai but either one or both parties reside outside Thailand (may be higher depending on the distance between the party’s residing country and Thailand);
- Thai Baht 10,000 if the language of the proceedings is not Thai but both parties reside in Thailand; and
- Thai Baht 20,000 if the language of the proceedings is not Thai and either one or both parties reside outside Thailand (may be higher depending on the distance between the party’s residing country and Thailand).
When the arbitral proceedings end, the TAI will summarize costs and expenses and notify the arbitral tribunal in order to incorporate such in the award. If there is any balance, it will be returned to the relevant parties. If, however, the advance sum is not sufficient to cover all costs and expenses, the parties will be required to pay the shortfalls.
FEE
The current Fee for an arbitrator in a TAI arbitration are calculated as follows:
|
Disputed Amount (Thai Baht) |
Sole arbitrator |
|
No disputed amount |
4,000/session |
|
Not exceeding 2,000,000 |
30,000 |
|
2,000,0001 – 5,000,000 |
30,000 + 0.5% of amount exceeding 2 million |
|
5,000,001 – 10,000,000 |
45,000 + 0.4% of amount exceeding 5 million |
|
10,000,001 – 20,000,000 |
65,000 + 0.3% of amount exceeding 10 million |
|
20,000,001 – 50,000,000 |
95,000 + 0.2% of amount exceeding 20 million |
|
50,000,001 – 100,000,000 |
155,000 + 0.1% of amount exceeding 50 million |
|
100,000,001 – 200,000,000 |
205,000 + 0.05% of amount exceeding 100 million |
|
200,000,001 – 500,000,000 |
255,000 + 0.04% of amount exceeding 200 million |
|
500,000,001 – 1,000,000,000 |
375,000 + 0.03% of amount exceeding 500 million |
|
1,000,000,001 – 2,000,000,000 |
525,000 + 0.02% of amount exceeding 1,000 million |
|
Exceeding 2,000,000,000 |
725,000 + 0.01% of amount exceeding 2,000 million |
|
Disputed Amount (Thai Baht) |
More than one arbitrator |
|
No disputed amount |
20,000/session |
|
Not exceeding 2,000,000 |
60,000 |
|
2,000,0001 – 5,000,000 |
60,000 + 1% of amount exceeding 2 million |
|
5,000,001 – 10,000,000 |
90,000 + 0.8% of amount exceeding 5 million |
|
10,000,001 – 20,000,000 |
130,000 + 0.6% of amount exceeding 10 million |
|
20,000,001 – 50,000,000 |
190,000 + 0.4% of amount exceeding 20 million |
|
50,000,001 – 100,000,000 |
310,000 + 0.2% of amount exceeding 50 million |
|
100,000,001 – 200,000,000 |
410,000 + 0.1% of amount exceeding 100 million |
|
200,000,001 – 500,000,000 |
510,000 + 0.08% of amount exceeding 200 million |
|
500,000,001 – 1,000,000,000 |
750,000 + 0.06% of amount exceeding 500 million |
|
1,000,000,001 – 2,000,000,000 |
1,050,000 + 0.04% of amount exceeding 1,000 million |
|
Exceeding 2,000,000,000 |
1,450,000 + 0.02% of amount exceeding 2,000 million |
Although the arbitrator’s fee is set, the TAI may adjust the amount at its discretion. One of the reasons for an adjustment might be that the disputed amount in the statement of claim is considerably different than that in the counterclaim. The TAI may then have each party pay the arbitrator’s fee based on each party’s claim. The TAI may also increase a previously determined fee amount if the proceedings end up being more complicated or time consuming or both, than previously anticipated.
WHO PAYS THE COSTS AND FEE
Both the Arbitration Act of Thailand (the “Act”) and the TAI Rules provide that the arbitrator is to determine what part of the Costs and Fee the parties must pay. However, it should be noted, that it is not clear whether the Act or the TAI Rules include any expenses, which are not billed by the TAI, among the Costs. Further, both the Act and the TAI Rules explicitly exclude attorney’s fees from the Costs. Thus, if the parties wish to have such costs awarded, it is highly advisable for the parties to explicitly agree to this prior to the beginning of any arbitration under the TAI and to further seek explicit recognition of such agreement from the arbitrator once the arbitration has begun.
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