The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is the foundation upon which the whole of international commercial arbitration stands: PART 1 – why and where did it come about?

After alternative dispute resolution was introduced and regulated by certain national legislators, it was recognised at the beginning of the 20th century that in light of expanding international trade, an international dispute resolution process was required. The International Chamber of Commerce (“ICC”) established its International Court of Arbitration in 1923 in Paris, France. The purpose was to arbitrate in business disputes of an international character.

The issue of worldwide enforcement of arbitration agreements and arbitration awards became evident. Since international treaties are the means of resolution of transnational issues, the predecessor of the United Nations, the League of Nations along with the ICC started drawing up an international convention on the enforceability of arbitration agreements. The first such convention was the “Geneva Protocol on Arbitration Clauses” (“Geneva Protocol”) of 1923. The purpose of the Geneva Protocol was to ensure that arbitration clauses can be enforced internationally. According to the Geneva Protocol, the enforceability of arbitration awards however, was limited to the territory of the respective state in which the award has been made.

Only four years later, in 1927, the “Geneva Convention on the Execution of Foreign Arbitral Awards“ (“Geneva Convention”) was created. The reason for the establishment of the Geneva Convention was to expand the enforceability of arbitration awards from the limited approach of the Geneva Protocol. The expansion related to the enforceability of arbitration awards from the country in which the arbitration award originated to the territory of any state that becomes a signatory of the Geneva Convention.

In 1958 the “United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (“New York Convention”) was adopted by the United Nations. The New York Convention is substituting the Geneva Convention for countries that are a signatory to both, the Geneva Convention and the New York Convention.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

 

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Arbitration in Thailand: PART 5 – the arbitrators

One of the advantages of arbitration proceedings over domestic court proceedings is the opportunity for the parties to select the person(s) that will decide on the issue in question, the arbitrator(s). In arbitration proceedings the parties are enabled to nominate arbitrators that have a certain specialized and up-to-date know-how that might be required to understand the technical background of the issues in question.

The number of arbitrators forming the tribunal must be an uneven number in accordance with Section 17 of the Arbitration Act of Thailand (2002) (the “Act”). If the parties nominate an even number, the appointed arbitrators will need to choose another arbitrator to create an uneven number. If the parties fail to agree on the number of arbitrators the Section 17 further provides that a sole arbitrator will be appointed. In Thailand, exactly how the arbitrators are appointed is up to the parties and generally the parties will agree that the rules of the institute conducting the arbitration dictate this procedure; failing which, the Act would dictate this procedure.

Section 19 of the Act requires that the arbitrator be “independent and impartial” and possess the particular qualifications, if any, agreed by the parties. The interpretations of the terms “independent” and “impartial” are highly controversial and subject to a dispute themselves. In general, it can be said that the absence of close relations between an arbitrator and a party means the arbitrator is independent; whereas “impartiality” refers to the arbitrator’s lack of prejudice with respect to a party or the matter in dispute. Such definitions are, however, still very vague.

Some guidance in this area has been provided by the International Bar Association (the “IBA”) its Guidelines on Conflicts of Interest in International Arbitration (the “Guidelines”). While the Guidelines are not legally binding, the standards they articulate are generally accepted and parties and arbitrators often use and cite them when the assessment of an arbitrator’s independence or impartiality is at issue. A potential arbitrator may, for example, turn to the Guidelines to determine what facts he is required to disclose prior to accepting an appointment to act as an arbitrator. Alternatively, for example, a party may turn to them to determine under what circumstances they can nominate or challenge an arbitrator.

Some of the most common issues that need to be assessed when determining whether or not an arbitrator is adequately independent and impartial are:

1)    the relationship between a party and the arbitrator;

2)    the relationship between a party and an arbitrator’s law firm;

3)    the relationship between an arbitrator and a party’s counsel;

4)    prior appointments as an arbitrator (repeated appointments by one party);

5)    ex-parte contacts immediately prior to appointment;

6)    non-disclosure of any of the above.

It must be noted that none of the above in itself determines that a potential arbitrator is not independent or not impartial. The determination of such will always depend on the circumstances in each individual case. And even no issue raises sufficient doubt of independence or impartiality at one stage of the arbitration proceedings, the arbitrator is duty bound to disclose the occurrence of any such later in the proceedings for the relevant parties’ consideration.

In case a party believes that an appointed arbitrator is not independent or impartial, such party has the right to challenge that arbitrator. The procedure for challenging an appointed arbitrator is dictated by the relevant arbitration institute’s rules and the Act. Where it is decided that an arbitrator was not independent or impartial at the time of appointment or was no longer independent or impartial later in the proceedings, that arbitrator will then be removed from the arbitral tribunal and replaced.

With regard to the arbitrator’s independence and impartiality it is noteworthy that Section 23 of the Act imposes (somewhat controversially vis-à-vis most other jurisdiction’s arbitration legislation) criminal sanctions on any arbitrator for “[…] wrongfully demanding, accepting,  or agreeing to accept an asset or any other benefit for himself or anyone else for doing or omitting to do any act in his duties […]

Choosing the right arbitrator with the right skill set who will make the right decisions, is among the most important and sometimes also the most difficult decisions in the arbitration proceedings. Whether the right choice is someone with the right formal legal training, skills and experience or someone with a specialized or “hands-on” expertise will depend on the dispute that gave rise to the claim. Competent legal counsel with solid arbitration experience will not only be able to help the parties in making the right choice in relation to the proposed arbitrator, but will also be able to identify issues that makes a challenge of an arbitrator advisable if necessary.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Arbitration in Thailand: PART 4 – the agreement to arbitrate

In our last blog we explained that arbitration can only take place if both of the contract parties agree to the use of such a mechanism to resolve any dispute arising from their contract. In fact, in Thailand, Section 11 of the Arbitration Act (2002) (the “Act”) specifically requires that the parties, must enter into a written “Arbitration Agreement” that is signed by both parties. Furthermore, the Arbitration Agreement must state that the parties want arbitration proceedings govern all disputes arising out of a specified legal relationship, like a contract.

The Arbitration Agreement may be in the form of a separate agreement or it may be in the form of a clause within the contract in question itself. It should be noted that if it takes the form of a clause within a contact, the Arbitration Agreement “survives” the termination of the contract it is embedded in. In other words, the “arbitration clause” has its own standing as a separate agreement independent from the main contract that the arbitration covers.

Thus, an Arbitration Agreement, ideally a well drafted Arbitration Agreement, is a pre-requisite for any enforceable alternative dispute resolution. The various arbitration service providers propose sample clauses to be used in contracts between parties who wish to choose arbitration as a method to settle any future dispute under the contract. Locally, the two most well-known arbitration service providers are the International Chamber of Commerce (“ICC”) and the Thai Arbitration Institute (“TAI”).

The ICC recommends the following clause to be included in any contract that the parties wish to have any disputes arising there from resolved by arbitration under auspices of the ICC:

All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”

Alternatively, where the TAI is the chosen service provider, the following is recommended:

“Any dispute, controversy or claim arising out of or relating to this contract or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Thai Arbitration Institute, Office of the Judiciary applicable at the time of submission of the dispute to arbitration and the conduct of the arbitration thereof shall be under the auspices of the Thai Arbitration Institute.”

Both of these model clauses have two essential elements of any Arbitration Agreement: (1) referral of any dispute under the contract to arbitration; and (2) the incorporation of the governing rules of arbitration. However, before actually inserting any such model clause into your contract, it is advisable to further tailor the clause to the parties’ preferences and in order to avoid future disputes regarding the arbitration proceedings. The place of the arbitration hearing, if any, is one essential element that the parties may very well wish to decide on beforehand such that it is mutually convenient and that they will very likely dispute if not agreed prior to any dispute. The language that should govern the proceedings is another element. Especially in cases with a local contract partner, a firm decision as the governing language when entering into a contract with an arbitration clause is generally essential. It is also usually prudent to predetermine the number and qualifications of the arbitrators used for the proceedings. However, note that the more arbitrators the higher the fee payable for the arbitration.  Highly skilled arbitrators will generally only work for the institutes that pay them accordingly. On the other hand, the more arbitrators and the more highly skilled they are, generally the better, and therefore, the more certain the enforceability of the final award.

In case of ICC proceedings, the “Seat” of the arbitration is also one of these elements that the parties should agree upon prior to signing the Arbitration Agreement. The choice of Seat will determine what jurisdiction’s procedural arbitration law governs arbitration proceedings itself, e.g.  in the case of Thailand being the Seat, the Act will govern the proceedings.

Finally, it should be noted that it is not possible to obtain an enforceable arbitration award for all disputed matters. If the jurisdiction where you are seeking enforcement of an arbitration award has a substantive law that does not allow final resolution of the said matter by way or arbitration or if that jurisdiction considers that enforcement of arbitration award of said matter would be contrary to “public policy”, that jurisdiction will not enforce any such arbitration award.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Arbitration in Thailand: PART 3 – arbitration offers serval advantages to litigation in Thai courts

Arbitration proceedings offer various important advantages to the normal local court proceedings in Thailand. To resolve business related disputes quickly and with finality is advantageous to the business community. To say the least, normal court proceedings are not known for achieving either of these desired ends, especially in Thailand. Thus, the fixed time frame to achieve an award outlined by the various arbitration service providers is one of the most important advantages of arbitration over ligating the dispute in normal court proceedings. Furthermore, unlike a normal court ruling, arbitration awards cannot be challenged on the “material part” of the case. In other words, the award cannot be appealed on the basis of its determination on factual or legal issues. For example, in Thailand, the court that will need to enforce an arbitration award, whether it is an award in an international or domestic arbitration proceeding, is only allowed to set aside such ruling in the following, very limited, cases outlined in Section 40 of the Arbitration Act (2002)(the “Act”):

1)    A party to the arbitration agreement was under some legal incapacity.

2)    The arbitration agreement is not binding under the governing law agreed to by the parties, or in the absence of such agreement, the laws of Thailand.

3)    The applicant was not given proper advance notice of the appointment of the arbitral tribunal, or of the arbitral proceedings, or was otherwise unable to defend the case in the arbitral proceedings.

4)    The award deals with a dispute outside the scope of the arbitration agreement, or contains a decision on a matter outside the scope of the agreement. If the part of the award that lies outside the scope of the agreement can be separated from the balance of the award, then the court will only set aside that part.

5)    The composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the arbitration agreement or, unless otherwise agreed by the parties, the Arbitration Act.

6)    The award deals with a dispute not capable of settlement by arbitration under the law.

7)    The recognition or enforcement of the award would be contrary to public order.

The enforcement, or rather the “enforceability”, of an arbitration award is itself another very important advantage of arbitration over normal court proceedings. Unlike foreign court judgements, all countries that are part of the 1958 United Nations New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) will enforce a “foreign” arbitration award if that award was made in a country that is also a signatory to the New York Convention. There are currently 144 signatories, including Thailand, to the New York Convention. Section 41 of the Act states that “(…) an arbitral award, irrespective of the country in which it is made, shall be recognized as binding on the parties(…). In case where an arbitral award was made in a foreign country, the award shall be enforced by the competent court (…)”.

Turning to the proceedings itself, It is not uncommon that disputes between parties require specialized knowledge to understand the nature of the dispute. A local court judge may not have such knowledge. Arbitration proceedings, however, provide the opportunity to the parties to have the dispute settled by a specialist or practitioner who understands the issues surrounding the claim from a practical point of view. In Thailand, this enhanced adjudicatory flexibility is reflected in Section 19 of the Act which defines a qualified arbitrator as one who is ”(…) impartial, independent and possess the qualifications prescribed in the arbitration agreement (…)”.

Furthermore, the parties in an arbitration proceeding are not only able to select their qualified arbitrator, but they also have the right to choose the place and the language of the arbitration proceedings. For anyone doing business in a foreign country, to select a convenient venue for the proceedings and to be able to understand the proceedings without the necessity of a translator and to be able to submit all documentation without having to translate them into a foreign language are major advantages to settling disputes by arbitration.

Finally, one more procedural advantages of arbitration over normal court proceedings relates to “Service of Process” or how one party or the adjudicator formally notifies the other party of matters in the proceeding, for example, that the case has been filed commencing the proceedings.  Service of Process in court proceedings is time consuming and can be quite expensive.  In Thailand, this is particularly true in disputes involving a defendant who is located outside of Thailand which requires lengthy notification process involving the Thai Ministry of foreign affairs. In arbitration proceedings, however, it is not necessary to involve any government agency. The arbitration service provider is able to service the defendant directly.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Arbitrations in Thailand: PART 2 – enforcing contracts outside of Thai courts

If you are doing business in Thailand you might have already had some experience with the local court system. An all too common complaint of the local business community is that court proceedings in Thailand are agonizingly slow. Furthermore, a non-Thai businessman usually does not understand the proceedings, since the official language in Thai courts is Thai. Finally, a domestic court ruling is generally not enforceable in another country and if one or both of the parties does not live in Thailand and/or has their assets in another country, a domestic court “win” might be a “hollow victory”.

But what’s the alternative? You may have heard of “alternative dispute resolution”. The “alternative” means “other than going to court.” One such longstanding alternative gaining evermore international recognition is arbitration. Arbitration is the most commonly used formal alternative to domestic court proceedings, especially for disputes between parties in different countries. From a legal perspective Thailand was a relative “late comer” to the arbitration scene, enacting its first law governing arbitration in 1987.  Then in 2002 Thailand enacted the current Arbitration Act, which replaced the 1987 law. The Arbitration Act governs not only domestic, but also any international arbitrations conducted in Thailand.

In order to submit a dispute to arbitration, it is required that both parties agree to it. Section 11 of the Arbitration Act defines such an arbitration agreement as “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement might be in the form of an arbitration clause in a contract or in the form or a separate agreement.” The arbitration agreement needs to be in writing and signed by both parties. Thus, it is not possible for one party to unilaterally and without the approval of the other party to submit a dispute to arbitration. If the parties failed to include an arbitration clause to an agreement and a dispute arises, the dispute must be settled by the local courts as long as both parties do not agree to arbitration proceedings. Therefore, it is advisable to include a well-drafted arbitration clause in an agreement, preferably in the initial contract document, before any dispute that requires a third party adjudicator arises.  In our experience, once such a dispute arises, getting the parties to agree on anything, including how to resolve the dispute can be very difficult, if not impossible.

But if you are going to use the arbitration alternative then it is highly advisable to select and include in your arbitration clause a professional arbitration institute that can provide the procedural and administrative support requisite for the conduct of proper arbitration proceeding. Internationally, perhaps the most commonly known such institute is the International Chamber of Commerce’s International Court of Arbitration (the “ICC”) which is headquartered Paris, France but which conducts arbitrations worldwide. Founded in 1923, the ICC established its own rules of arbitration that govern the proceedings between the parties themselves and between the parties and the ICC. These rules of arbitration are “universal” and govern all ICC proceedings worldwide. Locally, Thailand established its own “Thai Arbitration Institute of the Alternative Dispute Resolution Office, Office of the Judiciary” (the “TAI”) to provide arbitration services within Thailand. The TAI also has its own rules that govern its arbitration proceedings. Finally, the Board of Trade of Thailand also offers arbitration services which are provided by its “Thai Commercial Arbitration Institute” and which are conducted under its own rules.

The parties to an arbitration agreement are free to choose what rules should govern the arbitration proceedings by choosing one of the aforementioned service providers. It should be noted that the choice of the service provider not only has an impact on the fees charged for the arbitration service, but could also have an impact on the recourse a winning party has to claim for compensation for legal fees incurred during the arbitration proceedings.

Arbitration proceeding are generally quick, in fact the ICC rules generally require a decision and an award within 8 months of the arbitrator’s appointment. In the case of the TAI it is within 6 months of such appointment. Arbitration proceedings can be conducted in any language the parties choose. In general, the parties get to choose the arbitrator, thus they control their competence and may even select someone with particular expertise and experience relevant to the dispute at hand. And an award issued by any of the above mentioned arbitration institutes is enforceable in any country that is the signatory to the 1958 U.N. Convention on the recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Thailand is a signatory to the New York Convention and an arbitration award made here will be enforceable outside of Thailand in any other signatory country (currently 145 countries worldwide). And pursuant to the Arbitration Act any such award will also be enforceable inside of Thailand. Accordingly, formal arbitration can be an outstanding alternative to Thai court proceedings and highly advisable to include provision for such dispute resolution in your commercial contracts here in Thailand.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Commerical Arbitration in Thailand – an introduction

Thailand is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards. Therefore, Thailand is obligated to recognize foreign arbitration agreements and will enforce foreign arbitration awards pursuant to the Convention. Thailand’s current (2002) Arbitration Act closely mirrors the 1985 version of the United Nations’ (commonly referred to as, the “UNCITRAL”) model law. This Act implements Thailand’s obligations under the convention, as well as, regulates both international and domestic arbitrations conducted inside of Thailand.

Accordingly, contractual parties inside Thailand may choose to resolve any dispute arising from or a connection with their contract by means of arbitration rather than going to Thai Court. And, there are several reasons why contractual parties may be well advised to do so. Among those would be the following:

-If one or more of the parties are not Thai, arbitration will provide a “neutral” forum for resolving a dispute;

-the parties will be able to decide how the dispute will resolved: by what rules and procedures; by whom; where; how soon; in what language documents will be submitted and in which the proceedings will be conducted — all of which allows the parties comfort, efficiency and to control the costs of the proceedings; and, perhaps most importantly,

-once the award is obtained, the prevailing party may seek enforcement of the award against the assets of the non-prevailing party in any one of the currently 149 countries, which have signed the New York Convention. 

As a result, the ever-growing significance of arbitration in international commerce is undeniable. And, although many of Thailand’s neighbors have clearly recognized this — one cannot say quite the same of Thailand. Singapore, Hong Kong, and Malaysia, for example, have all taken steps to promote the practice of arbitration and have benefited thereby. And one of the first actions the Parliament of the newly “open” Myanmar took was to finally ratify the New York Convent — no doubt in order to encourage foreign investment.

Unfortunately, there are several issues that will need to be addressed before Thailand can be considered a truly “pro-arbitration” jurisdiction. These include:

  • a few well noted court rulings which have refused to enforce arbitration awards based on an interpretation of “public policy” which is far broader than the internationally accepted standard;
  • immigration and labor restrictions on arbitrators and parties’ counsel;
  • sections of the Arbitration Act not present in the you UNCITRAL law model law, which allow for appeals of recognition and enforcement of arbitration agreement and awards rulings and enhanced liabilities for arbitrators; and
  • a general lack of understanding among the legal and professional community in Thailand of what arbitration is and its significance.

However, we are confident that these issues can and will be addressed over the coming years as Thailand continues its current course from a developing to a fully developed arbitration jurisdiction.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Civil Litigation in Thailand: PART 6 – damages

As a general rule civil courts in Thailand limit recovery for contractual breaches and wrongful conduct to actual monetary damage caused. The aim is to put the harmed party in the same financial position they would have been in had the wrongful act not occurred. There is no provision for the recovery of “general” or “additional” damages in Thailand such as emotional distress or punitive damages. However, there is a recent exception with regard to the latter case under the 2009 Product Liability Act, which does permit the court to award limited punitive damages based on and in addition to the actual damages.

Contractual parties may provide for a exception to this general rule of “actual damages only” by including a liquidated damages provision in their contract. But it should be noted that Thai courts have discretion to reduce such liquidated damages if they believe such liquidated damages are too high compared to the actual damages caused. Courts may also refuse to enforce such a provision if they believe that it is contrary to public policy and/or contravenes any other relevant applicable laws such as the Unfair Contract Terms Act.

Because Thailand is a “free contract” jurisdiction — where parties can agree to any lawful contractual terms — they may also limits their respective liabilities. However, such limitations of liability will almost certainly receive a greater degree of scrutiny by the courts as to their enforceability. For example, contractual terms pre-exonerating a party from fraud or gross negligence are highly unlikely to be enforceable under the Unfair Contract Terms Act.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Civil Litigation in Thailand: PART 5 – appeal

In most instances of a civil court case in Thailand either party may appeal the judgment of a trial court. And, in most cases, appeal to intermediate courts of appeal is available with a final option to appeal to the relevant supreme court. However, in some cases the law provides for appeal directly to the relevant supreme court, thus bypassing any intermediate appellate court. Notable examples of this would be cases involving: (1) the recognition and enforcement of arbitration agreements and awards; and (2) employment law disputes.

Although the law allows for oral arguments before courts of appeal, in practice this is rarely done. Thus, appeals are submitted in writing and, as a general rule, may be based on any issue of law or (unlike in many other jurisdictions) fact. However, there are exceptions. For example: options for appeal may be limited by a the financial amount in controversy; or the grounds on which one may appeal may be limited to points of law only, depending on the court which has jurisdiction over the case. In any event, intermediate courts of appeal, and the various supreme courts, in Thailand do not “retry” cases — no new evidence may be introduced in any stage of appeal.

Judgments in Thailand are read from the bench. As a general rule, any appeal of such judgments must be made within thirty days. But the thirty-day deadline may be extended on a showing of any acceptable good cause. However, it is important to note that, the thirty days do not begin to run until the parties have received notice, in fact or in law, of the judgment. If the losing party attends the reading of judgment from the bench, they will be considered notified. However, if the losing party does not attend the reading, notice will only be effected once the losing party legally receives the written judgment. However, the written judgment is not issued until well after the reading of the judgment from the bench. As a result, it is common practice for a losing party to choose not to appear for the reading of the judgment and await legally effective notice of such to follow later by way of service of the written judgment.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Civil Litigation in Thailand: PART 4 – trials

After both parties have made their first filings in civil court case in Thailand, the court sets a date for a pretrial conference.  However, the Thai Civil and Procedure Code allows the presiding court to order a settlement conference at any time during the case. As a matter of practice (and perhaps Thai culture) a settlement conference is almost always ordered prior to the pretrial conference. This is the case, even if the parties make it very clear that they have already done all they could to settle and failed or that they are unwilling to settle. This practice often results in what many foreign parties consider an unfortunate expenditure of resources and an unnecessary delay in the proceedings.

Assuming the settlement conference does not succeed in terminating the case, the parties then proceed to a pretrial conference during which they specify to the court which issues they believe need to be resolved—thus, this pretrial conference is often referred to as the “settlement of issues”.  The court then sets the date or dates for the taking of evidence on these issues—in other words, the trial date.

Unfortunately, a Thai civil court trial usually consists of several evidence and/or witness hearings. Each party presents its evidence consecutively; however, the hearing of the parties’ evidence may often be separated by several days, weeks, or even months depending on the case and the court’s schedule.

It is important to note (particularly for those most familiar with court case proceedings under a common-law tradition) trials in Thailand, unlike most civil law countries, are a matter of the evidence being presented to the judge and not the parties “making a case” — particularly with regard to points of law. In fact, during the actual trial, the lawyers may have very little to say. Depending on the judge, the parties’ lawyers may be limited to questioning various witnesses and speaking to the court with regard to procedural matters. Quite often it is the judge or judges who conduct the questioning of the witnesses.

After the hearing of evidence is concluded the parties may, if permitted by the court, submit closing statements. The court then also fixes a date to pronounce its judgment. This day can vary depending on the procedural law under which the case is brought and how busy particular court is but it’s usually within 30 to 90 days after the conclusion of the trial.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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Civil Litigation in Thailand: PART 3 – defense and evidence

A defendant in Thai court must present a reply to the complaint within a statutorily prescribed time. If the defendant fails to do this, the court may refuse to allow admission of his defense if the result will be and unfounded delay of the proceedings. However, in our experience, courts will often  allow extensions of time for almost any tenable reason (and sometimes without any reason). This common practice can be justifiably frustrating to a good faith plaintiff’s desire for just and efficient resolution of the dispute. But it should said that over the past decade we have noted improvement with regard to such  procedural irregularities and we are confident such will continue to improve as Thailand continues on its course towards a fully developed rule of law jurisdiction.

By common-law jurisdiction standards, but not unlike most civil law countries, Thai law provides for very little pretrial discovery; the one exception being a request for admissions of fact. Each party must generally prepare and produced their own evidence and the other party must then refute the other party’s evidence on its merits, with their own evidence, or both. A party may request that the court subpoena evidence from the other party. However, such a subpoena must identify the specific document sought and specific relevant purpose for which it is sought. Furthermore, the requesting party must show good cause for the court to grant such a motion. As a practical matter, such requests are not often made and even less often actually granted.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

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