In order to unclog court dockets, the Thai legal system has adopted Alternative Dispute Resolution practices. The Arbitration Law provides for a range of dispute settlement options.
Litigation involves a trial where a judge renders a decision that is binding and enforceable by law. However, litigation is often costly and time consuming.
Arbitration
Arbitration is an alternative Thailand dispute resolution option that can be used in a variety of situations. In the case of a commercial dispute, parties to a contract can stipulate that any disputes will be settled by arbitration rather than taking the matter to court. This determination can be made at the time of preparing a contract or after a dispute arises.
During the course of an arbitration, both sides will present their arguments and evidence. The tribunal will then decide on the outcome. In the event that a party is not satisfied with the decision, it can appeal the ruling to a higher court.
In a recent Supreme Administrative Court decision, an arbitral tribunal was challenged over its determination that it would reduce the penalty imposed on a company for breaching a tax law. The court ruled that the tribunal’s determination did not violate its duty of impartiality and independence. However, the tribunal is obligated to comply with the law when making its decision.
Conciliation
Although conciliation is not mandatory, the Thai courts actively promote it as an alternative to litigation. They do this to help both parties find a suitable settlement and lessen the case load on their court systems.
During the conciliation process, both parties meet with the conciliator, either together or separately, to discuss their complaint. The conciliator will try to resolve the matter to your satisfaction. This is done to eliminate misunderstandings that arise from false assumptions or misinformation. The information gathered in a conciliation conference is kept confidential. However, the conciliator may request your permission to pass on what you have said to the other party if this is necessary to the outcome of the complaint.
During the conciliation process, it is important to make sure you are available for the assigned date and time. Once the conciliation has been scheduled, it is difficult to reschedule. For this reason, it is a good idea to think about your options before the conciliation conference begins.
Out-of-court Mediation
While court proceedings in Thailand are notoriously time consuming, out-of-court mediation is becoming more common and is a useful tool to avoid lengthy litigation. Recently, amendments to the Civil Procedure Code allow judges to request court-annexed mediation in any case they deem appropriate or where parties have expressly agreed to mediate their dispute.
During mediation, the parties are assisted by a neutral mediator in reaching an agreement that will satisfy both parties. The process is generally less expensive than litigating a claim in court, particularly for smaller claims.
As a matter of practice, courts often require plaintiffs to participate in mediation prior to witness hearings, especially in labour disputes and family and labor cases. Additionally, more and more general civil cases are also being required to go through mediation before proceeding to a judgment hearing date. However, despite this relative progress, mediation in Thailand still has a long way to go.
Court Proceedings
The Court of Justice and the Administrative Court are Thailand’s primary courts for civil cases. Courts follow an adversarial system but some special courts like the Military Court and Constitutional Court operate under inquisitorial principles.
It is possible to include an arbitration clause in contracts in Thailand. However, the law stipulates that arbitration awards will not be enforceable if they concern disputes that are outside of the scope of Thai law or would violate public policy and morals.
In the event a dispute is not resolved through out-of-court mediation, it may be heard in a court of first instance. In cases involving multiple claims, the court may, at its discretion or upon request of an interested party, issue orders for disjoinder in order to have separate trials on different claims.
During hearings or trial, it is possible to have witness testimony and cross-examination conducted via video conference. This supports judicial efficiency and is especially useful when witnesses are located abroad.
