Recognition and Enforcement of Foreign Arbitration Awards in Thailand

OVERVIEW

Thailand does not currently have an international agreement that recognizes judgments rendered by foreign courts. As a result, the party claiming damages is unable to enforce the judgment against the debtor’s assets in Thailand, even if they win the case and receive the foreign court judgment. The creditor will be required to file a new lawsuit in the Thai court in which the foreign court judgment will be only recognized as a piece of evidence. One potential resolution to the aforementioned restrictions is to consent to the resolution of disputes that arise under the contract through arbitration. The benefit is that the creditor of a foreign arbitral award has the right to enforce the award against an opponent in Thailand. According to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, commonly known as  the “New York Convention”, to which Thailand is a signatory, along with over 100 other countries.

The procedure for enforcing foreign arbitral awards is governed by the conditions outlined in Arbitration Act B.E. 2545 (2002). The party seeking enforcement of the arbitral award must submit an application with the competent court within three years from the date that the award is enforceable. After receipt of the application, the court shall promptly review the case and issue a judgment accordingly.

The applicant for enforcement of the award must produce the following documents to the court:

(1) Original or certified copy of the arbitral award;

(2) Original or certified copy of the arbitration agreement;

(3) Thai translation of the award and of the arbitration agreement by the translator who has taken an oath or who affirmed before the court or in the presence of an official or an authorized person, or certified by an official authorized to certify translations or by a Thai envoy or consul in the country where the award or the arbitration agreement was made.

COURT FEE

In the case of a request for the enforcement of an arbitral award and a request for annulment of the award, the fees are as follows:

• For amount of money not exceeding fifteen million Baht: 1% of the amount of capital, but not exceeding one hundred thousand Baht.
• For the portion exceeding fifty million Baht: 1% of the amount exceeding fifty million Baht.

ESTIMATED TIME OF PROCEDURE

Upon the acceptance of the filing, the opposing party will receive a copy of the application along with relevant documents from the court’s officer. The opposing party then has the right to submit an objection with supporting documentation to the court. Subsequently, the witness examination session will be conducted. The Court of First Instance will then make a decision on whether or not to enforce the award, which typically takes between one and two years.

REASONS FOR REFUSING TO ENFORCE THE AWARD AND THE COURT’S CONSIDERATION

Generally, the court will not render a decision on the facts of the case, as the arbitrator has already heard evidence, made a decision, and rendered a final award.

However, the arbitral award may be refused enforcement by the court under the conditions as specified in Arbitration Act B.E. 2545 (2002), regardless of the country in which it was rendered, if the opposing person proves that:

(1) A party to the arbitration agreement was under some incapacity under the law applicable to that party;

(2) The arbitration agreement is not binding under the law of the country agreed to by the parties, or failing any indication thereon, under Thai law;

(3) The party making the application 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 disputed not falling within the scope of the arbitration agreement or contains a decision on matter beyond the scope of the arbitration agreement. However, if the award on the matter which is beyond the scope thereof can be separated from the part that is within the scope of arbitration agreement, the court may set aside only the part that is beyond the scope of arbitration agreement or clause;

(5) The composition of the arbitral tribunal or the arbitral proceedings was not in accordance with the agreement of the parties or, if not otherwise agreed by the parties, in accordance with this Act;

(6) The arbitral award has not yet become binding, or has been set aside or suspended by a competent court or under the law of the country where it was made. Save where the setting aside or suspension of   the award is being sought from the competent court, the court may adjourn the hearing of this case as the court deems appropriate; and if requested by the party submitting the application, the court may order the party against whom enforcement is sought to provide appropriate security;

(7) The award involves a dispute not capable of settlement by arbitration under the law;

(8) The enforcement would be contrary to public policy.

The enforcement of a foreign arbitral award in Thailand requires the recognition of the award by Thai courts, which guarantees the smooth execution of the enforcement process. Proper recognition and enforcement of arbitral awards contribute to the development of confidence in the international arbitration system and the facilitation of more equitable and efficient international dispute resolution.

ADDITIONAL INFORMATION

Please note that the Supreme Court of Thailand recently had a decision in the Supreme Court Case No. 8539/2560 that a Thai court is solely authorized to set aside domestic awards. Thai courts are not authorized to consider and issue orders to set aside a foreign award.

ABOUT ILAWASIA

We, ILAW ASIA CO., LTD., have over 17 years of expertise in litigation, arbitration, and the recognition and enforcement of both domestic and foreign arbitration awards in Thailand, Myanmar, Cambodia, and Laos. With our extensive experience, we are well-equipped to assist your business in achieving its goals while minimizing legal risks. We are committed to helping you succeed.

AUTHORS

Somphob Rodboon,     Managing Partner

Tanadee Pantumkomon,      Partner

Kridtaporn Sirisereephap,     Senior Associate

Rattasart Taweekarn,     Associate

Surayuth Jantawong,     Associate

Contact Detail:      Litigation@ilawasia.com

Telephone Number      +66 2 048 2534 ext. 313