Dispute Resolution in Thailand

Dispute Resolution is the process of solving disputes outside the classical judicial system. It encompasses arbitration, conciliation and other methods of alternative dispute resolution.

The practice handles a broad spectrum of dispute resolution proceedings, including complex commercial cases. Co-practice head Chinnawat Thongpakdee possesses deep knowledge of corporate governance, white-collar crime and bankruptcy matters.

Arbitration

Arbitration is one of the dispute resolution options available in Thailand. It can be used to settle a range of disputes, including commercial and intellectual property disputes. It can be a quicker and less costly alternative to court proceedings.

However, there are several limitations to arbitration as a dispute resolution option in Thailand. For example, it cannot be used for criminal disputes and is only applicable to civil cases. In addition, the process can be unpredictable and difficult to control.

Another limitation is that tribunals are not permitted to specify in their awards the parties’ attorney fees and expenses. This restriction is consistent with the provisions of the TAI Rules and the law.

Despite these limitations, arbitration remains an important dispute resolution option in Thailand. A coherent legislative framework, a pro-arbitration judiciary, and an independent national arbitration institute support the use of arbitration in Thailand. As a result, it is widely expected that arbitration will continue to be seen as a viable and practical route to resolving complex commercial disputes in the country.

Conciliation

Conciliation is a dispute resolution option that involves talking to the other party in the complaint to find common ground and resolve the dispute. The conciliation process is less formal than a court proceeding and can be done in person or by phone under certain conditions.

The courts have the power to order a mediation or conciliation before trial in any civil case. They can do this on their own or ask the parties to mediate the case themselves. The Dispute Mediation Act 2562 (2019) provides for out-of-court arbitration and conciliation under the supervision of the courts.

While conciliation can be a useful tool in resolving disputes, it is not necessarily the right approach for all cases. There are certain disputes that require a different kind of solution, such as disputes between public entities and private companies. Arbitration is an effective dispute resolution option for these kinds of disputes, as it focuses on the interests of both parties and is enforceable under Thai law.

Negotiation

Negotiation is a form of dispute resolution that involves only the parties with an interest in the case and their representatives. It allows for greater flexibility in shaping the outcome of the negotiations and provides more control to the parties. It is also faster and more predictable than court proceedings.

However, it is not binding unless the parties reach and sign a settlement agreement. It is therefore not suitable for very high stake disputes. In addition, it is not always effective in civil cases where the burden of proof requires proof beyond reasonable doubt.

Nevertheless, mediation is increasingly popular in Thailand because of the rising international profile of its energy and mining sectors and the widespread enforceability of arbitration awards. It may be carried out either out-of-court or during a court case. In the latter case, it is regulated by the Dispute Mediation Act of 2019 which is based on the UNCITRAL Model Law. Aside from this, it is common for commercial contracts to include a mediation clause.

Court proceedings

In Thailand, court proceedings are a well-established form of dispute resolution. However, the process can be time-consuming and costly for all parties. To address this issue, Thai lawmakers have worked to encourage conciliation before a trial. This system diverts cases from the courts to mediation, thus saving time and resources for both the plaintiff and the defendant.

The courts in Thailand are based on the concept of actor sequitur forum rei, meaning that a claimant must bring their case in the court where the defendant is domiciled. The courts of first instance handle most civil disputes, while matters involving specific governmental agencies are handled by the Central Administrative Court, Central Labour Court, and Central Intellectual Property and International Trade Court.

The court process in Thailand is not as fast as it is in the United States or Europe. A judgment can take up to a year at the Courts of First Instance, and even longer at the Court of Appeal.

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