In order to unclog court dockets, Thailand has adopted Alternative Dispute Resolution practices. This includes mediation, arbitration and conciliation.
Mediation is an important part of the judicial landscape in Thailand and it has become more widely used as awareness of the benefits of the process increases. However, enforcement of mediated settlements remains an issue.
Arbitration
Arbitration provides a cost-efficient alternative to court litigation. It also offers a more conciliatory and less adversarial approach to dispute resolution. Arbitration can be used to resolve domestic and cross border disputes.
Out of court arbitration is governed by the Arbitration Act (2002) which is based on the UNCITRAL Model Law and contains some Thai specific provisions. Once an arbitration award is rendered it can be enforced by a court.
During the proceedings, the tribunal hears evidence from each party’s witnesses. The tribunal has the power to examine and question experts and compel the production of documents. The tribunal must make its decision by the end of the hearing.
International arbitrations should be given more prominence in Thailand, particularly in light of the recent governmental policies designed to attract foreign investors and business people to the country. To increase the use of arbitration in the country, there needs to be better training of law schools, corporations and practitioners about the advantages of including arbitration agreements in contracts. Additionally, there needs to be a systematic enforcement mechanism incorporated into the TAA and the Thai Civil Procedure Code.
Mediation
Mediation is a dispute resolution option that involves a neutral mediator who will facilitate communication between the disputing parties and assist them in reaching an acceptable compromise. It is a less formal process than arbitration and non-binding until or unless the parties agree to a binding settlement agreement. It is usually faster and less expensive than litigation. It also helps minimize the number of appeal cases as well as enables compliance with an enforceable compromise agreement.
In addition to arbitration, mediation is a widely used mode of dispute resolution in Thailand. It is especially helpful for employers with international employees as it allows them to resolve labour disputes before they escalate into litigation.
Negotiation
Negotiation is a process where opposing parties discuss the terms of a dispute and work out a mutually satisfactory agreement. This approach is generally less expensive and quicker than litigation. In addition, it provides the disputing parties with more control over the outcome of their dispute.
However, in the case of a dispute involving intellectual property, it is recommended that you seek out legal counsel to assist you. Having an attorney conduct the negotiations can help speed up the process, as they know the laws and practices of intellectual property disputes.
Court-annexed mediation is an emerging form of dispute resolution in Thailand, which allows a settlement to be reached while the case is still pending in court. This is a significant development because it could potentially reduce the time it takes to reach a settlement and may allow for a more convenient process than waiting for the case to be placed on a trial docket.
Litigation
Litigation is still an important dispute resolution option in Thailand. However, more disputes are being settled through mediation and arbitration than in court.
While out-of-court proceedings are a good choice for many, litigating in Thailand can be costly and time consuming. Litigation is an adversarial process and the outcome may be unsatisfactory for all parties.
If litigation is a possibility, it is crucial that any party considering this option first conducts a thorough due diligence of the defendant’s assets in Thailand and abroad to ensure that a monetary judgment will have value. This can be done through legal counsel.
The team at Siam Premier International Law Office Limited includes Kong Suriyamontol, who advises on major contracts and construction matters, as well as Techatat Udomsiri and Sumit Masrungson. Praised as a ‘safe and steady pair of hands’, they are experienced in challenging government decisions, in addition to handling banking and finance litigation and aviation disputes. Partner Kay Kian Tan specialises in contentious power and energy disputes, transport mandates and insurance claims.
