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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Kingdom of Thailand. Jurisdiction covers the entire country of Thailand.
2. Date of entry into force of the New York Convention
20 March 1960.
(Sources: Government Gazette, No. l.77 s. 25; Royal Proclamation, 10 Mar. 1960.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity ?
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Arbitration Law B.E. 2542 (A.D. 2002), ss. 41-45. The Thai Code of Civil Procedure governs procedures for court applications generally. There are no procedures specifically concerned with applications to enforce foreign arbitration awards. Thailand is a civil law jurisdiction: there is no system of binding judicial precedent. However, decisions of the Supreme Court are generally treated as persuasive guidelines in subsequent cases raising similar issues.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
An application to enforce an arbitral award must be filed with the court within 3 years of the date on which the award becomes enforceable. There is no definition of when an award is deemed to become enforceable. It is reasonable to consider that the award becomes enforceable on the date it was made, meaning that an application can be submitted to a Thai court from that date.
(Source: Arbitration Law, s. 42.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The Arbitration Law provides that applications for recognition and enforcement of foreign awards must be filed with the appropriate court of first instance.
(Source: Arbitration Law, s. 9.)
If the underlying dispute relates to an 'administrative contract' as defined in law ('a contract to which at least one of the parties is an administrative agency or a person acting on behalf of the State and which exhibits the characteristic of a concession contract, contract providing public service or contract for the construction of public works or for the exploitation of natural resources'), the appropriate court is likely to be the administrative court.
(Source: Administrative Court Law 1999, s. 3.)
If the underlying dispute relates to intellectual property matters, exchange of goods or financial instruments, international services, international carriage, insurance and other related matters, trade-related letters of credit, inward and outward fund remittance, trust receipts and guarantees in connection therewith, the arrest of ships, dumping and subsidization of goods or services from abroad, layout designs or integrated circuits, scientific discoveries, trade names, geographical indications, trade secrets, or the protection of plant varieties, the appropriate court is likely to be the intellectual property and international trade court.
(Source: Law relating to the Establishment of and Procedure for Intellectual Property and International Trade Court 1996, s. 7.)
Most other cases should be submitted to the first instance court with appropriate territorial jurisdiction.
(Source: Code of Civil Procedure, s. 4.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The Arbitration Law requires only that an award made in a foreign country must be subject to an international convention, treaty or agreement to which Thailand is a party. The award will be enforced only to the extent that Thailand commits itself to be bound.
(Source: Arbitration Law, s. 42.).
According to the Code of Civil Procedure, courts have jurisdiction over parties domiciled in Thailand or who: (i) were previously domiciled in Thailand and/or (ii) carried on business in Thailand, either directly or through an agent, during the two years preceding the date on which their suit is filed. Which court has jurisdiction will depend on the defendant's place of domicile, the place where the cause of action arose, or the location of immoveable property.
(Source: Code of Civil Procedure, ss. 3-4.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The decision will normally be conducted through inter partes proceedings.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
One. Appeals against judgments granting or denying recognition or enforcement of a foreign arbitral award must be filed directly with the Supreme Court or the Supreme Administrative Court, as the case may be.
(Source: Arbitration Law, s. 45.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Execution against assets (as opposed to temporary freezing) is not available until after the court has pronounced judgment and the debtor has failed to pay within the prescribed period.
(Source: Code of Civil Procedure, s. 271 et seq.)
It should be noted that the execution of judgments requires a further application to court to obtain a writ of execution and thereafter the cooperation of the Legal Execution Department, which alone is empowered to execute judgments against assets. This procedure is rarely accomplished rapidly.
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence is required: (i) original or certified copy of the award; (ii) original or certified copy of the arbitration agreement.
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The original Thai language of the Arbitration Law suggests that only the arbitration clause/agreement is required, not the whole commercial contract in which it is found. Practice varies, but courts do not appear to insist on entire contracts.
(c) Are originals or duly certified copies required?
Originals or certified copies are permitted (see Q.12(a) above).
(d) How many originals or duly certified copies are required?
One for the court and one for each defendant.
(Sources: Code of Civil Procedure, s. 82; general practice.)
(e) Does the authority or court keep the originals that are filed?
Certified copies can be filed instead of originals. If an original has been filed, it will be possible to replace it during the case with a certified copy or to recover it at the end of the case.
(Sources: Code of Civil Procedure, s. 54, s. 84 et seq.; general practice.)
(a) Is it necessary to provide a translation of the documents supplied?
If the award or arbitration agreement is not in Thai, a translation into Thai must be provided.
(b) If yes, into what language?
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The translation shall be made by a translator who has taken an oath or made a declaration before the court or in the presence of an official or a person authorized to administer oaths, or certified by an official authorized to certify such translations or by a Thai envoy or consul in the country where the award or the arbitration agreement was made.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The law does not contain express guidance. The original Thai language of the Arbitration Law suggests that only the arbitration clause/agreement need be translated, not the whole commercial contract in which it is contained, and this is the approach commonly adopted in practice. The award is usually translated in full.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
(Source: Arbitration Law, s. 43(6).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The court has a general power to adjourn proceedings where it considers that this may facilitate the good administration of justice, or where (for example) it appears that the court's ruling may depend wholly or in part on the decision of some other court.
(Source: Code of Civil Procedure, s. 39.)
The court has the power to stay pending civil actions (which would include applications to enforce foreign arbitration awards) in the context of bankruptcy and rehabilitation proceedings.
(Source: Bankruptcy Law 1940, as amended, ss. 25-27, 90/12(1).)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The court is empowered to order the party against whom enforcement is sought to provide appropriate security, if requested to do so by the party making the application.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Third parties and the public do not have a general right of access to any documents in the court file. Persons having a legitimate interest or reasonable grounds may apply to the court for permission to inspect and/or copy any or all documents in the file. The court is empowered to issue an order prohibiting such inspection and/or copying, in order to safeguard public order or the public interest.
(Source: Code of Civil Procedure, s. 54.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Hearings are generally open to the public. However, the court may exclude the public and/or prohibit publication of relevant facts if it considers this proper or for the purpose of safeguarding the public interest.
(Source: Code of Civil Procedure, s. 36.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Court judgments are generally not published, with the exception of certain Supreme Court judgments. However, they are generally delivered in open court (see Q.15(b) above). The answer to Q.15(a) above applies equally to access to judgments in the court files.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Legislation and regulations are silent on this issue, and there are no provisions in Thai law or Thai arbitration rules authorizing or prohibiting interim or partial awards (save in relation to jurisdiction). In principle, there should be no objection to seeking to enforce a foreign interim or partial award, provided the award is binding on the parties.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Legislation and regulations are silent on this issue. In principle, there should be no objection to a party's seeking to enforce an award for non-monetary relief, provided the relief or remedy is of the kind that Thai courts could order in civil proceedings.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Legislation and regulations are silent on this issue. In principle, there should be no objection to a party's seeking to enforce only part of the relief granted by a foreign award, provided there is no evidence that such relief has already been obtained elsewhere (i.e. double recovery).
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
There is no known example in Thailand of a court enforcing an award that has been set aside by a competent authority as referred to in Art. V(1)(e) of the New York Convention. It is thought unlikely that a Thai court would do so.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Alastair Henderson, Surapol Srangsomwong, Vanina Sucharitkul