Disputes are resolved in both domestic and international arbitration proceedings in Thailand. In general, it takes about a year to complete the legal process from filing a complaint to having a judgment rendered by the Supreme Court.
At any time during a trial, judges can facilitate conciliation. They can also appoint outside conciliators to facilitate the mediation.
Courts
While litigation is still a valid avenue of dispute resolution in Thailand, there are several alternatives to traditional court proceedings. Alternative dispute resolution procedures include mediation, arbitration and conciliation.
The Thai courts are primarily adversarial, but certain courts use an inquisitorial system, such as the Constitutional Court and the Criminal Court for Corruption and Misconduct. The inquisitorial system allows the court to request additional facts and evidence from witnesses, experts or other parties involved in the case.
Appeals against judgments or orders from the Court of First Instance, and the Central and nine Regional Courts of Appeal are submitted to the Supreme Court in Bangkok. Specialized laws pertaining to labor, intellectual property and international trade allow for appeals against decisions of those specialized courts directly to the Supreme Court.
If the disputing parties are unable to agree on a tribunal, the arbitral institute will provide each party with a list of three potential arbitrators. The parties will then have fifteen days to remove the names of those they do not prefer and to add their own choices.
Mediation
Mediation is a non-adversarial dispute resolution method. It is often cheaper and faster than litigation. The court can order mediation in civil matters, provided that all parties agree to the procedure and conditions of the case.
The mediator enables the parties to reach mutually satisfactory settlements. They can also resolve the matter informally and confidentially through conciliation.
Participants are encouraged to prepare for the mediation by gathering information that they foresee being relevant to possible resolutions of the dispute. They should also be open to new ideas and options for resolution. They should avoid entering the mediation with predetermined “bottom lines”.
Under the Mediation and Conciliation Act, the parties can agree to a non-binding dispute settlement agreement at any time during or after mediation. However, the dispute settlement agreement must be drafted in accordance with the Mediation and Conciliation Rules. The agreement can be enforced through the courts. The court may determine that the prevailing party should bear certain advanced costs.
Arbitration
In the case of arbitration, a dispute is settled by an arbitrator (or a tribunal) and the disputing parties are bound by the decision. This method is suited to a wide range of disputes arising from many different types of contracts.
An arbitrator can be selected by either party, or appointed by the court. As with mediation, the arbitrator will have to be a neutral person and be free from conflict of interest.
A hearing is conducted in private, and the tribunal can appoint experts to evaluate the evidence. The tribunal can also request the parties to provide further information. An award is then issued which can be enforced by the courts. In the context of international arbitration, recent decisions by the Supreme Court indicate that Thai courts will recognise and give effect to awards made in other jurisdictions. However, enforcement of such an award will depend on a number of factors. These include whether the governing law and procedural rules of the jurisdiction in question are similar to those of Thailand.
Litigation
Litigation is the final stage of dispute resolution where both parties participate in a trial in front of a judge and/or jury. Litigation is time consuming, expensive and can result in substantial compensation or other awards depending on the case’s specifics.
In Thailand, litigation is governed by the Civil Court Procedure Code (CPC). The courts include general courts, juvenile and family courts, and specialized courts such as the Labour Court and the Intellectual Property Court.
If parties cannot reach an agreement during the pre-trial phase, the court will schedule hearings to determine issues and set the burden of proof for each issue. The law also requires that the examination of witnesses be conducted without delay. Parties failing to comply with the rules of court may be penalised by having their claims or defences struck out. This penalty is enforceable by court order.