What is the basic procedural framework that governs civil litigation in your jurisdiction?
Courts in Thailand typically render judgment within one year from the date of receiving cases. They are obligated to provide the reasons for their decision. The courts also have the power to make rulings on: (i) damages based on the circumstances and gravity of the breach; (ii) default interest; and (iii) litigation costs.
ADR is increasingly becoming a popular form of dispute resolution in Thailand. More and more disputes are being referred to arbitration by the courts of justice, especially in the case of commercial matters where there is an arbitration clause in the contract.
During an arbitration proceeding, the arbitrator acts as a neutral third party to hear evidence from each side and make a binding decision on the case. The arbitration process can be shorter and less formal than a trial.
The Thai Mediation Center of the Alternative Dispute Resolution Office, the Office of the Judiciary is responsible for conducting and coordinating court-annexed mediation and offering legal advice on mediation to the public. The office also develops systems, methods and standards for conciliation in Thailand. Mediation results in mutually satisfactory settlements that do not impose winners and losers. This creates a harmonious society as people actively participate in the dispute resolution process and saves time and money for the country.
Arbitration is one of the most common forms of dispute resolution in Thailand. It is often much quicker than obtaining a final judgment from the court.
It is possible to stipulate in a contract that any disputes will be settled by arbitration. However, it is often best to make this determination at the time of contract drafting rather than after a dispute has arisen.
Thai courts have historically not encouraged in-court arbitration. However, in January 2017, a new set of rules came into effect that changed this.
These rules allow parties to apply for interim measures (such as a temporary injunction) from an arbitral tribunal. They also grant the tribunal discretion to fix legal costs, a significant step forward in comparison with previous law. Further, it permits the tribunal to order the parties to provide expert witnesses to attend hearings for cross-examination. The 2017 rules also permit the tribunal to consolidate correlated arbitrations for increased efficiency, time and cost savings.
In Thailand, conciliation is a very common form of dispute resolution. The conciliation process is based on the UNCITRAL Arbitration Law with Thai-specific amendments.
During a conciliation session, each party is given the opportunity to tell their side of the story and understand more about the other’s issues. The objective is to find a compromise that makes sense for both parties. If a party wants to bring in a lawyer or advocate to participate in the conciliation proceedings, they should discuss it with the conciliator and obtain their permission beforehand.
While court procedures in Thailand are largely adversarial, the courts encourage mediation as an efficient alternative to a lengthy trial. However, there is still a lot of room for improvement in terms of the speed and efficiency of court processes. In addition, interim relief, such as injunctions, is difficult to obtain through the judicial system. Arbitration, on the other hand, can provide a much more predictable and faster outcome.
In Thailand, out-of-court arbitration is regulated under the Arbitration Act, which is based on the UNCITRAL Model Law and Thai-specific additions. In this form of dispute resolution, parties choose an arbitrator or a panel of arbitrators to review evidence and arguments and render a binding decision called an arbitral award. Arbitration offers advantages including a flexible timeframe and a lower cost than litigation. Arbitral awards are generally enforceable both locally in Thailand and internationally.
The courts encourage out-of-court conciliation and mediation prior to the commencement of a court case. Mediation involves a facilitated negotiation between the disputing parties with the assistance of a neutral mediator. DFDL recommends this option given its flexibility and ability to resolve disputes with minimal costs.