Practical Considerations on Enforceability of Arbitratral Awards

1. Practical Considerations on Enforceability of Arbitratral Awards Vichai Ariyanuntaka Chief Judge of the Central Labour Court

2. Seeking Enforcement in Court • Which Forum? • Court of Justice or Administrative Court • Court of Justice • Intellectual Property and International Trade Court • Civil Court • Commission on Conflict of Jurisdictions • Different regime for ‘administrative contracts’

3. Options available for respondent • File a petition for setting aside (offensive strategy) • Time limit 90 days • Burden of proof on the debtor • Popular grounds – due process, composition of the panel, public policy • Wait for the creditor of the award to file an action for enforcement of the award (defensive strategy) • Time limit within 3 yrs. • Burden of proof on the debtor • Same grounds as above • Defensive strategy could prove expensive taking into account the amount of ‘interests’ added

4. Who pays for the expenses? • Each party to bear its own costs at arbitration/ or • Loser pays for the winner – arbitrator’s fee (panel) , administrative fee of the arbitration institution, attorneys’ fee and expenses • Court fee and expenses at trial • Court fee for enforcement of arbitral award – 1% of the award but not exceeding 80,000 baht, loser will require to pay expenses including attorney’s fee for the winner but not more than 5% Max. • In Thailand costs usually not a prohibiting factor

5. Enforcement in IP&IT Court • Applicable Law and salient features • IP&IT Court Act and Rules of the IP&IT Court • Arbitration Act 2002 • Quorum of three judges including one expert associate judge • Only arbitration awards on the disputes over IP&IT • Written statements, video conferencing, consent out of translation • More expertise

6. Enforcement in the Civil Court • Applicable law • Civil Procedural Code • Arbitration Act 2002 • Appeal directly to the Supreme Court • Grounds – contrary to public policy – a dissenting opinion at the lower court – appeal an order for interim measure • A quorum of two judges

7. Enforcement in the Administrative court • Administrative Court Act sec. 3 def. for ‘administrative contract’ • Def. illustrative not exhaustive ‘shall include…’ – at least one of the parties is a government body or acting on its behalf and the nature of the contracts is for public utilities, public services or concession contracts • Administrative court judges --- not necessarily legal experts but experts on public administration, economics etc. • Applicable law – public law, the notion of ‘public interest’ • Appeal to the Supreme Administrative Court

8. Cabinet Resolutions • 24 January 2547 (2004) • Preferred choice of dispute resolution in Concession Contracts • Applicable law • Language • 16 March 2547 (2004) • Exception to Resolution 24 January 2547 • 4 May 2547 • Emphasis the applicability of 24 Jan 2547 Resolution on concession contract alone

9. Miscellaneous Provisions • Sec. 23 Arb. Act – while providing immunity to arbitrator for civil liabilities save in gross negligence and willful misconduct, does create criminal liability for malfeasance (both for arbitrator and the provider) • Foreign arbitrator accepted for practice • Counsel – yes, if applicable law not Thai or the enforcement of the award is outside Thailand • Although Thailand is not an ICSID member, it is a MIGA member

10. Never to Forget Re-Negotiation • Although enforcement via the court takes the form of leap-frog procedure i.e. bypassing the Court of Appeal, it could take years • Interests on the award could mount to a formidable figure – not ‘politically correct’ for any government to ‘lose’ • Negotiation is always an option for the government

11. Questions & Answers Thank you Vichai Ariyanuntaka