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Practical Considerations on Enforceability of Arbitratral Awards

Practical Considerations on Enforceability of Arbitratral Awards. Vichai Ariyanuntaka Chief Judge of the Central Labour Court. Seeking Enforcement in Court. Which Forum? Court of Justice or Administrative Court Court of Justice Intellectual Property and International Trade Court

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Practical Considerations on Enforceability of Arbitratral Awards

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  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

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