The Thai judicial system operates under a balanced mechanism that is accessible and efficient. Thailand Dispute resolution processes are also well established, including mediation.
In some Courts of First Instance, such as the Labor Court, and in general civil cases, mediation is compulsory before witness hearings. However, it can take years to resolve disputes in courts because of the high volume of cases.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) is a broad term used to describe methods of settling disputes outside the traditional judicial system. The most common forms of ADR are mediation and arbitration, both of which have gained traction in Thailand.
Arbitration is an out-of-court dispute resolution process where a neutral third party called an arbitrator decides the outcome of the case based on evidence and the law. In Thailand, parties to a dispute can choose an arbitrator from among those registered at the Arbitration Institute of Thailand (AIT) or from other institutions such as THAC, ICC and SIAC.
As a member of the ADR committee at Herbert Smith Freehills, Warathon is highly experienced in litigation and domestic and international arbitration. He has acted as counsel and arbitrator in a range of disputes across several industries, including aviation, hotels and real estate, insurance, telecommunications and media technology.
As a result of the resurgence in ADR, many cases are settled out of court instead of going to trial. The ADR initiatives in the courts have helped to reduce the backlog of cases and has enabled a greater number of disputes to be resolved in a timely manner. The ADR mechanisms are a welcome relief for businesses and the legal community alike. They provide a more efficient and cost-effective way to settle disputes while still giving the parties the opportunity to demonstrate their credibility, particularly in situations where their reputation is likely to be damaged by publicity.
Conciliation
In Thailand, conciliation is widely used as an alternative to litigation. Its effectiveness is aided by a comprehensive legal framework, including the Arbitration Act of 2002 and the Dispute Mediation Act of 2019. Furthermore, Thailand is a party to several international agreements, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, which enhances its credibility as an ADR center. Moreover, its culture puts a strong emphasis on harmony and conflict avoidance, which makes mediation and other non-adversarial methods more attractive to parties in disputes than traditional litigation.
In a conciliation session, both parties are given the opportunity to express their positions in a respectful and confidential environment. The conciliator examines the facts of the dispute and looks for common ground that could help resolve the issue. The conciliation process can also eliminate misunderstandings based on incorrect assumptions and information. It can therefore save time and cost for all parties involved in the process.
Unlike the adversarial system of court proceedings, a conciliation hearing is a private meeting between the disputing parties and their attorneys. The conciliation process is generally less expensive than litigating a case in a court, and it can also speed up the resolution of claims.
However, it is important to note that conciliation does not provide an opportunity for interim relief such as injunctions. It is only possible for a court to grant such relief during or after a conciliation hearing.
Arbitration
Arbitration is a form of dispute resolution that provides a more tailored and private process than litigation. It also can be quicker than obtaining a court judgment. Arbitration is a formal process where the disputing parties entrust a third party to make a decision on the dispute. The arbitrator may make a binding decision or can be non-binding. The disputing parties can select the law, rules and procedures of the arbitration proceedings. They may also decide how many arbitrators they want to choose.
Arbitrators are generally experts in the subjects of the disputes they resolve. They may be individuals or firms. The parties can rely on the expertise of an arbitrator to achieve a more effective and speedy result, particularly for complicated and high value cases. Arbitration is often a more cost-effective option than court proceeding and can help to avoid the expense of appeals. However, a court can refuse to enforce an arbitral award where the award involves a matter that cannot be resolved through arbitration or is contrary to public policy and good morals.
In an arbitration hearing, both sides will present evidence to support their claims or defenses. A tribunal will usually allow both parties to question witnesses and may hire expert witnesses to assess the evidence and examine it. In contrast to a traditional court proceeding, there is typically no stringent discovery phase in an arbitration case. However, both parties are responsible for voluntarily exchanging all relevant documents.
Litigation
Litigation is a form of dispute resolution in which disputes are decided by the courts. The country’s judicial system includes the Court of Justice, which handles civil and criminal cases; the Supreme Court, which handles specialised cases; and the Court of Appeal (including the Court of Appeal for Specialised Cases). The courts use expert determination and evidence from witnesses to resolve legal issues in their trials. Thailand’s laws include provisions mandating judicial independence and impartiality in trial proceedings, as well as prohibiting judges from hearing a case if they have a vested interest or relationship with one of the parties, or if they may be biased toward any party’s outcome.
Arbitration is a more informal court-like process in which parties submit their disputes to an independent arbitrator for a decision. The arbitrator’s ruling is then binding on the parties. The arbitration process is more cost-effective than litigation, as it can reduce the time and costs of the dispute resolution procedure. It is also faster than a full trial.
The choice between litigation and arbitration should be tailored to each case’s unique circumstances. While legal representation is not mandatory, it can significantly aid in understanding rights and obligations, navigating the process, and achieving a favorable outcome. Moreover, the choice of legal representative should be carefully considered, as different lawyers have distinct legal backgrounds, expertise, and experience.
