Dispute Resolution in Thailand includes the use of Arbitration. Arbitration is less formal than court proceedings and hearing dates are set based on the availability of both parties and the arbitrator.
Compulsory mediation is available for family and labour disputes. The chief trial judge can also facilitate a settlement during a case.
Arbitration is an alternative dispute resolution process that allows parties to settle their differences in a private setting. This allows them to keep information, evidences, statements and arguments confidential, which is especially important for renowned public figures or businesses that do not wish to damage their reputation. It also allows them to choose a neutral third party to decide the outcome of their case, as well as choosing a timeframe that suits them. Moreover, an arbitration award is enforceable in countries that have signed the New York Convention, and it can be enforced against both individuals and businesses.
Thailand’s law on arbitration has seen many amendments in recent years, including the introduction of a special “emergency arbitration” and more streamlined processes to allow foreigners to serve as both arbitrators and counsel. However, a complex permit system still disincentives foreigners from taking up appointments in these proceedings. Watson Farley & Williams (Thailand) Ltd. has a team of Harvard, Oxford and Sorbonne-trained lawyers that can assist clients with their international arbitration cases involving Thailand.
The most common form of alternative dispute resolution in Thailand is conciliation. Like mediation, a conciliation process allows for an impartial third party to oversee and facilitate communications that will hopefully lead to an agreement to settle the matter in question. Conciliation is generally less formal than arbitration and is non-binding unless and until the parties agree to a binding settlement agreement.
Litigation is a traditional method of resolving disputes in Thailand, but this can be costly, time-consuming, and risky from the perspective of the parties involved (with the exception of specialised courts such as Bankruptcy Court or Intellectual Property and International Trade Court). A judge in a regular court case will often inquire whether mediation or conciliation could help to resolve the matter. If this is agreed, then the dispute will be referred to that process prior to trial. In addition, the court may impose compulsory mediation for certain types of cases.
While there are already existing alternative dispute resolution options in Thailand, these can be quite costly and time-consuming. Moreover, they may not provide a “win-win” solution. Therefore, lawmakers have been working to encourage the use of mediation in resolving disputes.
A recent amendment to the Civil Procedure Code made compulsory mediation a requirement in certain types of cases, including family and employment disputes. Additionally, the Office of the Judiciary has established the Thai Mediation Center to promote mediation as well as develop its practitioners.
However, court-annexed mediation has its limitations and can be inefficient for parties that wish to obtain a commercial settlement. In addition, court-appointed mediators often lack the necessary business knowledge to facilitate a successful negotiation. The emergence of independent mediation centers in the country could potentially solve this problem. In fact, it is a good idea to conduct a mediation before initiating litigation in order to save both time and costs. The process is also more streamlined and less stressful for the disputing parties.
As a general rule, Thai civil cases are not taken through to trial and as such, legal costs can be lower than in the West. However, criminal matters often do end up at court and therefore it is a good idea to have an experienced local lawyer on your side from the very beginning. A capable and seasoned attorney will be able to prevent surprises throughout the process and work the system to their client’s advantage.
If a case does reach trial, it can be expected to take up to a year or more to complete. Depending on the complexity of the case, witnesses can be called for days at a time.
During the trial, the judges will examine all of the evidence and then decide on a verdict. If the verdict is guilty, then the judge will determine the sentence. If the verdict is not guilty, then a decision on appeal will be made.