ARBITRATION ACT
B.E. 2530 (1987)
BHUMIBOL
ADULYADEJ, REX.,
Given on the 19th day
of July B.E.2530 (1987);
Being the 42nd Year
of the Present Reign.
His
Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that :
Whereas it is deemed expedient to enact the law governing out-of-court
arbitration.
Be it, therefore, enacted by the King, by and with the advice and consent of
the House of Parliament as follows :
Section 1 . This Act shall be called the "Arbitration Act
B.E. 2530" .
Section 2 . This Act shall come into force as from the day following
the date of its publication in the Government Gazette.
Section 3 . Whenever a reference is made by any law to the provisions
of the Civil Procedure Code relating to out-of-court arbitration, such
reference shall be deemed to have been made to this Act.
Section 4 . The Minister of Justice shall take charge and control of
the execution of this Act.
Section 5 . Arbitration agreement means an agreement or an
arbitration clause in a contract whereby the parties agree to submit present or
future civil disputes to arbitration, irrespective of whether there being the designation
of an arbitrator.
Section 6 . An arbitration agreement shall be binding upon the
parties only when there is evidence thereof in writing, or there appears an
agreement in an exchange of letters, telegrams, telexes, or other documents of
the similar nature.
Section 7 . The validity of an arbitration agreement and the
appointment of arbitrator shall not be affected even it appears thereafter that
any party thereto is dead, against whose property a final receiving order has
been made, has been adjudged incompetent or quasi-incompetent.
Section 8 . When there is a transfer of any claim or liability, the
existing arbitration agreement concerning such claim or liability shall
accordingly be vested in the transferee.
Section 9 . An arbitration agreement may stipulate that a dispute be
submitted to arbitration within a period which is shorter than the period of
prescription under the law. However, the violation of such stipulation shall
only result in the forfeiture of the right to arbitration. It shall not
preclude the right of the party concerned to bring an action in court.
When there is an extraordinary circumstance, the party concerned may file an
application requesting a competent court to extend the period of time under
paragraph one. Such application shall be filed before the expiration of the
said period of time, except in case of force majeure.
Section 10. In case where any party commences any legal proceedings
in court against any other party to the arbitration agreement in respect of any
dispute agreed to be referred to arbitration, the party against whom the legal
proceedings are commenced may file with the court a petition prior to the date
of taking of evidence, or prior to the passing of the judgement in case where
there is no taking of evidence, for an order to stay the legal proceedings, so
that the parties may first proceed with the arbitration proceedings. Upon the
court having completed the enquiry and it appears that there is nothing that
causes the arbitration agreement to be null and void, inoperative or
unenforceable by any other reasons or incapable of being performed, the court
shall make an order staying the proceedings.
Section 11 . There may be one or several arbitrators. In case where there
are several arbitrators, each party shall appoint an equal number.
In case where the arbitration agreement does not specify the number of
arbitrator, the parties shall each appoint one arbitrator, and the said
arbitrators shall jointly appoint a third person as additional arbitrator.
Section 12 . Unless otherwise specified in the arbitration agreement,
the appointment of arbitrator shall be carried out within a reasonable time
with the consent of the person to be appointed. The appointment shall be made
in writing, dated and signed by the person appointing the arbitrator.
Section 13 . In case where the person who is to appoint an arbitrator
fails to do so within the time stipulated in the arbitration agreement, or
within a reasonable time under Section 12, or there is a circumstance
indicating that the said person is not willing to appoint an arbitrator, any
party may then file a petition with a competent court for an order appointing
an arbitrator.
Section 14 . No arbitrator who has been duly appointed may have his
appointment revoked except with the consent of all the parties.
A duly appointed arbitrator may be challenged in a competent court. An
arbitrator appointed by the court or by a third person may be challenged by any
party. An arbitrator appointed by one of the parties may be challenged by the
other party. No party shall challenge the arbitrator whom he has appointed or
whom he has jointly appointed, except where the said party did not know of or
could not have known of the grounds for challenge at the time of appointment.
The grounds for challenge under paragraph two shall be the same as for
challenging a judge under the Civil Procedure Code or other grounds which are
of such serious nature as may prejudice the impartiality of the hearing or the
rendering of an award.
In case where an arbitrator is challenged under paragraph two, the
provisions governing the challenge of a judge under the Civil Procedure Code
shall apply mutatis mutandis. If the challenge is sustained, a new arbitrator
shall be appointed to replace the challenged arbitrator by the same method of
appointment as that of the challenged arbitrator.
Section 15 . In case where the arbitration agreement stipulates that
there shall be one or more arbitrators, or that a third person shall appoint an
arbitrator, and the said person refuses to accept the appointment, or is dead,
against whose property a final receiving order has been made, has been adjudged
incompetent or quasi-incompetent prior to the acceptance of the appointment or
prior to the appointment, as the case may be, it shall be deemed as if there
were no designations of arbitrator or of the person to appoint such arbitrator.
If an arbitrator who has accepted the appointment dies, against whose property
a final receiving order has been made, has been adjudged incompetent or
quasi-incompetent, a new arbitrator shall be appointed in lieu thereof, by the
same method of appointment as that of the said arbitrator.
In case where an arbitrator who has accepted the appointment is unable,
unwilling or ignores to perform his duties within a reasonable time, any party
may file with a competent court a petition for an order appointing a new
arbitrator in lieu of the said arbitrator.
Section 16 . An arbitral award shall be rendered by a majority of
votes. If it is not possible to obtain a majority, the arbitrators shall
jointly appoint an umpire. In case where the arbitrators fail to appoint an
umpire, any arbitrator or any party may petition a competent court for an order
appointing an umpire, in which case Section 14 and Section 15 shall be applied
mutatis mutandis.
Section 17 . Before rendering an award, the arbitrator shall hear the
case presented by the parties and have the power to make an enquiry into the
dispute submitted as he deems appropriate. Unless otherwise provided by the
arbitration agreement or law, an arbitrator shall have the power to conduct any
procedure as he deems appropriate taking the principle of natural justice as
prime consideration.
Section 18 . Where resort to the power of the court is required in
regard to the summons of a witness, the administration of oath, the order for
submission of any document or material, the application of provisional measures
for the protection of interests of the party during arbitration proceedings, or
the giving of a preliminary decision on any question of law, an arbitrator may
file a petition requesting a competent court to conduct the said proceedings.
If the court is of the opinion that such proceedings could have been carried
out by the court if a legal action were brought, it shall proceed in compliance
with the petition, provided that the provisions of the Civil Procedure Code in
the part relating to such proceedings shall apply mutatis mutandis.
Section 19 . In the arbitration proceedings, a party may act on his
own behalf or authorize a person or persons or appoint one or more attorneys to
act on his behalf.
Section 20 . An award shall be made in writing, signed by the
arbitrator or the umpire, as the case may be, and shall clearly state the
reasons for all decisions. However, it shall not prescribe or decide on any
matters falling beyond the scope of the arbitration agreement or the relief
sought by the party, except in fixing the fees, expenses or remunerations of
the arbitrator or umpire under Section 27, or in case where the award is
rendered in accordance with the agreement or the compromise between the
parties.
Section 21 . Except where the parties have agreed otherwise, an award
shall be rendered within one hundred and eighty days from the day on which the
last arbitrator or umpire was appointed.
The parties may agree to extend the period of one hundred and eighty days or
the period otherwise agreed upon under paragraph one. If an agreement cannot be
reached, either party, an arbitrator or umpire may file a petition with a
competent court and the court shall have the power to order the extension of
the said period as it deems appropriate.
No party may challenge the execution of an arbitral award on the grounds
that the arbitrator or the umpire has failed to render the award within the
time prescribed under paragraph one or paragraph two unless he has protested
such failure in writing to the arbitrator or the umpire within fifteen days
from he expiration of the period under paragraph one or paragraph two and prior
to the submission of a copy of the award to the said party.
Copies of the award so rendered shall be sent to all the parties concerned
by the arbitrator or the umpire.
Section 22 . Subject to Section 23 and the arbitration agreement, the
arbitral award shall be final and binding on the parties when a copy thereof
has been sent to the parties under Section 21 paragraph four.
When an arbitral award contains an insignificant error or mistake, if the
arbitrator or umpire thinks fit or upon the application of any party concerned,
the arbitrator or umpire may correct such error or mistake.
Section 23 . In case where a party refuses to comply, the arbitral
award may not be enforced unless the other party files a request with a
competent court for a judgement confirming the award. The request shall be
filed within one year from the date of sending the copy of the award to the
parties under Section 21 paragraph four.
Upon receipt of the request under paragraph one, the court shall hold an
enquiry and give judgement without delay, provided that the party against whom
the award is rendered had an opportunity to challenge the request.
Section 24 . In case where the court is of the opinion that an award
is contrary to the law governing the dispute,is the result of any unjustified
act or procedure or is outside the scope of the binding arbitration agreement
or relief sought by the party, the court may deny the enforcement of the award.
In case where an award contains an insignificant error and may be corrected,
such as erroneous calculation or erroneous reference to any person or property,
the court may correct the error and give judgement for the enforcement of the
corrected award.
Section 25 . Unless otherwise provided in the arbitration agreement,
a competent court under this Act is the court having jurisdiction over the
place where the arbitration proceedings take place, having jurisdiction over
the domicile of a party or the court which has jurisdiction over the dispute
submitted for arbitration.
Section 26 . No appeal shall lie against the order or judgement of
the court unless :
(1) There is an allegation that
the arbitrator or umpire did not act in good faith or that fraud was committed
by any party;
(2) The order or judgement is contrary to
the provisions of law governing public order ;
(3) The order or judgement is not in
accordance with the arbitral award ;
(4) The judge who held the enquiry of the
case has given a dissenting opinion or has certified that there are reasonable
grounds for appeal; or
(5) It is an order concerning the
provisional measures for the protection of interests of the party pending
arbitration proceedings under Section 18.
Section
27 . Unless
otherwise agreed in the arbitration agreement, the fees and expenses incidental
to arbitration proceedings and the remunerations for arbitratoror umpire,
excluding attorney's fees and expenses, shall be in accordance with that
stipulated in the award of the arbitrator or umpire, as the case may be.
However regardless of what has been agreed in the arbitration agreement or
stipulated in the arbitral award, the said fees, expenses or remunerations may
be reviewed and adjusted by a competent court, should it deem appropriate,
basing upon the principle of reasonableness.
In case where the said fees,
expenses or
remunerations
have not been fixed in the award, any party, the arbitrator or umpire may
petition a competent court for a ruling on the arbitration fees, expenses and
remunerations for the arbitrator or umpire.
Section 28 . Foreign arbitration means an arbitration conducted
wholly or mainly outside the Kingdom of Thailand and any party thereto is not
of Thai national.
Section 29 . A foreign arbitral award shall be recognised and
enforced in the Kingdom of Thailand only if it is covered by the treaty,
conventionor international agreement to which Thailand is a party, and it shall
have effect only as far as Thailand accedes to be bound.
A foreign arbitral award which is covered by a treaty, convention or
international agreement to which Thailand becomes a party after the date of
entry into force of this Act may be recognised and enforced in the Kingdom of
Thailand under this Act, subject to the conditions prescribed by the Royal
Decree.
Section 30 . A party seeking to execute a foreign arbitral award
under Section 29 may file a request with a competent court within aperiod of
one year from the date of the sending of a copy of the award to the parties
under Section 21 paragraph four.
The provisions of Section 23 paragraph two shall apply mutatis mutandis to
the court proceedings.
Section 31 . An applicant for a judgement on foreign arbitral award
shall produce the following documents :
(1) Original copy of the
award or a certified copy thereof ;
(2) Original copy of the arbitration
agreement or a certified copy thereof ;
(3) Translationin Thai of the award and
arbitration agreement which must be certified by a sworn translator, an officer
of the Ministry of Foreign Affairs, a diplomatic delegate or a Thai consul.
Section
32 . An
application for the execution of a foreign arbitral award under the auspices of
the Convention for the Execution of Foreign Arbitral Awards, signed at Geneva,
26 September 1927, shall be sanctioned by the court if the party applying for
the execution can prove that the award fulfills all the following conditions :
(1) The award has been made in a territory of one of
the High Contracting Parties to which the Convention for the Execution of
Foreign Arbitral Awards, signed at Geneva, 26 September 1927 applies, and
between persons who are subject to the jurisdiction of one of the High
Contracting Parties;
(2) The award has been made by virtue of an
arbitration agreement sanctioned by the Protocol on Arbitration Clauses, signed
at Geneva, 24 September 1923 ;
(3) The award has been made in pursuance of
an arbitration agreement which is valid under the law applicable thereto ;
(4) The award has been made by the Arbitral
Tribunal provided for in the arbitration agreement or constituted in the manner
agreed upon by the parties ;
(5) The award has been made in conformity
with the law governing the arbitration procedure ;
(6) The subject matter of the award is
capable of settlement by arbitration under Thai law ;
(7) The award is binding and final in the country
in which it has been made ;
(8) The recognition or enforcement of the
award is not contrary to Thai law or public policy or good morals.
Section
33 . The
court may refuse recognition and enforcement of the award under section 32 if
it appears to the court that :
(1) The award has been annulled in the country in which
it was made ;
(2) The party against whom it is sought to
use the award was not given notice of the arbitration proceedings in sufficient
time to enable him to present his case; or that, being under a legal
incapacity, he was not properly represented; or
(3) The award does not deal with all the
differences submitted to arbitration by the parties or contains decisions on
matters beyond the scope of the arbitration agreement.
Section
34 . An
application for the execution of a foreign arbitral award under the auspices of
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
done at New York, 10 June 1958, may be denied by the court, if the party
against whom the execution of the award is sought can prove that :
(1) Any party to the arbitration agreement was, under
the law applicable to him, under some incapacity ;
(2) The arbitration agreement is not valid
under the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made ;
(3) The party against whom the award is
invoked was not given proper notice of the appointment of the arbitrator or of
the arbitration proceedings or was otherwise unable to present his case ;
(4) The award contains decisions on matters
beyond the scope of the submission to arbitration, provided that, if the
decisions on matters submitted to arbitration can be separated from those not
so submitted, that part of the award which contains decisions on matters
submitted to arbitration may be recognised and enforced ;
(5) The composition of the arbitral
authority or the arbitral procedure was not in accordance with the agreement of
the parties, or, failing such agreement, was not in accordance with the law of
the country where the arbitration took place; or
(6) The award has not yet become binding on
the parties, or has been set aside or suspended by a competent authority of the
country in which, or under the law of which, that award was made. If merely an
application for the setting aside or suspension of the award has been made to a
competent authority, the court where the enforcement of the award is sought
may, if it deems appropriate, adjourn the decision on the enforcement of the
award and may also, on the application of the party claiming enforcement of the
award, order the other party to give suitable security.
Section
35 . The
court may refuse recognition and enforcement of the award under Section 34 if
it appears before the court that the subject matter of the dispute is not
capable of settlement by arbitration under Thai law, or that the recognition or
enforcement of the award would be contrary to the public policy or good morals
or the principle of international reciprocity.
Section 36 . The provisions of this Act shall not prejudice the
validity of the arbitration agreements and arbitration proceedings which have
been carried out prior to the date of entry into force of this Act.
COUNTERSIGNED :
GENERAL PREM TINSULANONDA
PRIME MINISTER
Published in the Government Gazette, Volume 104, Part 156, dated 12th August B.E.2530 (1987).
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