Thailand offers a range of options for dispute resolution. These include mediation, arbitration, and conciliation.
Mediation involves disputing parties meeting with a neutral mediator to reach their own voluntary settlement. It is commonly used in family, civil, and small claims court cases.
Arbitration is a private dispute resolution process where one or more arbitrators make a binding decision outside of the court system. It is often used in international trade and investment contracts.
Litigation
Litigation is a common method of dispute resolution in Thailand. As a rule, litigants are allowed to appeal decisions at the Court of Appeal and Supreme Court, providing for checks and balances within the judiciary system.
When a case goes to trial, the tribunal hears arguments from each party and questions witnesses and experts on the facts used as support for a claim or defence. The tribunal will then issue a decision, which is binding on both parties. Costs may be awarded to the successful party.
The law in Thailand permits class action lawsuits as long as certain conditions are met. Among other things, the class action must be filed at the court that would have jurisdiction over the defendant’s domicile.
While there is no specific requirement that prospective litigants take alternative dispute resolution measures before filing a case, courts have introduced the practice of charging non-refundable court fees to encourage mediation and arbitration. Furthermore, parties are permitted to include confidentiality clauses in their settlement agreements, stipulating that the details of their settlement remain confidential.
Arbitration
Arbitration is relatively young as a mainstream process for dispute resolution in Thailand, but it is gaining in popularity. Case statistics bear this out, and the current arbitration law – set out in the Arbitration Act 2002 – is immediately recognisable as a model law, having been drawn up from international best practice.
The two main commercial arbitral institutions are the Thai Arbitration Institute (TAI) and the Thai Board of Trade, each with its own arbitration rules. In addition, parties may agree to ad hoc arbitration in the form of a tribunal established by agreement.
In the context of the United Nations Convention on the Recognition and Enforcement of Arbitral Awards, a judgment rendered by an arbitrator can be enforced in any country in which that court has jurisdiction, provided that the award has been deposited with the competent court. This is important, as it means that an arbitration award can be enforced more quickly than a court judgment, and it also means that a foreign investor in Thailand can enjoy a markedly greater level of legal certainty with respect to disputes that are the subject of an arbitration contract.
Mediation
Out of court mediation is gaining momentum in Thailand as it becomes increasingly recognized as an efficient alternative to litigation. The court system encourages mediation and the ADR Office provides domestic and international training to facilitate the process. A case may be referred to mediation by the judge before a lawsuit is filed or at any time before or after judgment.
Mediation is often utilized in civil disputes such as commercial, family, labour, and intellectual property cases. It is a collaborative process in which a neutral third party facilitates discussions between disputing parties and assists them in reaching a mutually agreeable solution to their dispute. If mediation is successful, a settlement agreement will be drafted by the mediator and signed by both parties. Such agreements are binding and enforceable as a court judgment.
Unlike arbitration, which is more formal and structured than conciliation, conflicting parties in conciliation proceedings have control over many aspects of the ADR process. They are able to determine the rules of procedure, choose the arbitrator or arbitrators, and draft a settlement agreement.
Negotiation
The ability to reach a compromise is paramount in negotiations. As a result, it’s important to remain calm and avoid becoming emotional during the process. In addition, it’s a good idea to engage in small talk and create a friendly atmosphere during negotiation. It may also be helpful to bring a mediator to the table in extreme situations.
Negotiation is a common form of dispute resolution in Thailand and provides an alternative to traditional court proceedings. It can be quicker and more cost effective than litigation, while providing greater flexibility. Alternative dispute resolution methods are also typically private and less public than traditional legal proceedings, reducing the risk of public disclosure.
Thai people employ a polychronic work style and will often pursue multiple goals in parallel during negotiations. While this may seem chaotic to negotiators from a more monochronic culture, it can be a valuable technique in finding creative solutions. It is crucial to listen closely to your counterpart during the negotiations and not take things personally if they become defensive or hostile. A strong understanding of the cultural context will be necessary to negotiate effectively in Thailand.
Administrative Disputes
In Thailand, administrative law is a vital framework for regulating government actions and protecting private interests. Foreign businesses with government contracts or disputes with public agencies must have expert legal guidance to ensure compliance with Thai regulations and achieve favorable outcomes in litigation and dispute resolution. Engaging a lead law firm in Bangkok is a crucial step for business owners with administrative matters in the country.
The court process is largely adversarial, but in some cases courts adopt an inquisitorial system. The Supreme Court, for example, ruled in 2005 that the District Chief was liable for damages caused by his refusal to register ethnic minorities in a national database and issue identification cards.
The court’s inquisitorial system also encourages dissenting opinions among judges, resulting in high-quality judgments that are fair to all parties. In addition, the court system offers out-of-court mediation to reduce its case load and improve access to justice for the people.