Trade disputes can impact economic activity and employment in Thailand. These disputes can arise over issues such as:
When negotiations are unable to resolve a dispute, the WTO provides for a mechanism for resolving trade conflicts in a transparent and rules-based manner. This article will examine these mechanisms. Disputes are resolved through a process of negotiation, consultation and dispute settlement.
Alternative Dispute Resolution
ADR (alternative dispute resolution) is a possible solution to civil and commercial disputes without involving a lengthy court process. While it is not a new idea, it has been increasing in popularity in Thailand because of an overburdened court system.
Mediation is a non-binding process where parties discuss their issues with a mediator. The mediator then facilitates communications between the parties until an agreement is reached. The mediation process can be initiated by one party or mutually agreed upon by both parties.
In some instances, a court may mandate mediation. This is commonly the case for labor cases. The department of labor sends these cases to a conciliator who will try to resolve the issue between the parties. These conciliation lawyers are trained in bringing conflicting parties together in a peaceful resolution to avoid expensive and lengthy litigation.
Litigation
While litigation might seem like the only available option, it can be extremely costly and time-consuming. Furthermore, the result of a court case can be difficult to predict. In Thailand, it is not uncommon for even a relatively uncomplicated trial to last for more than a year from the date the action was brought to court.
As such, it is highly recommended that disputing parties consider pursuing alternative dispute resolution options. One possible alternative to litigation is arbitration. Arbitration allows the disputing parties to choose a third party to make a ruling on their dispute and can select the laws that will govern the decision. Additionally, the arbitration process is usually much faster and less expensive than traditional court proceedings. Furthermore, the arbitrator’s decision is binding and can be enforced in most countries around the world.
Arbitration
Although a relatively new method of dispute resolution in Thailand, arbitration has become a possible alternative to litigation. Unlike a court-supervised mediation, which is typically part of the lawsuit process and subject to the court’s trial docket, a mediated arbitration proceeding is usually held in private, allowing confidential information to be exchanged and settled.
In addition, a mediated arbitration can provide the opportunity to obtain interim remedies (e.g., injunctions) which are difficult to get through a traditional litigated case.
In addition, a judicial arbitration panel can be composed of judges with special expertise in intellectual property and international trade matters. Thus, the arbitral process can provide an attractive alternative to a traditional court case for foreign investors who face challenges in using the Thai court system for their disputes. Moreover, an arbitration award is generally binding on the parties. This is unlike a contested judgment, which may be appealed in limited circumstances. This is particularly attractive for companies that want to preserve the confidentiality of their disputes.
Conciliation
Generally, courts and government agencies organize conciliation for parties in disputes. This is a voluntary process that brings the disputing parties together and looks for common ground to help resolve the dispute. In addition to being a possible alternative dispute resolution option, conciliation is usually less expensive than a trial.
However, despite its benefits, the main obstacle is the lack of unity among private sector organizations. This lack of cohesiveness makes it difficult for a group to present its case effectively.
In Thailand, a judge can refer the dispute to conciliation during pre-trial conference. The judge may also appoint a reconciler from outside the court to facilitate the mediation proceedings. Moreover, the law allows a judge to facilitate a reconciliation session at any time during the course of a case. This is a welcome development because the Thai court system is facing an immense backlog of cases. This is mainly due to the incorporation of arbitration clauses into the case filing process.