THAC Journal

Public Policy as a Ground for Refusing Recognition and Enforcement of Arbitral Awards

2024-01-23T16:52:44+07:00

One of the essential factors that attract parties in dispute to opt for arbitration is the decisive characteristics of the Finality of the arbitral award, which prevent any subsequent appeals. Resulting in the overall timeframe of the arbitration process offers a more accelerated period compared to the judicial process. Nonetheless, the swiftness of the arbitration procedure remains a topic of discussion, especially when the arbitral awards are not recognized or enforceable. The violation of policy is often cited as a ground for refusing the recognition and enforcement of arbitral awards.

This article aims to highlight the nuanced understanding of public policy within both national and international contexts. It will analyze issues related to public policy as a ground for refusing recognition and enforcement of arbitral awards, drawing insights from precedent cases from Thai courts and international courts. Subsequently, it will propose an interpretative framework for public policy that has recognized the progressive nature of arbitration. The aim is to enhance the efficiency of arbitration, ensure legal compliance, and promote international trade and investment arbitration.

Suitability and Necessity of Resolving Disputes Relating to Petroleum Exploration and Production and Carbon Storage Investment and Operation through Arbitration in an Era of Energy Transition

2024-01-23T17:04:47+07:00

Dispute resolution through arbitration under the Petroleum Act B.E. 2514 (1971) is deemed to be a suitable and necessary means to attract investment and operation in the exploration and production industry. The government’s commitment to refrain from unilaterally change rights and benefits of a petroleum concessionaire of a production sharing contractor must be accompanied by a dispute resolution mechanism that is neutral, less politicized, is vested with expertise on petroleum operation. In relation to dispute relating to greenhouse gas storage activities carried out by a petroleum concessionaire of a production sharing contractor under Section 23 of the Petroleum Act B.E. 2514 (1971) should also be resolved by arbitration. This is because arbitration can serve a neutral dispute resolution venue that is conducted by experts. The dispute resolution process can be expedited and is capable of promptly responding to an emergency incident especially in the case of leakage of the stored greenhouse gases. In addition, arbitrators can be required to apply laws and rules that have been developed to reflect emerging and ongoing changes in climate change technologies and associated risks.

DISPUTE RESOLUTION MECHANISM FOR PUBLIC-PRIVATE PARTNERSHIP CONTRACTS IN THAILAND: THE NEED FOR ALTERNATIVE DISPUTE RESOLUTION?

2024-01-23T18:28:44+07:00

This article explores the suitability of using litigation as a method of resolving disputes under public-private partnership contracts in Thailand. It concludes that court litigation has a number of key limitations for resolving disputes under PPP contracts such as the risk of having parallel dispute proceedings in PPP projects, the lengthy process of dispute resolution, parties’ loss of control over the dispute, as well as privacy and confidentiality issues. As an alternative, the article suggests using alternative dispute resolution to overcome these limitations. However, alternative dispute resolution still has its own set of challenges in resolving disputes under public-private partnership contracts given the current legal framework and government policies in Thailand.

THE SEARCH FOR RELIEF IN PROVISIONAL MEASURES

2024-01-24T10:57:44+07:00

The absence of an express power of arbitral tribunals to grant interim measures raises a question if this is precluded under Thai arbitration law. The practice of Thai arbitral institutes to include such a power for the issuance of interim measures may be explained by an inherent authority of arbitral tribunals. The article questions this proposition of an inherent power of arbitral tribunals to order interim measures where the applicable curial law is Thai law. The argument made is that neither the arbitration law nor developments to arbitration rules show traces of an implied power of the tribunal. The residual position of an exclusive competence of Thai courts for interim measures of protection potentially undermines the fairness and efficiency expected from arbitration proceedings. In such circumstances, an amendment to the arbitration law to expressly confirm the power of arbitral tribunals to order interim measures and the recognition and enforcement thereof provides an important safeguard against frustrating the arbitral process.

Setting Aside Arbitral Awards in Singapore: Studies of Recent Cases

2024-02-29T13:34:59+07:00

Once an arbitral award is issued by an arbitral tribunal, the award is final and binding on the parties to the dispute, in the same way as a court judgment is final and binding in a lawsuit. Needless to say, this does not bode well for the party in whose favour the award is made against, who may be of the view that the award should not have been made the way it was for some reason. In which case, the party may apply to have the arbitral award set aside.

The article reviews some recent applications to the Singapore courts to set aside Singapore-seated arbitral awards, and in particular the reasoning of the Singapore Courts in reaching decisions on whether or not to set aside. We hope that this article will offer practical guidance to Thai legal practitioners, Thai legal counsel and THAC arbitrators and tribunals.

Consumer Arbitration

2024-02-29T13:05:20+07:00

This article compares four jurisdictions and their differing approaches to consumer arbitration. This particular subject raises questions of access to justice, fairness, and public policy. As stated by the Chartered Institute of Arbitrators[1] the issues with regard to consumer arbitration are:

the imbalance between the parties in terms of resources; and
the ability to afford professional help for the presentation and making of legal cases.

The jurisdictions focussed on in this article are (i) the United Kingdom, (ii) the European Union, (iii) the United States of America, and finally (iv) Thailand.

For each jurisdiction, statutory provisions are considered, as well as case law or legal analysis when the jurisdiction in question does not have a precedent case. The article therefore demonstrates the variance in approaches a court might take in London compared to Verona and highlights similar themes faced by all consumers when engaged in arbitration.