Setting Aside an Arbitral Award: Drawing a Line Between Jurisdiction and Admissibility

Abstract

As a limited recourse, arbitral awards can be challenged by losing parties and can be set aside by the seat courts if the challenge is successful.  In Thailand, the grounds for challenge are limited to those elaborated in Section 40 of the Thai Arbitration Act B.E. 2545 which is a mirror image of Article 34 of Model Law. The challenge based on such grounds is generally classified as jurisdictional challenge. The seat courts may also set aside arbitral awards on arbitrability or public policy issue.  Because of limited grounds for challenge, in the past losing parties who had sought to challenge arbitral awards but had no valid grounds to do so had attempted to frame their arguments as jurisdictional challenge, even though such arguments were a challenge on admissibility.  Over the last decade, a line has been drawn between jurisdiction and admissibility by legal scholars and the courts around the world, thereby giving clear guidance to the tribunals and the courts to deal with the pre- and post-award challenges.  In Thailand, this dividing line is still unclear.   The writer wishes to make this global trend known to the Thai arbitration community.