Dispute Resolution in Thailand
Dispute Resolution in Thailand is a process driven by the courts. Court-annexed mediation, for example, is encouraged by the courts to reduce case backlogs.
Moreover, the law now provides for the consolidation of arbitrations which are correlated. This new procedure aims to enhance efficiency and prevent incongruity in judicial interpretations.
Arbitration
As Thailand continues to see a rapid increase in public and private investments, new companies and private real estate acquisitions, it is inevitable that disputes will arise. The judiciary has taken steps to ease the agglomeration of court dockets by encouraging the use of Alternative Dispute Resolution (ADR).
Arbitration is one form of ADR in which disputes are settled in a less adversarial manner than in a traditional trial. It is also more cost effective, faster and more convenient than a trial.
Most arbitration proceedings in Thailand are conducted through TAI, the main commercial arbitration institute in Thailand. TAI is a government agency overseen by the office of the judiciary, but does not interfere in the deliberations or decisions of arbitrators.
Aside from TAI, the Department of Labor sends labor disputes to a conciliator to try and settle the dispute before proceeding to a full court trial. Recent amendments to the Civil Procedure Code have made it easier for prospective litigants to apply for a court-supervised mediation before filing their statement of claim.
Conciliation
The conciliation process in Thailand is a more informal, nonadversarial method of dispute resolution. It is a court-supervised mediation process in civil matters where the court deems it appropriate or with the consent of the parties.
It is a faster and less hostile process than a traditional trial. However, it is not as binding as a final judgment. The court merely facilitates communications to help parties reach an agreed-upon resolution.
As an alternative to litigation, arbitration is commonly used in commercial disputes involving foreign companies in the banking, finance and technology industries. This is partly due to the fact that disputes relating to these industries require expertise in international commercial arbitration and knowledge of cross-border transactions. Aside from arbitration, conciliation is a suitable way to resolve disputes in these sectors as it involves discussion with the opposing party with the aim of finding mutually acceptable solutions. This method also saves time and money. It is a popular option for resolving smaller claims as it can be more cost effective than litigating such claims in court.
Mediation
The number of litigations has risen in recent times, resulting in the clogging of court dockets. To address this issue, the courts have begun to encourage parties to use alternatives to litigation such as mediation and conciliation.
The process of conciliation is similar to mediation but is less structured and involves the facilitation of communication between disputing parties in order to reach a mutually-acceptable settlement. It is also a non-binding procedure until and unless the parties agree to enter into a binding arbitration agreement.
The labour law in Thailand is complex, and disputes arising from employee-employer relationships are commonplace. These include issues with terms of employment, overtime payment, and relocating of workplaces. It is therefore essential for employers to incorporate a dispute resolution clause in their contracts with employees. Moreover, the courts often require parties to attempt to resolve the dispute through mediation before they are allowed to proceed to trial. This is called court-annexed mediation.
Litigation
Litigation is a common method of dispute resolution in Thailand. The country has a combination of both Western and local legal procedures, including the use of public prosecutors in criminal cases.
Civil claims are generally contested by a Court of Justice, although more specialised courts are available for certain subjects, such as tax, labour, intellectual property and insolvency. The burden of proof in criminal matters is a high standard of proof beyond reasonable doubt, whilst in most civil cases the test is based on preponderance of evidence.
Regardless of the type of case, it is generally recommended that a claimant seek alternative dispute resolution before proceeding to trial. In addition, prior to commencing litigation, plaintiffs should consider the nature and extent of defendant assets in Thailand and abroad as a monetary judgment may be of limited value if the defendant has little or no recoverable assets.