Legal Problems in the Implementation of the Arbitration Act B.E. 2545 in Thailand

Abstract

This research aims to: (1) study the background, concepts, and theories related to Thailand’s arbitration process by comparing them with the principles of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), the UNCITRAL Model Law on International Commercial Arbitration, the Arbitration Act of the United Kingdom, and the Arbitration Act of the Republic of Singapore; (2) study and compare Thailand’s arbitration process with international regulations; (3) analyze the problems regarding the enforcement of the Arbitration Act B.E. 2545 that impede the efficiency and credibility of Thailand’s arbitration process; and (4) propose methods for reforming the laws to make them more appropriate and modern.

This study adopts qualitative research, studying the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration, the Arbitration Act of the United Kingdom, and the Arbitration Act of the Republic of Singapore, along with textbooks, academic articles, court decisions, research papers, and theses in both Thai and foreign languages. The aim of the study is to analyze and compare key issues to propose recommendations for improving Thai arbitration law.

The findings reveal that: (1) Theories and principles such as the theory of state sovereignty, contract theory, and the theory of autonomy-including party autonomy and contractual obligations-have not been appropriately applied in Thailand, resulting in a lack of flexibility in the arbitration process; (2) There is no clear provision concerning disputes that may prevent the initiation of arbitration proceedings under Section 40, paragraph two (2)(a) of the Act, leading to uncertain interpretations; (3) The rule on setting aside of arbitral award on the grounds that it is contrary to public order or good morals under Section 40, paragraph two (2)(b), lacks a clear interpretation and grants excessive discretion; (4) The provisional measures under Section 16 of the Act are ineffective because they rely solely on agreements between the parties and lack supporting mechanisms from the court; and (5) In comparison to the legal instruments that establish arbitration frameworks-such as the Arbitration Act of the United Kingdom, the Arbitration Act of the Republic of Singapore, the New York Convention, and the UNCITRAL Model Law on International Commercial Arbitration, it has been found that these instruments effectively promote arbitration processes in terms of the role of the courts, interpretation, public policy, and the enforcement of provisional measures. Thailand should adopt similar approaches, particularly by clearly defining exceptions for disputes, limiting the scope of public order under the rule of law, and enhancing the role of the courts in order to support provisional measures and align Thailand’s arbitration process with international standards.