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Arbitration in Thailand: Part 4: The Arbitrators
One of the advantages of arbitration proceedings over
domestic court proceedings is the opportunity for the parties to select the
person(s) that will decide on the issue in question, the arbitrator(s). In
arbitration proceedings the parties are enabled to nominate arbitrators that
have a certain specialized and up-to-date know-how that might be required to
understand the technical background of the issues in question.
The number of arbitrators forming the tribunal must be an uneven number in
accordance with Section 17 of the Arbitration Act of Thailand (2002)(the “Act”).
If the parties nominate an even number, the appointed arbitrators will need to
choose another arbitrator to create an uneven number. If the parties fail to
agree on the number of arbitrators the Section 17 further provides that a
sole arbitrator will be appointed. In Thailand, exactly how the arbitrators are
appointed is up to the parties and generally the parties will agree that the
rules of the institute conducting the arbitration dictate this procedure;
failing which, the Act would dictate this procedure.
Section 19 of the Act requires that the arbitrator be “independent and
impartial” and possess the particular qualifications, if any, agreed by the
parties. The interpretations of the terms “independent" and "impartial” are
highly controversial and subject to a dispute themselves. In general, it can be
said that the absence of close relations between an arbitrator and a party means
the arbitrator is independent; whereas "impartiality" refers to the arbitrator’s
lack of prejudice with respect to a party or the matter in dispute. Such
definitions are, however, still very vague.
Some guidance in this area has been provided by the International Bar
Association (the “IBA”) its Guidelines on Conflicts of Interest in
International Arbitration (the "Guidelines"). While the Guidelines are
not legally binding, the standards they articulate are generally accepted and
parties and arbitrators often use and cite them when the assessment of an
arbitrator's independence or impartiality is at issue. A potential arbitrator
may, for example, turn to the Guidelines to determine what facts he is required
to disclose prior to accepting an appointment to act as an arbitrator.
Alternatively, for example, a party may turn to them to determine under what
circumstances they can nominate or challenge an arbitrator.
Some of the most common issues that need to be assessed when determining whether
or not an arbitrator is adequately independent and impartial are:
• the relationship between a party and the arbitrator;
• the relationship between a party and an arbitrator's law firm;
• the relationship between an arbitrator and a party's counsel;
• prior appointments as an arbitrator (repeated appointments by one party);
• ex-parte contacts immediately prior to appointment;
• non-disclosure of any of the above.
It must be noted that none of the above in itself determines that a potential
arbitrator is not independent or not impartial. The determination of such will
always depend on the circumstances in each individual case. And even no issue
raises sufficient doubt of independence or impartiality at one stage of the
arbitration proceedings, the arbitrator is duty bound to disclose the occurrence
of any such later in the proceedings for the relevant parties' consideration.
In case a party believes that an appointed arbitrator is not independent or
impartial, such party has the right to challenge that arbitrator. The procedure
for challenging an appointed arbitrator is dictated by the relevant arbitration
institute's rules and the Act. Where it is decided that an arbitrator was not
independent or impartial at the time of appointment or was no longer independent
or impartial later in the proceedings, that arbitrator will then be removed from
the arbitral tribunal and replaced.
With regard to the arbitrator's independence and impartiality it is noteworthy
that Section 23 of the Act imposes (somewhat controversially vis-à-vis most
other jurisdiction's arbitration legislation) criminal sanctions on any
arbitrator for "[...] wrongfully demanding, accepting, or agreeing to accept an
asset or any other benefit for himself or anyone else for doing or omitting to
do any act in his duties [...]"
Choosing the right arbitrator with the right skill set who will make the right
decisions, is among the most important and sometimes also the most difficult
decisions in the arbitration proceedings. Whether the right choice is someone
with the right formal legal training, skills and experience or someone with a
specialized or "hands-on" expertise will depend on the dispute that gave rise to
the claim. Competent legal counsel with solid arbitration experience will not
only be able to help the parties in making the right choice in relation to the
proposed arbitrator, but will also be able to identify issues that makes a
challenge of an arbitrator advisable if necessary.
_______________________________________________________________________________________
DUENSING KIPPEN is a multi-service boutique law firm specializing in real estate
and corporate/commercial transactional matters as well as arbitration
proceedings arising therefrom and is the only such firm in Thailand that also
compliments its transactional expertise with a core tax law practice. DUENSING
KIPPEN can be reached at: [email protected] or for more information
please visit them at: www.dktaxandlaw.com
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Arbitration in Thailand: Part 3: The Advantages to Arbitration
Arbitration proceedings offer various important advantages to
the normal local court proceedings in Thailand.
To resolve business related disputes quickly and with finality is advantageous
to the business community. To say the least, normal court proceedings are not
known for achieving either of these desired ends, especially in Thailand. Thus,
the fixed time frame to achieve an award outlined by the various arbitration
service providers, is one of the most important advantages of arbitration over
ligating the dispute in normal court proceedings. Furthermore, unlike a normal
court ruling, arbitration awards cannot be challenged on the "material part" of
the case. In other words, the award cannot be appealed on the basis of its
determination on factual or legal issues. For example, in Thailand, the court
that will need to enforce an arbitration award, whether it is an award in an
international or domestic arbitration proceeding, is only allowed to set aside
such ruling in the following, very limited, cases outlined in Section 40 of the
Arbitration Act (2002)(the “Act”):
- A party to the arbitration agreement was under some legal incapacity.
- The arbitration agreement is not binding under the governing law agreed to by
the parties, or in the absence of such agreement, the laws of Thailand.
- The applicant was not given proper advance notice of the appointment of the
arbitral tribunal, or of the arbitral proceedings, or was otherwise unable to
defend the case in the arbitral proceedings.
- The award deals with a dispute outside the scope of the arbitration agreement,
or contains a decision on a matter outside the scope of the agreement. If the
part of the award that lies outside the scope of the agreement can be separated
from the balance of the award, then the court will only set aside that part.
- The composition of the arbitral tribunal or the arbitral proceedings was not
in accordance with the arbitration agreement or, unless otherwise agreed by the
parties, the Arbitration Act.
- The award deals with a dispute not capable of settlement by arbitration under
the law.
- The recognition or enforcement of the award would be contrary to public order.
The enforcement, or rather the "enforceability", of an arbitration award is,
itself, another very important advantage of arbitration over normal court
proceedings. Unlike foreign court judgements, all countries that are part of the
1958 United Nations New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the "New York Convention") will enforce a "foreign"
arbitration award if that award was made in a country that is also a signatory
to the New York Convention. There are currently 144 signatories, including
Thailand, to the New York Convention. Section 41 of the Act states that “(...)
an arbitral award, irrespective of the country in which it is made, shall be
recognized as binding on the parties(...). In case where an arbitral award was
made in a foreign country, the award shall be enforced by the competent
court(...)”.
Turning to the proceedings itself, It is not uncommon that disputes between
parties require specialized knowledge to understand the nature of the dispute. A
local court judge may not have such knowledge. Arbitration proceedings, however,
provide the opportunity to the parties to have the dispute settled by a
specialist or practitioner who understands the issues surrounding the claim from
a practical point of view. In Thailand, this enhanced adjudicatory flexibility
is reflected in Section 19 of the Act which defines a qualified arbitrator as
one who is ”(...) impartial, independent and possess the qualifications
prescribed in the arbitration agreement (...)”.
Furthermore, the parties in an arbitration proceeding are not only able to
select their qualified arbitrator, but they also have the right to choose the
place and the language of the arbitration proceedings. For anyone doing business
in a foreign country, to select a convenient venue for the proceedings and to be
able to understand the proceedings without the necessity of a translator and to
be able to submit all documentation without having to translate them into a
foreign language are major advantages to settling disputes by arbitration.
Finally, one more procedural advantages of arbitration over normal court
proceedings relates to "Service of Process" or how one party or the adjudicator
formally notifies the other party of matters in the proceeding, for example,
that the case has been filed commencing the proceedings. Service of Process in
court proceedings is time consuming and can be quite expensive. In Thailand,
this is particularly true in disputes involving a defendant who is located
outside of Thailand which requires lengthy notification process involving the
Thai Ministry of foreign affairs. In arbitration proceedings, however, it is not
necessary to involve any government agency. The arbitration service provider is
able to service the defendant directly.
Duensing Kippen is a multi-service boutique law firm specializing in real estate
and corporate/commercial transactional matters as well as arbitration
proceedings arising therefrom and is the only such firm in Thailand that also
compliments its transactional expertise with a core tax law practice. Duensing
Kippen can be reached at: [email protected] or for more information
please visit them at: www.dktaxandlaw.com.
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Philippine parliament pushing to legalize divorce
The Philippines is a
traditional Catholic country where divorce is still illegal, the government
hopes to change that.
By Madonna Virola, Manila, Philippines
The Philippines and the Vatican are the only two places
in the world where divorce is prohibited, but with a parliamentary push for
a divorce bill the Vatican might be left alone. Inspired by events in Malta,
which legalized divorce this year, the Filipino government is pushing for
the same.
Congresswoman Luzviminda Ilagan helped draft the first divorce bill in 2004
and says it’s time to revisit the issue again.
“There are a lot of unhappy marriages and a lot of women who suffer from
repeated domestic violence. This is the reality we face,” says Llagan.
According to Llagan, police records in 2009 showed that 19 women were
victims of marital violence every day.
Under existing Filipino law, a marriage can be terminated or annulled but
it’s a long and costly process. Most people that want a divorce end up
legally separating, but this does not allow them to remarry. The proposed
bill is intended to allow couples to seek a divorce more easily if they meet
the stipulations for a legal separation, says Ilagan.
The bill would make violence, infidelity and abandonment all grounds for
annulment. “A couple can get a divorce if they’ve been separated for at
least five years or if they meet other criteria for legal separation. Why
not grant them a divorce so they can move on if they want to marry again,”
she says.
Single-parent Maria Estela Gaba has been trying to get a divorce since her
husband left her and says she would like to have the opportunity to remarry.
“Why not give a chance to others who are really sincere,” she says. “It
might just be that their first marriage didn’t work out.”
A poll by Social Weather Stations found that half of all Filipinos support
the legalization of divorce, but the influential Catholic Church remains
fiercely opposed to the revision. More than 81 percent of the country’s
population of more than 80 million is Catholic. Cannon lawyer Vic Uy is a
judge on the marriage tribunal which decides whether a marriage can be
annulled or not and says the church believes that divorce is immoral.
“It’s a no, no, no. It is very clear that marriage is a permanent union
between husband and wife from marriage till death,” he says.
According to women’s rights activists, the country’s male-dominated society
is insensitive to the needs of women who are conditioned to be “victims” and
“martyrs.”
But Father Melvin Castro, an executive secretary from the episcopal
commission of the Catholic Bishops Conference of the Philippines, disagrees.
“I’ve seen people whose marriages don’t work, but the women won’t marry
again because of their love for their children. A Filipino woman finds her
identity as a woman in being a mother,” he says.
If the divorce bill fails to get passed, the Philippines and the Vatican
will remain the only countries where divorce is prohibited. Father and
lawyer Vic Uy says this would make him a proud.
“I’d rather have the Philippines as the only state in the whole world to
have the distinction of having no divorce,” he says.
For Estela Gaba, it’s only a matter of time before Filipinos will be given
the right to divorce. “It will take time, but this will become a national
issue because every day cases of violence against women are increasing.
Debating this issue will benefit the next generation,” she says.
This article was first broadcast on Asia Calling, a regional current affairs
radio program produced by Indonesia’s independent radio news agency KBR68H
and broadcast in local languages in 10 countries across Asia. It is
published in conjunction with the Faculty of Mass Communications, Chiang Mai
University. You can find more stories from Asia Calling at
www.asiacalling.org.
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