International arbitration is the best way to resolve cross border disputes. If the arbitration is conducted by a truly international arbitration institute, such as the Singapore International Arbitration Centre or the Thailand Arbitration Centre (THAC), the arbitration can be conducted in English, provided the arbitrator and counsel are capable of handling the proceedings in English. And this can be a serious challenge in Thailand.
It requires finding a lawyer with strong enough English language skills so that he or she can act as an effective and persuasive advocate. This is a difficult enough feat in an English-speaking country. Simple being able to speak English does not make someone an effective advocate no matter how times he or she has watched “My Cousin Vinny” or “12 Angry Men”. Nor does it denote familiarity with legal concepts. It was so challenging that one Thai arbitral institute pressed parties to agree to change the language of the arbitral proceedings to Thai, claiming it could not qualified personnel capable of handling complex proceedings in English.
The THAC is intended to help address that gap in Thailand. Thai laws, however, had, and may still have, an additional challenge. Thai law prohibited foreign representatives (advocates) from acting in arbitration proceedings governed by Thai law and conducted in Thailand. Foreign arbitrators appointed to adjudicate arbitration proceedings in Thailand were required to go through the laborious process of obtaining a work permit to do so. This did not make Thailand a popular venue for arbitration hearings.
Nor did the guerrilla tactics employed by some local parties in Thailand endear Thailand to Southeast Asia’s arbitration community. In one notorious case, a recalcitrant domestic party disrupted a hearing in Thailand by having immigration officials attend the hearing. This led to the abrupt abandonment of the hearing. Unfortunately, these sorts of irregular tactics are not unusual in Thailand.
But there are moves to address this problem. On 24 April 2019, the Thai Arbitration Act was amended to introduce provisions specially allowing foreign representatives (advocates or lawyers) to act in “arbitrations conducted in Thailand by a Thai government agency”. This change, however, is still subject to Thai work permit laws. In other words, foreign arbitrators and representatives can now apply for certificates for consideration by Thai immigration officials (the THAC or the Thai Arbitration Institute, in practice).
On receipt of that a certificate and while it is current and, importantly, subject to Thai immigration law, a foreign arbitrator or representative will be permitted to reside in Thailand and entitled to perform their duties in Thailand and may be issued a work permit. This is less than ideal, but it is a step in the right direction.
About the Author:
Douglas is a native English-speaking lawyer, qualified in the U.S. (an active member of the California Bar), who holds both Thai and U.S. citizenship. He has over 35 years’ experience handling disputes in the U.S. and Southeast Asia. He has worked in Thailand for over 20 years.
In the U.S., he routinely handled arbitration matters and took cases to trial (including representation of Bank of America in a seven-week jury trial). He has assisted U.S. counsel in conducting U.S. discovery in Thailand and collecting evidence in Thailand for proceedings in the U.S. He understands U.S discovery and evidence rules and what is required for admissible evidence in U.S. proceedings.
In Thailand, he has supervised numerous contentious matters and represented parties in arbitration proceedings before such arbitral institutes as the International Chamber of Commerce. Doug has also supervised cross border litigation matters, including one matter where a creditor had security in South Korea, the Philippines, and California. He is uniquely qualified to handle contentious matters and disputes in Thailand and Southeast Asia.