ADR in Thailand:
A New Challenge*
is a new terminology of an old concept. Non aggressive, non-confrontational
approach to dispute settlement has been the teachings and practice of
eastern philosophers since time immemorial. It is only recently since
the method of ADR has been the subject of critical and scientific analysis.
Ironically it is the academics in the West who bring ADR, with its famous
‘win-win solution’ trademark to world attention. Society, commerce and
trade all over the world are the beneficiaries of alternative dispute
Thailand as well as everywhere in the world, ADR represents a refreshing
approach to litigation. It represents a new challenge to the legal profession.
This paper proposes to examine some of the lessons we have learned from
introducing or perhaps more accurately, reintroducing court-annexed ADR
into dispute resolution mechanism in Thailand.
Guidance on Court-Annexed Conciliation and Arbitration
to the English practice where the Lord Chancellor may issue Practice Directions,
the President of the Supreme Court in Thailand may issue Practice Guidance
of judges in order to achieve uniformity and fair dispense of justice.
Influenced by the much publicized use of ADR in the United States1,
in 1996, the President of the Supreme Court issued the Practice Guidance
on court-annexed conciliation and arbitration. 2The
Practice guidance may be summarized as follows:
In cases where the presiding judge is of the opinion that there is a reasonable
chance of amicable settlement between the parties, the court shall initiate
the conciliation process.
In cases where the conciliation fails and the issue in dispute involves
technical point of fact where the assistance of a neutral or an expert
may be helpful in the speedy resolution of the case, the court, with the
approval of the parties may appoint an arbitrator to rule on the matter
given. The award thus rendered by the arbitrator, if approved by the court,
shall be incorporated in the final judgment.
In cases where the conciliation fails and the presiding judge considers
that it might not be appropriate for him or her to continue sitting in
the case, he or she may withdraw from the case except where it is contrary
to the intention of both parties.
Each court may designate a special room for conciliation purpose. The
atmosphere shall be informal. The judge and the lawyers shall not put
on their gowns.
Where a speedy settlement is achieved, the court may consider returning
the court fees to the parties. At present the court fees stand at 2.5%
of the amount in dispute but not exceeding 200,000 baht (approximately
US$ 5,300.00) payable at the filing of the Claim. This is designed as
an incentive for settlement in certain cases.
is now practised by courts of justice throughout the country with encouraging
figures of success. Even cases at the appellate level may be settled by
conciliation. It is widely used in the Civil Courts in Bangkok, in the
civil jurisdiction of provincial courts throughout the country, in the
juvenile and family courts for cases concerning family law, in the Central
Labour court for cases of labour dispute and in the Ctntral Intellectual
Property and International Trade Court for cases of intellectual property
and international trade disputes.
Role of the Judge: Inquisitorial v. Adversary
the Thai legal system may be classified as belonging to the civil law
tradition whereby the German B rgerliches Gesetzbuch (BGB), the French
Code Napol on and the Japanese Civil Code played a dominate part in the
formation of its Civil and Commercial Code. The English common law had
a significant influence on the Thai Commercial law in particular on Book
III of the Civil and Commercial Code entitling Specific Contracts. On
the procedural side, with the influence of the English Inns of court and
legal educational institutions where Thai judges of earlier time were
exposed to, Thai procedural law may be described as adversary. This predicament
may raise some jurisprudential problem.
are two conflicting views as to the role of a civil court. The traditional
English view is that the court should play a passive role and leave the
conduct of the case to the parties; the court should act as an umpire
to see that the parties play the game of litigation according to its rules
and to give an answer at the end to the question ‘who’s won? The continental
view is that once the parties have invoked the jurisdiction of the court
it is its duty to investigate the fact and the law and give a decision
according to its view of the justice in the case with regard to any public
interest that may involved.
question to ask is if a judge on the bench attempt to lead a negotiation
towards settlement of the dispute, would he in any way be compromising
or be seen as compromising his role as a passive neutral?
truth is judges in Thailand have little or no difficulties on the problem
raised. The reason may be based on the fact that on the true analysis,
the Thai legal system is a blend between the civil and common law family.
Thai judges are familiar with conciliation. The Civil Procedure Code,
since its promulgation in 1935m prescribes in section 20 that the Court
shall have the power, at any stage of the proceedings, to attempt compromise
or conciliation between the parties on the issue in dispute.
Thai courts, when conduction a conciliation process, will depart from
their traditional passive role of a judge in the adversary system, to
the role of a more active judge in the inquisitorial system. However,
when the judge feels uneasy or inappropriate for him or her to continue
sitting in the case, he or she shall withdraw. Otherwise the judge may
be challenged on the group of bias. However, the instance is very rare.
The status of a judge, being a position of respect, may actually assist
the process of conciliation. In a case in the remote part of Thailand,
the plaintiffs and the defendants are brothers and sisters involving in
a bitter dispute on the matter of an inheritance where the father died
intestate. After some lengthy session of agreements and allegations, the
presiding judge, who acted as the conciliator, asked the parties in earnest.
“Do you folks still offer merits to your father?” Both parties answered
in an empathic “Yes”. It is common indigenous belief that when one’s elder
dies, the living relatives shall offer merits to the dead from him to
get on to a better life after death. The judge said in a loud voice. “Then
don’t bother to do any more merits. Your father cannot go anywhere. Actually,
he is crying and suffering at the moment because you lot are fighting-over
his assets. He cannot rest in peace because of you.” The dosage of “shock
therapy” did catch the attention of the parties and led to amicable settlement.
This hardly the role of judge in an adversary system. But the important
thing is that it works.
the process of conciliation, it is always helpful for the conciliator
to refrain from making a statement or opinion. It is always more prudent
to form a question than to make a statement. For example, You don’t suppose
to have any problems on the Statute of Limitation? I suppose you can justify
on the amount of damages claimed? Where does the burden of proof lie?
Some Techniques Used in Court-Annexed Conciliation
section 20 of the Civil Procedure Code3 which initiated court-annexed conciliation since 1935, has been amended
to incorporate further modern techniques in a conciliation. Three more
paragraphs are added as follows:
the purpose of conciliation, where the court deems appropriate or where
on request of a party, the court may order that the conciliation be conducted
behind closed doors in the present of all or any of the party with or
the court deems appropriate or where on request of a party, the court
may appoint a sole conciliator or a panel of conciliators to assist the
court with the conciliation.
and means of court-annexed conciliation, the appointment, powers and responsibilities
of conciliators shall be governed by Ministerial Regularions.4
section 19 of the Civil Procedure Code empowers the court for the purpose
of conciliation, to order litigants in the proceedings to be present in
court although legal representative is appointed. The sanction for disobeying
the court order to make a personal appearance is contempt of court. (section
some practical points used in court-annexed conciliation where judge acts
conciliator in Thailand.
is conducted in a conference room not in the court room. Formalities
are dispensed with. Secrecy is enforced. Public and the press are
barred from witnessing the conciliation proceedings.
agreement is made. Without prejudice condition is added to facilitate
the invention of options for compromise.
the law allows conciliation without Thailand Attorneys, in practice the conciliator
never discourages the present of an attorney. Attemp to do so is
likely to have an adverse effect on the trust of the parties in
dispute towards the conciliator. The decision to exclude attorney
should come from the party itself. It is the conciliator who should
say, attorneys are welcome.
with each of the parties to the exclusion of the other are helpful;
sometimes to dilute some of the less-than-reasonable claims or the
increase some of the more-reasonable offers. Although the law allows
the use of caucuses, it is best policy to obtain the consent of
the parties first.
atmosphere of joint effort to solve the problem is perhaps the best
environment to create in conciliation. Parties are invited to present
options to settle the dispute. Each option caters for the mutual
interests of the parties. Conciliator to be sensitive to the need
and legitimate interest of each party.
to be careful about objectivity and neutrality. Instead of making
a statement in the affirmative. Asking a question is more “politically
correct” and may achieve the same result.
coffee breaks, (good) working lunch or even a few jokes of the day
do help the atmosphere in a negotiation. Miracles sometimes happen
during these “time-out”
is arguable the wisdom of forcing litigant to appear in conciliation
with the threat of contempt of court. The devise is sometimes use
in consumer claims where the defendant is a corporation.
a recent amendment to the Civil Procedure Code, conciliation is
compulsory in small claims disputes5.
arbitration is a welcome development of ‘case management’. It help solve
the problem of backlog of causes. It is particularly useful in construction
cases where the services of an expert are of great importance. It can
save days, weeks or even months of court time in the testimony of expert
witnesses. Court-annexed arbitration often occurs at the pre-trail conference
where a difficult question of fact is single out for special consideration
by a specialized arbitrator.
advantages of arbitration compared to litigation are traditionally listed
the parties’ choice
||Speed and efficiency.
ultimate end of both litigation and arbitration from the plaintiffs or
claimant’s point of view is the effective enforcement of the judgement
or award. The most certain method to ensure the enforceability of a judgment
is to litigate in the national court of the defendant. But most international
businessmen and their lawyers are reluctant to use in the defendant’s
national court. The alternatives are arbitration or litigation in the
national court of the plaintiff or, possibly, in a neutral country. Unless
the defendant has sufficient assets in the place where the litigation
takes place, the plaintiff will have to seek enforcement of the judgment
in another country. In case of arbitration, if the respondent does not
voluntarily pay, the claimant will have to seek judicial assistance in
the enforcement of the award regardless of where the arbitration took
arbitration has been included in sections 210 – 222 of the Civil Procedure
Code since its publication in 1935, but the provisions have never been
used until very recently when ADR is seriously considered and practised.
Court-annexed arbitration arises when the parties fail to put an arbitration
clause in the contract and later bring a civil action in court. At the
pre-trail conference when considering the issues in dispute, the judge
may, in consultation with and by consent of the parties, refer complicated
technical issues on question of fact to arbitration. This is seen as a
means of involving a judge in case management. Most of the advantages
of arbitration as a means of dispute resolution can be obtained by court-annexed
arbitration. However since the award is incorporated into the final judgment
of the court, it loses the enforceability of the award abroad under the
New York Convention for the Recognition of Enforcement of Foreign Arbitrate
Awards 1958. Since the incorporation of arbitration clause in a contract
is the recent phenomenon in Thailand, many commercial dispute that would
have gone to arbitration were brought to courts of justice creating a
great amount of backlog. Referring some of the issues to arbitration is
a welcome option for judges at the pre-trail conference.
V. The Establishment of the Central Intellectual Property and International
litigation is not considered as an ADR, modern techniques learned from
ADR could be valuable for judicial reform of civil litigation. This is
particularly true in Thailand with the recent establishment of the Central
Intellectual Property and International Trade Court (IP&IT Court)
whereby ADR methods are adopted to a large extent. ADR, originally conceived
as means for alternative dispute resolution has now been accepted as method
for litigation in court. The significance of ADR has turned a full circle.
It is proposed now to examine some salient points of this court.
late 1996, the Act Establishing the Intellectual Property and International
Trade Court and Its Procedure 1996 was passed by the parliament. The Act
was the culmination of a join effort between the Ministry of Justice and
the Ministry of Commerce in the wake of negotiations between Thailand
and the United States as well as the European Countries on trade related
aspects of intellectual property right. The Court is established to create
a ‘user-friendly’ forum with specialized expertise to serve commerce and
industry. International trade is added to the jurisdiction of the court
for the reason that in a country like Thailand specialized Bench and Bar
in intellectual property and international trade should be grouped together
fore easy access and administration. This is also seen as an answer from
Thailand to the problem of delay and lack of expertise in civil litigation.
followings are some of the prominent features in the new court system:
- Liberal use of
Rules of the Court to facilitate the efficiency of the forum.
jurisdiction in the enforcement of arbitral awa4rds in intellectual
property and international trade matters.
of three judges to constitute a quorum. Two of whom must be career
judges with expertise in intellectual property of international trade
matters. The third member of the panel shall be an associate judge
who is a lay person with expertise in the matters. A double guarantee
for the first time in Thai procedural law, of the Anton Piller Order’
type of procedure.
- Possibility of
the appointment of expert witness as amicus curiae.
procedure where appeals lie directly to the Intellectual Property
and International Trade Division of the Supreme Court.
- Use of pre-trial
- Use of court-annexed
- Use of court-annexed
- Use of videoconference
for witness abroad.
- Continuous trial
to the consent of the parties, documents in English do not have to
be translated into Thai.
- Use of written
statement in conjunction with oral cross-examination and re-examination.
establishing a new court is not an easy task, the promotion of it to international
commerce and industry is most difficult. One will have to create the right
‘legal environments’ to attract international commercial litigation. Reputation,
integrity expertise, convenience, accessibility, expenses, respect and
the enforceability of judgment in jurisdictions where it matters most
are some of the criteria one considers hard when choosing a forum to conduct
international commercial litigation.
the expansion of trade and investment in the Asia-Pacific region and the
growing needs for effective mechanism and management for international
commercial dispute resolution. Many arbitration centres have been established
in the region in direct competition with the more established centres
in Europe and America. One sees an increasing attempt to create and promote
ADR. Prospective claimants will have more opportunity than in the past
of forum shopping. A predictable phenomenon in the climate of free market
economy. The more difficult question is ‘quality control’
a firm believer and have great respect that Australian institutions. In
my school days, the Colombo Plan Scholarships for undergraduate studies
in Australian universities were some of the most prestigious scholarships
for the brightest young Thai. Some of the greatest minds in economics,
engineering, political science and lay in Thailand are the fruits of the
scholarships. I always hope that Australia would, one day, play a bigger
role in the development and progress of the Asia and the Pacific regions.,
My hope is materializing. I am sure the greater participation of Australia
in this part of the world will offer an alternative, cost-effective and
competitive service in the provision of legal education and legal service
to the community.
paper presented at LEADR’s 7th International Alternative Dispute Resolution
Conference, 27th – 29th July 2000, Sydney Australia under the theme “
The View from the Bench: International Perspective”. The author wishes
to express his gratitude to LEADR for the privilege of participation in
the panel chaired by Sir Laurence Street and participated by the Honorable
Justice John Hansen of the High Court of New Zealand and the Honourable
Justice C.S.C. Sheller of the Supreme Court of New South Wales.
Judge of the Central Intellectual Property and International Trade Court,
Bangkok Thailand. Sometime Executive Director of the Thai Arbitration
Chief Judge Cliffore Wallance formerly of the US Court of Appeals for
the Ninth Circuit was a major stimulant in Thailand for this influence
Practice Guidance Concerning Conciliation date 7 march B.E. 2539 (1996).
The practice Guidance was issued by virtue of s 1 of the Statute of the
Court of Justice (Then in force) whereby the President of the Supreme
Court was empowered, in the capacity as head of the Judiciary to lay down
‘directions’ for judges. In practice these ‘directions’ are invariable
termed ‘ Practice Guidance’
As amended by the Civil Procedure Amendment Act (No. 17) B.E. 2542 (1999)
No such regulations have yet been formulated.
Section 193 paragraph two of the Civil Procedure Code as Amended by the
Civil ProcedureAmendmentAct (No. 17) B.E. 2542 (1999
In many cases whether arbitration incurs lower costs than litigation is
debatable. With respect to one of the direct costs – filing fees and other
tribunal fees – arbitration can be more expensive than all other forms
of dispute resolution including litigation. Since in most jurisdictions
filing fees and court fees are nominal. In Thailand, court fee is calculated
at 2.5% of the amount in dispute but not exceeding 200,000 Baht ( approx.
US$ 5,300). The International Chamber of Commerce (ICC) Court of Arbitration’s
filing of registration fee is US$ 2,000 and an additional administrative
charge, a percentage of the amount in dispute is added. In an apparent
effort to counter its reputation for being too expensive, the ICC announced
that the administrative charge is now capped at US$ 50,500 regardless
of the amount in contention. Attention must also be given to the fact
that the while judges work may be described as public service most arbitrators
charge for fees. Two other factors must also be taken into consideration.
First, attorney fee can be huge if the trial lasts a long time. Secondly,
in comparing arbitration costs to litigation costs, one must remember
that arbitrate awards are not themselves enforceable and if the losing
party does not voluntarily pay, additional costs for a judicial enforcement
proceeding will be incurred.