Article by Anne Coulon, Regional Legal Adviser of DFDL, and Pisut Rakwong, Founder of Pisut and Partners.
When a dispute arises and arbitration proceedings loom, parties often need to obtain emergency relief via an injunction or an interim measure.
Thailand is a party to the UNCITRAL Model Law on International Commercial Arbitration, and the country’s main arbitration law is the Thai Arbitration Act 2002 (“TAA”, amended in 2019). Yet, the TAA does not contain provisions for the appointment of an emergency arbitrator and does not provide a mechanism for an arbitral tribunal to issue interim measures.
Instead, the issuance of interim measures and their enforceability remains to a large extent within the purview of the local courts. This is manifest in Section 16 of the TAA, which allows a party to an arbitration agreement to “file a motion requesting the court to issue an order for interim measures to protect its interests, before or during the arbitral proceedings.”
Even so, provisions relating to interim measures in arbitration in Thailand can be found in the institutional rules of certain arbitral institutions. According to Article 39 of the Thailand Arbitration Institute Rules (“TAI Rules”) of the Thailand Arbitration Institute (“TAI”),“at the request of a party, the arbitral tribunal may grant interim measures of protection for the party, as it deems appropriate.”
It must be noted, however, that TAI Rules do not enable the emergency arbitrator with the power to grant interim measures prior to the appointment of the arbitral tribunal.
Along with the absence of provisions enabling an arbitrator to grant interim relief under the TAA, the possibility of interim relief for a requesting party under the TAI rules must be further tempered by a clear nod to the court’s competence given in Article 39 of the TAI rules.
Article 39 states that “such request (of an interim measure) shall not affect the right of the party to request the court to grant interim measures, and that an arbitral party can request an interim measure from either or both the arbitral tribunal and the court.” It is easy to anticipate the practical difficulties of enforcing an interim injunction that would have been issued by an arbitral tribunal or an emergency arbitrator under Article 39, instead of a Thai court.
Additionally, the ICC (“International Chamber of Commerce”) Arbitration Rules, recently published in the Thai language, offer emergency arbitrator provisions for parties to seek urgent temporary relief, prior to the formation of an arbitral tribunal. Any emergency measure granted would take the form of an order, which might be later revisited by the arbitral tribunal once it is formed.
As legal practitioners, we have not observed arbitrators granting an interim order in Thailand, regardless of the institutional rules. This may be because the parties have directly proceeded with the court in the first instance under Section 16 of the TAA, or because the arbitrator may have recommended that the parties directly apply to the court for interim measures since the enforcement would follow seamlessly and would save time.
Since the institutional rules of the TAI and the ICC are not backed up by adequate legal provisions in the TAA allowing for the appointment of an emergency arbitrator or giving the clear prerogative to an arbitral tribunal or an emergency arbitrator to grant an interim injunction, parties have naturally continued to use the Thai courts to seek interim relief.
To meet the needs of time and provide streamlined benefits to parties in dispute, Article 16 of the TAA should be amended to empower the arbitrator to grant interim relief. In turn, the TAI Rules should be modified to incorporate provisions of emergency arbitration, such as interim awards made by an emergency arbitrator before the formation of an arbitral tribunal.
Based on our experience in other jurisdictions however, simply incorporating provisions of interim awards under an emergency arbitration without amending the rules on enforcement would be insufficient. A systematic enforcement mechanism should also be integrated under the TAA as well as Thailand’s Civil Procedure Code, specifically a fast-track or expedited mechanism should be incorporated with a strict timeline for enforcement.
Although Thailand’s current arbitration law does not contain provisions for “emergency arbitration,” a party to an arbitration agreement may file an interim injunction application requesting the competent court to issue an order imposing a provisional measure before or during the arbitral proceedings under the provisions of the Civil Procedure Code.
In case of emergency, a party to an arbitration agreement may file an emergency application alongside an interim injunction application, requesting the court to immediately prescribe an order or issue a warrant in accordance with the application, in which the court will expeditiously consider such an application. Thailand does not only need legislative amendments to incorporate provisions on “emergency arbitration,” but also needs a systematic enforcement procedure incorporated in accordance with the UNCITRAL Model Law, adopting 2006 amendments.
The information provided here is for information purposes only and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situations.