Thailand

Case updates

State Railways Authority of Thailand v Hopewell (Thailand) Limited and Thaicom Public Company Limited v Ministry of Digital Economy and Society

In the 2019 edition of our Asia Pacific Arbitration Roundup, we covered the landmark case of State Railways Authority of Thailand (“SRT”) v Hopewell (Thailand) Limited (“Hopewell”) where the Supreme Administrative Court had made a ruling against the SRT and overturned the ruling of the Central Administrative Court that had annulled the enforcement of a TAI award made against the SRT. In 2019, the SRT and the Ministry of Transport authorised public prosecutors to bring a case in the Central Administrative Court to request for a new trial. This was rejected and was subsequently appealed to the Supreme Administrative Court. However, the Supreme Administrative Court affirmed the earlier decision to reject a request for a new trial.

In an arbitration between Thaicom Public Company Limited (“Thaicom”) v Ministry of Digital Economy and Society (“MDES”), also involving a dispute between a private party against a government entity, the arbitration panel found that the satellites (the subject of the arbitration) were not part of an agreement between Thaicom and MDES. It has been reported that the MDES is planning to petition to the Central Administrative Court to challenge the arbitration award made against it, on procedural grounds.

These cases show that, although state entities are keen to seek all possible avenues for appeal, the Thai Courts will remain impartial in cases where state entities seek annulment of an award. It also demonstrated that the Thai Courts adopt a pro-arbitration approach in support of arbitration as a dispute resolution forum between private parties and government entities.

Kingsgate v Kingdom of Thailand

The case of Kingsgate v Kingdom of Thailand which involved a claim filed to the Permanent Court of Arbitration made pursuant to the Australia-Thailand FTA (“FTA”) remains pending. Kingsgate, an Australian company alleged indirect expropriation of the Chatree gold mine, a mine owned and operated by Kingsgate’s local subsidiary. It alleged that the Thai government’s use of emergency powers to close the mine following serious concerns about the health and wellbeing of the residents around the mine amounted to breaches of the indirect expropriation and fair and equitable treatment clauses of the FTA. The issuance of the award is pending and it has been reported that settlement negotiations are on-going between the parties.

Other key developments

The new e-Notice System for the TAI

On 4 January 2022, the Thai Arbitration Institute (“TAI”) issued Notification RE: Sending of Documents and Announcing of Hearing Dates By Way of Publications via Electronic Notice (e-Notice System) (“Notification”). The Notification aims to create another means for official publication of case documents and hearing dates. In particular, the e-Notice System will serve as a centralised online bulletin board for such official publications. This is used when a party’s address remains unknown despite reasonable steps being taken to discover the absentee party’s address. Case documents published via the e-Notice System are deemed duly served upon a party and the hearing dates are deemed known such that the arbitral proceeding is then permitted to proceed. This is similar to the well-established method of publishing hearing notices in the Royal Gazette and deeming such publication to be notice in litigation. Prior to this, parties had to demonstrate their best-efforts and that they had exhausted all means to reach the other party which is extremely time consuming in practice. This development is encouraging for parties who submit their disputes to the TAI as it makes the process of notice against absentee parties significantly more efficient.

New TAI Regulations on e-Arbitration System

TAI has repealed Regulation of the TAI on Criteria for the Use of the Electronic Arbitration System (E-Arbitration) B.E. 2563 (2020) (“2020 Regulation”) and has replaced it with an updated 2022 version (“2022 Regulation”). The 2022 Regulation saw an addition of a new set of sections that deal specifically with procedures on online witness trials and sets out the parties’ role during the witness trial. While the 2020 Regulation allowed for online witness trial, there was no clear sets of procedure in place. The 2022 Regulation stipulates that the party who the witness is testifying on behalf of has the duty to control the ‘share-screen’ function. Other new features of the 2022 Regulations include: explicitly allowing display of exhibits to witnesses via ‘share-screen’ during witness trial via online meeting solutions; adding more features for parties’ self-identification such as facial recognition and biometric scans; requiring the parties to go paper-less by default and to upload all evidence into the system (uploaded documents will now be treated by default as the original copy).

The primary purpose of 2022 Regulation is to deal with practical issues and ambiguities that arose out of the implementation of its predecessor. This is generally done by providing scenario-based solutions to technical issues that may arise during an online hearing.

Notwithstanding the above strides, there remain hurdles that institutions such as the TAI will need to overcome. For instance, the TAI e-arbitration system is unable to cope with files larger than 10 MB. This is problematic as arbitration proceedings may involve significant volumes of documentary, audiovisual and other evidence which may be greater than 10 MB per file. Although parties may agree to use alternative methods of service i.e. cloud systems/download links, this remains an issue which the TAI should address.