Thailand

Key Developments

Thai arbitration institute e-filings Amidst the COVID-19 pandemic, arbitration practice in Thailand has seen progressive development where technology is being consistently integrated into arbitrations and court-related procedures to ensure expediency and practicality.

On 23 April 2020, Thai Arbitration Institute (TAI) issued a “Regulation of the Thai Arbitration Institute on Criteria for the Use of the Electronic Arbitration System (E-Arbitration) B.E. 2563” (2020) (TAI Regulation) to improve the efficiency and use of its e-arbitration system. The Regulation repealed the earlier “Regulation of the Thai Arbitration Institute on Criteria for the Use of the Electronic Arbitration (E-Arbitration) System B.E. 2562” issued in 2019.

In 2021, following the issuance of the regulation, arbitrations submitted to the TAI can be filed via a new web portal (i.e., TAI E-Arbitration). Even though the regulation did not expressly mandate filings to be made through the web portal, the use of the web portal has been enforced as a matter of TAI’s internal policy. Whilst hard-copy filings are still being accepted, parties are now required by the TAI to submit an identical copy of the documents to the TAI E-Arbitration.

This is a positive development as parties can keep track of their applications in real-time, and have access to other parties’ submissions as soon as they are submitted the system. Additionally, the parties are now able to conveniently make submissions to the system at any time during the day and out of normal office hours (i.e., past 16.30 hours), although submissions uploaded past 24.00 hours will be considered as being made on the following operating day of TAI.

In addition, the new TAI Regulation also contains provisions governing the use of online witness hearings and expressly provides that electronic signatures may used for signing of documents during virtual arbitration proceedings and that arbitration awards may be granted through video conferences.

Enforcement of Arbitration Awards: Thai Courts’ progressive attitude towards virtual witness trials

In the past, parties seeking to enforce an arbitral award in a Thai Court were required to present their witnesses in-person via a physical hearing. If the witness was not residing in Thailand, then he/she would be required to travel to Thailand and attend the witness trial in person. The pandemic has made these requirements impractical to comply with in view of both the global travel restrictions and mandatory quarantine requirements. As a result, at the start of the pandemic, cases for enforcing arbitral awards where foreign witnesses are involved were regularly being adjourned, causing back¬log of cases.

Whilst there has been court regulations on conducting virtual witness trials in place since 2013, such regulations were rarely used and applications for virtual witness trials were rarely granted.

On 20 July 2021, the Office of the Judiciary issued an announcement on conducting court procedures via electronic means (the “Announcement of the Office of the Judiciary on Criteria, Methods and Conditions Relating to the Electronic Court Procedures”) (Announcement). This latest Announcement repealed all previous announcements issued by the Office of the Judiciary on electronic hearings and provides a single guideline on the use of electronic hearings in the Thai Courts.

Key features of the Announcement include:

• prescribing that electronic court procedures shall be applicable to all types of civil cases; and
• outlining the requirements for preparation of electronic documents, court sittings via the electronic system and the recording of witness testimony by electronic means.

Since the issuance of the Announcement, the number of cases that allowed foreign witnesses to testify virtually had visibly increased. This is a key indication that the Thai Courts are now more inclined to allow for virtual witness trials, so long as the witness is not in Thailand and parties are able to demonstrate a degree of difficulty to travel to Thailand to attend the trial.

According to the Announcement, the venue at which the witness has to be present at during the virtual witness trial is required to be a non-public space with stable network connection and without interfering noise. No unpermitted personnel would be allowed to be at the venue. These requirements on the venue are not stringent and has made it all the more convenient for foreign witnesses to attend trials virtually. In practice, foreign witnesses are even permitted to testify virtually from home, so long as permission from the Thai Court has been obtained and the opposing party does raise any objection.

If the opposing party raise objections to the proposed venue, the likely scenario would be that the foreign witness would be directed to testify virtually from a Thai Embassy/Consulate or a place that has a neutral party to attest to the witness’ identity (e.g., a notary public office).The issuance of the Announcement and the positive attitude of Thai Courts on virtual witness trials are a positive development towards increasing time and cost-efficiencies. This is especially so for international parties who seek to enforce a foreign arbitral award in Thailand.