The Court of Justice has jurisdiction over civil cases unless the matter falls under the scope of another specialised court.
Courts actively encourage prospective litigants to mediate their disputes, a process not regulated by law. According to the Thai Mediation Center, mediation results in satisfactory settlements where neither party is deemed to be the winner or loser and saves court systems time and money.
Litigation
The formal legal process of filing a lawsuit, or defending against one. Litigation involves a series of structured steps, with both parties presenting their case to a judge or jury who then renders a binding decision based on Thai law and the evidence presented. Litigation is often a lengthy and costly process, which can be stressful for all parties involved. Consequently, disputes that might otherwise be resolved through legal litigation often end up being settled out-of-court.
Courts in Thailand do not impose mandatory mediation or other forms of alternative dispute resolution prior to or during civil proceedings. However, the new Civil Procedure Code now empowers courts to encourage the parties to agree on an amicable settlement at any stage of a lawsuit.
Litigation in Thailand is handled by the Civil Court System, comprising the Court of First Instance; Court of Appeal (including the Court of Appeal for Specialised Cases); and the Supreme Court. In a civil lawsuit, the party making the claim bears the burden of proof that their allegations are true. The defendant may also submit counterclaims and affirmative defenses, which must be supported by evidence in order to be upheld.
Class action proceedings in Thailand are permissible, but the courts must find that there are reasonable grounds to acknowledge a class. If the court does recognise a class, it will apply an opt-out rule, which means that class members can choose not to participate in the suit and retain their right to bring an individual action. Moreover, lawyers who fund class actions may be in breach of expected professional conduct under the Lawyers Council Regulations on Lawyer Conduct B.E. 2529 (1986).
Arbitration
In a world of globalization, businesses engaging in cross-border transactions and investments are likely to encounter disputes. To ensure that their operations continue without interruption, these businesses need to have a robust Thailand dispute resolution mechanism in place. This is where international commercial arbitration becomes a valuable tool.
Arbitration proceedings are conducted by one of two Thai arbitration institutes: the Thailand Arbitration Institute and the Commercial Arbitration Institute. Both are highly reputable, governed by a diverse advisory board and maintain standard arbitration rules. Both also keep a list of skilled and vacant arbitrators to choose from. In addition, both institutes offer their services in English and Thai.
After the disputing parties agree on the venue for the arbitration, they must then choose the language and rules of procedure that they will use. The parties will also have to agree on whether they want a single or three-arbitrator tribunal. If they cannot reach a consensus, the institute will provide them with a list of potential arbitrators and each party will then decide on the arbitrator that they prefer.
During the hearing, both parties are required to submit evidence and witness testimony and will have the right to question expert witnesses. The tribunal will then conduct a deliberation and render an award. If either party does not accept the outcome, they can appeal to a higher court for review.
Conciliation
Conciliation is a process where you tell the other party your side of the story in a free and open discussion. This helps you and the other person get a better understanding of each other’s issues and reach a compromise that meets both parties’ needs. It also helps you avoid a costly and time-consuming court trial.
At the conciliation conference, a conciliator helps you to negotiate a settlement. If a conciliation agreement is reached, the registrar or commissioner will dispose of the proceedings in accordance with the terms of the agreement. You should make every effort to attend the conciliation conference on the date and time given. If you cannot attend, you must let the conciliation officer managing your complaint know.
Conciliation is a new process that allows parties to resolve disputes outside of the courts, without having their cases put on the trial docket. This is a welcome move by the Thai Government to reduce litigation, improve access to justice and encourage businesses to utilize ADRs. The ADR mechanism is accessible to companies of all sizes and nationalities doing business in Thailand, and can help to save costs and avoid a drawn-out trial process.
Mediation
Mediation is a method of dispute resolution that aims to resolve disputes in a cost-effective manner, particularly for parties seeking to avoid a lengthy legal trial. As a result, mediation has become an increasingly popular alternative to court proceedings in Thailand.
Mediations are facilitated by trained and experienced mediators who help the disputing parties reach an acceptable settlement. Mediation is a less formal process than legal litigation and often provides the opportunity to move away from traditional legal concepts of fault and towards an understanding of each party’s true needs and interests.
Increasingly, civil and commercial disputes in Thailand are settled through mediation. In some cases, such as labour and consumer disputes, the courts mandate mediation. However, mediation can also be used in general civil cases, even where the courts do not require it.
The mediator can schedule a meeting to set the agenda and define the issues of the dispute or ask the parties for information about their positions. At the same time, the mediator should try to ascertain whether there are any underlying issues that need to be addressed.
The mediator will then designate a tribunal and give the disputing parties a list of potential arbitrators, with each party deciding on one of them. If the parties do not agree on an arbitrator, the tribunal will decide on a third arbitrator.