Disputes in Thailand arise from numerous commercial and contractual issues, including disputes concerning intellectual property rights. There are also complex foreign employment laws and international trade customs that must be considered when dealing with employees in Thailand.
Recently, the Philippines requested authorisation to suspend trade concessions in light of Thailand’s refusal to bring its AD/CVD measures into compliance. The request demonstrates that bilateral discussions remain an option for parties to resolve trade disputes.
Litigation for a trade dispute before Thai courts is often lengthy, with the prevailing parties incurring significant legal fees. Lawyers’ fees are not entirely recoverable by the prevailing party as the Thai law views them as costs associated with the litigation rather than damages.
Arbitration offers a more rapid resolution to trade disputes in Thailand and is usually cheaper than court proceedings. However, it can be difficult to enforce a mediated settlement agreement outside the courts.
The establishment of the Intellectual Property and International Trade Court has numerous implications for the country’s innovation-driven economy, as it serves as a deterrent against intellectual property infringement and unfair trade practices and promotes a culture of respect for the rights of creators and innovators. It also reflects the government’s commitment to safeguarding the interests of businesses and ensuring Thailand’s participation in global trade arenas. It is therefore worth considering incorporating arbitration and mediation clauses in your commercial agreements with Thai companies.
The establishment of the Intellectual Property and International Trade Court marks a significant milestone in Thailand’s effort to promote innovation, foster creativity, and provide a level playing field for businesses. The court serves as a deterrent against intellectual property infringement and unfair trade practices, which can have detrimental impacts on industries and the economy at large.
In addition, the court is expected to be a valuable tool in raising awareness on intellectual property rights and fair international trade practices through the holding of seminars and workshops. This is particularly important as Thailand aspires to become a leading hub for research and development, creative endeavors, and cutting-edge technologies.
It is possible for interested parties to appeal the final determination of an AD or CVD investigation to the Central Intellectual Property and International Trade Court. However, it should be noted that such an avenue is rarely used in practice given the high costs and time consuming nature of litigation in Thailand.
In addition to court proceedings, arbitration offers a more conciliatory and less adversarial approach to dispute resolution, particularly for foreign litigants. It is also more cost-efficient than court litigation.
Nevertheless, the judicial system in Thailand remains severely overburdened and it can take years to reach the point where a judgement can be obtained. For this reason, the judiciary encourages the use of alternative forms of dispute resolution.
For example, THAC actively promotes the insertion of mediation clauses into expatriate agreements. However, the effectiveness of such an approach may be compromised by the absence of a universally recognised framework for the direct enforcement of international mediated settlement agreements. This gap is something that the new 2019 UN Convention on Mediation aims to address. Also, class action arbitrations have yet to gain traction in the country.
While litigation is the default option in Thailand, there are alternatives. Mediation is a more informal process that facilitates communications between parties with the aim of reaching an agreement to resolve the dispute. The process can take place either outside of the court, or as part of a court-supervised proceedings.
Increasingly, disputes in the energy, mining and infrastructure sectors are referred for mediation, as a solution to case backlogs in the courts. In addition, parties may choose to include mediation in their contracts.
R & T Asia (Thailand) Limited has an experienced dispute resolution team that handles arbitration and mediation proceedings including cases involving international trade issues. Its team is led by Surasak Vajasit, whose practice includes labour law and regulatory matters. It also includes Pakpoom Suntornvipat, whose expertise covers corporate/commercial and customs matters. The team also represents clients in challenges to government decision-making. They have experience in advising on international dispute resolution and negotiating with regulators.