Recognition and enforcement of foreign judgments in Thailand

There is no exequatur procedure for enforcement of a foreign judgment applicable in Thailand.

Should a party wish to enforce a foreign judgment in a Thai court, the party must commence fresh litigation proceedings in which the foreign judgment may be accepted by the Thai court as evidence of the case

There is no legislation in Thailand that specifically deals with enforcement of a foreign judgement.

Two oft-cited examples of Supreme Court decisions dealing with the enforcement of a foreign judgment in a Thai court are set out below:

1. In Supreme Court Decision No. 585/2461 (1918), the Supreme Court held that Thai courts would deem an entitlement under a foreign judgement enforceable only when: (i) the foreign judgment in question was rendered by a court of competent jurisdiction; and (ii) the foreign judgment in question is final and binding upon parties. In this case, the Supreme Court denied an application for enforcement of a judgment of a Vietnamese court obtained in default of the defendant’s appearance, as based on Thai laws, such a judgment would not be considered final. 
2. In Supreme Court Decision No. 6565/2544 (2001), the Supreme Court considered that a decision by the English Commercial Court ordering payment of court fees, attorney fees, and relevant fees incurred in proceedings before it to be part of the final decision rendered by the English Commercial Court. Further, the Supreme Court was also of the view that the proceedings in the English Commercial Court did not violate public policy.

As mentioned in Item 1 above, there is no exequatur procedure applicable in Thailand. Under the Thai legal system, a foreign judgment will be treated as mere evidence in a fresh litigation case to enforce a foreign judgment in a Thai court. Accordingly, a Thai court may revisit the merits of the case.

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Yes, Arbitration Act, B.E. 2545 (2002) (the “Thai Arbitration Act”) applies to the recognition and enforcement of both domestic and foreign arbitral award sought in Thailand. In the case of the latter, Article 41 Paragraph Two of the Thai Arbitration Act states as follows:

In case where an arbitral award was made in a foreign country, the award shall be enforced by the competent court only if it is subject to an international convention, treaty, or agreement to which Thailand is a party. Such award shall be applicable only to the extent that Thailand accedes to be bound.

Thailand is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”) by way of accession on 21 December 1959. Moreover, the texts under the Thai Arbitration Act pertaining to the recognition and enforcement of arbitral award closely follow the UNCITRAL Model Law on International Commercial Arbitration (1985) (“UNCITRAL Model Law”).

In this regard, Article 9 of the Thai Arbitration Act enlists certain courts of competent jurisdiction over the recognition and enforcement of an arbitral award as follows:

1. the Central Intellectual Property and International Trade Court (or Regional Intellectual Property and International Trade Court);
2. a court where the arbitral proceedings are conducted;
3. a court in which either party is domiciled; or
4. a court which has jurisdiction over a dispute submitted to an arbitration.

As to the last category in sub-paragraph (d) above, the Thai legal system adopts the dual court approach to determine whether a court has jurisdiction over a dispute, thus resulting in the separate courts of competent jurisdictions as follows:

1. Courts of Justice have jurisdiction over the recognition and enforcement of an arbitral award where the underlying dispute pertains to civil and commercial relationships, as well as those adjudicated under an international investment agreement, for instance, a bilateral investment treaty.
2. Administrative Courts have jurisdiction over the recognition and enforcement of an arbitral award where the underlying dispute relates to an administrative contract. Pursuant to Article 3 of Establishment of Administrative Courts and Administrative Court Procedure Act, B.E. 2542 (1999) in conjunction with Resolution of Assembly of Judges in Supreme Administrative Court No. 6/2544 (2001), an administrative contract is a contract (a) where at least one party is an administrative agency or a person acting on behalf of a state (an administrative party), and (b) which exhibits certain characteristics, including:
   1. a concession contract;
   2. a contract providing public service;
   3. a contract for a construction of public work;
   4. a contract for an exploitation of natural resource;
   5. a contract authorising a private person to directly carry out or cooperate in executing public service; or
   6. a contract which stipulates an exorbitant clause that allows an administrative party to exercise its prerogative. 

Pursuant to Article 42 paragraph Two of the Thai Arbitration Act, an applicant may seek recognition and enforcement of an arbitral award by filing an application with the relevant court, together with (a) an original or certified copy of the arbitral award, (b) an original or certified copy of the relevant arbitration agreement, and (c) a Thai translation of the arbitral award and the arbitration agreement by a certified translator, or by a Thai envoy or consul in the country where the arbitral award or the arbitration agreement was made.

Once the court of first instance enters a judgment recognising and enforcing an arbitral award, Article 45 paragraph One of the Thai Arbitration Act provides that no appeal against such judgment is allowed, unless:

1. the recognition and enforcement of the arbitral award would be contrary to public policy or good moral of people;
2. the judgment would be contrary to legislative provisions concerning public policy;
3. the judgment is not in accordance with the arbitral award;
4. a judge who sat in the case at first instance gave a dissenting opinion; or
5. the award was in respect of a provisional measure pursuant to Article 16 of Thai Arbitration Act.

In case of the above, an appeal must be lodged directly with the Supreme Court (in case where the court of first instance is the Court of Justice of First Instance) or the Supreme Administrative Court (in case where the court of first instance is the Administrative Court of First Instance) pursuant to Article 45 Paragraph Two of the Thai Arbitration Act.

1. Supreme Court Decision No. 5560-5563/2562 (2019) pertains to the interpretation of the term ‘public policy or good moral of people’ which as stated in paragraph 7 above is a ground for refusing the recognition or enforcement of an arbitral award pursuant to Article 44 of the Thai Arbitration Act. The Supreme Court held that such phrase does not have an exact or precise legal definition, and therefore a court is to exercise its discretion in interpreting the same in accordance with the context of the dispute and the social values of the present era, while safeguarding public interests, public services, and common goods. A court is not to interpret the phrase for the benefit of the parties or the legality of the arbitral proceedings. The Supreme Court further noted that the interpretation of this matter is be decided on the facts of each case.
2. This approach laid down in Supreme Court Decision No. 5560-5563/2562 (2019) has been adopted by the Administrative Courts as well. In the Supreme Administrative Court Decision No. Or. 221-223/2562 (2019) (“Hopewell Decision”), the Supreme Administrative Court held that the interpretation of an administrative contract in dispute is a matter between the parties and is not a matter that relates to public policy or the good moral of people.
3. In Supreme Court Decision No. 7277/2549 (2006), the Supreme Court ruled that a contract procured through a corruption does not bind a government party; therefore, the recognition and enforcement of an arbitral award that is based upon such a contract would be contrary to public policy or good moral of people.
4. In Supreme Court Decision No. 7635/2562 (2019) and Supreme Court Decision No. 6741/2562 (2019), the Supreme Court ruled that a misapplication of the law by the arbitral tribunal would cause the recognition and enforcement of an arbitral award to be contrary to public policy or good moral of people.

Ordinarily, it may take approximately 1 to 1.5 years for an application before the Courts of Justice of First Instance; and approximately 1.5 to 2 years for an application before the Administrative Courts of First Instance.

Yes, an award debtor is entitled to set aside or resist the recognition and enforcement of an arbitral award.
Similar to the provisions under the New York Convention and the UNCITRAL Model Law, a court may set aside an arbitral award only on grounds which can be categorised into two groups:

1. The grounds a party is required to establish and prove pursuant to Article 40 Paragraph Three (1) of the Thai Arbitration Act which are:
   1. a party to the arbitration agreement was under some incapacity under the law applicable to that party;
   2. the arbitration agreement is not binding under the law of the country agreed to by parties, or failing any indication thereon, under Thai law;
   3. a party making the application was not given proper advance notice of the appointment of the arbitral tribunal or of the arbitral proceedings or was otherwise unable to defend its case in the arbitral proceedings;
   4. the arbitral award deals with a dispute not falling within a scope of the arbitration agreement or contains a decision on a matter beyond the scope of the arbitration agreement; or
   5. the composition of the arbitral tribunal or the arbitral proceedings were not in accordance with the agreement of the parties or, if not otherwise agreed by the parties, not in accordance with the Thai Arbitration Act.
2. The grounds that courts may raise sua sponte pursuant to Article 40 Paragraph Three (2) of the Thai Arbitration Act:
   1. the arbitral award involves a dispute not capable of settlement by arbitration under the law; or
   2. the recognition and enforcement of the arbitral award would be contrary to public policy or the good moral of the people.In a similar vein, a court may refuse the enforcement of an arbitral award only on grounds which can be categorised into two groups:

I. The grounds a party is required to establish and prove pursuant to Article 43 of Thai Arbitration Act which are:

1. a party to the arbitration agreement was under some incapacity under the law applicable to that party;
2. the arbitration agreement is not binding under the law of the country agreed to by parties, or failing any indication thereon, under the law of the country where the arbitral award was made;
3. a party making the application was not given proper advance notice of the appointment of the arbitral tribunal or of the arbitral proceedings or was otherwise unable to defend its case in the arbitral proceedings;
4. the arbitral award deals with a dispute not falling within a scope of the arbitration agreement or contains a decision on a matter beyond the scope of the arbitration agreement;
5. the composition of the arbitral tribunal or the arbitral proceedings were not in accordance with the agreement of the parties or, if not otherwise agreed by parties, not in accordance with the law of the country where the arbitral award was made; or
6. the arbitral award has not yet become binding, or has been set aside or suspended by a competent court or under the law of the country where the arbitral award was made.

II. The grounds which may be raised sua sponte by a court, pursuant to Article 44 of Thai Arbitration Act:

1. The arbitral award involves a dispute not capable of settlement by arbitration under the law; or
2. The recognition and enforcement of the arbitral award would be contrary to public policy or the good moral of the people.