Obstacles to Alternative Dispute Resolution in International Trade and Investment under Thai Law

Abstract

This research article aims to investigate the challenges and obstacles to alternative dispute resolution (ADR) in international trade and investment disputes under the Arbitration Act B.E. 2545 (A.D. 2002) and the Mediation of Disputes Act B.E. 2562 (A.D. 2019). The research employs a documentary research approach to examine the suitability of mediation and arbitration processes, as well as issues concerning the enforcement of foreign arbitral awards and international settlement agreements resulting from mediation.

The findings reveal that the mediation, concerns persist regarding the appropriateness of the appointment of mediators, and the enforceability of international settlement agreements resulting from mediation. In arbitration, issues remain regarding the neutrality of arbitrators and the transparency of arbitral process in disputes between states and foreign investors, as well as judicial scrutiny of the legality of foreign arbitral awards enforced in Thailand. These are significant barriers that undermine confidence in resolving international trade and investment disputes in Thailand.

The study recommends targeted legal reforms to strengthen investor confidence and enhance Thailand’s role as a regional hub for international dispute resolution. Specifically, it proposes Thailand’s accession to the Singapore Convention on Mediation A.D. 2019 (B.E. 2562) to eliminate the obstacle of cross-border enforcement of international settlement agreements resulting from mediation. Due to they cannot be enforced under the Mediation of Disputes Act B.E. 2562 (A.D 2019).  Furthermore, it suggests improving transparency in arbitration proceedings by adopting practices aligned with the United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor-State Arbitration A.D 2014 (B.E. 2557). It will eliminate the issue of tribunal's Impartiality and Independence.