Enforcing an award: three years, three documents
An award in your favour does not enforce itself; it has to be taken to a court, and a three-year limit applies. That is shorter than most expect, being a third of the ten years a court judgment carries.
Three years from what
The first paragraph of section 42 of the Arbitration Act B.E. 2545 (2002) provides that a party wishing to enforce an award must apply to a court of competent jurisdiction within three years from the day the award became enforceable, and that on receiving the application the court is to inquire and give judgment without delay. The starting point is the day enforcement became possible, which need not be the date on the award itself.
The three documents
The second paragraph requires the applicant to produce the original award or a certified copy, the original arbitration agreement or a certified copy, and a Thai translation of both, made by a translator sworn or affirmed before a court or an officer competent to administer an oath, or certified by an officer competent to certify translations, or by a Thai diplomatic or consular representative in the country where the award was made.
The translation requirement is not a formality
In practice the slowest step is rarely the law but obtaining a translation that satisfies section 42(3), because the provision specifies who may translate and how it must be certified. A translation prepared for internal use, or by someone who has not been through the prescribed steps, will not do, and leaving it until the three years are nearly up is an avoidable risk.
Grounds for refusing enforcement
Section 43 empowers the court to refuse enforcement, wherever the award was made, if the party against whom it is invoked proves one of six matters: incapacity of a party, an arbitration agreement without binding force, want of proper notice of the appointment of the tribunal or of the proceedings, an award going beyond the scope of the agreement, a tribunal or procedure not as agreed, or an award not yet binding or since set aside.
The burden sits with the party resisting
The wording of section 43 places the burden on the party against whom enforcement is sought, a structure that favours the applicant. The same section provides that where proceedings to set aside or suspend the award are pending, the court may adjourn as it sees fit, and on the applicant's request may order the resisting party to provide suitable security first.
PREPARE
What to bring
- The original award or a certified copy
- The original arbitration agreement or a certified copy
- A Thai translation meeting the conditions in section 42(3)
- Evidence of the day the award became enforceable
- What is known of the resisting party's assets in Thailand
QUESTIONS
Questions this raises
The award was made abroad. Can it be enforced here?
Section 43 uses the words wherever the award was made, and section 42(3) contemplates certification by a Thai diplomatic or consular representative in the country where it was made, so the statute plainly covers this. What it adds is the documentary and translation work, which takes longer than a domestic case.
The other side has applied to set the award aside.
The closing paragraph of section 43 provides that where an application to set aside or suspend is pending the court may adjourn the enforcement proceedings as it sees fit, and on the applicant's request may order security first. Asking for security is therefore something to raise at the same time, not after the adjournment.
LAW
The legislation
- Arbitration Act B.E. 2545 (2002), sections 42 and 43
ENQUIRIES
