Setting aside an award: ninety days
An adverse award is not appealed the way a judgment is. The only route is an application to set it aside, and the available grounds are not about whether the tribunal got the facts wrong.
Ninety days from receipt
Section 40 of the Arbitration Act B.E. 2545 (2002) provides that an award may be challenged by applying to a competent court to set it aside, within ninety days of receiving a copy, or where the tribunal has been asked to correct or interpret the award or make an additional award, from the day that was done. Evidence of when the copy was received therefore matters from day one.
The grounds the applicant must prove
Section 40(1) sets five grounds the applicant must prove: incapacity of a party; an arbitration agreement without binding force under the law the parties chose or, absent choice, under Thai law; want of proper notice of the appointment of the tribunal or of the proceedings, or inability to present the case for another reason; an award deciding matters outside or beyond the scope of the agreement; and a tribunal or procedure not as agreed.
The grounds the court may take of its own motion
Section 40(2) adds two matters that may appear to the court itself: that the award concerns a dispute not capable of settlement by arbitration under the law, or that recognition or enforcement would be contrary to public order or good morals. Neither depends on a party raising it.
What is not a ground
What appears nowhere in section 40 is that the tribunal weighed the evidence or found the facts differently from how the losing party sees them. That is the price paid for the speed and privacy of arbitration at the moment the clause was agreed, and it is why getting the case right before the tribunal matters even more than in litigation.
The route a court may take instead
The closing paragraph of section 40 provides that on an application to set aside, where a party so requests and the court sees good reason, it may adjourn to allow the tribunal to reconsider or take such steps as it thinks fit so as to remove the ground relied on. The outcome may therefore not be annulment but a remission for correction.
PREPARE
What to bring
- The award as received, with evidence of the date
- The arbitration agreement and the institutional rules applied
- Documents on the appointment of the tribunal and the hearing notices
- The procedural record and the submissions made in the arbitration
- Any request to correct or interpret the award already made
QUESTIONS
Questions this raises
I disagree with how the tribunal weighed the evidence.
Section 40 does not reach it. Both the grounds the applicant must prove and those the court may take up concern capacity, the binding force of the agreement, notice and the opportunity to be heard, the scope of the award, the tribunal and procedure, arbitrability, and public order. None of them is a review of the merits.
I received the award four months ago.
Section 40 sets ninety days from receipt of the award, but where the tribunal has been asked to correct or interpret it or make an additional award, time runs from when that was done. The first thing to check is therefore whether any such request was made. If the period has genuinely passed, what remains may be resistance at the enforcement stage under section 43 instead.
LAW
The legislation
- Arbitration Act B.E. 2545 (2002), section 40
ENQUIRIES
