A close look at the emerging trends in litigation and alternative dispute resolution around Asia

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India

The Philippines

Taiwan

Thailand

UAE

INDIA

Litigation remains the most popular mode of settling disputes in India. But it is time and cost-intensive and litigants are beginning to favour alternative modes of resolving conflicts. This article looks at the existing judicial framework and analyses how the covid-19 pandemic has disrupted the regular functioning of the court system. It also discusses whether the current crisis can lead to long term changes in the country’s litigation and dispute resolution scenario.

Judicial framework

Courts in India have accumulated large backlogs – 2020 statistics suggest nearly 38 million pending cases. These are daunting numbers but the pace of legal reform in recent years makes one hopeful of better days ahead for litigants.

For one, there has been a concerted focus on promoting modes of alternate dispute resolution (ADR) covering arbitration, negotiation, mediation, conciliation and lok adalats (people’s court). A 2002 amendment to the Indian Civil Procedure Code empowered courts to direct settlement of disputes by mediation and authorized them to frame suitable rules to govern the mediation process. A 2015 amendment to the Indian Arbitration and Conciliation Act, 1996, made ADR mechanisms more efficacious by awarding arbitral tribunals the power to grant interim measures. Also, arbitration proceedings were made timebound mandating an award to be passed within 12 months of commencement of proceedings.

Effective from August 2019, India’s arbitration law was further amended to introduce the concept of an Arbitration Council of India charged with promoting and encouraging ADR mechanisms as well as framing policy and guidelines for uniform professional standards with respect to arbitration (including grading of arbitral institutions and arbitrators).

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (amended in 2018) was another significant development. It looked to improve the “ease of doing business in India” of which speedy enforcement of contracts, recovery of monetary claims and award of just compensation for damages suffered are critical aspects. Global practices such as case management hearings that entail a six-month window from the date of the first hearing to close of arguments and summary judgment, where the court (upon application by the parties) can arrive at a decision solely on the basis of written pleadings, have been introduced. Stringent timelines are set for filing of pleadings, disclosure, discovery, interrogatories and appeals.

Legal costs too are covered quite elaborately including heavy penalties for those indulging in frivolous litigation. In fact, frivolous applications filed by litigants as dilatory tactics are one of the biggest contributors to the endemic delays that beset the Indian courts. Previously, courts would normally not impose costs that would act as a deterrent. The Commercial Courts Act has sought to correct this – an illustration in the statute states that even an unsuccessful party can be awarded costs if it comes to light that the successful party has made frivolous claims. Also, it specifically mentions that ‘legal fees’ and ‘fees and expenses of witnesses’ are to be considered while awarding costs to the successful party.

Commercial courts and commercial appellate divisions hear commercial disputes that have a pecuniary value starting at ₹300,000 (US$4,000) at the district court and ₹20 million at the high courts. The 2018 amendment has also provided an impetus to mediation through a provision entailing that where a suit does not contemplate urgent interim relief, parties must exhaust the remedy of pre-institution mediation.

The Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, were framed consequently to regulate such mediation proceedings, which are strongly encouraged by the courts. Many high courts have set up mediation centres and a large number of lawyers have been trained as mediators.

Also notable is the Consumer Protection Act, 2019 (notified in August 2019), which amended the Consumer Protection Act, 1986, to protect consumers from vulnerabilities arising out of misleading advertisements, telemarketing, e-commerce, etc. Interestingly, it debuts an ADR mechanism – mediation – as a solution to consumer disputes. This provides for the establishment of mediation cells at the district, state and national levels.

Impact of covid-19

To counter the spread of covid-19, the Indian government announced a strict nationwide lockdown beginning 25 March 2020. In response, the courts initially restricted their functioning to matters of extreme urgency and measures to reduce the physical presence of lawyers, litigants and court staff at court premises were put in place.

Emphasizing the need to preserve access to/delivery of justice despite unprecedented challenges, the Supreme Court issued the Guidelines for Court Functioning Through Videoconferencing in a suo moto case on 6 April 2020. Measures were outlined to ensure robust functioning through videoconferencing (VC) technologies by the adoption of suitable modalities, including making VC facilities available for litigants with no personal access to such facilities.

The detailed guidelines covered various aspects, for example, specifying that the mutual consent of both parties would be needed to record evidence via VC. To ensure seamless ”virtual courts”, every court was also asked to maintain a helpline for grievances regarding video feed and line during and immediately after a hearing. Subsequently, detailed standard operating procedures for mentioning and e-filing suits and conducting hearings via video conferencing have been issued by the Supreme Court, the latest one was issued on 4 July 2020.

In the immediate aftermath, the institution of new cases slowed to a trickle and the disposal rate was also severely affected. In April 2020, 82,725 cases were filed in India, while 35,169 cases were disposed of. Compare this to 2019, when the average number of cases filed per month was around 1.4 million and those disposed of per month was 1.3 million. Data from the Delhi High Court indicate that remote hearings meant that only 10% of the usual caseload was being tackled.

The lockdowns are easing now, and physical filings are resuming, however, certain courts, including the Supreme Court and the Delhi High Court, continue to hear matters in online mode only. The need for social distancing will likely continue into the third quarter of 2020. This will inhibit the resurrection of a packed courtroom – so parties must prepare for ways to resolve their disputes other than in person.

Justice in a digital world

There has been a steady adoption of electronic infrastructure by courts across the country since the Indian government established the e-committee of the judiciary in December 2004. This is the reason why various courts could migrate so quickly to online functioning in response to the covid-19 situation. A bigger hurdle to the increased use of digital tools in adjudicating suits has come from traditionalists in the judiciary and bar.

However, the present crisis should be viewed as an opportunity to make online litigation processes more the norm rather than the exception, where written submissions would necessarily have to be concise and timely, where parties would have fixed time slots for presenting virtual arguments and where adjournments on account of inability to enter physical appearance (a common culprit of delays) would be ruled out. Online proceedings are already more commonplace when it comes to arbitration and mediation processes. And while virtual courts are unlikely to fully replace open-court hearings, it would be a shame not to capitalize on the momentum already in play for online procedures for the elimination of litigation backlogs in the longer term.

On 6 June 2020, NITI Aayog, a government thinktank, organized the first-ever key stakeholder meeting to advance Online Dispute Resolution (ODR), often referred to as a form of ADR that takes advantage of the speed and convenience of the internet. E-commerce is a natural field for its application, particularly for settling cross-border complaints that are of low value and high volume. For instance, online traders in the EU must provide a link to the EU’s ODR platform.

The Uniform Dispute Resolution Policy (UDRP), developed by ICANN, which allows trademark owners to fight cybersquatting is another example. Keeping in mind a likely spurt in disputes, most notably in lending, credit, property, commerce and retail, in the post covidian world, members of the Indian judiciary, government and legal profession discussed how ODR mechanisms could be utilized to resolve small and medium-value disputes expeditiously, even before they entered the formal court process in India. This is an encouraging initiative, but will need a strong policy and regulation-driven approach for implementation, particularly as ODR providers can be private, for-profit entities.

So, will the current crisis precipitate a shift towards alternate as well as online adjudication? The author certainly hopes so, as there is much to gain from it.

REMFRY & SAGAR
Remfry House at the Millennium Plaza
Sector 27, Gurugram – 122 009
National Capital Region, India
Tel: 91-124-280-6100, 91-124-465-6100
Email: remfry-sagar@remfry.com
www.remfry.com

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THE PHILIPPINES

While specialized rules and proceedings for intra-corporate disputes have been established and continue to evolve in the Philippines, there is a renewed push towards arbitration as a viable alternative for settlement of such suits, albeit with some potential trade-offs that will require further examination to determine the best approach applicable for each particular dispute and corporation.

Expedited procedure

The jurisdiction over suits arising from corporate relations that involve a corporation and any of its stockholders, members or associates, or between stockholders, was transferred from the exclusive domain of the Philippines Securities and Exchange Commission (SEC) to regular courts with the passage of the Securities and Regulation Code in 2000.

In response to this, the Philippine Supreme Court designated specific court branches as specialized commercial courts (SCC) and promulgated the Interim Rules of Procedure Governing Intra-corporate Controversies (interim rules) to govern the conduct of court proceedings for intra-
corporate disputes before such courts.

Even while the interim rules have been effective in governing and expediting the resolution of intra-corporate disputes before SCCs, recent cases have clarified that the SEC has not been entirely divested of its authority over intra-corporate disputes. Among others, it is not precluded in determining allegations of fraud even where these also present an intra-corporate dispute, so long as it is done for purposes only of fulfilling the SEC’s mandate, and to ensure compliance with its rules and regulations.

In the case of Pablo B Roman v Securities and Exchange Commission, 2016, the Philippine Supreme Court maintained the authority of the SEC to, upon complaint of a stockholder, appoint a management committee to take over the control and management of a corporation and its properties, which is a remedy that had otherwise been widely believed to lie only with the SCC under the interim rules.

Arbitration under 2019 code

Different forms of alternative dispute resolution, particularly arbitration, are gaining further traction as viable mechanisms for the speedy resolution of intra-corporate squabbles. Intra-corporate disputes are not among those identified under the Alternative Dispute Resolution Act of 2004 (ADR act) to be excluded from its scope, or otherwise non-arbitrable. Thus, parties to an intra-corporate dispute may agree to arbitration in lieu of instituting court proceedings before SCC. This option has been practical particularly for shareholder disputes between partner investors in the same corporation or an incorporated joint venture company who find such mechanisms more successful in protecting confidentiality and in maintaining the parties’ commercial relationship.

With the promulgation of the 2019 Revised Corporation Code, arbitration as a mode for resolving intra-corporate disputes has been reinforced with the inclusion of section 181, which expressly recognizes the incorporation of arbitration agreements in the articles or by-laws of an unlisted corporation to govern disputes between the corporation, its stockholders or members, arising from the implementation of its articles or by-laws or from intra-corporate relations. Considering the parties that would be involved, an arbitration under section 181 would reasonably be expected to be a domestic arbitration, although the provision notably does not require that the Philippines be specified to be the seat of the arbitration.

Section 181 versus interim rules

Section 181 is clear that where an arbitration agreement for intra-corporate disputes is incorporated in a corporation’s articles or by-laws, courts shall dismiss a dispute filed before them relating to the corporation before the termination of the pre-trial conference in the case. In this regard, a comparison of section 181 and the interim rules yields significant differences, which should be weighed in determining whether or not to incorporate an arbitration agreement in a corporation’s articles or by-laws that would bar resort to the courts (see table).

The law also specifies that the arbitration agreement incorporated in the articles or by-laws of the corporation will be binding “on the corporation, its directors, trustees, officers, and executives or managers”, thereby precluding the view that the said agreement would only bind the stockholders as the consenting parties to the corporation’s articles and bylaws.

Availability of interim reliefs

Interim reliefs, arguably, may also be applied for with the courts by virtue of section 181 granting the SEC the power to promulgate rules “subject to existing laws on arbitration”. Among these existing laws are, the ADR Act, which provides for application of interim measures with courts, and the Special Rules of Court on Alternative Dispute Resolution (special ADR rules), which specifies that such application should be filed with the Regional Trial Court. Under the special ADR rules, among the interim measures that a court may grant are, preliminary injunction, preliminary attachment or garnishment of funds, appointment of a receiver, and detention, preservation, delivery or inspection of property. The list is not exhaustive, given the use of the words “among others”. The constitution of a management committee may also be applied for as an interim relief.

	SCC	Section 181
When executory	Immediately executory	Executory after the lapse of 15 days from receipt of final award
Interim measures available	Provides for availability of, (1) all provisional remedies available to ordinary proceedings under the Rules of court; (2) receivership, and (3) management committee	Provides general reference to power of tribunal to grant interim measures
Enforcement of judgment/award/interim measure	To be executed by court sheriff	May require court assistance in accordance with existing arbitration laws
Appeal	Petition for review with the court of appeals under rule 43 of the Rules of Court	Not indicated

Additional requirements

Finally, it should be noted that section 181 goes beyond affirming arbitration as an alternative. It sets forth requirements that are otherwise not imposed under the ADR act or other existing laws on arbitration in the Philippines, including the following:

Non-participation of parties in the appointment of arbitrators. Section 181 specifically provides that the power to appoint the arbitrators forming the arbitral tribunal “shall be granted to a designated independent third party”, as opposed to existing arbitration laws where the default mechanism for appointment of arbitrators places such appointment in the hands of the parties.

SEC as appointing authority. Should the designated independent third party fail to appoint the arbitrators in the manner and within the period specified in the arbitration agreement, section 181 allows the parties to request the SEC to appoint the arbitrators even as the ADR act identifies the national president of the Integrated Bar of the Philippines as the default appointing authority in instances where the arbitration agreement does not name one or there is a failure to appoint one under the procedure agreed upon.

Qualification of arbitrators. Section 181 requires that “in any case, arbitrators must be accredited or must belong to organizations accredited for the purpose of arbitration,” in addition to the standard requirements under existing arbitration laws that an arbitrator be: of legal age; in full enjoyment of his or her civil rights; knows how to read and write; unrelated by blood or marriage within the sixth degree to either party; and without financial, fiduciary or other interest in the controversy, or personal bias, which might prejudice the right of any party to a fair and impartial award.

Availability of appeal. Section 181 also makes reference to an appellate court which may issue an injunction to stay the execution of the award and hints that the arbitration of intra-corporate disputes contemplated under section 181 of the new corporation may be more akin to the arbitration of construction disputes under Executive Order No. 1008 or the Construction Industry Arbitration Law, where arbitral awards may be appealed to the Court of Appeals, in contrast to the remedies provided under Administrative Matter No. 07-11-08-SC or the special ADR rules, where an initiatory petition is required to be filed with the lower court to correct, modify or vacate a domestic arbitral award.

The foregoing matters and their harmonization with existing laws and procedures governing domestic arbitration are expected to be clarified through the SEC’s implementing rules for section 181, which have yet to be issued or released.

Villaraza & Angangco
V&A LAW CENTER
11th Avenue corner 39th Street
Bonifacio Triangle, Bonifacio Global City 1634
Metro Manila, Philippines
Tel: +63 8988 6088
Email: info@thefirmva.com
www.thefirmva.com

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TAIWAN

Litigation in Taiwan is conducted in a three-tier structured court system. There are several district courts of first instance, at least one in nearly every county or city in Taiwan (including three district courts in the greater Taipei area).

Almost all disputes can be appealed to the High Courts as the court of second instance. However, with respect to High Court judgments at the second instance, only those regarding disputed amounts valued at not less than NT$1.65 million (US$56,000) can be appealed to the Supreme Court, which is the court of third instance.

A party can only appeal a judgment of the High Court on the grounds that such judgment is in contravention of laws and regulations, i.e., the applicable laws were not applied, or were erroneously applied. As per the rules promulgated by the Judicial Yuan (judicial branch of government), the courts at each instance are required to process cases according to certain timeframes: 16 months for the first instance; 24 months for the second instance; and 12 months for the third instance.

Interim measures

The interim measures available to a party from the Taiwan courts include: (1) provisional attachment; (2) provisional injunction; and (3) injunction to maintain a temporary status quo.

A creditor may apply for a provisional attachment with regard to a monetary claim, or a claim exchangeable for monetary claims, to secure satisfaction through an enforcement proceeding. Provisional attachment is granted where the creditor fully demonstrates prima facie the impossibility or extreme difficulty that said creditor would have in satisfying the claim through future enforcement.

In the case of insufficiency in the preliminary demonstration of said impossibility or extreme difficulty, if the creditor has also indicated a willingness to provide a security, and if the court considers it appropriate, the court may assess an amount for the security to be provided by the creditor and issue a ruling for provisional attachment upon the creditor’s provision of such security.

The amount of the security assessed by the court is generally one-third of the amount or value of the claim sought as indicated by the creditor. However, the debtor may also place a counter-security in the amount as indicated in the ruling for the provisional attachment, to revoke or to be exempted from the provisional attachment order. If the creditor applies for provisional attachment, the debtor may petition the court to order the creditor to initiate litigation with respect to the creditor’s claim within a period of time as designated by the court. If the creditor fails to initiate such litigation, the court may revoke the ruling for the provisional attachment.

This system seeks to protect creditors while also preventing creditors from abusing the provisional attachment mechanism with immature claims so as to restrain others from freely disposing of their assets.

Another interim measure is the provisional injunction, which applies to the security for a “non-monetary claim”. For example, in a real estate ownership dispute, the creditor may apply for a provisional injunction enjoining the debtor from disposing the subject real estate before a judgment is issued, so as to ensure the creditor’s ability to regain ownership rather than receive money as alternative compensation in satisfaction of the creditor’s claim for ownership.

Finally, a creditor may also apply for an “injunction to maintain a temporary status quo”, with regard to the legal relationship in dispute. An injunction is frequently used in disputes among shareholders for the control of a company and in IP disputes. The very purpose of such an injunction is aimed to maintain the status quo so as to prevent some material harm or imminent danger.

The notable feature of an injunction is that the court may require a party to make a payment before a resolution in the case regarding the disputed legal relationship becomes final (e.g., in a labour dispute, the employee may demand that the employer pay the monthly wage during the court proceeding).

Another feature of an injunction is that the court will accord the parties an opportunity to be heard before issuing its ruling.

In the author’s practice experience, the court will sometimes request the counterparty (the party against which the injunction will be ordered) to submit a brief to present its argument before rendering an injunction. The court may also hold a hearing to achieve the same purpose. However, the court may also reject or grant the injunction directly upon receipt of the application, if the court deems it appropriate to do so.

Court proceedings

There are different types of proceedings for disputes, depending only on the disputed amounts and the types of disputes, including small-claims proceedings (amount in dispute is no more than NT$100,000), summary proceedings (amount in dispute is no more than NT$500,000), or certain types of disputes (e.g., labour disputes where the employment period is no more than one year) and ordinary proceedings.

In small-claims proceedings and summary proceedings, the court may adopt a simplified approach as permitted by the Code of Civil Procedure (CCP), e.g., the court may, in principle, conclude the proceeding after one hearing has been held.

There is no typical class action under the CCP. However, multiple parties who have common interests may appoint one or more persons from among themselves to sue, or to be sued, on behalf of the multiple parties.

Notably, the party to such a case may participate without engaging an attorney on his or her behalf. However, at the third instance (the Supreme Court), the appellant is required to appoint an attorney as his/her advocate in the appeal from the judgment of a High Court, unless his/her statutory agent is qualified to act as an attorney.

Alternative dispute resolution

Mediation in court. Mediation in the court is not required unless the dispute belongs to certain types of disputes (e.g., real estate boundary disputes, rental of real property, traffic accidents, medical treatment, employment contracts, partnerships, and disputes arising from proprietary rights where the price or value of the object in dispute is less than NT$500,000), in which case the dispute will be subject to compulsory mediation by the court before litigation proceedings can be initiated.

A party may also voluntarily apply for mediation, and the application can interrupt the extinctive prescription (but the party will need to bring the dispute to the court within six months from the date of application). A successful mediation, in which the disputing parties reach a mutually accepted resolution, has the same effect as a final court judgment.

Mediation centre. There are several mediation centres or associations that provide mediation services in Taiwan. The Chinese Arbitration Association (CAA) established a medication centre in 2003 as a voluntary, non-binding and private ADR process. All of the mediators are experts in several fields and assist the disputing parties to reach amicable settlements. As per article 45 of the Arbitration Act, a mediation agreement has the same legal effect as an arbitral award.

Arbitration. The CAA provides arbitration services in Taiwan, and also in Hong Kong. Arbitral awards rendered by the CAA are enforceable in Taiwan courts, however, as Taiwan is not permitted to be a contracting member of the New York Convention, whether or not an arbitral award issued in Taiwan is enforceable is subject to the standards as set out in the applicable Arbitration Act of a relevant different jurisdiction.

However, as per the Arbitration Act, and in the spirit of the New York Convention, Taiwan courts usually enforce or recognize foreign arbitral awards. If a court of a different jurisdiction adopts the principle of reciprocity in determining whether or not it will recognize an arbitral award issued in Taiwan, Taiwan courts will typically recognize and enforce foreign arbitration awards. Arbitral awards from Hong Kong, Macau and China are, in principle, also enforceable in Taiwan as per the Act Governing Relations between the People of the Taiwan Area and the Mainland Area and the Laws and Regulations Regarding Hong Kong and Macau Affairs.

Professional courts: intellectual property and commercial disputes. The Judicial Yuan has long promoted the idea of “professional courts” in Taiwan. There are specific departments of the court that deal with particular types of cases, e.g., labour, construction and medicine. The Intellectual Property Court was established to resolve IP disputes. Recently, the Business Dispute Procedure Act was promulgated and the Judicial Yuan is expected to establish the IP and Business High Courts in the coming two years.

For business cases, only corporate/security cases can be brought to the IP and Business Court (for some disputes, the disputed amount must be not less than NT$100 million). The IP and Business Court is a two-tiered structured court system that will enhance the efficiency of court proceedings. A party in a business dispute must engage a qualified attorney to handle the litigation. A mechanism is added for expert witnesses in business court procedures. Finally, the court will recruit business investigators to assist the judges in deciding on various business issues in dispute.

FORMOSA TRANSNATIONAL ATTORNEYS AT LAW
13/F, 136 Jen Ai Road, Sec. 3, Taipei
Tel: +886 2 2755 7366
Fax: +886 2 2755 6486
www.taiwanlaw.com

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THAILAND

In this age of disruptive technologies, where artificial intelligence is displacing many conventional human roles as well as the manner in which international trade and other business transactions are conducted, the method of resolving commercial disputes must also adapt to these changes. The traditional way of litigating commercial disputes in courts may still remain the primary way of resolving them, but sooner or later the court will become forum non conveniens to try these disputes. With their flexibility to quickly adapt to changes, mediation and arbitration are gaining popularity in filling this void left by the court.

It is more compelling to resolve disputes via mediation in which the parties reach a mutual agreement even though they come away with less than what they expected. If mediation does not succeed, arbitration is the other alternative. A distinct advantage of arbitration over litigation is that the parties can appoint neutrals to settle their dispute. What is more, they have the flexibility of choosing the rules to govern their arbitration proceedings instead of submitting themselves to the rigid rules of court procedure.

Overview of arbitration law

The current law on arbitration is the Arbitration Act, 2002 (AA), which mostly follows the UNCITRAL Model Law on International Commercial Arbitration. Pursuant to the adoption of AA, Thai courts will enforce foreign arbitral awards to the extent of Thailand’s commitment under international agreements.

Thailand became a member of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 ( the New York convention), without any reservations. The New York convention enables (through AA) foreign arbitral awards to be enforced in Thailand and for arbitral awards issued in Thailand to be enforced in 164 member states (as of June 2020), subject to the reservations made by those states.

The ability to enforce arbitral awards issued in Thailand among the member states of the New York convention provides a marked advantage of arbitration over litigation in Thailand, because a Thai court judgment is not enforceable as a matter of right outside Thailand, as there is no treaty or international agreement to enable it to be done.

Therefore, it is up to the courts in the countries where the Thai court judgments are sought to be enforced, and whether to enforce them on the basis of reciprocity, comity or otherwise. For the same reason, it is not possible to enforce a foreign court judgment in Thailand. In practice, a foreign court judgment can be submitted as evidence of the claim, which must be litigated de novo (from the beginning).

Unlike the old Arbitration Act of 1987, the AA does not make any distinction between domestic and international arbitration. Arbitrability under the old act was limited to civil disputes, whereas the AA does not contain such limitations, but covers all disputes whether or not arising from contractual relations. The AA also covers all disputes arising from contracts between the state and private parties.

Unfortunately, the administrative branch of the government discourages the insertion of arbitration clauses in state contracts, requiring government agencies and state enterprises to request permission from the council of ministers before doing so. The reason behind this is that government agencies and state enterprises have lost many arbitration cases against private parties resulting in substantial awards against them.

Thailand has also concluded investment treaties with many countries, both on bilateral and multilateral bases. Many of the treaties contain arbitration clauses whereby the private investors or host states can institute arbitration proceedings to resolve their disputes under the respective treaties.

Facilitating regulations

In order to promote Thailand as a venue for international arbitration, visa and work permit laws have been relaxed to facilitate foreign arbitrators and those acting as party representatives in arbitration proceedings in Thailand.

“Smart visas” and special work permits are generally granted to foreign arbitrators to enable them to carry out their duties until the closure of the proceedings. Foreign lawyers, who are normally prohibited from practising in Thailand, are permitted to receive a special dispensation from the law to act as representatives of a party in arbitration proceedings.

Local arbitration institutions

There are three main arbitration institutions in Thailand:

• The Office of the Arbitration Tribunal of The Board of Trade of Thailand;
• The Thai Arbitration Institute of the Office of the Judiciary (TAI), and;
• The Thai Arbitration Centre (THAC) under the auspices of the Ministry
  of Justice.

The arbitration centre operated by The Board of Trade of Thailand (a federation of Thai and foreign chambers of commerce in Thailand) is by far the oldest institution. It is also where the office of the ICC Thailand is situated. The Board of Trade of Thailand has been administering the Thai Commercial Arbitration Rules since the 1960s. The centre is supported by the Board of Trade of Thailand and detached from governmental agencies.

Established in 1990, TAI is a successful attempt by the judiciary to promote alternative dispute resolution in the country. TAI has the highest number of ongoing arbitration proceedings. Although the institute is a part of the Office of the Judiciary, which is the administrative arm of the courts, and is overseen by it, neither the office nor the courts interfere with the deliberations or decisions of the arbitrators. TAI is the main forum where disputes arising from contracts between the state and private parties are arbitrated.

Not to be confused with TAI, THAC was established by an act of parliament in 2007, but started operation in 2015. THAC has been in the forefront of promoting arbitration in general and in presenting itself as an international arbitration centre.

It has modern facilities and is conveniently situated in a buzzling part of Bangkok, within minutes of famous hotels and shopping centres. Although THAC is partly funded by the Ministry of Justice, the latter does not interfere with the arbitration proceedings under the centre’s rules. THAC’s connection with the Ministry of Justice provides it with the unique opportunity to initiate changes in laws and regulations to make Thailand a more friendly place for arbitration.

Other arbitration centres

Apart from the three main arbitration centres there are four other centres that administer their own arbitration rules relating to specific areas or industries. These include:

The Arbitration Centre of the Office of the Insurance Commissioner. The Centre administers its arbitration rules to resolve disputes between the beneficiaries and the insurance companies.

The Arbitration Centre of the Office of the Securities Commission. The centre administers its arbitration rules to resolve disputes between capital market investors and securities companies.

Office for the Prevention and Resolution of Disputes regarding Intellectual Property. As its name suggests, this centre is attached to the department of intellectual property and administers its arbitration rules to resolve disputes regarding intellectual property matters (trademark, patent and copyright, etc.), as well as disputes arising from licensing and other agreements relating to intellectual property.

The Arbitration Centre of the Thai General Insurance Association. The centre administers its arbitration rules to resolve disputes arising from among its members.

Final thoughts

For a long time, arbitration has been promoted as an alternative way of dispute resolution, its increasing popularity is mainly attributable to its flexible nature, which enables it to keep pace with the rapidly changing business landscape.

Thailand is a long -standing member of the New York Convention, thereby allowing foreign arbitral awards to be recognized and enforced within its territory. Conversely, awards made in Thailand can be enforced in 164 member states across the world, subject to the reservations made by those states. The Thai arbitration law follows the UNCITRAL Model Law in the most part, further strengthening Thailand as an international arbitration forum. Further efforts have also been made to relax certain laws and regulations to facilitate the participation of foreign arbitrators and counsel to in Thai arbitration proceedings.

Presently, there are a number of arbitration institutions in Thailand which can cater to the needs of the parties seeking to resolve their disputes. Thailand has been a long-recognized venue for ICC and ad hoc arbitration under the UNCITRAL Rules. It is now asserting itself to become the hub of international arbitration.

International Legal Counsellors Thailand Ltd. (ILCT)
18th Floor, Sathorn City Tower
175 South Sathorn Road, Tungmahamek,
Sathorn, Bangkok 10120, Thailand
Tel: +66 (0) 2679 6005
Email: law@ilct.co.th
www.ilct.co.th

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UAE

The United Arab Emirates (UAE) is a federation of seven emirates comprising Dubai, Abu Dhabi, Ajman, Fujairah, Ras Al Khaimah, Sharjah and Umm Al Quwain. The federal judicial system in the UAE is based on a civil law system derived from Sharia law and influenced by Egyptian laws and jurisprudence.

The UAE constitution, however, allows the emirates to opt out of the federal judicial system. An emirate may set up its own independent judicial system. Presently, Abu Dhabi, Dubai and Ras Al Khaimah have their own independent judicial systems while the other emirates continue to be a part of the federal judicial system.

All emirates have courts based on a two-tiered system (mainland courts) comprising the Court of First Instance and the Court of Appeal. In addition to the above, Abu Dhabi, Dubai and Ras Al Khaimah also have a Court of Cassation, the highest court within the emirate. In all other emirates, the final appeal will be to the Court of Cassation in Abu Dhabi.

Dubai International Financial Centre (DIFC) Courts and Abu Dhabi Global Market Courts (ADGM courts) are offshore courts within the UAE. DIFC serves as an independent body with its own set of laws based on the common law system and an independent judicial system. Adding the DIFC jurisdiction to contracts allow parties to choose DIFC courts for dispute resolution. Similarly, the ADGM Courts, established in 2016, are common law courts based on the English court system, adjudicating civil and commercial disputes. The direct application of English common law makes ADGM the first jurisdiction in the Middle East to adopt an approach similar to that of Singapore and Hong Kong.

As the UAE has established itself as a regional hub for international business, arbitration is gaining popularity as a means of dispute resolution.

The Dubai International Arbitration Centre (DIAC) is a regional arbitration centre established in 1994 as part of the Dubai Chamber of Commerce and Industry. Within the DIFC, the DIFC-London Court of International Arbitration (DIFC-LCIA) centre was set up in collaboration with the LCIA. The DIFC-LCIA centre allows application of internationally renowned LCIA rules. The standards, capabilities and rules of the LCIA are trusted by commercial parties and international investors.

When parties in DIFC-LCIA opt for the DIFC as the seat of arbitration, the DIFC courts recognize the arbitral award and can order enforcement against a respondent’s assets. Further, a local office of the International Court of Arbitration (ICC), the world’s leading arbitral institution for resolution of international commercial disputes, has been set up in Abu Dhabi.

Disputes during lockdown

The spread of covid-19 has had severe legal ramifications for businesses operating around the world. We have seen a significant rise in queries pertaining to termination of contracts invoking force majeure clauses, delay in deliveries and non-payment of dues.

The full lockdown of business and public life announced in April 2020 in the UAE has further aggravated the impact on businesses. As a result, there has been a surge in commercial disputes and the parties to the disputes have been wary of their legal options amid social distancing protocols, as several hearings were adjourned and courts and arbitration centres have changed their way of functioning.

Therefore, UAE courts and other legal forums such as arbitration centres are undertaking a digital transformation to mitigate health risks and remain functional in the time of lockdowns and quarantines.

Onshore and offshore courts and arbitration centres in the UAE have made efforts to address the concerns with respect to the nature of proceedings. The ability of courts and arbitration centres to adapt to the “new normal” is directly linked with the flexibility its rules provide to facilitate a virtual hearing and the extent of digital infrastructure it can support.

Mainland courts

Hearings for Dubai Court of First Instance, Court of Appeal and Court of Cassation were adjourned from 22 March to 16 April. On 19 April, Dubai courts announced provisions for virtual hearings hosted on Microsoft Teams software.

In our experience, virtual hearings have been running smoothly and successfully. The reason for the seamless transition is likely due to the fact UAE government entities had already digitized several functions such as reporting of criminal, traffic and administrative violations of law through the Dubai police website and filing of cases through the Dubai courts’ online platform before the onset of covid-19.

Following Dubai, Abu Dhabi courts announced on 30 March that all civil and criminal court proceedings shall be conducted electronically through the courts’ electronic system. The courts in other emirates are also adopting innovative strategies. Ras Al Khaimah courts are conducting hearings under the electronic court services system and Ajman courts have also initiated “e-trials” in response to the covid-19 pandemic.

Offshore courts

All hearings in DIFC courts are being held through teleconferencing. Filing is carried out using the e-bundling platform available through “e-Registry”. The wills service centre at DIFC is conducting registration of wills over video conferencing, which allows the testator and two witnesses to affix electronic signatures on the uploaded will.

ADGM courts have been running an “eCourt” platform since 2018, owing to which it did not face much disruption in its service. All filings can be submitted through this platform.

Arbitration centres

DIAC allows new requests for arbitration and submission of documents to be carried out through their online portal. Hearings that were scheduled in advance can be postponed or be held via videoconferencing, subject to the decision of the arbitrator or tribunal.

DIFC-LCIA is holding electronic hearings or allows for postponement provided the tribunal and parties agree. In line with other leading arbitration centres, the ICC allows for requests for arbitration to be filed electronically. ICC offices around the world are currently conducting virtual meetings and hearings.

The agility of court systems and arbitration centres to adapt to remote operations has ensured that operations remain largely unaffected during these unprecedented times. As restrictions are being eased and businesses are returning to normal, we are of the view that the court systems and arbitration centres will continue to evolve as they retain virtual hearings in parallel with physical hearings.

Based on our recent experience, we recommend that parties in disputes should make efforts to communicate and try to renegotiate the terms of their agreement in the context of the new reality. If the parties opt for litigation, it may initially be inconvenient, but if the hearings are supported by adequate technological infrastructure, virtual courtrooms may improve the efficiency of the dispute resolution process.

Galadari Advocates & Legal Consultants
Galadari Building
P.O. Box 7992, Dubai, UAE
Tel: +971 4377 8100
Email: info@galadarilaw.com
www.galadarilaw.com