When Thai Arbitrators Assisting A Party in Preparing Witness Exam

When Thai Arbitrators Lack Neutrality:

Consequences of Assisting One Party in Preparing Witness Examination

22 February 2025, Bangkok – In Thailand, arbitration has emerged as a favored mechanism for resolving disputes outside traditional courts, valued for its efficiency, flexibility, and confidentiality. Governed by the Arbitration Act B.E. 2545 (2002), the success of this process hinges on a fundamental principle: the impartiality of the arbitrator. However, when a Thai arbitrator compromises this neutrality—for instance, by assisting one party’s lawyer in rehearsing witness examination to question the opposing side’s witnesses—the repercussions are profound, affecting legal integrity, ethical standards, and the credibility of Thailand’s arbitration system. This article explores these consequences in detail.

1. Undermining Fairness in the Process

Under Section 19 of the Arbitration Act B.E. 2545, Thai arbitrators are legally obligated to act independently and without bias. Assisting one party’s counsel in preparing witness examination—such as suggesting questions or strategies to undermine the opposing side’s witnesses—directly violates this duty. Such actions erode the fairness of the proceedings, leaving the disadvantaged party with a justified sense of injustice. This breach of impartiality jeopardizes the legitimacy of the entire arbitration process, potentially leading to the rejection of the arbitrator’s final award by the affected party.

2. Impact on the Arbitral Award

The Arbitration Act B.E. 2545, under Section 40, allows a party to petition a Thai court to set aside an arbitral award if the process was unjust or the arbitrator exhibited bias. Should the disadvantaged party uncover evidence of the arbitrator’s misconduct—such as records of conversations or witness testimony proving collusion with the opposing side—the court could nullify the award. This outcome renders the time, effort, and expense invested in arbitration futile, forcing the parties to either restart the process or resort to litigation. Such a scenario defeats the very purpose of choosing arbitration as an efficient dispute resolution method.

3. Ethical and Reputational Fallout

Arbitrators in Thailand are often respected professionals—former judges, seasoned lawyers, or academics—whose credibility underpins their appointments. Engaging in biased behavior, such as aiding one party in witness preparation, constitutes a serious breach of professional ethics. Beyond personal consequences, this misconduct tarnishes the reputation of affiliated institutions, such as the Thailand Arbitration Center (THAC). If exposed publicly, it could spark criticism and erode trust in Thailand’s arbitration framework, deterring both domestic and international parties—particularly investors—from relying on it.

4. Practical Implications for the Dispute

When an arbitrator assists one side in rehearsing witness examination, the advantaged party gains an unfair edge. For example, they might preemptively identify weaknesses in the opposing witnesses or craft questions designed to distort the facts. This imbalances the presentation of evidence, skewing the arbitration toward an outcome that may not reflect the full truth. The disadvantaged party, unaware of the collusion, is left vulnerable, and the resulting award risks being unjust.

5. Solutions and Preventive Measures

To safeguard against such issues, Thailand’s arbitration system must strengthen oversight and accountability. Clear guidelines prohibiting ex parte communication between arbitrators and parties, coupled with regular ethics training, could reinforce impartiality. Additionally, under Section 20 of the Arbitration Act, parties should feel empowered to challenge an arbitrator’s appointment at the earliest sign of bias. Transparent mechanisms for reporting and addressing misconduct would further bolster confidence in the system.

Conclusion

When a Thai arbitrator abandons neutrality by helping one party prepare witness examinations to question the other side’s witnesses, the consequences are far-reaching. The process loses its fairness, the arbitral award faces legal challenges, and the reputations of both the arbitrator and the broader system suffer. This not only undermines individual cases but also threatens Thailand’s standing as a reliable hub for dispute resolution. Upholding impartiality is not merely an arbitrator’s duty—it is the cornerstone that ensures arbitration remains a trusted alternative to litigation in Thailand.

SEAProTI’s certified translators, translation certification providers, and certified interpreters:

The Southeast Asian Association of Professional Translators and Interpreters (SEAProTI) has officially announced the criteria and qualifications for individuals to register as “Certified Translators,” “Translation Certification Providers,” and “Certified Interpreters” under the association’s regulations. These guidelines are detailed in Sections 9 and 10 of the Royal Thai Government Gazette, issued by the Secretariat of the Cabinet under the Office of the Prime Minister of the Kingdom of Thailand, dated July 25, 2024, Volume 141, Part 66 Ng, Page 100.

To read the full publication, visit: the Royal Thai Government Gazette