English language Program on Master of Laws,
Faculty of Law, Thammasart University
Course : LB 622 (1st Semester, 2011)

Alternative Dispute Resolution (Emphasizing on Disputes with State Organs) By Prof. Kampree Kaocharern Date : 22 - 29 Aug., 5 -12 - 19 - 26 Sept. 2011 Class time : 17.30 – 20.30 P.M. Venue : Room No. 123, Faculty of Law Building Thammasart Univ., Tha Prajan, Bangkok. (see the lecturer's outline in detail, >>> Click) 1. INTRODUCTION 1.1 Historical Background 1.2 Settlement of Dispute Process, Arbitration and ADR Procedures 1.3 Recognition of Arbitration and ADR in Thailand 1.3.1 Prior to Arbitration Act, B.E. 2530 1.3.2 Arbitration Act, B.E. 2530 1.3.3 Arbitration Act, B.E. 2545 1.3.4 Arbitration under some Specific Laws 1.3.5 Influence of International Trade and Arbitration 1.3.6 Rules on Arbitration & ADR Organisations 2. ARBITRATION CLAUSE UNDER GOVERNMENT CONTRACTS 2.1 General Application 2.1.1 Meaning & Legal Status 2.1.2 Written Clause to be Proved 2.1.3 Contractual Effects 2.2 Required Elements to be Written in Arbitration Clause 2.2.1 Preamble on Dispute Resolution & Characteristic Argument 2.2.2 Number of Arbitrator 2.2.3 Selection & Nomination Process 2.2.4 Procedural Laws 2.2.5 Language 2.2.6 Place of Arbitration 2.2.7 Governing Law 2.3 Drafting & Negotiation 2.3.1 Contracts under Gov't Budget 2.3.2 Contract under Loan Agreement or Monetary Aids Project 2.3.3 Consideration on the Private Party 2.3.4 Consideration on the Government Party 3. ARBITRATION PROCEEDING 3.1 Nomination of Arbitrator(s) & Umpire 3.1.1 Roles of Arbitrators 3.1.2 Consideration on the Decisive Role of Engineer under the FIDIC's Conditions of Contracts 3.1.3 Obstacle to the Role of Arbitrators 3.1.4 Independence and Immunities of Arbitrator 3.1.5 Nomination of Arbitrators 3.1.6 Power and Discretion of Arbitrators 3.2 Arbitration Proceedings 3.2.1 General Meeting 3.2.2 Submit of Claims, Statement to the Claims, Counter of Claims, and Statement to the Counter of Claims 3.2.3 Clarification of Decisived Issues 3.2.4 List of Witness, Speech of Witness 3.2.5 Expert Examination 3.2.6 Extention of Time 3.2.7 Neutral Expert 3.2.8 Final submit of Declaration 4. AWARD OF ARBITRATOR 4.1 How to make an Award 4.2 Recognition of Award 4.3 Enforcement of Award 5. PROBLEMS on GOVERNMENT'S DISPUTE 5.1 Enforcement of Award against Government Agencies 5.1.1 Regulations and Customary Practice of the Government Agencies 5.1.2 Legal Issues on the Recognition of Award 5.1.3 Obatacles to the Enforcement of Award against the Government Agencies 5.2 Disputes on the Administrative Contracts 5.2.1 Analysis on the Administrative Contracts 5.2.2 Enforcement of the Arbitration Clause under the Administrative Contracts 5.2.3 The Competent Court over the disputes under the Administrative Contracts 5.3 Cabinet's Resolution on the Settlement of Disputes under the Concession Agreements and the Joint Venture Agreements between private company and government agency 5.4 The Arbitration Act, B.E. 2545 and its Sanction on Arbitrator 5.5 International Arbitration and Enforcement of Awards          -Thailand's obligation under international treaties, e.g.,"the Treaty Between The Federal Republic of Germany and the Kingdom of Thailand made on 24 June 2002 Concerning the Encouragement and Reciprocal Treatment of Investments" as referred by the Claimant in German Court for seize of an aeroplane in Walter Bau case)          -Enforcement of the arbitral award made in a foreign country, e.g., Walter Bau company, the private party in Walter Bau case seeked enforcement of the arbitral award in a German court by filing a motion requesting the court to issue an order imposing seize measurement on aeroplane which Walter Bau claimed to be Thai Government's property. 6. CASES STUDY on DISPUTE RESOLUTION under GOVERNMENT CONTRACTS 6.1 ITV Contract 6.2 Bangna - Bangpakong Express Way Construction Contract 6.3 Hope Well Concession Contract 6.4 Rayong Water Work Concession Contract 6.5 Expressway Concession Contract Phase II (Toll Fee) 6.6 Expressway Concession Contract Phase II (Emergency Protection Clause under the Arbitration Act, B.E. 2530 ) 6.7 PAT's Construction Contract on the Port Expansion Project (competency of the contractor's arbitrator as appointed by a JV contractor's agent) 6.8 FIDIC's Condition of Contract, Clause 20 - Claims, Disputes and Arbitration (failure to comply with the decision of an Engineer/a Dispute Board) 6.8 สัญญาให้สิทธิรับ-ผลิต-จำหน่ายข้อมูลดาวเทียม SPOT 6.9 สัญญาโครงการร่วมก่อสร้างเคเบิ้ลใต้น้ำ TH-MAL-SIN 6.10 สัญญาสัมปทานทางด่วน Phase II (การคุ้มครองฉุกเฉิน) 6.11 สัญญาโครงการร่วมก่อสร้างเคเบิ้ลใต้น้ำ HK-AUS-ASIAN 6.12 สัญญาสัมปทานทางยกระดับ ดอนเมืองโทลเวย์ กรณี Walter Bau AG (in liquidation) 6.13 ............etc.,................ 7. CONCLUSIONS 7.1 Main Issues on ADR and Arbitration 7.1.1 ADR as alternative means for dispute resolutions 7.1.2 Arbitration isn't a last mean in some cases 7.2 Pitfalls on ADR and Arbitration 7.2.1 Required checklists in general cases 7.2.2 Specific obstacles in Gov't cases 7.3 Q. & A. * * * * * * * * * * * * Course Description :          -Study of the concepts of and alternatives for out-of-court settlements of disputes e.g. negotiations, conciliations and arbitrations, pros and cons of each alternative and related laws both domestic and international particularly treaties, principal institutions providing out-of-court settlements of disputes and problems relating to settlements of disputes with state organs. Lecturing, Grading and Assignment :          -The LB 622 course covers a series of lectures jointly and consecutively by Associate Prof.Dr.Anan Chantara-Opakorn(DAC), Mr.Victor Smith(VS) and Prof.Kampree Kaocharern(KK).          -Grading consists of two parts, the first 30% (10% by each Lecturer) to be awarded on class participation, i.e. attendance, research, questions and presentations. The 2nd part is 70% on papers (3 in total) submitted by groups of three students; marking of papers will take into consideration presentation, accuracy, research arguments and conclusions. Suggested textbooks and Websites          -To fulfill homework and research, students have to read some recommmended textbooks in the library and search more on interesting cases on ADR from websites including Kampree Law. Students may raise questions and present their opinion on ADR in the class. * "Thai Arbitration Act B.E. 2545 (A.D. 2002)" : The Chartered Institute of Arbitrators Association, Bangkok. ** "Uncitral Model Law on International Commercial Arbitration" : United Nations, Vienna. *** "Alternative Mechanism for the Settlement of Transnational Commercial Disputes" : The Arbitration Office, Court of Justice, Thailand." **** "The Freshfields Guide to Arbitration and ADR - Clauses in International Contracts" : Kluwer Law and Taxation Publishers, (Deventer & Boston). ***** "International Dispute Resolution : Towards an International Abitration Culture" by General editor Albert Jan van den Berg with the assistance of the Permanent Court of Arbitration, The Hague : Kluwer Law International, The Heague, (London & Boston). ****** "Contemporary Problems in International Arbitration" edited by Julian D M Lew, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary College, University of London. ******* "Law and Practice of International Commercial Arbitration" Alan Redfern, Martin Hunter and Murray Smith, London, Sweet & Maxwell. *>>> ITV Concession Case **>>> Government's Joint Venture Agreement ***>>> Bangna-Bangpagong Construction Case ****>>> Elevated Train & Road Concession Case ("Hopewell Case") *****>>> Tool Fees Problem in the Expressway Concesstion Case ******>>> Administrative Court and Administrative Cases Procedure B.E. 2542 *******>>> Arbitration Clause of FIDIC ********>>> Specimen Form of Award *********>>> PROF. ANAN LAW FORUM **********>>> Arbitration in case of corruption by a Gov't party of contract ***********>>> Costs of Arbitration ************>>> Loxleys vs Gov't Lottery Office ("Jaco Case") *************>>> FIDIC's Arbitration Clause" **************>>> WIPO's Clauses on Mediation, Arbitration and Expert Determination" ***************>>> Donmuang Tollways Concession Case ("Walter Bau Case") ****************>>> Award on Walter Bau Case *****************>>> Thai Cabinet and its Attitude on Arbitration ******************>>> Thai Arbitration Act, 2002