In cross-border disputes, a recurring concern for claimants is whether they can protect respondents’ assets located in jurisdictions other than the seat of arbitration. This article explores whether Thai courts can issue interim measures, such as freezing orders, under Section 16 of the Thai Arbitration Act (2002) to support an arbitration seated outside of Thailand.
Requesting Interim Measures
Section 16 provides that a party to an arbitration agreement may request that the court impose interim measures, either before or during arbitral proceedings. If the court determines that it would have been able to impose such measures had the proceedings been conducted in court, it may proceed as requested.
Notably, Section 16 does not limit its application to arbitrations seated in Thailand. It simply refers to “a party to an arbitration agreement,” which arguably includes both domestic and international arbitrations. Further, it allows for applications even before arbitration is commenced, provided that the arbitration is initiated within thirty days from the issuance of the order (or other period the court prescribes).
A Hypothetical Scenario
Consider the following scenario: Company A, incorporated in the Netherlands, and Company B, incorporated in the Cayman Islands, have entered into a contract containing a clause requiring arbitration at the Singapore International Arbitration Center (SIAC). A dispute arises, and Company A commences arbitration at SIAC. Company B holds significant assets in Thailand, such as bank accounts or real estate. Concerned that Company B might dispose of its assets before an award is rendered, Company A applies to the Thai court seeking a freezing order over those assets. Can the Thai court issue such an interim measure?
The answer is not straightforward. Thai law is silent regarding whether Section 16 applies to arbitrations seated outside Thailand, leaving the door open for argument. Some academic sources suggest that the decision to grant relief rests on whether the requested measure would have been available had the dispute been brought in the Thai court. In this example, since the assets are located in Thailand, the Thai court would ordinarily have jurisdiction to issue a freezing order under Thai procedural law if this were a domestic civil case. This satisfies the key threshold under Section 16.
Nevertheless, Thai courts have been cautious in extending their assistance to foreign arbitrations, especially without clear statutory guidance or established precedent. No Supreme Court decision has directly addressed whether Section 16 can be applied to arbitrations seated outside Thailand. While the legal basis under Section 16 may exist, the practical success of any application depends on the court’s interpretation, the applicant’s evidence, and whether the relief sought meets the standard under Thai procedural law, typically requiring proof of urgency, irreparable harm, and previous filing of an arbitration case. In this legal vacuum, lower courts may adopt a conservative approach, weighing each case on its specific facts.
In conclusion, while Section 16 does not expressly restrict its scope to arbitrations seated in Thailand, and there is theoretical support for the Thai court’s jurisdiction to issue interim measures in support of foreign arbitrations, the matter remains legally unsettled. Such a motion might be considered by a Thai court, but whether it would be granted is another matter entirely. For now, the answer lies in a legal grey zone: possible in principle, but uncertain in practice.
This article was originally published in the July 2025 edition of The Legal Industry Reviews: Thailand. For more information, please visit The Legal Industry Reviews website at https://thelegalindustry.com/.
