Alternative Dispute Settlement in Administrative Contract through Arbitration

Abstract

This research is a study of problems regarding the use of an Alternative Dispute Resolution (ADR) through arbitration to settle disputes arising from administrative contracts. The purpose of this research is to study the principles of the dispute resolution in administrative contracts through arbitration, including the problems arising from the enforcement of the Arbitration Act, B.E. 2545 (2002) to the dispute resolution in administrative contracts. An administrative contract is a contract, which has special characteristics focusing on the achievement of providing public service which is a duty of the government, as well as always aiming to protect the public interest over private interest. Therefore, an administrative contract should be enforced so that the public interest shall be served, even though such enforcement would affect the private party. As a result, an administrative contract has a special clause stipulating that the government agency party shall have greater power or privilege than the private party. Nevertheless, Section 15 of the Arbitration Act, B.E. 2545 (2002) prescribes that in any contract made between a government agency and a private enterprise, regardless of whether it is an administrative contract, the parties may agree to settle any dispute by arbitration. Such arbitration agreements shall bind the parties. This may cause an argument on the issue on whether employing arbitration, which is an alternative dispute resolution in the commercial and business sector, to settle the disputes in the administrative contract, is contrary to the principle of administrative law. Furthermore, there are many problems concerning this matter, such as the arbitrator’s expertise in administrative contract, the arbitral proceedings, including the challenge of arbitral award and the enforcement of arbitral award which currently has the same practice as dispute settlements in the civil contract. This research is a quality research by comparing between French Administrative Contract and U.S. Government Contract, including the dispute resolution arising from administrative contracts, which are the criteria for analyzing of the dispute resolution in administrative contract through arbitration in Thailand. According to the study, there are two resolutions to resolve the problem. Firstly, Section 15 of the Arbitration Act, B.E. 2545 (2002) should be amended by providing the administrative contract which specifies the arbitration method to be used for dispute resolution and must be approved by the Council of Ministers in accordance with the rules and procedures prescribed in the Royal Decree, as well as establishing a dispute resolution committee regarding administrative contracts as an alternative means to settle disputes for both parties. Secondly, the Administrative Court which has the duty to adjudicate disputes in the administrative contracts, the challenge and the enforcement of arbitral awards in an administrative contract, shall be strict in reviewing or examining the awards in accordance with the law.