Thai PM : We have new information in plane seizure case
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Thai PM : We have new information in plane seizure case

The Nation:

Prime Minister Abhisit Vejjajiva is preparing to turn the tables on Germany in the investment conflict and the jet-seizure case – saying Thailand has information that could make Berlin change its tone.

However, Abhisit said he could not reveal the information immediately because it might affect the court proceedings, both in New York and Munich.


Asked whether he thought Thailand had a chance to win the case, Abhisit said: “Yes, I think the information is significant for the case.

“As far as I know, the information indicates there [has been] no justice for the Thai government in this case” so far, he said. “If the German government considers this information, I think it should readjust its stance towards Thailand. The case might not be prolonged.”

Attorney-General Julasing Wasantsing said briefly after the meeting with the prime minister that “there is a chance, there remains hope in the case”.

The Nation:

The company also brought the case to a German court in Berlin asking for enforcement of the arbitration tribunal’s decision. The case is now under consideration, Julasing said, adding that he would bring a key witness to the trial to prove that the international tribunal mishandled the case.

Thailand had a witness who was very familiar with the investment contract from the beginning, but the international arbitration tribunal refused to take this witness into account and made an unfair judgement against the Thai government, Julasing said.

If the German court in Berlin learned about this key witness, I believe the court would agree with Thailand that the tribunal made the wrong decision on the case,” he said. “Therefore enforcement to compensate the company would be impossible.” The Berlin court has asked both sides to submit documents and evidence for its consideration by August 16, he said.

AbhisitVejjajiva3

Pic:AP

BP: Based on what the Attorney-General is saying, this is not new information in the sense that Thailand has a new witness or new information that has just come to hand – it is old information that Thailand tried to present to the international arbitrators, but it was rejected. BP has had a read through the US District Court decision where WB sought confirmation of the arbitration award  (i.e enforcement) and on page 10, the judge summarized ( PDF) Thailand’s arguments against confirmation:

[p10]

Thailand presents two main arguments as to why the Petition in this case should be dismissed: (1) the Arbitrators improperly asserted jurisdiction as the Parties did not agree to arbitrate; and (2) forum non conveniens grounds based primarily on the fact that Thailand has no assets in the United States.

[p13]

C. Section 10(a) of the FAA or Manifest Disregard. Section 10(a) of the FAA sets forth four situations in which a court may vacate an arbitration award. In its Cross­- Motion, Thailand does not even argue that any of the Section 10(a) factors apply.

BP: From a quick re-read, cannot see any mention of this key witness and what information he may have. In regards to the appeal filed (PDF). Below is from the table of contents on what was argued:

ARGUMENT ………………………………………………………………………………………………..14
A. The District Court Must Decide The Question Of Arbitrability Independently ………………………………………………………………………….14
1. Supreme Court Authority Demonstrates that WB’s
 Alleged Right to Arbitrate Presents a Question of Arbitrability……………………………………………………………………14
2. This Court’s Authority Demonstrates that WB’s Alleged 
Right to Arbitrate Presents a Question of Arbitrability………..19
B. Whether WB Is A Third-Party Beneficiary Of The 2002 Treaty Presents A Question Of Arbitrability………………………………………….23
C. The District Court’s Analysis of First Options is Erroneous …………25
1. That Thailand Is a Signatory of the 2002 Treaty Makes 
No Difference…………………………………………………………………25
2. Thailand and WB Did Not Negotiate the Arbitration Agreement …………………………………………………………………….. 26

D. There Is No Clear And Unmistakable Evidence That Thailand 
And WB Agreed That Only The Tribunal Would Decide The Question Of Arbitrability…………………………………………………………..30
E. The Manifest Disregard Standard Is Irrelevant …………………………….34
F. The Court Should Remand The Action And Direct The District 
Court To Decide Independently Whether Thailand Was
Required To Arbitrate WB’s Claims …………………………………………..34

BP: Abhisit was very vague and the Attorney-General was very vague as well, so are Thailand only going to mention this information to the German courts and not to the US courts? Surely, if it was decisive information that would be grounds to deny enforcement of the arbitration award, Thailand would be mentioning it to the US courts, right?

See Douglas Mancill’s post here:

So what is the appeal about?

Basically Thailand argues that the US district court applied the wrong standard of review in determining whether Walter Bau and Thailand agreed to arbitrate the dispute when it confirmed the arbitration award.  It’s about the “arbitrability” of the dispute.  Thailand argues that the US district court was obliged – under U.S. law – to take a “fresh look” at whether there was an agreement to arbitrate. The US district disagreed, saying: “Thailand has already conceded, as it must, that it entered into two treaties that expressly provide for arbitration…” and this is a dispute about the scope of this undisputed arbitration obligation, something which the arbitral panel itself has the authority to decide.

The US District adds: “While the Court finds it unnecessary to review the Arbitrators’ Award de novo [legal language for a “fresh look”], it is important to note that…there is serious doubt as whether, even on a de novo review, Thailand would be able to turn over the Arbitrators’ well reasoned award.”

BP: Thailand is no longer contesting the forum non conveniens aspect – see here.