PRE-LITIGATION MEDIATION OF DISPUTE REGARDING ADMINISTRATIVE CONTRACT : A COMPARATIVE STUDY OF FOREIGN LEGAL FRAMEWORKS AND THAI

Abstract

Objectives of research article: This research examines the legal framework governing pre-litigation dispute mediation concerning administrative contracts before administrative courts in selected foreign jurisdictions and Thailand. The study employs a qualitative research methodology through the study and analysis of documentary sources, together with data collected from in-depth interviews with 20 key informants and a focus group discussion involving 9 experts. The data were analyzed using descriptive analysis. The findings indicate that Section 258 (D)(1) of the Constitution of the Kingdom of Thailand B.E. 2560, concerning the judicial process, promotes the establishment of mechanisms to facilitate prompt and effective access to justice for the public. A comparative examination of the laws of six foreign jurisdictions-namely, the French Republic, the Federal Republic of Germany, the United States of America, the Republic of Austria, England, and the Netherlands-reveals that all six jurisdictions have enacted legal provisions authorizing or providing mechanisms for pre-litigation dispute mediation. Each jurisdiction specifies the categories of cases eligible for pre-litigation mediation, and disputes arising from administrative contracts constitute one of the categories of disputes eligible for such mediation in all six jurisdictions. Nevertheless, the rules, procedures, and conditions governing pre-litigation dispute mediation differ from one jurisdiction to another. By contrast, under the current legal framework of Thailand, Sections 66/1 to 66/12 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 empower the Administrative Court to mediate disputes arising from administrative contracts only after an action has been brought before the Court. Accordingly, this research examines the legal frameworks governing pre-litigation dispute mediation concerning administrative contracts in foreign jurisdictions, with a view to developing the Thai legal framework governing pre-litigation dispute mediation in relation to administrative contracts.