อำนาจของอนุญาโตตุลาการในการปรับลด เบี้ยปรับในสัญญาทางปกครอง

Abstract

The competence of arbitral tribunal in reducing penalty under Administrative Contract as a result of the decision of the Administrative Court which ruled that arbitrator can not applys section 383 of the Civil and Commercial Code to reduce disproportionate and high penalty because the parties have not raised the issue of penalty in arbitral tribunal. Notwithstanding the aforesaid decision, the author tends to believe that arbitrator should be able to consider reducing disproportionate and high penalty based on fairness and honesty as there is no written provision on penalty in Administrative contract, therefore it should be a duty of those who enforce the law to raise related provision to apply to the case. Moreover the arbitrator should have a power to consider whether the penalty is appropriate to the damage occurred and even if the arbitrator does not use this power, the court shall still have power to reduce the high penalty. In addition, the Act on Establishment of Administrative Court and Administrative Procedure B.E. 2542 (1999) does not provide precise substantive law on administrative contract causing uncertainty in setting dispute under administrative contract by arbitration. The author therefore would like to suggest that there should be a precise substantive law on administrative contract in order to set standard and procedure for administrative court, so that related parties including arbitrator may apply to expedite proceeding more than to wait for precedent of the Administrative Court which can take decades. This can be implemented by amending the amending the Administrative Procedure Act B.E. 2539 by adding clear cut provisionson the matter.