Thailand - League of Lawyers

Capital: Bangkok
Largest city: Bangkok
Official Language: Thai
Government: Unitary parliamentary constitutional monarchy
Area: 513,120 km2
Population: 66,558,935
Currency: Baht (THB)
GDP total: THB41.995 trillion (USD1,340 trillion)
GDP per capita: THB600,756.46 (USD19,169)
Time zone: UTC +7
Calling code: +66
Internet TLD: .th

[Source: Wikipedia]

Q&A on Commercial Litigation

What is the court structure applicable to commercial disputes in Thailand?
The courts in Thailand are a three tier court system. Commercial disputes in Thailand are filed at a court of first instance. The parties will be able to appeal to the Appeal court and to the Supreme court if they are not satisfied with the lower court’s judgment.
Who decides questions of law and fact in Thai courts?
The panel of judges will decide the questions of law and fact of the case.
What is the nature of legal representation in Thailand? Do foreign lawyers have a right of audience in the Thai courts?
The Thai Nationality Act B.E. 2508 (1965) prohibits foreign lawyers from having a right of audience in Thai courts. Furthermore, all proceedings and documentations in Thai courts are required to be conducted in the Thai language, making it difficult for foreign lawyers to practice in court.
What types of legal fee arrangements are generally adopted by Thai lawyers? To what extent are legal fees fixed by law?
There is no regulation on the calculation of legal fees. However, the Thai lawyer’s code of practice prohibits them from imposing legal fees based on a percentage of the amount won or creating a direct interest of the lawyers in the case. This type of agreement will be deemed in conflict with public morals and therefore be invalid.
What are the time limits applicable to commercial disputes in Thailand?
There are prescription periods prescribed by law. The disputes will have to be brought to court before the applicable prescription period has lapsed.
The statutory period for civil/commercial disputes normally ranges between 1 – 10 years. A few examples for civil/commercial disputes are as follows:
- Claim for general breach of agreement which has no specific statutory period: 10 years
- Claim of breach for service agreement: 2 years or 5 years (between service operators) after issuance of the invoice
- Tort claim: 1 year after the injured person is aware of the incident and/or 10 years after the incident occurs.
- Claim for return of ownership: No statutory period
Are there any pre-action discovery procedures available to a party who wishes to initiate a claim?
There are no full pre-action discovery procedures available under Thai law.
However, there are compulsory steps for the Court to settle the issues to be considered in the cases and for both parties to disclose in advance their list of witnesses and evidence to be used in trial. Copies of documentary evidence will need to be submitted to the court and to the other party in advance.
A written witness statement can also be submitted in advance to be used as part of the witness’ testimony on the hearing day. This will also allow the other party to review and prepare questions for cross-examination of the witness(es).
What role does mediation play in the litigation process? Is mediation imposed as a prerequisite to a commercial claim or is strongly encouraged by the Thai courts?
The mediation process is imposed as a prerequisite to all commercial disputes. This is due to a heavy backlog of cases in court.
How is a commercial claim initiated in the Thai courts?
Once the Complaint is submitted to the court, a copy of the Complaint will be sent to the Defendant. Generally, an answer to such a claim will have to be made and submitted to court in defense within 15 days from the date of receipt of such claim and summons. In the case that a summons has no legitimate respondent, the announcement of the summons can be done through advertisement in the newspaper or by pasting the summons at the recipient’s residence. In this case, a 15 day period will commence after such advertisement or pasting of summons has been done for 15 days (totaling 30 days from the date of advertisement or pasting of such summon).
This period of submitting an answer to a claim can be extended for special reasons such as severe illness or accident. However, it is up to the court’s consideration to allow the extension.
What happens if a defendant fails to respond to a claim?
The failure to submit the answer within the above period will lead to ‘default of answer’, which will prevent the defendant from submitting any evidence or witness and the defendant will be deemed to have accepted all allegations made by the plaintiff. The default defendant may be able to request the court to allow a late submission of the answer. The court may grant permission for a late submission of the answer if the defendant did not intentionally refuse to submit the answer.
Are there any summary procedures which can be applied for by the plaintiff or defendant in a commercial claim?
Yes, summary procedures will be applied to petty cases (with capital of the case less than THB300,000) or non-complicated cases.
What interim reliefs can a party seek to maintain the status quo or prevent further loss or damage pending the final decision of the Court?
Temporary injunction measures can be requested from the court to prevent a party from further loss or damage. However, this measure will not be applicable to petty cases.
What sort of evidence is required to support a commercial claim? How do the Thai courts evaluate oral and documentary evidence?
All evidence except the following is admissible in Thai courts:
- Superfluous or undue delaying evidence
- Evidence that is irrelevant to the issue of the case
- Hearsay evidence
- Testimony of witness which intends to revise documentary evidence
- Documentary evidence for which stamp duty is outstanding
- A witness who cannot understand and answer questions
When will a court consider expert evidence and how are expert opinions treated?
Expert witnesses can be called to give expert evidence in court. However, Thai law does not force the court to accept expert witness testimony. The court will consider an expert witness on a case-by-case basis.
Will parties be able to recover the costs incurred in pursuing a claim in court?
Yes, a party may request the court to grant recovery of costs in the event that the court rules in its favor. It is the court’s sole discretion to grant such costs to the winning party. However, based on the current internal policy of the court, the rates for such recovery is very minimal and most of the time does not cover the real costs incurred in pursuing a claim in court.
How long do commercial claims take to be resolved in the Thai courts?
A commercial claim takes approximately 18 months to complete at the court of first instance. For appeal and supreme courts, it may take no longer than 9 months to complete.
How can a successful party enforce a court judgment?
The successful party will have to conduct an asset search. Once assets have been found, the party will have to file a petition to the Legal Execution Department to arrange an officer to accompany the party to the asset location for enforcement proceedings.
Can an unsuccessful party appeal against a court’s decision?
Yes. In the event that a party is not satisfied with the court of first instance’s judgment or order, the party can seek for such judgment or order to be re-considered by the higher court.
How do Thai courts approach the choice of governing law in a contract in cross-border litigation?
Thai courts accept and recognize the parties’ agreement in selecting foreign law as a governing law in a contract. This is based on Section 13 of the Conflict of Law Act B.E. 2481. Thai courts respect the parties intention and will apply foreign law to the case with a condition that the accusing party must establish the content of such foreign laws to the satisfaction of the Thai court (Section 8 of the Conflict of Law Act B.E. 2481). This is because, from the viewpoint of the court, foreign law is simply another fact that the parties have to prove to the court. If the party fails to prove this fact to the court’s satisfaction, Thai courts will use Thai law as the governing law instead.
Are foreign judgments recognised by the Thai courts?
Generally, a foreign court’s order or judgement cannot be adequately enforced right away in Thailand. An additional process is required to do so. The party will have to file a petition to the Thai court to enforce such foreign judgement (action on judgment). Once the party successfully obtains an order from the Thai court, enforcement in Thailand will be possible.
However, one concern is that to obtain such action on judgment (enforcement) from a Thai court, there are many factors and conditions that the party has to fulfill depending on the nature of the matter.
If there is no objection from the other side, the process will be quite straightforward. However, if the other party challenges the enforcement of the judgement, the court process could take a long time before the party obtains a final judgment to proceed with the actual enforcement process.
How have the Thai courts responded to the Covid-19 pandemic to ensure that the litigation process remains effective while ensuring the health and safety of those involved in the process?
Depending on the type and stage of the case, the majority of Thai courts have adopted online hearings during the Covid-19 pandemic outbreak. Some courts have postponed hearings until the situation changes.

ABOUT THE AUTHORS

Nippita Pukdeeanakul
Managing Director, JNP Legal Thailand

Nippita’s focus is on corporate & commercial transactions, mergers & acquisitions, joint ventures and foreign direct investment into Thailand. She also practices real estate and Intellectual Property Law. Nippita has represented clients from various industries including construction, real estate, manufacturing, imports & exports, property development, commercial building, IT, forestry, media, telecommunication infrastructure, energy. Nippita has represented both local and international clients in several high value litigations with successful outcomes.

Nattaphorn Albrecht
Partner, JNP Legal Thailand

Nattaphorn’s experience spans both the areas of practice and research in the legal profession. Though Nattaphorn’s main focus is corporate & commercial law, she is also familiar with and has worked in international arbitration and litigation cases for the firm. Nattaphorn has represented and advised clients in labor litigations cases, for both employees and employers, civil litigation regarding embezzlement of company’s properties, civil litigation claims from real estate developers, and in enforcement of foreign jurisdiction judgement and/or award.

ABOUT THE FIRM

Name: JNP Legal Thailand
Address: 399 Sukhumvit Road Interchange 21 Building 21st Flr Unit #9 Klongtoey Nua, Wattana, Bangkok 10110
Telephone: +66 (0) 659795747
Email: info@jnplegalthailand.com
Website address: www.jnplegalthailand.com
Key contact: Nippita Pukdeetanakul / Managing Director / nippita@jnplegalthailand.com
Established: January 2010
Number of lawyers: 5
Languages: English, Thai

Brief description:
JNP Legal is a boutique legal practice catering to the needs of intra-national and international companies already trading or wishing to set up new business in Thailand. Specialising in Corporate and Commercial Law, our dedicated team assists companies and individuals with a number of key legal consultancy services. We pride ourselves on delivering first rate, tailor made, cost-effective advice to our clients. We represent clients in various industries and of various sizes, with both international and local presences.

Key practice areas:
Contract drafting, Corporate Legal Services, Employment Contracts and Disputes, Intellectual Property, Real Estate, Private Client Legal Services which includes: Family law, Probate, Work Permits & Immigration, Cryptocurrency, Digital Assets and Litigation and Arbitration.