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]

Total Foreign Investment in Thailand
2018: USD13.186 billion (THB411.93 billion)
2019: USD4.817 billion (THB150.483 billion) with the top 3 foreign investors being Japan, Singapore and Hong Kong

[Source: data.worldbank.org/santandertrade.com]

3 largest trading partners: United States, China and Japan
Top 3 exports: Machinery, Electrical equipment and Vehicles

[Source: worldstopexports.com]

Q&A on Foreign Investment

Are there any foreign investment laws in Thailand?
Yes, Thailand has foreign investment law. Any foreign investment in Thailand will be subject to the Foreign Business Act B.E. 1999. This Act specifies the definition of “Foreigners” and the restrictions and implications on foreign investment in Thailand.
Is there a governing or regulatory body responsible for overseeing foreign investment in Thailand?
The Ministry of Commerce is the main Government Authority that has responsibilities to oversee foreign investment in Thailand. In addition to the Ministry of Commerce, a foreign investor may need to seek additional approval or license from other authorities such as the Board of Investment of Thailand or The Industrial Estate Authority of Thailand.
What restrictions exist in Thailand on foreign investment?
Normally, foreigners are not allowed to operate businesses in Thailand. Most companies that have foreigners as their partners/shareholders will be subject to restrictions on the ratio of ownership. Essentially, foreigners cannot have a majority of shares in companies in Thailand. They can only be minority shareholders, that is, holding less than 50% of shares in the company.
In the event that foreigners would like to have more than 50% of shares in a company, the company will need to seek special approval from the government. The exemption will only be granted if such foreigners are qualified. The qualification can be based on nationality or business activities.
At present, there is only one nationality based qualification. The Treaty of Amity between Thailand and the United States of America grants special rights for American nationals only to seek an exemption to foreign investment restrictions to be able to operate businesses in Thailand like a Thai national.
As for the business activities based qualification, a list of qualified business activities has been issued by the Board of Investment authority. Companies can consider and apply for the category that would be viable for them.
Can foreign investors acquire real estate/ property/ land in Thailand?
No, foreigners are not allowed to own land. However, a foreigner can have ownership over a condominium unit or building on the land but not the actual land itself. Some foreign companies are eligible to have ownership over the land but they must receive an exemption from the government first.
Which industries do these restrictions apply to (if any)?
The Foreign Business Act stipulates three lists of restricted business:
- List 1 consists of 9 business activities that are strictly reserved for Thai Nationals;
- List 2 consists of 13 business activities that require approval from the cabinet; and
- List 3 consists of 21 activities (and includes all service businesses) that require approval from the Director of the Department of Business Development.
There are a total of 43 restricted activities that foreign companies or foreigners cannot operate. The difficulty for gaining approval for each activity varies depending on which list the activity falls under. The exemption will only apply if privileges are granted by the Government Authorities.
Are there any sanctions or restrictions on foreign investors from certain countries?
No, the restrictions apply to all non-Thai investors. Foreign investors from some countries may have greater advantages as there are existing treaties or agreements between Thailand and such countries. It is interesting to note that some agreements only provide tax exemption or tax incentives on particular products but do not grant privileges to the foreigners to have full ownership or control over the company.
Are any governmental approvals required for foreign investment in Thailand?
As mentioned above, for foreigners to obtain more than 50% of shares ownership in a company, special government approval will be required.
The most common approval would be for companies who receive privileges from the Board of Investment of Thailand (“BOI”), The Industrial Estate Authority of Thailand and the Treaty of Amity (which allows American nationals to hold up to 100% of shares in the company and operate the business like Thai nationals).
What are the common types of foreign investment in Thailand?
The common types of foreign investment are investments in hospitality businesses, energy, real estate projects and manufacturing plants.
Smaller foreign investors normally focus on service industries or restaurants.
What are the common business entities open to foreign investors?
A limited company is the most common type of entity that foreign investors choose to establish in Thailand.
Are there any tax advantages for foreign investment in Thailand?
Yes, if such foreign investment receives privileges from the government. For example, if the company receives privileges from the BOI, it may receive both tax and non-tax incentives as part of the privileges package.
In order to be able to receive these tax privileges, the company must also comply with the requirements and conditions stipulated by the BOI.
Are there any incentives for foreign investors in Thailand?
Yes, foreign investors receive both tax and non-tax privileges from the BOI.
The BOI provides many attractive incentives to foreign investors. One of the incentives is to allow the company that receives privileges to have up to 100% of shares held by foreigners, land ownership, and other privileges. In addition to this, the BOI also provides tax incentives such as income tax exemptions as well as duty tax or import tax depending on the requirements of each eligible business which the company may fall under.
Are there any free trade zones in Thailand which are attractive to Foreign Investors?
Yes, Thailand has many free trade zones that attract foreign investors, mostly for investors who are in the manufacturing industry. The free trade zones are available in specific areas throughout Thailand and foreign investors who have their businesses in these free trade zones usually receive privileges from the Government as well.
Can foreign investors obtain work visas in Thailand?
Yes, there are many ways to obtain a work permit and visa. The process and requirement depend on the type of entities that sponsor the foreign candidate. The entities that receive privileges from the government will be able to apply for work permits and visas through an easier system and, in addition to the above, will not need to comply with the general restrictions such as the requirement for minimum registered capital and minimum Thai employee per candidate.
Are there any foreign currency or exchange controls regulations in Thailand relating to foreign investment?
We do not have any restrictions on foreign currency or exchange controls regulations for foreign investment. However, it is noted here that:
- Should an individual or business wish to transfer USD50,000 (or other currency equal to this amount) or more into Thailand or out of Thailand, the Bank of Thailand reserves the right to request sight of documents showing the sources of these funds (where the funds are coming from, what they will be used for and for what purpose etc.) in order to ensure that the transactions are not related to any money laundering activities.
- An individual carrying cash into Thailand of more than THB450,000 or USD15,000 must declare it to Customs.
- An individual carrying out cash from Thailand to other countries must not exceed THB50,000 (USD1,700) or THB2,000,000 (USD67,000) to countries that share borders with Thailand.
Can foreign investors invest in government projects? If so, are there any restrictions or penalties imposed on the withdrawal of such investments?
This depends on each government project. In some cases, government projects may not allow foreign investors or Thai companies that have foreign ownership to participate in the project at all while some other government projects are open for all investors, foreign or domestic, as long as such a company qualifies for the project.
Are there any safeguards or investor protection frameworks in place in Thailand for foreign investors?
Thailand is a member of the Multilateral Investment Guarantee Agency (MIGA), an organization that promotes cross-border investment in developing countries by providing guarantees (political risk insurance and credit enhancement) to investors and lenders.
In addition, foreign investors should seek legal advice on how to protect their investment in Thailand and what would be the most suitable structure/framework for their investment(s).
Is Thailand a signatory to any investment protection treaties with any countries?
Yes, Thailand is a party to several bilateral investment free trade treaties. The most significant one is the Treaty of Amity that Thailand has with the US. The treaty allows US citizens to operate businesses in Thailand like Thai nationals. However, a company that wishes to apply for a Treaty of Amity exception still has to comply with certain requirements from the government (i.e, minimum registered capital, nationality of director, nationality of shareholders or shareholding ratio among shareholders of the company).
There are other treaties that provide fewer privileges such as Thailand-Australia Free Trade Agreement (TAFTA), ASEAN Framework Agreement on Services (AFAS), ASEAN Comprehensive Investment Agreement (ACIA), Japan-Thailand Economic Partnership Agreement (JTEPA).
Have there been any recent changes in law or developments for reform that may affect foreign investment in Thailand?
Recently, a further reduction of restrictions on particular types of businesses that are not subject to general restrictions of foreign business investment has been seen.
From an overview of Thailand FDI Restrictions from 2013-2019, it can be seen that the government has substantially eased restrictions placed on foreign investment in 4 different categories
- Category 1: Financial sector (banks, insurances, assets management);
- Category 2: Representative Offices and Regional Representative Offices for International Trade businesses;
- Category 3: Service businesses that foreign entities will be providing for Thai government bodies or State enterprises;
- Category 4: Business of lending money, leasing office space, providing consultation and advice in management administration; marketing; human resources; and information technology to affiliate companies in Thailand.
Thailand’s policy has become more welcoming to foreign investment.
What tips are there for foreign investors to be aware of when dealing with foreign investment in Thailand?
The first thing that foreign investors should do is to understand their options for investing in Thailand and to consider the pros and cons of each option. Once they know all the options available to them and the implications of these options, it will be easier for them to make decisions and to secure their investment in the future. For investors who do not know how they can invest in Thailand, it is recommended that they seek legal advice and consult with an accountant and/or tax advisor in Thailand regarding tax implications for each option as well.

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.

Selected Experience on Foreign Direct Investment:

Structuring and assisting with a purchase of a commercial building (Shopping mall and service apartment) in Bangkok Thailand.
Real estate Joint Venture – Represented a Malaysian Company on structuring and preparing a Joint Venture with Thai company in a hotel project.
Acted for a financial technology company in their acquisition of 70% of the stake in a financial technology company in Thailand.
Acted for a large Japanese Real Estate group in their acquisition of 50% of the stake in a logistic company in Thailand.
Acted for several large Japanese Real Estate companies in several Joint Venture condominium projects with a listed Thai real estate company.
Represented and advised an international conglomerate company with their investments and franchise in Thailand.
Advising on several joint venture and inbound foreign investment projects.

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.