The Dispute Resolution Review: Thailand
Introduction to the dispute resolution framework
The Thai legal system is largely based on codified provisions. For example, major legislative codes are the Civil and Commercial Code; the Penal Code; the Civil Procedure Code; the Criminal Procedure Code; the Revenue Code; and the Land Code. However, even if judge-made law is not considered as a source of law in Thailand, the jurisprudence of the Thai Supreme Court is essential for the interpretation of provisions.
Laws are sometimes drafted in broad terms, especially those regulating commercial activities. Broad scopes of power are delegated to government ministries and organisations, which are empowered to issue notifications or regulations. Local administrations are also empowered to issue rules and ordinances.
The Court of Justice is divided into three tiers: the courts of first instance, the Court of Appeals and the Supreme Court. There are many courts of first instance located throughout the country, each of which has separate geographical jurisdiction to rule various types of litigation cases. There are more than 20 courts of first instance in different parts of Bangkok alone, each with different jurisdictional power to hear cases. There are also courts of first instance created under their own enacting legislation, including the Intellectual Property and International Trade Court, the Central Labour Court, the Central Tax Court and the Central Bankruptcy Court, which all have specialised procedures.
The Court of Appeals (or Appeal Court) has jurisdiction to hear appeals against judgments of the courts of first instance, except for cases within the newly formed Specialised Court of Appeal.
The Supreme Court is the highest court in Thailand and reviews appeals against judgments of the lower courts, usually judgments of the Court of Appeals. In civil and commercial litigation, parties are generally prohibited from appealing against judgments of the Appeal Court, except if leave to appeal is granted by the Supreme Court.
The Constitution establishes a separate system of administrative courts to deal with administrative law and administrative contract matters. The Constitutional Court was established to deal with governmental matters and constitutional questions. The military courts were established to try and adjudicate military criminal cases and other cases as provided by law. All cases are decided by judges, as there are no juries in the Thai legal system.
Arbitration is available as a means of dispute resolution. Parties to an agreement may agree that certain types of disputes be resolved by means of arbitration. If a dispute arises and one party brings the matter to litigation in court, the other party has the right to object. In such case, the court will refuse to hear the case and order the parties to resolve the dispute via arbitration in accordance with the terms of the agreement.
The year in review
i 7.5 per cent per annum interest rate replaced
In general, unless agreements or laws specify otherwise, the general interest rate for debts arising from commercial transactions, as well as the default interest rate of monetary debts, had long been 7.5 per cent per annum, unless a creditor was legally entitled to a higher interest rate on any other legitimate grounds. It is believed that the rate no longer conforms to current economic conditions and makes debtors suffer from burdensome interest, especially during the covid-19 pandemic. As a consequence, on 10 April 2021, an emergency decree was announced to amend certain provisions of the Civil and Commercial Code regarding interest rates. The emergency decree came into force on 11 April 2021.
To harmonise with economic trends, the general interest rate for debt that is due has been decreased from 7.5 to 3 per cent per annum, and the rate for payments that are in default is the same rate plus 2 per cent, meaning 5 per cent per annum (for now). The new 3 per cent per annum rate is adjustable and may be decreased or increased based on economic conditions in Thailand.
However, the new interest rates may not apply to all situations and there may be no impact on some businesses and industries. In particular, the general interest rate will not apply to a situation in which the parties specifically include an agreed interest rate for due debt.
The effect on different businesses and industries varies. For example, loans by banks and financial institutions are generally not affected by this change, because loan agreements normally stipulate interest rates clearly, and they are still able to continue setting their own interest rates in accordance with the laws on banking and financial institutions.
The reformed law does not set a new maximum interest rate for loans. It only indicates a new interest rate if the parties do not specify a rate in their contract. In essence, the maximum interest rate for loans other than loans by financial institutions is still 15 per cent per annum.
The Ministry of Finance will have to adjust the new interest rate every three years to be between the average deposit interest rate and loan interest rate of commercial banks. For the purpose of business planning, all industries can anticipate a new adjusted rate based on the average deposit interest rate and loan interest rate of commercial banks.
From a litigation perspective, this change of interest rate provision is essential and will affect almost all cases, from preparation of filing a claim to the court judgment and execution of the judgment, including court fee calculations and preparing settlement agreements.
ii New normal for virtual proceedings
In response to the covid-19 pandemic, the Thai judiciary implemented various measures to facilitate litigants and remove the necessity of having to travel to courts. Recently, the Office of the Judiciary announced a new notification allowing full electronic court proceedings for civil cases, from commencement of litigation to submission of pleadings and conducting witness examination, until the judgment hearing. This e-hearing procedure allows witness examination hearings to be conducted for any witnesses or parties who have domiciles in foreign countries. The procedure is applicable not only for new cases to be filed but also pending cases, and it is already in effect.
i Overview of court procedure
The main source of civil procedural law in disputes is the Civil Procedure Code, which covers procedures at all levels of courts, provisional measures before judgment, and execution of court judgments or orders. Criminal procedures are primarily governed by the Criminal Procedure Code.
A civil proceeding is commenced by a plaintiff submitting a complaint to a court of first instance within a competent jurisdiction. Service of the claim is made by court officers to the named defendants.
Any person intending to bring a civil case to the court must have one of two grounds prescribed by the Civil Procedure Code: his or her rights or duties under the civil law are disputed, or there is a necessity to exercise the rights through the court.2 The first scenario is a situation in which a person's actions cause disruption, irritation, damage or infringement of another's legal rights, which are the rights to property, money, life, body, family, honour, reputation or any other rights in accordance with any legitimate agreement and as stipulated by law.3
The second scenario is when the court's approval or acknowledgement is a legal prerequisite to exercising certain actions or rights, such as a request for the court's approval for entering into a juristic act on behalf of a minor, a request for appointing an administrator of an estate or a request for the court's order in determining a person as incapacitated.4 This is referred to as a non-contentious case.
ii Procedures and time frames
The plaintiff must file a plaint in writing to the court. Within seven days from the filing of the plaint, the plaintiff must formally request the court officer to serve a summons on the defendant. Within 15 days of receipt of the summons (or 30 days if the summons is left or posted at the defendant's premises) the defendant must file a written answer to the court (an extension may be granted). The defendant may also make a counterclaim in its answer if the matters alleged relate to the original plaint.
Approximately eight to 10 weeks from the date of filing the complaint, at a preliminary hearing, the court may determine the issues in dispute for which further proceedings will be conducted.
For taking evidence, the parties must present their witnesses to testify before the court. The hearing dates will be fixed on a continuing basis. Normally, the presentation of witnesses will be concluded within 18 months from the date of filing the complaint. After the presentation of witnesses by both parties, the court may allow the parties to submit closing statements to the court. Usually, it takes approximately two to three months after the last day of presentation of witnesses for the court of first instance to render a judgment.
Either party (win or lose) may file an appeal within one month of the date the judgment is rendered by the court of first instance. In practice, either party may also request an extension of the period for the appeal of one month each time. It is upon the court's discretion whether to grant the extension request.
The other party must file a reply to the appeal within 15 days of receipt (plus 15 days if the summons is posted at the recipient's domicile) of the appeal (an extension may also be granted in the same manner as a request for extension to file an appeal). After submission of the reply to the appeal, the court of first instance will hand over the case file, together with the appeal and reply to the appeal, to the Court of Appeal for consideration.
The anticipated timeline for the Court of Appeal to consider an appeal and render a judgment is approximately six to eight months, counting from the date that the Court of Appeal receives the case file from the court of first instance. There is no hearing in the Appeal Court, only submission of the documents.
The parties are generally prohibited from appealing against a judgment by the Appeal Court, except if leave to appeal is granted by the Supreme Court. Therefore, to appeal to the Supreme Court, the party wishing to appeal must prepare and submit an application to seek leave to appeal to the Supreme Court in addition to preparation of the appeal. The application and the appeal have to be submitted together to the Supreme Court. Only after leave is granted will the appeal proceed, and the other party must reply to the appeal.
Leave to appeal to the Supreme Court must be lodged within one month of the date of the Appeal Court judgment (an extension may be granted). The other party can file an objection to the leave to appeal within one month of receipt of the leave to appeal (an extension may also be granted).
The Supreme Court renders an order on whether the leave to appeal is granted within a time frame that varies from six to eight months from the date it receives the file from the lower court. If leave to appeal is granted, the other party must file an answer to the appeal within 15 days of the date of the order granting leave to appeal (an extension may be granted). The Supreme Court will render a judgment approximately two or three years from the date it receives the file back from the lower court.
Once the court renders judgment or an order requiring that execution be carried out against a judgment debtor, it will issue a decree immediately after the judgment or order is pronounced or deemed to have been pronounced, and it will be deemed that the judgment debtor is informed of the decree on that date. Generally, the court will specify a period of one month within which the decree must be complied with. If the period of time to comply has elapsed and the judgment debtor has yet to comply, the judgment creditor may apply for a writ of execution to seize or attach any property belonging to the judgment debtor.
If the losing party wishes to appeal, it may file, in addition to the appeal, a motion to stay the execution of judgment of the court of first instance. If the court grants the stay, it may order the losing party to put down security, which is generally the amount the court of first instance awarded to the winning party, plus interest accumulated up to the expected date of the appeal (approximately two years from the date of depositing the security).
When requesting a Thai court to issue an injunction order, generally the plaintiff must first file a lawsuit with the court. A motion requesting the court to issue the injunction can then be filed with the court. Upon receiving the motion, the court will schedule a hearing to inquire the request and decide whether there are grounds to issue the injunction order. It takes approximately two to six months from filing of the motion until an injunction order is granted.
Under Thai law, at the time of filing an injunction and in the case of emergency, the filing party is also entitled to file a motion asking the court to issue the injunction on the same date of the application on an emergency basis, as opposed to setting a hearing on the injunction some months after the filing (i.e., an injunction on a normal basis).
iii Class actions
In Thailand, class action law is relatively new, having come into effect in 2015, and represents a big change to the Thai litigation system. It will inevitably increase the magnitude of risk to businesses, as class action lawsuits act as a multiplier of damages in litigation.
The Act to Amend the Civil Procedure Code (Class Action Act)5 only provides a framework for the class action regime, and it empowers the president of the Supreme Court to issue detailed regulations on the class action process.
Under the Class Action Act, Thailand has adopted an opt-out system. This means that an injured person will automatically be a member of the class if he or she fits the criteria of the certified class and does not elect to opt out.
Once a class action lawsuit is filed, there will be a motion for class certification. If the court certifies the class, all consumers in Thailand who are affected will automatically be bound by the result of the class litigation unless they opt out of the class. If the plaintiffs win the litigation, the class members are entitled to compensation awarded by the court. If the plaintiffs lose, class members who did not opt out are bound by the judgment and will no longer have a right to take action against the defendant on the same ground.
To initiate a class action lawsuit, the plaintiffs' lawyer must file a complaint together with a motion for class certification. In certifying the class, the court must be satisfied as to the commonality of the issues, the size of the class, the efficiency of the class action proceedings as compared with normal civil proceedings using a joinder, and the adequacy of the lawyer and plaintiffs representing the class.
Once the court certifies a class, all persons identified as members of the class must be notified. In addition to any mailings, a public notice must be published in a prominent newspaper for three consecutive days.
If the court later finds that class action proceedings are not appropriate to protect members of the class even after the class is certified, it may de-certify the class and direct the plaintiffs to initiate normal civil proceedings.
If a class action is successful, the class will receive the full amount of awarded damages, and its lawyer will receive an award of not more than 30 per cent of the awarded damages.
Several class action lawsuits have commenced in Thailand, and the new class action regime is expected to have a substantial impact on many areas of litigation, following both local and global trends.
iv Representation in proceedings
In Thailand, any party can personally conduct his or her case and carry out all of the proceedings as he or she thinks fit in his or her interest.6 Alternatively, he or she may appoint one or more licensed lawyers to conduct the case and carry out the proceedings.
A lawyer appointed by a party has the power, on that party's behalf, to conduct the case and carry out all proceedings as the lawyer thinks fit in order to safeguard the interests of the party. If any proceeding involves the disposal of any of the party's rights, such as admission of the opposing party's claim, withdrawal of the party's claim, compromise, or renunciation or exercise of the right to appeal or to apply for a new trial, the lawyer will have no power to carry out such proceeding without express authority from the party appointing the lawyer. Express authority may be specified in a deed of appointment for that particular case or may be given subsequently and separately in one or more powers of attorney.7
A person who has not registered with and received a licence from the Lawyers' Council under the Royal Patronage is prohibited from being a lawyer and from conducting any case in court.8 Under the Thai Lawyers Act, only a natural person can apply for registration and receipt of a licence from the Lawyers' Council under the Royal Patronage. As a result, it is not possible for legal entities other than natural persons to represent themselves in court proceedings.
v Service out of the jurisdiction
The Civil Procedure Code has specific provisions that accommodate service out of jurisdiction. If a defendant is not domiciled in Thailand, a summons and plaint instituting a case must be served to the defendant at the domicile or business office of the defendant outside Thailand.9 The domicile of a juristic person is the place where it has its principal office or establishment, or that has been selected as a special domicile in its regulation or constitutive act.10
For other motions, pleadings, statements or documents, if the recipient is not domiciled in Thailand but has carried out business in Thailand in person or via an agent, or there is an agent to receive pleadings and documents or a lawyer to proceed with a case in Thailand, notices to the recipient or agent or lawyer will be served at the place used to carry out the business by the recipient or agent, the place used as the residence of the agent, or the domicile or office of the lawyer in Thailand.11 If the recipient does not carry out business in person in Thailand, or there is no agent or lawyer in Thailand, notices will be served by posting at the court.
vi Enforcement of foreign judgments
Thai laws have no specific provisions enabling Thai courts to directly recognise and enforce foreign court decisions. In addition, there are no bilateral agreements with other countries on the enforcement of foreign court decisions in Thailand. As a result, a foreign court decision cannot be enforced in Thailand. Thai courts will not enforce a foreign court decision as if it were a Thai court decision.
However, subject to Thai laws regarding Thai court jurisdiction, a judgment creditor in a foreign court decision can initiate a fresh lawsuit with a competent Thai court and adduce the foreign court decision as a piece of evidence of debt to prove its case. Based on a Thai Supreme Court precedent, a foreign court decision is only a source of obligation (a debt) based on which the creditor can file a complaint to claim debt under the foreign court decision.12 Only after the Thai court makes a decision can the plaintiff then enforce the debt based upon the Thai court decision.
For initiating a fresh claim in Thailand to claim debt under a foreign court decision, see Section III.ii.
vii Assistance to foreign courts
In civil and commercial matters, Thai laws do not have specific provisions enabling Thai courts to directly provide assistance to foreign courts. As a result, assistance to foreign courts must generally be sought via diplomatic channels.
Thailand has agreements on judicial cooperation with Laos, Indonesia, China, Australia, Spain and Vietnam only. Assistance requested and provided to those countries must be done through the central authorities of each contracting party. The central authority for Thailand is the Office of Judicial Affairs of the Ministry of Justice. Assistance available under the agreements on judicial cooperation includes service of documents, taking evidence and exchange of judicial information.
viii Access to court files
Normally, the hearing of a case will take place in the presence of the parties attending the court and in open court. This means that the court proceedings will be open to the public, and members of the public can attend in normal circumstances.
However, the Civil Procedure Code only grants the right to the following parties to ask the court for inspection of documents contained in the case file or to make copies: every party to the case; every witness regarding witness testimony; and persons having a legitimate interest or reasonable grounds to do so.13
Members of the public do not normally have access to information about proceedings that have been completed. Only some Supreme Court judgments would be made available in summary form to the public.
ix Litigation funding
Litigation funding by a non-interested third party is not a common practice in Thailand. There is no statutory provision that prohibits a third party from funding litigation. However, based on a Supreme Court precedent, litigation funding by a funder who has no legal interest in a claim, but who is to receive a benefit from the proceeds of the claim if the party wins the case, is likely to be considered as contrary to public policy or morality. This kind of funding, therefore, is likely to be void and unenforceable.
Under the Thai system, there are two methods under which a party can commence a criminal claim: directly through a criminal court or through the police.
For direct filing, the plaintiff will submit a criminal complaint to a competent criminal court. The court will set a preliminary hearing date to determine whether the complaint is sufficiently grounded to merit a criminal trial. At the preliminary hearing, the plaintiff can present witnesses and evidence to support its complaint. The alleged offenders will have a full opportunity to cross-examine the witnesses and evidence presented. An order to accept the case cannot be appealed. An order to dismiss the case can be appealed. If the criminal court accepts the case for trial, the alleged offenders will become defendants.
In making a direct filing with criminal courts, the complainants step into the shoes of the prosecutor and are responsible to prosecute the case by presenting witnesses and evidence to establish the defendant's wrongdoing beyond reasonable doubt.
Under the method of filing a complaint with the police, the injured party will file a criminal complaint with the relevant police as to the injury sustained and the parties responsible. The police will conduct an investigation and prepare a recommendation on whether or not to pursue a criminal action against the accused and send the same to the public prosecutor. If the public prosecutor finds that there are grounds for a criminal case, it will file a complaint with the competent criminal court. In such case, the public prosecutor is the plaintiff, but the victim may join the public prosecutor to assist in prosecuting the case.
i Conflicts of interest and Chinese walls
The Lawyers Act and applicable regulations issued under that Act only deal with conflicts of interest arising from representation by an individual lawyer; there are no provisions regarding representation by a legal firm.
In practice, a legal firm will not represent two adverse parties in the same or related litigation. In this scenario, Chinese walls will neither be used nor applied. In some circumstances, for transactional matters, if a conflict of interest arises, conflict clearance must be obtained from each party before the firm can proceed with any assignment. During the course of the matter, Chinese walls will apply.
ii Money laundering, proceeds of crime and funds related to terrorism
The Anti-Money Laundering Act is the main provision pertaining to anti-money laundering. While the Anti-Money Laundering Act imposes preventative measures for money laundering and the proceeds of crime and funds related to terrorism – such as reporting requirements to entities including financial institutions, operators in some areas of business, land offices, Customs offices and foundations – lawyers do not have obligations or responsibilities under the Anti-Money Laundering Act.
iii Data protection
The Personal Data Protection Act (PDPA) was published in the Royal Thai Government Gazette on 27 May 2019. Once enforced, the PDPA will be the first consolidated law governing data protection in general in Thailand.
The PDPA was originally scheduled to come into effect on 27 May 2020. However, the Royal Decree on Organisations and Businesses in which Personal Data Controllers are Exempt from the Applicability of the Personal Data Protection Act was published to temporarily exempt data controllers from complying with obligations regarding the collection, use and disclosure of personal data and associated penalties under the PDPA until 31 May 2022. Thus, full enforcement of the PDPA is not expected to take place until 1 June 2022.
The PDPA will be applied to a person or legal entity that collects, uses or discloses personal data of a natural person, with certain exceptions (e.g., for household activities). The key provisions regarding protection of personal data affect both onshore and offshore businesses. The PDPA has both territorial and extraterritorial application, and applies to entities outside of Thailand if they are offering goods or services to data subjects who are in Thailand, irrespective of whether the payment is made by the data subject; or they are monitoring a data subject's behaviour, if that behaviour takes place in Thailand.
iv Other areas of interest
Choice of foreign law in Thai proceedings
The parties' choice of foreign law as the law applicable to their contractual relationship is generally recognised and given effect by Thai courts, unless the application of the foreign law is contrary to public order and the good morals of Thai citizens.
Foreign law is considered as a matter of fact, and the party wishing to rely on the application of foreign law has the burden to prove that foreign law to the satisfaction of the Thai court.
In practice, proof of foreign law can be constructed by the testimony of a foreign law expert, law professor or practitioner, supported by examples of foreign court judgments and precedents.
Documents and the protection of privilege
Section 92(2) of the Civil Procedure Code provides that if a party or a person is requested to testify or produce any kind of evidence, he or she is entitled to refuse to give testimony or produce evidence if it would mean the disclosure of any confidential document or fact that was entrusted to or imparted to him or her in his or her capacity as a lawyer. An exception to this privilege can be made if the disclosure is made with the consent of the client or a relevant person.
There are no clear precedents or broadly accepted academic views regarding interpretation of the scope of privilege under this provision – in particular, whether the term lawyer stipulated in Section 92(2) would encompass in-house legal counsel in a company or corporation. Arguably, the privilege under this Section is intended to provide privilege for licenced lawyers who receive confidential documents or facts as entrusted or imparted to them in their capacity as professional lawyers.
In addition, the privilege is not absolute and final. If a lawyer refuses to give or produce evidence, Thai courts have the power to summon the lawyer or a person related to the confidence to appear and give an explanation. If the court decides that the refusal is groundless, it can order the lawyer to give or produce the evidence.
Communications with legal counsel can be protected from disclosure as legally privileged documentation. However, the privilege can only be raised by a lawyer in possession of the confidential information when summoned to produce that information by a civil or criminal court.
ii Production of documents
There is no discovery procedure in Thai legal proceedings. Parties in civil and criminal cases are not required to disclose documents they possess that relate to the case. A party may only submit documentary evidence to the extent it wishes to prove such evidence in support of its case. However, a party may apply to the court to subpoena specific documents or evidence from the opponent or from a third party who possesses required documents.
The Electronic Transactions Act recognises data messages such as emails, agreements, or any documents that are generated, sent, received or stored via electronic means. Data messages will be treated in the same way as paper documents, provided that they meet the requirements set forth in the Act. The Act estops argument against the legal effect, validity or enforceability of any information merely on the ground that it is in the form of a data message.14
Additionally, a data message is admissible evidence, and it cannot be denied in legal proceedings on the sole ground that it is a data message.15 In other words, data messages (e.g., soft copies) can be presented as evidence in court. However, the evidential weight of evidence regarding a data message depends on the manner or method under which the data message is created, stored or communicated; the manner or method under which the integrity of the information is maintained; and the manner or method under which its originator is identified.
Generally, in trial, parties must present original documents in hard copy. However, the Electronic Transactions Act provides that data messages can be regarded as the functional equivalent of an original hard copy, provided it can be established that a reliable method is used on the data message to ensure the integrity of the information from the time when it was first created in its final form; and the information it contains can be subsequently displayed. In other words, soft copy documents in electronic form can be admissible evidence in trial if these criteria are met.16
Alternatives to litigation
i Overview of alternatives to litigation
Mediation is one method for expediting dispute resolution. Compulsory mediation is used in Thailand to resolve family and labour disputes. Thai law governs mediation both in court and out of court.
Arbitration is an alternative means of dispute resolution. Parties to a dispute may mutually agree to submit a dispute to be resolved by a tribunal of arbitrators. An agreement to arbitrate can be made either before or after the dispute arises. If an agreement to arbitrate exists and is valid, a case that is filed in a national court can be struck from the court's docket upon a motion by the counterparty.
The Arbitration Act provides the legislative framework that governs the conduct of arbitration in Thailand. Thai arbitration law does not separate arbitration law regimes between domestic and international arbitration. Therefore, both arbitrations seated in Thailand and seated in other countries are subject to the same Act.
The Act also provides limited grounds for Thai courts to refuse the recognition and enforcement of arbitral awards, which are essentially the same grounds as stipulated in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention 1958), to which Thailand is a member state. Thailand is also a member state of the Convention on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention 1927). Therefore, an arbitral award made in a member state under either of these conventions will be recognised and enforced in Thai courts.
An arbitral award is final and binding against the parties in the arbitration proceedings. Under the Act, neither party can appeal against the merit of the arbitral award, either to the arbitral tribunal or the courts.
Mediation can be carried out either in court after a claim commences or out of court, in which case the disputing parties agree to undertake mediation without the court's involvement.
Before filing an action, the prospective party may file a motion with the court that has jurisdiction, if an action is instituted to request that the court appoint a conciliator to carry out mediation with a view to encourage the parties to reach agreement or compromise on the matters in dispute.17
If the other party agrees to participate therein, the court has the power to summon the parties to appear before the court in person, with or without their lawyers, and to appoint a conciliator to carry out mediation.
If the parties concerned can reach an agreement or a compromise, the conciliator will submit the agreement or compromise agreement to the court. If the court decides that the agreement or compromise agreement corresponds to the intentions of the parties and the principles of good faith and fair dealing, and is not in violation of the law, the court will cause the parties to sign the agreement or compromise agreement.
The Dispute Mediation Act governs out-of-court mediation, and came into full force in 2019. Mediation in a civil dispute, pursuant to this Act, only opens for:
- disputes concerned with land, other than disputes regarding ownership;
- disputes between heirs that concern property to be obtained by way of succession;
- other disputes as prescribed in the accompanying royal decree; or
- disputes in which the amount of the claim does not exceed 5 million baht or an amount as prescribed in the royal decree.
Although the Act has been enforced for two years, the royal decree has not yet been published.
Under the Dispute Mediation Act, mediators must be registered with the regulatory authority set up under the Act. Mediators must have attended approved training courses and have experience in fields that are beneficial to dispute mediation. Mediators have certain duties and powers, including to determine guidelines for mediation, assist and make proposals to the parties to settle the dispute, and act impartially.
Outlook and conclusions
i Improvement of legal provisions to adopt digital and electronic measures and procedures as a result of the covid-19 pandemic
The covid-19 pandemic has pushed the Thai judiciary to implement measures to facilitate litigants through virtual and electronic court proceedings. Arguably, the pandemic has been a major catalyst for official adoption of various technologies to be used in the judicial system, and we are likely to see more legislation in this area over the next few years.
To illustrate, on 5 October 2021, the Cabinet approved nine new principles in an amendment to the Electronic Transactions Act (ETA). These new principles were presented to the Cabinet by the Electronic Transactions Development Agency (ETDA), which plans to revoke the ETA currently in effect and replace it with this new version.
Regarding evidence in electronic format, under the current law there are no data retention obligations. However, the new law will impose obligations upon technology service providers to retain authentication information or electronic evidence for 10 years from the transaction date.
While the current law allows electronic information as evidence in court (without specifying whether the electronic information would be considered as primary evidence), the new law will be definitive that electronic information will be considered primary evidence under the Civil Procedure Code. The new law will also facilitate the formation of contracts by electronic means, as well as making such transactions more reliable and trustworthy.
The new draft ETA has not yet been published. Following the initial public hearing, the ETDA will prepare another draft ETA, based on the introduced principles and conclusions, for another public hearing.
Along with these examples, it is expected that Thailand will continue to develop digital and electronic measures and procedures in substantive and procedural laws in order to improve legal proceedings in Thailand overall.
ii Amendment to the Bankruptcy Act reflective of the economy
The Cabinet has approved in principle a draft amendment to the Bankruptcy Act, which aims to improve the efficiency of in-court business reorganisation schemes in Thailand to make it more advantageous for corporations encountering financial difficulties, particularly as a result of covid-19. Key amendments include a change to the qualifying debt amount for large corporation business reorganisations to be over 50 million baht; flexibility in the criteria and procedure for small and medium-sized enterprise business reorganisations; and changes to the pre-packaged plan scheme.18
1Piya Krootdaecha is a partner and Nattanan Tangsakul is an associate at Baker McKenzie.
2The Civil Procedure Code, Section 55.
3International Affairs Division, Office of the Judiciary, Civil Procedure (Petchrung Printing Co Ltd).
5Act to Amend the Civil Procedure Code (Number 26), BE 2558 (2015).
6The Civil Procedure Code, Section 60.
7The Civil Procedure Code, Section 62.
8Lawyers Act, Section 33.
9The Civil Procedure Code, Section 83 bis.
10The Civil and Commercial Code, Section 68.
11The Civil Procedure Code, Section 83 ter.
12Supreme Court judgment No. 6565/2544 .
13The Civil Procedure Code, Section 54.
14The Electronic Transaction Act, Section 7.
15The Electronic Transaction Act, Section 11.
16The Electronic Transaction Act, Section 10.
17The Civil Procedure Code, Section 20 ter.
18Paralee Techajongjintana and Karnsuda Oue-Amonrat, 'Amendments to the Bankruptcy Act reflective of the economy' (2021) Law Business Research, https://www.lexology.com/library/detail.aspx?g=e2086db9-e720-45c4-be0f-5f435a0c3263, accessed 18 November 2021.