THAILAND LEGAL SYSTEM  

 

 

Knowing Thailand Legal System 

Thailand laws follow the pattern of civil law countries of conventional Europe.  When a dispute is brought before the judge, the court will decide a case based on an interpretation of the statutory provisions. The court's interpretation is not as broad as that of a court in a common law country and unlike a common law court; its decision will not develop a body of law.  Although, interpretations by the highest courts (Dika Court or Supreme Court) become precedent under the doctrine of stare deices.

Thailand laws derive from two major sources; the legislative and executive branches of both central and local governments.  The judicial decisions are not law because they apply to an individual; not withstanding the fact that that the court will normally adhere to precedent for subsequent cases with the same situation in order to attain stability and fairness. Reversal of precedent based on decisions however doe not happen very often.

 

Constitutional Law

A constitutional based law defines the powers and the relationship of the three branches of Government to each other and the relationship between the Government and citizens in regards to fundamental rights and responsibilities.

Acts

An act is the most common known law and is made by parliament. Examples of Acts are the Copyright Act, Trademark Act and Investment promotion Act.

Royal Decree

A Royal decree is promulgated by the Executive Branch normally though the Minister of the concerned Ministry authorized under a specific Act to set forth the details from time to time under the guidelines of the Act.  For example a Royal Decree to revise the tax rates under the Revenue Code.

Emergency Degree

An emergency Decree is enacted by the executive branch, though the cabinet in an emergency to protect the country from imminent harm but subject to subsequent confirmation of the Parliament.

Codes

The civil and commercial code, penal code, civil and Criminal Procedure Codes are well known features of civil law countries legal system. Initially, codified law consisted of multiple chapters of subject matter, but this is no longer necessary.

Administrative Agency orders

Administrative agencies are empowered by the legislature to promulgate rules and regulations to carry out government functions.

Cabinet Resolutions

Cabinet Resolutions have no binding effect but will influence the Government Agencies in the enforcement or interpretation of rules and regulations.

Municipal Ordinances

Building, health and city planning codes are examples of local government laws.

  

The Thai Legal System - The Judicial System

Thailand has three classes of courts which can be classified by their retrospective methods of hearing.

 

Courts of first instance (Trial Courts)

Courts of first instance (Trial Courts) conduct the original trial of cases and render decisions. The judge decides both issues of fact and law. In a big province such as Bangkok, Courts of first Instance may be called differently depending on their subject matter jurisdiction, such as Civil Court, Criminal Court, Labor Court or Juvenile and Family Court. In rural areas, a Provincial Court has jurisdiction over all matters subject to a few exceptions.

The Court of Appeals

If a party disagrees with the decision of the lower court, they can appeal to a Court of Appeals, The court of Appeals will normally entertain legal issues rather than factual issues.

Dika Court (Supreme Court)

Subject to the statutory prohibitions, a party who disagrees with the decision of the court of appeals can take its case to Dika Court (Supreme Court). The decision of Dika Court is final.

In a civil suit, an interested party may initiate proceedings by filing a complaint or petition to a court having jurisdiction over the matter. In a criminal suit, only the individual injured party may be a plaintiff alone or joint plaintiff with the public prosecutor depending upon the type of offense.

Foreign Judgment

Thailand does not recognize foreign judicial judgments. A party may not enforce a judgment adjudicated in a foreign country and a new proceeding must be initiated.

However foreign arbitrate awards are recognized and enforceable under the Arbitration Act of B.E. 2530 (A.D. 1987); providing that such arbitrate award is covered by a treaty, convention or international agreement to which Thailand is a party and will have effect only as far as Thailand accedes to be bound.

  

The Thai Legal System - Arbitration

Enforcement of Foreign Arbitral Award

Foreign arbitral award refers to an award resulting from arbitration, the proceedings of which were in whole, or in the most part, conducted outside Thailand and wherein one of the parties involved in the dispute was not a person of Thai nationality.

Under Section 29 of the Arbitration Act of 1987, a foreign arbitral award will be recognized and enforceable in Thailand, only if it is made in accordance with bilateral or multilateral treaties or conventions which Thailand is a party of or has acceded to.

Currently, these treaties and conventions are the 1927 Convention on the Enforcement of Foreign Arbitral Awards (Geneva Convention); the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention); and the Treaty of Amity and Economic Relations between the Kingdom of Thailand and the United States of America.

The Arbitration Act of 1987 expressly states that the action for enforcement of arbitral award (by way of a confirmed judgment) must be initiated in a Thai court within one year from the date the award was sent to the parties by the arbitrators. The Act also states clearly the preconditions for enforcement as well as the reservations made by Thailand under both the Geneva and New York conventions. For instance, the court may refuse recognition if the subject matter of the dispute is not resolvable by arbitration or the recognition would be contrary to public policy or the good morals of Thailand. In addition, it must be legally valid and final in the country where the arbitration was held and at least one of the parties to the dispute must be a subject of one of the member countries of these conventions.

Entering Arbitration

Thai courts will compel arbitration if a written agreement to arbitrate exists between the parties.

Interlocutory arbitration may be sanctioned by the courts upon the written request from the litigants concerned, if the court's view is that expeditions and fair resolutions of the cases can be achieved by arbitration. Such a request may be made at any time during the trial, but must be submitted before the final judgment. An arbitrator will be appointed pursuant to the agreement of the litigants. Failing such an agreement, the court may appoint any arbitrator as it deems appropriate.

Pre-hearing Procedure

Pre-arbitration remedies are available as "temporary measures before judgment". Good cause must be shown to the court by a petitioner, that there is an urgent necessity to protect his interests during the arbitration proceedings. Temporary measures are granted by the court in the form of orders for attachment, seizure, restraint or through a cease, or desist order.

There are no definite requirements regarding advanced notice to the parties concerned. The court merely wishes to be satisfied that an action by one party be made known to the other party and that this party has sufficient time to respond.

Procedure at the Hearing

Before giving an award, the arbitrators are required to hear all the parties and may make inquiries as they deem appropriate. In the absence of a written agreement of the parties concerned or an order of the court, the arbitrators are also empowered to define issues or disputes and to adopt their own rules and procedures for hearings. The parties may present evidence and examine or cross-examine witnesses during the arbitration proceedings. Through the authority of the court, the arbitrators may summon documents, subpoena witnesses and request witnesses to testify under oath. The rules of evidence and procedure stipulated in the Civil Procedures Code may be made applicable to arbitration mutates mutandis. Arbitrators' fees may be fixed by agreement of the parties or by the courts. Witnesses' fees may be fixed by the arbitrators, taking into consideration the "going rates", which are generally approved by the courts.

Institutional Arbitration

An institutional arbitration may be conducted in Thailand under the auspices of either the Arbitration Tribunal of the Board of Trade (The Thai Chamber of Commerce) or under the rules called the "Thai Commercial Arbitration Rules", which were modeled after the ICC's Conciliation and Arbitration Rules. The Arbitration Office of the Ministry of Justice adopts its own arbitration rules. These rules are quite comprehensive and substantially reflect a constructive combination of the ICC's, UNICITRAL's and American Arbitration Association's rules. The Office has maintained a list of experts and experienced persons, 128 in total, who are capable of serving as arbitrators in such areas as labor, investment, international trade, maritime law, intellectual property, insurance, land, minerals and petroleum, torts and contracts, etc. The Office also makes available to interested parties facilities and office equipment for conciliation and arbitration proceedings at a nominal cost.

 

 

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