Thailand Legal System
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.
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.
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.
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.
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.
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
Cabinet Resolutions have no binding
effect but will influence the Government Agencies in the enforcement or
interpretation of rules and regulations.
Building, health and city planning
codes are examples of local government laws.
The Thai Legal System - The
Thailand has three classes of courts
which can be classified by their retrospective methods of hearing.
Courts of first instance (Trial
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.
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 -
Enforcement of Foreign Arbitral
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.
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-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
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.
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