beluthai - thai court procedure on 15-05-2013

Bangkok | Hanoi | Ho Chi Minh City

Presented by…

Michael Ramirez

May 15, 2013

At Tilleke & Gibbins International Ltd.

Dispute Resolution

An Overview of Litigation

in Thailand

Overview of Thailand’s Legal System

Civil Law System

Code based system

No strict binding precedent

Case by case review

Generally more individualized court

interpretation

3

Thai Constitution Recognizes Four Courts

Constitutional Court

Administrative Court

Military Court

Courts of Justice

4

Civil Courts General Courts

Juvenile and Family

Court

Specialized Courts

The Thai Courts of Justice

5

Criminal

Courts


General Civil

Courts

District Courts

(Kwaeng)

Provincial Courts –

unlimited jurisdiction

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Juvenile and Family

Court

Divorce, support and

matters involving minors

(custody, etc.)

Intellectual Property and International Trade Court (IP&IT Court) Specialized judges

Limited Jurisdiction

Single level of appeal –

Straight to Supreme

Court

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Specialized Civil Courts

Central Bankruptcy Court For liquidations and/or

reorganizations

Claims for bankruptcy

can be initiated by

interested third-party

creditors


Tax Court

Taxation broadly

defined

Appeals to decisions of

tax authorities and

gov’t officials

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Specialized Civil Courts

Labour Court Employee and

Employer claims

Claims of employees not subject to filing fees. Standard filing fees apply for claims of employers


Criminal Courts

Often used in conjunction with civil claims

Defamation, misappropriation, fraud, failure to pay

employee wages, submission of false documents,

customs violations, and aggravated negligence claims.

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Caution: A claimant may find

themselves subject to

criminal claims for filing false

charges.


Appeals

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Appeals

Court of Appeals

Guaranteed right of appeal

Average of at least one year for appellate ruling

Supreme Court (Dika)

Guaranteed right of appeal

Lengthy process – typically 18-24 months

Pleadings/Practice

General Rule – no new evidence, paper pleadings only

11

Court Administrative Fees

Filing Fees

2.0 % of claim amount up to a maximum of Baht 200,000

for claims not more than Baht 50 Million. 0.1% additional

on claim amount above Baht 50 Million

Applies to Civil Courts, IP&IT Court, and in some cases,

other courts such as the Labor and Family Courts

Appeals: For each stage of appeal, additional filing costs

Courts typically order losing party to compensate filing

party for filing fees

12

Court Administrative Fees

Security

Foreign claimants may be required to post additional

security

Party subject to judgment usually required to post

security during appeal (stay of execution)

13

Civil Trials

Complaint

No pleading with particularity, but must provide enough

detail to identify primary issues.

Service of Process by Officer of the Court

Personal delivery, mailing, posting

Diplomatic Channels – lengthy process

Answer

Due within 15/30 days. More, if service through

diplomatic channels

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Civil Trials

Preliminary Hearing

Set legal issues in dispute, schedule

mediation and Trial dates

Mediation

Trial

Approximately 4-6 months later. Move towards

consecutive hearings

Judgment – typically one month after trial hearings

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Civil Trials – Case Studies

16

Criminal Claims

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Two ways to initiate proceedings

File complaint directly with police

File criminal complaint directly with the court

Criminal Claims

Police Inquiry Stage

Complaint filed

Police examine witnesses and collect evidence

Issue recommendation to Public Prosecutor

Public Prosecutor

Issues prosecution/non-prosecution order or asks

police to conduct further investigation

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Criminal Claims

Court review of complaint

Conducts preliminary hearings to determine whether

claimant can make prima facie case.

One-sided testimony akin to a Grand Jury proceeding

Trial

If Court or Public Prosecutor order trial, then full trial will

proceed

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Criminal Claims – Case Studies

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Civil and Criminal Claims Special Concerns

Powers of Attorney

Are required to initiate proceedings

Domestic clients

Foreign clients – notarized and authenticated, with

supporting proof of authority

Special authentication concerns – common procedural

defense

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Choice of Law/Forum Section Clauses

Choice of Law provisions are generally valid

Unless contrary to Thai statutes or public policy

Thai courts will not typically release jurisdiction in matters

involving Thai parties, regardless of presence of forum

selection clause (exception – arbitration)

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Special Litigation Concerns

No formal pretrial discovery in Thailand

Parties are on their own

May seek Court assistance if they can specifically

identify documents and justify need

Judges may participate in questioning of witnesses

No jury trials

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No declaratory relief (summary motions)

Default judgments

Preference for decisions on the merits

Orders of default not fatal

If unjustified failure to appear or answer, court will not

allow defaulting party to present witnesses, but will

allow them to cross-examine witnesses of non-

defaulting party

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No pain and suffering or punitive damage awards available – Exception for Product Liability claims


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Awards of actual cost only

Attorney Fees

Yes, but awards tend to be lower than in some other jurisdictions – Rarely exceed Baht 100k


Emergency Order & Temporary Injunctions

Yes, but claims must be well grounded with sufficient

extenuating circumstances to uphold order

Prescription periods

Recognition of Foreign Damage Awards

Foreign judgments not enforceable in Thailand.

Actions must be brought de novo

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Arbitration in Thailand

Thailand is a Member of the New York Convention Foreign arbitration awards are enforceable in

Thailand

Thailand’s Arbitration Act of 2002 Provides for a mechanism for enforcement of

arbitration awards (both foreign and domestic)

Must initiate court action to enforce the award

Arbitration awards based on default are enforceable

Three-year prescription period for enforcement

Appeals are allowed as of right to court awards of enforcement

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Thai court looks only to the appropriateness of

the arbitration in deciding whether to enforce –

Primarily a due process review

There is no reexamination of the merits of the

case

Refusal to Recognize Arbitral Award

Annulled in country in which it was rendered

Insufficient notice

Legal incapacity

Award outside the scope of arbitration agreement

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Arbitration Institutes

Thai Arbitration

Institute (Office

of the Judiciary)

Thai

Commercial

Arbitration

Institute

(Board of

Trade)

Ad Hoc

arbitration

also available

Foreign - ICC,

Singapore

International

Arbitration Centre,

Hong Kong

International

Arbitration Centre


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Arbitration enforcement in

Thailand is predictable and

fair, with most reasonable

awards (domestic and foreign)

ultimately enforced.

For more information, please visit:

www.tilleke.com

Michael Ramirez

Bangkok | +66 2653 5555

[email protected]

http://www.facebook.com/tillekegibbins

http://twitter.com/tillekegibbins

beluthai - thai court procedure on 15-05-2013

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