Legal Business

Sponsored briefing: Overview of commercial litigation in Thailand

Tilleke & Gibbins’ Sittiwate Jewsittiprapai and Michael Ramirez share their insights into the working of Thailand’s legal system

Thailand’s legal system is based on European continental civil law systems, with a three-tier court system. Precedents set by the Thai Supreme Court are merely considered as examples of the application of laws and are not binding on Thai courts.

While the country’s judiciary and dispute resolution mechanisms are well developed, some aspects can be unfamiliar or even surprising to counsel unfamiliar with the Thai court system. This article introduces some of the Thai civil court procedures and practices, and covers several key issues it is important to understand regarding civil litigation in Thailand.

Offers of compromise or settlement

In Thailand, there is no such thing as an ‘offer without prejudice’. Anything put in writing can be used against the offering party. Therefore, compromises, settlements, and offers to compromise or settle should not be made before consulting with legal counsel. Similarly, parties at trial or anticipating litigation should be cautious in all communications with the opposing party.

Location of assets

Before initiating litigation, plaintiffs should investigate the nature and extent of the defendant’s assets in Thailand and abroad. A monetary judgment is of limited value if the defendant has little or no recoverable assets. Therefore, any information a claimant has on the opposing party should be assessed at the beginning of the case or as soon as is reasonably possible.

Language of documents

All documents submitted to a Thai court must be in the Thai language. Foreign documents must be the originals or certified copies, and certain documents also need to be notarised and then authenticated by a Thai consular official.

Court costs

A plaintiff must pay a court filing fee when submitting a case. This is usually 2% of the claim amount but will not exceed THB 200,000 per action for claims of up to THB 50 million. There is an additional 0.1% calculated on the amount of a claim exceeding the THB 50 million threshold. If the suit is successful, some of these advanced court costs are usually recoverable.

Additionally, non-resident plaintiffs may be required to deposit security with the court to insure against a potential award of court costs in favour of the defendant.

Appeals

In civil cases, appeals must be filed within one month of the judgment being read. Extensions may be granted at the court’s discretion if requested and reasonably justified.

At each level, the appealing party must deposit additional court costs of 2% of the judgment amount, with a maximum of THB 200,000 for claims of up to THB 50 million and an extra 0.1% calculated on claim amounts exceeding THB 50 million. The appealing party may also be required to post an additional guarantee to ensure its ability to cover judgment should the appeal be unsuccessful.

The Courts of Appeal and Supreme Court are not trial courts, and generally no new evidence may be introduced after the trial in the lower court is completed. Appeals at all levels are resolved through written pleadings and supporting documentation only. There is no live oral advocacy.

In 2015, Thailand changed its appeal system from a right-based system, which allows any party to appeal against the lower courts to the Supreme Court, to a permission-based system, where a judgment or an appellate court order is final unless an appeal is accepted by the Supreme Court. This change gave the Supreme Court the power to grant permission to file an appeal to the Supreme Court if it deems the question a significant matter worthy of a decision. Under this new discretionary system of review, only a minority of Supreme Court appeals are accepted by the Supreme Court.

Length of trials

Unless settled by compromise, civil litigation typically lasts between 12 and 18 months, counting from the initiation of action until a judgment by the court of first instance. Cases in the Courts of Appeal usually take an additional 18-24 months, with a similar period for appeals to the Supreme Court.

Recognition and enforcement of foreign judgments

Foreign judgments cannot be enforced in Thai courts. Thailand is not a party to any treaty or convention on the recognition and enforcement of foreign judgments. As such, a creditor must bring a new lawsuit to the relevant Thai court to obtain satisfaction. This means that a foreign judgment creditor must file a court case against a Thai debtor in Thailand and submit the foreign court’s judgment as evidence. The Supreme Court has ruled that for a foreign judgment to be admitted as evidence, it must be a final, dispositive order.

Arbitration and alternative dispute resolution

Deciding whether to litigate or seek alternative dispute resolution is commonly an anticipatory decision made by the parties to a contract before a dispute exists. Parties either specifically elect mediation or arbitration uniquely tailored to their needs or leave the matter of dispute resolution to the responsible court.

Some key reasons for choosing arbitration over court litigation are flexibility and the ability to tailor how a party’s dispute would be resolved by selecting the arbitration rules and institute, the venue, and the number of arbitrators. Administrative costs and arbitrator fees are pretty reasonable at local institutes and may help decrease the overall cost of dispute resolution in Thailand.

Thailand has three arbitration institutes: the Thai Arbitration Institute of the Office of the Judiciary, the Thai Commercial Arbitration Institute of the Board of Trade, and the Thailand Arbitration Center under the Ministry of Justice.

Enforcement of foreign arbitral awards

In general, foreign arbitral awards are recognised in Thailand if they fall within the recognition of treaties, conventions, and international agreements to which Thailand is a party – and only to the extent that Thailand is committed to be bound by them. Thailand is a party to both the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927. Awards brought under the auspices of the former are easier to enforce than under the latter. Foreign arbitral awards can be executed in Thailand without having to be relitigated, although enforcement does require the filing of an enforcement claim with the Thai court of jurisdiction for execution against a debtor’s assets.

Authors:


Sittiwate Jewsittiprapai, senior associate
T: +66 2056 5809
E: sittiwate@tilleke.com


Michael Ramirez, counsel
T: +66 2056 5794
E: michael.r@tilleke.com

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Legal Business

International expansion: Speechly opens in Paris as Rouse and Tilleke Gibbins launch in Myanmar

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The burgeoning Paris market has drawn in another UK name as Speechly Bircham opens in the City while UK IP firm Rouse expands into Myanmar alongside new South East Asian entrant Tilleke & Gibbins, which has also launched in Indonesia and Laos.

Its fourth new European office in two years, UK top 55 firm Speechly Bircham opened today (25 November) in the French capital with an 11-strong team, which will focus on private wealth tax planning as well as corporate and litigation services to private clients, private equity investors and corporates.

The four-partner launch team comprises former STC partners Stéphane de Lassus and Anne-Marie Berthault-Boissonnas, who advise on international tax planning for wealthy families, entrepreneurs and management teams, along with STC litigation partner Frédéric Jeannin and corporate partner Thibaut Caharel of Paris’ PDGB Avocats.

Responsible for developing the firm’s international operations, Speechly’s senior partner, Michael Lingens, said: ‘Building on the success of our first international offices, Paris feels like a natural next step due to its importance as a European commercial centre. Speechly Bircham has invested in growing its international private wealth, investment management and funds offering and we are delighted that this very talented team has joined us.

‘The addition of Paris will enable us to broaden our offering to wealthy families and successful entrepreneurs as well as private equity houses and corporates.’

The 230-lawyer City firm, which has also opened in Luxembourg, Geneva and Zurich in the last two years, follows on the heels of Osborne Clarke, which opened in Paris in July.

Meanwhile in Myanmar, London-based IP firm Rouse is opening its 16th base in the former capital of Burma, Yangon, run by head of patents and Thailand country manager Fabrice Mattei, joined by qualified Myanmar attorney and IP specialist Moe Mynn Thu, who joins the firm from Myanmar Brewery Limited.

The office will offer filing and prosecution for trademarks, patents designs and geographic indications, as well as broader portfolio management, commercial work and IP commercialisation services such as technology transfer.

Chief executive of Rouse, Luke Minford, said: ‘We are delighted to announce the opening of Myanmar office, the first of its kind for an international IP firm. We have worked actively in the Myanmar market for several years, and believe the time is now right to establish a base in the country. We already manage the IP of over 50 clients in Myanmar, and this step will ensure we can continue to deliver the level of service we pride ourselves on at Rouse.’

Elsewhere, South East Asian IP firm Telleke & Gibbins completed a run of office openings in the region earlier this month with new bases in Jakarta, Vientiane and Yangan, where it has already been advising IP clients for many years, building on its longstanding presence in Thailand and Vietnam.

Myanmar has also been a draw for foreign firms entering the legal market as it opens up, either through owned or alliance set-ups, including Stephenson Harwood, which opened in May, Selvam & Partners, which opened in September and US-based Herzfeld Rubin Meyer & Rose, which launched in October.

francesca.fanshawe@legalease.co.uk