The legal system
Thailand has a codified system of law which shares a number
of characteristics of a civil system, but also has elements which are similar
to common law systems. The main codes or statutes are the:
- Civil and Commercial Code (which governs, among other
matters, private companies, civil rights and obligations, and most general
commercial contracts)
- Penal Code (which governs, among other matters, general
criminal offences and offences relating to trade, reputation and property)
- Civil Procedure Code (which governs court procedures for
civil proceedings)
- Criminal Procedure Code (which governs court procedures for
criminal proceedings)
- Revenue Code (which governs the collection of income tax,
value-added tax, specific business tax and stamp duty)
- Land Code (which governs ownership of land).
These codes are principally drawn from civil jurisdictions,
but with influences from common law jurisdictions as well as Thai customary
law.
In recent times, Thailand has looked to both the United
States and the UK as models for sector-specific laws, such as the securities
and exchange law, arbitration law, trade competition law and intellectual
property law. In line with the civil law tradition, the codified laws are brief
statements of general principles leaving some room for different
interpretations. Owing to a lack of case law reports (only Supreme Court cases
are reported) the regulatory authorities tasked with enforcing a particular law
are usually consulted on a no-name basis on their policies, practices,
interpretation and attitude to enforcement. Occasionally, regulators will seek
the opinion of the Council of State (which is the body established under the
State Council Commission Act B.E. 2522 (1979)) on interpretation issues.
Although the opinions of the Council of State are not binding and do not have
the force of law, they are generally followed by regulators and are highly persuasive
to the courts. The Supreme Court will generally follow previous rulings of the
Supreme Court and Supreme Court cases are highly persuasive on the lower
courts.
Dispute resolution
Courts
The Thai judicial system comprises the Court of Justice,
which hears most of the general civil and criminal cases, and specialist courts
(such as the Administrative Court, the Constitutional Court, the Intellectual
Property and International Trade Court, the Labor Court, the Juvenile and
Family Court, the Tax Court and the Military Court). The Court of Justice is organized
into three tiers, with the lowest court being the Court of First Instance,
whose decisions are appealable to the Court of Appeals and ultimately to the
Supreme Court.
Cases from some of the specialist courts (other than the
Administrative Court, the Constitutional Court and the Military Court) may be
appealed to the Court of Appeals and ultimately the Supreme Court or directly
to the Supreme Court with special leave of the Court of Appeals.
The Administrative Court has jurisdiction over disputes
among government agencies, state enterprises and public servants and their
employers as well as disputes between the state and the public. The
Administrative Court comprise the Administrative Court of First Instance, whose
decisions are appealable to the Supreme Administrative Court. The
Administrative Court has exclusive jurisdiction over disputes involving
“administrative contracts” between the state and the private sector.
“Administrative contracts” are principally concessions and other contracts to
provide public services or utilities.
Arbitration
Generally, arbitration agreement/clause and arbitration
awards (both domestic and foreign) are enforceable in Thailand. Thailand is a
party to the Convention on the Recognition and Enforcement of Foreign
Arbitration Awards 1958 (commonly known as the New York Convention) and has
enacted the Arbitration Act B.E. 2542 (2002) (Arbitration Act).
Arbitration proceedings in Thailand and enforcement of
foreign arbitration awards in Thailand are governed by the Arbitration Act.
Pursuant to the Arbitration Act, arbitration awards both domestic and foreign
are generally enforceable in Thailand through the Thai courts with competent
jurisdiction, subject to limited exceptions, which include where the award
deals with a dispute which cannot, by law, be settled by arbitration; or where the
recognition or enforcement of the award is contrary to “public order or the
good morals of the Thai people”.
Foreign arbitration awards will, generally, be enforced by
Thai courts only if such arbitration awards are rendered in accordance with an
international convention, treaty or agreement to which Thailand is a party and
only to the extent that Thailand has agreed to be bound by such international
convention, treaty or agreement. For instance, an arbitration award rendered in
Singapore in accordance with the New York Convention will, generally, be recognized
and enforceable in Thailand pursuant to the Arbitration Act because both
Thailand and Singapore (the country in which the award was rendered) are the
parties to the New York Convention.
Above summarizes the relevant law as at 9 February 2009.