Litigation: Thailand

1. Describe the general organisation of the court system for civil litigation.

Thailand

Thailand is a civil law jurisdiction and does not follow the principle of stare decisis. Legal rights and obligations are codified either by statute or in various codes, for example, the Civil and Commercial Code, Civil Procedure Code, Penal Code and Criminal Procedure Code. Supreme Court and Court of Appeal judgments are persuasive but not binding.

The Thai judiciary is composed of four distinct systems. Namely, the Court of Justice, the Administrative Court, Military Court and the Constitutional Court of Thailand.

The Court of Justice handles criminal and civil cases and has a three-tier system that comprises the following courts: (i) the Court of First Instance; (ii) the Court of Appeal (including the Court of Appeal for Specialised Cases); and (iii) the Supreme Court.

The Thai judicial system does not utilise juries. A judge will decide the outcome of a trial based on the evidence adduced by the parties. Thai judges are selected and appointed by the Judicial Service Commission.

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

Thailand

In Thailand, civil litigation is governed by the following procedural principles:

• burden of proof lies with the claimant;
• standard of proof is on the balance of probability;
• everybody must come to the court in good faith and with clean hands; and
• judges make decisions based on the law and not in equity. Thai jurisprudence does not recognise the common law concept of ‘equity’ in which a separate body of law coexists alongside statutory law and common-law.”

3. Describe the general organisation of the legal profession.

Thailand

A Thai lawyer is licensed by the Lawyer Council of Thailand, the regulator. This council plays a key role in promoting, educating and supervising its members. 

To obtain a licence to practise law in Thailand, a Thai national must possess a law degree from an accredited university and must pass several examinations administered by the Lawyer Council. The individual must then complete a six-month clerkship at a qualified law office.

Only Thai lawyers may appear as an attorney in a court proceeding but a foreign lawyer may present testimony as an expert witness on foreign law and act as an arbitrator. Foreign lawyers may not engage in the practice of law in Thailand.

There is no solicitor/barrister distinction in Thailand. Licensed Thai lawyers can litigate claims on behalf of clients and have rights of audience in every court in Thailand.

Individuals who have been conferred the title barrister-at-law are those who have passed the barristers exam, which makes them eligible to take further qualification exams for public prosecutors or judges. Those who have passed these exams do not have different rights of audience.

4. Give a brief overview of the political and social background as it relates to civil litigation.

Thailand

The Thai judicial system is heavily influenced by the French civil system and contains codes such as the Civil Commercial Code, Civil Procedure Code, the Penal Code; and the Criminal Procedure Code.

Thais are generally considered to be litigation adverse. In recent decades, government policy has tended towards making it easier for claimants to obtain redress through the justice system, with a particular focus on making claims easier against larger defendants (ie, business operators).

In 2015, the Thai government amended the Civil Procedure Code to permit the filing of class actions to make it easier for individual claimants to make claims against mass tortfeasors such as polluters, employers and business operators.

Civil litigation for consumer claims is governed by the Consumer Case Procedure Act. This Act as assists Consumers by reversing the burden of proof, granting exemptions for certain court fees and permitting claims for punitive damages.

Another feature of the Thai judicial system is that prospective litigants are not obligated to adopt alternative methods of dispute resolution before filing a lawsuit (save where otherwise agreed). There are no prescribed pre-action protocols under the law. However, pre-action protocols specified in agreements are recognised and enforced by the courts. Recent amendments to the Civil Procedure Code have made it much easier for prospective litigants to apply for a court-supervised mediation prior to the filing of the statement of claim. The mediation process introduced by the amendment is not subject to any court fees to encourage alternative dispute settlement prior to litigation.

Covid-19 has created a backlog of cases in the Thai civil courts. A typical waiting time between filing a claim and obtaining a trial court judgment is approximately 1.5 to two years.

There are certain activist claimants in Thailand. This is however generally limited to political issues for specific political reasons rather than to litigate civil cases for the benefit of the public.

5. What are the sources of law and rules governing international jurisdiction in civil matters?

Thailand

The Civil Procedure Code governs the rules on international jurisdiction in civil matters.  

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

Thailand

The Court of Justice is the default court of first instance for civil cases, unless the subject matter of the dispute falls under the scope of jurisdiction of a more specialised court such as the Central Tax Court, Central Labour Court, Central Bankruptcy Court, Central Intellection Property and International Trade Court or the Central Administrative Court.

The Civil Procedure Code adopts the concept of actor sequitur forum rei (ie. a claimant must bring the case at the defendant’s forum. Thai courts will therefore have jurisdiction where: (i) the cause of action arose in the territorial jurisdiction of the court; or (ii) the defendant is domiciled in the territorial jurisdiction of the court).

Accordingly, if the cause of action arose in Thailand, a claimant may file their case in a Thai court, regardless of whether the defendant is a foreigner or a foreign entity. Service of process can be made either via international courier or via diplomatic channels, depending on the specifications of any applicable bilateral treaty between Thailand and the jurisdiction in which the foreign defendant is based.

The choice of forum is limited to the jurisdictional rules in the Civil Procedure Code and cannot be agreed otherwise. Any choice of forum under a private agreement may be void as it will be deemed to be against the law concerning public policy.

The only exception to the above is contained in section 65 of the Multimodal Transport Act, which allows the parties to a multimodal transport agreement to agree a preferred choice of forum in the multimodal transport agreement or multimodal transport bill of lading, subject always to the law on jurisdiction of any such preferred country. This is limited to breach of contract or tort actions that relate to multimodal transport and not for any other disputes.

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

Thailand

No, Thailand does not generally attract disputes with a nexus with other jurisdictions.

A key tactical consideration that a prospective litigant should consider is that Thai court Judgments are not recognised by foreign courts. Thailand has no reciprocity of enforcement of court judgments treaties with other countries. The inverse is also true. Parties seeking to enforce a foreign judgment against a Thai domiciled party in Thailand will need to re-litigate the case.

Foreign judgments may be used as evidence in proceedings. However, the Thai court has full discretion to determine how much evidentiary weight (if any) a foreign judgment should be given in Thai proceedings.

8. How will a court treat a request to hear a dispute that is already pending before another forum?

Thailand

In a civil case pending before another forum in Thailand a civil court may dismiss the case on the grounds that such litigation is “repetitive litigation”.

If the matter is pending in the court of another country, however, Thai courts will have full authority to proceed with the case in hand under Thai substantive and procedural laws.

As a default position, foreign judgments and proceedings are not recognised or taken by the Thai court into its consideration (unless such judgments are adduced as evidence), nor will it delay the Thai proceedings. An exception can be made; however, this is based solely on the discretion of the Thai court.

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

Thailand

Where the parties mutually agree to submit their dispute to be resolved by arbitration, the parties are bound by such agreement. If a party brings a lawsuit to a national court in breach of the arbitration agreement, the court will strike out the lawsuit upon the request of the opposing party to uphold the agreement to arbitrate.

10. May courts in your country review arbitral awards on jurisdiction?

Thailand

Thai law provides for the review of arbitral awards in a limited set of circumstances. One such basis is that the arbitral tribunal has no jurisdiction to determine either the whole or part of a dispute.

11. Are anti-suit injunctions available?

Thailand

No, anti-suit injunctions are not available.

Under section 14 of the Arbitration Act, where a party to an arbitration agreement commences legal proceedings in court in respect of any dispute that is the subject of the arbitration agreement, the respondent may file a motion requesting the competent court to strike out the case no later than the date on which the statement of defence was filed or within the filing period of the statement of defence prescribed by law. If the court finds no grounds to void the arbitration agreement, it will issue an order to strike out the case, enabling the parties to enter or continue arbitration proceedings.

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

Thailand

The Constitution of Thailand protects the right of individuals to file lawsuits against state agencies and state-owned enterprises for an act or omission committed by a government official, official or employee of a state agency.

Notwithstanding the above, the Civil and Commercial Code makes it clear that state property may not be the subject of judicial execution as a matter of Thai law.

According to the Regulations of the Office of the Prime Minister on Compliance of Arbitration Awards 2001, where an arbitral award is made against a sovereign or state entity, the entity must comply with the award without requiring enforcement proceedings unless the award is contrary to the law governing the dispute or the award made is outside the scope of the arbitration agreement.

In practice, because state property cannot be subject to judicial execution and state entities are obligated to comply with arbitral awards, save where the award is deficient in some way, state entities will typically initiate exhaustive challenges against arbitral awards in the court system before it considers payment.

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

Thailand

A civil proceeding is commenced with the filing of a statement of claim. A statement of claim sets out the claimant’s claims, including the facts of the dispute and the relief requested. The court will then examine the statement of claim and accept it if there are no objections to its composition.

Where the defendant is not responsive and does not submit a statement of defence within the applicable deadline, it falls on the claimant to submit a request seeking default judgment.

The court has a general duty to manage and fix timetables for cases. The court will also encourage the parties to cooperate with each other in the conduct of the proceedings.

14. What are the requirements for filing a claim? What is the pleading standard?

Thailand

Thailand is a notice pleading jurisdiction. When filing a claim, also known as the statement of claim, it must contain the name of the court and the names of the parties, together with details of the facts and allegations forming the basis of the claim, a legal basis upon which the claimant intends to rely, and the relief being sought.

If the statement of claim contains sufficient information for the defendant to respond to it and all the facts on which the claimant wishes to rely on in later trial hearings, it does not need to contain detailed particulars of the claim.

A power of attorney and/or a deed of lawyer appointment is required to appoint legal counsel to represent a party in a case.

If the court accepts the statement of claim, a service officer will serve the court summons and a copy of the statement of claim on the defendant. The estimated time for service is usually within two to four weeks of filing the claim. In cases where the defendant is located overseas, service may be initiated by post or through diplomatic channels and will usually take between a few weeks to a few months, depending on the mode of service.

15. What are the requirements for answering claims? What is the pleading standard?

Thailand

Following proper service of the summons and the statement of claim, the defendant must file an answer to the statement of claim, which is also known as a statement of defence. The statement of defence must address the allegations made in the statement of claim (ie, whether the defendant admits or denies such allegations, either in part or in whole). The basis of any denials must be stated, along with any counterclaims that are related to the claimant’s claim. If a counterclaim or counterclaims are not related to the original claim, the court may order the defendant to bring a separate action.

The pleading standard for a defendant is the same as for a claimant in the statement of claim i.e., notice pleading.

The general deadline for the filing of a statement of defence is 15 days following service of the court’s summons and a copy of the statement of claim. The deadline to respond may differ by an additional 15–75 days, depending on the method of service. These methods include posting at the defendant(s)’s registered address; announcement in the court’s bulletin; and service via diplomatic channels.

16. What are the rules regarding further briefs and submissions?

Thailand

Amendments to pleadings, particularly to a statement of claim or a statement of defence, are permitted if they amend the original complaint by increasing or decreasing the claimed amount, waive any claim, include new defences, or amend the details of the allegation(s) made. Parties are not allowed to introduce any new claims into an amendment to a complaint. Amendments to a statement of defence are more flexible as the defendant will not be limited by the existing contents but may raise any new arguments to defend the case.

In terms of timing, amendment requests may be made at latest seven days prior to the date of determination of issues for trial or at latest seven days before the first evidentiary hearing if there has not been a hearing for the determination of issues. Amendment requests are subject to the discretion of the court.

17. To what degree are civil proceedings made public?

Thailand

Civil court filings are not publicly available although a specific litigation search at the court where a case is filed may reveal high-level information about the case. For example, the parties’ names, court hearing dates, service results, summary of key allegations, the claim amount and information regarding the court’s orders.

Certain persuasive decisions of the Supreme Court may be published in the Supreme Court’s Law Reports. The purpose of such a publication would be to share noteworthy judicial reasoning, legal constructions and court decisions. Names of the parties will not be disclosed in the publication.

Civil proceedings are open to the public. However, in practice, the courts may prevent parties who have no legitimate interest in attending hearings from attending court proceedings to prevent disclosure of all or any of the facts or evidence.

TV cameras, voice recorders and photographers are not permitted in courtrooms.

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

Thailand

Thai civil courts generally do not render interim assessments about factual or legal issues in dispute. The Civil Procedure Code empowers the court to encourage the parties in dispute to agree on an amicable settlement at any stage of the proceedings. However, the parties are not obligated to undertake the settlement process at the outset or during the litigation.

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

Thailand

Referral to mediation or ADR is not mandatory before or during litigation. However, it is highly recommended and actively encouraged by the court. Upon the filing of a case, the court will typically ask the parties to volunteer to undertake a pretrial mediation process.

Parties may also opt into mediation at any other stage of the proceedings. Similarly, parties are always free to negotiate and settle any time, before or even after a judgment is made.

20. What are the forms of emergency or interim relief?

Thailand

The forms of interim relief available under the Civil Procedure Code include: (i) seizure or attachment of the property in dispute; (ii) a temporary injunction restraining the defendant from repeating or continuing a wrongful act or breach of contract; (iii) an order directing a registrar to hold up registration, modification or cancellation of registration in respect of a property in dispute; or (iv) the provisional arrest and detention of the defendant.

A party may file an application for interim relief either before or after the judgment. Thai courts have discretion to hear from both sides when considering the granting of interim relief. It is only in an emergency injunction application, if granted by the court, which will be heard on an ex parte basis.

21. What must a petitioner show to obtain interim relief?

Thailand

The petitioner must show that their case has a prima facie chance of success and sufficient grounds to justify the interim reliefs requested. The threshold for an emergency injunction to be obtained is high. The requirements would depend on the type of an interim relief sought. Example of this includes, among other conditions:

• an imminent threat of serious harm;
• the continuation of the disputed action or inaction of the defendant; and
• the defendant has no or limited assets against which the claimant may eventually seek to enforce a judgment against once the litigation has concluded.

22. What types of decisions (other than interim relief) may a court render in civil matters?

Thailand

Thai courts have powers to render rulings on: (i) damages according to the circumstances and gravity of the contract breach; (ii) default interest as accrued from the date of committing a wrongful act or due date of the debt: (iii) litigation costs including witness fees, lawyer’s fees and other costs payable by law; (iv) specific performance; or (v) injunction on actions. The courts are empowered by certain legislations, including the Trade Secret Act, Product Liability Act and Consumer Protection Act, to award punitive damages. There is no summary judgment or declaratory judgment in Thailand.

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

Thailand

Thai courts typically render a decision at the end of the case by issuing a judgment that sets out the particulars of the case and a statement of the grounds for the decision.

Summary judgment is not available in Thailand. A motion to dismiss a case may, however, be filed based on legal questions, or because of the existence of a valid arbitration agreement between the parties. Motions to dismiss on legal questions are rarely granted. Thai courts tend to prefer to determine legal questions in its final judgment after the trial.

Apart from the above, a case may be struck out or dismissed in whole or in part where: (i) the claimant neglects to proceed with the case within the required time periods prescribed by law; or (ii) submission of a written notice to withdraw a complaint by the claimant. If a motion to withdraw is submitted after the defendant has submitted its defence, the court may also hear the defendant’s comment on the motion before deciding.

24. Under which circumstances will a default judgment be rendered?

Thailand

A default judgment may be rendered if the defendant fails to submit a statement of defence within the requisite timeframe and the claimant has submitted a default judgment application within 15 days of the expiry of such deadline.

The court may then directly render a default judgment or proceed with an ex parte hearing and decide the case based on the witness evidence of the claimant.

25. How long does it typically take a court of first instance to render a decision?

Thailand

A court of first instance typically takes 1.5 to two years from when the case is filed to render a decision. Schedules of the court and the parties, the length of a mediation process, if any, and the complexity of the case may also affect this timeframe.

26. How can third parties become involved in proceedings?

Thailand

A third party may join ongoing proceedings through either the third party’s own initiative or a court order following a disputing party’s motion.

Where a third party has a legal interest in the case, they may submit a motion to become a joint claimant, joint defendant or a substitute for a disputing party with such party’s consent at any time before a judgment is rendered by the court.

The court may also order a third party to join the proceedings upon the request of the disputing party because of a potential liability by way of a right of recourse or right to compensation through the court’s judgment or when it is deemed necessary by the court.

Failure to join a particular party as an interpleader will not preclude a litigant from bringing a separate claim against that party at a later date.

Thai court judgment will be binding upon the litigants only, so it is highly important to name the right parties against which the judgment will be enforced.

27. Describe the rules of fact-finding in your jurisdiction.

Thailand

In Thailand, the party making a claim shall generally bear the burden of proof for all their claims. A claimant will be responsible for bearing the burden of proof of liability, causation and damages. A defendant making a counterclaim also bears the burden of proof for their claims.

Only in exceptional cases where the defendant’s liability arises from ‘strict liability’ under specific legislations, the claimant only needs to prove damages, for instance by virtue of the Product Liability Act or the Hazardous Substances Act.

There are also situations where the burden of proof is reversed. For example, in cases litigated pursuant to the Consumer Case Procedure Act, the burden of proof is on the business operator to make rebuttals in accordance with the goods or services provided.

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

Thailand

The court generally relies on the parties to request the taking of evidence and to present it. According to the civil procedural rules, the parties must each submit a non-exhaustive list of the witnesses and documentary evidence to the court and the opposing party at least seven days before the hearing. The list must be accompanied by all the documents that the party intends to produce as evidence unless they are already known to the opposing party or is public knowledge.

The parties may also agree to use written witness statements that will be submitted at least seven days before the witness examination hearing. Despite this, the witness must still appear before the court and shall respond to the cross-examination and re-examination. Otherwise, such written witness statement will not be admissible as evidence.

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

Thailand

No, an opponent is not obliged to produce evidence that is harmful to it in the proceedings. There is no official procedure by which document disclosure takes place in proceedings. However, if a party is aware that the opposing party is in possession of a specific document that is relevant to the proceedings, it can apply for a subpoena from the court for that specific document.

The court also has the discretion to order a party to adduce a specific document as evidence. If evidence is not produced by a party, the court may make an adverse inference against such party at its discretion.

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

Thailand

At a party’s request, Thai courts may exercise their discretion to allow parties to submit written witness statements. The witnesses must attend the witness hearing to affirm their statement, and to be cross-examined by the opposing party. There is no prohibition on witness preparation. In practice, lawyers or prosecutors will prepare the witnesses in advance of any cross-examination.

All witness testimony must be given in the Thai language or through an interpreter. At trial, the claimant will introduce their witnesses and put their witnesses to cross-examination first. Re-examination is permitted. Judges in some proceedings actively participate in the examination of witnesses with due regard to impartiality and in the interest of justice.

While the witnesses give oral evidence, the presiding judge or judges will make a record of the testimony and printed for the witness’ review and signing.

31. Who appoints expert witnesses? What is the role of experts?

Thailand

Either party or the court has the power to appoint expert witnesses.

An expert witness is an expert in their field, and whose opinion provides probative value in settling the points in dispute. The duty of the expert witness is to the court.

32. Can parties to proceedings (or a party's directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party's failure to testify or act as a witness?

Thailand

Yes, parties to proceedings can act as witnesses and testify in the case. In cases where parties or third persons legitimately refuse to cooperate, the court will not infer that the alleged fact is proven.  However, if a third party has been summoned to testify before the court and refuses to cooperate without justification, the court may impose a fine up to 10,000 baht or imprisonment not exceeding six months, or both.

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

Thailand

Foreign law may be introduced into civil proceedings as a fact (as opposed to being introduced as a point of law). In practice this is done by calling upon expert witness testimony (by way of written and oral testimony).

Where a foreign language document is to be adduced into court proceedings, a translation must be provided and certified as being a true and accurate representation of the original document by any translator.

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

Thailand

The standard of proof in civil cases is “proof on the balance of probability” or by a “preponderance of the evidence”. The general rule is the party who makes a claim has a duty to prove the claim made.  If there is a presumption in law favourable to one party, such party will be required to prove that the conditions entitling them to avail themselves of the presumption have been fulfilled.

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

Thailand

There are two levels of appeal. Firstly, from the Court of First Instance to the Court of Appeal. Secondly, from the Court of Appeal to the Supreme Court.

An appeal from the Court of First Instance to the Court of Appeal on a matter of law is automatically granted by right. However, if parties wish to appeal an issue of fact to the Court of Appeal, they may only do so where:

• the disputed amount is greater than 50,000 baht;
• when a judge on the bench of the court of appeal certifies a right to appeal;
• a judge at the Court of First Instance has a dissenting opinion;
• the nature of the dispute does not concern monetary relief.

Parties must request the Supreme Court to permit it to make an appeal against a Court of Appeal judgment. However, the Supreme Court will only accept cases where the dispute is in the public interest, in connection with public order or will be to consider legal concepts that have not been previously considered by the Supreme Court.

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

Thailand

An appeal will usually be a review of the lower court’s decision. The Court of Appeal does not typically hear new evidence and only reviews the record of evidence presented and accepted in the trial court as well as the laws applied by the lower court to the case. However, on questions of law, section 225 of the Civil Procedure Code permits the parties to appeal on questions of law that relate to public policy and good morals. Accordingly, if a party considers that the lower court has made an erroneous decision on a question of law relating to public policy and good morals, the affected party may request the Court of Appeal to dismiss the Court of First Instance’s court’s decision without having to raise this issue in the Court of First. The Court of Appeal will then decide whether the judgment of the lower court is legally sound based on this appellate review.

The decision of the Court of Appeal may be to affirm, amend or overturn the trial court judgment either in whole or in part.

37. How long does it usually take to obtain an appellate decision?

Thailand

It normally takes between one and two years for an appellate decision to be obtained.

38. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

Thailand

Parties who intend to resolve their disputes by arbitration must enter into an arbitration agreement, where the parties mutually agree to resolve their dispute through a tribunal of arbitrators. Once the arbitration agreement is entered into, the parties are bound by it and must refer the dispute to arbitration instead of to national courts. A party cannot unilaterally withdraw from arbitration.

The Arbitration Act is the legislative framework that governs the conduct of arbitration in Thailand. The Arbitration Act applies equally to domestic arbitrations and international arbitrations, as well as commercial and investor-state arbitrations.

39. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

Thailand

Courts have a key role in the facilitation of domestic and international arbitration proceedings, this includes as a forum for the parties to:

• challenge an arbitrator on impartiality grounds;
• challenge the jurisdiction of the tribunal, or review the tribunal’s decision on its jurisdiction;
• request the issuance of a subpoena in support of disclosure requests;
• request the issuance of a summons to compel witness attendance;
• request the issuance of an injunction to preserve the subject matter of the dispute (or prevent harm to the parties); and
• challenge or enforce an arbitral award.

40. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

Thailand

Parties in arbitration can seek to enforce an arbitral award by filing a motion with the competent Thai court within three years from the date on which the award may be enforced. Normally this would be when such a party receives the arbitral award. Any appeal against a court’s order or judgment with respect to the enforcement of the award may only be submitted to the Supreme Court. Such appeal will only be accepted under the following circumstances:

• the recognition or enforcement of the arbitral award is contrary to public order or good morals;
• the order or judgment is contrary to the laws that govern public order;
• the order or judgment is inconsistent with the arbitral award;
• the judge who sat in the case has a dissenting opinion; or
• the order is an order imposing interim measures to protect the interest of the party to an arbitration agreement before or during the arbitral proceedings.

41. Are class actions available?

Thailand

Class action proceedings are relatively new in Thailand. The law governing class actions was enacted on 8 April 2015 and only became effective in December 2015. Class action proceedings are typically adopted for mass tort type scenarios, as well as for the enforcement of rights or entitlements in law, including consumer protection law, competition law, environmental law and securities law.

All courts, except for municipal courts, have jurisdiction to hear class action lawsuits. To form a ‘class’, a Thai court must be convinced that the rights of the class members are the same and their claims are made on common grounds, even though the damages incurred may be different for each individual. The court then considers whether the class action should be heard and if during this time, class members decide that class action is not the appropriate remedy to fulfil their needs, they can withdraw from the class within 45 days.

The court will appoint a class action officer, who assists the court by attempting mediation, collecting and verifying evidence, meeting with witnesses and taking statements before and during the trial. Procedurally, a class action is similar to an ordinary civil action, from the submission of evidence to the delivery of a judgment.

The claimant may file an appeal when a judgment is rendered by the court. Individual appeal rights are not available, so the claimant must file the appeal on behalf of the group. As is normal in civil cases, an appeal may first be made to the Court of Appeal, and then to the Supreme Court, assuming grounds for such an appeal exist.

The court is permitted to award legal fees of up to 30 per cent of the judgment quantum.

42. Are derivative actions available?

Thailand

Corporate law provides shareholders with a right to bring derivative actions against directors in the name of and for the benefit of the company. It permits a shareholder to commence litigation against a director who has brought harm to the company as a result of their breach of their fiduciary duties, provided that the board of directors or the sole director have refused to take action against the director who is alleged to have cause harm to the company.

The remedy of a derivative action is limited to a claim for compensation from the offending director only. A derivative action may not be made against a third party even if such third party may have taken part in the wrongdoing. For instance, if a director sells company land to a third party in breach of their fiduciary duties, a derivative action may only seek compensation from the director arising from its wrongful act, not compensation or specific performance from the third party.

43. Are fast-track proceedings available?

Thailand

There are no fast-track proceedings available.

44. Is it possible to conduct proceedings in a foreign language?

Thailand

All court proceedings in Thailand must be conducted in the Thai language. Additionally, all pleadings and submissions must be made in the Thai language including documents or evidence.

Thai translations must be provided for foreign language documents and witnesses. Where a witness is a foreigner, interpreters and translators are used to ensure the testimony (whether written or oral) is understood by the court.

45. What legal effects does a judgment have?

Thailand

Thai court judgments have no binding effect. Supreme Court judgments are merely persuasive. It is common to refer to Supreme Court judgments for the principle applied rather than the factual circumstances in the case unless they are identical to the current case.

The parties to the proceedings will be bound by the judgment. A judgment typically does not have a binding effect on third persons who are not party to the proceedings, although there are some limited exceptions to this general rule (eg, dependents of the defendant in an eviction case).

46. What are the procedures and options for enforcing a domestic judgment?

Thailand

A domestic judgment must be enforced within 10 years of its issuance. The court’s judgment can be enforced by attaining a writ of execution issued by the court for the seizure and sale by auction of the debtor’s property and assets and the attachment of the debtor’s rights of claim against third parties.

Where a creditor is uncertain of the location of a debtor’s assets, a creditor may also file an application requesting the court to hold an inquiry and to summon the debtor who is believed to be able to provide useful information as to the location of the debtor’s assets in Thailand.

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

Thailand

Thai law does not provide for the direct enforcement or recognition of a foreign judgment as Thailand is not party to any treaty or agreement that allows a foreign judgment to be enforceable.

A party who has obtained a foreign judgment and intends to enforce it against a defendant in Thailand will need to start new proceedings in a Thai court.

The foreign judgment may be recognised as proof of a claim adjudicated abroad, although it is insufficient to constitute grounds of execution.

At best, the foreign judgment can only be admitted as evidence in Thai proceedings.

48. Will the successful party's costs be borne by the opponent?

Thailand

The opponent typically bears the successful party’s costs, in the amount deemed appropriate by the court. Generally, a court judgment will comprise an order that requires the losing party to cover the other party’s actual court fees or fees proportionate to the winning ratio. In the judgment, the court will typically include a reimbursement of lawyers’ fees paid by the winning party, commonly in a nominal sum, although Thai civil procedure law entitles the court to award up to 5 per cent of the claimed amount in the court of first instance and 3 per cent at each level in the higher courts.

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

Thailand

Each civil court has lawyers who can provide pro bono legal advice and, in some instances, provide free legal representation in a case. This is done at the discretion of each volunteering lawyer.

A claimant may also ask the lawyers council of Thailand to provide them with a pro bono lawyer.

Finally, a claimant may request that the court to waive its court fees where the claimant has a legitimate claim but is incapable of paying the court’s fees.

50. Are contingency fee arrangements permissible? Are they commonly used?

Thailand

Third-party funding and contingency fees (for lawyers) are neither permitted nor encouraged in Thailand. 

Contingency fee arrangements are unenforceable in Thailand as the Supreme Court has found them to be against public policy. The Supreme Court has also found that allowing an unrelated third party to fund litigation in return for benefits is also against public policy.

The Lawyer’s Council of Thailand takes a more stringent approach to the use of contingency fees. The Code of Ethics adopted by the Lawyer Council of Thailand prohibits lawyers from using contingency fees. Notwithstanding this, there is no law expressly outlawing either practice.

Given the above, contingency fees and third-party funding are not commonly used in Thailand.

51. Is third-party funding allowed in your jurisdiction?

Thailand

Thai law does not prohibit a third party from funding litigation proceedings. Nevertheless, it is the Supreme Court’s position that financial support from a third party without any legal interest in a piece of litigation and with the intention to profit from said piece of litigation is likely to be regarded as contrary to public policy and is therefore unenforceable in Thailand.

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

Thailand

No, there are no fee scales that lawyers must follow in Thailand.