Feb 2024

Thailand

Law Over Borders Comparative Guide:

Commercial Litigation and Cross-border Enforcement

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1 . What is the structure and organisation of local courts dealing with commercial claims? What are the main procedural rules governing commercial litigation?

The Thai civil court system consists of the Court of First Instance, the Court of Appeal, and the Supreme Court. The main procedural rules governing general commercial litigation are set out in the Civil Procedure Code (CPC).

The Court of First Instance can be categorized based on jurisdiction and subject-matter.

In terms of jurisdiction, the Court of First Instance consists of district courts and provincial courts. District courts have jurisdiction over claims with a value of no more than THB 300,000,[1] while provincial courts have jurisdiction over claims exceeding THB 300,000.

In terms of subject-matter, the Court of First Instance consists of general civil courts (which hear normal civil and commercial-related claims), and specialist courts (which hear specific subject-matter disputes). The specialist courts include the following:

  • The Intellectual Property and International Trade Court.
  • The Tax Court.
  • The Labor Court. 
  • The Bankruptcy Court.
  • The Juvenile and Family Court.

Each specialist court has its own procedural rules. The CPC will apply only in cases where the procedural rules of such specialist courts are not specified.

For general commercial litigation, once a judgment of the Court of First Instance is rendered, the parties against whom the judgment is rendered are entitled to file an appeal to the Court of Appeal pursuant to the CPC. Subsequently, in order for a party who is dissatisfied with a judgment of the Court of Appeal to file an appeal to the Supreme Court, the appellant must first seek permission from the Supreme Court and prove that the appeal concerns significant issues specified in the CPC. The significant issues specified in the CPC include the following:

  • Issues related to public interest or public policy.
  • Judgments or orders of the Court of Appeal adjudicating important legal issues in contradiction or contrary to the precedents of the Supreme Court.
  • Judgments or orders of the Court of Appeal adjudicating important legal issues without prior judgment or order of the Supreme Court setting precedent of the same.
  • Judgments or orders of the Court of Appeal contradicting judgments or final orders of other courts.
  • Advancing the interpretation of laws.
  • Other significant issues as prescribed by the Announcement of the President of the Supreme Court, including:
    • Judgments or orders of the Court of Appeal containing conflicting opinions on significant matters, which the Supreme Court deems necessary to adjudicate.
    • Judgments or orders of the Court of Appeal addressing significant legal issues not aligned with international agreements binding Thailand.
    • Judgments or orders involving contradictions in significant matters between the Court of First Instance and the Court of Appeal, which the Supreme Court believes should be adjudicated.

[1] Pursuant to The Law for the Organization of the Court of Justice (LOCJ), section 17, “District Courts shall have power to try and adjudicate cases and to conduct an inquiry or issue any order for which a single judge is competent as prescribed in section 24 and section 25 paragraph one” and section 25, “In courts of first instance, a single judge shall form a panel having the following power in relation to cases within the jurisdiction of the courts: …(4) to try and adjudicate civil cases in which the value of property in dispute or the amount of claims does not exceed 300,000 Baht. Such value of property in dispute or the amount of claims may be increased by an enactment of a Royal Decree.”

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2 . What pre-action considerations apply?

Under the CPC, there is no requirement for a party to take pre-action steps prior to commencing proceedings. However, in practice, a party initiating proceedings may issue a legal notice to the opposing party to demand the performance of obligations, and to inform them that proceedings will be commenced in the event of failure to comply with the demand.

In addition, for some types of civil claims, parties are required by substantive law to take specific action prior to commencing proceedings. For instance, in order to commence proceedings to enforce a mortgage under the Civil and Commercial Code of Thailand (CCC), a mortgagee is required to serve a legal notice to the debtor, requesting debt repayment within a period not less than 60 days from the date of receipt of such notice.[2] Similarly, in order to commence proceedings against a guarantor under the CCC, the creditor is also required to serve a legal notice to the guarantor within a period not less than 60 days from the date when the debt has been defaulted. Failure to comply with such notice requirement would discharge the guarantor from the liabilities for interest, compensation, and all charges incidental to such obligation.[3]


[2] Section 728 of the CCC.

[3] Section 686 of the CCC.

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3 . What are the main alternative dispute resolution (ADR) methods used to settle large commercial disputes?

In practice, the main alternative dispute resolution method used to settle large commercial disputes in Thailand is arbitration. Mediation is another alternative dispute resolution commonly used for smaller claims or as a default step before the parties bring the case to trial. 

According to statistical information provided by the Thailand Arbitration Center in 2021,[4] the disputes that parties bring to mediation usually involve small civil-related matters, inheritance disputes, consumer disputes, disputes under insurance agreements, and labor disputes.


[4] www.ebookservicepro.com/showcase/2022/THAC2021/MediationReport2021/.

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4 . How long, on average, do court proceedings take to reach trial?

Previously, the Thai courts did not fix specific deadlines for a proceeding to reach trial. The timeline of a proceeding would be subject to availability based on the court’s diary and the schedule of the parties and their attorneys at the time. In practice, under normal circumstances, a proceeding would take approximately one year after the submission of the claim for the case to reach trial and for the court to issue judgment. During the outbreak of COVID-19, some proceedings took three to five years due to the postponement of court hearings. 

However, the Judicial Regulation on Determination of Period for the Adjudication of the Court of Justice B.E. 2566 (the “Judicial Regulation”), which sets out timelines for the completion of various court proceedings, has been in effect since 24 January 2023. In essence, for a simple case (including a petty case, a consumer case, or an ex parte hearing with no opposing party), the court is required to complete the trial and render a judgment within six months from the date on which the complaint is filed. For a civil or commercial dispute relating to more complicated issues that require consecutive hearings, the court is required to complete the trial and render a judgment within one year from the date on which the complaint is filed. Nevertheless, it is important to note that the Judicial Regulation merely provides guidelines for the courts to follow without any sanction in case of non-compliance. Also, since the Judicial Regulation has only been in effect since early 2023, there has not yet been any enforcement of the Judicial Regulation in practice. Therefore, it is still unclear how strictly the Judicial Regulation will be enforced.

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5 . What disclosure obligations apply? Are parties required to disclose unhelpful documents as well as those on which they rely?

Since there is no disclosure obligation, the CPC does not impose strict disclosure obligations on parties and parties are not required to produce lengthy initial disclosures of documents. As a general rule, parties are only required to submit a list of evidence that they intend to rely on to the court within the timelines prescribed under the CPC.[5] If they have documentary evidence in their possession, they must submit it to the court and make copies for their counterparties.[6] In essence, a list of evidence is a document itemizing the witnesses and evidence that a party intends to adduce to the court. Its purpose is to broadly inform the opposing party in advance of the documentary evidence and witnesses that the party intends to rely on. Under the CPC, parties are required to submit their first list of evidence to the court and to the opposing party at least 7 days prior to the evidentiary hearing date. Additional lists of evidence may also be submitted no later than 15 days from the first hearing date. Permission from the court must be obtained for any list(s) of evidence submitted outside the timeline(s) prescribed by the CPC. Any evidence relied on but which was not declared in a list of evidence submitted to the court may be refused by the court or challenged by the opposing party.[7]

If parties wish to adduce evidence not in their possession, they may request that the court issue a subpoena to order the holder of such evidence to deliver it to the court within a specified period.[8] 


[5] Section 88 of the CPC.

[6] Section 90 of the CPC.

[7] Section 87 of the CPC.

[8] Section 123 of the CPC.

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6 . Can witnesses be required to attend trial and face cross-examination?

Witnesses can be broadly classified into two categories: voluntary witnesses and summoned witnesses. Parties must specify in their list of evidence whether each witness is considered a voluntary witness, a summoned witness, or both.

Voluntary witnesses refer to witnesses who will voluntarily attend the court hearing without needing a summons filed by the party seeking to rely on his/her testimony. In contrast, summoned witnesses refer to witnesses who may not be brought to testify without the court’s authority. Therefore, the party seeking to rely on his/her testimony is required to issue a summons.[9] 

Pursuant to the CPC, subject to the court’s permission, parties may agree to submit a written memorandum of testimony of any witness whom they intend to rely on as a witness for the affirmation of certain facts or opinions, instead of examining that witness in court. In this case, the court will fix timelines for the submission of the memorandum of testimony to the court, and parties are also required to serve a copy of the same to the opposing parties in advance (at least seven days before the date of examining the witness).[10]

Regardless of whether the memorandum of testimony is submitted, all witnesses are required to attend in court and face cross-examination, either by way of their actual presence in the court or via video-conference (if permitted by the court). If a memorandum of testimony is submitted to the court but the witness does not attend the court hearing for cross-examination, the memorandum of testimony will not be admitted as evidence.[11] However, if the court deems the absence of the witness as a case of emergency or force majeure, the court may, at its discretion, still admit the memorandum of testimony as a piece of evidence to be considered with other evidence.


[9] Section 106 of the CPC.

[10] Section 120/1 of the CPC.

[11] Section 120/1 of the CPC, paragraph 3.

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7 . What discretion do the courts have in making costs orders?

In principle, the losing party is responsible for the whole statutory costs.[12] However, the court is entitled to exercise discretion to order the winning party to bear statutory costs or to order that each party be responsible for the statutory costs proportionately. Such discretion is subject to reasonable causes and the conduct of each party during the proceeding.[13]

Further, parties are not entitled to solely appeal the court’s costs order except in cases where the appeal is on the basis that the costs order does not comply with the law. If parties also submit an appeal regarding the content of a judgment, they may include an appeal against the court’s costs order on other grounds, along with the main appeal.[14]


[12] Section 149 of the CPC states “Statutory costs such as Court fees [i.e., filing fee], fees for taking evidence outside Courts, fees, travel expenses, accommodation rents for witness, expert, translator, and officer of the Court, lawyer fees, expenses in relation to the Court proceeding including fees or other expenses required by law.”

[13] Section161 of the CPC.

[14] Section 168 of the CPC.

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8 . What are the main types of interim remedies available?

Interim remedies may be sought before the court renders a judgment or an order finalizing a case. Under the CPC, interim remedies are divided into three categories, as follows:

1. Interim remedies for defendants.[15] A defendant may request an interim remedy by asking the court to order the plaintiff to place a sum of money, or provide a guarantee, to secure the payment of court fees or costs that the plaintiff might be responsible for if the plaintiff loses the case. In this regard, the defendant is required to prove that the plaintiff does not reside in Thailand and does not have any assets in Thailand, or there is a reasonable cause to believe that the plaintiff would not be responsible for the court fees if the plaintiff loses the case.

2. Interim remedies for plaintiffs.[16] Except for petty cases, the CPC provides four types of interim remedies for plaintiffs, as follows:

  • Seizure or attachment of assets in dispute or assets of the defendants.
  • Interlocutory injunction against the defendants. Under the CPC, the court may order interlocutory injunctions in four manners, including: (i) an injunction order prohibiting defendants from repeatedly committing, or committing in the future, any act of tort or breach of contract or the act disputed in the lawsuit; (ii) an injunction order relieving damage or nuisance which the plaintiff might be inflicted from the act of the defendants; (iii) an injunction order temporarily prohibiting defendants from transferring, selling, moving, or disposing of the property in dispute or the defendants’ property; (iv) an injunction order for termination or prevention of the vain consumption or deterioration of such property.
  • Freezing order by way of directing a registrar, official, or any person authorized by law to temporarily restrain any registration, change of registry, or revocation of registry related to the property in dispute, property of the defendant, or property related to the act claimed in the lawsuit.
  • Arrest and temporary detention of the defendants. However, please note that this interim measure is very rarely executed in practice. 

The plaintiff is required to satisfy the court that the complaint is a prima facie case and prove that there are sufficient reasons for applying the requested interim remedies. Also, the plaintiff may request such interim remedies on an emergency basis by submitting a separate motion setting forth the grounds for the emergency with an application for the injunctive remedies.

3. Interim measures for protecting parties’ benefits.[17] Any party to the case may request interim measures for the purpose of protecting the party’s interests during the proceedings or facilitating judgment execution in the future. For instance, the party may request for property or money in dispute to be deposited with the court or a third person, the appointment of a manager or trustee for the disputed place of business, or for an incompetent person to be administered by a third person. Please note that these measures also apply to petty cases. However, unlike the interim remedies for plaintiffs, parties may not request these measures on an emergency basis.

It is also worth noting that Thai courts are generally very conservative when exercising their discretion in granting interim remedies. This is because interim remedies are considered as an infringement on the right(s) of the opposing party prior to the conclusion of the proceedings. As such, in practice, Thai Courts typically set a very high threshold when exercising their discretion to grant interim remedies.


[15] Section 253 of the CPC.

[16] Section 254 of the CPC.

[17] Section 264 of the CPC.

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9 . What approach do the local courts adopt with respect to arbitration? What arbitration law applies and is it based on the UNCITRAL Model Law?

Arbitration seated in Thailand is governed by the Arbitration Act B.E.2545 (AA), which is based on the UNCITRAL Model Law. 

The involvement of Thai Courts in arbitration is limited to certain stages of proceedings, such as the request for a subpoena or summons, the order of interim measures (see below, Question 10), and the recognition and enforcement of the arbitral award. Initially, Thai courts took a very conservative approach to arbitration as the practice was not well-known at the time. However, Thai courts have become more open and now adopt a more pro-arbitration approach. In essence, Thai courts, by default, recognize and enforce arbitral awards, except in cases where the award evidently falls within any grounds for setting aside or refusal of enforcement. 

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10 . Can arbitrators grant interim relief?

Arbitrators are not authorized by the AA to grant interim relief. Even though the arbitration rules of some arbitration institutions in Thailand allow arbitrators to grant interim relief, such orders still lack enforcement power and are subject to the parties’ willingness to comply with the same. 

Therefore, in practice, a party must submit a request to a competent court, as opposed to the arbitral tribunal, in order to obtain interim relief.[18]


[18] Section 16 of the AA.

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11 . On what grounds can an arbitration award be appealed?

Pursuant to the AA, an arbitral award is not subject to appeal. Therefore, a party dissatisfied with an award may challenge it by submitting a motion to set aside the award or to refuse the enforcement of the award.

The grounds for setting aside an award and refusing its enforcement are substantially similar.[19] These include, for example, the award involving a dispute not capable of settlement by arbitration, the enforcement being contrary to public policy, the award dealing with a dispute not falling within the scope of the arbitration agreement, or the composition of the arbitral tribunal or the arbitral proceedings not being in accordance with the agreement of the parties.

After the Court of First Instance renders a judgment on a party’s request for enforcement of the award, a dissatisfied party may submit an appeal against the judgment of the Court of First Instance directly to the Supreme Court on limited grounds,[20] including that:

  • The recognition or enforcement of the award is contrary to public policy.
  • The order or judgment is contrary to provisions of law concerning public policy.
  • The order or judgment is not in accordance with the arbitral award.
  • The judge who sat in the case gave a dissenting opinion.
  • The order is an order concerning provisional order measures.

[19] Sections 40 – 44 of the AA.

[20] Section 45 of the AA.

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12 . What international conventions and agreements on enforcement of judgments or arbitral awards is your jurisdiction a party to?

Thailand is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). However, Thailand is not a party to any conventions or bilateral agreements on the recognition and enforcement of foreign judgments. The CPC also does not provide any rules governing the recognition and enforcement of foreign judgments. Therefore, a foreign judgment serves only as evidence before the Thai courts.

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13 . What types of judgments in commercial matters are enforceable and what types are excluded?

All judgments and court orders made domestically are enforceable once the court renders a decree requiring a party to comply with such judgment or order.[21]

However, as Thailand is not a party to any conventions or bilateral agreements on the recognition and enforcement of foreign judgments, foreign judgments are not enforceable in Thai courts. A fresh set of court proceedings must be commenced based on the merits of the foreign judgment, and the Thai court would merely regard the foreign judgment as just one of the pieces of evidence.


[21] Section 272 of the CPC.

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14 . What is the process for registration of foreign judgments and arbitral awards?

With regard to the enforcement of an arbitral award,[22] a party may submit a motion to enforce an arbitral award with:

  • an original or certified copy of the arbitral award;
  • an original or certified copy of the relevant arbitration agreement; and 
  • a Thai translation of the arbitral award and the arbitration agreement by a certified translator, or by a Thai envoy or consul in the country where the arbitral award or the arbitration agreement was made. 

Such a motion must be submitted within three years from the date when the award becomes enforceable.

The competent courts for submitting the motion to enforce an arbitral award include the following:[23]

  • the Central Intellectual Property and International Trade Court (or Regional Intellectual Property and International Trade Court);
  • a court where the arbitral proceedings were conducted in its jurisdiction;
  • a court in which either party is domiciled in its jurisdiction; or
  • a court that has jurisdiction over a dispute submitted to arbitration.

The judgment enforcing an arbitral award may be subject to an appeal to the Supreme Court under limited grounds, as mentioned above in Question 11.

Please refer to Question 13 above for information on registration of foreign judgments.


[22] Section 42 of the AA.

[23] Section 9 of the AA.

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15 . Once the judgment or award is registered, what are the available methods of execution?

After the judgment is rendered and the court has issued a decree to enforce the judgment, the judgment creditor is entitled to request that the court issue a writ of execution against the judgment debtor[24]. In doing so, an execution officer will be appointed and is authorized to oversee the execution of the judgment, including seizing property, executing attachment of claims against third parties, and liquidating the seized property by auction. The judgment creditor is, however, responsible for locating the debtor’s assets.

Please note that filing an appeal to the judgment of the Court of First Instance does not automatically defer the execution process. However, a party who wishes to defer judgment execution may submit a motion requesting a deferral of judgment execution. The court may request such a party to place a sum of money, or guarantee an amount equal to the judgment debt, prior to granting such deferral.[25]


[24] Sections 274 and 275 of the CPC.

[25] Section 231 of the CPC.

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16 . What interim measures are available pending enforcement?

Interim remedies only apply at the stage before the court renders a judgment (see above, Question 8). 

If the court decides that the defendant has won the case, the interim remedies will be revoked seven days after the date of the judgment or order. However, the plaintiff may file a request with the Court of First Instance during this period declaring the intention to appeal to the Court of Appeal/Supreme Court and providing reasonable grounds for the continuation of the interim remedies. If the Court of First Instance approves the request, and the plaintiff later submits an appeal, the interim remedies will remain in effect until the Court of Appeal / Supreme Court orders otherwise.[26]

If the plaintiff wins the case, any interim remedies ordered by the court will remain in effect as necessary for the execution of the judgment or order.[27] 


[26] Section 260 of the CPC.

[27] Section 260 of the CPC.

EXPERT ANALYSIS

Chapters

Bermuda

Charlotte Donnelly
Keith Robinson
Mahogany Bean

British Virgin Islands

Kate Lan
Nicholas Lee
James Noble

Canada

Robert J.C. Deane
Sean Gallagher

Cayman Islands

Amelia Tan
Joni Khoo
James Noble

China

Jessica Fei

England and Wales

Ben Bruton
Jake White
Suzanne Labi

Germany

Dr. Justus Jansen
Jamsched Amiri

Guernsey

Elaine Gray
Rebekah Johnston
Robin Gist

Hong Kong

Ian De Witt
Natalie Lam

Japan

Claire Chong
Kaori Sugimoto

Jersey

Christopher Tan
John Kelleher

Malaysia

Janice Ooi Huey Peng
Sharon Chong Tze Ying

Norway

Carl E. Roberts
Eline Hellem Langeland

Pakistan

Mansoor Hassan Khan

Saudi Arabia

Fahad AlDehais AlMalki
Salman AlAnazi
Talal AlOtaibi

Singapore

Calvin Ong
Monisha Cheong
Wendy Lin
Josephine Choo

South Korea

Daniel Chua
SeungMin Lee
Youjoun Ha

Taiwan

Angela Y. Lin
Joyce N. Chang

United Arab Emirates

Ayman Ibrahim
Hassan Al Shaqsi
Nasser Al Osaiba
Sleiman Jorr

United States

Arthur Schoen
Julia Mano Johnson
Natalie Holden

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