Unless subject to arbitration, most private disputes in Thailand are adjudicated in the Courts of Justice (Thailand also has a Constitutional Court, Administrative Court and a Military Court). Courts of Justice have three levels:
- the Courts of First Instance;
- the Courts of Appeal; and
- the Supreme Court (known as the Sarn Dika or Dika Court).
The Courts of First Instance consist of civil courts, criminal courts, juvenile and family courts, and specialised courts, such as the Labour Court, the Tax Court, the Intellectual Property and International Trade Court (IPIT Court), and the Central Bankruptcy Court. Most commercial disputes are adjudicated in the civil courts, IPIT Court or the Central Bankruptcy Court. Appeals against judgments in the civil courts are generally filed with the Court of Appeals, while appeals in the IPIT Court, Tax Court, Labour Court and Central Bankruptcy Court may generally be filed directly with the Supreme Court.
Trials & “Discovery”
Thai courts previously conducted trials by having witness testimony presented in “instalments” separated by intervals of several months, but the courts are moving towards conducting trials in consecutive day-to-day witness hearings until the trial is complete. Thai law does not permit extensive U.S. style pre-trial discovery. Indeed, very little discovery is permitted or occurs.
Foreign Judgments and Forum Selection Clauses
Thai Courts will not enforce foreign judgments or forum selection (choice of court) clauses. This can lead to some interesting and counterintuitive results when trying to negotiate the resolution of a dispute over a contract that has a forum selection clause that purports to provide a court outside of Thailand with that dispute. Thailand, however, is a signatory to the New York Convention and will therefore generally recognise and enforce arbitration clauses and awards.
Thailand enacted the Thai Arbitration Act, B.E. 2545 in 2002, which replaced an arbitration law enacted in 1987. The Arbitration Act provides that parties may enter into an arbitration agreement providing for the submission of all or some disputes to arbitration. If a foreign party has the foresight to include an arbitration clause in the contract when that contract is negotiated, domestic or international arbitration can be employed to resolve most commercial contractual disputes.
But Thai work permit laws (not arbitration laws) provide that when a dispute is arbitrated in Thailand and that dispute is governed by Thai law or involves a claim against a Thai party, only Thai nationals (local legal qualification is not an issue) can act as an advocate (attorney) in those proceedings. Unique among Thai law firms, PriceSanond has a U.S. qualified lawyer who both (i) holds Thai nationality and (ii) has substantial international arbitration experience and has taken complex commercial disputes to trial in the U.S.
Changing Tort Law Environment
Thailand’s Civil and Commercial Code imposes liability against parties for committing what are called “wrongful acts”. Although a wrongful act is similar to what is generally referred to as a tort in the U.S. and other jurisdictions, there are significant differences in terms of whether negligence must be established, the type of damages that can be awarded, and the quantum of damages typically awarded. Thai Courts are generally more conservative than the courts of more developed jurisdictions in awarding damages and the provision of remedies in cases involving torts and purportedly defective products, but this may change with the enactment of two major changes to Thai law: (a) The Consumer Case Procedures Act; and (b) the Unsafe Products Act.