Justice is the tolerable accommodation of the conflicting interests of society, and I don't believe there is any royal road to attain such accommodation concretely. ~Judge Learned Hand, in P. Hamburger, The Great Judge, 1946
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Prepared by: TILLEKE & GIBBINS Bangkok, Thailand
At the turn of the 20th century, Prince Rabi of Rajburi led in the reform of the Thai legal and court system. Thailand (then still called Siam) adopted a European system of jurisprudence, organization of courts, and legal procedures whereupon the Consular and international Courts were gradually withdrawn. The Thai legal system became an amalgam of German, Swiss, French, English, Japanese, Italian, Indian (and in 4 southern provinces, Islamic) laws and practices. Over the years, it has naturally taken on its own Thai identity. Generally speaking, Thailand is a Code Country, i.e., a follower of civil law concepts.
As a civil law country, no consideration is needed in contracts. Trusts are unknown. Equity is not separated from law nor does it have that name. Prescription periods (statutes of limitation) are based on the nature of the claim or identification of the claimant and vary from 0.5 years to 1, 2, 5, and 10 years. Conflicts of law are governed by a special statute. Liquidated damages is an unfamiliar subject. The doctrine of stare decisis does not apply. There is no jury system. The state is not a suable entity, but individual administrative units that make up the executive branch of government are. Only the Royal Family is immune from suit. Discovery procedures are not yet a part of the legal environment. Disposal of cases through summary, preliminary or interlocutory methods is rare. Quickly obtainable restraining orders and preliminary injunctions or mandamus are virtually unheard of.
Guided by the Constitution, bilateral and multilateral conventions and treaties and the four basic Codes, i.e., general laws espousing the general principals of Thai Law, which include (1) the Civil and Commercial Code (CCC); (2) the Penal Code; (3) Civil Procedure Code (CPC); and (4) Criminal Procedure Code, the country functions under a series of special legislative enactments, of which there are hundreds. These special laws are usually regulatory in nature, relate to single activities or subjects and are called "Acts." The Acts are implemented through Royal Decrees, Ministerial Regulations, Ministerial Notices and Notifications, and Departmental Regulations, Orders and Notices and concern all aspects of the day-to-day life and activities of people, business, industry, agriculture, military and government. During the periods of time when Thailand has been under martial law, national councils of military composition have promulgated Decrees which have the same status as Acts passed by the Parliament and are implemented similarly.
Customs and common practices are applied in absence of a general law provision, additionally in some family law situations and in determining common usage. Where there are no local customs, customary international law or general principles of law (maxims) are recognized as a source of law and it is up to the Court to locate these.
The final, yet extremely important source of law, judicial decisions, is uniquely Thai. It lies somewhere, depending on the judge, between the English Common Law practice of precedents being binding and the Continental practice of relying only on a long line of strongly held decisions for authority. A previous Supreme (Dika) Court decision will influence a current case only to the extent of the judge's impression of the earlier case's merits and, in fact, an earlier decision may not be binding on a similar case in the same court. Since lower court decisions are not reported, they have virtually no influence outside their jurisdictional area. In practice, however, the Dika (Supreme) Court will endeavor to follow its earlier decisions. Some Dika Court cases are reported periodically in summary and digest form, similar to the European reporting system, by the Thai Bar Association. The trend is towards more dependence in following precedents. With the assistance of the Asia Foundation, since 1986 all Dika Court decisions have been entered into a computer but access is limited only to the judiciary. Applicable cases and commentaries are also reported in the periodic journals of various government departments, e.g., Labor Department Journal, Commercial Registration Department Journal, Trademark Division Journal, Revenue Department Journal, etc.
A comment about the implementation of the law is appropriate. Both the military and civil services are very large and potent forces in the operation of the Government. As a bureaucracy, the civil service serves, at most times, as a key stabilizing influence because it survives, usually intact, the many changes of government and in the ebb and flow of politics. There are other times when the bureaucrats act as forces which resist changes, including those deemed by the executive or Parliament to be necessary for the good of the country. One can easily become entangled in the Thai bureaucratic web. Even minor decisions may require a multitude of signatures. Decisions finally obtained can be reversed without warning or justification. Anonymity among members of the many committees dealing with an issue or matter is the practice, though it is not required. As in other countries, there are overlapping and conflicting jurisdictions within the bureaucracy. Often the policies espoused at Cabinet (Council of Ministers) level, for lack of implementing laws, regulations, instructions, follow-up or just natural reluctance, do not filter down to the working level. Minor government officials will thus appear to act at cross purposes with stated national policy. When done deliberately, this is often their means of opposing a policy they do not agree with. It becomes rule by administrative fiat and these government officials do not like to be overruled or circumvented. Those government agencies and instrumentalities administered by technocrats are considered much easier to deal with.
All Thai Courts owe their existence to the Constitution and statutes, and they function in the name of the King. The court system in Thailand now consists of three levels. The lowest, the Courts of First Instance, are the trial, often called Provincial, courts which are courts of original and general jurisdiction and are found in all but the minor provinces as there are no mobile, or circuit, courts in Thailand. There may also be limited jurisdiction courts in some districts called "Kwaeng" or Magistrates' courts in the provinces and in Bangkok. Bangkok has one Civil Court and one Criminal Court, both of which have unlimited jurisdiction throughout the country. In practice, these major courts defer to the Provincial courts. There being no juries in the Thai legal system, all evidence is heard by 1-3 judges.
Thailand now has four Courts of Appeal. The Bangkok Appeal Court hears appeals from Bangkok only. The First Regional Appeal Court hears appeals of cases from the northeastern part of Thailand and is situated in the Thonburi Civil Court. The Second Regional Appeal Court is situated at the Thonburi Criminal Court and hears appeals from cases from northern Thailand. The Third Regional Appeal Court is situated at the Bangkok South Kwaeng Court and hears appeals from cases in southern Thailand. In all the Courts of Appeal, two judges form a quorum to hear an appeal.
The Supreme Court ("Dika Court") or the Court of last resort, the third level, is located in Bangkok. It will hear appeals on questions of law, and in some cases on questions of facts, from the Court of Appeals and direct appeals from the Labor Court and the Tax Court. It has original jurisdiction in the case of challenge of elections. However, the Court does not have the power to declare laws void; only the Constitutional Tribunal has this power.
In addition, there are a series of new special courts of first instance of limited jurisdiction which are playing an increasingly significant role in Thai life: the Labor Court for labor disputes, Tax Court for tax disputes, the Juvenile Court and Military Courts. Progress is being made towards the establishment of an Administrative Law Court as the Thai Civil Service is beginning to recognize its value.
As the growth and sophistication of the Thai indigenous business community is of only very recent vintage, the Thai Courts have traditionally not had to deal with complex commercial, banking, tax and mercantile issues and techniques which Anglo-American and other western lawyers take as commonplace. This is changing rapidly as Thailand comes closer to becoming an NIC. The country is focusing on the growing commercial orientation of both its urban and rural populations. Legal implications of actions are now being considered in both domestic and international commerce. The courts and the law schools are upgrading themselves to meet these modern challenges.
Intellectual Property Protection
Infringements and imitations of intellectual property are inevitable in a developing country like Thailand. Though infringements and imitations of industrial products may be viewed as a good thing for local business, they are certainly not viewed in that light by the overseas intellectual property owner. This has been a problem in Thailand for many years.
In Thailand, there are laws for the protection of trademarks, copyrights and patents respectively under the Trademark Act 1931, the Copyright Act 1978 and the Patent Act 1979. These laws provide legal protection for private use of information and products resulting from an individual person's or company's efforts. However, Thailand, sometimes called the "counterfeit capital of the world", has a very poor reputation for honoring intellectual property rights. The Thai government is having to tighten up on enforcement of these laws due to pressure from Western countries, particularly the United States.
Trademarks are protected under existing Thai laws within narrow limits and with light penalties for counterfeiters. Examples of the counterfeit products are electric appliances, toothbrushes, soaps and soap powder, motor oils, pharmaceuticals, foods, garments, sportswear, watches and leather goods.
Thailand follows a system of trademark registration similar to the British Trademark Act of 1919. There are presently no provisions providing for the registration of service marks. A revision to the Trademark Act was prepared by the Government and was passed in the first reading in the May-July 1990 session of the Thai Parliament. Unfortunately, since bills must pass three readings to become law, and the bill was not considered until close to the closing of the session, it must be proposed once again when Parliament reconvenes in May 1991. The new bill will tighten up the law, provide for registration of service marks and certification marks and provide much stiffer penalties for violations.
Thailand is not a party to any multilateral international trademark treaty. However, foreign trademark registration protection can be extended to cover counterfeited and imitated goods under the Penal Code.
Although there is no procedure under the present law for registration of trademark license agreements, these agreements are common and enforceable. The license agreement between the licensor and licensee is governed by the ordinary law of contract under the Thai Civil and Commercial Code. The parties concerned can adopt terms and conditions they deem appropriate so far they are not contrary to the public order or good morals. The cancellation or termination of trademark license shall be in accordance with the terms and conditions agreed to by parties concerned. Remittance of trademark royalties by the local licensee to the foreign trademark owner (licensor) are subject to exchange control regulations and a withholding tax, currently 25%.
Enforcement of Rights: There are several methods of enforcing trademark rights.
1. Civil Action: The owner of a registered trademark which has been infringed upon may file an action claiming compensation from the infringer under Section 420 of the Civil and Commercial Code (CCC) which provides that
"A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor".
Supporting evidence of prior and extensive use of the trademark must be submitted to the Court.
It is possible for the owner of a non-registered trademark to also receive protection under Section 420, supported by Section 421 of the CCC, if he can prove that he has used the trademark with the goods and that the infringing party, having such knowledge, uses a forged or similar trademark with the same type of goods and sells the same, passing off his goods as those of the owner of the trademark.
In addition, protection is available under the Notification of the Ministry of Commerce on Export and Import B.E. 2530 (1987). Under this Notification, the Customs Office has the authority to arrest and seize the counterfeit and imitation goods exported from or imported into Thailand. However, the Notification covers only trademarks duly registered for one or more kinds of goods in Thailand or abroad. No other types of intellectual property rights are entitled to protection under the Notification. It should be noted, however. that the Customs Office will not proceed with any action unless the trademark owner, or the person who has been authorized by the trademark owner has formally filed a petition and request in accordance with the Notification.
First, the trademark owner must file a request to the Trademark Registrar with evidence of ownership of the infringed trademark and a representation of the trademark actually used. The Trademark Office, if satisfied with the documents, will officially forward the documents to the Customs Office as requested by the trademark owner. Next, a request must be filed with the Customs Office to inspect suspected counterfeit goods being exported or imported, together with a letter of indemnity for possible damages. To implement the action effectively, the trademark owner should know the time of arrival or departure of the counterfeit goods. One cannot rely on the routine inspection of the Customs Office. The trademark owner should also know the place where the counterfeit goods are kept as well as the name of the Carrier. At the present time, the Thai Customs Office has not set up any working group for exchange of information or cooperation with the customs offices of any other countries, so it is very difficult for trademark owners to obtain such information.
Needless to say, due to the cumbersome procedures and difficulty in acquiring the required information, this has not proved an effective alternative for protecting intellectual property rights.
2. Criminal Action: Although infringement and counterfeiting are criminal offenses under the Penal Code, they are usually regarded as minor and private trade offenses by the concerned government agencies and are only subject to small fines and short sentences of imprisonment. Currently, the maximum penalties imposed are a fine of Baht 6,000 (approximately US $240) and imprisonment of 3 years for forging or imitating a trademark. Counterfeit goods are usually confiscated after judgement.
Criminal action is initiated by filing a complaint with the Police, followed by a police raid.
Injunction against use is available through civil action under the Civil Procedure Code (see under "Patents").
The damages granted by the Court to the damaged party are usually small and they cannot cover the actual damages. The maximum damages awarded by the Bangkok Civil Court are approximately US $500 per month as from the date of the infringement and the minimum is approximately US $60.
The fines imposed by the District Court in criminal cases are usually in the range of US $20-$240, and sentences of imprisonment are usually suspended.
2. Trade Secrets
There is as yet no specific law in Thailand which is designed per se for trade secret protection, let alone a clear definition of the term "trade secrets." The importance of trade secret protection is now under serious discussion in Thailand as more and better protection of trade secrets is required in connection with various types of business transactions such as joint ventures, licensing, confidentiality agreements, and technology transfers. However, there are sanctions to safeguard against unauthorized disclosure or use of trade secrets under Thai law, particularly industrial secrets and business secrets, although the minimal fines and prison terms are hardly a deterrence.
Enforcement of Rights: Statutory protection is provided under the Thai Penal Code, the Consumer Protection Act 1979 and the provisions on torts under the Civil and Commercial Code Section 420.
The Thai Penal Code provides for criminal sanctions against a disclosure of industrial secrets, scientific discoveries and scientific inventions, such as know-how. Penalties include imprisonment of up to 6 months and/or a fine of not more than Baht 1,000 (approximately US $40).
The Penal Code also provides for criminal sanctions against unauthorized disclosure of secrets acquired through professional practice by such professionals as medical practitioners, pharmacists, druggists, midwives, nursing attendants, priests, advocates, lawyers or auditors, or their assistants. Penalties are the same as above.
The Consumer Protection Act 1979 provides for criminal sanctions against government officials' unauthorized disclosure of business secrets which are required by virtue of the law to be disclosed by the business enterprise, such as knowledge gained in performing duties under the Act, i.e., product registration or food and drug registration. Penalties include imprisonment of up to 1 year and/or a fine of not more than Baht 100,000 (about US $4,000).
Protection under the Civil and Commercial Code Section 420 provides that whoever wilfully or negligently injures the life, body, health, liberty, property or any right of another person is bound to make compensation.
To be protected under the tort law, one must have his legal right violated by another. A contractual right is enforceable only against an unauthorized disclosure by one contractual party under the obligation not to disclose, but not a third party outside the contract. The issue of whether or not trade secrets are considered as "property" or a legal right under tort protection is still under debate in Thailand. Some lawyers tend to view it as a legal right as it is recognized under such Thai laws as the Penal Code and the Consumer Protection Act.
3. Unfair Competition
Unfair competition as a cause of action is not well-developed in Thai jurisprudence as it has seldom been pursued here. Such an action could be brought with the idea of claiming damages, but actual and specific damage would have to be proven. Protection against unfair competition is achieved through the terms of the contract itself. The parties are free to negotiate the terms and conditions in the agreement. The owner of the trade secret usually will impose an obligation on the other party to whom the trade secret is disclosed not to disclose the trade secret to the public or use it for other purposes than those specified under the agreement. Generally, such term is enforceable as long as it is not contrary to public order or good morals. Whether or not a confidentiality clause is contrary to public order or good morals depends upon consideration by the Court on a case-by-case basis.
Another clause of indirect relevance to trade secrets is the non-competition clause. An individual whose employment has been terminated with or without cause may be contractually subject to a non-competition agreement or term which precludes him from being employed, or conducting and competing, in the same or similar business as that of his former employer. However, the terms must be reasonable and not against public order and good morals. There are Dika (Supreme) Court precedents upholding non-competition clauses, but it is difficult to judge whether a non-competition clause will be considered unreasonable and thus void as the Court is likely to take into account the situation in each particular case.
Copyright in Thailand is protected by the Copyright Act B.E. 2521 (1978) and the Royal Decree Prescribing Conditions for the Protection of International Copyright B.E. 2526 (1983). This Act replaced an earlier law, the Literature and Artistic Work Protection Act B.E.2474 (1931). No registration with any authority is required. Generally, protection is for the whole life of the copyright creator plus a further 50 years.
Copyright of foreign works may be protected in Thailand through international treaties/conventions as provided by Section 42 of the Thai Copyright Act of 1978 which states that:
Any work copyrighted by virtue of the law of a Contracting State to the Convention relating to the protection of copyright to which Thailand is also a Contracting State and the law of such country extends a reciprocal protection to the copyrighted works of the other contracting States to the said convention...shall enjoy protection by virtue of this act, subject to the conditions to be provided by a Royal Decree.
Thailand is a member of the International Convention for the Protection of Literary and Artistic Works (Berne Convention), concluded at Berne in September 1886, revised at Berlin on November 13, 1908, and completed by the Additional Protocol signed at Berne on March 20, 1914. Thailand did not accede to the revisions of the Berne Convention as amended by the Rome Act of 1928, by the Brussels Act of 1948 and by the Stockholm Act of 1967. However, Thailand did accede to Sections 22-38 of the Berne Convention revised in Paris in 1971.
Moreover, Thailand has stipulated six reservations, one of which is the reservation on Article 2, paragraph 4, of the Berlin Act 1908 (protection of works of art applied to industry), and instead chose to adhere to Article 4 of the Berne Convention 1886, which does not include work of applied arts among protected works. As a result, Thai Copyright law does not provide any protection for foreign works of applied arts.
Thailand is not a signatory to the Rome Convention of 1961 or the Universal Copyright Convention.
Therefore, only persons who are residents of a country which is a party to the Berne Convention and those whose works were first published in such a country may claim copyright protection in Thailand, provided that all conditions concerned are met, and subject to the reservations stipulated by Thailand.
5. Computer Software Protection
Over the past few years, Thai lawyers have debated whether software should be protected within the existing copyright law or whether a special new law should be enacted specifically protecting computer software.
From a policy and practical point of view, one important factor militates against the concept of the protection of copyright of computer software. As the copyright protection period normally covers the span of the author's life plus 50 years after his death, this period of time may prove too long or extend too far beyond the effective life of any conceivable computer program. Excessive protection may well impede software technology advancement. From this point of view, then, many feel that a special new law, specially designed for the protection of computer software, would better serve the purpose than the present copyright law.
The prevailing arguments in favor of the applicability of the copyright law to the protection of software are based on the following two fundamental reasons. Firstly, amendments to the law under the existing legal system to enable it to also cover new technology will be an easier task to perform than creating a new law. The reason is that a new law is unlikely to render itself sufficiently developed and adapted to cope with the challenge of rapid technological changes which are taking place worldwide. Hence, legal interpretations based upon the existing law with its solid base would be more flexible to the purpose. Secondly, the existing laws which are in force are generally recognized by most parties concerned. Consequently, the existing law is, in principle, capable of ensuring that protection is provided under international conventions.
However, the present opinion, particularly in government circles, is that Thailand will very likely be obliged to keep in line with international standards, particularly the resolution reached during multilateral talks under the General Agreement on Tariffs and Trade, whereby almost 100 GATT signatory members have agreed that protection for computer software should come under copyright legislation and, as such, Thailand might have to act accordingly.
Thus, a sub-committee chaired by the Fine Arts Department Director General was ordered to consider amendments to the Copyright Act A.D. 1978 and recently agreed on the necessity to upgrade protection for computer software in line with international standards, in particular the resolution reached during GATT talks.
The Patent Act B.E. 2521 (A.D. 1978) protects inventions and designs. Thailand is not party to any multilateral international patent treaty. Therefore, only Patents granted by the Thai Patent Office according to the Patent Act B.E. 2521 (1978) are protected. An invention is defined under the Patent Act as any innovation which creates a new product or process or any improvement of a known product or process. Patent protection for an invention is valid for 15 years from the date of filing.
The following are unpatentable inventions according to the Patent Act, some of which are currently the subject of negotiations between Thailand and the US, EEC and Japan:
-food, beverages, pharmaceutical ingredients; -machines made for use in agriculture; -any variety of animals or plants or any essentially biological process for the production of animals or plants; -scientific or mathematical rules or theories; -computer programs; -inventions, the exploitation of which would be contrary to the public interest; and -inventions prescribed by a Royal Decree.
Design is defined as any form or composition of lines or colors which gives a special appearance to a product, including the application of such a process. Patent protection for a design is valid for 7 years from the date of filing. Designs which are contrary to public order or morality or are prescribed by a Royal Decree are not patentable.
More trademark, tradename, copyright and/or patent licenses, including joint ventures and other similar transactions should be considered by intellectual property owners as one of the effective methods to protect their intellectual property. The cooperation between the owner/licensor and local licensee is much more effective in the suppression of counterfeiting as the owner can use the licensee's local business knowledge, network, influence and connections to help in the suppression, as it is in the mutual commercial interests of both the owner and local licensee to see the counterfeit suppressed. The lobbying and pressure on the government to increase protection will be more effective through the influence and connections of the licensees or their business and professional associations and/or chambers of commerce of which local licensees are members.
Furthermore, the owners jointly with licensees are in a position to control anti-counterfeiting actions more effectively. By license, joint venture agreements, or other similar transactions, the use of intellectual property in Thailand by an owner through a licensee is firmly established under Thai law (such as trademark use and legal right against cancellation for non-use) to fully protect the owner's legal rights in Thailand.
Thai Dispute Resolution
A. Arbitration Practices
Arbitration as an alternative to court trials is recognized in Thailand but is not widely adopted yet except in several limited areas -- public works construction, maritime charter and cargo claims, and certain other disputable areas of government private sector relations such as petroleum concessions.
Contracts may contain a clause submitting any disputes arising thereunder to arbitration. Procedures are detailed in the Arbitration Act BE 2530 (AD 1987) which became effective on August 12, 1987.
Foreign arbitration awards given in accordance with the laws of the place of arbitration with due proof of notice and opportunity to present defenses are usually enforceable but a trial must be held and in some instances the Thai court may require certain matters to be re-litigated. Thailand has adopted the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), and this Convention has just been made part of local (municipal) law. In order to enforce an arbitration award, the award should be final (not an interim or final interim), and the award should recite all pertinent facts required by the Convention, such as the contract wherein the parties agreed to arbitrate, notices given, appearances of parties, presentations made and reasons for the award and meet other straight forward requirements of the Arbitration Act of 1987.
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