Alternative Dispute Resolution in Thailand: TAI, THAC, and Sector-Specific Forums

April 11, 2023

The Phinai Fine and the Decriminalization of Various Offenses

A significant new procedural law for fines in Thailand results in the mass removal of certain types of fines for criminal penalties and alters procedures for certain administrative monetary penalties. There are generally two types of fines imposed under Thai law: criminal fines and administrative fines. However, there will soon be a type of fine that exists outside of the criminal or administrative legal mechanisms: the phinai fine, which is neither a criminal penalty nor an administrative fine. Instead, a phinai fine—which must be paid to the state—is one assessed in lieu of criminal penalties for less-serious offenses. Perhaps the closest equivalent to a phinai fine would be a “civil” fine, but there is no official translation of Thailand’s first law dedicated to these fines, the Act on Phinai Fine Proceedings B.E. 2565 (2022) (ACFP), which was published in the Government Gazette on October 25, 2022. Before proceeding further to discuss the significance of the new law, a note should be made regarding the term phinai. As there has been no official translation of the ACFP, there is currently no official translation of phinai. Under the ACFP, “to seek a phinai fine” (or prap pen phinai) was determined to have the specific meaning of ordering a phinai penalty offender to pay a phinai fine. The meaning of the term as defined reflects a type of phinai penalty, which is neither a criminal penalty nor an administrative fine. In the future, there is a possibility that the official translation of the ACFP may use a different term. The passage of the ACFP provides Thailand with a special procedural law for all phinai fines, ultimately resulting in a significant change in the categorization and collection of fines and administrative monetary penalties. Other than two sections on administrative preparations that took

March 30, 2023

Digital Asset Litigation in Thailand

Digital asset litigation is one of the most cutting-edge types of litigation in Thailand. There are factual, technical, regulatory, and legal challenges and hurdles for the parties to the dispute throughout all procedural stages. This is mainly because digital assets are different in nature from more conventional types of assets, as they are digitally created and used on a blockchain network. Legal Status The first issue to be aware of in approaching digital asset litigation is the legal status of digital assets. Under Thai law, there are two key terms concerning digital assets’ legal status: “thing” and “property.” Things are tangible objects, while property provides a much wider range of meaning. Property could be anything—including intangible objects that may be of value and able to be appropriated. It is fairly clear that digital assets are not a “thing” since they are not tangible. However, determining whether digital assets are “property” is even more complicated. Although digital assets are intangible objects, one might argue that, unlike fiat money, they do not have any inherent value but are rather conferred value based on certain people’s perspective. (For example, the Bank of Thailand expressed this opinion of bitcoin in 2014.) Some may even argue that digital assets cannot be possessed and therefore cannot be appropriated. According to these arguments, digital assets should not be regarded as a property either. Legal Grounds Determining whether digital assets are things, property, or something else altogether is crucial to any subsequent litigation. In Thailand, the party initiating the lawsuit (the plaintiff) generally has to state the relevant legal grounds for the complaint—that is, the different relevant legal provisions that the court is to apply to the case. These provisions of Thai laws mostly refer only to “things” or to “property,” not both. This often means that

March 21, 2023

Appealing a Thai Court Order Allowing a Class Action

From the perspective of a plaintiff (or a group of plaintiffs) considering initiating a class action in a Thai court, a primary benefit of proceeding as a class action is the ability to aggregate claims that would otherwise be too small or too costly to bring individually. Where one plaintiff might lack a claim large enough to make pursuing litigation a cost-effective option, the combined claims of many plaintiffs could surpass that threshold. Similarly, the prospect of representing a number of plaintiffs, along with the potential legal fees that could be awarded with a win, should serve as an incentive for counsel to represent a class of plaintiffs who, acting individually, would otherwise not be able to engage a lawyer interested in taking their case. For these same reasons, a defendant will most likely—although not necessarily always—oppose a plaintiff’s request that a case be allowed to proceed as a class action. From a defense perspective, preventing a case from proceeding as a class action could be a significant strategic goal, as it could mean that individual plaintiffs, as well as their counsel, would lack the financial incentive to pursue potentially costly litigation for their separate, relatively low-value claims. Potential defendants, therefore, may benefit considerably by understanding how a Thai court determines whether a case can proceed as a class action and, if it does, the potential options for a defendant that objects to this determination. The Court’s Initial Determination: Class Action or Ordinary Litigation? When a named plaintiff requests that a case proceed as a class action, that plaintiff must present the case to the court in accordance with the prerequisites stipulated by Thai law. The Civil Procedure Code (CPC) sets out the prerequisites for a case to proceed as a class action. Considerations include: whether the nature of

February 28, 2023

An Overview of the Discovery Process in Thai Civil Court Proceedings

For most in-house counsel, the thought of defending a civil case brought against the company is typically an unpleasant proposition—even more so when the matter is proceeding in a foreign or unfamiliar jurisdiction in which the substantive law and court procedures differ from those in one’s home jurisdiction. But different procedures, even if unfamiliar, can sometimes be advantageous to a defendant. This is particularly true with respect to certain aspects of the discovery process in Thai civil court proceedings. For in-house counsel in certain jurisdictions, the specter of litigation not only entails the potential risks posed to the company and the time and financial costs inevitably incurred, it can also mean lengthy and costly discovery battles. However, as discussed in more detail below, due to the nature of Thai discovery procedures, these types of discovery battles are typically rare in Thai civil court proceedings. Further, due to the limited scope and mechanisms for discovery practice in Thailand, the whole discovery process tends to be rather expedient and straightforward, particularly when compared to that in jurisdictions with extensive discovery practice. In this article, the authors provide an overview of some of the more notable features of the process for discovery under the Thai Civil Procedure Code (“CPC”), particularly those that may differ from those in jurisdictions with a more vigorous and wide-reaching discovery process. (We note that this article addresses only discovery procedures in civil proceedings in Thai courts; the discovery process in criminal proceedings is subject to the Thai Criminal Procedure Code and differs from the process in civil courts in some respects.) Rules of Evidence Before taking a closer look at some of the discovery provisions in the CPC, it is important to understand a few fundamental principles of Thai evidence law, as these provide the general guidelines

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