Tilleke & Gibbins Secures Thailand’s First Return Order under the Hague Child Abduction Convention

July 21, 2020

Tilleke & Gibbins Secures Thailand’s First Return Order under the Hague Child Abduction Convention

We are proud to announce that Tilleke & Gibbins’ international family disputes team has successfully obtained the first return order issued by a Thai court pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, an international multilateral treaty that provides mechanisms for parents whose children are abducted from their habitual residence and held elsewhere without the parent’s consent.

The claimant in this case was an Italian father of two daughters who were abducted from Italy and kept in Thailand by their Thai mother without the father’s consent. In July 2019, the children’s mother took the children to Thailand to visit their maternal grandparents, promising to return them to Italy in August 2019. However, when the date arrived, the mother insisted on keeping the children in Thailand without the father’s consent. The father first sought assistance from the Italian Central Authorities—a domestic coordinating organization established under the Hague Convention to cooperate with central authorities in foreign jurisdictions—but after running into challenges with the complex and time-consuming nature of the required procedures, he instructed Tilleke & Gibbins to secure the return of his daughters. A team of international family disputes lawyers from the firm, led by Sasirusm (Roll) B. Chunhakasikarn, who heads our family disputes practice, and Pawilai Ploythammachat, an attorney-at-law in the same team, immediately prepared and filed a claim with the Central Juvenile and Family Court seeking a prompt return order. This was granted, and the children are now awaiting transportation arrangements for their return to Italy.

Thailand acceded to the Hague Convention in 2002, and implemented its accession through the International Civil Cooperation Regarding Breach of the Rights of Control and Custody of Children Act B.E. 2555 (2012), which took effect in 2013. Although a number of claims have been filed with the Central Juvenile and Family Court since then, a number of practical enforcement obstacles have prevented the court from issuing a return order, instead dismissing claims or assisted the parties to reach a negotiated settlement (mainly regarding visitation). Accordingly, this successful outcome was the first time that Thailand’s Central Juvenile and Family Court has ordered the return of children to their habitual residence as requested.

This case represents a significant step forward in the enforcement of the Hague Convention in Thailand, and confirms that a parent whose child has been wrongfully taken from their home and retained in Thailand can successfully seek a return order from a Thai court.

For more information on the Hague Convention or on Tilleke & Gibbins’ family disputes practice, please contact Sasirusm (Roll) B. Chunhakasikarn at [email protected] or +66 2056 5787.

Related Professionals

Sasirusm (Roll) B. Chunhakasikarn

Attorney-at-Law

Thailand

+66 2056 5555

Email

Pawilai Ploythammachat

Attorney-at-Law

Thailand

+66 2056 5555

Email

RELATED INSIGHTS

May 16, 2024

Vietnam Issues New Decree on Administrative Sanctions in Industrial Property

On May 4, 2024, the Vietnamese government issued Decree No. 46/2024/ND-CP (“Decree 46”) amending and supplementing certain articles of Decree No. 99/2013/ND-CP dated August 29, 2013, on administrative sanctions in industrial property, as amended and supplemented in 2021 (“Decree 99”). Decree 46, which will come into force on July 1, 2024, is designed to bring Decree 99 in line with the amended IP Law of 2022. Some of the notable amendments of Decree 46 are discussed below. New Infringing Acts Decree 46 added the following new infringing acts subject to sanctions, which had not been set out in the former decree: Use of patents, utility solutions, layout designs, or industrial designs without paying compensation according to the provisions on temporary rights specified in Article 131 of the amended IP Law. Accepting a trademark license not in the form of a written contract in the case of using the licensed trademark on goods or packaging. Failure to notify clients of costs, charges, and fees related to procedures for establishing and protecting industrial property rights. Deceiving clients in the course of entering into and performing industrial property representative service contracts, but not to the extent of criminal prosecution, or forcing customers to enter into and perform industrial property representative service contracts. Although these acts are not common occurrences, it is nevertheless important to have clear regulations in order to ensure consistency with the amended IP Law and overcome difficulties and obstacles if such acts are committed in practice. Amendments and Supplements Decree 46 adopted amendments and supplements to main sanctions, additional sanctions, and remedial measures, specifically: The monetary fine imposed for violations against trade secrets is VND 50 million to VND 100 million (approx. USD 2,000 – USD 4,000), a large increase compared to the VND 5 million to VND 15

May 2, 2024

Thai Arbitration Institute Launches Pilot Project for In-Court Arbitration

The Thai Arbitration Institute (TAI) announced on April 19, 2024, that it has jointly set up an in-court arbitration pilot project with five courts in Thailand—namely, the Civil Court, Taling Chan Civil Court, Central Intellectual Property and International Trade Court, Samut Prakan Provincial Court, and Samut Prakan Khwaeng Court. The pilot project launched on May 1, 2024. Pilot Project This project is designed to encourage the parties in cases submitted to these courts to consider having parts of the case, or even the entire case, heard and determined by arbitrators under the Civil Procedural Code (CPC). The objective of the project is to provide faster and more efficient judicial services to the public by reducing the number of cases to be fully tried in the courts through providing an option for parties to engage in in-court arbitration. Still, the court remains largely involved in the process, as the court will consider the award in detail before determining whether to render a judgment in accordance with the award without any edits. Therefore, in-court arbitration favors parties who prefer to have a court judgment instead of an out-of-court arbitral award, which could lead to enforcement challenges under the Arbitration Act. Parties who participate in this pilot project will pay the TAI a fee for its administrative assistance and related services. The TAI will assist in setting up and facilitating meetings, witness hearings, and the necessary logistics pertaining to case files involving the arbitrators, the parties, and the court. After the arbitrators hear the case, the case files, including the witness statements, exhibits, and reports during the arbitration proceedings, are collected and sent back to the respective court along with the award. Under the pilot project, the arbitrators will issue awards within 30 days of the last day of the trial or

April 23, 2024

Civil Litigation in Thailand

Litigation is usually the last resort in resolving disputes. Most parties to a dispute try to avoid litigation altogether, fearing that seeking recourse with the courts or arbitration will lead to a disruption in commercial relationships, result in increased legal expenses, and generally lengthen the period in which the dispute remains unresolved. While some of these concerns may indeed be legitimate, sometimes litigation is the only means for a party to obtain relief. For parties contemplating such recourse, it is reassuring to know that the Thai court system is generally an accessible, unbiased, and balanced vehicle for the resolution of disputes. Civil Litigation in Thailand aims to introduce some of the fundamentals of Thai civil court procedures and practices. This brief guide covers the main issues concerning civil litigation in Thailand as either a plaintiff or a defendant. The full guide is available through the button below.

April 18, 2024

In-Court Arbitration in Thailand: A Tool Worth Exploring?

In-court arbitration is an alternative dispute resolution (ADR) tool provided in the Civil Procedure Code (CPC) for cases that have already been submitted to the court. Historically, in-court arbitration has not been a popular method of resolving disputes. Instead, out-of-court arbitration, as prescribed by the Thai Arbitration Act B.E. 2545 (2002), is far more utilized in practice. The popularity of out-of-court arbitration is demonstrated by the fact that presentations on arbitration in Thailand almost exclusively focus on out-of-court arbitration; in-court arbitration is rarely even a topic of discussion. This situation is partly because in-court arbitration has not been encouraged by the courts in the past. Further, it is also not common for parties to agree on arbitration clauses after a dispute arises and also after it has been submitted to the court. Instead, arbitration clauses are generally discussed and crafted during the negotiation of the contract, which will most likely provide that any dispute arising out of the contract is to be resolved by out-of-court arbitration. Nonetheless, the Thai Courts of Justice have recently started to support this in-court ADR tool as a viable option and to encourage parties to agree in-court arbitration clauses before proceeding with a case through trial. This article is not meant to assess whether in-court arbitration is preferable to either out-of-court arbitration or to having the case heard by professional judges of the Courts of Justice. Instead, the purpose of this article is to discuss certain key provisions of the CPC that parties should carefully consider before agreeing to an in-court arbitration clause. On this point, the CPC specifically states that out-of-court arbitration is prescribed by arbitration law, the Arbitration Act, which is an entirely separate piece of legislation drafted specifically to apply to out-of-court arbitration. In contrast, in-court arbitration is completely regulated by

You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

Industries

Practices

July 21, 2020