Thailand has completed the establishment of the Personal Data Protection Commission (PDPC), the regulator under the country’s Personal Data Protection Act B.E. 2562 (PDPA), strongly indicating that the planned full enforcement of the PDPA on June 1, 2022, is likely to proceed as scheduled. The establishment of the PDPC was finalized on January 18, 2022, when the Announcement of the Prime Minister’s Office on the Appointment of Chairperson and Honorary Members of the PDPC was published in the Government Gazette. As stipulated in the PDPA, the PDPC consists of: The chairperson, appointed based on knowledge, skills, and experience; The vice-chairperson, who is the permanent secretary of the Ministry of Digital Economy and Society; Five commission members, designated based on their positions in certain government agencies (as prescribed under the PDPA); and Nine honorary commission members appointed based on knowledge, skills, and experience in personal data protection, consumer protection, technology and telecommunication, social science, law, health, finance, or other relevant fields. As the vice-chairperson and the five commission members are appointed to the PDPC based on their positions, the January 18 announcement appointing the chairperson and the nine honorary commission members completes the formation of the PDPC. The full enforcement of the PDPA has been previously postponed, and many businesses had expressed concern that another extension would be forthcoming before the current enforcement date. However, the successful establishment of the PDPC is a fundamental prerequisite to enforcement and indicates that the effective date of the PDPA on June 1, 2022, is unlikely to be further postponed. In addition, the PDPA’s draft subordinate regulations that were the subject of a series of public hearings last year are likely to be issued in the near future. Companies and other organizations that are not yet compliant with the PDPA should now assess their current practices for handling and processing personal data in order to ensure that any compliance gaps can be closed or minimized before the full enforcement date. For more details on the requirements under the PDPA and its subordinate regulations, please consult the Tilleke & Gibbins data privacy team by contacting Nopparat Lalitkomon at [email protected] or +66 2056 5646, Gvavalin Mahakunkitchareon at [email protected] or +66 2056 5648, or Thammapas Chanpanich at [email protected] or +66 2056 5561.

Intellectual property experts from Tilleke & Gibbins were engaged by ARISE+ IPR, a regional support program funded by the European Union and implemented by the European Intellectual Property Office, to craft a series of IP enforcement guides for Southeast Asian countries, aimed at raising local awareness of the importance of IP protection. The five-year, EUR 5.5 million ARISE+ IPR program supports regional integration through IP cooperation and aims to upgrade national IP systems for creation, protection, utilization, administration, and enforcement to be in line with international best practices and standards and the strategic objectives of the ASEAN Intellectual Property Rights Action Plan 2016-2025. The guides were developed by Tilleke & Gibbins’ lawyers in cooperation with the IP offices of each participating country, and cover issues related to trademarks, industrial designs, and geographical indications. Each guide was produced in a compact leaflet form in English as well as the local language, and is considered an official publication of the respective national IP office. The guides can be accessed from the ARISE+ IPR site (under “Leaflets, brochures and booklets”), or by clicking on the links below: Cambodia: English | Khmer Indonesia: English | Bahasa Indonesia Thailand: English | Thai Vietnam: English | Vietnamese

Thailand’s Board of Investment (BOI) recently published BOI Notification No. Sor. 8/2564, which extends the scope of investment promotion covering electronic vehicle (EV) industry manufacturers to include the production of “automotive platforms” for electric vehicles, and creates a new category of BOI promoted activities covering the manufacture of electric bicycles (E-bikes). Automotive Platforms The following investment promotion categories have been extended: 4.24 – Manufacture of Battery Electric Vehicles 4.26 – Manufacture of Electric Battery Tricycles 4.27 – Manufacture of Electric Battery Busses and Trucks These categories now include the manufacture of “automotive platforms”—which must include an energy storage system, charging module, and front and rear axle module—benefiting from similar tax incentives and subject to additional conditions, as detailed below. New BOI Promotional Category for E-Bike Production The BOI has also introduced a new category, No. 4.28, covering the manufacture of E-bikes. Projects under this category will be eligible for a three-year CIT exemption with an additional one-year exemption if certain criteria are met. Applications for this category must cover the manufacture of E-bikes, the manufacture or sourcing of electric batteries, and a management plan for used batteries. In addition to the general conditions for EV projects (industrial standards, manufacturing timelines, etc.), the BOI has also imposed the following conditions specific to E-bike projects: E-bike frames must be produced from light-weight materials such as aluminum alloy, chromium–molybdenum alloy steel (chrome moly), titanium alloy, and carbon fiber; and E-bike batteries must adopt environmentally-friendly technology. Interestingly the BOI allows E-bike production lines to jointly use manufacturing lines for ordinary bicycles. However, the sale of ordinary bicycles is regarded as non-BOI-promoted income and will not be entitled to BOI tax incentives. These new provisions, intended to stimulate both local and foreign investments in the electric automotive industry, seem to complete the BOI promotion scheme for the full range of electric vehicles. They will hopefully accelerate the expansion of Thailand’s electric vehicle production market, and the adoption of environmentally friendly vehicle technology in Thailand. For more details on any aspect of investment promotion in Thailand, please contact Napassorn Lertussavavivat at [email protected] or +66 2056 5662, or Supasit Saypan at [email protected] or +66 2056 5994.

The popularity of the franchise business model has grown rapidly in mainland Southeast Asia in recent years, with some of the world’s top brands becoming common sights in the commercial districts and shopping malls of major regional cities in Cambodia, Laos, Myanmar, Thailand, and Vietnam. Although these countries have not yet enacted franchising-specific laws, certain features of each country’s regulatory regime impact franchising. As such, well-prepared franchise business operations have comfortably adapted to each country’s regulatory framework, and the growth is poised to continue even as the global retail sector redesigns and redoubles its efforts in the wake of the COVID-19 pandemic. In fact, the franchise business model, which is both global and local at the same time, may offer retail entrepreneurs a solution in their quest to meet the challenges of the new retail economic realities. This article explains the legal frameworks that impact the franchise business model in Cambodia, Laos, Myanmar, Thailand, and Vietnam. For each country, this article discusses relevant regulatory considerations for franchise agreements, how to protect intellectual property rights, and judicial and arbitral procedures for resolving disputes that might arise between a franchisor and a franchisee. The full article can be downloaded through the button below.   © 2021. Originally published in the Franchise Law Journal, Vol. 41, No. 2, Fall 2021, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The era of Industry 4.0 has led to a dramatic increase in corresponding computer program invention patent filings in Vietnam. However, the current patent examination guidelines for inventions related to computer programs are quite brief and vague, which inevitably causes difficulties for patent examination. Therefore, in 2021, the Intellectual Property Office of Vietnam (IP Office) considered the necessity of amending the patent examination guidelines for inventions related to computer programs. Currently, a computer program is excluded from patentability under Article 59.2 of the Law on Intellectual Property (IP Law). However, according to Article 5.8.2.5 of the patent examination guidelines issued on March 31, 2010, as amended on December 31, 2020 (hereinafter referred to as the 2010 Guidelines), an invention related to a computer program is eligible to mature into a granted patent if the claimed subject matter has technical features and/or produces a further technical effect going beyond the normal interactions between the software and the hardware. From June 24 to December 31, 2021, the IP Office established a working group including members from the patent examination center, the legal and policy department, and experts from the Japan International Cooperation Agency (JICA) to detail the provisions under Article 5.8.2.5 in order to tackle the problem of “In what circumstances are applications related to computer programs patentable?” In December 2021, the preliminary guidelines for this problem were drafted in the form of an annex to the 2010 Guidelines. The group also consulted many local IP agents, state agencies, organizations, and individuals to improve the draft. On December 18, 2021, the IP Office organized an online meeting with IP agents and organizations to discuss the draft. Basically, the draft does not make any significant changes in comparison with Article 5.8.2.5 of the 2010 Guidelines, but it adds more details. The draft visualizes the process of computer program patent applications as follows: Formality Examination Stage: Step 1. Does the subject matter contain technical features (hardware, data processing representing physical entities)? If not, it will be rejected (Article 59.2 of the IP Law). Step 2. Is the subject matter named with a term like “computer program”, “computer program product”, or “signal-carrying program”? If so, it will be rejected (Article 5.8.2.5 of the 2010 Guidelines). Substantive Examination Stage: Step 3. Does the subject matter contain technical features producing a further technical effect? If not, it will be rejected (Article 5.8.2.5 of the 2010 Guidelines). Similar to Article 5.8.2.5 of the 2010 Guidelines, any claims presented as “computer program”, “computer software”, “computer program/software product”, or “signal-carrying program” should be eliminated by the examiners. However, the draft also prescribes that, in the formality examination stage, there are three types of claims that could be accepted: a method performed by a computer for a purpose; a processing apparatus adapted to perform the method; or a computer-readable storage medium containing a computer program to perform the method. In current practice, the troubles often arise during examination of inventions combining a computer program with a business method or a calculation method, making it necessary to consider comprehensively if the invention has any technical features, or if it produces a further technical effect going beyond the normal physical interactions between the software and the hardware. In the December 2021 draft of the annex, the IP Office’s approach in the formality examination stage has been sufficiently clarified, but the approach in the substantive examination stage still needs more explanation, especially more interpretation of examples of “further technical effect.” If the approach in the substantive examination stage is solved, the examination process will be accelerated. It is expected that the amended guidelines will be released in the near future.

In the last week of December, 2021, the Ministry of Justice published the Law Amending Certain Provisions of the Laws on Tax No. 01/NA, dated August 7, 2021, in the Government Gazette. The Law will come into force on January 1, 2022. The most notable amendments relate to Value Added Tax (VAT), which are summarized below. The new law also makes changes to the laws on tax management, income tax, and excise tax, which Tilleke & Gibbins will provide updates on in due course.

Since 2017, Thailand’s Anti-Money Laundering Office (AMLO) has been developing an amendment to the Anti-Money Laundering Act B.E. 2452 (1999) (AML Act) to improve Thailand’s anti-money laundering framework.

A new royal decree retains the current land and building tax rates, which have been in place since 2020, through the end of 2022.