Litigation in Thailand
The United States imports more goods from Thailand than from Israel, Spain, Russia, Australia, or Saudi Arabia. But despite this close trade relationship, the Thai legal system operates very differently from its American counterpart.
Even though I had a great time visiting Thailand on vacation in 2016, I came back from the trip not knowing much about the country’s judicial system. (I did, however, eat some durian). So I spoke with Jitsopin Narasettapong, a legal consultant at Chaninat & Leeds in Bangkok, to share her perspective on litigation there.
Why should you continue reading this post about litigation in Thailand?
You are writing a sequel to The Hangover Part II that is not The Hangover Part III, but instead a follow-up in which all of the characters sue each other because of the events that transpired in Part II in Thailand.
You’re curious if the Thai legal system is as exciting and brilliant as Thai cuisine and Thai cinema.
You’re planning a calm, peaceful trip to the country but want to learn about the court system just in case things get wild.
Jitsopin Narasettapong is a legal consultant at Chaninat & Leeds in Bangkok. This interview has been lightly edited.
Background
Can you tell me about the kinds of disputes you handle in your legal practice?
Our firm is comprised of senior attorneys both Thai and American, and litigators with decades of experience. Our main areas of specialization include Probate and inheritance, Employment law, Corporate and, Contract Law, Accidents and Medical Malpractice.
We also provide consultation and corporate planning support for international companies in the areas of Trademarks and patents registration, FDA and customs law, and corporate registration and transactions.
What type of clients do you generally represent in disputes?
Our clients consist of international and Thailand businesses, as well as individuals. We represent multinational companies primarily in contract drafting, contract disputes, real estate transaction, employment law, patent and trademark law, and financial restructuring. We support medium and small companies primarily with corporate setup, intellectual property, and employment law. We represent individuals in, employment law, probate, and estate law, and civil litigation.
Besides Microsoft Office, what software do you use in your practice?
We use Mozilla, Linux, and Libre Office. For conferences, we use Skype, WhatsApp, Microsoft Meetings, and Zoom.
What books and websites do you use for legal research?
Lexis, Westlaw, the Thailand Supreme Court cases Database, the Thailawforum Database, and New York University Global Law for Thailand.
Image credit: https://www.coj.go.th/th/content/page/index/id/91994
Is it true that Thai courts do not follow precedents? If so, then how do you advise clients about how courts will rule on their cases?
Thailand is a “hybrid” jurisdiction combining elements of Western common law and elements from civil law systems such as the French and Japanese legal system.
The Thailand courts follow precedent from published Supreme Court cases only. Lower courts and Intermediate Appeal Court case decisions are not considered precedent.
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
Yes. Electronic filing is permitted. Thai attorneys can file online at the following websites: Court integral online service (CIOS) and e-Filing.
However, oftentimes, it is more practical to file in person (such as for urgent motions or where they are court fees involved.) Also filing in person allows our lawyers to check the court file to learn of important new developments in the case record.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
Our complaints are normally 5-50 pages long. Motions usually include approximately 5-20 pages.
Exhibits are also appended to complaints and motions. Exhibits can amount to one or more, sometimes dozens of additional pages.
Generally speaking, how long does it take for a case to go from complaint to judgment?
Similar to other countries‘ courts, the Thai courts encourage mediation and settlement. If a case cannot be settled, trials usually begin within 8-12 months after the initial filing.
After trial, appeals and enforcement actions can last anywhere term 3-12 years. Settlement normally occurs in the early stages of a court dispute and prior to trial. However, parties can settle at any time in the court process.
Does Thailand have a specialized court that only hears commercial cases?
Thailand has established specialist courts in various areas for international companies. For example, Thailand has stablished a specialized court for international commercial disputes and intellectual property disputes.
Who decides the facts in a commercial case? Is it a judge or a jury?
There are no jury trials in Thailand. The judicial system provides for a panel of judges normally comprised of three judges. One of the judges, however, has the primary responsibility for deciding the case.
Generally speaking, how is evidence exchanged between the parties before trial?
There are no depositions or interrogatories in the Thai legal system. Therefore discovery of evidence needs to be achieved through the subpoena process and by the use of preliminary motions and independent investigation.
If you win, does the other side reimburse your attorneys’ fees?
In civil cases, a court deposit is required. If the client wins, then the court deposit is refunded. If the client loses the deposit is forfeited. The prevailing party in a court dispute can also claim attorney’s fees. However, the Thai court rarely grants the other party’s legal fees in civil cases.
If a client is granted attorneys’ fees, then the fees are awarded pursuant to a specific court rate. The court rate attorneys’ fees are much less than the market rate.
In criminal cases for malicious prosecution, a conviction may lead to reimbursement of damages to the injured party, including potentially, attorney' fees expended in defending a malicious claim.
You personally focus on intellectual property. Can you tell me a little about how intellectual property claims are litigated in Thailand?
In many types of intellectual property disputes, administrative remedies need to be exhausted at the Intellectual Property Department before being granted court jurisdiction.
After exhausting administrative remedies, claims can be filed in the Court Of Intellectual Property And International Trade. In certain circumstances, claims can be filed file directly with the Court of Intellectual Property And International Trade (without first exhausting administrative remedies).
Are Thai courts open to the public? Can ordinary people watch a commercial trial?
In general, courts are open to the public. However, there are strict rules for witnesses involved in court cases, who are normally excluded from listening to the testimony of other witnesses in the same cases.
What do you believe are the strengths and weaknesses of the Thai legal system?
The primary positive aspect of the Thai Court System in regard to resolving commercial disputes is its arbitration provisions. There is an arbitration section of the Thai judiciary that provides arbitration as a service to litigants. The arbitration processes are more oriented to disputes between international companies. Often Western attorneys act as the Arbitrator and the proceedings may be conducted in the English language. The Arbitration section may also allow litigants to agree on using foreign law to decide their case. Thailand also has a specialized Court of Intellectual Property and International Trade that focuses on specialized issues concerning intellectual property. Within the court system, there is also a required mediation process.
The main weaknesses or Thailand legal systems are:
Absence of the right to a jury trial.
The brevity and generality of court orders on preliminary motions.
The lack of Supreme Court precedents for motions.
The lack of discovery procedures (such as deposition and interrogatories)
The lack of qualified expert witnesses.
How often do you go to the courthouse?
Lawyers at my firm go several times per week.
When you are there, do you need to wear a special robe or wig?
No wigs are required. Attorneys and judges do wear special robes. Here is an example of an attorney rube used by a lawyer in court:
