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Faqs

FAQs Questions Listing

Foreign judgments are not enforceable in Thai Court but can be used as evidence in proceedings. It will be upon the court’s discretion to weigh the foreign judgment’s evidentiary value. Thailand adopts a conservative approach, which places the onus on the applicant to establish and prove that the judgment applies in Thailand. Therefore, it is necessary that when a foreign judgment is obtained, the plaintiff will have to initiate a new lawsuit against the defendant in Thailand.

This will depend on the complexity of the case and which court it is heard in. If a court case is heard through to the Supreme Court, then it is possible that it will be a lengthy court case up to 5 years in total from Court of First Instance to Supreme Court. If a case is heard in the Court of First Instance only, it is reasonable to expect one to two years. If the case is appeals in the Court of Appeal, then he length of time for a decision is generally less than a year. All of these timelines are outlines only and are subject to change due to volume of cases in the court and court busyness.

It is possible to appeal the judgement of the Court of First Instance should any party disagree with the decision of the Court of First Instance on permitted grounds only. The party may file for an appeal to the Court of Appeal within one month from the date of the delivery of the judgment of the Court of First Instance. However, if the delivery of the judgment from the Court of First Instance is done through hand delivery to the residence or office, then the party must file for an appeal within 30 days from the date of the judgement via hand delivery to the residence or office.

The Court of Appeal may hear both civil and criminal cases and it either affirms or revises the decision of the Court of First Instance. No new evidence from witnesses may be submitted at this level and unless decided by the court, only written arguments is submitted by the lawyers representing the parties, where the evidences submitted from the Court of First Instance will be examined and deliberated by the Court of Appeal

Thailand does not practice trial by jury as it is a civil law legal system where judgments apply law to the cases. The cases are decided on the merits of the submitted evidence. The number of judges may vary of one case to another.

It is possible for foreigners to file a case in Thai court as long as the matter falls under a Thai jurisdiction. However, please note only registered Thai attorneys are allowed to practice law in Thai and appear before the court. Foreign consultants can assist you with an understanding of the case and act as an intermediary.

The court fee that will be incurred in civil proceedings depends on the claimed amount. It is usually 2% of the claimed amount and is limited at 200,000THB. There are also the subpoena fees which will be incurred. This fee is not fixed as it depends on place where the party you are suing is located.

Depending on the matters that have arisen in your case, the dispute may be heard in a civil or criminal court. Further, the dispute may be heard in the Specialised Courts of First Instance, which are the Central Labor Court, the Central Intellectual Property and International Trade Court, the Central Tax Court or the Central Bankruptcy Court. If the disputes are heard within one of these Specialized Court, the appeals for these court usually goes directly to the Supreme Court.

The limitation period for filing a claim in Thailand can vary from 0.5, 1, 2, 5 or 10 years. Ten years is the basic prescription period in Thailand if the law does not establish a shorter period for a specific claim. The limitation period for claims concerning taxes is ten years. The limitation period for claims concerning arrears of interest, salaries, rent or hire of immovable properties is five years. The limitation period of two years will be more most commercial transactions.

It is possible to have your attorney represent you in the case, through a power of attorney. There are two types of form which are the General Power of Attorney and the Special Power of Attorney. The former allows a wider scope of authority whereas the latter is limited in scope and duration. This power of attorney will allow the authorized attorney to act on your behalf, including but not limited to filing the court complaint, acting as you in court hearings, receiving the judgement award for you if you are abroad. Although it is possible to proceed with the case when you are abroad, it is generally recommended that you appear in court although there will be many exceptions to this general recommendation.

It is normally the insurance that covers the expenses occurred from the injury you have sustained from the accident. However, you may not be compensated for everything you have paid for and the time for receive compensation from the insurance may take quite a while. If you have an insurance that covers the expenses, this may not cover the continuous injury that you sustained from the accident itself. Therefore, you should claim for compensation for other expenses incurred for your injury against the person causing your injuries.

It is possible to file a claim for personal injury when you are abroad. This will be done through a someone with the power of attorney in Thailand. It is possible for you not to appear in court but generally and you can appoint a lawyer as an ‘attorney-of-fact’ if necessary.

It is crucial that after the accident that you should have photographs of the injuries you have sustained from the incident. It is also advisable that you take a photograph the place of which the accident happened. The medical expenses that you have suffered, both that has been claimed and not claimed by the insurance. Other documents relating to your loss are also important, for examples, evidence of work leave and income losses.

Courts in Thailand do not take into consideration your pain and suffering to be compensated. Except only in the case of death, where non-pecuniary loss will be awarded.

Compensation awarded to the injured party varies on the gravity and circumstances of each case. The damages that you may claim under a Thai Court are the following:

I. Damage to the Property;

II. Damage towards Life, Body, Health and Liberty; and

III. Continuing Damage stemming from the Incident.

In accidents relating to bodily injury caused by negligence or accident, you may be able to be compensated for hospitalisation costs; loss or income or losses due to the physical disability. Nonetheless, the court is likely to issue its award based on the gravity of the wrongful act done.

You must file your lawsuit within one year from the date that you suffered the injury and you know who should be held liable to pay compensation. It is crucial that fast action is required as the claim may become legally barred by the state of limitations law.

Personal injury claims cover a wide range or injuries and accidents. Under the law, personal injury claims may be claimed when an injury is sustained from an act or omission caused by a person who willfully or negligently caused an injury to another person’s life, body, health, liberty, property or their rights, he is bound to compensate the injured for the damages caused.

No, protection of employment applied under the Labour Protection Act.

Yes, subject to various conditions including some of the following:

1. the consent of all owners has been obtained for operation of a hotel, and for change of use of the building from a condominium to be a hotel

2. change of use of building has been effected

3. rules and regulations allow commercial use

4. rights of co-owners with regards common property are not violated

5. the building is in compliance with the Building Control Act

6. there is valid hotel license in place

1. The management fees: base fees; incentive fees

2. The term and termination provisions

3. The rights to appoint the GM and FC

4. The rights to audit operations including accounts

5. How other expenses are charged – central services and marketing fees; regional fees; trademark license fees; out of pocket expenses

6. Provisions relating to capital renovation – CAPEX

7. Insurance and Liability

8. Special Conditions

All of these should be captured in summary form in an LOI / MOU.

Yes, such an agreement is a ‘hire of work’ agreement and therefore is governed by the Revenue Code of Thailand which contains a schedule of rates relating to applicable stamp duty.

Item 4. of the Schedule ‘Hire of Work’ denotes the rate as 1THB out of every 1000THB of remuneration prescribed.

On many Hotel Management Agreements, the rate of the payments for the hire of works will fluctuate from year to year over long periods of time, such as 15 or more years.

Therefore, an estimate of the amount payable based on a percentage over the term would be paid in advance. Communications directly with the Revenue Department, and a presentation of the Hotel Management Agreement are necessary to establish the applicable charges based on the applicable rate.

The party which has to pay is the ‘contractor’ that is the party employed by the employer. Therefore, in a hotel management agreement, it is the manager that is liable for the application of stamp duty.

No. This is a major issue with those that wish to provide temporary accommodation, but actually cannot conform to the applicable legislation.

The main legislation governing the specifications of buildings is the Building Control Act. Under this Act, ministerial regulations are issued which can vary from Province to Province the regulations. For example, different regulations to buildings apply in Bangkok than to Phuket.

In order to build a building that will be a hotel, the necessary environmental applications and consents must be processed. This can comprise of a light “IEE” application or a heavier full blown “EIA” application. This determines the documents that are used to register the ‘use of the building’ with the administrative authorities.

1. accommodation only, less than 50 rooms, size of each room is not less than 8 square meters

2. accommodation and catering or restaurant services, the size of each room is not less than 8 square meters

3. accommodation, catering or restaurant services, the size of each room is not less than 14 square meters and which has either conference rooms or entertainment venues under which the Entertainment Place Act 1966 (subsequently amended) applies- places for dancing; bars; nightclubs

4. accommodation, catering or restaurant services, conference rooms and entertainment venues, the size of reach room being not less than 14 square meters

For type 3 and 4 votes, no entertainment venues are allowed unless the hotels operate more than 80 rooms, although this can be waived if the hotels are located in ‘entertainment areas’ or if operated by a hotel which serves food; alcohol or entertainment only and opens after 12:00pm

Not necessarily. Generally speaking providing accommodation for periods exceeding one month as a general term of rental would most likely not be constitute hotel business.

Anyone providing temporary accommodation for less than 1 month must then consider if they are ‘excluded’ from having to obtain a hotel license. Exclusions include lodgings which have no more than 4 rooms.

Kindly note that is one single owner of one unit within a complex containing multiple units, exceeding 4 in number, can be deemed to become part of a ‘hotel operation’ if the type of temporary use is less than 30 days for those units.

This therefore impacts upon buildings where there may be widespread use of 3rd party temporary accommodation providers such as Airbnb; Agoda, and similar.

The terms of appointment of an arbitrator will typically include

1. Description of the dispute to be resolved

2. confirmation of the arbitrator’s jurisdiction

3. reference to the arbitration agreement under which the arbitrator is to be appointed

4. a declaration of independence and impartiality

5. statement of availability

6. the basis of remuneration and arrangements for payments of fees and expenses on account.

The terms of remuneration may be

(i) fixed fee

(ii) hourly rates for time spent

(iii) based on a % of the value of the dispute

(iv) a mixture of the above

The arbitrator should also include provision for a cancellation fee and make arrangements for payment in the event the matter settles before a final award is given.

1. The fees of the institute

2. The fees of the legal counsel representing the parties

3. The fees of the arbitrator(s)

4. The expenses of the institute – venue and facilities per hearing including food and beverage

5. The expenses of the arbitrators, which may include travel, accommodation, food and other out of pocket expenses subject to the terms of remuneration

6. The cost of experts for the hearings

7. Post award, the legal costs of enforcing or defending enforcement proceedings

Arbitrators who are appointed through an institution may be subject to a fixed scale of fees depending on the value of the dispute and other criteria. However, there may also be some flexibility on the arbitrators fees and the arbitrators may offer lower fees than the maximum scale rates.

In professionally managed institutions, the arbitrators fees will be paid through an advance payment process whereby the parties pay the institute the advance. The arbitrators are then paid by the institute. The terms of remuneration may in certain jurisdictions first be agreed by the appointing party, but later they should be disclosed and all parties should ideally be asked to agree a final document setting out all terms.

The parties will be jointly and severally liable for the fees, and if under the contract, rules and applicable law the costs of the arbitration are awarded to a party in part or in whole, then the other party must meet those costs including the costs of the arbitrator not appointed by that party. During proceedings, the arbitrators will ensure that they have fees on account and if they have drafted their terms of appointment properly, they can cease their works or delay issuance of a final award until their fees are paid.

This depends on the rules of the relevant institute. However, the parties can still agree to determine the number of arbitrators between themselves, but if they fail to agree, the default number under the applicable law and rules will apply. There will generally always be an odd number of arbitrators. For complex arbitrations, there may be a larger panel of arbitrators such as investor-state disputes.

Generally, it would be highly unusual to challenge the arbitrator you selected, but it can happen if circumstances arise under which it would be appropriate to challenge the independence, impartiality or fulfilment of obligations of the arbitrator.

More common are challenges of arbitrators appointed by the other party(res) to an arbitration. Unfortunately, many challenges are strategic and spurious, and such challenges can give rise to delays in the appointment process.

The normal grounds for challenging an arbitrator are lack of independence and impartiality. Parties often research the background of an arbitrator they wish to challenge to see if they can find any links between the arbitrator and the parties involved or even if an arbitrator has published articles on the topic in dispute.

Arbitrators are subject to disclosure requirements and duties to analyse their own independence. They also must preserve their reputation in order to potentially be appointed for future arbitrations.

There are no specific requirements for the qualifications of an arbitrator.

Choosing an arbitrator is tantamount to choosing a ‘judge’. Those not familiar with arbitration may mistakenly believe that by choosing an arbitrator, the arbitrator somehow owes a duty only to the party choosing the arbitrator.

In fact, the arbitrator must be and remain independent and impartial. This is a fundamental principle of arbitration and the arbitrator’s duty.

Aside from that, the qualifications of an arbitrator can vary considerably. Some parties like to choose arbitrators who have a long list of arbitrations to their name and are very senior. Others like to choose an arbitrators of a particular background or nationality. Sometimes an arbitrator may be chosen due to possession of expert knowledge in a particular field or trade.

Many corporations in dispute choosing an arbitrator will look at the formal qualifications and affiliations of an arbitrator to assess credibility and experience. They will look at which institutions the arbitrator is associated with, and whether an arbitrator has undergone any formal training.

There are many institutions which deliver formal training, one of them being the Chartered Institute of Arbitrators (CIArb). CIArb has branches across the globe.

There are currently two main arbitration institutes in Thailand – the Thai Arbitration Institute (“TAI”)  and the newer Thai Arbitration Centre (“THAC”). There is also the Office of the Arbitration Tribunal of the Board of Trade of Thailand.

In order to assess which institute is preferable, an analysis of the arbitrators on the ‘panel’ of arbitrations available to administer a dispute should be reviewed. Further, the style and manner in which an institute oversees a dispute, and the costs involved should be assessed. The parties may also be free to appoint an ‘external’ arbitrator to the panel but with the arbitration to be administered through the institute.  The facilities of the institute should be reviewed for appropriateness, and then the rules issued by the relevant institute will also be an important factor in proceedings.

It is also acceptable for the parties to choose a non-Thai institute to govern a dispute that arises in Thailand, is governed by Thai law, where the parties have agreed the dispute forum will be arbitration and the subject matter is capable of being arbitrated. Some disputes cannot be arbitrated as a matter of public policy or national law.

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