Litigation in Thailand

Litigation in Thailand involves a structured process that follows the Civil and Commercial Code, Criminal Code, and Civil Procedure Code. The Thai judicial system provides a multi-tiered court structure, including civil, criminal, labor, and administrative courts, depending on the nature of the dispute.

1. Types of Courts in Thailand

a) Court of First Instance

The Court of First Instance hears the initial trial for most civil and criminal cases. This court addresses all matters, including business disputes, real estate, family law, and criminal offenses. Depending on the case’s complexity or monetary value, disputes may be heard by a provincial court or a district court.

b) Court of Appeals

The Court of Appeals handles appeals from the Court of First Instance. Parties dissatisfied with the ruling of a lower court may appeal based on questions of law or fact, seeking a re-evaluation of the case.

c) Supreme Court

The Supreme Court (Dika Court) is the highest court in Thailand and only hears appeals on legal grounds. It acts as the final arbiter on matters of law interpretation, particularly in significant or landmark cases.

d) Specialized Courts

In addition to general civil and criminal courts, Thailand has specialized courts that deal with specific types of cases:

• Labor Court: Handles employment disputes, including wrongful dismissal, wage claims, and violations of labor rights.
• Intellectual Property and International Trade Court (IP & IT): Handles disputes related to intellectual property rights, international trade, and commercial matters.
• Administrative Court: Deals with disputes between private individuals or entities and government agencies, particularly regarding the exercise of governmental power.

2. Litigation Process in Thailand

The litigation process in Thailand is structured into several stages:

a) Filing the Complaint

The plaintiff initiates the case by filing a complaint at the relevant court, detailing the dispute, facts, and the legal basis for the claim. The defendant must respond to the complaint with a statement of defense within a specified time, usually 15 to 30 days, depending on the case’s complexity.

b) Pre-Trial Process

Before the trial begins, a pre-trial conference may be held to settle procedural matters, clarify issues, and explore the possibility of mediation or settlement. Thai courts encourage settlement at any stage of litigation, including through court-sponsored mediation.

c) Trial

In the trial phase, both sides present evidence, call witnesses, and make legal arguments. Thai courts follow an adversarial system, where the burden of proof is on the party making the claim. Civil cases are usually decided based on a balance of probabilities, while criminal cases require proof beyond a reasonable doubt.

d) Judgment

After hearing all the evidence, the court delivers its judgment. The losing party can appeal the decision within 30 days to the Court of Appeals if they disagree with the outcome.

e) Appeal Process

The appeal process in Thailand is based on reviewing the trial court’s application of the law or its assessment of the facts. Appeals to the Supreme Court are generally limited to legal issues unless a significant factual mistake is alleged.

3. Legal Representation and Costs

In Thailand, legal representation is not mandatory but highly advisable, especially in complex litigation. Lawyers in Thailand must be licensed by the Law Society of Thailand. Court fees in litigation cases are usually a percentage of the claim’s value, with court costs and attorney fees recoverable from the losing party under certain circumstances. These costs must be requested in the initial complaint or defense.

4. Key Considerations in Thai Litigation

a) Enforcement of Judgments

Once a judgment is finalized, enforcement of the judgment must be sought through the court. In cases involving financial compensation, assets may be seized or sold to satisfy the judgment if the losing party does not voluntarily comply.

b) Alternative Dispute Resolution (ADR)

Litigation is often seen as the last resort in Thailand, where mediation and arbitration are increasingly used to resolve disputes. Mediation is frequently encouraged by the courts and can resolve cases more quickly and less expensively. Arbitration is often preferred for international or commercial disputes, especially when parties wish to avoid lengthy court proceedings.

c) Criminal vs. Civil Litigation

Thailand differentiates between criminal and civil litigation. Criminal cases involve public offenses and are prosecuted by the public prosecutor. In contrast, civil cases involve private disputes, such as contract breaches, property disputes, or family law matters. However, in some cases, the same dispute may give rise to both criminal and civil actions (e.g., in cases involving fraud).

5. Litigation for Foreigners in Thailand

Foreigners involved in litigation in Thailand face additional complexities, including language barriers, different legal frameworks, and the need for local legal representation. However, foreign plaintiffs and defendants are afforded the same legal rights as Thai nationals. Thailand’s judicial system recognizes international agreements and foreign arbitration awards in cases involving cross-border disputes.

a) Foreign Ownership and Business Disputes

Litigation often arises in the context of foreign business investments, particularly under the Foreign Business Act (FBA). Disputes regarding joint ventures, shareholder rights, and real estate investments involving foreigners may require specialized legal knowledge of both local and international laws.

b) International Arbitration

Thailand is a signatory to the New York Convention, meaning arbitration awards from other signatory countries are generally enforceable in Thailand. Many international commercial contracts involving Thai parties include arbitration clauses to avoid lengthy litigation and ensure disputes are resolved more efficiently.

Conclusion

Litigation in Thailand follows a structured legal process designed to balance the rights of plaintiffs and defendants while providing opportunities for alternative dispute resolution. With a multi-tiered court system and specialized courts for particular cases, the Thai legal system is well-suited to handle a wide variety of disputes, from commercial and contractual conflicts to family law and criminal cases. However, given the complexities of Thai law, language differences, and procedural rules, seeking experienced legal representation is essential for navigating the litigation landscape effectively.