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Category: Litigation

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Breach of Contract in Thailand

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Contracts weave the fabric of commerce in Thailand by binding parties to their legal obligations and fostering trust in agreements. When these threads unravel, breach of contract disputes arise.

Understanding the nature of breaches, available remedies and Thai cultural nuances can help individuals and businesses resolve these disputes effectively. Taking a proactive approach to resolving contractual issues and drafting clear contractual provisions can prevent the need for litigation.

Dispute Resolution

In Thailand, as elsewhere, the bustling marketplace of commercial deals thrives on intricate contracts and unspoken compacts. When those agreements are breached, a once-harmonious melody of commerce can turn into a jarring cacophony. Taking the right steps to protect rights and pursue remedies empowers individuals and businesses to navigate contract disputes.

Dispute resolution can occur through negotiation, mediation, arbitration, or litigation. Considering these options at an early stage can help minimize legal costs and ensure that the best interests of all parties are served.

The Civil and Commercial Code outlines various remedies for breach of contract, including damages that compensate non-breaching parties for financial losses and specific performance, which obligates the breaching party to fulfill its contractual obligations as agreed upon. Litigation is also a potential route, but filing a lawsuit in an unfamiliar legal system can be time-consuming and costly. A lawyer with expertise in contract law can advise on appropriate courses of action, evaluate evidence, and negotiate or represent clients in court proceedings.

Liquidated Damages Clauses

The vibrant tapestry of commerce in Thailand thrives on intricate agreements and unspoken compacts. However, these arrangements are susceptible to breach when misunderstandings or disagreements arise. Navigating contract disputes requires an understanding of the legal landscape, types of breach, and available remedies.

Legal remedies for breach of contract include damages, specific performance, and rescission. Damages involve monetary compensation to cover financial losses incurred as a result of the breach. These damages may be calculated using the FIDIC Conditions of Contract, which allow for liquidated damages to be established when entering into an agreement. Liquidated damages are generally deemed to be reasonable pre-estimates of loss.

Specific performance compels the breaching party to fulfill contractual obligations, while rescission allows for the non-breaching party to terminate the contract. These remedies serve to restore the balance between contractual obligations and provide a timely resolution. In the event that informal methods of dispute resolution are unsuccessful, litigation is often necessary.

Concurrent Liability

Contracts, like threads, weave the fabric of commerce in Thailand binding parties to their mutual obligations and fostering trust in agreements. When these contractual threads unravel resulting in breach of contract, legal action may become necessary.

A breach of contract consists of failing to fulfil substantial or essential obligations as agreed upon in an agreement. Non-performance includes failing to deliver goods or services or making agreed upon payments. Defective performance, delivering substandard or incomplete work, or failing to meet contractual specifications, also constitutes breach.

Contractual breaches can have financial and reputational consequences for the parties involved. Preventative measures include clearly defining confidential information, using clear and specific language in contracts to avoid ambiguity, and establishing methods of dispute resolution. A specialist law firm can help companies prepare for potential contractual issues by drafting enforceable contracts and providing effective legal representation in the event of a breach. Civil lawsuits are often lengthy, so alternative dispute resolution methods such as mediation and arbitration should be considered.

Written Contracts

Contracts are a critical part of all business relationships and transactions. They establish a legal framework and set out expectations, rights, and obligations for all parties involved. However, misunderstandings and miscommunications can lead to contractual disputes which require legal action.

As with any legal dispute, there are many ways to resolve a breach of contract case in Thailand. These include negotiation, mediation, arbitration, and litigation. Choosing the right method for resolution depends on the nature of the dispute, cost, time and desired outcome.

Disputes involving payment obligations are common in Thailand, as they are internationally. These disputes can be based on either express or implied repudiation of the contractual obligation, or the failure to fulfil an obligation within a reasonable time frame. In such cases, concurrent liability may arise where a party is liable under both contract law and another area of Thai law. For example, a breach of contract regarding a sales agreement may also constitute a breach of the law on consumer protection.

Personal Injury Claims in Thailand

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In Thailand, anyone who wilfully or negligently unlawfully injures another’s body, life, health, liberty, property or rights is bound to make compensation. Compensation generally aims to place the victim back into the position they were in before the injury occurred and includes expenses for medical treatment and damages for lost income, past and future.

Statute of Limitations

The premise behind tort law in Thailand is that anyone who willfully or negligently injures the life, body, health, liberty, property and/or rights of another party is bound to compensate them. This includes injuries resulting from motor vehicle accidents, workplace accidents and other incidents that occur on private or public property.

A reputable injury attorney can help you define the extent of your injuries and pursue appropriate compensation. The courts generally seek to place claimants back in the position they would have been had the injury not occurred. This includes awarding expenses for treatment and damages for loss of earnings in the present and future. Compensation for intangibles like pain and suffering tends to be more restrained than in many common law countries.

It is important to note that it is necessary for a plaintiff to physically appear at court hearings in person. This is true even if they reside outside of Thailand. However, it is possible to sign a power of attorney to have a Thai lawyer represent them in court.

Damages

Under the Thailand Civil and Commercial Code, anyone who commits a wrongful act which causes an injury to another is mandated to compensate the victim. Compensation varies depending on the gravity of the wrongful act and circumstances of each individual case. Generally speaking, compensation may include expenses for medical treatment as well as loss of income both present and future. Awards for intangible factors such as pain and suffering are often more restrained than what is seen in common law jurisdictions. A reputable injury lawyer will help their clients define the extent of damages they are able to claim.

Promptness is key when it comes to filing personal injury claims in Thailand as the statute of limitations is very short with only one year from the date of the tort or when it became known (or ten years for criminal cases). As well, plaintiffs must physically appear at all hearings – although it is possible to sign a power of attorney to allow a lawyer to represent them.

Foreigners

Many foreign tourists who are injured in Thailand have a right to pursue compensation. However, this process can be complex. It is advisable to consult with a professional Thailand injury lawyer early in the process. A reputable attorney will be able to help the victim document the incident and obtain the required medical report. They can also help the injured party define what compensation they are owed. This can include expenses for medical treatment, loss of income (present and future) as well as other tangible losses.

The concept of negligence is fundamental in pursuing a personal injury claim in Thailand. The courts seek to place the victim back into the position they would have been in had the wrongful act not occurred. While in common law countries damages for intangibles like pain and suffering can reach astronomical levels, these awards are more restrained in Thailand. A reputable injury lawyer will be able to help their clients determine the extent of the losses they are entitled to.

Appeals

The Thai Civil and Commercial Code’s provisions lay out the legal framework for addressing wrongful acts, particularly in personal injury cases. A clear mandate exists for the responsible party to compensate the victim for their damages, with the gravity of the wrongful act shaping the awarded amount. In addition to monetary compensation, the responsible party is also obligated to reimburse medical expenses and cover partial or full work disability for the duration of the injured person’s recovery period.

It is important to note that a successful claim requires proof of carelessness. For this reason, a detailed investigation of the circumstances surrounding the incident is imperative. Additionally, a lawyer should be consulted to help guide victims through the complex legal rules in Thailand. Foreigners wishing to pursue a case can generally sign a power of attorney for a local lawyer to file the suit on their behalf, although they are usually required to physically appear at least once to give testimony.

Medical Malpractice in Thailand

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Medical Malpractice happens when healthcare professionals breach their profession’s standards of care. It can range from surgical errors to prescribing the wrong medications.

When negligence impacts a patient, there are a few legal steps that can be taken. Typically, it involves filing a civil lawsuit and going through the court process, which includes discovery, hearings, and a trial.

Patient Rights

Medical malpractice occurs when healthcare professionals fail to meet a standard of care and cause harm. This can include negligence, breach of duty, and lack of insurance coverage. A successful claim can result in compensation for damages incurred, including medical expenses and emotional distress.

A patient’s right to legal redress is vitally important when it comes to medical malpractice in Thailand. While the process can be complex, there are steps patients can take to protect their well-being and ensure that justice is served.

The first step is to seek medical attention from another hospital. In addition, patients should keep detailed records of all interactions with their doctors. They should also engage qualified legal representation to help them navigate the process of filing a medical malpractice claim. Legal counsel can assess the merits of a case, gather evidence, and represent clients in negotiations or court proceedings. Medical advocacy organizations may provide support and guidance to individuals seeking redress for medical malpractice.

Legal Representation

As Thailand continues to build a reputation as an international hub for medical tourism, more patients are traveling there for treatment. While the vast majority of patients walk away satisfied with their procedures and results, some are not. In those cases, they may seek legal redress.

Medical negligence claims are filed as civil lawsuits in Thailand. Typically, damages awarded are based on verifiable expenses and financial loss, including lost income. Intangible losses such as pain and suffering are less likely to be awarded than in some Western countries.

To ensure their claims have the highest likelihood of success, it’s important for patients to GATHER AND DOCUMENT all relevant information. This includes medical records, diagnostic reports and communications with healthcare professionals following a malpractice incident. Additionally, patients should consult with a lawyer specializing in medical malpractice to gain an understanding of the complex nature of Thai law. They can also help navigate the process to ensure they receive maximum compensation.

Statute of Limitations

In Thailand, as in most countries, malpractice by healthcare professionals may result in harm or death to patients. The country’s legal system addresses medical malpractice by way of civil and criminal law.

The Medical Profession Act sets the standard of care for healthcare practitioners and establishes penalties for violations, including license revocation. The Medical Council of Thailand is also responsible for overseeing the conduct of healthcare professionals and investigating complaints.

Under Thai law, a claim for compensation on account of a wrongful act prescribed under the Civil and Commercial Code must be brought within one year after the date when the injury and the obligation to make compensation became known to the injured person. However, if the wrongful act is covered by criminal law, which provides a different statute of limitations, the applicable time limit shall be that under the criminal law.

A reputable lawyer who specializes in medical malpractice cases can help you navigate the complex legal intricacies of pursuing redress against negligent healthcare providers. In addition, a lawyer with experience in medical negligence claims can provide expert witness testimony to support your case.

Complaints to the Medical Council of Thailand

With Thailand’s reputation for stunning beaches and delicious cuisine, many people may be surprised to learn that the country also has a robust healthcare system. However, as with all healthcare systems, medical malpractice does occur in Thailand.

When a patient experiences an injury due to malpractice, they have the right to file a complaint with the Medical Council of Thailand. This is a government body that keeps statistics and investigates complaints to determine whether the doctor acted within the accepted standards of practice.

When filing a claim for medical malpractice, it is important to have legal representation that can navigate the complex legal issues involved and collect evidence to prove your case. Financial compensation is awarded when a healthcare professional’s negligence leads to injury or death. These damages are often based on quantifiable losses, including lost wages, medical expenses, and ongoing pain and suffering. However, a court can also award unquantifiable damages in rare cases of severe medical negligence.

Dispute Resolution in Thailand

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Dispute Resolution in Thailand is a process driven by the courts. Court-annexed mediation, for example, is encouraged by the courts to reduce case backlogs.

Moreover, the law now provides for the consolidation of arbitrations which are correlated. This new procedure aims to enhance efficiency and prevent incongruity in judicial interpretations.

Arbitration

As Thailand continues to see a rapid increase in public and private investments, new companies and private real estate acquisitions, it is inevitable that disputes will arise. The judiciary has taken steps to ease the agglomeration of court dockets by encouraging the use of Alternative Dispute Resolution (ADR).

Arbitration is one form of ADR in which disputes are settled in a less adversarial manner than in a traditional trial. It is also more cost effective, faster and more convenient than a trial.

Most arbitration proceedings in Thailand are conducted through TAI, the main commercial arbitration institute in Thailand. TAI is a government agency overseen by the office of the judiciary, but does not interfere in the deliberations or decisions of arbitrators.

Aside from TAI, the Department of Labor sends labor disputes to a conciliator to try and settle the dispute before proceeding to a full court trial. Recent amendments to the Civil Procedure Code have made it easier for prospective litigants to apply for a court-supervised mediation before filing their statement of claim.

Conciliation

The conciliation process in Thailand is a more informal, nonadversarial method of dispute resolution. It is a court-supervised mediation process in civil matters where the court deems it appropriate or with the consent of the parties.

It is a faster and less hostile process than a traditional trial. However, it is not as binding as a final judgment. The court merely facilitates communications to help parties reach an agreed-upon resolution.

As an alternative to litigation, arbitration is commonly used in commercial disputes involving foreign companies in the banking, finance and technology industries. This is partly due to the fact that disputes relating to these industries require expertise in international commercial arbitration and knowledge of cross-border transactions. Aside from arbitration, conciliation is a suitable way to resolve disputes in these sectors as it involves discussion with the opposing party with the aim of finding mutually acceptable solutions. This method also saves time and money. It is a popular option for resolving smaller claims as it can be more cost effective than litigating such claims in court.

Mediation

The number of litigations has risen in recent times, resulting in the clogging of court dockets. To address this issue, the courts have begun to encourage parties to use alternatives to litigation such as mediation and conciliation.

The process of conciliation is similar to mediation but is less structured and involves the facilitation of communication between disputing parties in order to reach a mutually-acceptable settlement. It is also a non-binding procedure until and unless the parties agree to enter into a binding arbitration agreement.

The labour law in Thailand is complex, and disputes arising from employee-employer relationships are commonplace. These include issues with terms of employment, overtime payment, and relocating of workplaces. It is therefore essential for employers to incorporate a dispute resolution clause in their contracts with employees. Moreover, the courts often require parties to attempt to resolve the dispute through mediation before they are allowed to proceed to trial. This is called court-annexed mediation.

Litigation

Litigation is a common method of dispute resolution in Thailand. The country has a combination of both Western and local legal procedures, including the use of public prosecutors in criminal cases.

Civil claims are generally contested by a Court of Justice, although more specialised courts are available for certain subjects, such as tax, labour, intellectual property and insolvency. The burden of proof in criminal matters is a high standard of proof beyond reasonable doubt, whilst in most civil cases the test is based on preponderance of evidence.

Regardless of the type of case, it is generally recommended that a claimant seek alternative dispute resolution before proceeding to trial. In addition, prior to commencing litigation, plaintiffs should consider the nature and extent of defendant assets in Thailand and abroad as a monetary judgment may be of limited value if the defendant has little or no recoverable assets.

Trade Disputes in Thailand

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For businesses entangled in commercial disputes where compromising is not an option, litigation can be the most viable solution. However, this can be a long and costly process.

Chanintr explains that it requires the right level of commitment and momentum to gather enough information, personnel and determination to see the case through.

Alternative Dispute Resolution

ADR is a means of dealing with disputes that aims to avoid litigation. Generally speaking, it involves the involvement of a neutral party in order to bring the parties to an agreement through negotiations or arbitration. It can be a voluntary process or a mandatory one in accordance with a contract. ADR can involve mediation, conciliation, negotiated rulemaking and neutral factfinding.

Thailand has a system of judicial review with three levels: the Court of First Instance; the Court of Appeal; and the Supreme Court. There are also specialized courts. The Supreme Court has discretion as to whether to accept an appeal from a specialized court decision.

The prevailing legal system in Thailand has a strong common law influence and has generally been effective at enforcing property and contractual rights. Monetary compensation in a civil claim is generally based on actual damage that resulted directly from the wrongful act. However, decisions of foreign courts are generally not binding in a Thai court.

Litigation

Litigation is a last resort option when a trade dispute cannot be resolved through mediation or arbitration. In a court action, the dispute will be decided in accordance with the governing law of the country chosen by the parties.

The Central Intellectual Property and International Trade Court is a specialized court that adjudicates IP disputes including infringement and invalidity issues. The decisions of CIPIT Court may be appealed to the Court of Appeals for Specialized Cases.

The United States continues to urge Thailand to impose effective and deterrent enforcement measures in order to meet its obligations under the GATT/WTO/TRIPs Agreements. In January 2000, Act Up, Doctors Without Borders and Public Citizen wrote to the International Subcommittee of the Patent Committee of USTR to ask that the US government not apply Section 301 pressure to Thailand until the latter carries out changes in its intellectual property laws.

Mediation & Conciliation

Outside the courts, mediation is increasingly popular in Thailand. Many dispute resolution centres, including the office of alternative dispute resolution centre in the Office of the Judiciary and THAC’s mediation institute, provide services.

The process of mediation is normally confidential. It offers the parties greater control and flexibility than the long-winded litigation that inevitably accompanies a case and can help to preserve business or personal relationships that might otherwise go sour during years of court proceedings.

The conciliation process is similar to the mediation procedure but the conciliator acts as an active party rather than a neutral third-party. It also tends to be more cost effective and quicker than a lengthy legal case. The Thai legal system recognises the benefits of conciliation and imposes on parties to arbitration agreements provisions requiring them to attempt to settle disputes through conciliation before proceeding to trial. It also encourages the use of mediation as a means of dealing with trade disputes in order to avoid expensive and time-consuming legal proceedings.

Settlement

The settlement process involves negotiation and mediation and can offer a more amiable outcome for parties than litigation. It also avoids the impact of a long court proceeding on the relationship between partners.

Negotiation is a common mode of dispute resolution and is included in standard arbitration clauses in Thailand. The Labour Department generally encourages insertion of mediation clauses in expatriate agreements to settle disputes before resorting to litigation.

Although the legal system in Thailand is based on English law, a large proportion of international business transactions involve Thai lawyers. Therefore, it is often advisable to have the agreement in both languages to avoid misunderstandings or misinterpretation of the terms and conditions.

The Philippines and Thailand have a longstanding history of bilateral discussions in the WTO dispute settlement process. The 13-year long ongoing DS371 dispute is a testament to the region’s confidence in formal trade dispute settlement.

Labor Disputes in Thailand

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Labor disputes can arise from a variety of reasons, including issues with working hours, overtime payments and relocations. Additional complexities arise when dealing with foreign employment laws and compliance issues.

Key inspection frameworks in Thailand do not adequately address all indicators of exploitation, such as deception regarding key terms of employment; retention of identity documents; recruitment linked to debt; and wage withholding.

Mediation and Conciliation

Labor disputes involving wage claims, hours of work and overtime payment, relocation of the workplace and other issues can be very complicated and expensive to resolve. Understanding the existing legal mechanisms in Thailand can help human resource and compliance staff mitigate risks and avoid lengthy litigation.

In an effort to reduce court case backlogs, the Thai judicial system encourages parties to use alternative dispute resolution processes such as mediation and conciliation. These include court-supervised pre-litigation mediation, which can be conducted while a case is still pending in court.

Mediation involves the disputing parties sitting down with a neutral third party who can understand each side’s viewpoint and help them identify common interests. This can allow them to reach a compromise agreement that is mutually satisfactory rather than one imposed by the courts. Both conciliation and mediation are voluntary. If negotiations or mediation fail, the dispute will be referred to arbitration by a committee established by the Department of Labour Protection and Welfare officials.

Arbitration

When a dispute cannot be resolved through conciliation or mediation, parties may submit the issue to arbitration. Under the Arbitration Act of 2002, the courts will conduct a trial of evidence and question both sides, as well as make a ruling on the case. Arbitral awards are binding unless challenged and can only be set aside on very limited grounds.

Employers with migrant workers must be aware of the legal mechanisms for handling labor disputes that may arise in their operations. Understanding these will allow human resource and compliance staff to meet high moral standards and provide fair treatment to employees, thus reducing the potential for costly disputes.

The laws of Thailand provide safeguards for companies to minimize the risks associated with changing conditions of employment. Understanding these laws will support corporate compliance and human resources staff in navigating the complexities of the Thai labour law landscape. This will ensure a productive, stable and enjoyable work environment for all employees.

Court Trial

If the conciliation process fails or the parties are unable to reach an agreement on a compromise, a labor case can proceed with court trial. The law requires that the judge in a trial hears evidence from both sides and make a fair decision. The court will weigh many factors including the working condition, cost of living and level of wages, employee’s hardship, rights and benefits of the employees, status of the employer’s business and economic and social conditions.

In order to form a quorum for adjudication, at least two career judges and one associate judge must be present. After all the evidence is presented, the labor court will declare its judgment within three days from that date.

The court may also decide to transfer the case to other labor courts when it deems appropriate for the sake of justice and fairness. In addition, the court will issue a summons to the defendant on whom it has been served without delay and set forth the time and place of hearing.

Criminal Case

In certain cases, labor disputes can be elevated into criminal matters. This occurs where the dispute is accompanied by fraud or where an employee accuses the employer of committing a serious offence in relation to his/her employment relationship.

The central court in Thailand is the Central Intellectual Property and International Trade Court, which hears civil and criminal cases involving intellectual property and international trade for all of Thailand. This court is comprised of career judges and associate judges, separately recruited laymen, who are knowledgeable in intellectual property and international trade.

Moreover, there are also alternative dispute resolution mechanisms available under Thai law to help companies address grievances raised by their employees. These channels are effective for improving remediation outcomes and reducing costs associated with litigation. In addition, these processes are often faster and more predictable than a court trial. This is especially the case in a country like Thailand, which is a civil law jurisdiction.

The Thai Judicial System – Civil and Criminal Cases

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While the Thai legal system is complex, and judgments can take years to come down, there are some general rules.

Being a civil law jurisdiction, Supreme Court decisions are persuasive but not binding and criminal law is statute-based, allowing judges broad discretion and no jury. A skilled local lawyer will understand the process and anticipate the moves of opposing counsel.

Court of First Instance

In Thailand, the judicial system is based on international standards and innovative information technology. Currently, the judiciary maintains district courts, provincial courts, Central Courts (also known as the Supreme Courts), military courts, and specialized courts such as family and labor courts. The latter also includes the new International Trade and Intellectual Property Court. The losing party in the decision rendered by these trial courts can appeal at the Court of Appeals and, if they still do not agree, can file with the Supreme or Dika Court.

Under Thai criminal law, it is the sole responsibility of the judge presiding over the case to determine the guilt or innocence of a defendant and, if found guilty, to decide on the punishment that will be imposed. In addition, a judge is not permitted to reduce the punishment by more than half. Consequently, the role of the public prosecutor is to present facts and evidence for the court to consider.

Court of Appeal

As in many jurisdictions, the judge presiding over the case has sole discretion to determine the guilt or innocence of a defendant and to decide on sentencing. There is no jury system in Thailand, and court proceedings are conducted in the native language.

The Court of Appeal, consisting of the central and nine regional courts, hears appeals on questions of law from decisions rendered in the specialized courts. It also rehears cases on questions of facts that are important to the case.

The Supreme (Dika) Court, located in Bangkok, hears appeals from the Court of Appeal on questions of law and in some cases questions of fact. The court will reaffirm, dismiss, reverse or amend the judgment of the lower courts. A ruling rendered by the Dika Court will be binding on future appeals, unlike in England where a previous decision can only be cited as a precedent. This is called res judicata in Thai law.

Court of Military Court

The Court of Military Court operates like a regular court and judges are all military officers. Civilians charged with a crime can expect to receive a fair trial and be guaranteed their rights. However, the ALRC found that there are many limitations in the functioning of the court.

The court system in Thailand is composed of Courts of First Instance, the Courts of Appeal and the Supreme Court (Dika). The Supreme Court hears appeals from the nine regional and central courts and can reaffirm, dismiss or reverse the lower courts’ decisions. It can also issue royal decrees that are not contrary to the constitution, declare war and enter into international treaties with the approval of the national assembly.

Courts of First Instance include general courts, juvenile and family courts as well as specialized courts – the labor, tax, intellectual property and foreign trade courts. Losing parties in cases that have been decided by these courts often file for an overturn at the appeals courts.

Supreme Court

The Supreme Court is the highest judicial authority in Thailand and has the power to try and adjudicate cases involving constitutional issues, cases appealed from the Courts of First Instance, the Courts of Appeal and the Specialized Courts, as well as other matters prescribed by law. The Supreme Court also has the power to decide on administrative cases.

Judicial independence is guaranteed by the Constitution of Thailand. Court proceedings are inquisitorial, and there is no jury system. Judges decide a case based on the merits presented to them, and their decisions are final.

In Thailand, a defendant is presumed innocent until proven guilty. The burden of proof is on the public prosecutor to prove the facts and evidence against an accused, as set out in the Penal Code of Thailand. Court judgments are published in the Government Gazette. The Supreme Court’s judgments have a high degree of influence on lower courts. However, unlike common law countries, higher courts in Thailand are not bound by decisions of their own predecessors.