FAQs: Dispute Resolution/Litigation
Commencing an Action and
Jurisdiction of Courts
Q.
Who can bring a civil action in a Thai court?
A.
Subject to statutes of limitations, under Thai law, any natural person or
legal entity may bring a civil action in a Thai court if the subject matter of
the action is located in Thailand or the action arose on a Thai ship or airplane.
Otherwise, Thai nationals and those domiciled in Thailand can bring suits against
any defendant, while non-nationals and non-domiciled persons or entities can sue
defendants domiciled in Thailand. A party is domiciled in Thailand if physically
present in Thailand or if it has done business or has been represented in Thailand
in the 2 years preceding the filing of the lawsuit.
Q.
Who can bring criminal proceedings in a Thai court?
A.
Subject to statutes of limitations, criminal proceedings
may be brought by individuals or by the Public Prosecutor's office against persons
physically present in Thailand. If a Thai commits a crime outside Thailand, the
government of the country in which the alleged crime occurs can ask the Thai government
to initiate criminal proceedings against that person. Criminal proceedings can
also be brought against non-Thais who commit crimes against the Thai government
or Thai individuals outside Thailand. In both cases, the person to be charged
must be extradited to Thailand and brought before a Thai criminal court.
Q.
Is arbitration possible in Thailand?
A. Yes,
if the parties to a dispute agree to submit their dispute to arbitration
or if a contract specifically and clearly refers all disputes
arising under the contract to arbitration. See FAQs: Arbitration
for further information regarding Arbitration.
Q.
Are foreign judgments enforceable in Thailand?
A. Thai
courts will not enforce the judgments of foreign courts, but such
judgments can be used as evidence in a separate suit brought by
the plaintiff in Thailand.
Q.
Is there a limitation period on bringing action in
Thai courts?
A. Yes.
Limitation periods vary from a minimum of one month up to a maximum
of ten years, depending on the type of claim.
Q.
To which court should a claim be submitted?
A. Lawsuits
must normally be filed in courts of first instance, except in
limited special cases where the law states otherwise. Courts of
first instance can be courts of general jurisdiction or courts
of special jurisdiction. Where a claim should be filed depends
on the nature of the claim and the parties involved. For example,
international claims involving goods and services or intellectual
property matters should be submitted to the Central Intellectual
Property and International Trade Court (IP&IT Court). Domestic
claims involving goods and services should, in contrast, be submitted
to civil courts of general jurisdiction. Examples of courts of
general jurisdiction are kwaeng courts, to which claims for damages
of Baht 300,000 or less must be submitted, and provincial courts
in Thailand's 76 provinces. Examples of courts of special jurisdiction
are the Labor Court, the Tax Court, the Bankruptcy Court, the
IP&IT Court, and the Juvenile and Family courts.
Q.
Is there a Court fee payable on filing a
civil claim?
A. The
court requires the claimant to deposit a filing fee equal to 2%
of the anticipated claim amount upon filing of the complaint,
subject to a maximum of Baht 200,000, for claims not exceeding
Baht 50 million. Usually the court will order the losing party
to reimburse the prevailing party in the amount of this court
fee. The court typically refunds a pro rata portion of these fees
if the matter is withdrawn or otherwise settles early. In respect
of consumer cases brought under the Consumer Case Procedure Act
2008, no court fee is payable.
Q. How long does litigation in
Thailand generally take?
A. The length of time a case
takes to proceed through the courts depends on the nature and
complexity of the case and in which court it is heard. Judgment
in the simplest cases may be rendered within a few months of the
complaint being filed. In contrast, litigation in a complex case
can go on for a few years, especially if the case is being heard
in a court of general jurisdiction. Proceedings in courts of special
jurisdiction are expedited so cases are usually resolved approximately
in one year from the date of filing.
Q. Will the court award compensation
for personal injury?
A. Thai courts award compensatory
damages to put the claimant in the position he or she would be
in if the injury had not occurred. However, Thai courts tend to
award damages for actual losses only (such as medical expenses
and loss of earnings), and rarely award general damages for pain
and suffering. Therefore, damage awards for tort matters in Thailand
tend to be significantly lower than those typically awarded in
the West.
Q. Are attorney's fees recoverable?
A. The court has individual
discretion to make awards of attorney's fees to the prevailing
party. However, large legal fee awards are not common in Thailand,
and it is more likely that only a small fraction of actual legal
fees will be recoverable.
Q. Is it possible to appeal the
judgment?
A. Judgments of the first instance
courts of general jurisdiction can be to the Appeals Court and
generally can only be appealed on issues of law unless the amount
in dispute exceeds Baht 50,000. Appeals must be filed within one
month of the judgment, though extensions of time for filing the
appeal may be granted upon request provided there are reasonable
grounds. Decisions of the Appeals Court may be further appealed
to the Supreme Court, within one month of the Appeals Court decision.
Questions of fact may generally only be appealed to the Supreme
Court if the amount in dispute exceeds Baht 200,000. In addition,
judgments of the IP&IT Court, Labour Court, Tax Court and
other Courts of special jurisdiction can be appealed directly
to the Supreme Court, thereby shortening the appeals process.
The decision of the Supreme Court is final.
Q. How long does the appeal process
take?
A. The length of time for the
Appeals Court process varies between two years and two and a half
years, and the Supreme Court appeal may take a further two to
three years to be determined.
Q. Can the judgment
be enforced prior to the decision of the Appeals or Supreme Court?
A. Judgments are immediately
enforceable, but a party filing an appeal may request a stay of
execution of the judgment pending the appeal. The court will normally
grant a stay of execution, provided the party lodges security
with the court. The amount of security required to be deposited
will usually be the amount of the judgment plus an amount in respect
of interest for the period of the appeal.
Q. How is the judgment enforced
in the event of default by the judgment debtor?
A. The procedure for enforcing
a judgment is to file an application with the court to appoint
an execution officer, who then assembles and attaches the judgment
debtor's assets, and liquidates them in the market or at auction,
depending on the type of asset. The judgment creditor itself is
responsible for locating the debtor's assets, which can be difficult
because the courts are reluctant to exercise their authority to
compel asset disclosure from the debtor. It is often advisable
to conduct an asset investigation before commencing litigation.
(May 2009)
The above is intended to
provide general information only. The contents do not constitute
legal advice and should not be relied upon as such. If legal advice
or other expert assistance is required, the services of competent
professionals should be sought.
For
further information, please contact Ms.
Tiziana Sucharitkul, Co-Managing Partner & Director of
Dispute Resolution Department (tiziana.s@tillekeandgibbins.com)
or Mr.
Thawat Damsa-ard, Partner &
Chief Litigator
(thawat.d@tillekeandgibbins.com).
