A Draft Royal Decree on Supervision of Services related to Digital Proofing and Authentication System B.E. …. (“Draft Royal Decree”) was proposed by the Ministry of Digital Economy and Society and was approved in principle by the Cabinet on 22 September 2020.The Draft Royal Decree is aimed to be legislated 1) to define the types of digital proofing and authentication system services (“Services”) which need to be licensed, i.e. identity proofing services, authenticator management services, authentication service and digital identity platform services and 2) to specify the rules for conducting such Services in order to make the Services more reliable and safer for electronic transactions under the Electronic Transactions Act B.E. 2544.Summary of the Draft Royal Decree are as follows:

1. Digital proofing and identity verification is required to be consisted of at least three processes as follows:
   • Identity proofing;
   • Issuing proof of authentication; and
   • Authentication
2. A person or juristic person verified through the Services under this Draft Royal Decree is presumed to be real.
3. A person or juristic person is prohibited from operating the Services in a monopolized manner unless approval from the Electronic Transactions Development Agency (ETDA) is granted.
4. There are services which are not subjected to the Draft Royal Decree which are an e-signature certification authority service (CA) under the Electronic Transactions Act, digital proofing and authentication system service used only for the benefit of a person or juristic person own business, identity proofing service that does not require verification of identification evidence and verification of person identification (Identity Assurance Level Service) and service related to digital proofing and authentication system operated by the government agencies excluding the state enterprises.

The Draft Royal Decree will be passed to the Council of State for its consideration together with relevant authorities and later it will be returned to the Cabinet for its reconsideration and approval before submitted to the Parliament for its final consideration.

Author: Panisa Suwanmatajarn and Jinnaphat Srithepthamrong

The Ministry of Commerce of Myanmar announced on August 28, 2020, the new trademark registration system/law. This new system/law will follow the first-to-file rules and rights.

The soft opening for filing of trademark applications under this new trademark registration system/law will be commenced from October 1, 2020, for a period of 6 months until March 31, 2021.

During the soft opening period, only below matters can be conducted.

1. The trademark owners who have filed the applications and recorded their trademarks by filing the Declaration of Ownerships (DOs) at the Office of the Registration of Deeds and Assurances (ORD) are required to re-file their trademark’s applications under this new system/law preserving their priority rights (with no addition of class and list of goods/services);
2. The Trademark owners who have not yet filed the applications and recorded their trademarks with the ORD are able to file the applications and DOs if their trademarks are being used in Myanmar together with substantial evidence in supporting of such use (such as cautionary notices (CNs) published in a newspaper(s); tax invoices/receipts; photos showing participation in exhibitions; expense vouchers; bills); and
3. The trademark owners who have not fallen under either of the above conditions are required to file their trademark applications and DOs under the existing system/law in case that they would like to reserve their priority rights.

The trademark owners being not fallen under the above-mentioned conditions shall prepare their applications ready to be filed as soon as possible once the grand opening period commences.

Information/documents required for filing applications under the soft opening period

• A trademark application;
• A power of attorney duly legalized by the Consulate of Myanmar;
• A copy of existing recorded DO along with CNs published in a local newspaper(s) (if any);
• A specimen of the mark;
• Owner’s information i.e. name, address, and nationality;
• Classifications and list of goods and/or services under the Nice Classification

Under the new system/law, benefits for trademark owners are as follows:

• The trademark renewal system is enforceable. The registration will be valid for 10 years and that it may be renewable every 10 years.
• The trademark search system will be available.
• The list of goods/services will follow the 11th edition of the Nice Classification.
• The multi-classification application is available.
• The opposition system will be used during registration processes.

Author: Panisa Suwanmatajarn and Jasmine Pholcharoen

On 23 June 2020, the Cabinet has approved a Draft Act on Amendment to the Civil and Commercial Code (no. ..) B.E. …. and a Draft Amendment to the Act on Determining Offences Relating to Registered Partnership, Limited Partnership, Limited Company, Association and Foundation Act (no. ..) B.E. …. as proposed by the Ministry of Commerce.

1. Draft Act on Amendment of the Civil and Commercial Code (no. ..) B.E. ….

2. Draft Amendment to the Act on Determining Offences Relating to Registered Partnership, Limited Partnership, Limited Company, Association and Foundation Act (no. ..) B.E. ….

The Cabinet has approved for adding the provisions specifying offenses and penalties on the cases of not paying dividend within its period of time and not sending a special resolution or not publishing a special resolution on merger of the limited companies.

Author: Panisa Suwanmatajarn and Pithayut Ra.thee

The Cabinet, on 9 June 2020, has approved a Draft Act for Amendment to the Civil and Commercial Code (no. ..) B.E. …. (“Draft Amendment to the CCC”) to amend some provisions of the Civil and Commercial Code in regard to partnership and company in which the Draft Amendment to the CCC will be proposed to the House of Representatives for its further consideration and approval before publishing in the Government Gazette

Summary of the amendment are as follows:

1. The application for incorporation of partnership or company can be submitted at any of the Office of Business Registration Service as prescribed by the Minister.

2. The Minister has its authority to reduce or exempt government fees for registration, requesting for copies of documents with certification and other fees related to partnership and company matters.

3. The registered Memorandum of Association would be expired if it has not been registered for company incorporation within three years. However, if any Memorandum of Association has been registered before the effective date of this Draft Amendment to the CCC and that its validity period (3 years) has lapsed, the validity period of such Memorandum of Association will be extended for another 180 days.

4. The company seal must be affixed on every share certificate only in the case that the company has its company seal.

5. The board meeting may be conducted by any form of technology in which the directors will not need to appear in the meeting unless prohibited by the provisions of the Articles of Association of the company. However, the said meeting must be conducted in accordance with the rules, procedures and conditions prescribed in the Ministerial Regulations. This shall be deemed that the directors using that technology have joined the board meeting, been counted to constitute a quorum and been entitled to vote at the meeting.

6. The notice of a general meeting of shareholders shall be sent by returned registered post to all shareholders unless the company has its shares in the type issued to holders, in that case, an advertisement in a local newspaper is also required.

Author: Panisa Suwanmatajarn and Pithayut Ra.thee

The Thai government has realized on a global expansion of the e-service industry. In order to update rules and regulations to have it more appropriate and create fair treatment between the local and overseas e-service operators, on 9 June 2020, the Cabinet approved the Draft Act on Amendment to the Revenue Code in Regard to Value Added Tax (VAT) Applied to E-Service Industry (No. [..]), B.E. [….] (“Draft Act”).

Summary of the Draft Act are as follows:

• The definition of “Goods” shall be revised to include e-service and e-platform.
• A service provider fallen under the provisions of this Draft Act shall be the provider operating its businesses abroad, but providing its service to a consumer/user who is a non-VAT registrant and that the service provided has been used in the Kingdom. In case that the overseas service provider using an overseas e-platform in providing the service to the non-VAT registrant and that such service has been used in the Kingdom, the overseas e-platform operator shall also has its obligation under this Draft Act on behalf of such overseas service provider.
• Such foreign service provider / e-platform operator needs to have its income more than 1.8 million baht per year in regard to the said service and then it is required to file VAT registration and have the responsibility to pay VAT in which VAT shall be calculated based on sales tax without deduction of purchases tax. In this case, the VAT statement can be submitted in an electronic form.

This Draft Act will be submitted to the Parliament for its consideration and approval before publishing in the Royal Gazette and then become enforced.

Author: Panisa Suwanmatajarn and Pithayut Ra.thee

As the current laws on life insurance and non-life insurance are silent in some issues, therefore, the Ministry of Finance had proposed to the Cabinet a draft Life Insurance Act (No…) B.E…. (“Draft Life Insurance Act”) and draft Non-Life Insurance Act (No…) B.E…. (“Draft Non-Life Insurance Act”) in order to revise those two legislations and that the Cabinet granted its approval in principle on the same on 19th November 2019. Both Draft Life Insurance Act and Non-Life Insurance Act will be sent to the Council of State for consideration with other opinions of other relevant authorities such as Ministry of Justice, Court of Justice and Stock Exchange of Thailand.Brief details of such Draft Life Insurance Act and Non-Life Insurance Act are as follows:

• Transferring of Insurance Business
  The transferring of business whether in whole or in part resulting in changing an assurer, the transferee shall send a written notice informing all assured. The assured is able to object such transferring transaction within one month from the date of receipt of notice. If no objection arises, this shall be considered as novation by changing the assurer.

For the ongoing lawsuits, the transferee shall become and subrogate to those lawsuits. In case of the cases that the court has issued the judgements, the transferee is able to become and subrogate to such judgements and demand for the debt payment from the debtors.

• Insurance Business Merger
  The merger of insurance businesses is practicable in case that the consent in writing of all creditors are granted.
• Penalties
  The Fine Consideration Committee cannot settle the case by way of fine payment for the matters of, such as, illegal exploitation caused by the company’s director, manager, person authorized to act on behalf of a company or person assigned by the company and making or supporting the auditor, actuary or the insurance surveyor committing its illegal activities in relation to insurance.

Author: Panisa Suwanmatajarn, Krerktanes Suwanprasit and Anon Chanrueng

The Eastern Economic Corridor or as known as the Eastern Economic Corridor Development Project (“EEC”) is one of the strategic plans under Thailand 4.0 policy. It has been further developed from the Eastern Seaboard Development Program which was under operation for over 30 years.

On 10 May 2018, the Eastern Special Development Zone Act B.E. 2561 (2018) was promulgated in order to govern and promote the EEC. The idea was that if the region undergoes a continuous and systematic development in line with the principle of sustainable development, it will, in turn, enhance the country’s competitiveness, particularly in respect of the promotion of the engagement of commercial and industrial activities that apply advanced and modern technologies.

On 28 October 2019, the Customs Department promulgated the Announcement of the Customs Department no. 204/2562 Re: the Customs Clearance Protocol at the E-Commerce Duty-Free Zone within the Special Economic Zone (“Announcement”). Such Announcement specified procedures for the establishment of E-Commerce Duty-Free Zone, permission for the operation of electronic commerce in the Duty-Free Zone, Customs Clearance Protocol for E-Commerce Duty-Free Zone, for goods traded through electronic commerce mean in the E-Commerce Duty-Free Zone within the EEC area.

The key benefit of conducting activities through the E-Commerce Duty-Free Zone in the EEC area is the goods which are imported through the E-Commence Duty-Free Zone will have a period of time for filing of the custom duties for not more than 14 days from the date of importation and if such goods have been either stayed or exported and brought back into the E-Commerce Duty-Free Zone within 14 days from the date of importation, the entrepreneur could cancel the import of such goods without paying any customs duties.

This Announcement will be a benefit to foreign investors who would like to conduct their business activities through the E-Commence Duty-Free Zone in the EEC area.

Author: Panisa Suwanmatajarn, Krerktanes Suwanprasit and Anon Chanrueng

On 2nd July 2019, the Cabinet approved for amendment of 4 joint investment agreements under the Public-Private Partnership Act B.E. 2019 (“PPP Act). Brief details of the PPP Act have been published previously in our website. Those joint investment agreements have been entered into by and between Airports of Thailand Public Company Limited and its contractors for the services of cargo, ground facilities and maintenance and kitchen, Such amendment of joint investment agreements were proposed by the Ministry of Finance after having approval by the Board of Directors of Airports of Thailand Public Company Limited, the Attorney General and related agencies, i.e. the Ministry of Finance, the Council of State, and the National Economic and Social Development Council.

The above-mentioned amendment is as follows:

Method 1: Delaying the payment of percentage compensation and minimum compensation from the 2nd year to the 4th and 5th year of the joint investment agreements;

Method 2: Exemption of the payment of minimum compensation for 9 months (April – December of 2010); and

Method 3: Delaying the payment of percentage compensation and minimum compensation from the 3rd year to the 6th year of joint investment agreements. For the 4th year onwards, delaying the payment of percentage compensation and minimum compensation as the same as adjusted on the 3th year to the 6th year of joint investment agreement until the 20th year has lapsed.

Such measures are considered as amendment of compensation collection which are in relation to the state benefits and that it is considered as revision of the joint investment agreements on an important part. Therefore, Airports of Thailand Public Company Limited shall need to follow the provision of Section 47 of Private Investments in State Undertakings Act B.E. 2013 (“PISU Act”) which is currently in accordance with Sections 64 and 68 (3) of the PPP Act. Main purpose of the amendment is to help entrepreneurs who have been affected by political unrest resulting in closure of Suvarnabhumi Airport for about 9 months in 2010.

However, delaying the payment of state’s compensation under the above-mentioned measures shall not exceed to actual value of damages.

Author: Panisa Suwanmatajarn and Krerktanes Suwanprasit