According to Section 14 of the Foreign Business Act B.E. 2542 (1999), it provides that the minimum capital to be used by a foreigner for the commencement of the operation of a business in Thailand shall not be less than that prescribed in the ministerial regulation provided that it shall not be less than two million Baht.

The Ministerial Regulation Prescribing the Minimum Capital and Period for Bringing or Remitting the Minimum Capital into Thailand (“Ministerial Regulation”) B.E. 2545 (2002) and its amendments issued under the provisions of this Section 14 may not only prescribe the minimum capital, but also the period of time in which the minimum capital must be brought or remitted into Thailand. Under the Ministerial Regulation, the capital must be brought or remitted into Thailand within 3 years. However, the individuals or entities of states which are members of the bilateral treaties in which Thailand are the member, are entitled to prolong bringing or remitting the capital into Thailand for a certain period of time as prescribed in the 3rd of Ministerial Regulation, i.e. 10 years, which is the current enforcing Ministerial Regulation. Lists of category of such individual or entity are as follows:

Foreigners who are natural persons or juristic persons not registered, but operate their businesses in Thailand.
Foreigners, being juristic persons registered in Thailand, operate their businesses in Thailand, which such juristic persons do not have the minimum capital as prescribed on the date of the commencement of business operation.
Foreigners who have operated their businesses in Thailand before the date of entry into force of the Ministerial Regulation and its amendments, but has not yet brought or remitted foreign currencies that form the minimum capital into Thailand.

Since the extending period of time for bringing or remitting the capital into Thailand for those individuals or entitles are becoming close to its maturity, i.e. on 29 August 2019. In order to maintain the right for such individuals or entities under this National Treatment scheme, the renewal of current 3rd Ministerial Regulation is required.

On 28 May 2019, the Cabinet approved in principle a draft Ministerial Regulation Prescribing the Minimum Capital and Period for Bringing or Remitting the Minimum Capital into Thailand (No. …) B.E. …. proposed by the Ministry of Commerce, as the 4th of the Ministerial Regulation, for extending of the period for bringing or remitting the capital into Thailand for another 10 years from the expiration of the 3rd the Ministerial Regulation (“Draft Ministerial Regulation”). The Draft Ministerial Regulation will be submitted to the Council of State for its consideration and revision before returning to the Cabinet for its final approval. The Draft Ministerial Regulation as planed shall become enforced by this 30 August 2019.

Author: Panisa Suwanmatajarn and Krerktanes Suwanprasit

Importing a second-hand car to Thailand is not an easy task to accomplish. In particular, the Thai Cabinet has recently approved the draft Ministry of Commerce’s Notification Regulating the Import of Used Vehicles (“Notification”). The Notification determines that importing some types of used vehicle to Thailand are prohibited or requested for permission. It aims to minimize air pollution, ensure public safety for road users, and eliminate the problem of illegally imported luxury cars.

Under this Notification, the definition of “Used Vehicles” is divided into three categories.

1. Vehicles used for normal purposes, except the use for quality test with a certificate issued from a trademark owner;
2. Old-model vehicles are assumed to be used vehicles, except ones that are obviously seen as new;
3. Vehicles registered in foreign countries are considered as used vehicles, except ones that are first registered in those foreign countries before loading, and delivering within 60 days from the departing city, and then paying for custom duty.

As mentioned above, the Notification will completely ban the import of some specific types of Used Vehicles for personal use while other types need permission for the import. Types of vehicle which will be prohibited from importing to Thailand are ones on the list of tariff classification nos.87.01, 87.02, 87.03, and 87.04 such as a tractor, minibus, bus, personal car, racing car, pick-up truck, and truck. Types of Used Vehicles which will be required for permission are a tow-truck, ambulance, and every type of Used Vehicles on the list of tariff classification no. 87.05, except crane and fire engine.

The Ministry of Commerce is no longer the only department to regulate the import of Used Vehicles. Several government agencies namely the Department of Foreign Trade, Department of Internal Trade, Excise Department, Customs Department, Fine Arts Department, Industrial Estate Authority of Thailand, and Ministry of Defense will regulate the importation procedures of some specific types of Used Vehicles. In case that Used Vehicles are illegally imported, they shall be destroyed or sent out of the Kingdom of Thailand.

Author: Panisa Suwanmatajarn

As we previously published our article regarding a new public and private partnership law, called the Public-Private Partnership Act B.E.2562 (“New PPP Act”) which has been published in the Royal Gazette and effective since 11 March 2019.

Section 7 of the New PPP Act specifies lists of certain projects requiring to be subject to the provisions of the New PPP Act. Those projects are for example, the projects in relation to road, train, airport, port, hospital, school and telecommunication. The infrastructure and public services listed in this section shall include services that are necessary for the achievement of such infrastructure and public services. Any project owner agency wishing to be a partner of a joint investment project in businesses relating to the infrastructure and public services listed in this section shall comply with the New PPP Act.

Recently, the Cabinet has approved in principle for the announcement proposed by the PPP Committee on services that are necessary for the achievement of airport and air-transportation projects. Those will include, for example, cargo, kitchen for air transportation services, passenger handling services, security services and cleaning of airplane services.

Once proposing a joint investment project, a project owner agency shall prepare a project study report and analysis report containing details announced by the PPP Committee. a consultant shall be engaged for preparation of those reports. The project owner agency shall propose the principles of the project to the responsible minister for its approval. After approval, they shall propose the approved reports to the PPP committee for its consideration. Once the reports have been approved by the PPP Committee, the principle of the project shall be proposed to the Cabinet for its approval and then the joint investment project will be set up.

Author: Jin Sukme and Kanpimon Naksinn

In lights of advancement in information technology which may lead to abuse of personal data, Thailand has raised its awareness and developed the law regarding data protection in which the provisions of the same comply with an international standard. Recently, the National Legislative Assembly of Thailand has approved a draft Personal Data Protection Act (“Data Protection Act”), which is currently pending for endorsing by the King and publishing in the Royal Gazette. We under this article would like to point out the material issues specified in the Data Protection Act for your attention.

Under Section 6 of the Data Protection Act, the term “Personal Data” means any information relating to a person which can directly or indirectly identify such person but excludes information of a dead person. A person or entity who has authority to determine on collecting, using or, disclosing the Personal Data is referred to as the “Data Controller”. According to Section 5 of the Data Protection Act, the Data Protection Act generally enforces upon collection, utilization, or disclosure of personal data conducted by the Data Controller who resides in Thailand, regardless of whether such performing of collection, utilization, or disclosure is conducted overseas or in Thailand.

The most significant principle of the Data Protection Act is that the Data Controller shall not collect, utilize, or disclose the Personal Data without directly obtaining consent from the data owner on or before the date of collecting, utilizing, or disclosing. Such consent shall be made clearly in writing or through an electronic system. To seek for the consent from the data owner, the Data Controller has to follow procedures as specified in the Data Protection Act, for example, the Data Controller needs to specify its objectives of collecting, utilization, or disclosure of such Personal Data. If the data owner is a child, the consent shall also be obtained from the child’s parent. However, there are some exemptions on such consent requirements and procedures, for example, if the Data Controller collects any Personal Data for the purpose of public interest or for complying with the law, the Data Controller then does not have to seek for the consent from the data owner. The data collected in such case also does not need the consent from the data owner to be utilized or disclosed. In order to transfer the Personal Data to overseas, the Data Controller shall also comply with an announcement issued by the committee appointed under the Data Protection Act according to Section 28.

In addition, the Data Protection Act entitles the data owner several rights. The data owner may request for accessing or copying of his/her Personal Data or request the Data Controller to disclose an origin of such Personal Data acquiring without consent from the data owner. The data owner may also object any collection, utilization, or disclosure of his/her Personal Data or even request the Data Controller to dispose his/her Personal Data provided that it satisfies requirements specified in the Data Protection Act.

The above explanation is only the main principle of the Data Protection Act. However, other details specified in the Data Protection Act needs a legal profession to assist you in providing the same. If your business is related to the Personal Data, we recommend you preparing your entity for complying with the requirements of Data Protection Act in which soonest it will becomes enforced and that both civil and criminal sanctions are applied. Please contact us at any time, if you have any further question regarding this.

Author: Panisa Suwanmatajarn and Jin Sukme

According to the current Labor Relations Act (“Old Act”) which has been enforced since B.E. 2518, its several provisions do not conform to the current labor relation conditions, economic situation and social welfare. Therefore, a draft Labor Relations Act B.E. …. (“Draft Act”) has been proposed by the Ministry of Labor to the Cabinet for its approval. The Cabinet had approved the Draft Act in principle on 5 February 2019 and that it was passed to the Council of State for its consideration and revision before resubmitting the same to the Cabinet for its reconfirmation. Then, the Draft Act will be submitted to the National Legislative Assembly for its final approval before publishing into the Royal Gazette and becoming enacted to be the law.

Significant provisions state in such Draft Act are as details below:

• An agreement relating to employment conditions has to be arranged in the corporate entities which have employees more than 20 persons. Such agreement relating to employment conditions has to be made in writing and shall include i.e. conditions of employment, wage rate, retirement age or the termination of the employment contract, etc. Employers have to register such agreement relating to employment conditions to the Director-General of Department of Labor Protection and Welfare or his commissioner within 15 days from the date that such agreement has been agreed.
• Once any labor dispute occurs, the complainant is required to submit in writing to the Labor Dispute Conciliator within 48 hours once the agreement can not be reached for its consideration and decision. Some important labor dispute which may create any effect to the public at large or economic and security of the country, such dispute needs to be submitted to the Labor Relation Committee for its consideration and decision.
• The employer is able to lock out or the employee is able to strike subject to the relevant rules and regulations.
• The employees not less than 10 persons have their right to request for setting up a labor union. Moreover, for the fairness and impartiality, a foreign employee is able to be one of the committee members of such labor union.
• Unfair act is to be defined under this Draft Act which includes termination of employment or any act which creates effect to the employee and that such employee is not be able to work with the employer because the employee is setting up the labor union, is to becoming one of the members of the union or is to becoming one of the committees of the union.

Author: Panisa Suwanmatajarn and Onnicha Khongthon