Intercountry Adoption for Children

Intercountry adoption is when an individual or a couple becomes a legal parent of children by adopting and raising them in another country. Those children will have better opportunities to live in a healthy environment and good education which has an excellent effect on children themselves and society.

Thailand ratified the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption B.E. 2536 (1993) (“Hague”) to ensure that the intercountry adoption is in the child’s best interest and the adoption process is legal. For this purpose, the Thai government established the Child Adoption Centre of the Department of Social Development and Welfare (DSDW), a central authority, who will make a final decision on allowing for adoption.

white and multicolored love is love banner

For adoption of child in Thailand, the overseas adoptive parents must submit an application to the central authority or agency of their own country. Then, the central authority or agency will contact and coordinate with the competent authorities in Thailand (i.e.  Sahathai Foundation, Friends For All Children Foundation, Pattaya Orphanage and Thai Red Cross Children Home). These Thai authorities will consider the qualifications of overseas adopters under the Thai Civil and Commercial Code. For example, the adoptive parents must be at least 25 years old and must be at least 15 years older than the adopted child. Moreover, one of the important qualifications of adopters is that they must be a married couple or a single female who is qualified to adopt the child under the law of their own country.

The Thai competent authority will consider the qualifications of overseas adopter under many factors such as age difference, health and mind. Then, the Thai authority will send the documents and its opinion to the DSDW for final approval. The consideration process and decision of adopting Thai child is required to be taken place in Thailand as mentioned above.

Please note that currently Thailand is still not accepting the legal status of homosexual marriage and the intercountry adopter must have married status (between man and woman), so it is still impossible for LGBTQ couples to adopt the Thai child. However, there is a draft civil partnership bill allowing a legal homosexual status providing the right for adoption as a married couple. If the draft civil partnership bill is approved and become enforced and related laws have been revised to be in line with, the LGBTQ couple is able to apply for adopting the child in Thailand under the conditions as specified in such relevant Thai laws and approval of DSDW.

Meme and GIF: Whether It Is Protected under Copyright Law 

A Meme is a slightly modification of some pre-exiting work. It could be anything e.g. image, video clip, or GIFs, etc. It is widely used across the social media to spread the humor. Words are good for expressing thoughts, ideas, stories and etc. However, mood and humor are expressed better in moving pictures. Memes and GIFs can be shared easily in the cyber space. The efficiency of their expressiveness is the key to their popularities.

Memes and GIFs are not a new type of copyrighted work that needs a new definition. They are subject to both protection and infringement of copyright created by Memes and GIFs. Creating Memes and GIFs could potentially gain an ownership if they meet the requirements.

person holding white android smartphone

An author has to consider the factors below, if it wants its work to be qualified for copyright protection.

  1. Works must be originated by an author;
  2. The effort of author to create works is required;
  3. An author must use its skills to create such work; and
  4. An author must use its judgment when producing works.

Focusing on creating Memes and GIFs, derivative work comes into consideration since it seems that memes and GIFs are derivative work of somebody’s pre-existing work by using those material and creating into another separating ones and inserting a funny quote, so it reflects that memes and GIFs authors do not use much efforts. Besides, the author is also lack of originality since Memes and GIFs are not completely changed from the pre-existing work.

Under Section 27 of Copyright Act, it states that reproduction, adaptation or communication to the public of a copyrighted work shall be deemed an infringement of copyright. This means copying and sharing copyrighted Memes and GIFs could potentially be subject to an infringement. However, there is an exemption mentioned under Section 32 that one could use those copyrighted work if such use does not affect to a normal exploitation of the owner of copyright and does not unreasonably prejudice to the legitimate right/interest of the owner of copyright. In other words, the fair use doctrine is recognized in Thailand.

man in black crew neck t shirt covering his face with his hand

To determine whether fair use doctrine could be applicable to Memes and GIFs, the two main factors must be considered:

  1. The amount of substantiality of the portion used in relation to the copyrighted work as a whole; and
  2. The effect caused by the use to the potential market or value of the copyrighted work.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.

AMC – Tools for solving NPLs

Asset Management Company (AMC) does business through purchasing or auctioning NPLs (non-performance loans) from commercial banks or financial institutions and manages such NPLs through restructuring of NPLs. The AMC business is governed by the Bank of Thailand (BOT), where the selective NPLs from the banks will be sold to the AMCs through auction. The banks will notify the debtors and creditors before and after the auctions of debt. AMCs that win such auctions have the duty to inform the debtors of their rights to claim the debt in place of the banks. Still, the original right to claim the capital, interest, and other relatives’ rights and obligations agreed with the banks are still enforceable. The debtors just have to perform their obligations with the AMCs.

buildings with glass windows

Under this current situation, a joint venture agreement between AMCs and commercial banks is to be entered into giving the banks more flexibility in managing bad debts and also helping AMC in playing a key role in the country’s bad asset management as some have capital limitations in terms of buying distressed debt.

According to the published news in May 2022, All Inspire Development Plc. is one of the companies operating AMC businesses. The company aims to buy the NPLs for about 500-1000 million baht with an estimated return of around 4 – 4.5 billion baht. 

Based on Bangkok Commercial Asset Management or BAM’s forecast, the value of NPLs from the banks will be around 200-300 billion baht, and other financial institutions will be around 9 billion baht.

Under the BOT rules and regulations, a limited company or public limited company with a registered capital not less than 25 million baht and having a purpose of business to be transferred of NPLs from the banks or financial institutions to manage the NPLs are able to apply for operating of AMCs business with the BOT. The AMC that did not comply with the regulations and rules set by the BOT will result in revocation of registration. 

The joint venture entities will be operated for not more than 15 years from the date of approval for their operation, and after that, those will need to be liquidated or changed of shares proportion held to be in accordance with the relevant laws and regulations governed their business. 

The booming of AMC business is the gravely additional tool or assistance for the banks to manage the NPLs during this downhill of economic due to the pandemic. However, this AMC tool is not a long-term resolution in which the government is needed to launch and implement the economic policy to solve this problem on a long-term basis.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.

AI and Intellectual Property Protection

AI or Artificial Intelligence is an intelligent machine that could perform task and mimic some human ability which make a difficulty to future role of human. Currently, some AI could perform an artwork, but the following question is that if AI or non-human creature could generate artworks independently, will intellectual property law protect this non-human creativity.

high angle photo of robot

According to Berne Convention for the Protection of Literary and Artistic Works, there is no definition of the term “author”; however, it is known that in many counties including Thailand, the subject of the authorship needs to have skill labor and thus human ship is required. Importantly, artistic mind is a crucial part of the artwork which is an ability that AI or non-human creators cannot approach. For example, the starry night showing a dimness of night sky with a dark blue shade contrast with a yellow color interpreted the emotion turbulence of the artist called “Van Gogh”.

In United State, the protection under copyright law is not expanded to non-human creator. As a result, non-human author is unable to hold an ownership of the work. This statement was mentioned in Naruto, the monkey, selfies case. The case began with the accusation of PETA, the animal-right nonprofit organization, claimed that the photo shot by the monkey “Naruto” should not be owned by the defendant or the photographer. PETA claimed that the creativity should be upon humanity; thus, the organization requested that the defendant should pay for a royalty fee to the place where monkey lives. However, The US court disagreed and affirmatively ordered that animal was not capable to file a lawsuit since they were not legal persons under the copyright’s protection in the US. It could therefore imply from this decision that non-human creator could not hold the ownership of copyright. Only legal persons that the US copyright law recognize.

Interestingly, Australia court was the first country mentioning about the possibility of recognition of AI as an inventor. The judge had ruled that since the definition under Section 2C of the Interpretation Act 1901 does not include the term “inventor” as a person so AI could be an inventor. However, the higher court rejected this judgment and brought back to the decision that the copyright holder should be owned by a natural human.

man in black suit sitting on chair beside buildings

Under Thai legal system, the current Copyright Act defines the term “author” as a “person” who makes or creates any work which means that intellectual property law in Thai currently protects only human’s work. It is therefore reflected that there is currently no intellectual property protection over non-human inventor including AI.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.

Cyberbullying VS Defamation

Cyberbullying is repeatedly and intentionally harassment, mistreatment, or making fun of people through digital devices. This action occurs on social media that users can view, contribute to, or share contents.

One example of cyberbullying offense associated with suicide is Rehtaeh Parsons, a 17-year-old Canadian student, who was a victim of sexual violence. The offender published her pictures of being raped on the website. After that, Rehtaeh’s school friends brutally cyberbullied her by sending text messages requesting to have sex with her several times. Even though Rehtaeh’s family escaped from the community, people kept harassing her through the internet, which caused her a mood swing and led her to hang herself. Finally, there was no charge for the cyber-bully. In response to Parsons’ suicide, the Nova Scotia Government enacted Cyber-Safety Act 2015. However, the provision in the definition of cyberbullying terminology was broadly and ambiguously as it applies to every offense which beyond the law’s objective. Consequently, the Nova Scotia Government repealed the Cyber-Safety Act 2015 and then enacted the new law instead, i.e., the Intimate Images and Cyber Protection Act 2017, narrowing down the definition of cyberbullying and allowing victims to seek protection from cyberbullying and sue the offender.

shouting woman with hands on head in dim red light

Under the Intimate Images and Cyber Protection Act 2017, cyberbullying requires to have an electronic communication, direct or indirect, causing or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or wellbeing or was reckless with regard to the risk of harm to another individual’s health or well-being.

Defamation offense as specified in Section 326 of the Thailand Penal Code, it is required to have the offender intending to impute the others, a third party as a receiver, and messages must damage others’ reputation or cause the others to be insulted or hated. If defamation is done by social media, it will be considered under Section 328 of the Penal Code, the offense of defamation will be considered as conducting defamation offence by advertising. This action can occur physically and online. There is no need to be recurring action, just intentionally imputing others to a third party only once is considered as defamation.

person holding white android smartphone

Cyberbullying is similar to defamation in that it asserts a person’s facts with the intent to injure the other’s reputation and cause the person to be dishonored or hated. The difference is Cyberbullying can occur on a private forum without a third party as a receiver, the intent can be reckless with regard to the risk of harm to others, and the action is a variety of types. On the other hand, defamation must have a third party as a receiver, the intent to impute the others, and the only action is imputing.

In Thailand, the cases of cyberbullying require the element of defamation offense, allowing the victim to sue the cyber-bully in a criminal case. The victims cannot sue the offender if the cases happen on a private forum that has only sender and receiver because it lacks the element of defamation offense in which there is no third party as a receiver. Furthermore, if the action is not imputing the others or the intent of cyberbullying is reckless with regard to the risk of harm, the victim cannot sue the offenders because there is no cyberbullying offense in Thailand even if that action causes damage to the mentality and reputation of the victim as same as defamation. In summary, using the comparative law, the Penal Code, cannot cover to the extent of cyberbullying. All cases cannot be considered as offenses and applied to penalties under Section 326 and Section 328. Therefore, it is necessary to define a specific cyberbullying offense, the method for punishing offenders, and injury compensation for victims in which it can be specified in the Computer-Related Crime Act B.E. 2560 (2017). For this purpose, it should be specified covering the action on the private forums, all types of cyberbullying, and expanding the intention to cover negligence to reduce bullying behaviors and keep the bully at a consistently low level in Thailand.

red text on dark background

Smart Contract on Blockchain

Smart Contract – Tool for Facilitating Business in this modern-day business, technology has been put to be used more and more, for instance a transnational trade and supply chain, removing the bank or financial institution of the picture.

The smart contract, one of the mentioned technologies, will facilitate the business operation because the seller will be able to deliver the goods in any way and the delivery information will be the smart contract conditions to launch the product to the buyer. Input of such information is also much convenient such as scan barcode, QR code, or intact ship to the product to let the smart contract recognize the payment condition is being fulfilled.

In comparison to the typical e-commerce transaction where the buyer buying product from the available service platform that the seller displays their products and services and the platform will hold on to the payment when there is transaction until delivery of product to the buyer then the money will go to seller. This typical e-commerce transaction still has the intermediary and involving of discretion to certain level unlike the smart contract that done and execute without any intermediary. Another example, an insurance business, as the nature of its operation is the fulfilment of contract conditions to be eligible to compensation, any occurrence of the agreed event and input of data into the smart contract system will trigger the payment of compensation agreed such as insurance of delay flight, where the flight timetable is in the computer system any delay from what schedule is, will trigger the compensation procedure to the insured or beneficiary without having to go through complaint process.

Unlike the centralised system that gather all data under one centre, blockchain is a decentralised information distribution network stored in the block and shared other users that can enter the block through input of password. The network will check for any input or change of information of the block and update that to the next block and chain the new and old one together ensuring it to be connected, shared and distributed to the network. Once the information is blocked together into chain, it is irreversible.

Blockchain is a network system that is an optional approach in doing business, non-application will render to non-benefit to business or at most can be used as irreversible recording system. However, without smart contract, there could be issues of time and parties making offer and acceptance as there is no human involving.

Blockchain is an applied technology that is an additional tool to boost a business, whereas smart contract is one of blockchain functions to execute according to the agreed clauses in the contract and fulfilment of the agreed clause will render to the predicted result either transfer of money or deliver of goods according to what parties agreed. Smart contracts boost the speed, efficiency and ensure accuracy according to the terms of the contract with absolute transparency, trust and security done through blockchain network. As such, it saves both time and expense.

Under the principle of law, a contract form when there is a proposal and acceptance of parties with the intention to create legal relation and be bound by the obligation arise of the agreed expression of intention where, in some agreements, certain form of proof of such agreement is required by th law. A smart contract is an electronic contract where parties create conditions or clauses set up through coding instead of paperwork and record of such electronic contract on the blockchain network system.

The parties to contract will set forth the conditions aim to achieve in advance and upon the completion of such aim the contract will automatically complete the process of transaction without any assist from any third party. The Thailand Civil and Commercial Code did not mention of the electronic contract form but under the Electronic Transaction Act recognised the online offer and acceptance done online including binding power, rights, duties, liabilities and obligation of engaging of online contact. With its latest amendment, the contract done on the information exchange machine with a person or machine-to-machine is legitimately recognised. Therefore, the smart contract setting with no human involving in the process done on the exchanging information machine to another machine is under the electronic transaction recognition.

Under the legal interpretation, the time of contract formation take effect when the information of the offer is being input into the network system of the receiver checked through timestamp appear on the transaction. As the contract is formed online, the place of the contract is hard to identify which affect the jurisdiction of competent court. The US court introduces the ‘Long Arm Jurisdiction’ for the court to have the competency upon perpetrator resides and operates outside the state where the place of cause of action is outside of the state. If the fact appears in accordance with minimum contact principle and relative considerations and  the perpetrator intents to be bound in such transaction done in the state and be benefit of such transaction within the state and regardless of whether the information in put is the information that the perpetrator  want to contact or exchange with others on the internet or not, all  these  will be considered under the ‘Long Arm Jurisdiction’ which should be reviewed along with Stare Decisis Principle. In addition, under the UNCITRAL, it indicates the place that the sender’s workplace and the receiver’s workplace is the formation of contract place.

Therefore, the competent court will be the premises local court of the sender’s or receiver’s workplace or the domicile of the sender or receiver in which Thai law has not yet introduced any legislation on such matter

Business Incorporation and Relevant Registrations in Thailand

Setting up a company in Thailand requires at least 3 or more individuals to subscribe their shares at the incorporation stage. Then, such subscribers shall conduct a statutory meeting for a company establishment to appoint the director(s) of the company and hand over the business to the director(s). The director(s) shall call for shares subscription either in kind or in cash and register for incorporation within 3 months from the statutory meeting.

The company’s director(s) can be both Thai and foreigner. This does not affect the ownership of shares in the company or types of the company whether it is a Thai company or a foreign company under Thai law. However, in the event that the director(s) is a foreigner and receive salary from the company, this shall be considered as an employee who is required to apply for a work permit in order to work in Thailand legally.

Once the company has already been established and if the company has an employee, social security registration is required. In addition, if the company has its income more than 1,800,000 baht per year, the company is required to register for value added tax (VAT) number.

money cash euro pay

Last but not least, other registrations or procedures may be required for any other specific types of business. For example, specific licenses are required for operating the restaurant business, securities business, tourism business, etc. The business owners need to seek consultation and check the relevant laws whether the business requires any other specific registrations or procedures.

Key Issues You Need to Know When Doing a Business in Thailand

On the scenario that a foreigner is exploring the business opportunity and would like to establish a company for operating its business in Thailand, if more than 49% of shares are held by foreigner(s) (either individual(s) or entity(ies)), the company is considered as a foreign company under the Foreign Business Act B.E. 2542 (“FBA”). In this case, certain restrictions in doing businesses will be applied and the company cannot hold ownership over the land subject to international agreements/treaties that the country of nationality of such foreigner(s) has entered into with Thailand and/or privilege policies granted by the government of Thailand.

For some restricted business under the FBA, if the foreign company would like to do so, a specific foreign business license is required. However, some types of business are exempted from the provisions of FBA such as the businesses related to the securities exchange and financial institutes. but, those exempted businesses from the provisions of FBA may be, on the other hand, regulated, supervised or monitored by other specific laws and regulations of relevant authorities such as the Bank of Thailand. 

It is noteworthy that the numbers of foreign individual working or representing the company, even as a director or authorized director, will not impact the ownership of shares in the company.

The requirements on visa and work permit for foreign employee(s)/director(s) play a significant role on the elements of business operation. The specific ratio of Thai employees to each foreign employee will be applied when considering the matters of visa and work permit. The size of investment is also a matter attribute to the requirements for granting visa and work permit to the foreign employee(s)/director(s).

Last but not least, the issues of tax and dividend are among major questions and concerns how the laws and practices work here in Thailand.  The corporate income tax is currently imposed in the range of 15% – 20% of the net profit subject to certain exemptions. Also, the dividend distribution is subject to tax implications, but may be deducted or credited under the applicable double taxation agreement that Thailand have entered into, and regulatory corporate provisions before its distribution.

In the nutshell, the business and investment opportunities in Thailand is wide open for foreign investors. You are totally welcome here in Thailand, but it is for your best advantage to be fully aware of restrictions with good strategies and structure planning.