On 25 January 2019, the Cabinet approved in principle a draft Timeframe for Judicial Procedures Act (“Draft Act”) proposed by the Office of the National Economic and Social Development Board.
The Draft Act shall be passed to the Office of the Council of State for consideration and revision before proposing to the National Legislative Assembly for further consideration and approval and publishing the same in the Royal Gazette prior to become the law.

The Draft Act states duties of any judicial authority in Thailand in regard to its judicial procedures as details below:

• The duty to indicate timeframe for any judicial procedure.
• The duty to create a system which the relevant persons on such certain procedures are able to follow up and check status of their matter. Such system must be easy to access and under user-friendly means.
• The duty to arrange responsible persons for particular matters in order to receive a complaint from the relevant persons of the matter in case that the procedures for such matters are delay. Once the complaint has been received, such responsible persons have the obligation to inspect and inform in regard to such investigation to the relevant persons and report the same to the superior.
• The duty to collect statistical record in regard to duration of each judicial procedure and compare the same with the indicate timeline and publish such statistic data to the public.
• The duty to indicate criteria for investigation/inspection of each judicial procedure whether it is in line with the Constitutional Law, laws, rule of law and country good governance. If not, the judicial authority has its duty to improve the same.

In conclusion, the purpose of this Draft Act is to make the judicial procedures more efficient, transparent and accessible by the relevant person and public which currently it is very difficult to be reached to by not only the public but also the relevant persons of such procedures.

Author: Panisa Suwanmatajarn and Onnicha Khongthon

Nowadays, the Thai Government has increased its demands on social and economic infrastructures, such as high sky trains, motorways and hospitals in order to support economic development of the country even it has too limited resource and man power in response to such demand. Therefore, the Public Private Partnership (“PPP”) then has been promoted to support expansion of such infrastructures and improvement level of public services. On 13th December 2018, the Cabinet has approved the draft Public and Private Partnership Act (“Draft Act”). The Draft Act is now in process of consideration and approval by the National Legislative Assembly prior to publishing in the Royal Gazette and then becoming the law.

The Draft Act shall be applied in place of the Private Investment in State Undertaking Act B.E. 2556 (“The Private Investment Act”). The most striking change is that the Draft Act shall specify the definition of PPP clearer than the Private Investment Act. Currently, the PPP project can be interpreted in too broad terms, which may include leasing of the Government’s properties. The Draft Act then provides that the projects which are fallen under the term of PPP and subjected to the procedures imposed by the Draft Act are as follows:

• The investment projects in which responsible government sectors have responsibility to perform so according to the law; and
• Such projects shall be in relation to the infrastructures and public amenities such as motorways, airports, communications, ports, schools and hospitals.

The Draft Act is based on the principle of “F.A.S.T.” where the F word stands for “Facilitation” which means that it aims to facilitate domestic investment by having friendly procedures and adding more incentive. The A word stands for “Alignment” implying that the PPP project in Thailand will be in align with an international standard. The S word stands for “Streamline” which shows that the Draft Act aims to make the processes shortened and more flexible including enhancement of collaboration between engaged entities. The T word stands for “Transparency” which indicates that the PPP project under the Draft Act shall be transparent and each step of the processes can be investigated thoroughly.

The PPP project under this Draft Act is divided into 2 levels, i.e. below 5 billion baht and from 5 billion baht. In case of the first level, the procedures for procuring such project shall be in accordance with a further announcement of the State Enterprise Policy Committee (“Committee”). For the second level, the project shall commence by the responsible government sector. It shall initially submit principle of that PPP project and present the same to the relevant minister for approval.

After that, the responsible government sector shall provide the principle and study and analysis report of such project to the Committee and the Cabinet for their further consideration. If both approve so, the responsible government sector shall initiate the processes for selecting its partnership accordingly. Normally, overall duration of abovementioned processes may take up to 25 months. However, such duration could be effectively shortened by the Committee on a case by case basis.

To implement this Draft Act, more than 20 ancillary regulations are required to be enacted in providing guidelines for each practical situation which at this moment are under the legislative process as well. We hope that this Draft Act would efficiently enhance the services level of infrastructures and public amenities for the benefit of public at large.

The PPP project conducted in the Eastern Special Development Zone, currently covering areas of Chachoengsao, Chonburi and Rayong Provinces, shall not be subjected to this Draft Act, but under the specific regulation, namely, the Eastern Special Development Zone Act B.E. 2561 (A.D. 2018). For more information, please visit the following link for our previous publication
https://thelegal.co.th/2018/08/06/2433/

Author: Panisa Suwanmatajarn and Jin Sukme

The Draft Announcement of the Office of the Prime Minister and Ministry of Interior prescribing Quota for Foreigners Having Residence in the Kingdom for the Year B.E. …. (“Draft Announcement”) had been proposed by the Ministry of Interior to the Cabinet and that the Cabinet approved such Draft Announcement on 13 December 2018.

According to Section 40 of the Immigration Act B.E. 2522 (“Immigration Act”), the Minister of Interior under the Cabinet’s endorsement has authority to announce the annual quota of foreigners being able to obtain the residence permit in Thailand in the Royal Gazette. The quota is in a maximum of 100 persons per country and 50 stateless persons. A period for applying the residence permit usually starting from the beginning of November to the end of December of every year.

For applying the residence permit, the foreigners must meet the following criteria:

1.  Holding a Thai non-immigrant visa for a certain period of time before submitting   the application; and
2. Being able to meet one of these categories:
   • Investment category (minimum THB 3,000,000-10,000,000 investment in Thailand);
   • Working/ business category;
   • Support a family or humanity reasons category;
   • Expert / academic category; and
   • Other categories as determined by the Thai immigration authority.

Foreigners will receive many advantages in holding the residence permit, such as residing permanently in Thailand with no requirement to apply for an extension of stay, having name on a house registration and buying a condominium without making a bank transfer from abroad. Moreover, in case that any foreigner holds the residence permit for 10 consecutive years, such foreigner can file an application requesting for a Thai citizen.

Author: Panisa Suwanmatajarn and Onnicha Khongthon

The National Legislative Assembly has recently passed a draft Land and Building Act (“Draft Act”), which is currently pending for endorsing by the King and publishing in the Royal Gazette. The Draft Act will reform present tax structure for land and building. New tax rates and their calculations under the Draft Act will become effective on 1 January 2020.

Currently, there are 2 main legislations governing the land and building tax, i.e. the Building and Land Tax Act B.E. 2475 (“Building and Land Tax Act”) and Local Maintenance Tax Act B.E. 2508 (“Local Maintenance Tax Act”). The land and/or building which is utilized for purposes other than residence will be subjected to the Building and Land Tax Act and that the owner is bound to pay 12.5% of its annual income from such utilization of land and/or building to the relevant authority. Besides, a piece of land which has no building is subjected to the Local Maintenance Tax Act. The tax rate will be in small amount but varied depending on the area where the land is located. After the Draft Act becomes enforced, the new tax rate and its calculation will be in place of those Building and Land Tax Act and Local Maintenance Tax Act.

According to the Draft Act, there are 4 main types of land and building, i.e. i. agriculture ii. residence iii. other uses and iv. vacant land and building, which the owners of land and/or building are obliged to pay the tax on such land and/or building once a year. The Draft Act provides the ceiling tax rates for utilization of land and/or building for agricultural purpose at the rate of 0.15% of its appraisal value; residence purpose at the rate of 0.3%; other uses purpose at the rate of 0.2%; and vacant land and building at the rate of 0.2%. However, for the first two years starting from 1 January 2020 of tax collection under the Draft Act, the applicable tax rates are as follows:

The land owners should study and prepare themselves for such new applicable tax rates and their calculations before those have become enforced.

Author:Panisa Suwanmatajarn and Jin Sukme

On 24 October 2018, the Cabinet approved a draft Alternative Dispute Resolution Act (“Draft Act”) which had been proposed by the Ministry of Justice. For the next stage, the Draft Act shall be submitted to the National Legislative Assembly for further consideration and approval before publishing in the Royal Gazette.

Presently, the conciliation procedures in Thailand can be conducted by only some state agencies depending on the types of dispute. For example, according to State Administrative Act B.E. 2534, the district office has its authority to reconcile any civil case in relation to heritage, land, and other disputes related to civil matters in which the disputed amount is below or equivalent to 200,000 THB. The public prosecutor, the other example, is eligible to reconcile the compoundable offences according to the Rules of Attorney General regarding Conciliation of Criminal Offences B.E. 2555. This Draft Act is for the purpose of enhancing authority of state agencies on conciliation procedures and reducing backlog on cases submitted to the Court. However, this Draft Act will not affect to the conciliation procedures which is carrying on before the Draft Act has been enforced.

The conciliation procedures under this Draft Act is the process for allowing both parties a chance to negotiate and conciliate either civil or criminal disputes peacefully without adjudication. However, the conciliation procedures in the court and execution proceedings are separated procedures from the one in this Draft Act. The types of dispute under this Draft Act which the state agencies have their authority to reconcile are (1) The civil disputes related to land’s matters, but not about land’s ownership, heritage properties, other civil cases which the dispute amount is equivalent to or not more than 5,000,000 THB and any other dispute specified in the Royal Decree issued in the future by the Cabinet. (2) The criminal disputes which are compoundable offences, petty offences according to Sections 390, 391, 392, 393, 394, 395, 397 of the Criminal Code and petty offences specified in the Royal Decree issued in the future by the Cabinet.

Aside from the state agencies, ordinary people can also reconcile the disputes if they are listed and registered with the Rights and Liberties Protection Department. The disputes which can be resolved by the ordinary people are the disputes which the dispute amount is equivalent to or not more than 200,000 THB and other disputes specified in the Royal Decree issued in the future by the Cabinet.

In case that any dispute can be settled under the provisions of this Draft Act by any state agency and that one party fails to comply with such settlement, another party has the right to request the court to enforce such settlement within 3 years after the resolution on such settlement has been issued. If the dispute has been settled by the ordinary people, before submitting such request to the court for enforceability, the approval from the Rights and Liberties Protection Department shall be obtained.

Author: Panisa Suwanmatajarn, Onnicha Khongthon and Jin Sukme

The Cabinet has approved Thailand to access to be a member of the WIPO (World Intellectual Property Organization) Copyright Treaty (“WCT”). It can be considered as an upgrade version of the Berne Convention for the Protection of Literary and Artistic Works which Thailand has become a member since 1931. The WCT main purposes are for the protection of works and the rights of authors/creators, i.e. right of distribution and making the works available to the public, right of rental and right of communication to the public, in the digital environment. In order to officially enforce the provisions of WCT after being the member, Thailand has to amend its relevant laws and regulations to be in compliance to those of the WCT.

It is found that the provisions of current Copyright Act B.E. 2537 and its amendments (“CP Act”) still do not comply with those of the WCT and that some of them are out of date and difficult to be enforced. The main issues are the duration of protection of a photographic work, exemptions to copyright infringement and technical protection measures.

The Department of Intellectual Property, who is in charge of the CP Act, had proposed the amendment to the current CP Act (“New Amendment”) to the Cabinet and that the Cabinet approved in principle on such New Amendment and passed on the same to the Council of State and relevant authorities for their consideration and comments before returning it back to the Cabinet for its final consideration and approval before submitting it to the National Assembly. Key issues of this New Amendment are as follows:

1. The period of protection of photographic work will be changed from a period of 50 years from the date of making of such photographic work to be until a lifetime of author/creator and the other 50 years after the author/creator has passed away.
2. The limitation of liability measures for an online service provider, called “Notice and Takedown” will be amended as the current one is very difficult to be enforced as its need an order from a court prior to taking the infringing works down from the online platform. Notice and Takedown according to the current CP Act creates burden to the author/creator to file a petition to the court ordering for taking down such infringing works. Under the New Amendment, the duty of author/creator will be changed to be sending a notice containing information as specified by the New Amendment in relation to the infringing works to the service provider and that the service provider must take down such infringing works from their online platform under certain conditions. Moreover, the New Amendment provides terms and conditions in order to consider whether any particular action of the service provider is considered and fallen under the limitation of liability to the copyright infringement. Those amended provisions are similar to that of the 1998 Digital Millennium Copyright Act of the US.
3. The New Amendment also amends the provisions in relation to technology protection measures to make it more enforceable and that it extends the penalty to include the persons who provide the service or offer to provide the service to evade the technology protection measures and the persons who sell, produce, offer for sale, lease, offer for lease, arrange and import any device or material or any part thereof to be considered as evading the technology protection measures and that such persons will be penalized under this New Amendment.

The authority who drafts this New Amendment is trying to lift up a standard of copyright protection and its related measures to meet the international level and comply with those of the WCT which Thailand will become the member soon. We hope that this New Amendment will reduce the copyright infringing issues and provide more protection to the copyright owner without creating more burden to the relevant parties.

Author: Panisa Suwanmatajarn and Danuvis Bunnag

A draft Digital Authentication and Personal Identification Act (“Draft Act”) was proposed by the Ministry of Finance to the Cabinet and that it was approved by the Cabinet in principle on 11 September 2018. It was also expected to be passed by the National Legislative Assembly and be effective by the mid of next year.

The Draft Act was aimed to issue in order to solve the complexity of transactions conducting with state agencies or certain private entities, such as commercial banks and financial institutions, called Relying Party or RP. Currently, the persons, called “User”, who would like to conduct any transaction with the RP has to provide a bunch of documents and present itself to the RP in order to complete the identification process set by each state agency or private entity whom the identification process is required to be conducted before commencing any transaction. Therefore, such requirement causes a huge burden to the Use and also Relying Party. Thereby, the Draft Act was proposed for solving such complexity by setting up an intermediate organization who is entitled to handle on this identification process called “Identity Provider” or IdP.

The IdP is a Thai company who obtains a license from the Ministry of Digital Economy and Society (“DE”) and that provides this identification service which the information and documents of the Users will be registered and recorded in its digital platform governed by the relevant legislation. In case that the User would like to conduct any transaction with any RP, the RP is able to request for information and documents of the User registered and recorded with the IdP for its identification process and IdP is entitled to deliver the same to the RP under certain procedures. Besides, in order to secure information and data of the User, the IdP is required to set up its encryption and confidentiality system. If the IdP breaches any of its obligations specified by the Draft Act, both civil and criminal penalties will be applied.

Presently, Thailand is trying to step up into the electronic age, called Thailand 4.0, which the electronic transactions are extensively set up. Therefore, if the authentication and identification of persons be made in a form of digital, it will create lots benefit to both User and RP and also will enhance the competitiveness of the country in term of trade and commerce and magnetize foreign investors to become investing in the country.

Author: Panisa Suwanmatajarn and Onnicha Khongthon

On September 18th, 2018, the Cabinet has approved in principle a draft bill on Sale with Consignment for agricultural or residential land (“Draft Bill”) in order to protect a consignor’s right.

The sale with consignment is a transaction whereby the owner of the property (called “consignor”) sells and transfers its ownership on its land to the buyer (called “consignee”) with the condition that the consignor has the right to redeem its ownership of property within a certain period of time.

In practice, lots of dispute have occurred under this kind of transaction especially the sale with consignment for agricultural or residential land as most of the consignors are agriculturists or farmers who are uneducated and not be able to reach to financial resources from financial institutions and also they have low bargaining power in negotiating on legitimate terms and conditions of this transaction with the consignees. Then, such consignors may end up losing their lands without any right to redeem so.
This Draft Bill has determined special measures, which are in addition to those general provisions for sale with consignment under the Civil and Commercial Code, to protect the right of agriculturists or farmers as well as other persons who own the land for agricultural or residential purpose from losing the same from this kind of transaction.
Significant provisions stated in the Draft Bill are as details below:

1. Sale with consignment for agricultural or residential land is a controlled transaction under the Consumer Protection Act B.E. 2522 (1979) (“CPA”), and the transaction must be conducted under written contract containing the provisions specified by the Draft Bill and CPA. The provisions specified in such contract must be reviewed by the public prosecutor or land officer prior to register for transferring of ownership of land at the land office. If there is any amendment or revision of such contract, the amended or revised terms and conditions must also be reviewed by the public prosecutor or the land officer before registering of the same.
2. The period for redemption of the agricultural or residential land must not be less than 1 year, but not exceed 10 years. However, the consignor has the right to redeem its land in any time from the consignee before the period for redemption has lapsed.
3. The consignee has the duty to notify in writing to the consignor at least 6 months before the period for redemption of the agricultural or residential land has lapsed in order to notify the consignor to use its right to redeem. Such notification must contain the provisions specified by the Draft Bill.
4. The redemption price shall not be more than the consignment price with the interest not more than 15 percent per annum.
5. In case the consignor redeems its land within specified period of time, but the consignee refuses, avoid or is unable to accept such performance. The consignor can deposit the price of redemption to the Subdistrict Administration Organization (called Or-Bor-Tor).

Now, the Draft Bill is under consideration of the Council of State. After that it will be returned to the Cabinet for approval and then passed to the National Assembly for its final consideration and approval before publishing in the Royal Gazette for enforceability. We hope that the provisions contained in the Draft Bill will be in a form of fairness to all relevant persons otherwise the disputes occurring at this moment are still not being solved.

Author: Panisa Suwanmatajarn and Danuvis Bunnag