Tag: Litigation

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Proposed Amendments to Anti-Corruption Legislation to Align with OECD Standards

The Thai Government is advancing amendments to the Organic Act on Prevention and Suppression of Corruption, B.E. 2561 (2018) (OAAC), with the objective of strengthening the country’s framework for combating foreign bribery and aligning it more closely with the standards of the Organization for Economic Co-operation and Development (OECD). The proposed revisions primarily target Section 176 of the OAAC, which establishes the offense of bribing foreign public officials or officials of international organizations, along with associated corporate liability provisions.

These changes form part of Thailand’s broader strategy to meet OECD expectations in preparation for potential accession to the OECD Anti-Bribery Convention and formal membership assessment by 2030.

Key Proposed Amendments to the Foreign Bribery Offense:

The revisions seek to address gaps identified in the current regime and to achieve functional equivalence with OECD Anti-Bribery Convention requirements. Principal elements include:

•  Broadening the scope of prohibited conduct: The offense will explicitly cover bribery through intermediaries, advantages conferred on third parties, and inducements intended to cause or refrain from any official action, irrespective of whether such action falls within the official’s authorized duties. Limiting language, such as the requirement of intent “to delay” official action, will be removed.

•  Clarification of definitions: Key terms including “person”, “property or other benefit”, “foreign country”, “foreign public official”, and “international organization” will be refined or expanded for greater legal certainty.

•  Introduction of new offense: Conspiracy to commit foreign bribery will be established as a standalone criminal offense.

•  Penalties: Sanctions for natural persons will be aligned in severity with those applicable to the bribery of Thai public officials. Corporate fines will be recalibrated to reflect the gravity of the offense, with consideration given to supplementary administrative measures, such as license suspension or revocation.

Enhancements to Corporate Liability Regime

Significant attention is being paid to the liability of juristic persons:

•  Associated persons: Revised definitions will clarify the categories of individuals and entities whose actions may trigger corporate liability.

•  Defense: An additional compliance defense will require not only the existence of adequate internal controls but also their effective implementation, supervision, and enforcement.

•  Independent corporate liability: The amendments will confirm that a juristic person’s liability persists independently of any prosecution or conviction of the individual perpetrator and remains unaffected by corporate restructuring, mergers, acquisitions, or changes in legal form.

•  Statutes of limitation: Appropriate limitation periods for corporate offenses will be reviewed to ensure effective enforcement.

Practical Implications for Businesses:

These amendments, once enacted, will have material consequences for Thai and foreign companies operating in or through Thailand:

•  Heightened compliance expectations: Companies will need to review and, where necessary, strengthen anti-bribery policies, due diligence procedures, and internal controls, particularly in relation to intermediaries, third-party payments, and cross-border transactions.

•  Increased enforcement risk: A clearer and broader offense, combined with robust corporate liability provisions, will facilitate more effective investigations and prosecutions, elevating reputational and financial risks associated with foreign bribery.

•  Investment and trade benefits: Alignment with OECD standards is expected to enhance international credibility, improve access to foreign investment, and support smoother cross-border business dealings. It will also position Thai companies more favorably in jurisdictions that apply strict anti-bribery due diligence requirements.

Key Takeaways:

•  The proposed amendments to the OAAC aim to bring Thailand’s foreign bribery laws into closer alignment with OECD standards, supporting potential accession to the OECD Anti-Bribery Convention.

•  Key changes include a significantly expanded foreign bribery offense, new conspiracy provisions, clarified definitions, and strengthened corporate liability rules.

•  Businesses should expect higher compliance standards, with particular focus on adequate and effectively enforced anti-bribery controls.

•  Successful implementation will enhance Thailand’s international reputation, reduce cross-border corruption risks, and support long-term economic competitiveness and foreign investment inflows.

Businesses are advised to monitor the legislative process closely and begin assessing their existing compliance programs in anticipation of these important reforms.

Author: Panisa Suwanmatajarn, Managing Partner.

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White Collar Crime: Systematic Manipulation and Fraud in the Stock Case

A coordinated group of 42 individuals executed a sophisticated scheme to manipulate trading in shares of a listed company, causing significant losses to brokerage firms and eroding confidence in Thailand’s capital market. The Civil Court adjudicated the civil aspects under case numbers black F.11/2566 and red F.121/2568, concluding that the conduct amounted to joint fraud, operation as an unlawful association (analogous to a criminal syndicate), and market manipulation contrary to the Securities and Exchange Act B.E. 2535.

The group was structured into three subgroups: planners who devised the strategy, supporters who submitted buy orders via automated trading programs (BOT), and account holders who supplied login credentials (username and password) in exchange for a share of profits, typically allocated on a 70:30 basis. To obscure their involvement and circumvent regulatory reporting thresholds, the perpetrators employed Non-Voting Depository Receipts (NVDR)—a mechanism that allows foreign investors to hold economic exposure to Thai listed shares without direct ownership or voting rights—and dispersed orders simultaneously across multiple brokerage firms.

A decisive piece of evidence was the discovery that, despite the dispersal, all buy orders originated from the same IP address, demonstrating centralized control from a single computer or location. This technical linkage, combined with traceable financial flows showing profit-sharing transfers, established the concerted nature of the enterprise.

The scheme culminated on November 10, 2022, with the placement of At-The-Open (ATO) buy orders at 2.90 baht per share for approximately 1.532 billion shares, representing a value of more than 4.4 billion baht—over ten times the average daily trading volume in the preceding 30 days. These transactions utilized cash accounts, which permit settlement two business days later (T+2). When payment became due, the perpetrators deliberately defaulted, obliging the brokerage firms, acting as intermediaries, to cover the obligations to the clearing house in accordance with Stock Exchange of Thailand rules. The resulting aggregate loss to the brokerages reached approximately 4.5 billion baht.

The Anti-Money Laundering Office froze 36 related asset items valued at approximately 5.34 billion baht (including accrued interest) to prevent dissipation during legal proceedings.

The Civil Court divided the proceedings into three main categories:

•  Fraud: The court ordered restitution or compensation to 10–11 affected brokerage firms totaling approximately 4.5 billion baht and directed the forfeiture of approximately 1.5 billion shares to the state.

•  Unlawful association: Additional restitution of around 129 million baht to the brokerage firms.

•  Market manipulation: Civil penalties of approximately 226 million baht, payable to the state.

Separate criminal prosecutions remain ongoing, with indictments issued against multiple defendants and further investigative actions continuing as of early 2026.

Key Takeaways:

•  Deliberate exploitation of automated trading systems, deferred settlement rules, NVDR structures, and multi-brokerage order dispersal can inflict severe systemic damage on securities markets.

•  Unified technical indicators—such as a common IP address—and linked financial transactions remain essential in proving conspiracy notwithstanding attempts at concealment.

•  Effective inter-agency collaboration among investigative authorities, anti-money laundering offices, and market regulators is critical for asset preservation, victim compensation, and deterrence.

•  The incident underscores the necessity of heightened surveillance over high-volume automated orders, cross-brokerage patterns, proxy account usage, and NVDR transactions to protect market integrity and sustain investor confidence.

Related Article: White-Collar Crime: A Comprehensive Analysis of Characteristics, Investigation Techniques, and the Critical Role of Computer Forensics – The Legal Co., Ltd.

Author: Panisa Suwanmatajarn, Managing Partner.

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Thai Cabinet Approves Draft Regulation Adding PAT to List of Government Agencies Eligible for Administrative Legal Execution

The Thai Cabinet has approved the draft Ministerial Regulation Prescribing Government Agencies Authorized to Request Administrative Enforcement B.E. .…, as proposed by the Ministry of Transport. A key amendment under this draft regulation is the inclusion of the Port Authority of Thailand (PAT) among the government agencies authorized to submit requests for administrative execution to legal execution officers.

This amendment is expected to strengthen PAT’s authority to enforce administrative fines and execute payment-related administrative orders in accordance with applicable laws. It is also anticipated to enhance regulatory efficiency at major ports nationwide, thereby supporting port operations and improving service standards.

Background

As PAT is established as a state enterprise, it does not fall within the scope of the Administrative Procedure Act B.E. 2539 (1996) and has therefore been unable to directly request administrative execution by legal execution officers.

Consequently, when individuals or companies fail to comply with payment obligations arising from PAT’s orders, PAT has had limited means to enforce compliance. This limitation has resulted in delays and inefficiencies in executing payment orders, with numerous cases remaining unresolved due to the lack of direct enforcement authority.

PAT’s New Administrative Execution Authority

Designating PAT as an eligible government agency under this draft regulation will enable it to apply standard administrative execution procedures and significantly improve its ability to collect outstanding debts and enforce payment-related administrative orders in a manner comparable to other government agencies.

Once the regulation enters into force, PAT will be entitled to directly request the court to appoint legal execution officers to seize or sell assets of individuals or businesses that fail to comply with administrative orders requiring payment, including through public auction procedures.

Key Impact on the Private Sector and Business Operators

  1. Stricter compliance with PAT orders: Businesses must promptly comply with PAT’s fees, fines, and administrative orders to avoid enforcement by court-appointed execution officers.
  2. Expedited dispute handling: Businesses and investors will need to respond more promptly to administrative notices, as delays may lead to administrative execution proceedings.
  3. Clearer enforcement procedures: Enforcement actions such as asset seizure and auction will follow uniform, transparent procedures, enabling businesses to better anticipate outcomes.
  4. Enhanced internal compliance requirements: Companies may need to strengthen internal controls to ensure timely payments and avoid additional costs or enforcement measures.
  5. Reduced reliance on civil litigation: Enforcement will primarily proceed through administrative execution rather than civil court proceedings, while the right to challenge orders before administrative courts remains preserved.

Conclusion

This draft regulation represents a significant development in empowering PAT to function more effectively as a regulatory authority. By enabling PAT to request legal execution of payment-related administrative orders, the government aims to enhance enforcement efficiency and ensure stronger compliance. This change is expected to materially affect how private businesses interact with PAT, making enforcement processes clearer, more expeditious, and more predictable.

Author: Panisa Suwanmatajarn, Managing Partner.

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Amendment of Trade Competition Act: Advancing Enforcement and Cross-Border Regulation

In an era of increasingly complex business operations and expanding cross-border commercial activities, concerns regarding unfair and anti-competitive practices in Thailand have grown substantially. The current Trade Competition Act B.E. 2560 (2017) (“Act“) has demonstrated limitations in addressing these contemporary challenges, as its provisions do not explicitly extend to conduct occurring outside Thailand that may materially affect the domestic market. This regulatory gap raises significant concerns regarding the Act’s effectiveness in governing transnational anti-competitive behavior and safeguarding market competition within Thailand.

To address this deficiency, the Trade Competition Commission of Thailand (“TCCT“) has released the Draft Trade Competition Act, B.E. .… (“Draft“), which is currently under public consultation from September 10-24, 2025. The Draft significantly expands the scope of competition law to encompass cross-border conduct and introduces contemporary enforcement mechanisms designed to enhance the effectiveness of Thailand’s competition regime. By harmonizing domestic legislation with international standards and providing flexibility to address evolving business practices, the Draft aims to strengthen the legal framework for promoting fair competition in Thailand.

Key Objectives

Addressing Cross-Border Activities The definition of “market” will be expanded to encompass activities that occur outside Thailand but nonetheless affect Thai consumers or the domestic economy, ensuring comprehensive coverage of anti-competitive conduct regardless of geographic origin.

Strengthening Enforcement Measures Enhanced enforcement capabilities will be implemented, particularly concerning collusive agreements that restrict competition, providing regulators with more effective tools to detect and prosecute anti-competitive behavior.

Alternative Dispute Resolution Mechanisms

  • Mediation: Businesses and affected parties may resolve disputes through negotiated agreements, providing a collaborative approach to addressing competition concerns.
  • Settlement: Companies may offer binding commitments to address potential competition issues, thereby avoiding protracted investigations while ensuring compliance with competition principles.

Stakeholders Being Implemented

The Draft will be comprehensively implemented to a range of stakeholders, particularly those considered to hold dominant market positions:

  • Business Operators Organizations will face enhanced obligations and regulatory scrutiny, especially those engaged in cross-border operations or potentially involved in collusive practices. These entities must strengthen their compliance frameworks and ensure adherence to the expanded regulatory requirements.
  • Consumers The general public will benefit from enhanced competition through greater market choices, improved product quality, and more reasonable pricing structures, ultimately supporting long-term economic and social development.
  • Regulatory Authorities Government agencies will be equipped with expanded powers and modernized tools to effectively monitor and enforce competition law across both domestic and cross-border transactions.

Implementation and Public Participation

The Draft represents a fundamental evolution in Thailand’s competition law framework. All stakeholders—including businesses, industry associations, and consumer groups—are strongly encouraged to review the proposed legislation and provide constructive feedback during the public consultation period. Active participation in this process will be instrumental in developing an effective regulatory system that balances robust enforcement with practical business considerations.

Conclusion

The Draft constitutes a significant advancement in Thailand’s approach to competition regulation, addressing contemporary challenges posed by globalized business operations. Through its expanded jurisdictional reach, enhanced enforcement mechanisms, and introduction of alternative dispute resolution processes, the Draft seeks to establish a more comprehensive and effective competition regime.

The legislation’s ultimate objective is to foster fairer markets, provide stronger protections for all stakeholders, and promote sustainable economic growth throughout Thailand. The success of this initiative will depend largely on meaningful stakeholder engagement during the consultation process and subsequent collaborative implementation efforts.

Author: Panisa Suwanmatajarn, Managing Partner.

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Federal Appeals Court Rules Trump’s IEEPA-Based Tariffs Unlawful: Presidential Authority Curtailed

On August 29, 2025, the U.S. Court of Appeals for the Federal Circuit delivered a landmark decision that significantly constrains presidential authority in trade policy. In a 7-4 decision, the court held that the International Emergency Economic Powers Act (IEEPA) does not authorize President Trump to impose sweeping tariffs on nearly all imported goods from nearly all U.S. trading partners.

The consolidated cases originated from lawsuits filed by small businesses, a coalition of Democratic-led states, and industry groups. The challengers argued that the tariffs imposed unsustainable burdens on commerce and violated the Constitution’s separation of powers. The court concurred, reasoning that while IEEPA grants the president authority to regulate certain economic transactions during declared emergencies, it does not confer the power to impose tariffs—a constitutional prerogative that remains with Congress unless explicitly delegated through statute.

Scope of the Challenged Tariffs

The ruling specifically targets tariffs invoked under IEEPA, including the “Liberation Day” tariffs announced on April 2, and tariffs placed against China, Mexico, and Canada designed to combat fentanyl trafficking. These duties, often termed “reciprocal tariffs,” were imposed on grounds ranging from trade imbalances to immigration and drug trafficking concerns, affecting imports from numerous countries including Thailand.

Notably, tariffs imposed under other statutory provisions, such as those on steel and aluminum products under Section 232 of the Trade Expansion Act, remain unaffected by this ruling.

Financial and Economic Implications

The potential fiscal impact of this decision is substantial. The U.S. government could have to refund domestic businesses billions in tariffs, should the Supreme Court uphold the federal appeals court ruling. Industry estimates suggest refunds could reach approximately $70 billion, representing a significant portion of duties collected under the challenged tariff regimes.

The administration contends that removing these tariffs would compromise national security objectives, disrupt ongoing trade negotiations, and limit executive flexibility in addressing international economic pressures. Small businesses that filed the case have indicated that “tariffs are projected to amount to an average tax increase of $1,200-$2,800 per American household in 2025.

judge signing on the papers

Current Legal Status and Timeline

The appeals court stayed its ruling until October 14, giving the Trump administration time to ask the Supreme Court to hear the case. This temporary suspension ensures continuity in tariff collection while appellate proceedings.

The Supreme Court agreed to an expedited review of the cases on September 9, with oral arguments scheduled for the first week of November 2025. This accelerated timeline reflects the case’s significant economic and constitutional implications.

Strategic Implications for International Trade

This ruling affects a complex web of tariff measures that President Trump has characterized as “reciprocal tariffs,” encompassing varying rates applied to most countries globally. The decision particularly impacts products from major trading partners including Thailand, China, Mexico, and Canada.

For exporters in affected countries, the outcome will determine whether current trade barriers to the U.S. market are eliminated or entrenched for the foreseeable future. The Supreme Court’s decision will likely establish important precedents regarding the scope of presidential emergency powers in trade policy.

Conclusion

The Federal Appeal Court’s ruling represents a significant judicial check on executive trade authority, challenging the administration’s expansive interpretation of emergency powers legislation. While the tariffs remain in effect pending Supreme Court review, the decision signals potential constraints on unilateral presidential trade actions.

For businesses and trading partners affected by these measures, monitoring the Supreme Court proceedings and preparing for multiple scenarios—including potential tariff elimination and substantial refund processes—will be essential for strategic planning through this period of legal uncertainty.

Author: Panisa Suwanmatajarn, Managing Partner.

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The Tale of a Fair Dismissal: Consent to Dismissal

In the bustling world of offshore technical work, a seasoned technician found himself at the center of a legal battle that would test the boundaries of labor law and contractual agreements. This is the story of how a seemingly straightforward dismissal turned into a landmark case, shedding light on the intricacies of employment law.

The Beginning:

In 1999, the technician, referred to as the plaintiff, was hired by the defendant company. Over the years, he rose to the position of a technical supervisor, working both onshore and offshore. His work schedule was rigorous: 28 days on duty followed by 14 days of rest, with wages paid on the 25th of each month.

The Dismissal:

In 2019, the company issued a termination letter to the plaintiff, effective 1 December 2019. The plaintiff, aware of the impending dismissal, signed the letter, acknowledging the termination and agreeing to accept the compensation offered by the company. He also waived any further claims against the company.

The Dispute:

Despite the agreement, the plaintiff later filed a lawsuit, claiming additional compensation. He argued that the offshore bonus, which he received for working at sea, should be included in the calculation of his severance pay and notice pay. The company, however, contended that the agreement was a fair settlement and that the plaintiff had no further claims.

The Court of First Instance’s Findings:

The labor court of Thailand found that the plaintiff had willingly signed the termination agreement, fully aware of his dismissal and the compensation offered. The court noted that the plaintiff, with his extensive experience and knowledge, was not coerced into signing the agreement. The company had faced financial difficulties, leading to the dismissal of over 100 employees in similar positions.

The court ruled that the offshore bonus was indeed part of the plaintiff’s wages and should be included in the severance and notice pay calculations. However, the agreement signed by the plaintiff was deemed a valid compromise, binding both parties. As a result, the plaintiff had no further claims against the company.

person wearing white dress shirt signing contract

The Appeal Court Decision:

The plaintiff appealed, arguing that the agreement was unfair and that the company had taken advantage of him. The specialized court of appeal upheld the lower court’s decision, stating that the agreement was a lawful compromise and did not violate public order or morality. The plaintiff’s appeal was dismissed.

The Supreme Court’s Decision:

The supreme court (3805/2566) was tasked with determining whether the termination agreement was enforceable regarding the severance and notice pay. The court concluded that the plaintiff had signed the agreement voluntarily, with full knowledge of his rights and the compensation offered. The agreement was a legitimate compromise, and the plaintiff was bound by its terms. Consequently, the plaintiff had no further claims for additional compensation.

Key Takeaways:

  1. Voluntary Agreements: Employees who voluntarily sign termination agreements, fully aware of their rights and the compensation offered, are generally bound by those agreements.
  2. Inclusion of Bonuses: Bonuses, such as offshore bonuses, are considered part of wages and should be included in severance and notice pay calculations.
  3. Legal Compromises: Compromise agreements between employers and employees are enforceable if they do not violate public order or morality.
  4. Financial Difficulties: Companies facing financial difficulties may lawfully reduce their workforce, provided the dismissals are not discriminatory or unfair.

This case highlights the importance of understanding one’s rights and the implications of signing legal agreements. It serves as a reminder that fair and transparent negotiations are crucial in resolving employment disputes.

Author: Panisa Suwanmatajarn, Managing Partner.

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White-Collar Crime: A Comprehensive Analysis of Characteristics, Investigation Techniques, and the Critical Role of Computer Forensics

  1. Introduction

White-collar crime, a term introduced by sociologist Edwin Sutherland in 1939, refers to non-violent crimes committed by individuals of high social status within the context of their occupation. These sophisticated offenses typically involve financial fraud, deception, or manipulation for personal or corporate gain. As technology advances, the landscape of white-collar crime continues to evolve, making computer forensics an increasingly crucial element in investigations and prosecutions.

  1. Characteristics and Common Types of White-Collar Crime

2.1 Defining Features

White-collar crimes are distinguished by several key characteristics:

  • Non-violent nature
  • Perpetrators of high social status or professional position
  • Occurrence within occupational settings
  • Financial motivation
  • Often complex and sophisticated schemes

2.2 Common Types

While white-collar crime encompasses a broad range of offenses, some of the most prevalent types include:

a) Fraud: A category encompassing various deceptive practices for financial gain.

  • Securities Fraud: Misrepresentation of information to manipulate stock markets or deceive investors.
  • Wire Fraud: Deception carried out through electronic means such as email, phone, or online platforms.
  • Mail Fraud: Fraudulent activities conducted using postal services.
  • Healthcare Fraud: False billing, unnecessary medical procedures, or prescription drug schemes.

b) Embezzlement: The misappropriation of funds entrusted to an individual, often by employees against their employers.

c) Money Laundering: The process of concealing the origins of illegally obtained money through a series of transfers or transactions.

d) Insider Trading: Trading of stocks or other securities based on material, non-public information about a company.

e) Cybercrime: Criminal activities carried out using computers or the internet, including hacking, phishing, and identity theft.

f) Tax Evasion: Illegal methods used to avoid paying taxes owed.

g) Bribery and Corruption: Offering, giving, receiving, or soliciting something of value to influence the actions of an official or other person in charge of public or legal duties.

person holding dollar bills while using a calculator
  1. Legal Elements and Prosecution

3.1 Proving White-Collar Crimes

Prosecutors must establish specific elements for each type of white-collar crime. Using fraud as an example, they typically need to demonstrate:

  • Materially false statements or omissions
  • Intent to deceive
  • Reasonable reliance on the fraudulent statements by the victim
  • Resulting damages or losses

The burden of proof in criminal cases requires establishing guilt beyond a reasonable doubt, which can be particularly challenging in complex white-collar crime cases.

3.2 Statute of Limitations

Many white-collar crimes have specific statutes of limitations, which can vary by jurisdiction and type of offense. For instance, in the United States, the statute of limitations for most federal crimes is five years, but some financial crimes may have longer periods.

  1. Penalties and Corporate Liability

4.1 Individual Penalties

Penalties for white-collar crimes can be severe, depending on the nature and scale of the offense:

  • Fines: These can range from thousands to millions of dollars.
  • Imprisonment: Sentences can vary from a few months to decades for severe cases.
  • Asset Forfeiture: Illegally obtained assets may be seized by authorities.
  • Restitution: Offenders may be required to repay victims for their losses.
  • Professional Consequences: Loss of professional licenses, disbarment, or industry bans.

4.2 Corporate Liability

In many jurisdictions, corporations can be held liable for crimes committed by their employees or agents. This concept, known as corporate criminal liability, can result in:

  • Substantial fines
  • Mandatory compliance programs
  • Deferred prosecution agreements
  • Reputational damage

To mitigate risk, many companies implement robust compliance programs. For example, Thailand’s Prevention and Suppression of Corruption Act B.E. 2561 (2018) requires corporations to implement internal controls to prevent bribery of state officials.

  1. Evidence Collection and the Critical Role of Computer Forensics

5.1 Traditional Evidence Collection

White-collar crime investigations typically involve gathering various types of evidence:

  • Financial records and statements
  • Emails and other electronic communications
  • Witness testimony
  • Expert analysis and reports
  • Surveillance footage
  • Physical documents and contracts

5.2 The Growing Importance of Computer Forensics

As white-collar crimes become increasingly technology-driven, computer forensics has emerged as a critical component of investigations. Computer forensics involves the collection, preservation, analysis, and presentation of digital evidence.

Key aspects of computer forensics in white-collar crime investigations include:

a) Data Recovery: Retrieving deleted files, emails, or other digital artifacts that may contain crucial evidence.

b) Network Analysis: Examining network traffic and logs to trace the origin and path of cyber-related crimes.

c) Mobile Device Forensics: Extracting and analyzing data from smartphones and tablets, which often contain valuable information about communications and financial transactions.

d) Cloud Forensics: Investigating data stored in cloud services, which can be challenging due to jurisdictional issues and data volatility.

e) Cryptocurrency Tracing: Following the trail of digital currency transactions, which are often used in money laundering and other financial crimes.

f) Metadata Analysis: Examining file metadata to establish timelines, authorship, and other critical details.

5.3 ACPO Guidelines for Electronic Evidence

The Association of Chief Police Officers (ACPO) in the United Kingdom has developed essential guidelines for collecting computer-based electronic evidence. These principles are widely recognized and adopted internationally:

  1. No action should change data held on a computer or storage media which may be subsequently relied upon in court.
  2. In circumstances where a person finds it necessary to access original data, that person must be competent to do so and able to give evidence explaining the relevance and implications of their actions.
  3. An audit trail or other record of all processes applied to computer-based electronic evidence should be created and preserved. An independent third party should be able to examine those processes and achieve the same result.
  4. The person in charge of the investigation has overall responsibility for ensuring that the law and these principles are adhered to.

These guidelines ensure the integrity and admissibility of electronic evidence in court proceedings, which is crucial in white-collar crime cases where digital evidence often plays a central role.

  1. Challenges in White-Collar Crime Investigations

Investigating and prosecuting white-collar crimes presents several unique challenges:

  • Complexity: Schemes can be intricate and difficult to unravel.
  • Resource Intensity: Investigations often require significant time and expertise.
  • Jurisdictional Issues: Crimes may cross state or national borders.
  • Evolving Technology: Perpetrators continually adapt to new technologies.
  • Data Volume: The sheer amount of digital data can be overwhelming.
  • Encryption: Strong encryption can hinder access to crucial evidence.
  1. White-Collar Crime in Thailand

While Thailand does not have specific legislation for white-collar crime, these cases are prosecuted under existing criminal related laws. Notable examples include:

  • Supreme Court decision No. 7317-7318/2555: A Ponzi scheme case where evidence included financial records, documents, and investment agreements.
  • Supreme Court decision No. 10741/2559: A financial statement fraud case involving falsified rental agreements, where evidence included company financial statements and fraudulent contracts.

Conclusion

White-collar crime presents ongoing challenges to law enforcement, regulators, and the legal system. The increasing sophistication of these crimes, particularly in the digital realm, underscores the critical importance of computer forensics in investigations. As technology continues to evolve, so too must the methods and tools used to detect, investigate, and prosecute white-collar crimes. By staying abreast of technological advancements and maintaining rigorous standards for evidence collection and analysis, authorities can more effectively combat these complex and damaging offenses.

Key Takeaways:

  1. Definition and Scope: White-collar crime encompasses non-violent financial offenses committed by high-status individuals in professional settings, ranging from fraud and embezzlement to cybercrime and insider trading.
  2. Legal Complexities: Prosecution of white-collar crimes requires proving specific legal elements and establishing guilt beyond reasonable doubt, often involving complex financial and technical evidence.
  3. Penalties and Liability: Consequences can be severe, including fines, imprisonment, asset forfeiture, and restitution. Corporate liability extends these risks to organizations, emphasizing the importance of robust compliance programs.
  4. Evidence Collection: Traditional methods involve gathering financial records, communications, and witness testimony, but digital evidence has become increasingly crucial.
  5. Computer Forensics: This field plays a critical role in modern white-collar crime investigations, involving data recovery, network analysis, mobile device forensics, and cryptocurrency tracing.
  6. ACPO Guidelines: The principles established by the Association of Chief Police Officers for handling electronic evidence are widely recognized and crucial for ensuring admissibility in court.
  7. Challenges: Investigations face obstacles such as complexity, resource intensity, jurisdictional issues, and rapidly evolving technology.
  8. International Dimension: As white-collar crimes often cross borders, international cooperation and standardized approaches to digital evidence are becoming increasingly important.
  9. Technological Advancements: Future trends in combating white-collar crime are likely to involve AI, machine learning, and enhanced blockchain analysis tools.
  10. Adaptability: The dynamic nature of white-collar crime necessitates continuous adaptation of investigative techniques, legal frameworks, and corporate compliance strategies.

Author: Panisa Suwanmatajarn, Managing Partner.

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The Tax Court’s Expanding Authority: Overstepping into Criminal Jurisdiction

The Cabinet has recently approved the draft Act for the Establishment of the Tax Court and the Procedures for Tax Cases (Amendment No. ..) B.E. …. (Criminal Tax Case Adjudication). The key aspect of the draft is to grant the Tax Court the authority to adjudicate criminal tax cases. The Criminal Procedure Code or the Act on the Establishment of and Procedure for District Courts will be applied mutatis mutandis to these cases. The draft also amends the notification of court schedules in tax cases, excluding criminal tax cases, and revises the criteria for appeals and petitions in tax cases. This change aims to allow parties to handle their cases in one court, reducing the burden of time and costs for litigants, the court, and judicial personnel. It also enhances the efficiency of tax law enforcement, ensuring the state’s revenue collection and providing more accurate and fair criminal tax case adjudication.

Currently, tax cases are handled by the Central Tax Court, which specializes in tax law, tax accounting, and double taxation agreements. While tax law covers both civil and criminal cases, the specialized court only has jurisdiction over civil cases according to Article 7 of the Act on the Establishment of and Procedure for Tax Court B.E. 2528 (1985). Criminal tax cases are handled by criminal courts, which are not ideally suited for these cases due to the differences in intent and nature of tax-related offenses compared to standard criminal cases. Many pieces of evidence relevant to civil cases are also applicable to criminal cases, making it inconvenient for litigants to present such evidence in separate proceedings. Additionally, penalties may vary across different criminal courts due to their differing authorities.

This proposal has been agreed upon by a cabinet resolution. The next steps will involve consideration by the House of Representatives and the Senate and then require publishing in the Gazette.

The effect of this proposed bill is expected to benefit both juristic persons and individuals, as it would allow tax cases to be addressed in a single proceeding for both civil and criminal aspects. This consolidation is anticipated to make it easier for the accused to handle their cases and for the examination of witnesses to be more convenient, given that the evidence is often similar for both civil and criminal cases. This amendment is expected to be advantageous for investors.

Key Takeaways:

  1. The Thai Cabinet has approved the proposed bill to expand the Tax Court’s authority to include criminal tax cases. The bill will now proceed to the House of Representatives and the Senate for consideration.
  2. The consolidation of civil and criminal tax cases in one court is expected to benefit both individuals and businesses, making the legal process more efficient and investor-friendly.
  3. The new law aims to streamline the legal process, reduce costs, and ensure fairer outcomes in tax-related criminal cases.

Author: Panisa Suwanmatajarn, Managing Partner.

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Incompletion of Asset Seizures for Conducting Land Appropriations

When the judgement debtor fails to comply with the whole or part of the court judgment/order pronounced against them, the Civil Procedure Code allows the judgment creditor to apply for execution procedure by filing for a writ of execution with the court. This enables the creditor to get repayment. So, the Legal Execution Department plays a crucial role in dealing with the judgment debtor’s assets during this procedure. However, there are some issues in practice during the legal execution proceeding that we would like to address in this article as follows:

1.Is it necessary to seize any buildings or structures on the land if the land’s value alone covers the debt owed?

In general, when the execution officer operates with the execution proceeding, the execution officer will consider the seizure proceeding under the Civil Procedure Code. This section determines the principle that the property of the judgement debtor shall not be seized or attached in excess of what is sufficient to secure performance to the judgement creditor. In other words, the seizure of property shall not exceed the debt value. However, there is an exception that the seizing property exceeds the debt if the property cannot be separated according to the nature of such property and there is no other judgment debtor’s assets.

In practice, if legal execution involves with seizing land and the land’s value covers the repayment of the debt to the judgment creditor. The execution officer is required to seize the entire property including land, buildings, and all immobility assets attached to it. This is to prevent future disputes over the buildings’ ownership or demolition costs if only the land was initially seized. However, the above-mentioned proceeding is not specified in the law, but it is standard practice to avoid potential future issues that may be occurred during the public auction process.

realtor suggesting mortgage for buying apartment

2. If the Land Seizure is incomplete what is the next step for the judgement creditor?

When the seizure of property is occurring due to the reasons that the judgement debtor fails to comply with the whole or part of the court judgment/order pronounced against them, or the initial seizure of property did not include all buildings or structures on the land, the judgement creditor obliges to take further action. In such cases, the judgement creditor needs to file an entirely new execution petition to seize the remaining assets attached to the land. This new petition will be combined with the original case file. After the new petition is added to the original case file, the relevant execution officer will conduct the full seizure process of assets, including all previously missed assets. When the execution process is completed, the relevant authority will then move forward to the property appraisal process.

Subsequently, the next step involves the property appraisal process, which is regulated by the Regulations of the Ministry of Justice regarding Property Appraisal, B.E. 2557 (2014). This section defines the authority and criteria for conducting the appraisal as follows:

  • If the total value of the seized property does not exceed 10 million baht, the official receiver or legal execution officer has the authority to conduct the appraisal of value of property themselves.
  • If the property value exceeds 10 million baht but does not exceed 50 million baht, the appraisal of value of property must be carried out by an appraisal officer appointed by the Director-General of the Legal Execution Department.
  • If the property value exceeds 50 million baht, the appraisal of value of property must be conducted by the appraisal committee appointed by the Director-General of the Legal Execution Department.

3. The next steps once the property is apprised?

Once the relevant authority has conducted the appraisal of value of all properties and determined the value, the seizure property will be entered into the public auction under the Civil Procedure Code.

Author: Panisa Suwanmatajarn, Managing Partner.

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Thai Supreme Court Provides Guidance on Grounds for Courts to Annul Arbitral Awards

The Thai Supreme Court, Decision No. 7150/2561, has issued an important decision clarifying the scope of arbitral authority in construction contract disputes. The case involved a contractor’s challenges to an arbitration award over incomplete work and claims for additional compensation on a large development project.

The key facts are that in August 2011, the contractor entered into a 500 million baht subcontract to construct and install a decorative water fountain feature and landscape lighting for the convention center project. As work progressed, the contractor alleged there were oral agreements to perform substantial additional work upgrading the golf course facilities.

However, in March 2013 before this additional golf work was fully rendered, the project owner terminated the subcontract citing deficiencies in the contractor’s original fountain and lighting work scope. The parties then proceeded to arbitration as required under their contract’s dispute resolution clause.

The arbitration tribunal issued an award holding the contractor liable for 588,113.82 baht in damages, representing costs the owner incurred to remedy deficient work after termination. The tribunal rejected the contractor’s claim for separate compensation for the additional golf course work, finding there was no written agreement as contractually required to expand the work scope.

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On appeal, the Supreme Court made the following key rulings:

The arbitrators properly exercised their jurisdiction over disputes concerning the admitted water fountain and lighting work scope under the subcontract’s broad arbitration clause. However, the tribunal exceeded its authority by deciding the contractor’s claim for the additional golf course work, which required a separate written agreement to incorporate it into the arbitrable subcontract per legal requirements. This portion of the award was annulled as violating Thai arbitration law’s public policy grounds.

The intellectual property rights claim over the fountain’s logo design was correctly rejected as already compensated under the design services fees in the original subcontract pricing. The fact that the contract was terminated did not void the arbitration clause, permitting the tribunal to award damages relating to deficient completed work despite the termination.

The Supreme Court therefore upheld the core findings while annulling the award only as to the unincorporated additional golf work claim.

Key Takeaway:

This Supreme Court decision provides useful guidance on grounds for Thai courts to annul arbitral awards and the need for arbitral tribunals to carefully examine whether alleged additional work was properly incorporated in writing into the underlying arbitration agreement’s scope. Arbitrators exceed their jurisdiction by deciding claims over work that was not validly added to the contracted scope through proper documentation, which can result in awards being annulled on public policy grounds under Thai arbitration law. Clear documentation of any change orders authorizing extra work is crucial for the arbitrability of claims seeking compensation for that additional scope.

Author: Panisa Suwanmatajarn, Managing Partner.

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