This article will summarize briefly the key legal issues relating to visa and work permit application in Thailand (not including those relating to Thailand Board of Investment (“BoI”)-promoted workers and some occupations relaxed by the AEC Treaty, the processes of which are much simpler and easier in practice than those set out below).

Pre-conditions to work permit application

In principle, any foreigner entering Thailand is not permitted to work regardless of their type of visa, unless they are granted a work permit.  There are three pre-conditions to work permit application in Thailand:

• The foreigner shall first be granted an initial Category “B” business visa for work (the so-called “Non-B Visa”). It is possible for the foreigner to apply for the Non-B type visa either in their home countries or in Thailand but ideally the entire process would be more straightforward if the foreigner acquires such visa in their home countries prior to their arrival in Thailand.

• The foreigner shall have, or be offered a job by, an employer in Thailand with which the work permit will be associated.

• The occupation the foreigner is seeking to perform is not prohibited by Thai laws and the foreigner himself possesses qualifications as required by Thai laws in this regard.

Prohibited work

Although work permits allow foreigners to work legally in Thailand, there are some occupations which are totally prohibited to foreigners.  This means that no work permit can be applied for, or granted to, these occupations at all.  Some samples of these prohibited occupations include tour guides, legal consultants, litigators, architects, accountants, civil engineers and etc.

Exemptions to work permit

Not all type of jobs will require a work permit if such jobs are of short-term, necessary and urgent nature.  The period of short-term work in this context is not to exceed 15 days.  Therefore, if a foreigner visits Thailand for the following purposes temporarily for a period of not exceeding 15 days, then they are not required to obtain a work permit:

(i)        administrative and educational work (e.g. conference, seminar, business invitation events, special lecture and temporary internal audit);

(ii)       technical work (e.g. technical training, movie-making and photography work);

(iii)      overseas employment services (e.g. skills testing, job recruitment);

(iv)     legal services or legal cases (e.g. arbitration);

(v)      miscellaneous work (e.g. merchandise procurement, charity work without commercial benefits); and

(vi)     other work as specified by the relevant Thai government agency.

Typical work permit application process

In principle, a work permit can only be issued once the foreigner has entered Thailand and already holds a Non-B visa as per Thai immigration laws.  Ideally, the company wishing to hire the foreigner should therefore help arrange for an initial Non-B visa to be issued by Thai embassies or consulates to the foreigner prior to entry into Thailand.  Once the visa is issued and the foreigner is present in Thailand, the foreigner can then apply for a work permit.  The work permit application together with all supporting documents should be filed with the Ministry of Labor within the validity period of the visa (typically 90 days).

Criteria for work permit issuance

The granting of work permit is typically considered and evaluated on a discretionary basis.  In such evaluation, several factors would however be taken into account.  For example, the job description should be precise and can help demonstrate to those concerned that the foreigner has the required set of skills and knowledge for the job.   The company hiring the foreigner must have the minimum amount of fully paid-up registered capital e.g. the fully registered capital of THB 2million is required for one work permit.

Compliance

To ensure compliance, immigration police and social security officers perform random inspections at workplaces at their discretion so as to verify immigration compliance.  All employers must ensure that their employees work within the scope of work specifically referred to under the relevant work permit and hold a valid visa.  Employing foreign workers without a work permit will be punished with a fine of an amount up to Baht 100,000 per person.  The foreign worker himself can be subject to a fine or banned from re-entering Thailand.

This article as provided by SBC Interlaw is for informational purposes only.  It does not constitute legal advice from this law firm nor any of its attorneys.  It was compiled from multiple sources, and while every effort has been made to verify the materials, Thailand’s immigration and employment rules can change from time to time.  Hence, prior to acting upon any of the information contained herein, please first obtain professional advice from one of our lawyers at tel: 662-631-2066.

Sources

Thaiembassy

Immigration Act of Thailand B.E. 2522 (1979)

Foreign Business Act of Thailand B.E. 2542 (1999)

Alien Working Act of Thailand B.E. 2551 (2008)

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Daily or Weekly Lease

Due to the definition of the term “hotel” under Thai law, daily or weekly rent-out of condominium units in Thailand cannot legally be done without a hotel license.  In addition, it is relatively common nowadays for the articles of association of many condominiums in Thailand to expressly impose prohibitions on the daily or weekly rent-out of units in those condominiums.  Monthly rent-out however can be made without having to obtain any hotel license because it does not fall foul of the hotel laws in Thailand.

Written Agreement

Under Thai laws, lease agreements relating to real estate (e.g. condominium units, plots of land, buildings)  must be made in writing and signed by the party against whom such lease agreements may be enforced.  It is therefore advisable to have a lease agreement prepared and signed by both parties. In addition, if the rental is intended for a period of more than 3 years, it needs to be registered with the competent land office otherwise it will be enforceable for only 3 years.

Penalty on Late Payment

It is common for a lease agreement to provide for a daily penalty in cases of non-payment of rents by the lessee.  Under Thai law, however, Thai courts have discretion to reduce the amount of penalty if the amount is unreasonably high.  Therefore, in specifying the amount of daily penalty, it is essential to come up with a reasonable figure of penalty, some samples of reasonable amounts could include the amount of rents the lessor could have expected to earn daily if they manage to rent out such place at that time.

Sale of Leased Property

Under Thai laws, the sale of leased property does not affect the continuity and validity of the lease agreement in respect of such leased property.  Therefore, if the lessor sells the condominium unit during the lease period, the lessee can continue to live and use such condominium unit and the transferee of the condominium will be bound by such lease agreement towards the lessee.

Lock-up upon Lease Expiry or Termination

Upon the expiry or termination of the rental period under the lease agreement, it is prudent to insert a clause to the effect that if, upon such expiry or termination for whatever reason, the lessee does not vacate the rented condominium, the lessor would have the right to lock up the condominium unit or change the lockset and remove the belongings of the lessee.  In the absence of this clause, if the lessor enters the condominium unit at their own will, the lessor could, based upon several Thai court precedents, be considered as committing a trespassing offense notwithstanding the fact that the condominium is legally owned by the lessor.

This article is written as a general guide only and hopefully it will be useful for those condominium owners in Thailand who wish to rent out their units.  It does not contain definitive legal advice and should not be regarded or relied upon as such.  For more information, please do not hesitate to drop us a message to know how we can assist you in this matter.  SBC Interlaw is an international law firm with significant experience in real estate in Thailand and our teams of lawyers are committed to ensure the best quality customer services for you.

Sources

CBRE

The Civil and Commercial Code of Thailand

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There have however been some cases where investments made by some foreign investors were more or less be exposed to risks associated with an act of host governments or change in country policies such that investment protection measures could play a key role in those circumstances to protect the stake of foreign investors.

Today, we will look briefly as to what investment protection measures in Thailand can be relied on by foreign investors when potentially or actually facing such risks or difficulties.

3 levels of foreign investment protection scheme

In Thailand, the investment protection schemes afforded to foreign investors can be legally categorized into three broad level as follows: (i) legislative protection provisions in the Investment Promotion Act B.E. 2520 which are legally available to those businesses promoted by the Thai Board of Investment only (ii) bilateral investment treaties between Thailand and other countries which are legally available to those investors as defined in each relevant treaty only and (iii) regional or inter-regional trade and/or investment agreements which can be very broad in terms of scope and/or enforceability.

Local law – Investment Promotion Act

The main legislation in Thailand establishing the scheme for promoting and protecting foreign investment is the Investment Promotion Act B.E. 2520.  Only those businesses granted investment promotion certificates or privileges under this law by the Thai Board of Investment can enjoy the protective measures, which generally include certain guarantees and protections in respect of the promoted businesses.  For example, there is an express prohibition on nationalizing the activity of a promoted person.  Further, an investor is guaranteed that the state will not undertake a new activity in competition with the promoted person.

Bilateral investment treaties between countries

It is typical for countries to sign bilateral agreements with a view to promoting and protecting investments made by investors in each country and setting out dispute settlement mechanism in cases of disagreements among the countries and/or investors involved.  According to UNCTAD, bilateral investment treaties in this context mean “agreements between two countries for the reciprocal encouragement, promotion and protection of investments in each other’s territories by companies based in either country”.  Some samples of these in respect of Thailand include:

• “Agreement Between The Government of The Kingdom of Thailand and The Government of The People’s Republic of China for The Promotion and Promotion of Investments” dated 12 March 1985;

• “Treaty Between The Kingdom of Thailand and The Federal Republic of Germany Concerning The Encouragement and Reciprocal Protection of Investments” dated 24 June 2002; and

• “Agreement Between The Republic of Turkey and The Kingdom of Thailand Concerning The Reciprocal Promotion and Protection of Investments” dated 24 June 2005.

Regional or inter-regional trade or investment agreements among countries

These types of agreements are more of economic cooperation arrangements among countries for the main purpose of facilitating international trade in goods and services and deal with such matters as tariffs and non-tariff barriers, custom procedures, entry of people and etc.  Investment protection may not be the main focus of these types of agreement but it could help in establishing a legal basis on which foreign investors may rely on in initiating a claim against host countries.  Some samples of these in respect of Thailand include the ASEAN Framework Agreement on the ASEAN investment Area.

SBC Interlaw is a regional law firm with a reputation for providing the highest quality and result-driven legal services to both corporate and individual clients.  To find out how our professionals can help you in foreign investment promotion or protection in Thailand, please feel free to contact us through the “Contact Us” button at www.sbcinterlaw.com or send an enquiry to our law firm in Thailand.

Sources:

UNCTAD, World Investment Report 2016

Investment Promotion Act B.E. 2520

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Scope and Nature of Non-Competition Clauses

In essence, the primary purpose of non-competition clauses is to prevent an employee from working for a competitor whether during or after the employment, from personally engaging in a business similar to that of the employer and/or from using knowledge or experience gained or learnt while under the employment against the employer while working for a competitor.   In general, these clauses can be found in an employment agreement along with some other relevant “restraint of trade” clauses such as (a) non-solicitation clause, which prevents the employee from soliciting colleagues or clients away from the employer, and (b) non-disclosure clause, which prevents the employee from disclosing any trade secret or confidential information knew or learnt from the employer for the benefit of a competitor.

Enforceability

Conceptually, it is enforceable so long as the non-competition clauses are fair and reasonable having regard to the surrounding context and circumstance and so long as the clauses are neither illegal nor against public order or good morals.  In particular, Thai laws recognize the principle of “freedom of contract”, provided that the non-competition clause in question is not illegal or against public order or good morals of the people of Thailand as per the Thai Civil and Commercial Code.  In addition to these and in order for the non-competition clause to be legally enforceable under Thai laws, it must also be fair and reasonable according to the Unfair Contract Terms Act and the Labor Protection Act of Thailand.

Reasonableness and Court Discretion

In determining whether a non-competition clause is fair and reasonable, Thai courts take into consideration a number of factors, including the time period of restriction, the geographic area of restriction and the scope of restriction imposed on the employee.  Therefore, there may be no clear answer that can be given of all non-competition clauses because the circumstances surrounding each case are different and the use of discretion of Thai courts may vary from judges to judges.

Nonetheless, based on Thai court decisions in the past on this matter, the following can be considered as a good precedent or guideline in drafting a non-competition clause in Thai employment agreements:

(i)        non-competition clauses that apply during the employment period are generally held to be fair and reasonable, while those that apply after the cessation of the employment contract can be uncertain subject to the discretion and scrutiny of Thai courts;

(ii)       non-competition clauses that impose restrictions for an indefinite period of time are typically found to be unenforceable, while those time periods of restriction between 6 months and 2 years are likely to be held to be fair and reasonable, thereby being enforceable;

(iii)      non-competition clauses that are drafted so broad that it undermines the ability of the employee to earn a living are likely to be unenforceable because the freedom of occupation is protected under the Thai Constitution, while those clause that are specific (for example, naming specific names of competitors or identifying job positions) should generally be enforceable; and

(iv)      non-competition clauses that can be proved to be legitimately justifiable with good business reasons (e.g. the employer has proprietary interest or confidential information that needs to be protected from competitors) are more likely to be enforceable.

The above is only a brief summary on non-competition clauses under Thai laws and should not be relied upon as a comprehensive guide or for legal action.  We strongly recommend readers to consult professional legal advisors for specific advice on this particular subject.  SBC Interlaw is an international law firm with significant experience across countries in South East Asia and our team of lawyers is committed to ensure the best quality customer services for you.  If you need any advice on this matter, please contact any of our SBC Interlaw Thailand lawyers or send an enquiry to our law firm in Thailand.

Unfair Contract Terms Act of Thailand

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Today, we will look at an overview of the court which has primary jurisdiction over international trade and intellectual property cases, i.e. the Intellectual Property and International Trade Court (the “IPIT Court”), and will briefly discuss what kind of business cases will need to be settled through the IPIT Court and to what extent the IPIT Court will differ from ordinary courts.

Rationale for Court Establishment

The reason behind the establishment of the IPIT Court is twofold.  First,

there has been a growing recognition that disputes involving international trade and intellectual property rights have become more complex and thus should be handled by a specialized court

rather than by typical ordinary courts.  Second, the IPIT Court is part of an attempt by the Thai Government as a member of the World Trade Organization to implement the Agreement on Trade-Related Aspects of Intellectual Property Rights so as to provide adequate and effective legal mechanisms to protect intellectual property and to promote foreign investment.

Disputes Covered by Court

The IPIT Court has nationwide jurisdiction to adjudicate civil and criminal cases on intellectual property and civil cases on international trades.  Some sample cases could include disputes under software licensing agreements, infringements of trademarks or copyrights, disputes arising from cross-border sale and purchase agreements and cases regarding international letters of credit and trust receipts.  In the event of disputes as to which cases should fall under the jurisdiction of the IPIT Court or the jurisdiction of any other courts, such disputes will be referred to the President of the Thai Supreme Court for final and conclusive determination.

Judges

Given that the IPIT Court is a specialized court, judges appointed to the IPIT Court are therefore different slightly from those of ordinary criminal and civil courts.  In particular, at least two career judges and one associate judge must be present to form a quorum for adjudication, and any judgment or order requires a majority vote.

These judges generally possess competent knowledge or expertise in legal matters related to intellectual property or international trade.

Legal Proceedings

The legal proceedings in the IPIT Court usually take substantially less time than typical ordinary Thai courts and are generally continuous without adjournment until the hearing is finished.  At the conclusion of the hearing, the IPIT Court would issue a judgment or order.  The proceedings which differ from those of ordinary courts include such things as pre-trial conferencing, submission of documents in the English language, use of EDI (Electronic Data Interchange) communications through the IPIT Court’s system for the exchange and lodging of petitions or answers.  An appeal against any judgment or order of the IPIT Court must be submitted to the Thai Supreme Court.

This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice.  SBC Interlaw is a regional law firm with a reputation for providing the highest quality and result-driven legal services to both corporate and individual clients.  To find out how our professionals can help you in this matter in Thailand, please feel free to contact us through the “Contact Us” button at www.sbcinterlaw.com or send an enquiry to our law firm in Thailand.

The Act for Establishment of, and Procedure for, Intellectual Property and International Trade Court B.E. 2539 (1996)

Study on Specialized Intellectual Property Courts, a report by International Intellectual Property Institute 25 January 2012

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Hotel License

Broadly speaking, if you plan to open up a hotel which has more than 4 guest rooms and can accommodate more than 20 guests, no matter how you call such place a guest house, bed & breakfast or hostel, then you will need to obtain a hotel license.  If you only have 4 guest rooms in the hotel (though it can accommodate up to 25 guests), then no hotel license is required because the number of guest rooms does not exceed 4 rooms.  Each hotel is required to have a manager who must possess certain qualifications as required by Thai laws and regulations.

Foreigners Prohibited

Under the Foreign Business Act of Thailand, foreigners are prohibited from owning or running a hotel in Thailand.  Thus, if you are a foreigner, you are not allowed to own or operate it, except if you are exempted by investing through Board of Investment (BoI) promotion or otherwise permitted under bilateral treaties e.g. the Treaty of Amity between the US and Thailand.  Nevertheless, if you are a foreigner who is serious about owning and operating a hotel here and are not otherwise exempted, you may try consulting a Thai lawyer or legal counsel who may be able to advise you on how your hotel investment and operation can be legally structured or undertaken in Thailand.

Building and Use Permits

To build a hotel, you need to follow the rules and regulations applicable to construction under the Building Control Act.  These regulations cover such things as how many meters the hotel need to be set back from the surrounding roads.  In Bangkok, if the hotel has no more than 4 floor levels, you can apply for the building permit at the district office where the hotel is to be located.  If however the hotel has more than 4 floor levels, then the application for building permit needs to be submitted to the Building Control Division of the Department of Public Works and Town Planning.  When the construction is substantially finished and the hotel building is inspected to the satisfaction of the competent officer, another permit called “Building Use Permit” will then be issued such that the hotel building can then be ready physically for use.

Environmental Matters

In Thailand, an environmental impact assessment (“EIA”) or an initial environmental examination (“IEE”) needs to be conducted prior to a hotel license application if the hotel in question meets certain criteria.  For example, if the hotel consists of 80 rooms or more, an EIA needs to be conducted for this hotel, regardless of where it is located in Thailand.  Hotels with rooms less than 80 rooms will be required to go through an IEE process if they are situated in certain specified areas, some samples of which are Pattaya, Phuket and Koh Samui.

Day-to-Day Hotel Operation

For daily operation of hotels, certain permits are also required, for example:

(i)            restaurant – if the restaurant space in the hotel exceeds 200 square meters;

(ii)           liquor – if imported or domestically produced liquor is sold;

(iii)          entertainment – if such services as massage, steaming or dancing are made available.

VAT Registration

If the hotel is doing well and generates an annual income of Baht 1.8 million or more, then you will be required to register for VAT so as to collect VAT from guests and pay it to the competent revenue office.  Otherwise, the hotel owner will be liable for a fine or jail sentence.  In addition, if VAT is not properly paid when due, the hotel owner will be subject to an additional fine of twice the amount due.

The foregoing is a brief overview of major licenses or permits required for hotel business in Thailand.  It however has been prepared for general information purposes only and is not intended to be relied upon as professional advice.  SBC Interlaw is a regional law firm with a reputation for providing the highest quality and result-driven legal services to both corporate and individual clients.  To find out how our professionals can help you in this matter in Thailand, please feel free to contact us through the “Contact Us” button at www.sbcinterlaw.com or send an enquiry to our law firm in Thailand.

The Bank of Thailand www2.bot.or.th/statistics

Hotel Act of Thailand B.E. 2547

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In this scenario, it is prudent to put in place a joint venture or shareholder agreement in writing so as to clearly spell out the rights and obligations of each investor.  In the absence of such written agreement, the foreign investors would need to rely upon Thai company laws for the protection of their minority interest.

This quick guide outlines statutory legal rights and protections generally afforded to minority shareholders under Thai laws as far as their minority interest in Thai companies is concerned.

Broadly speaking, the statutory minority protection rights for shareholders in private companies are different from those in public companies, certain key rights can be highlighted as follows:

Private Companies

For any shareholder regardless of the amount of shares held by them, they can:

• file a motion with the Thai court to cancel a resolution of the shareholders passed in breach of laws or the articles of association of the company;
• bring an action against the directors on behalf of the company for damage caused by the directors to the company, if the company refuses to do so;
• demand an inspection of the minutes of all resolutions of meetings of the shareholders and the board of directors.

For one or more shareholder(s) holding at least 20% of the total issued shares, the protections include:

• to request the company to convene an extraordinary general meeting to discuss certain agenda;
• to request the Minister of Commerce to appoint inspectors to examine and report on the affairs of the company.

For one or more shareholder(s) holding more than 25% of the total issued shares, they can veto a special resolution of the shareholders for matters requiring approval by a special resolution, which included the following key business issues:

• an increase or decrease of the registered capital of the company;
• an amendment to the articles of association or the memorandum of association;
• dissolution of the company;
• amalgamation with another company.

Public Companies

For 5 shareholders at least, they can request the court to cancel a shareholders’ resolution passed in breach of the articles of association or the Thai public company laws.

For 25 shareholders holding at least 10% of the total issued shares, they can require the board of directors to convene a shareholders’ extraordinary meeting.

For one or more shareholder(s) holding no less than 5% of the total issued shares, the rights to protections include:

• to request the company to take actions against any director who cause damage to the company and (if the company fails to do so) to claim for compensation on behalf of the company and to request the court to remove such director from the company;
• to file a motion with the Thai court to order the director to refrain from taking any action which is likely to cause damage to the company and/or to order the removal of such director from the company.

For one or more shareholder (s) holding at least 20% of the total issued shares, the protections include:

• the right to file a motion with the Thai court to cancel a shareholders’ resolution passed in breach of the articles of association or the Thai public company laws;
• the right to require the board of directors to convene a shareholders’ extraordinary meeting;
• the right to request the Company Registrar (Department of Business Development (DBD)) or the Ministry of Commerce to appoint an inspector to examine the operations and financial conditions of the company and the conduct of the board of directors.

For one or more shareholder(s) holding more than 25% of the total issued shares, they can veto a special resolution of the shareholders for matters requiring approval by a special resolution, which included the following key business issues:

• an increase or decrease of the registered capital of the company;
• an amendment to the articles of association or the memorandum of association;
• dissolution of the company;
• amalgamation with another company;
• the sale or transfer of the entire or important parts of the business;
• the purchase or acceptance of transfer of the business of another company.

This article is written as a general guide only and hopefully it will be useful for those minority shareholders in Thai companies.  Thus, it does not contain definitive legal advice and should not be regarded or relied upon as such.

Up-to-date specific advice should be sought in relation to the above matter so that you will be well informed of your legal rights for protection if things go wrong or major shareholders behave in a manner that could adversely affect your interest.

For more information, please do not hesitate to drop us a message to know how we can assist you in this matter.  SBC Interlaw is an international law firm with significant experience in foreign investments in Thailand and our teams of lawyers are committed to ensure the best quality customer services for you.

Office of The Council of State

Department of Business Development, Thai Ministry of Commerce

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Indeed, the protection of copyrights can be good for the Thai IT industry and the competitiveness of Thailand as a whole because it will essentially help stimulate new ideas, protect the creator against infringement and guarantee commercial exploitation for the benefit of the creator, through licensing or franchising.

This article is intended to provide a snapshot on copyrights-related matters which businessmen should know in doing business in Thailand.

        1. Copyrightable works

Generally, there are 9 categories of works that are copyrightable, i.e. literary works, dramatic works, artistic works, musical works, audiovisual works, cinematographic works, sound recordings, sound and video broadcasting and other works in the literary, scientific or artistic domain.  Thus, certain relevant forms of works in the business world that can be subject to copyrights protection include computer programs, website contents, info-graphics, videos, magazines, newspapers, pamphlets, commercial advertisements, TV contents, songs, movies, building designs and interior or exterior decoration designs, all of these must be original and not be copied from others though.

        2. Copyrighted works created or published overseas

Thai laws recognize and automatically protect copyrighted works created or recorded in foreign countries without any further formality, provided that the creators of such works are nationals or residents or first published such works in a member country of the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”) or the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”).  Some examples of the member countries of the Berne Convention and TRIPs Agreement include the USA, UK, Japan, Germany, Singapore and Thailand.

        3. Necessity of recordation and registration

There is no system of registration of copyrights in Thailand.  Copyrighted works however can be recorded at the Copyright Office under the Department of Intellectual Property, Thai Ministry of Commerce (http://cpronline.ipthailand.go.th/dipcpr/).  The recordation is neither a legal must nor a pre-condition to protection in Thailand.

In practice, however the recordation is legally recommended because the record will be a key proof of evidence in respect of the creator’s or author’s ownership as well as the date of creation or publication in the event of dispute, enforcement or litigation.

 

        4. Copyrighted works created in the course of employment

In general, if a company employs someone as an employee and this person creates some copyrighted works in the course of employment (e.g. writing website contents for the company’s website or producing commercial advertisements for a client of the company), then the rights to such copyrighted works will legally belong to the employee, i.e. the creator of such works, except where the employer and employee agree otherwise.

        5.Copyrighted works created in the course of hire of work

If a company engages someone or another company to produce or create some works for the company as part of, for example, a supplier, contractor or hire of work relationship (as opposed to employment), then the rights to such copyrighted works will legally belong to the company, i.e. the person who pays for the production or creation of such works, except where the company and the supplier or contractor, as the case may be, agree otherwise.

        6. Exemptions

The use of copyrighted works owned by other person can be done without having to seek any approval or consent from such person if the use falls within certain exemptions.

Such exemptions include the use for research or work study for a non-profit purpose, news reporting through mass media with acknowledgement of owner of copyright, reproduction for judicial or administrative proceedings as well as reproduction for teaching at a non-profit institution.

        7. Licensing of copyrights

From the standpoint of the owner of copyrighted work, the most common and straightforward method to allow others to legally and legitimately use their copyrighted work is by way of copyright licensing.  The licensing allows the licensor (i.e. the copyright owner) to give permission to a licensee to use, reproduce or otherwise commercialize the copyrighted work for a certain definite or indefinite period of time in an area or country designated by the licensor, the full details of which are recommended to be clearly spelt out in a licensing agreement.

        8. Length of protection

Broadly speaking, the protection can generally last at least 50 years.  The period can vary depending upon such factors as whether the copyright owner is an individual or juristic entity and whether the work was previously published.  For example, if an employee creates a commercial advertisement in the course of employment, the protection shall last 50 years from the first day it was created.  However, if such commercial advertisement is published during this period, the protection will subsist for 50 years from the first day it was published.

        9. Infringement of copyrighted works on internet

In a digital era where things can be online viewed, copied and forwarded quickly with ease, it is easy for our copyrighted works to be copied or cut and pasted by others or even by competitors.  If this is the case, then we can have such infringing materials removed by sending an infringement notice to the internet service provider publishing such infringing materials, as well as to popular search engines such as Google requesting the removal of the pages containing the infringing materials from the search results.  In addition, we may also lodge a motion for an injunction or file a lawsuit for damages and criminal prosecution of the infringing person in Thai courts if the infringement was committed in Thailand.

      10. Consequence of violation and court process

In general, an infringement of copyrights in Thailand is a civil offence and, if such infringement was committed for commercial intents or benefits, subject also to a criminal offence by way of imprisonment.  The civil and criminal penalties can vary depending upon the type of infringement.  Disputes over intellectual property rights in Thailand are generally heard in the Court of Intellectual Property and International Trade.

Protecting copyrights and contesting copyright infringement in Thailand can be a complex process.  If someone makes illegal or improper use of your copyrighted works, or you want to improve the protection of your works in general, please contact any of our SBC Interlaw lawyers or send an enquiry to our law firm in Thailand.  Our lawyers can also help you with questions about plagiarism or imitation of copyrighted works and are definitely committed to ensure the best quality customer services for you in this matter.

International Property 

Cpronline

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What is arbitration?

Arbitration is one of the dispute resolution methods (among others, e.g. litigation and mediation) in which disputes are resolved privately in accordance with a selected set of institutional rules (e.g. ICC Rules of Arbitration of the International Chamber of Commerce, Thai Arbitration Rules of the Thai Arbitration Institute, Office of the Judiciary) and by an impartial expert or a panel of experts either in laws or in specialized areas relating to such dispute.  These experts are nominated, chosen or agreed upon by each or every party to such dispute and commonly called “arbitrators”.  In effect, these arbitrator are placed in the same position as a judge in litigation and exercise quasi-judicial capacity.  Arbitration is a consensual process and can be used only if arbitration is expressly spelt out as a means of dispute resolution in a contract by all parties to such contract.

These experts are nominated, chosen or agreed upon by each or every party to such dispute and commonly called “arbitrators”.

In effect, these arbitrator are placed in the same position as a judge in litigation and exercise quasi-judicial capacity.  Arbitration is a consensual process and can be used only if arbitration is expressly spelt out as a means of dispute resolution in a contract by all parties to such contract.

Advantages of Arbitration over Litigation

In general, both arbitration and litigation have pros and cons.  The following are the advantageous factors that influence many contracting parties to prefer “arbitration” to Thai litigation:

(a)          Neutrality

Quite often, foreign contracting parties to an international contract may not be willing to litigate in the national courts of the other party, e.g. Thai courts.

Arbitration can offer neutrality both in terms of the place of dispute resolution and the nationality of the arbitrators because the parties to arbitration are not restricted by Thai laws from selecting an arbitrator of their own nationality.

Choosing the English language as a means of communication in the arbitration proceeding and adopting a neutral country as a venue of dispute resolution.

(b)          Flexibility

Arbitration offers the contracting parties much more procedural flexibility than litigation.   Most arbitration rules preserve the ability of the parties and arbitrators to formulate the procedure as well as to set the timeline best suited to the relevant dispute.  Further, the parties are permitted to choose when hearings are to be held, what degree of disclosure can be afforded and what type of documents can be presented for the purpose of hearing or resolving the dispute.

(c)           Speed

In Thai civil litigation proceedings, there are certain procedural loopholes where the parties can resort to as a delaying tactic.  In addition, Thai judges are typically overwhelmed with cases on hand.  Therefore, arbitration can generally be speedier than litigation because the procedural and timetable are more within the control of the parties and the arbitrators.  This is different from the court proceedings in which the pre-determined procedure and formality need to be strictly followed in accordance with the Thai Civil Procedural Code.

(d)          Better Understanding of Technical Skills

In litigation, the parties cannot elect the judge of their own and if the dispute in question is complex or multi-jurisdictional, it may not be easy for the judge to understand the issues involved and the surrounding circumstances in which such dispute is related or evolves.   On the other hand, the contracting parties in arbitration have freedom to select either their own respective arbitrators (in the case of, for example, a panel of three arbitrators) or to discuss, determine and mutually agree upon certain skill, professional qualification or nationality required of the sole arbitrator (in the case of the sole arbitrator).

Notwithstanding the foregoing, arbitration may not be the best choice of dispute resolution for every party in every instance as it might have drawbacks depending upon a party’s particular circumstances and the transaction at issue.  It is therefore necessary to make a considered decision in each case.  We therefore recommend readers to consult professional legal advisors for your specific case in question.  SBC Interlaw is an international law firm with significant experience in dispute resolution across countries in South East Asia and our team of lawyers is qualified and well equipped to assist you in this matter. If you need any advice on dispute resolution, please contact any of our SBC Interlaw Thailand lawyers or send an enquiry to our law firm in Thailand.

Sources:

IAA International Arbitration Asia

Latham & Watkins

The post Advantages of Arbitration over Litigation in Thailand appeared first on SBC Interlaw.

Understanding what types of directors’ liability of Thai companies can be subject to is therefore essential for directors or executives working in Thailand.

Director as Agent

In general, a director is not the company’s owner because the owners are the shareholders.  The director is merely the company’s agent who acts for and on behalf of the company.  The general implications that follow from this principal-agency relationship are that:

• the company shall be liable for any actions of the director if such actions are within the scope of their powers and duties (intra vires acts);

• if the director acts beyond such scope of powers and duties (ultra vires acts) and the company does not ratify such actions, the director shall be personally liable to third parties for such actions; and

• if the director wilfully or negligently breaches or omits any duty imposed by laws causing damage to the company, the director shall generally be personally liable to the company.

Civil Liability

Under Thai laws, there is no “fiduciary duty” concept as it is commonly understood in common law countries (e.g. England) where a director stands in a fiduciary relationship with his or her company.  However, Thailand as a civil law country implicitly recognises certain features of fiduciary duties in the Thai corporate and principal-agency legislations and such duties have been observed and extensively applied by Thai courts.  The core of these duties is that the director of the company (whether private or public) must act diligently, with due care and avoid conflicts of interest with the company as well as to ensure that the company complies with the laws of governance or corporate conduct.

Any breach of these duties could result in civil directors’ liability personally.

The civil proceedings can be brought against the director by the company itself, shareholders, creditors, customers or regulatory bodies, depending upon such factors as who is the injured party and what the nature of alleged breach is.  It is not an unusual practice in Thailand for third parties to sue the directors (as additional defendants) at the same time as suing the company.

Criminal Liability

A company director can also be held criminally liable for his actions under a variety of Thai legislations which expressly provide for a director’s personal criminal liability for acts or omissions on behalf of the company.  The scope of these legislations is sometimes broad and covers such matters as banking, insurance, corporate, labor, and tax.  The criminal penalties can be imprisonment, fines or both.  For example, Thai corporate laws on public and private companies impose a criminal liability for directors if they make any false statement or fail to keep a register of shareholders.  The other example of criminal liability for directors is the Alien Employment Act which provides that the director of a company which employs a foreigner without work permits can be subject to imprisonment and/or fines.

This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice.  SBC Interlaw is a regional law firm with a reputation for providing the highest quality and result-driven legal services to both corporate and individual clients.  To find out how our professionals can help you in this matter in Thailand, please feel free to contact us through the “Contact Us” button at www.sbcinterlaw.com or send an enquiry to our law firm in Thailand.

Sources:

Harvard

Krisdika

The post Directors’ liability in Thailand appeared first on SBC Interlaw.