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Category: Litigation

Breach of Contract in Thailand

Breach of Contract is a common legal issue that can pose significant risks for businesses and individuals. Understanding the legal framework, potential consequences, and available remedies is crucial.

There are various methods of resolving a breach of contract dispute in Thailand, including mediation, arbitration, and litigation. With proper guidance from qualified legal professionals, you can transform a discordant solo into a harmonious resolution, preserving future business relationships and upholding fairness in commercial transactions.

Non-Performance

With bustling markets and serene temples, Thailand thrives on intricate agreements and unspoken compacts. However, when contracts are breached, the once-harmonious melody of trade can turn into a jarring cacophony. Understanding the legal landscape empowers you to navigate these discordant notes and seek appropriate remedies.

Breaches of contract can take several forms, including non-performance, defective performance, delay, and frustration. While it is generally not possible to be held liable for breach of contract and another area of law at the same time, in some circumstances concurrent liability may exist.

The most common legal remedy for breach of contract in Thailand is damages, a monetary award intended to compensate the innocent party for financial losses. Other available remedies include specific performance (a court order requiring the breaching party to fulfill its contractual obligations as originally agreed upon), and cancellation or rescission, which restores both parties to their pre-contractual positions. Some contracts also contain stipulated or liquidated damages, a pre-agreed sum that is intended to reduce the need for lengthy litigation over actual losses.

Defective Performance

The vibrant tapestry of commerce in Thailand relies on intricate agreements and negotiated compacts. But these arrangements can be impacted by misunderstandings and disagreements, potentially leading to contract breach disputes. In such cases, prompt action and expert guidance can transform a discordant melody into a harmonious resolution, paving the way for future success in this commercial climate.

The legal system in Thailand outlines clear implications and established remedies to address resulting disputes. These include damages, specific performance, and rescission. Damages are monetary awards designed to compensate the non-breaching party for financial losses suffered as a result of the breach. Specific performance involves a court order requiring the breaching party to fulfil contractual obligations as originally agreed upon.

Rescission allows the non-breaching party to cancel or void the contract, potentially requiring the return of any exchanged goods or services. In addition, the Thai courts have set out a number of procedural rules that parties must follow when litigating in their jurisdiction.

Delay

Contracts and business transactions are a complex tapestry of intricate agreements and unspoken compacts. When these arrangements are broken, it can have devastating financial and reputational repercussions. That is why it’s important to be aware of the nuances of contracts, types of breaches, and available remedies.

In Thailand, the legal remedy of damages involves monetary compensation intended to compensate the non-breaching party for actual financial losses suffered as a result of the breach. In some cases, the non-breaching party may also choose to rescind or cancel the contract, which effectively releases both parties of their obligations.

However, it’s important to understand that concurrent liability may arise in situations where a breach of contract is both a violation of an agreement and a violation of another area of law. For example, it is not uncommon for construction disputes to involve both a breach of contract and a violation of the law related to the protection of confidential information.

Frustration

When a breach of contract occurs in Thailand, the non-breaching party may seek legal remedies under the terms of the contract or Thai law. The most common legal remedy for breach of contract in Thailand is damages, which involves monetary compensation for losses caused by the breach.

Other legal remedies include specific performance, a court order requiring the breaching party to fulfil contractual obligations as stipulated in the contract, and termination of the contract. Some contracts also include arbitration clauses, which offer alternative Thailand dispute resolution methods that are less formal than litigation.

Understanding the legal framework surrounding contracts, breaches, and the available remedies is crucial for businesses and individuals involved in contractual relationships. This will help them prevent disputes and ensure they have the right resources to resolve any issues that may arise. Emphasis should be placed on clear and comprehensive contracts, adherence to obligations, and seeking legal counsel when faced with a breach of contract in Thailand.

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Personal Injury Claims in Thailand

Pursuing a personal injury claim in Thailand necessitates a thorough understanding of Thai law, careful documentation of the incident, and prompt legal representation from a specialized Thailand injury attorney. Damage awards, while more restrained than in common law countries, are nonetheless substantial.

Under the Thai Civil and Commercial Code, anyone who wilfully or negligently unlawfully injures another person’s life, body, health, liberty, property, and/or rights is bound to make compensation. Compensation generally includes actual losses, including expenses and damages for lost earnings (present and future).

Statute of Limitations

The law in Thailand dictates that a person who commits a wrongful act that causes another to sustain an injury is bound to compensate the victim. Compensation amounts vary and are determined by the courts. They may include material damages for broken property, restitution to deprivated properties, moral damage arising from inconvenience or libel, and exemplary damages in cases of severe tort.

The Thai courts strive to place the injured party in a position that is similar to before the accident occurred. Therefore, the amount of compensation awarded tends to be less generous than in common law countries.

As a result, prompt engagement with a proficient personal injury lawyer is essential to ensure that your case is filed within the statutory time frame. Our attorneys are dedicated to providing top-tier legal services, ensuring that through strategic litigation and careful negotiation you receive the maximum compensation possible for your injuries. This is especially important as the statute of limitations is typically only one year from the date of the incident.

Damages

Under the Thai Civil and Commercial Code, a person who commits a tort – or wrongful act – must compensate the injured party. This can include expenses incurred by medical treatment, repair costs, and lost wages (present and future).

Unlike the Western convention of awarding compensation for intangible losses like loss of consortium, pain and suffering and disfigurement, Thai courts only award actual damages. This means that a court must carefully evaluate each expense and prove them with meticulous documentation, including medical bills, repair receipts, proof of income loss and more. Moreover, moral damages and exemplary damages are virtually unknown in Thailand.

For foreigners, who can file a personal injury claim in Thailand by signing a power of attorney for their lawyer to represent them, they will usually be required to appear in the court on at least one occasion. This is necessary to prove their case and testify. Otherwise, their case could be dismissed or reduced in value due to lack of evidence.

Representation in Court

Personal injury claims in Thailand involve a complex legal process that necessitates a thorough comprehension of the local law and prompt and professional representation. Under Thai law, anyone who wilfully or negligently injures another’s body, health, life, liberty, property or rights is bound to compensate the injured party for damages. Compensation generally seeks to put victims back into the position they were in before the accident or injury, including paying medical bills and compensating for lost work – present and future.

Compensation also includes intangible factors such as pain and suffering, although awards for these are often more restrained than in other common law countries. While pursuing fair compensation for your injuries is crucial, it should not be the sole focus of your case. A reputable injury lawyer will guide you through the process and help you define the extent of your damages.

Gathering Evidence

If you have suffered injuries as the result of another party’s negligent actions, seeking legal guidance is crucial. A qualified attorney can help you understand the Thai legal framework, gather evidence and pursue avenues for compensation. They can also negotiate with insurance companies and represent you in court.

In Thailand, the Civil and Commercial Code lays out basic concepts related to culpability, negligence and compensating remedies for injuries caused by the fault of others. The courts decide the amount of damages based on the gravity of the wrongful act done. This can include restitution for damaged properties, compensation for medical expenses and past and future loss of income due to partial or full disability to work.

Generally, courts award compensation for tangible costs (medical expenses, repair cost of broken property) and intangible costs (pain, suffering and disfigurement). The court may reserve the right to revise the judgment for a period not to exceed two years. Foreigners can file a personal injury claim by giving power of attorney to a lawyer in Thailand but will need to attend the first hearing in person.

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The Importance of Medical Malpractice in Thailand

As Thailand develops into a medical tourism hub, more and more patients are seeking procedures there. Despite the overwhelming majority of medical tourists returning home satisfied, there are some who experience complications from their treatments.

In these instances, it’s crucial for patients to take the proper precautions and seek out reputable clinics. This includes verifying a doctor’s license and exploring their history of malpractice complaints.

1. Injuries and Deaths

As the medical tourism industry continues to grow in Thailand, doctors and hospitals are increasingly working to ensure that their patients receive the best care. But even in a healthcare system that strives for excellence and tries to maintain high standards, mistakes still occur.

Misdiagnosis, surgical errors, medication mistakes, and failure to obtain informed consent are all examples of medical malpractice. The consequences can be devastating.

However, achieving adequate and equitable compensation requires a thorough medical evaluation, expert physician review, and careful consideration of the evidence. As a result, damages are typically limited to quantifiable losses and may be lower than in some Western countries.

As a result, it is essential that victims take the proper steps to protect their rights and seek justice. These include seeking medical attention from another hospital, keeping detailed records of their interactions with doctors, and retaining qualified legal counsel to assess the merits of a case and provide advice.

2. Damages

While medical tourism is a major part of the Thai economy, and most medical tourists return home satisfied with their treatment, there are some who do not and seek legal redress for the harm they have suffered. This is why gaining a clear understanding of how medical malpractice claims are handled in Thailand is vital.

Malpractice by healthcare professionals may result in physical and emotional damages for patients. While it is often difficult to quantify these losses, there are certain steps that can be taken to ensure a successful claim.

Patients must SEEK MEDICAL ATTENTION if necessary, keep detailed records of their treatment and interactions with doctors and hospitals, and engage qualified legal counsel. A lawyer specializing in malpractice claims can help individuals navigate the complexities of Thai law and increase the likelihood of receiving financial compensation. Damages awarded in cases of medical malpractice in Thailand tend to be based on verifiable, quantifiable losses, as opposed to intangibles like pain and suffering.

3. Punishment

As the number of medical tourists visiting Thailand continues to rise, patients are increasingly seeking legal redress when they suffer harm due to malpractice. In order to successfully navigate this process, it’s important that victims GATHER AND DOCUMENT all pertinent information, including medical records, diagnostic reports, and communications with their doctors, and CONSULT a lawyer specializing in medical malpractice claims.

Medical negligence cases in Thailand are decided by civil law, and claimants may be awarded compensation for any verifiable losses they incur as a result of the alleged malpractice. However, award amounts for intangibles such as pain and suffering or disfigurement tend to be lower than those seen in certain Western countries.

In a recent case, a Nakhon Si Thammarat court convicted a doctor of three years in prison without probation for the 2002 death of a patient who suffered from cardiac arrest during anesthesia after an undiagnosed appendicitis operation. This is the first time that a physician in Thailand has been jailed for medical negligence.

4. Legal System

Medical tourists who become victims of Thailand’s medical malpractice face a complicated legal system. Claims are filed as civil complaints with the Thai Medical Council, which keeps statistics on doctor misconduct and investigates allegations of malpractice. However, these investigations often result in no further action or a recommendation that police investigate. Damage awards for intangible losses, such as pain and suffering, are also lower than those in western countries.

The healthcare and legal systems in Thailand are working together to maintain high standards of patient care and uphold accountability. This is difficult as many medical professionals lack proper training and may work under pressure to complete procedures quickly. In addition, foreign patients face limited options for compensation following their surgeries, since insurance plans rarely cover overseas repair expenses. Nevertheless, the legal system has been improving as medical tourism in Thailand grows.

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Dispute Resolution in Thailand

Dispute Resolution is the process of solving disputes outside the classical judicial system. It encompasses arbitration, conciliation and other methods of alternative dispute resolution.

The practice handles a broad spectrum of dispute resolution proceedings, including complex commercial cases. Co-practice head Chinnawat Thongpakdee possesses deep knowledge of corporate governance, white-collar crime and bankruptcy matters.

Arbitration

Arbitration is one of the Thailand dispute resolution options available in Thailand. It can be used to settle a range of disputes, including commercial and intellectual property disputes. It can be a quicker and less costly alternative to court proceedings.

However, there are several limitations to arbitration as a dispute resolution option in Thailand. For example, it cannot be used for criminal disputes and is only applicable to civil cases. In addition, the process can be unpredictable and difficult to control.

Another limitation is that tribunals are not permitted to specify in their awards the parties’ attorney fees and expenses. This restriction is consistent with the provisions of the TAI Rules and the law.

Despite these limitations, arbitration remains an important dispute resolution option in Thailand. A coherent legislative framework, a pro-arbitration judiciary, and an independent national arbitration institute support the use of arbitration in Thailand. As a result, it is widely expected that arbitration will continue to be seen as a viable and practical route to resolving complex commercial disputes in the country.

Conciliation

Conciliation is a dispute resolution option that involves talking to the other party in the complaint to find common ground and resolve the dispute. The conciliation process is less formal than a court proceeding and can be done in person or by phone under certain conditions.

The courts have the power to order a mediation or conciliation before trial in any civil case. They can do this on their own or ask the parties to mediate the case themselves. The Dispute Mediation Act 2562 (2019) provides for out-of-court arbitration and conciliation under the supervision of the courts.

While conciliation can be a useful tool in resolving disputes, it is not necessarily the right approach for all cases. There are certain disputes that require a different kind of solution, such as disputes between public entities and private companies. Arbitration is an effective dispute resolution option for these kinds of disputes, as it focuses on the interests of both parties and is enforceable under Thai law.

Negotiation

Negotiation is a form of dispute resolution that involves only the parties with an interest in the case and their representatives. It allows for greater flexibility in shaping the outcome of the negotiations and provides more control to the parties. It is also faster and more predictable than court proceedings.

However, it is not binding unless the parties reach and sign a settlement agreement. It is therefore not suitable for very high stake disputes. In addition, it is not always effective in civil cases where the burden of proof requires proof beyond reasonable doubt.

Nevertheless, mediation is increasingly popular in Thailand because of the rising international profile of its energy and mining sectors and the widespread enforceability of arbitration awards. It may be carried out either out-of-court or during a court case. In the latter case, it is regulated by the Dispute Mediation Act of 2019 which is based on the UNCITRAL Model Law. Aside from this, it is common for commercial contracts to include a mediation clause.

Court proceedings

In Thailand, court proceedings are a well-established form of dispute resolution. However, the process can be time-consuming and costly for all parties. To address this issue, Thai lawmakers have worked to encourage conciliation before a trial. This system diverts cases from the courts to mediation, thus saving time and resources for both the plaintiff and the defendant.

The courts in Thailand are based on the concept of actor sequitur forum rei, meaning that a claimant must bring their case in the court where the defendant is domiciled. The courts of first instance handle most civil disputes, while matters involving specific governmental agencies are handled by the Central Administrative Court, Central Labour Court, and Central Intellectual Property and International Trade Court.

The court process in Thailand is not as fast as it is in the United States or Europe. A judgment can take up to a year at the Courts of First Instance, and even longer at the Court of Appeal.

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Importance of Trade Disputes in Thailand

The globalization of trade exposes domestic industries to international competition. As such, trade policy measures aim to foster innovation and promote competitiveness.

Government subsidies and non-tariff barriers can distort competition, prompting trading partners to challenge policies. Intellectual property rights violations and unfair trade practices can also generate disputes.

Timely resolution of disputes helps maintain positive trade relationships, promoting economic stability. Moreover, active participation in fair dispute settlement mechanisms enhances Thailand’s global reputation.

Intellectual Property and International Trade Court

The Central Intellectual Property and International Trade Court (CIPITC) is a specialized court in Thailand that adjudicates intellectual property rights disputes. Its jurisdiction includes intellectual property infringement and invalidity issues, as well as foreign patents and trademarks registered in Thailand. Its decisions are appealable.

As a dynamic participant in global commerce, Thailand often encounters trade-related conflicts. To ensure a fair trading environment, it has established mechanisms to resolve disputes in accordance with established rules and regulations.

Thailand has been moving to implement more outward-oriented policies to equalize investment incentives between its export and domestic economies. It has also been reducing its tariffs and quotas to reduce trade imbalances, which can cause tensions with trading partners. It has been actively participating in the Uruguay Round of multilateral trade negotiations to advance its commitments.

Alternative Dispute Resolution Office

Arbitration is a cost-effective option, often allowing for quicker resolution than litigation. Our lawyers in Thailand have experience advising clients on arbitration agreements and processes.

Arbitrations are generally conducted by a three-arbitrator tribunal unless both parties agree otherwise. The disputing parties will be provided with a list of potential arbitrators from which they must choose one each, after which the institute responsible for the arbitration will appoint the third arbitrator.

The growth of Thailand’s domestic and international e-commerce landscape has led to an increase in the number of e-commerce consumer disputes. While the country has strong consumer laws, there is still room for improvement in terms of effective e-commerce consumer protection measures.

Trade Negotiations

International trade is an important source of economic development and income in Thailand. But some people fear that international trade has negative impacts, especially on their health and the country’s healthcare system. For example, drug imports are expensive and can lead to dependency.

Thailand’s government appointed by the military after the 2006 coup remains committed to further liberalizing its economy through APEC and ASEAN free trade agreements and bilateral negotiations. Among other things, it is seeking to equalize investment incentives between domestic and export-oriented industries.

As a member of the World Trade Organization, Thailand is required to comply with its agreements and adhere to international fair trade practices. In addition, it promotes negotiation and arbitration to settle disputes. Timely resolution of disputes enables countries to preserve trade relations and avoid long-lasting conflicts that can hinder economic cooperation. Moreover, active participation in dispute settlement mechanisms enhances Thailand’s global reputation as a responsible trading partner. It also contributes to a level playing field and a high standard of living for its citizens.

Arbitration

Arbitration is a process in which disputes are settled by an independent tribunal. The Tribunal is generally composed of experts in law and specialized fields. Arbitration hearings take place in private and are based on submission of evidence and the examination of witnesses. The arbitration award can be enforced in the same manner as a judgment of a court.

A growing number of trade cases are being settled by arbitration in Thailand. This is due to the fact that it offers a more flexible and conciliatory approach to Thailand dispute resolution, particularly for foreign litigants.

The Kingdom’s legal infrastructure is broadly consistent with international norms on arbitration, though its litigation practice and laws are influenced by common law traditions. It is a member of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ensuring that foreign awards can be enforced in Thailand. The Arbitration Act of 2002 is a comprehensive redrafting that complies with the UNCITRAL model law, but has added provisions specific to Thailand.

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Importance of Labor Disputes in Thailand

Migrant workers in Thailand are covered by multiple labor legislations, establishing a strong legal framework to uphold workers’ rights. These statutes stipulate specific guidelines for wage payments, including mandatory deductions.

Despite the existence of these mechanisms, many workers remain unaware of how to file a formal complaint. NGOs may also lack the capacity to directly resolve worker grievances.

Employers’ Changes to Conditions of Employment

In developed nations, unions play a key role in setting work hours and minimum wages, reducing exposure to hazardous conditions, and providing medical and vacation leave. However, in Thailand the rate of unionization is low and this may contribute to the long working hours and low pay seen in some sectors.

When an employer wishes to change conditions of employment, such as a reduction in the maximum lawful number of work hours per week, they must obtain consent from employees. Failure to do so can result in a labor dispute.

Employees are also able to raise issues with their employers through the Ministry of Labor and its affiliated departments. These organizations offer a wealth of online resources and can act as a first point of contact for specific queries. In addition, lawyers specializing in labor laws can provide both employers and workers with advice, ensuring that all dealings comply with Thai law. They can also represent parties during arbitration and at labor courts, if necessary.

Employees’ Dissatisfaction

Upholding the legal principles enshrined in Thailand labor laws is of utmost importance to migrant workers, as it serves as a guarantee that both employees and employers will be treated fairly. However, the complex nature of Thai labor law makes it challenging to navigate.

The complexity of the labor environment can also make grievance mechanisms ineffective. ILRF’s research found that workers often feel their voices are not heard by the authorities or that their complaints are ignored.

This is especially the case for migrant workers. While labor welfare committees may be able to address some workers’ issues, their ability to protect worker rights in a sustainable and long-term manner is questionable. Additionally, many migrant workers are unable to file a complaint due to their financial or legal status. This can lead to them accepting a settlement without understanding if it is fair. If the settlement does not meet their expectations, they can file a labor dispute.

Employers’ Retaliation

Moreover, many workers lack awareness of the available complaint mechanisms and how to access them. In Trat, for example, workers interviewed said they were unaware that they could file a complaint with the local DLPW, even though the provincial DLPW conducts outreach work- shops and trainings at hotels and other workplaces on a regular basis.

Additionally, the Ministry of Labor and its affiliated departments offer extensive online resources and a wealth of information, as well as specialized attorneys who can assist workers with their legal cases. But the cost of retaining such professionals can be prohibitive for many workers, especially given their low wages and financial status.

Thus, despite the strong legal framework in place for employee grievance mechanisms in Thailand, these channels remain underdeveloped in practice. This report offers recommendations to help mitigate these challenges, including through promoting the use of state- and non-state based grievance mechanisms, and educating employers and human resource, compliance, and sustainability staff on their rights and obligations under Thai law.

Employees’ Representation

Workers’ rights are protected by multiple labor laws in Thailand. Employers must be aware that any unilateral changes to conditions of employment may run into colorable objections from employees. A change in maximum lawful work hours per week, for example, could elicit a worker response if it results in reduced compensation.

In some cases, workers’ organizations and employers are able to resolve disputes through mediation or other Thailand dispute resolution channels. This can help ensure that remediation outcomes are aligned with labor law and benefit all parties.

Increasing the availability and effectiveness of these mechanisms can also support migrant workers in accessing the benefits they are legally entitled to, such as unemployment, sickness, death, childbirth, old age and pension benefits. This is particularly important as the majority of migrant workers in Thailand are not unionized.

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How to Handle Civil and Criminal Cases in Thailand

Civil cases uphold contractual obligations and property rights, while criminal cases deter crime and ensure that individuals accused of committing crimes are given due process. An experienced local lawyer will be able to help clients navigate the Thai litigation system.

Unlike Western jurisdictions, Thailand’s legal system is based on civil law. Supreme Court decisions, however, influence case law and serve as precedents for judging criminal offences.

Dispute Resolution

In Thailand, courts are based on civil law rather than common law and the country does not practice the doctrine of stare decisis. However, Supreme Court decisions do have some precedential value.

The courts encourage out-of-court Thailand dispute resolution and settlements. The courts also have a system of case management hearings where the judge may ask parties to mediate their disputes.

If the case does not settle at the case management hearing, the judge can appoint a conciliator to mediate the dispute. The court has a list of mediators which include judges, private lawyers and former business executives.

Litigation can be lengthy and expensive in Thailand. The court-supervised mediation process is a more cost-effective alternative to litigation. It also results in a quicker resolution and minimizes the number of appeal cases. It is therefore an excellent alternative to litigation. In addition, the conciliation process can result in damages awards (including compensatory and punitive damages). This is often important in personal injury cases where claims for pain and suffering are sought.

Trial Courts

Thai courts essentially encourage all parties to engage in a court-supervised mediation process before proceeding with any kind of civil or criminal litigation. As a result, it is unusual for matters to actually reach trial.

The burden of proof in criminal cases is higher than in common law jurisdictions, requiring the prosecutor to prove an accused defendant’s guilt beyond a reasonable doubt. The public prosecutor must also present all relevant facts and evidence in a case to the judge presiding over the trial.

Currently, there are 11 district courts in Bangkok that hear criminal matters. These additional courts were established to help alleviate the heavy workload of the main Criminal Court in Bangkok. Similarly, the Civil Court has a number of specialty courts focusing on specific issues such as taxation, intellectual property and international trade, labor, etc. The Supreme Court (or Dika Court) hears appeals from decisions given by the Court of Appeals and specialized courts.

Court-Supervised Mediation

In Thailand, just as in many countries around the world, going to court can be a lengthy and costly process. Depending on the nature of the dispute, it may also result in an unsatisfactory outcome.

As such, it is not surprising that Thai lawmakers have been working on strategies to encourage alternative dispute resolution (ADR) options like mediation and arbitration.

Mediation in Thailand is a fairly common practice and is often faster than litigation. ADR is particularly helpful when disputes involve state agencies, as it can shift the focus of justice from a “winner-loser” approach to a more compassionate and healing process for victims.

Under the Dispute Mediation Act of 2019, parties may agree to participate in pre-litigation mediation. In cases that have already been filed in court, however, the law allows the courts to order mediation at their discretion. The courts may even impose a mandatory mediation for certain civil matters such as labour, family and intellectual property.

Prosecution Against Foreign Defendants

In Thailand, a plaintiff in civil cases can seek enforcement or protection of a right or redress of a wrong. Cases involve property and commercial disputes, employment actions, divorces, torts (also known as wrongful acts) and the recovery of debts.

Foreign persons and entities who are not domiciled in Thailand may be sued in Thailand as long as a court asserts jurisdiction. However, the suit may be filed through a lawyer in Thailand and the foreign litigant may reserve personal appearance only when required to testify against the contending party.

Criminal prosecution in Thailand is a serious concern for anyone contemplating doing business or living in the country, especially since bail is rarely granted and prison sentences can be severe. Knowing the laws of Thailand and partnering with lawyers who understand both Thai and international law is essential to a successful outcome in these situations. This report draws on in-person interviews, phone and fax conversations, emails and other correspondence, and an extensive review of Thailand’s laws that criminalize peaceful expression, association, and assembly.

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