The law stipulates that a claimant may bring a civil case before the court where the cause of action arises or where the defendant lives. It is also possible for claims to be appealed on points of law to the Supreme Court.
It is important to understand how Thai courts operate when doing business in Thailand. This article will cover both criminal and civil litigation in Thailand.
Criminal Law
The criminal law of Thailand is based on the Penal Code and other acts that define specific offences and their penalties. The burden of proof in a criminal case is higher than that of a civil case, and the defendant must prove their innocence beyond a reasonable doubt. Generally, criminal cases in Thailand are heard by judges alone, with no jury system.
A criminal case in Thailand may be initiated either by submitting a complaint to police or directly to a court, with a judge conducting a preliminary “investigative” hearing to determine whether the case has merit. The judge must present at least one witness to confirm the facts of the case, and the case cannot proceed for a full trial unless the plaintiff has a sufficient basis in fact for the case.
In general, it takes about a year for the first hearing in a criminal case to be completed. After the initial hearing, a decision can be appealed to the Court of Appeal within one month, and the Court of Appeal’s judgment can then be appealed to the Supreme Court.
A unique feature of the Thai judicial system is that an independent organisation can investigate and discipline judges who are suspected of dishonest conduct. This helps maintain a balance of power in the judiciary and ensures that judges do not become corrupted or abuse their authority.
Civil Law
For international business owners operating in Thailand, disputes are a common occurrence. However, when a dispute escalates into criminal litigation, it can be difficult for parties to understand how the Thai legal system works and how to exercise their rights effectively.
The country uses a civil law system, meaning that it relies heavily on codified statutes and judicial interpretations to adjudicate cases. A criminal case arises when a person allegedly violates one of the offenses outlined in the Penal Code and other specific statutes, ranging from petty theft to murder and drug trafficking. In a criminal trial, judges preside over proceedings and do not use a jury system. This can be a significant departure for those who are accustomed to a common law system, and it gives judges much greater discretion when determining guilt or innocence.
During the pretrial stage, suspects can be held for up to 48 hours without formal charges, and bail is often limited. The severity of the crime and a suspect’s flight risk and financial means will heavily influence the court’s decision on whether to grant a request for bail.
During the trial, evidence will be presented by both the prosecution and defense. Depending on the nature of the case, it may take up to several days for a judge to decide the verdict. For a foreign defendant, the court will typically impose travel restrictions and may put them on an immigration blacklist after conviction, which could potentially bar them from returning to the country in the future.
Dispute Resolution
In Thailand, proceedings in the court system are lengthy and expensive. However, courts have implemented a number of measures to improve case handling efficiency, including increasing the numbers of judges and establishing new divisions and courts; reducing court fees based on claim amounts; and allowing parties to agree to have hearings or trials conducted via video conference where this is permitted by law.
A criminal case in Thailand typically takes about a year to complete all stages of prosecution. The process begins with a complainant submitting either a police complaint or directly to the court, resulting in a first hearing and the commencement of litigation. Suspects are often detained in pre-trial custody, with bail granted depending on the severity of the offense and a number of other factors such as flight risk and financial means.
While a number of issues can delay cases, the judicial system also ensures that the judiciary is impartial and transparent. If a party feels that a judge has made an incorrect decision or misinterpreted the law, they may appeal to the Court of Appeal or the Supreme Court for a full review and further investigation.
In addition, it is increasingly common for Thai courts to permit witnesses who are outside the courtroom or abroad to testify via video conference. This allows witness testimony, cross-examination and re-direct examination to be conducted remotely.
Arbitration
While mediation and negotiation involve just the parties in dispute, arbitration brings a third party to the process. This third party facilitates discussion and oversees the settlement of disputes, offering parties more control over time, costs, and procedures than they would have with a traditional court proceedings.
Judicial arbitration has been adopted by a number of courts, and clear guidelines have been developed for this method. In addition to providing a more efficient process, it offers greater flexibility and privacy. Additionally, parties can select arbitrators who are experts in the underlying subject matter, eliminating the need for expert witnesses and expediting the proceedings.
The courts have generally respected the choice made by the parties with regard to the governing law in their arbitration agreement, and they have also refused to interpret such agreements in a way that imposes exclusive jurisdiction on courts for certain types of matters or subject matters. However, in 2019 the Supreme Court issued Judgment No 3427/2562 which changed this stance, and now allows for litigation to be referred to arbitration where the arbitration clause explicitly states that it may do so.
The high volume of cases in Thailand and the limited number of judges and court officials result in significant backlogs. The typical wait time from filing a civil claim to receiving a trial court judgment is 1.5 to 2 years. Claimants can petition for legal aid to help finance their case, and each local court has a volunteer lawyer who can provide pro bono advice and legal representation in a particular case.