As a general rule civil courts in Thailand limit recovery for contractual breaches and wrongful conduct to actual monetary damage caused. The aim is to put the harmed party in the same financial position they would have been in had the wrongful act not occurred. There is no provision for the recovery of “general” or “additional” damages in Thailand such as emotional distress or punitive damages. However, there is a recent exception with regard to the latter case under the 2009 Product Liability Act, which does permit the court to award limited punitive damages based on and in addition to the actual damages.

Contractual parties may provide for a exception to this general rule of “actual damages only” by including a liquidated damages provision in their contract. But it should be noted that Thai courts have discretion to reduce such liquidated damages if they believe such liquidated damages are too high compared to the actual damages caused. Courts may also refuse to enforce such a provision if they believe that it is contrary to public policy and/or contravenes any other relevant applicable laws such as the Unfair Contract Terms Act.

Because Thailand is a “free contract” jurisdiction — where parties can agree to any lawful contractual terms — they may also limits their respective liabilities. However, such limitations of liability will almost certainly receive a greater degree of scrutiny by the courts as to their enforceability. For example, contractual terms pre-exonerating a party from fraud or gross negligence are highly unlikely to be enforceable under the Unfair Contract Terms Act.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

In most instances of a civil court case in Thailand either party may appeal the judgment of a trial court. And, in most cases, appeal to intermediate courts of appeal is available with a final option to appeal to the relevant supreme court. However, in some cases the law provides for appeal directly to the relevant supreme court, thus bypassing any intermediate appellate court. Notable examples of this would be cases involving: (1) the recognition and enforcement of arbitration agreements and awards; and (2) employment law disputes.

Although the law allows for oral arguments before courts of appeal, in practice this is rarely done. Thus, appeals are submitted in writing and, as a general rule, may be based on any issue of law or (unlike in many other jurisdictions) fact. However, there are exceptions. For example: options for appeal may be limited by a the financial amount in controversy; or the grounds on which one may appeal may be limited to points of law only, depending on the court which has jurisdiction over the case. In any event, intermediate courts of appeal, and the various supreme courts, in Thailand do not “retry” cases — no new evidence may be introduced in any stage of appeal.

Judgments in Thailand are read from the bench. As a general rule, any appeal of such judgments must be made within thirty days. But the thirty-day deadline may be extended on a showing of any acceptable good cause. However, it is important to note that, the thirty days do not begin to run until the parties have received notice, in fact or in law, of the judgment. If the losing party attends the reading of judgment from the bench, they will be considered notified. However, if the losing party does not attend the reading, notice will only be effected once the losing party legally receives the written judgment. However, the written judgment is not issued until well after the reading of the judgment from the bench. As a result, it is common practice for a losing party to choose not to appear for the reading of the judgment and await legally effective notice of such to follow later by way of service of the written judgment.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

After both parties have made their first filings in civil court case in Thailand, the court sets a date for a pretrial conference.  However, the Thai Civil and Procedure Code allows the presiding court to order a settlement conference at any time during the case. As a matter of practice (and perhaps Thai culture) a settlement conference is almost always ordered prior to the pretrial conference. This is the case, even if the parties make it very clear that they have already done all they could to settle and failed or that they are unwilling to settle. This practice often results in what many foreign parties consider an unfortunate expenditure of resources and an unnecessary delay in the proceedings.

Assuming the settlement conference does not succeed in terminating the case, the parties then proceed to a pretrial conference during which they specify to the court which issues they believe need to be resolved—thus, this pretrial conference is often referred to as the “settlement of issues”.  The court then sets the date or dates for the taking of evidence on these issues—in other words, the trial date.

Unfortunately, a Thai civil court trial usually consists of several evidence and/or witness hearings. Each party presents its evidence consecutively; however, the hearing of the parties’ evidence may often be separated by several days, weeks, or even months depending on the case and the court’s schedule.

It is important to note (particularly for those most familiar with court case proceedings under a common-law tradition) trials in Thailand, unlike most civil law countries, are a matter of the evidence being presented to the judge and not the parties “making a case” — particularly with regard to points of law. In fact, during the actual trial, the lawyers may have very little to say. Depending on the judge, the parties’ lawyers may be limited to questioning various witnesses and speaking to the court with regard to procedural matters. Quite often it is the judge or judges who conduct the questioning of the witnesses.

After the hearing of evidence is concluded the parties may, if permitted by the court, submit closing statements. The court then also fixes a date to pronounce its judgment. This day can vary depending on the procedural law under which the case is brought and how busy particular court is but it’s usually within 30 to 90 days after the conclusion of the trial.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

A defendant in Thai court must present a reply to the complaint within a statutorily prescribed time. If the defendant fails to do this, the court may refuse to allow admission of his defense if the result will be and unfounded delay of the proceedings. However, in our experience, courts will often  allow extensions of time for almost any tenable reason (and sometimes without any reason). This common practice can be justifiably frustrating to a good faith plaintiff’s desire for just and efficient resolution of the dispute. But it should said that over the past decade we have noted improvement with regard to such  procedural irregularities and we are confident such will continue to improve as Thailand continues on its course towards a fully developed rule of law jurisdiction.

By common-law jurisdiction standards, but not unlike most civil law countries, Thai law provides for very little pretrial discovery; the one exception being a request for admissions of fact. Each party must generally prepare and produced their own evidence and the other party must then refute the other party’s evidence on its merits, with their own evidence, or both. A party may request that the court subpoena evidence from the other party. However, such a subpoena must identify the specific document sought and specific relevant purpose for which it is sought. Furthermore, the requesting party must show good cause for the court to grant such a motion. As a practical matter, such requests are not often made and even less often actually granted.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

Suing or being sued by someone in Thailand begins by the filing of a complaint (or what is most commonly referred to in Thailand as a “plaint”) against the accused defendant party. The complaint must contain all the facts which would be sufficient to support a legally cognizable claim against the defendant under Thai law. However, there is no need for the complaint allege the law or laws applicable nor to provide evidentiary support for these factual allegations. Evidence in support of the complaint presented later will be accepted by the court.

Once a complaint is filed and accepted by the court, the plaintiff must request the court to issue a summons to the defendant. It will then become the court’s responsibility to notify the defendant of the action against him and of the time within which the defendant must reply and/or appear in court.

It should be noted that where a foreign defendant party is involved an unfortunate circumstance often arises for the plaintiff. If a foreign defendant is not able to be formally notified of the case, as required by Thai procedural law, then the plaintiff must ask the Thai government (i.e., The Ministry of Foreign Affairs) to formally request the relevant foreign government to serve the complaint and summons on the foreign defendant. Then a reverse process must be effected. As a result it usually takes a year or more (and sometimes several years) before a Thai court case against such a foreign defendant formally begins and the initial trial date is scheduled.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com

Thailand’s legal framework is based on the continental European “civil law” tradition. Although there are some statutory provisions that have their origin in common law systems both the substantive and procedural law of Thailand is modeled on the civil law system. In the context of litigation this means that contentious legal disputes are generally resolved in the courts by the direct application of statutory law and not, as is often the case in common-law jurisdictions, by application of “case law”.  Further, as a civil law jurisdiction, there are no jury trials in Thailand. Cases are decided instead by panels of judges–the specific number will depend on the remedy sought and on which court the case appears before.

The Thai courts are arranged in a three-tiered hierarchy: trial courts; appellate courts; and a supreme court. However, jurisdiction generally depends on the subject matter of the case. For example: civil, criminal, bankruptcy, labor, and administrative matters each appear before different courts of first instance and some legislation allows for direct appeal from the trial court level to the relevant supreme court. There is also a separate supreme court for constitutional matters. Grounds for appeal of court rulings are allowed for mistakes of law and quite often for mistakes of fact as well. The lower Thai courts are not required to follow higher court rulings but such rulings are of significant persuasive influence upon such lower courts and it would be quite rare for a lower court to rule contrary to an explicit supreme court holding.

It should also be noted that, unfortunately, there is a significant backlog of cases before Thai courts. It often requires several months, even a year or more, to obtain an initial trial date. Completing the initial trial level can take significantly longer. There are several reasons for this, including: the nature of Thailand as a still developing rule of law jurisdiction; the fact that trials are scheduled such that they may not be completed in one or more consecutive days and the remaining days may not be scheduled for many weeks or even months later; and procedural rules are often not strictly adhered to by the courts themselves—which means it is quite common for some parties to use such to their advantage and create delays. A typical civil case, if appealed, can take several years to be fully and finally resolved; five to ten years is common, but some cases have taken well over a decade to complete.

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DUENSING KIPPEN is an international law firm specializing in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.com