Doing Business in Thailand

Is Thai Legal System Different?

If I had to qualify the Thai legal system, I would say that Thailand is a country ruled by Civil Law with a touch of Common Law. Civil law is one of the predominant system of law in the world. The other being common law, which is the legal system developed among Anglo-Saxons people.

The main difference between the two systems is that civil law is laid down from abstract rules and judges must apply those rules to the various cases before them.

To the contrary, common law draws abstract rules from specific cases. Some countries, for example Scotland; are said to be mixed jurisdictions.

A mixed jurisdiction is a country where a mixed legal system prevails. I’m not sure that Thailand would qualify as a mixed jurisdiction but there are parts of the common law system there. For example in civil law countries, criminal investigations are run as follows: The police are responsible for recording crime, gathering evidence and identifying those who have committed an offence. They are also required to inform the prosecutor of all crimes committed. The police may detain suspects for a short period (24, 48, 72 hours) depending of the nature of the crime.

At the end of the police detention period, the suspect is either released with no further action, given a date to attend court, or brought before a judge know as the examining magistrate who will open a new legal phase called the information. The powers of the examining magistrate are to undertake any investigations, which will be helpful in establishing the truth, and to conduct an impartial investigation to determine whether a crime has been committed. Examining magistrate are supposed to be neutral (neither lawyer nor prosecutor) but there is a lot to say about their supposed neutrality.

Anyway, Thailand, that is by definition a country of civil law, does not have an Examining Magistrate. Once I had to accompany a Swiss Examining Magistrate at a meeting with the Thai Attorney General in relation to a request of judiciary assistance. We had to spend two hours explaining the concept and the power of the Examining Magistrate before being able to go to the matter at hand because it was an “alien” concept. Overall, Thai substantive law is of civil law inspiration while the Court system is mixed.

Are Thai laws different from ours?

Not at all, even though a lot of foreigners that come to Thailand come to believe that Thailand has a bad legal system and never stop complaining about it. Sorry to disappoint you but Thai laws are exactly the same as they are at home (at least if you are Swiss or French).

Thai lawyers often refer, when talking about the Thai Civil & Commercial Code, to French inspiration. While the French inspiration cannot be denied, I believe that the Thai Civil & Commercial Code is closer in its drafting to the Swiss Civil Code and the Swiss Code of Obligations than to the French, at least in the reading anyway.

Are Thai Courts slower than in western countries?

Many foreign investors complain about Thai Courts being slow and of the impossibility to get justice in this country. Now this is another misconception. Before coming to Thailand I was a litigator in Geneva, and believe me if I would ever have wanted to drag a case on for 10 more years I could have done it without any problems.

My personal experiences are that in Bangkok it takes between 3 to 5 years average for a case to go from 1^st filling to the Supreme Court. In some cases it can be more or less; in the Provinces the problem is that there are not always enough judges. In Phuket we had to wait more than two years between the filing of the case to the first hearing. I believe that the situation is the same in Koh Samui.

Why are there no juries in Thailand?

I ‘ve always wondered why there are no juries in Thailand. After inquiring as to why I came up with several reasons. I’m not sure whether the explanation I’m about to give is the correct one even though I heard it from a Thai lawyer but it is an explanation that make sense to me.

Basically, justice was historically and still is the King’s duty and prerogative. Of course a King cannot practically be everywhere and there comes the time when he will need to start delegating his duties, first to family members, then to people close to him, and then to professional magistrates.

While Thai magistrates have to follow a strict and rigorous educational curriculum and pass professional exams, they only become magistrate once they have been endorsed by the King. It would not be practical to have every single jury to receive an endorsement from the King which is why this institution was never introduced to Thailand. This explanation must be close to the mark as it makes sense but a judge also once told me that the jury system would not work in Thailand. Thai juries would not be good at condemning others; it is not in their nature, something to do with Thainess.

Is arbitration a good alternative?

Yes arbitration in Thailand works well. The Thai Arbitration Institute under the Ministry of Justice is very efficient. The Thai Arbitration Institute under the Ministry of Justice is efficient and a good choice to make if you are shopping for a good dispute resolution mechanism.

Are Thai Judges good?

Yes, Thai Magistrates are good and professional. As I say earlier they need to go through a whole educational cursus and have a Master Degree at least before to be able to pass the exams to become judge and some of them have actually more than one MD or PHD often from prestigious Universities abroad.

I know that from time to time you will read in a newspaper the story of a case where a judge seems to have dismissed a case for no good reasons and you will doubt Thai justice system. Now the problem with Thai justice system is nor the judge neither the police nor the law. The problem is excessive formalism and rigidity another by-product of Thainess.

Are Thai Lawyers any good?

Yes they are. Not all Thai lawyers from the old generation speak English but most of the younger ones do. One of the reasons why many foreigners have a poor opinion of the Thai justice system and of Thai lawyers is because of the translation problem. Thai language is not structured the same way as English or French.

The Thai language has long sentences. Therefore the result of any translation of a legal document from Thai to English (while correct) will often sound to the non-informed as weird gibberish when actually it is not. To avoid this problem ask your Thai lawyer whenever possible to draft an English version of the contract before translating it in Thai.

While it is more expensive to have, a translation done by a lawyer than by a translator it is safer to have your legal documents translated by lawyers. Also, be careful of how your name is translated. Thailand is a sound based language. I am French and my name is Dubout. If I ask a Thai English speaker to translate my name in Thai or if I ask a Thai French speaker to translate it, they will come up with two different version of my name in Thai language. So when it comes to translating your family name ask a Thai who is proficient in your language to do it. Do not only give your name in writing, pronounce it a few times too so that the translation is based on how it sounds.

Note: This page is an excerpt of Rene Philippe Dubout next book: “How to Invest Safely Into Thailand” to be published in January 2010

About the Author:

The author Rene-Philippe DUBOUT is a lawyer since 1990 when he was admitted to Geneva bar (Switzerland). He practiced as a litigator there for 10 years until he moved to Thailand in 1999. In 2002 he founded with a group of Thai lawyers Rene Philippe & Partners Ltd a local law firm that specialized in Cross Borders Investments and Real Estate. He has been lecturing in several Thai Universities and a speaker to numerous conferences and seminars. He is the author of a must read book:”How to Purchase Real Estate Offshore Safely: The Case of Thailand”.

http//:www.renephilippe.com

© Copyrights 2009 – Rene Philippe Dubout – This article may be reprinted if information about the author, the websites, and the URLs remain intact

Originally posted 2009-07-23 05:17:20.

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