Like many jurisdictions, litigation in Thailand can be complex and unpredictable. However, with the help of a qualified attorney, the process can be managed to reduce risks and ensure the best possible outcome for clients.
Unlike some Western systems, the Thai legal system lacks a jury and grants judges much broader discretion in criminal cases. This article will explore key differences and judicial procedures.
Jurisdiction
The jurisdiction of the courts in Thailand is governed by the law. The Court of Appeals (Thai: saaluththrn) has jurisdiction over appeals from decisions made by the Court of First Instance, while the Supreme Court (Thai: saaldiikaa) has jurisdiction over all other cases. Moreover, there are four specialized courts in Thailand; namely the Labor Court, Tax Court, Intellectual Property and International Trade Court and Bankruptcy Court. These specialized courts are presided over by career judges with specialised knowledge and experience.
The judicial system in Thailand is primarily adversarial; however, some courts, such as the Criminal Court for Corruption and Misconduct Cases operate under an inquisitorial system. Judges are mandated to operate independently in trials and adjudications, adhering to the Constitution and laws and ensuring swift and fair proceedings without bias or vested interest.
At the judge’s discretion or upon the parties’ request, hearings or trials of civil cases can be conducted via videoconference on a platform that provides a stable connection. Parties physically located outside of Thailand can also attend electronically conducted hearings as long as they have the court’s permission.
Burden of Proof
Under Thai criminal law, an accused is considered innocent until proven guilty and the public prosecutor has the burden of proving that the accused committed the offence beyond reasonable doubt. In civil cases, each party bears the burden of proof to support its allegations or contentions. To this end, a party relying upon certain facts must submit with the court, at least seven days prior to the scheduled trial date, a list entailing documents, physical evidence, witnesses and experts to be adduced together with copies of these items for inspection and presentation to the opposing parties.
As a rule, the Court of Justice has jurisdiction over a case unless the subject matter falls within the scope of a more specialised court (eg, Central Labour Court, Central Tax Court or the Supreme Administrative Court). However, recent changes to the Civil Procedure Code have made it easier for claimants to file claims against mass tortfeasors such as polluters, employers and business operators. As well, the government is pushing for easier civil litigation for consumers to recover damages.
Court Procedures
In Thailand, a balance of power is maintained between the judiciary and the other branches of government. A court’s decision can be appealed to the Court of Appeal or the Supreme Court for a thorough review, and judges are subject to the same level of scrutiny as officials in other branches of government. This system helps to ensure that justice is served in a fair and impartial manner.
During a civil case, the judge will often encourage parties to resolve their dispute through court-supervised mediation. In addition, recent amendments to the Civil Procedure Code have made it easier for prospective litigants to apply for a mediation process prior to filing their statement of claim.
In a criminal case, the public prosecutor will present evidence to establish that an accused has committed an offence, while the defendant is presumed innocent until proven guilty. The presiding judge is responsible for deciding the guilt or innocence of a defendant and determining sentencing. During a trial, parties can petition for a request to subpoena witnesses and evidence from other parties. However, the pieces of evidence must be authenticated and translated into Thai.
Mediation
With Thailand’s robust legal framework, judicial system and cultural emphasis on mediation, the country is well-positioned to become an international hub for alternative dispute resolution (ADR).
While litigation is generally hostile and antagonistic where one party wins and another loses, ADR offers a more collaborative process that allows parties to control their own destiny. Alternative forms of Thailand dispute resolution include arbitration, conciliation, and mediation.
Mediation is a voluntary procedure that enables disputing parties to discuss and reach a mutually acceptable settlement before going to trial. Courts, in particular, require parties to participate in pre-trial mediation in labour disputes and other specific cases, such as family and domestic violence.
In general, parties can choose whether they want to mediate a case with just a single arbitrator or with a panel of three arbitrators. If they can’t decide on who they prefer, a list of arbitrators will be given to both parties and the arbitrator institute will select the most suitable arbitrator(s). The ADR process can be conducted remotely via videoconference as long as it is done with the court’s permission and only the original documents are introduced as evidence.
e-Hearing
During a trial, witnesses who are either outside the courtroom or abroad may testify via video conference. This system allows for witness examinations, cross-examination and re-direct examination to be conducted remotely, which can speed up case proceedings considerably.
The Supreme Court has recently issued a directive to allow for pleadings and documents to be filed electronically. This is a welcome development that will reduce the amount of paperwork required for parties, thereby reducing costs and saving time.
In Thailand, there is no comprehensive discovery scheme, but parties must file a list containing descriptions of witnesses and documents to be adduced at least seven days before the day of taking evidence. The list must also include information about things, places or experts to be inspected or questioned.
Moreover, a party can appeal against any judgment or order of a court of first instance to the courts of appeal and the Supreme Court. This ensures that all decisions made by the judiciary are thoroughly vetted and that there is a balance of power between the different branches of the Thai government.