Thailand has a legal system that ensures checks and balances within the judiciary. For example, a complaint can bypass the police and prosecutor and be brought directly to court where an investigative hearing will determine whether a case has merit.
Courts encourage parties to settle their dispute through a process of mediation. They also schedule witness hearings and judgment hearings.
Litigation is the process of resolving legal disputes through the courts. This includes bringing claims for damages, seeking court-ordered specific performance, and enforcing contracts. Litigation also involves resolving issues related to intellectual property, bankruptcy, and a broad range of business-related disputes.
In Thailand, the Civil and Commercial Code (TCCC) provides the primary legal framework governing civil litigation matters. Under the TCCC, prospective litigants must take steps to explore alternative methods of Thailand dispute resolution before filing a lawsuit (unless otherwise agreed).
The party making a claim bears the burden of proof for their case. If a claimant loses the case, they may be required to pay the defendant’s costs and expenses. In class action proceedings, the winning party is typically awarded a proportion of their legal fees.
A claimant may bring a lawsuit before the Court of Justice or one of the more specialised courts. In the latter case, it will be necessary to demonstrate that a claim falls within the court’s jurisdiction in accordance with the principle of actor sequitur forum rei. In practice, this means that the dispute must have arisen in the jurisdiction of the court in question or that the party is domiciled there. The court will exercise its discretion to determine how much weight a foreign judgment or proceeding should be given in the proceedings.
The Court of Justice is the default court of first instance for civil cases in Thailand unless the subject matter of the dispute falls within the scope of jurisdiction of a more specialised court, such as the Central Labour Court, the Central Tax Court, the Central Bankruptcy Court, the Intelligence Property and International Trade Court or the Central Administrative Court. In general, court proceedings in civil cases are based on the Constitution of Thailand, thousands of organic laws (decrees, governmental notifications and regulations) and the provisions of the Civil Procedure Code.
Courts in Thailand are attempting to improve the efficiency of their courts through various technological and digital initiatives. For example, hearings and trials can be conducted via videoconference for parties who have the court's permission and are not physically located in the same place.
A claimant may file their case in a Thai court regardless of whether the defendant is a foreign citizen or not. Service of process on a foreign defendant can be made either through an international courier or through diplomatic channels, depending on the specifications in any applicable bilateral agreement between Thailand and the country in question.
A judgment rendered by a Thai court can be enforced through attaining a writ of execution issued by the court, which enables the seizure of assets and claims to be carried out through a legal enforcement officer. However, creditors cannot enforce a judgment rendered by a Thai court against sovereign entities and state agencies, including state-owned enterprises, except in very limited circumstances.
In Thailand, civil cases are heard by a tribunal comprising one or more professional judges. In many courts this consists of three judges. A judge hears all aspects of the case, deciding whether or not to admit evidence and make decisions on points of law and fact. The judge must be impartial and independent of any vested interest in the case. This is in line with the country's constitution and laws, which set out strict requirements on judicial independence and impartiality, with penalties for breaches of those provisions.
Civil court proceedings are conducted in the language of the case in question. Generally, witnesses are called to affirm their statements in person and are subjected to cross-examination by the opposing party. During this process, it is common for lawyers to prepare their witnesses.
No comprehensive discovery scheme exists in Thai courts, but there are various provisions that allow for evidence to be obtained via subpoenas. There is also a requirement that each party file with the court, prior to hearing day, a list containing descriptions of witnesses and documents to be adduced, as well as things, places and experts to be inspected and questioned.
Litigation is not a quick or cheap process in Thailand, and court costs are usually payable by the losing party. However, the courts can determine that the winning party should be responsible for all or part of the costs. In addition, the court may encourage the parties to undertake a settlement at any stage in the proceedings.
The courts in Thailand operate under an adversarial system where the parties present their evidence and rebut each other’s evidence during trial hearings. The court is actively involved in case management and makes procedural decisions throughout the trial. The court may question witnesses directly on direct examination, cross-examination and redirect examination. The court also has discretion to award attorney’s fees, although in practice the amount awarded will be minimal and is not binding on the losing party.
There is no mandatory discovery process in the Thai legal system, but the parties can petition for court subpoenas to obtain witness and evidence from third parties. The court conducts a trial hearing to consider and discuss the written submissions made by the parties, with oral arguments being heard where appropriate. The court will then make a judgment on the merits of the case.
If either party disagrees with the court’s judgment, they can appeal to the Court of Appeal or the Supreme Court for a full review of the decision. This ensures a check and balance on the judiciary.
Foreign defendants can be sued in Thai proceedings provided that the claimant’s cause of action arose in or was caused in Thailand and the court has jurisdiction under the rules of international law. Service of process on a foreign defendant is generally made via diplomatic channels, subject to the specifications of any applicable bilateral treaty between Thailand and the jurisdiction of the defendant.