Litigation in Thailand

Litigation in Thailand. Thailand’s litigation landscape presents a sophisticated and often challenging environment for both domestic and international parties. Rooted in a civil law system with unique procedural characteristics inherited from European codes and adapted through local custom, the Thai judicial process is a world apart from common law adversarial systems. Successfully navigating a dispute in Thailand requires not only a firm grasp of the black-letter law but also a profound understanding of the procedural rhythms, cultural subtleties, and strategic realities that define the courtroom. This article provides a comprehensive analysis of litigation in the Kingdom, moving beyond superficial overviews to examine the structure, philosophy, and tactical considerations of resolving disputes through Thai courts.

The Foundation: A Civil Law System with a Thai Character

Thailand’s legal system is codified, primarily based on the Civil and Commercial Code, the Criminal Code, and the Civil Procedure Code (CPC). Judicial precedent, while persuasive, does not carry the binding authority of stare decisis as in common law jurisdictions. Judges act as investigative fact-finders, actively managing cases and questioning witnesses, rather than serving as passive arbiters between competing attorneys. This inquisitorial model places a premium on written submissions and documented evidence.

The system is structured hierarchically:

• Courts of First Instance: These include Provincial Courts, District Courts (for minor claims), and specialized courts such as the Central Intellectual Property and International Trade Court (IP/IT Court), the Bankruptcy Court, and the Labor Court. Each has specific jurisdictional thresholds and rules.
• Court of Appeals: Reviews both facts and law from First Instance decisions, typically involving a panel of judges. A full retrial, with new evidence and witnesses, is possible.
• Supreme Court (Dika Court): The court of final appeal, focusing primarily on questions of law and grave errors of fact. Its decisions, while not formally binding on lower courts, carry immense weight and create de facto jurisprudence.

A critical, separate track is the Administrative Court, which handles disputes between individuals and state agencies, operating under its own procedural code. For international commercial contracts, parties may opt for arbitration, governed by the Arbitration Act B.E. 2545 (2002), which aligns with the UNCITRAL Model Law.

The Procedural Anatomy of a Civil Lawsuit

A civil lawsuit is a meticulously choreographed process defined by the CPC. Key stages include:

1. Filing and Service: The plaintiff files a complaint (คำฟ้อง) with the competent court, paying filing fees based on the claim value. The court then officially serves the complaint to the defendant, initiating the formal timeline.
2. Answer and Counterclaim: The defendant must file an answer (คำให้การ) within 15 days (extendable), admitting or denying allegations. Failure to answer can lead to a default judgment. A counterclaim may be filed simultaneously.
3. Case Management and Pre-Trial Conferences: This is a critical, often protracted phase. The court holds conferences to clarify issues, encourage settlement, and set a discovery and evidence schedule. Unlike common law discovery, Thai procedure has no broad, automatic right to compel document production from an opponent. Each party must generally rely on the evidence it possesses, though the court can, upon specific request, order the production of particular documents.
4. Evidence Submission and Witness Lists: All documentary evidence and a list of witnesses with their written testimony summaries must be submitted to the court before the trial date. The court meticulously reviews these dossiers in advance.
5. Trial Hearing (นั่งพิจารณา): Trials are not single, continuous events but a series of hearings scheduled weeks or months apart. Witnesses are examined first by the judge, then by the parties’ lawyers. Cross-examination exists but is often less aggressive than in common law systems, constrained by cultural norms of respect and the judge’s control.
6. Court-Appointed Experts: Judges frequently appoint neutral experts (e.g., surveyors, accountants, forensic specialists) to report on technical issues. Their opinions are highly influential, often more so than partisan experts hired by the parties.
7. Judgment and Appeal: After closing statements, the court renders a written judgment. The appeal period is typically 30 days from the judgment’s receipt.

Critical Strategic and Cultural Considerations

• The Centrality of Documentary Evidence: The case is won or lost on the strength of the documentary record. Contracts, correspondence, invoices, and official records are paramount. Witness testimony is often viewed as less reliable.
• The Culture of “Kreng Jai” and Saving Face: The Thai concept of deference and avoiding confrontation (kreng jai) permeates the legal process. Overly aggressive advocacy can alienate the judge and harm a client’s position. Strategy must balance assertiveness with respect for protocol and the court’s dignity.
• The Realities of Timing: Litigation is slow. A straightforward commercial case in the Court of First Instance can take 18-36 months. Appeals add several more years. This delay is a powerful lever in settlement negotiations.
• Costs and Fee Structures: While court filing fees are predictable, attorneys’ fees are typically not recoverable from the losing party. Each side bears its own legal costs, except for minimal statutory reimbursements. Contingency fees are illegal.
• Enforcement of Judgments: Winning a judgment is only half the battle. Enforcement against assets, particularly if they are illiquid or held in the name of related parties, can be a separate and difficult legal proceeding. Thorough pre-litigation asset investigation is crucial.

The Role of Alternative Dispute Resolution (ADR)

Given the cost and delay of litigation, ADR is actively encouraged.

• Mediation: Courts routinely order parties into court-annexed mediation. Successful mediation results in a settlement agreement that is legally binding. The Office of the Judiciary’s Court-Connected Mediation Center has institutionalized this process.
• Arbitration: For commercial disputes, arbitration is often preferred. It offers confidentiality, party-appointed arbitrators, procedural flexibility, and finality (appeals are extremely limited). The Thailand Arbitration Center (THAC) and the Thai Arbitration Institute (TAI) are key institutions. An arbitral award is enforceable through the courts.

Implications for Foreign Litigants

Foreign parties face additional layers of complexity:

• Translation Requirements: All documents submitted to the court must be in Thai. Foreign-language documents require certified translations by a translator recognized by the Ministry of Foreign Affairs.
• Power of Attorney: A foreign plaintiff or defendant must grant a special power of attorney to their Thai lawyer to act on their behalf, authenticated by a Thai embassy or consulate abroad.
• Security for Costs: A court may, at the defendant’s request, order a foreign plaintiff to provide security for the defendant’s potential legal costs, a discretionary measure intended to prevent frivolous suits.
• Choice of Law and Forum: Contractual clauses selecting foreign law or jurisdiction are generally upheld for international commercial contracts, but enforcing a foreign judgment in Thailand requires a separate, often lengthy, court proceeding for recognition.

Conclusion: A System of Ordered Persuasion

Litigation in Thailand is less a dramatic battle and more a protracted, formalized process of written persuasion and judicial inquiry. Success demands a strategy that harmonizes rigorous legal preparation with an astute reading of procedural nuance and cultural context. The most effective litigants are those who enter the process with realistic expectations, impeccable documentation, trusted local counsel deeply embedded in the system, and a parallel strategy for settlement. It is a system that rewards patience, precision, and respect for its unique hybrid character—a blend of codified civil law, bureaucratic procedure, and the enduring Thai values of social harmony and hierarchical deference. Understanding this complex ecosystem is the first and most essential step toward navigating its challenges effectively.