Kudun & Partners > Firm Profile

The firm: Emboldened by a vision to change the traditional working relationship which law firms have with their clients and create a vibrant new practice; Kudun and Partners Co., Ltd. (KAP) was founded in April 2015 with a common passion of acting as trusted business advisors with unparalleled legal experience rather than simply as legal advisors.

We gain our clients’ trust for lasting partnerships through helping them smoothly navigate the often painful and difficult processes in the most timely and cost-effective manner.

In a very short period, we have become the fastest-growing corporate law firm in Thailand now with 14 partners, over 50 foreign and Thai lawyers, and over 40 business support professionals serving both private and publicly trading Thai and international corporations as well as state-owned enterprises across the full spectrum of industries.  Team members are bilingual with a strong command of English to be able to easily assist our foreign clients.

Our partners bring with them extensive experience and respect in the legal community and have achieved both personal rankings and awards.

Areas of practice: Practice areas beyond corporate general/governance include:

Mergers and acquisitions (both domestic and cross border transactions).

Capital markets (equity offerings with both domestic and international IPO experience, secondary and follow on offerings / debt offerings / tender offers).

Tax and restructuring (tax planning on restructurings and business for cost-saving tax implications)

Investment related laws and FDI (for international clients investing in Thailand, helping determine the most effective investment structure to use, establishing an investment entity, applying for BOI promotions, business licenses and permits).

Infrastructure funds and REITs (establishing Infrastructure Funds & REITS for various industries, domestic and international offerings).

Dispute resolution / litigation / domestic and international arbitration
Our client base includes both private and publicly traded Thai and international firms as well as state-owned enterprises across the full spectrum of industries including:

Agriculture / fisheries / food and beverage

Automotive / transport / logistics

Financial services / banking / investment management / insurance

Construction and materials / industrial manufacturing

Consumer goods and services / tourism

Energy / oil and gas / renewables (solar / wind), natural resources / mining / utilities

Health care

Real estate (industrial estates / commercial retailers / housing estates / entertainment)

TMT (Technology, media and telecoms) including tech start-ups

We have unique expertise in tech start-ups, new technology and media and have guided various firms, entrepreneurs and small businesses through the complex process of getting set-up in Thailand through sharing strategic and legal advice on business formation, laws, taxation and securities and regulatory advice.

Doing Business In

Thailand

THAILAND SNAPSHOT

Formal name: The Kingdom of Thailand
Population: Approximately 69,310,000 (2019)
Average annual population growth: 0.2% in 2018
Capital city: Bangkok
Major cities and districts: Bangkok; Samut Prakan; Nonthaburi; Udon Thani; Chonburi; Nakorn Ratchasima; Chiang Mai; Hat Yai; Pak Kret; Si Racha; Pra Pradaeng; Lampang; Khon Kaen; Surat Thani; Ubon Ratchathani; Nakorn Si Thammarat
Official language: Thai
Currency: Thai Baht
Per Capita Income: 17,990 PPP dollars
Foreign Investment: Foreign direct investment (FDI) is an important element of Thailand’s economic development, and the country is one of the major FDI destinations in the region. According to the UNCTAD World Investment Report 2018, after several consecutive years of decline, FDI flows have largely recovered. They multiplied by 3.7 between 2016 and 2017, reaching USD 7.6 billion. This recovery was due to increased investment by European Union countries and strong inflows from ASEAN countries and Japan. Through the Investment Promotion Act, offering more incentives to invest in advanced technologies, innovative activities and research and development, and the Eastern Economic Corridor (EEC) Act, which offers benefits to investors in this zone (tax subsidies, right to land ownership, issuing of visas), FDI flows should show satisfactory results in 2019. The amount of FDI increased by 15% in 2017 and reached USD 219 billion dollars, or 50.7% of the country’s GDP.

Japan and Singapore are by far the largest investors in the country and account for more than half of FDI inflows. Malaysia, the United States, Netherlands, the People’s Republic of China, Indonesia, Taiwan, the United Kingdom, and Hong Kong are also major investors. Manufacturing and financial and insurance activities attract nearly 70% of all FDI inflows. Investments in real estate, commerce and information and communications are also important.

Thailand is among the countries with the most significant reforms in business regulation over the past few years; those reforms have facilitated the setting-up processes and reduced the time to start a business from 27.5 days to 4.5 days. The country has improved considerably its ranking in the World Bank’s Doing Business metric, and it occupies 27th position in the Doing Business 2019 ranking, losing one position from the previous year. The rights of borrowers and creditors have been strengthened as well as the system of land administration.

Foreign invested projects in 2018 by sector (amounts in millions of Baht): Agricultural Products (16,288); Minerals and Ceramics (5,405); Light Industries/Textiles (3,942); Metal Products and Machinery (88,048); Electric and Electronic Products (36,790); Chemicals and paper (45,601); and Services (59,528).
Main Exports: Machinery including computers: US$42.9 billion (17.2% of total exports); Electrical machinery, equipment: $35 billion (14%); Vehicles: $30.4 billion (12.2%); Rubber, rubber articles: $15.5 billion (6.2%); Plastics, plastic articles: $14.5 billion (5.8%); Gems, precious metals: $11.9 billion (4.8%); Mineral fuels including oil: $10.6 billion (4.2%); Meat/seafood preparations: $6.6 billion (2.6%); Organic chemicals: $6.1 billion (2.5%); and Cereals: $5.7 billion (2.3%)

Main Imports: Electrical machinery, equipment: US$45.6 billion (18.2% of total imports); Mineral fuels including oil: $42.7 billion (17%); Machinery including computers: $29.6 billion (11.8%); Gems, precious metals: $15.9 billion (6.4%); Iron, steel: $12.5 billion (5%); Vehicles: $10.2 billion (4.1%); Plastics, plastic articles: $9.6 billion (3.8%); Articles of iron or steel: $7.5 billion (3%); Optical, technical, medical apparatus: $6 billion (2.4%); and Organic chemicals: $5 billion (2%)

Summary of Thailand’s Political System: Until 22 May 2014 the politics of Thailand were conducted within the framework of a constitutional monarchy, whereby the prime minister was the head of government and a hereditary monarch was head of state. The judiciary is independent of the executive and the legislative branches. Since the coup d’état of 22 May 2014, the 2007 Constitution has been revoked, and Thailand has been under the rule of a military organization called National Council for Peace and Order (NCPO), which has taken control of the national administration. The chief of the NCPO abolished the national assembly and assumed the responsibilities of the legislative branch. The court system, including the Constitutional Court, still remains in existence, even without the Constitution.

Elections for a civilian government were held in 24 March 2019, and the new prime minister and the government will be announced soon.

Summary of Thailand’s Legal Framework: The Thai legal system is a statutory law system, which means it is mostly based on written law passed by the legislature. The primary sources of law are the Constitution, which was the supreme law, legislation such as Codes and Acts, decrees and custom.

WTO and Free Trade Agreements: Thailand has been a member of the World Trade Organization since 1 January 1995 and a member of the General Agreement on Tariffs and Trade since 20 November 1982.

It has the following trade agreements in effect: ASEAN Free Trade Area (AFTA), Thailand-Australia FTA, Thailand-New Zealand CEP, Thailand-Japan EPA, Thailand – Chile FTA, ASEAN-China FTA, ASEAN-Australia-New Zealand FTA, ASEAN-India FTA (Goods), ASEAN-Korea FTA and ASEAN-Japan CEP 2. Thailand is not a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

FORMS OF DOING BUSINESS

Establishment of a Thai Company

There are two types of companies in Thailand: private limited companies and public limited company.
A private limited company is formed by registration with the Department of Business Development (DBD), under the Ministry of Commerce (MOC). The structure of a private limited company must include a minimum of three shareholders who enjoy limited liability on par with the values of their shares. Directors, on the other hand, generally have no special liability for the debts of the company in the case of bankruptcy or liquidation, unless they personally cause loss to the company, act contrary to the company’s objectives, or act against the law.

In order to set up a private limited company in Thailand, the promoters or shareholders must get an approval and reserve the name of the company. For reference, investors may observe the name reservation guidelines of the business development office under the MOC. The approved corporate name reservation is valid for thirty days, with no extension.

A Memorandum of Association (MOA) must be filed with the DBD after the name reservation has been approved. There must be at least three individual promoters to prepare and register the MOA. The MOA must include the following:

• The name of the proposed company and its address;
• The proposed company’s business objectives;
• A declaration of limitation of shareholders’ liability;
• The amount of share capital to be registered, and the value per share;
• Names, addresses, occupations, and signatures of the shareholders and the number of shares subscribed by each of them; and
• The registration of incorporation for the company.

The government fee to register a limited liability company is charged at a minimum of THB 5,500 for every THB 1 million registered capital and a maximum of THB 275,000, plus minimal certification fees and stamp duty of THB 2,000.

A public limited company is a company established for the purpose of offering shares for sale to the public. The shareholders’ liability is limited up to the amount paid on their shares. The purpose must be indicated in the memorandum of association of the company.

The Public Limited Company Act B.E.2535 identifies the structure of public limited company as follows :

• Number of shareholders: 15 persons or more;
• Registered capital: no minimum amount of registered capital;
• Shares’ value and payment: Each share must have the same value and must be fully paid upon issuance;
• Number of directors: at least five persons, at least half of whom must have a registered address in Thailand.

The government fee to register a public liability company varies, depending on the amount of registered capital, and starts at Baht 1000 for registered capital of one million Baht.

Foreign Investment in a Thai company

Thai laws impose restrictions on foreign ownership of Thai companies. These restrictions are stipulated in the Foreign Business Act 1999 (FBA) and specific laws governing certain sectors, e.g., the Banking Act, Insurance Act, and Land Act. In addition, some companies may choose to incorporate a foreign ownership limit in their articles of association.

Governmental Approvals

The FBA is the primary and principal legislation that governs and regulates foreign entities’ activities in Thailand. As a general rule, foreign entities who wish to conduct business activities in Thailand are subject to the provisions and restrictions contained in the FBA. A foreign entity is prohibited from undertaking certain businesses as stated in the lists attached to the FBA (the “Lists”).

The undertaking of the type of businesses specified under List 1 is absolutely prohibited. However, a foreigner who desires to engage in business specified in List 2 or List 3 is required to obtain permission from the Ministry of Commerce (MOC) or from the Director-General of the Department of Business Development (DBD), in either case with certain governmental approvals.

Further restrictions on foreign ownership in specific sectors, such as telecommunications, banking, or insurance, are set out in specific laws pertaining to these sectors, such as the Telecommunications Business Act 2006, the Financial Institution Business Act 2008, the Life Insurance Act 1992, or the Non-Life Insurance Act 1992.

Exceptions, with or without conditions, are granted to foreign entities that meet the following qualifications:

• They are granted promotional privileges by the Board of Investment (BOI);
• They are granted promotional privileges by the Industrial Estate Authority of Thailand (IEAT); or
• Based on international treaties that Thailand has entered into such as the Treaty of Amity and Economic Relations between Thailand and the United States (Treaty of Amity), the Thai-Australia Free Trade Agreement (TAFTA), the Japanese Thai Economic Partnership Agreement (JTEPA), and others, qualified entrepreneurs may file a request for the issuance of a Foreign Business Certificate from the Director-General of the Department of Business Development.

It generally takes 60 days from the submission date of the application to know the outcome. Government fees range from THB 20,000 to THB 500,000, depending on the business.

Business operating licenses may be required depending on the nature of each business, which is governed by its own special legislation.

Further, once the newly incorporated company hires an employee, the company must register with the Social Security Office for social securities fund and workmen’s compensation fund contributions.

Restrictions on ownership of land: The Land Code prohibits any foreign entity from having ownership in land. Under the Land Code ‘foreign entity’ definition is stricter than the definition under the FBA, and a Thai entity will be treated as if it was a foreign entity if 49% or more of its registered shares are owned by a foreign entity. Foreigners, however, may own up to 49 percent of the units in a condominium.

M&A Approval and Process

The applicable legislation relating to mergers and acquisitions (M&A) in Thailand varies depending on the target, i.e., the company to be acquired or merged.

• The acquisition of shares in a Thai Company Limited is governed by Sections 1238-1243 CCC (Civil and Commercial Code of Thailand).
• In the case of a Thai Public Company, the Public Limited Company Act 1992 (PLCA) applies and, in relevant cases, the Securities and Exchange Act 1992 (SEC Act).
• For the acquisition of Thai PLC listed on the Stock Exchange of Thailand, additional rules and regulations of the Stock Exchange of Thailand (SET) and rules and regulations of the Securities Exchange Commission (SEC) are relevant, e.g., tender offer requirements.
• With respect to the acquisition of assets in a Thai company, the rules of the Civil and Commercial Code (CCC) apply, as may Section 107 PLC-Act.

In addition, numerous other laws, regulations and legal aspects may be applicable:

• Trade Competition Act
• Permission and reporting requirements for companies promoted by the Thailand Board of Investment (BOI)
• Permissions by the Industrial Estates Authority of Thailand (IEAT)
• Foreign Business Act
• Land Code restrictions for acquisitions of land-owning companies
• Employment issues and local labor laws
• Intellectual property
• Borrowings and liabilities
• Disputes and litigation

Representative Offices

A representative office operates a service business in Thailand for its head office, an affiliated company or a group company in another country. It renders these services without any income except for the remuneration of expenses, and has no legal form in the sense that the representative office cannot receive any purchase orders, sign sale and purchase agreements or negotiate business (neither on its own account nor on behalf of the parent company). A representative office can only sign those contracts that are essential for its own operations, e.g., lease of the premises. A representative office renders non-revenue-raising services to a foreign-domiciled head office through engaging in a limited range of activities such as:

• Sourcing of local goods or services in Thailand
• Inspecting and controlling quality and volume of goods which the head office purchases in Thailand
• Disseminating information about new products and services of the head office
• Reporting to the head office on local business development and activities, and/or
• Providing advice in various fields relating to goods distributed by the head office to the distributors or consumers

A representative office is always considered to be foreign. This status has as its main consequence that the representative of the representative office or a director of the foreign company will have to apply for a foreign business license before the start of the operations.

Work Permit

To work legally in Thailand, a foreigner must apply for a work permit. A work permit is a legal document that states a foreigner’s position, current occupation or job description and the Thai company for which he is working. It also serves as a license to perform a job or an occupation allowed for foreigners inside Thailand, as some occupations are restricted only to Thai citizens.

Foreigners entering Thailand are not permitted to work, regardless of their type of visa, unless they are granted a work permit. Those who intend to work in Thailand must hold the correct type of visa to be eligible to apply for a work permit.

To secure a work permit in Thailand, a foreigner needs a non-immigrant visa. The non-immigrant visa must be obtained before entering Thailand.

Once the foreigner has a non-immigrant visa, he may begin to process the work permit. The work permit process would take seven business days to accomplish. The work permit application is processed at the Ministry of Labor.

A foreigner is eligible to apply for a work permit as long as he has a non-immigrant visa or a resident visa, has an available employer who will provide documents for work permit, and the occupation he will perform is not prohibited to foreigners.

A Thai company, to be eligible to employ a foreigner with a work permit, must have at least two million Baht in registered capital.

Public-Private Partnerships

In December 2017, the government of Thailand published a new PPP Strategic Plan which sets out the sectors in which infrastructure projects can be developed as Public Private Partnerships (PPPs) and also lists out the projects within the PPP pipeline. This new Strategic Plan reaffirms the importance of developing infrastructure to the Government and economy of Thailand and presents new opportunities for both Thai and foreign infrastructure developers and investors.

Areas that require private participation include the development of urban rail transit lines; toll roads in metropolitan areas; public logistics ports; and high-speed rail lines. Areas in which private participation is encouraged are the development of telecommunication networks; high-speed internet networks; intercity toll roads; logistics depots; common ticketing; airport ancillary services; water treatment facilities; water supply and irrigation systems; public education institutions; public health infrastructure; pharmaceutical and medical equipment facilities; science, technology and innovation infrastructure; digital economy infrastructure; convention centers; shelters for the low to middle income, the elderly, the handicapped and underprivileged people; freight rail lines; airports; cruise terminals and facilities; and power infrastructure.

Services Sector

In order to promote investment into Thailand, the Board of Investment (BOI) under The Investment Promotion Act, B.E. 2520 (1977) encourages the services sector by providing various incentives, such as:

• an exemption of corporate income tax for up to 13 years, 50 percent reduction in corporate income tax for up to 8 years, an exemption of import duties on machinery or raw or essential materials;
• Non-tax incentives such as 100% foreign ownership (except for activities included under the FBA’s List 1 or stated in other laws);
• a right to own land and a right to bring in foreign skilled workers and experts to work into Thailand.

Foreign businesses in the services sector that wish to take advantage of such investment incentives should take the following issues into account:

• criteria for project approval, such as environmental protection and minimum capital investment and project feasibility;
• criteria for foreign shareholding, such as the requirement that Thai nationals hold 51% of the registered capital of a Thai entity as well as other conditions as specified in other laws

The BOI may set foreign shareholding limits for certain activities eligible for investment promotion as deemed appropriate.

There are additional incentives for investment in the Eastern Economic Corridor (EEC) or Special Economic Development Zones (SEZ). Apart from the Investment Promotion Act, B.E. 2520 (1977), there are investment incentives under other acts such as The Industrial Estate Authority of Thailand Act, B.E. 2522 (1979) and The Petroleum Act, B.E. 2514 (1971).

Foreign Contractors

Infrastructure development in Thailand has accelerated in recent years, bringing numerous opportunities for foreign-based engineering, procurement and construction (EPC) firms looking to participate in projects in the country. Potential investors need a thorough understanding of the legal and regulatory framework before expending time, energy and capital pursuing opportunities. The most significant law relating to the participation of foreigners in business activities in Thailand is the Foreign Business Act BE 2542 (1999). The Lists under the FBA place restrictions on a number of activities in which engineering and construction firms might seek to engage, such as architectural, engineering and construction services, as well as wholesale or retail trading with registered capital under 100 million baht and other ancillary services. A company that has half or more of its shares held by non-Thais will be deemed as “foreign” under the FBA and thus subject to its restrictions.

Foreign companies and foreign majority-owned Thai companies wishing to engage in these activities in Thailand must first obtain a foreign business license or foreign business certificate from the Department of Business Development at the MOC. Each separate business will be scrutinized for the purposes of assessing compliance under the FBA. A company with a foreign business license as architects, for example, may not automatically engage in engineering or construction activities. Foreign companies must also be aware of professional licensing requirements, so they are well advised to comply with the regulations of the relevant professional organizations.

Franchising

The Franchise business in Thailand is currently unregulated and requires no license, although there are many well-known franchise restaurants and brands operating in the Kingdom. The Trademark Act, the Trade Competition Act, Patent Act, Copyright Act, Trade Secret Act, and Trade Competition Act, and Foreign Business Act apply and have a significant impact on the franchise businesses. Under the pending draft of Thailand’s Franchise Business Act, “franchise” is defined as the operation of a business in which one party called a ‘franchisor’ agrees to let the other party, the ‘franchisee,’ operate the business using the forms, systems, procedures and intellectual property rights of the franchisor, or to use its rights to operate a business during a specified time or in a specified area, such operation being under the direction of the franchisor’s business plan, and the franchisee having a duty to reimburse the franchisor.

Under the current draft version, the franchisee will require a franchise license, and the franchise agreement has to be in written form and registered with the Ministry of Commerce. A Franchise Commission Agency will be created as a regulatory body.

FINANCIAL ISSUES

Taxation

Thailand’s International Business Centre (IBC) regime was enacted on 28 December 2018 and became effective the following day.

Corporate income tax was reduced to the rate of 8 per cent, 5 per cent or 3 per cent on qualifying services income received from affiliates; the applicable rate depends on the level of annual expenditure in Thailand, being THB60 million, THB300 million and THB600 million, respectively.

The IBC regime provides various tax incentives for 15 years, such as:

• Dividends received by IBC from its subsidiaries are exempted from Thai tax;
• Withholding tax exemption under certain criteria;
• Flat personal income tax rate exemption.

To obtain such exemptions one has to meet the following requirements:

• maintaining paid up capital of at least THB10 million;
• employing at least 10 skilled employees.

If a company with IBC status fails to satisfy the criteria for more than one consecutive year, the IBC status may be revoked and the tax incentives clawed back, with penalties and surcharges, from the first year the incentives were granted.

Repatriation of profits: In addition to paying dividends, profits may be repatriated through various means including payment of royalties and/or service fees.

Foreign exchange controls: The Exchange Control Act, B.E. 2485 (A.D. 1942), as amended, governs all matters involving foreign exchange. As a general rule, all matters involving foreign currency are regulated by, and require the permission of, the Bank of Thailand. Since May 22, 1990, however, foreign exchange control has been considerably relaxed by the Bank of Thailand. At present, certain transactions in Thai Baht or foreign currency can be performed virtually without restriction, and only a few require approval from the Bank of Thailand.

Individuals in transit may normally bring foreign currency and negotiable instruments into Thailand without limit. They may also freely take out of the country all foreign currency they had brought in, without limit. Individuals in transit, however, may not take out Thai currency exceeding 50,000 Baht per person, except for trips to countries bordering Thailand (Myanmar, Laos, Cambodia, Malaysia and Vietnam), where an amount of up to 500,000 Baht is allowed. There is no restriction on the amount of Thai currency that may be brought into the country.

There are usually no restrictions on the amount of foreign currency or negotiable instruments that a resident may bring into Thailand. All such currency and instruments must be sold to, or deposited into, a foreign currency account with a commercial bank within seven days from the date of receipt or entry into the country, however.

There is no restriction on the import of foreign currency in the form of investment funds, offshore loans, etc. Such foreign currency, however, must be sold or exchanged into Thai Baht, or deposited in a foreign currency account with an authorized bank, within seven days from the date of receipt or entry into the country. An application form F.T. 3 or F.T. 4 must be submitted to an authorized bank for each transaction involving the sale, exchange or deposit of such foreign currency in an amount exceeding USD 5,000 or its equivalent.

Transfer pricing rules

Guidelines have been issued to counter aggressive inter-company pricing practices and to ensure that such payments are reflected at market value. These guidelines are intended to prevent the manipulation of profits and losses within a group of related companies and to ensure that goods and services traded between related companies are priced at an arm’s length value. The Revenue Department has the power to assess income resulting from transfers which it deems are below market value.

State-Owned Enterprises and Privatization

As of October 2017, the Royal Thai Government held majority ownership in 56 state-owned enterprises (SOEs), which include 46 non-financial SOEs concentrated in key economic sectors such as communications, power generation and distribution, transportation, and water management and ten financial SOEs; including a state-owned bank, a government pawnshop, and eight specialized financial institutions (SFIs). [Any update since 2017?]

In 2016, SOE total assets amounted to 14.9 trillion baht (US$450.8 billion) while revenues amounted to 4 trillion baht and profits amounted to 291 billion baht. The average return on assets for all SOEs was 1.6%. SOE’s total investment budget is budgeted at 800 billion baht (US$24.2 billion) for FY2017.
Stock Market

The Stock Exchange of Thailand (SET) is the national stock exchange of Thailand. At the end of 2017, the Stock Exchange of Thailand had 688 listed companies with a combined market capitalization of 17.92 trillion baht or US$560 billion. [Any update since 2017?]

Competition

The Trade Competition Act 1999 (“TCA”) was amended on early 2017 and became effective at the end of 2017 with the purpose of improving the autonomy and impartiality of the Office of the Trade Competition Commission of Thailand (OTCC), which is currently a separate legal entity. As a result, it now has power to impose various sanctions, including financial penalties, and to issue cease-and-desist orders to suspend, cease, or amend any anticompetitive conduct to ensure an equal, level playing field, which is a longstanding policy goal.

The TCA applies to various sectors of business operators and, in certain cases, state enterprises. It provides additional factors to weigh in regard to abuse of market dominance, expands the scope of the definition and requirements in regard to merger control, grants a right to claim compensation by the injured person, and sets a clear prohibition on unfair trade practices.

Intellectual Property

The intellectual property (IP) environment in Thailand has continued to improve in recent years. In December 2017, the United States Trade Representative(USTR) moved Thailand from the Special 301 Priority Watch List to the Watch List after the out-of-cycle review conducted by USTR. Thailand remained on the WL in 2018.

While there has been improvement in official enforcement efforts, and there were no Thai markets listed in the 2017 USTR Notorious Markets Reports (released in January 2018), many concerns with IP protection and enforcement still remain. Online and mobile piracy continues to increase and physical goods piracy and counterfeiting on a commercial scale remain problematic. The United States continues to urge Thailand to impose sentences that would deter more potential offenders.

U.S. IP right owners should consider obtaining IP protection in Thailand before introducing their products or services to the Thai market. Companies may wish to require non-disclosure agreements to be signed, or seek advice from local attorneys or consult with experts in Thai IP law before disclosing their technologies to local partners.

The Department of Intellectual Property (DIP) oversees Thailand’s IP system. U.S. IP owners may register IP rights in Thailand for trademarks, patents, designs, layout-design of integrated circuits, and geographical indications. An address for service in Thailand and a local agent or attorney are generally required when filing IP applications at DIP.

As a member of the World Trade Organization (WTO) and World Intellectual Property Organization (WIPO), Thailand generally complies with international intellectual property standards established by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Thailand is also a party to the Patent Cooperation Treaty (PCT) and the Madrid Agreement Concerning the International Registration of Marks (known as the Madrid System). Patent and trademark applicants may use these international systems for filing international patent and trademark applications when requesting protection in Thailand.

Copyrights are protected in Thailand without any registration requirement; formal recordation of copyrights at the DIP’s Copyright Office is recommended as it would be useful as evidence of ownership in the event of a dispute. A copyright notice should also be affixed to the copyrighted work.

Trade secrets, such as data, formulas, or other confidential information used in business, may be protected in Thailand if the owner provides appropriate measures to maintain the secrecy.

Legal System

Thailand has a predominantly civil law legal system, but it is a hybrid of many influences. During the 19th century, Thailand legal system was developed to model the French civil system, and is thus primarily statute based, with major Codes resembling those of European civil law jurisdictions. Common law features are also evident, such as the separation of powers, as are the ancient Hindu traditions.

The Thai legal system is a statutory law system, which means it is mostly based on written law passed by the legislature. Primary sources of law include the Constitution, which is the supreme law, legislation such as Codes and Acts, decrees and custom. Judicial decisions are not binding, but in practice Supreme Court decisions are persuasive, have some precedential value, and are often used as secondary authoritative sources of law.

Court system

The judiciary of Thailand is composed of four distinct systems: the Court of Justice, the Administrative Court, military courts, and the Constitutional Court of Thailand.

Arbitration

In Thailand, which has signed both the New York and Geneva Conventions, arbitration is an alternative for going to court. Since 2002, Thailand has followed the UNCITRAL Model Law on International Commercial Arbitration for its own arbitration mechanism. The country now adopts the same framework for domestic and international arbitration in order to avoid complications in interpretation and execution. The present arbitration procedure in Thailand gives the parties the autonomy to frame proceedings in the manner that they deem to be most efficient. It also ensures that parties will have reasonable opportunity to be heard in respect of their claims and arguments.

Since 2000, foreigners may already serve as arbiters. Foreign lawyers may also represent their clients in arbitral proceedings.

Arbitration has been increasingly drawing attention in Thailand. Aside from the business sector, some government entities have also used this mechanism to reduce the amount of litigation in Thailand, like the Department of Insurance, the Department of Intellectual Property and the Security and Exchange Commission.
Thai courts are responsible for enforcing arbitration agreements if the parties’ contract provides for dispute resolution by arbitration. They have a duty to dispose of a filed case if they find that the agreement to arbitrate has not been followed. A court may also appoint an arbiter in case the parties fail to agree on the appointment.

While arbitral agreements cannot be considered as legal precedents, the courts and the judicial system have accepted the importance of arbitration, as well as the essential role of arbitral tribunals.

Two Thai institutes have been established to support this process: the Thai Arbitration Institute of the Office of the Judiciary and the Thai Commercial Arbitration Institute of the Board of Trade.

Recognition and enforcement of foreign arbitral judgments

Foreign arbitral awards are enforceable in Thailand, as Thailand is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (otherwise known as the New York Convention). Such an arbitral award must be submitted to the Court for recognition and enforcement within three years from the date that the award is enforceable. Such enforcement is, however, subject to the discretion of Thai courts to reject enforcement thereof on the grounds as stipulated in Sections 43 and 44 of the Thai Arbitration Act 2002.

Spotlights

THAILAND

As businesses today face a constantly evolving environment, a paradigm-shifting approach to legal advice is required.

Founded in 2015, Kudun & Partners is a modern and award winning full-service law firm led by some of South East Asia’s most accomplished lawyers with a desire to provide more commercially minded and creative legal advice to our clients. Since inception, we have attracted many lawyers, including senior partners with over 20 years of experience from major international firms. These leading individuals bring an international standard of legal practice with extensive local experience in the Thai legal landscape, representing various entities on transactions in Thailand and Southeast Asia. With 16 partners and a dedicated team of over 50 lawyers and 30 business professionals as well as language capabilities in Thai, English, Japanese, and Chinese, we take pride in being one of the few local firms that offer a comprehensive one-stop service solution to clients, ensuring success in this challenging market.

Clients value our responsiveness and distinctly commercial attitude, as well as our passion for developing forward-thinking, innovative strategies and solutions that respond to their unique business needs. In only eight years since our inception, we have been awarded the highly coveted Thailand Law Firm of the Year by The Legal 500 Southeast Asia Awards 2020/2021 and 2023, a reflection of the firm’s commitment to deliver work that exceeds expectations and raises industry standards.

With a global network through the World Services Group, we serve leading Thai and international clients across a spectrum of practice areas including capital markets, banking and project financing, corporate and mergers & acquisitions, dispute resolution, litigation and arbitration, foreign direct investment, projects and energy, labor and employment, real estate, restructuring and insolvency, tax and transfer pricing, and technology, and media and telecommunications (TMT).

Kudun & Partners is consistently recognized as a top tier firm by international legal directories, including The Legal 500, IFLR1000, Chambers and Partners, Asialaw, International Tax Review, and Benchmark Litigation. Our commitment to excellence is reflected in the numerous accolades we have received, including:

• Thailand Law Firm of the Year, 2020/2021 and 2023 by The Legal 500 Southeast Asia Awards
• Thailand Firm of the Year, 2023 by Asialaw Award
• Client Choice Award – Thailand Firm of the Year, 2023 by Asialaw Award
• Thailand Law Firm of the Year, 2022 and 2023 by Benchmark Litigation Asia-Pacific Awards
• Thailand’s Best Overall Law Firm of the Year, 2023 by Asia Business Law Journal
• Thailand’s Most Responsive Domestic Law Firm of the Year – Honorable Mention by In-House Community Firms of the Year, 2019, 2021 – 2022

At Kudun & Partners, we stand at the forefront of legal innovation, providing tailored solutions that meet the unique business needs of our clients.

Press Releases

Kudun and Partners Promotes Two New Partners; Thitawan in Capital Markets Practice and Kongwat in Dispute Resolution, Litigation and Arbitration Practice

25th January 2023 January 17, 2022: It is with great pleasure that we announce the promotion of Thitawan Thanasombatpaisarn and Kongwat Akaramanee to partners of Kudun and Partners. Thitawan, our new capital markets partner, and Kongwat, our new dispute resolution partner, have been valued members of our team for many years, and has consistently demonstrated exceptional legal acumen and a deep commitment to our clients. We are certain that our new partners will play a vital role in shaping the direction of the firm and driving our sustained growth.

Kudun and Partners represents Yong Concrete PCL on its IPO with a market capitalization of THB 1.7 billion (approx. USD 47.15 million).

16th August 2022 Kudun and Partners represented Yong Concrete Public Company Limited, one of the largest manufacturers and distributors of precast and ready-mixed concrete products in central and western Thailand, with respect to its IPO with a market capitalization of THB 1.7 billion (approx. USD 47.15 million). At the opening of this first trading day, the company received an 80% increase in its IPO subscription price from THB 2.50 per share to THB 4.50 per share.

Two high-net-worth Thai individuals acquire 61% shares of Nation Broadcasting Corporation PCL. from Nation Group (Thailand) PCL. for a total value of THB 898 million.

16th August 2022 Kudun and Partners represented two high-net-worth Thai individuals on their acquisition of approximately 61% shares in Nation Broadcasting Corporation Public Company Limited from Nation Group (Thailand) Public Company Limited for a total value of THB 898 million.

Kudun and Partners represented Platt Finserve Co., Ltd. in the sale of 50% of the total issued shares from Cash Machine Capital Company Limited to Sabuy Technology Public Company Limited (SABUY)

16th August 2022 Kudun and Partners represented Platt Finserve Co., Ltd. in the sale of 50% of the total issued shares from Cash Machine Capital Company Limited to Sabuy Technology Public Company Limited (SABUY) for a total value of THB 1.13 billion. The acquisition is part of SABUY’s business expansion into automated teller machines (ATMs) as Platt Finserve Co., Ltd. holds the right to install 10,000 in front of 7-Eleven convenience stores across the country for 10 years.

Kudun and Partners represents Ichitan Group PCL. on its acquisition of shares in Predictive Co., Ltd.

16th August 2022 Kudun and Partners represented Ichitan Group Public Company Limited—a leading and hugely popular Thai beverage company that manufactures a wide range of beverages such as green tea, herbal, fruit, and energy drink—with respect to the acquisition of newly issued ordinary shares of Predictive Co., Ltd. for a total value of THB 122.6 million.

Kudun and Partners represents Quantifi Photonics Limited on its acquisition of shares in SmarTest Thailand

16th August 2022 Kudun and Partners represented Quantifi Photonics Limited, a company headquartered in New Zealand and an expert in harnessing, manipulating, and measuring the physical properties of light, with respect to the indirect share acquisition of SmarTest Thailand Ltd., a designer and manufacturer of high-speed test and measurement equipment used in optical communication, semiconductor manufacturing, and defense and aerospace industries.

Thailand’s digital asset market further boosted by exemption from 7% VAT when trading on authorized exchanges

10th August 2022 Following the abolition of the requirement to pay personal income tax on capital gains from cryptocurrency and digital asset trading on authorized digital asset exchanges in March 2022, the Thai Government has further eased tax rules by suspending the requirement to pay 7% value-added tax (“VAT”) on income derived from cryptocurrency and digital token trading until the end of 2023.

REIT Buy-Back Update

10th August 2022 Following the launch of a real estate investment trust with buy-back condition (the “REIT buy-back”), which we extensively covered in our last article, “Overview of REITs with buy-back conditions: The new mechanisms to help real estate owners survive in the midst of Covid-19”, aiming to alleviate the woes that business operators, particularly the hospitality sector, have endured during the Covid-19 era, on May 10, 2022, according to information revealed by the director of the Fiscal Policy Office, the cabinet resolved to initiate measures to support business operators who wish to embark on structuring a REIT buy-back by reducing their burdens relating to the payment of official fees that arise on the transfer date at the land office.

BOI Approves Updated Investment Measures to Boost EV Charging Stations Businesses

10th August 2022 Following its initiative to encourage investment in the electric vehicles (EV) sector in 2017, the Office of the Board of Investment (“BOI”) anticipates the expansion of the domestic market for EV manufacturing in Thailand, as it encourages consumers to embrace utilizing EVs. Therefore, the BOI has regularly updated its policy to promote investment in the EV charging station market, which is the main facility that supports the infrastructure of EVs, by revising and updating the measures, criteria, conditions, and privileges in this industry sector.

Filming in Thailand: Key Considerations for the Foreign Entertainment Industry

10th August 2022

Looking to film in Thailand?

The country’s dynamic natural and urban landscapes, experienced local production houses, and well-equipped hospitality sector have always been major draws for the foreign entertainment industry. In the first four months of 2021 alone, Thailand earned an incredible THB 1.2 billion in revenue from international film production – despite the ongoing pandemic.

Kudun and Partners launches Japan Practice in Thailand led by Emi Rowse Igusa.

9th August 2022 August 1, 2022: Emi Rowse Igusa has joined Kudun and Partners as a partner launching a brand new Japan Practice to cater to the burgeoning Japanese legal needs in Thailand. She is a specialist in commercial litigation and international arbitration and has represented numerous clients in arbitration cases under the ICC, LCIA, SIAC and TAI rules. She has extensive experience in advising clients on commercial contracts, shareholder and joint venture disputes, employment law, investigations (corruption, fraud and corporate governance) and competition law. In addition to practicing law, Emi is a professional counselor. She possesses a unique combination of skills as a lawyer and a counselor, allowing her to comprehend the psychology of dispute resolution, an increasingly topical issue in the field. Emi is half Japanese and speaks fluent Japanese.

Thai Government Accelerates EEC Measures and Extends EEC Application

11th April 2022 In the midst of a new wave of COVID-19 infections, the Cabinet of Thailand approved the draft of a new regulation on March 1, 2022, referred as the Draft Announcement of the Eastern Economic Corridor Policy Committee (“EEPC”) Re: Incentives for Business Operator in the Promotion Zone for Specific Industries B.E …. (the “Announcement”) to enable the EEPC to provide additional incentives to a business operator that has its business located in the promotion zone for specific industries of the Eastern Economic Corridors (“EEC”) program.  These incentives are in addition to the investment benefits that are already provided by the Office of the Board of Investment (“BOI”) in order to attract more foreign direct investment. This draft announcement covers the targeted areas, the applicable incentives and the criteria of the business operator.  The main principles of these regulations are as follows:

Kudun and Partners bolsters its regulatory and compliance expertise with hire from a global accountancy firm.

3rd March 2022 Thanyaluck Thongrompo (Bee) has joined Kudun and Partners as a partner in the firm's Corporate and M&A Practice, focusing on permits, licenses, regulatory, and compliance work. Bee joins from PKF Tax And Consulting Services Thailand Ltd., a member firm of PKF International, where she has been a partner in the firm’s corporate legal team since 2020. Prior to PKF International, she formerly worked with Bolliger & Company Consulting Ltd., DFDL Mekong (Thailand) Limited and KPMG Phoomchai Tax & Legal Ltd.

Kudun and Partners represents STARK Corporation on the issuance of derivatives in the form of warrants.

25th January 2022 Kudun and Partners represented STARK Corporation Public Company Limited on the issuance of derivatives in the form of warrants to purchase ordinary shares of Stark Corporation Public Company Limited Series 1 (STARK-W1) for THB 20 billion (USD 664.4 million) with a term of 4 years from the issuance date of the STARK-W1 Warrants.

Kudun and Partners represents high-net-worth buyers on the 69.18% share acquisition including preparing tender offer for all shares of One to One Contacts Public Company Limited (“OTO”)

25th January 2022 Kudun and Partners represented a group of high-net-worth buyers on the 69.18% share acquisition transaction including preparing Tender Offer for all shares of One to One Contacts Public Company Limited (“OTO”) from Samart Engineering Company Limited and Samart Corporation Public Company Limited in the total amount of THB 464,880,000 (USD 15.5 million). Part of the transaction include our firm providing escrow services for the buyer and the seller.

Kudun and Partners represents CNNC Joint Venture in a successful bid for the construction work of Laem Chabang Port Development Project Phase 3 (Part 1) Off-Shore Construction.

25th January 2022 Kudun and Partners represented CNNC Joint Venture — consisting of three entities, NTL Marine, a subsidiary of Prima Marine PCL., Nathalin and Zhonggang Construction Group from China — in connection with setting up the joint venture company and the submission of bidding proposal to the Port Authority of Thailand for the construction work of Laem Chabang Port Development Project Phase 3 (Part 1) Off-Shore Construction, a key project in Thailand’s Eastern Economic Corridor, which is put forward by the current Thai government to attract investment, boost innovation and upgrade the industries.

Kudun and Partners represents B.Grimm Power Public Company Limited on its cross-border acquisition of the first ground-mounted solar farm project in Cambodia.

25th January 2022 Kudun and Partners represented B.Grimm Power Public Company Limited on a cross-border investment transaction on acquiring 100% shares in a project company that has obtained the right to develop the first-ever ground-mounted solar photovoltaics (PV) project in Cambodia with the power purchase agreement for 30 Megawatts with Electricite Du Cambodge (EDC) for a period of 20 years. B.Grimm is one of the oldest and largest infrastructure developers in Thailand. Upon completion of the acquisition, we continue to assist the client on the project development phase including preparation and finalization of the Construction and Supply Agreements.

Kudun and Partners represents Prima Marine PCL. on the acquisition of Thaioil Marine Co., Ltd. including its subsidiaries from Thai Oil PCL. with a total value of approximately THB 1.6 billion.

25th January 2022 Kudun and Partners represented Prima Marine PCL (SET: PRM) — a full-service provider in the marine transport industry and one of the largest fully integrated business operator in oil tanker and oil and petroleum storages in Thailand — on the acquisition from Thai Oil PCL (SET: TOP) — a subsidiary of PTT Group and the largest oil refinery in Thailand — of all equity interests in Thaioil Marine Co., Ltd. (TM) and of TM’s equity interests in TM’s subsidiaries including TOP Maritime Services Co., Ltd. (TMS), with a total value of approximately THB 1.6 billion.

Kudun and Partners represents Prosper Engineering on the IPO on the mai.

17th August 2021 Kudun and Partners represented Prosper Engineering Public Company Limited (mai: PROS), a provider of engineering systems, design services, contractors, engineering consulting, and system maintenance services in connection with its domestic initial public offering on the Market for Alternative Investment (mai) with an approximate total paid up capital of THB 270 Million.

Kudun and Partners represents Assetwise on the IPO of its shares and the listing of its shares on the SET.

17th August 2021 Kudun and Partners represented Assetwise Public Company Limited (SET: ASW)  — a holding company that has over 15 subsidiary operating core business companies that operate in property development for sale, including condominium, single house, townhome and home office — in connection with business restructuring and its initial public offering (IPO) of its shares and the listing of its shares on the Stock Exchange of Thailand (SET) with a trading value of THB 1.28 billion (USD 40.7 million)

Nex Point’s Investment and Penetration into the Electric Vehicle Business

17th August 2021 Kudun and Partners represented Nex Point Public Company Limited (NEX), in connection with its investment and penetration into the electric vehicle business focusing on public bus through the acquisitions of partial equity interest from the existing shareholders in Beli Service Company Limited, with a deal value of THB 260 million (USD 8.34 million), and Absolute Assembly Company Limited, with a deal value of THB 218.2 million (USD 7 million).

Saksiam Leasing – The 3rd most traded stock on its first day of IPO during the pandemic

3rd August 2021 Kudun and Partners represented Saksiam Leasing Public Company Limited on the IPO preparation for the purpose of offering newly issued shares to the public and listing all shares of the client to the Stock Exchange of Thailand. The size of Saksiam Leasing’s IPO is approximately THB 2 billion (USD 67.5 million).

Kudun and Partners represents a Thai-Japanese consortium on its acquisition (including project financing) of 100% stake in Microfiber Industries Limited.

3rd August 2021 Kudun and Partners represented a consortium consisting of Opes Callan Limited, Hatton Equity Partners (Thailand) and Japan South East Asia Finance Fund L.P., a private equity invested by Development Bank of Japan, on its acquisition (including project financing) of 100% stake in Microfiber Industries Limited for the total value of THB 1.85 billion (USD 58.6 million).

Kudun and Partners represents Prima Marine Public Company Limited in its acquisition of up to 100% shares in Big Sea Company.

3rd August 2021 Kudun and Partners represented Prima Marine Public Company Limited (SET: PRM)  — a full-service provider in the marine transport industry and one of the largest fully integrated business operator in oil tanker and oil and petroleum storages in Thailand — in connection with the acquisition of up to 100% shares in Big Sea Company, a maritime petroleum transportation service company with the second-highest market share in Thailand and owns 14 ships. The transaction was divided into two phases since the acquisition started in 2018 and the second phase was successfully concluded in Q1 of 2021.

Successful dismissal of CAT Telecom’s dispute against our client, Digital Phone Company Limited (DPC) by the Arbitral Tribunal

3rd August 2021 Arbitral tribunal dismissed CAT’s dispute in the allegation of transferring telecom equipment, which CAT claimed THB 13.4 billion and an additional claim for opportunity loss of THB 116 million per month.

An Essential Guide to Preparing Your Startup for a Legal Due Diligence Process

25th May 2021 Every startup aspires to become a “unicorn”, where the business is valued to achieve over USD 1 billion.  However, the path for startups to reach the unicorn status is a bumpy road and to achieve that success, funding becomes a critical element that provides the company the resource to continuously conduct its products/ services development and expand its business. While obtaining funding is an uphill task itself, one of the most crucial ingredient to obtain funding is the Legal Due Diligence (“LDD”).

What is Legal Due Diligence?

LDD is the process of gathering, understanding and evaluating all legal risks prior to an investment or funding by the investor.  The investor conducts LDD to fully understand the benefits and risks for the investment. Prior to the LDD, the potential investor would provide to the business the “Term Sheet”, a document consisting of the framework and key terms that are set up for negotiating in the final definitive agreements such as share subscription agreement and shareholders’ agreement. Conversely, LDD keeps and prevents startups from conducting non-compliance activities and take effective measures to prevent such conduct. At every funding stages listed below, LDD is required. Before conducting LDD, a startup will enter into the Term Sheet with investors, which is a non-binding document that indicates the proposed terms and conditions of a potential transaction.  Key terms of the Term Sheet are generally comprised of provisions on the proposed transaction and valuation, investment instruments, investment considerations, pricing of shares, the condition precedent to closing, share transfer restriction, representations and warranties, drag-along or tag-along rights, exclusivity period, due diligence, non-compete agreement, confidentiality, anti-dilution, governing law, and other relevant provisions. Once the Term Sheet is finalized, LDD will commence.  In this stage, the investors will request to have a face-to-face meeting with founders of the startup and may typically request for a large number of documents that must be carefully examined as follows:

• Company information: Stage of business, products, financial and market plan, operation, potential customers and suppliers.
• Corporate documents and shareholding structure: Memorandum, Articles of Association, records of all minutes of board meetings and shareholder meetings for the last three years, list of shareholders, share register book, share certificate, and any tax registration.
• Financial documents: Audited financial statements for the last three years, recent unaudited financial statements, documents relating to banks or other lenders including financing documents and loan documents.
• Material agreements: Material agreements that might adversely affect the transaction i.e. partnership agreement, agreement on supply, maintenance, sale and purchase of goods, lease agreement, licensing and franchise agreement, and other operating agreement of the business.
• Assets: Documents relating to properties and intellectual property-related i.e. trademarks, copyright and patents, immovable property and movable property, and inventory.
• Permits and licenses: All licenses including permit, certificate, approval and application issued to a company.
• Human resources: Total number of employees, employment agreements including employee entitlements, health benefits and welfares, work rules, HR policy, work permits, and current labor disputes.
• Insurance: Insurance policies such as employee health insurance and asset insurance.
• Litigation: Pending litigation by or against the company, or any potential litigation, arbitration or investigation, and insurance program that covers liabilities of the company.

When completing the LDD, the results obtained will determine the decision making of all investors, which will directly impact the valuation of the startup.

Considerations

We have highlighted the following common issues that we have previously encountered, which should be taken into consideration when preparing the LDD:

• Growth: All investors wish to deeply understand the company’s markets and products, and ensure that such startup can grow and, in return, offer strong earnings growth to investors.
• Incomplete documents: When a startup cannot provide documents evidencing the registration of the company, share register and share certificate, tax documents, or any other past records, investors become weary amid uncertainty. Lacking such documents may create distrust and startup appearing less credible.  Hence, startup should ensure that all documents are properly recorded since the start of its business operation.
• Permits and licenses: Startup fails to apply for relevant licenses and fails to comply with licensing requirements. Also, permits and licenses are not renewed within a specified period of time.
• IP assignments: Technically, the investor wishes to ensure that the ownership and rights of work product created by any employee is properly transferred to the company.
• Loan transaction: As investors wish to ensure that loans do not have legal risks, loan transactions from either directors, employees or external sources must be evidenced in official forms as stipulated by the law.
• Human resources: Work rules that are not in compliance with Thai law including the hiring of foreign workers that do not have a legal work permit needs to be addressed and rectified.
• Litigation: There are lots of pending litigation and arbitration, which put the business at risks.

While tedious, LDD is a process that will help ensure preparedness and maintain transparency, which is highly significant for startups as it helps to ensure the credibility of the startup allowing investors to critically assess the business and be fully informed of their investment before it can consider entering into any transaction with any investors or even listing it in the capital market. As we are one of the pioneers in providing not only legal expertise but pragmatic business solutions to startup companies, please contact our Startup team at Kudun and Partners for further information.

Launching Your IPO During the COVID19 Pandemic – To Delay or Not to Delay, that is the Question…

25th May 2021

Living in Uncertain Times

More than a year has passed since our lives were turned upside by the outbreak of COVID-19.  Across the globe, millions of people have succumbed to the virus and countless businesses have collapsed.  In Thailand, although the loss of life has been relatively low, the pandemic has devastated the country’s economy. Whilst most business sectors have experienced the disruptive effects of the pandemic, the travel and tourism industry, which accounts for approximately 15% of Thailand’s GDP, has been particularly hard hit – with many hotels, airlines, travel agencies and tour operators being forced to shut down. This, in turn, has caused business and investment sentiment in Thailand to remain generally cautious.

COVID19 Relief: Thai Government Announces Substantial Tax Cuts for Property Owners

25th May 2021 For the second consecutive year, the Thai Government has announced substantial tax relief measures for property owners in an effort to soften the economic impact of the COVID19 pandemic.   

Seven Key Legal And Business Issues Every Startup Founder Needs to Know

25th May 2021 It’s no surprise to learn that the founders of new startups often spend a majority of their time focused on growing their business by developing, refining and marketing their product or service, hiring great people, and working tirelessly to get potential investors excited enough about their ideas and business plan to make an investment.  However, in the rush to move things forward as quickly as possible, many other important matters are swept to the side at the early stages on the basis that they are not critical.  Also, due to cost concerns, hiring lawyers and other professional advisors is usually out of the question.

Successful representation of AIS in the ‘English Premier League’ injunction request

23rd February 2021 Our firm successfully defended Advanced Info Service Public Company Limited (“AIS”)and its group companies i.e., Mimo Tech Company Limited, Super Broadband Network Company Limited and Advanced Wireless Network Company Limited, with respect to ‘English Premier Leauge’ request for a non-violation of copy right for the first time in Thailand history.

Kudun and Partners assisted EXIM Bank of China on the China-Thailand HSR project

16th November 2020 Kudun and Partners provided legal advice to  Export-Import Bank of China, Tianjin Branch for the Nong Khai High-Speed Railway, part of Thailand’s portion of the Trans-Asian Railway Central Line, and Belt and Road Initiative. The assignment was led by our partner and Head of China Practice, Mayuree Sapsutthiporn, senior associate, Peerasanti Somritutai and associate, Chavisa Jinanarong.

Kudun and Partners represents Areeya Property in a rare divestment involving “during-construction�

16th November 2020 Kudun and Partners represented Areeya Property Public Company Limited, a leading real estate developer listed on the Stock Exchange of Thailand (SET), on the divestiture of Mega 1 and Mega 2 Projects — an extremely rare transaction involving the “during-construction” residential condominium projects located in Bangkok’s Bang Na area, a rapidly growing suburb near to the Suvarnabhumi International Airport — to Real Asset Development Co., Ltd. at the approximate value of THB 1.1 billion (USD 37 million).Kudun and Partners represented Areeya Property Public Company Limited, a leading real estate developer listed on the Stock Exchange of Thailand (SET), on the divestiture of Mega 1 and Mega 2 Projects — an extremely rare transaction involving the “during-construction” residential condominium projects located in Bangkok’s Bang Na area, a rapidly growing suburb near to the Suvarnabhumi International Airport — to Real Asset Development Co., Ltd. at the approximate value of THB 1.1 billion (USD 37 million).

Kudun And Partners Appointed to Represent Various Creditors in Thai Airways Business Rehabilitation

26th October 2020 Kudun and Partners has been officially appointed to represent a total of 87 savings co-operatives in their capacity as creditors of Thai Airways International Public Company Limited in Thailand’s largest-ever business rehabilitation proceeding to date, with debts estimated to be in excess of THB 352.49 billion (approximately USD 11.34 billion).

Kudun and Partners strengthens international practice with new partner hire

19th July 2019 Thailand’s Kudun and Partners has recently strengthened its international practice with the appointment of Troy Schooneman as partner and head of its international practice group.

Kudun and Partners strengthens international practice with new partner hire

19th July 2019 Thailand’s Kudun and Partners has recently strengthened its international practice with the appointment of Troy Schooneman as partner and head of its international practice group.

Legal Developments

Renewable Energy Thailand: Pioneering Sustainability in Southeast Asia

23rd February 2024 As global environmental awareness surges, renewable energy stands at the forefront of sustainable development, playing a vital role in shaping a greener future. In this context, nations are increasingly turning to renewable sources as pivotal elements of their energy strategies.

Work Permits and Thailand Labour Law: A Foreign Worker’s Compliance Guide

23rd February 2024 Navigating the complexities of work permits and labour laws in a foreign country can be a daunting task for expatriates and international companies.

Intellectual Property Protection: Safeguarding Foreign Direct Investments in Thailand

23rd February 2024 Intellectual property disputes can have staggering financial implications for businesses. One of the most notable examples is the IP battle between Samsung and Apple, which transcended borders and delved into the intricate details of design and utility patents.

Thai Court Litigation vs. Arbitration: Deciding the Right Dispute Resolution Option for Your Legal Contract

23rd February 2024 Business entities frequently find themselves at a crossroads when deciding on the ideal dispute resolution clause for their agreement.

Thailand’s Labor Law: A Comprehensive Guide for Employers and Employees

23rd February 2024 Navigating the intricate landscape of Thailand's labor laws can be a challenging endeavor for both domestic and foreign enterprises.

Thailand’s 1-Year Medical Treatment Visa

16th October 2023 In an ever-evolving world where health and wellness take center stage, Thailand has emerged as a beacon of hope and innovation in the global healthcare landscape.

Thailand’s Latest Tax Revolution: Navigating the Common Reporting Standard (CRS)

16th October 2023 Following the recent amendments to the tax treatment of foreign-source income for Thai tax resident individuals, as previously communicated through our legal alert titled,

Thailand’s Tax Policy Shift: Change in Foreign Source Income Tax Treatment for Thai Tax Resident

16th October 2023 On September 15, 2023, the Thai Revenue Department (“TRD”) issued the Revenue Departmental Instruction No. Paw. 161/2566, which addresses the collection of income tax under Section 41, paragraph 2,

Thailand’s Exemption of CIT and VAT on Transfer of Digital Investment Token

16th October 2023

Introduction

The digital investment token is a fund-raising mechanism comparable to securities governed under regulatory framework of similar nature.  However, a distinction arises where the transfer of digital investment token is subject to a tax liability, distinguishing it from the transfer of securities. Thus, in order to establish a synchronized tax liability for both digital investment token transfers and securities transfers, the Cabinet has issued the royal decree, issued under the Revenue Code governing the exemptions of tax and duties No. 779 B.E. 2566 (2023) (the “Royal Decree”) to waive the Corporate Income Tax (CIT) and Value Added Tax (VAT) on the transfer of digital investment token. The latest exemption of corporate income tax and VAT on the transfer of digital investment token aims to make fundraising with digital token more attractive and further boost the digital asset market in Thailand.

What is Digital Investment Token?

The "Digital Investment Token", which is exempted from corporate income tax and VAT under the Royal Decree means an electronic data unit established on an electronic system or network, designed to determine the right of individuals to participate in investment activities in any projects or enterprises, in accordance with the Emergency Decree on Digital Asset Businesses B.E. 2561.

Corporate Income Tax and VAT Exemptions

Under the provisions of the Royal Decree, the exemptions from CIT and VAT for the transfer of digital investment tokens are outlined as follows: a. Corporate Income Tax and VAT exemption Companies or juristic partnerships are granted exemption from corporate income tax and VAT for the transfer of digital investment tokens issued to the public in accordance with digital asset laws in the primary market, starting from 14 May 2021. This exemption applies to the income or value of the tax base. It is important to note that the VAT exemption applies to all types of transferors, including individual transferors, for the transfer of digital investment tokens in the secondary market. However, if such digital token issued to the public in accordance with the digital asset contains both the characteristics of digital investment token and other types of token characteristics, the tax exemptions will solely apply to the digital investment token, which is distinctly differentiated from other digital assets, and such tax exemption will be exclusively applied to digital investment token only. b. Eligibility of tax exemptions Companies or juristic partnerships who wish to enjoy the tax exemptions must comply with the rules, procedures and conditions that are set to be issued by the Director-General of the Revenue Department. However, at the time of writing this article, the Revenue Department has not yet issued any rules, procedures or conditions.

Concluding Remarks

After a considerably long period of anticipation since the cabinet resolution on  March 17, 2023, the tax exemption policy designed to stimulate investments in projects and businesses in the country’s digital economy is finally in place. Nevertheless, it remains crucial to keep an eye on the development of enhancement in the digital economy of the new government and also keep track of the soon-to-be-issued notification from the Revenue Department outlining the procedure for companies and juristic partnerships in obtaining the right tax exemption. We will keep you informed on any subsequent updates. For more information, please get in touch with our digital law practice, or alternatively, please contact the authors.

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Navigating the Crisis: Legal Obligations of Employers under Thai Employment Law

16th October 2023 The epidemic has disrupted livelihoods and social protections on a global scale, while at the same time accelerating pre-existing trends in the employment sector,

SEC Regulatory Update: Changes in Private Placement Regulations and Implications for Listed Companies

16th October 2023 Private placement (“PP”) refers to the offering of equity securities to a specific group of investors[1].

To Invest or Not to Invest in Thailand? Top 3 Tips on How to Avoid Legal Problems When Investing in Thailand

16th October 2023 In this post-Covid era, Foreign Direct Investment (FDI) into Thailand has been on the rise, with FDI inflows and applications for investment promotions increasing 36% from the previous year (approximately 13 billion USD).[1]

The Effects of the Delisting of Marijuana in Thailand and the Thai Government’s Attempt to Address this

25th January 2023 On June 9, 2022, Thailand delisted both cannabis and hemp plants, their unprocessed parts, and carved out extracts containing low tetrahydrocannabinol (THC) level (i.e. < 0.2% by weight) and seed oils derived from cannabis or hemp plants in Thailand from the Narcotics Code, officially becoming the first country in Asia to legalize the cultivation, sale and utilization of the plant for medical and other permitted purposes. For centuries, cannabis was used in Thailand in the form of traditional medicine, until it was banned in the 1930s due to international pressure. In 1979, Thailand’s Narcotics Act specifically designated cannabis and hemp as Category 5 illegal substances. Under this Act, the production, trade or possession of cannabis and hemp was considered a criminal act punishable by heavy fines and/or prison sentences. Thereafter, all activities related to cannabis plants and their derivatives have been highly regulated until a gradual relaxation of the applicable laws over the last few years.

Thailand Introduces Long-term Resident (LTR) Visa to Attract ‘High-Potential’ Foreigners

25th January 2023 Since the lifting of the strict lockdown in the first quarter of 2022 and the decrease in the number of COVID-19 cases, the Thai economy has shown signs of recovery. However, Thailand still faces a battle in bringing its economy back up to pre-pandemic levels in order to compete with its ASEAN neighbors, not to mention the world. Therefore, in June this year, the Royal Gazette formally announced of the introduction of an initiative between the Ministry of Interior (“MOI”), the Ministry of Labour (“MOL”), and the Board of Investment (“BOI”) in the form of a Long-Term Resident (LTR) visa that is designed to attract a new wave of foreign direct investment (“FDI”) and knowledge transfer experts.

International arbitration and the circle of control – a look at the psychological benefits of arbitration and the status of arbitration in Thailand

25th January 2023 There are often many reasons cited as to why international arbitration should be the preferred method of dispute resolution for parties: it can be quicker, cheaper, the process is private, the award is final and the parties have more autonomy over the process. Whilst some of these factors are debatable (especially in highly complex commercial cases), the fact that parties to an arbitration can have more autonomy than in traditional court litigation is usually less controversial. Party autonomy in arbitration is often a significant factor that persuades contractual parties to consider arbitration over other methods of dispute resolution. This is not surprising, as the need to have control and certainty is an innate human desire that often brings us security and peace.

Termination of Employment in Thailand

25th January 2023 According to Thai labour laws, an employer is empowered to terminate an employee’s employment at its will, except for members of the Employee Committee which requires a court order for dismissal. However, the consequences of dismissal with and without statutory causes under the Labour Protection Act B.E. 2541 (the “Labour Protection Act”) will be different in terms of the statutory payments for which the employer is legally required to pay the employee. In this regard, the question “how much statutory payment does the employer have to pay to the employee due to dismissal?” becomes one of the most concerned and critical issues for all employers.

Waste to Energy: The alternatives to waste and energy problems

25th January 2023 With its increasing population and urbanization, Thailand cannot escape from the mountains of solid waste generated in households and in communities across the country. The inappropriate disposal of solid wastes will cause serious ramifications which would be a national nightmare, such as air pollution, water pollution and contagious diseases. All of these issues are harmful not only in the environmental scale, but also in respect of the public health of each domestic sector.

Thailand Legislation Update: Amendment to the Public Limited Companies Act

25th January 2023 On 23 May 2022, the latest amendment to the Public Limited Companies Act (No. 4), B.E. 2565 (2022) (the “PLC Amendment”) was published in the Government Gazette and it became effective on May 24, 2022. The PLC Amendment aims to facilitate public limited companies by allowing greater use of electronic communications in their business operations. The latest amendment is a follow-up to the proposed amendments of the same, which we covered last year in our article Technological Advancements Enable Amendments to the Public Limited Companies Act.

What Startups and Key Investors in Thailand Should Know about Alternative Debt Financing

11th April 2022 With digital technology improving and the pandemic recovery already underway, Thailand’s business world is experiencing a new wave of ambitious startups. In order to succeed in this highly competitive environment, startups require adequate funding from key investors, venture capitalists and angel investors.  In such a crowded environment, however, raising money is no easy task. Attracting the attention of international investors can be difficult, while funding via IPO takes a considerable amount of time and requires jumping a number of legal hurdles. Fortunately, there are simpler options – and this is where alternative debt financing comes in.

Implications of Thailand’s New Central Bank Digital Currency (CBDC)

11th April 2022 The popularity of Bitcoin and other decentralized cryptocurrencies continues to send ripples throughout the financial world. Private companies like Meta (formerly Facebook) have already begun developing their own competing cryptocurrencies, and central banking institutions are likewise working on similar concepts. The introduction of a CBDC (Central Bank Digital Currency) in Thailand is set to begin in 2022 – but assessing its importance requires understanding why many feel that a centralized cryptocurrency is necessary in the first place.

E-Service Tax Law in Thailand: What are the implications?

11th April 2022 In nearly all areas of the economy, technology moves faster than the law. Assertive tech companies, by making the most of their newly developed capabilities, often can enjoy a few years’ worth of relatively unregulated success before lawmakers make an earnest effort to re-stabilize the playing field. This regulatory process is currently playing out in Thailand’s e-service sector, where a newly implemented tax law is set to affect foreign service providers as well as their individual and SMEs clients.

Thai cabinet gives green light to tax benefits to promote startup funding to develop the startup ecosystem in Thailand

11th April 2022 The Thai cabinet has recently approved the draft Royal Decree issued under the Revenue Code regarding income tax exemption on investment in Thai startups (the “Draft Royal Decree”), in cases where the funding for the startups is provided directly or indirectly through Venture Capital (VC), Corporate Venture Capital (CVC), or private equity trust (PE Trust). This Draft Royal Decree aims to unlock  capital gains tax on investment in startups under the Royal Decree No. 597 (B.E. 2559) and No. 636 (B.E. 2560). These tax benefits will be effective for ten accounting periods from the day after the date of the publication of the Draft Royal Decree in the Government Gazette until 30 June 2032. The cabinet anticipates that these tax privileges will facilitate Thai startups to raise more funds from both Thai and foreign investors, leading to faster growth in gross domestic product (GDP) in Thailand, and an increase in the number of workers employed in Thailand.  

Distressed M&A Trends for Post-Pandemic Thailand

17th August 2021 With the pandemic continuing to limit global economic growth, many businesses are running out of options to maintain liquidity. One way out of this situation involves mergers and acquisitions (M&A), a transaction that can manage these pressing financial concerns.

The Rapid Growth of Telemedicine Startups to Combat COVID-19

17th August 2021 The rapid spread of Covid-19 has placed the healthcare system in Thailand under severe pressure. Following the outbreak of the pandemic, new startups focusing on telemedicine have sprung up to take on the challenge of innovating the way healthcare services can be provided to patients. In general, telemedicine aims to assist healthcare professionals in providing services or consultations, including assessment, diagnosis, treatment, and consultation, to patients via “remote technology”, a system providing remote medical facility services i.e. real-time interactive communications, or audio/video conferencing as a method to minimize in-patient visits.

Technological Advancements Enable Amendments to the Public Limited Companies Act

17th August 2021 On May 11, 2021, the Cabinet resolved that the proposed amendments of the Public Limited Companies Act, B.E. 2535 (1992) (the “PLCA”) be made, mainly due to technological advancements that allow certain corporate administrative procedures to now be conducted by electronic means. For ease of reference, the table below highlights the proposed amendments against the existing corresponding provisions under the PLCA.

Is your company ready to be PDPA compliant?

16th July 2021 Thailand’s Personal Data Protection Act (PDPA) forces organizations to comply with sweeping and technically complex data requirements, imposing costly penalties on organizations and individuals who fail to abide by its rules. The law was published in the Royal Thai Government Gazette on 27 May 2019, but enforcement has been delayed twice in order to allow more time for compliance.

Amendments to Interest Rates for Commercial Transactions under Thai Law

16th July 2021

Background

On April 11, 2021, amendments to the Thai Civil and Commercial Code (the “TCCC”) came into effect in Thailand in the form of the Emergency Decree on the TCCC Amendments 2021 (the “TCCC Amendments”).

Thailand’s Transfer Pricing Regulations Update: Adjustment of Income and Expenses, and Threshold for the TP Disclosure Form

16th July 2021 Since the fiscal year of 2019, companies or juristic person belonging to the same group (the “Related Companies or Juristic Partnerships”) are obliged to comply with the transfer pricing regulations set out under the new section 71 bis and section 71 ter of the Thai Revenue Code (the “TP Regulations”).

Proposed New Esports and Online Gaming Law Aimed at Addressing Heightened Concerns about Children’s Health

16th July 2021 Over the past 30 years, the global gaming entertainment industry has experienced a significant and dynamic shift from offline to online gameplay.

Enforcement and Setting Aside of an Arbitral Award in Thailand

23rd February 2021

What is Arbitration?

Arbitration is one of the most effective Alternative Dispute Resolution (“ADR”) approaches to resolving disputes outside the courts. Arbitration is often considered for the resolution of disputes, most commonly used in relation to international commercial transactions.

Removal of Three Restricted Businesses under Thailand’s Foreign Business Act

13th November 2020 The MOC has finalized the draft ministerial regulation that will classify each of the following businesses as an Exempted Business (the “Draft Regulation”):

200% Tax Deduction in Thailand for Investment in Automation System

13th November 2020 On 21 September 2020, the Ministry of Finance has announced a tax incentive to promote investment, improve industrial capacity, enhance global competitiveness, and encourage relocation of a production facility. The incentive is on a tax exemption measure allowing 100% additional tax deduction for the purchase of (1) machinery; and (2) software for its automation system.On 21 September 2020, the Ministry of Finance has announced a tax incentive to promote investment, improve industrial capacity, enhance global competitiveness, and encourage relocation of a production facility. The incentive is on a tax exemption measure allowing 100% additional tax deduction for the purchase of (1) machinery; and (2) software for its automation system. All corporate entities, regardless of their legal forms and types of businesses carried out, are eligible to apply for the tax incentive under the criteria and conditions prescribed under the Royal Decree No. 710 and the relevant notification of the Director-General of the Revenue Department.

The Power of the Automatic Stay

26th October 2020 In the first article of our Business Rehabilitation Spotlight Series, we provided an overview of the anatomy of a typical business rehabilitation in Thailand where we focused on the key considerations for Thai and Foreign Creditors. In this episode, we will highlight one of the key features in a rehabilitation proceeding that comes into immediate effect when the rehabilitation petition is accepted by the Court and continues until the rehabilitation case ends.

Business Rehabilitation Spotlight Series – Debt Repayment Application

26th October 2020 In episode 3 of our Business Rehabilitation Spotlight Series, we will discuss on the most crucial stage for creditors in a business rehabilitation proceeding, which is the “Debt Repayment Application.”According to Section 90/26 of Thai’s Bankruptcy Act B.E. 2483 (A.D. 1940) (the “Bankruptcy Act”), creditors who wish to claim their debt from debtors in the rehabilitation process must file the debt repayment application to the official receiver within one month from the date of publication of the order appointing the plan preparer in the royal gazette. Traditionally, such order will be published in at least two daily newspapers, however, of recent, the Legal Execution Department will announce such order on its website (www.led.go.th) instead of the daily newspapers.

Sending Work-Related Information to Personal Email Account: A Fast Track to the Firing-Line

26th October 2020 The Supreme Court recently dealt with a case in which an employee was dismissed after forwarding confidential work-related information to his personal email account (Supreme Court Decision No. 7189/2562). The court decided that the employment termination was fair and lawful, where the employer is not required to inform the employee in advance for such dismissal. Additionally, the employee was not entitled to any compensation nor severance pay.According to the decision, it can be deduced that the court in this case views the information related to the operation and management of the employer as confidential and sensitive in nature. As such, revealing the information was considered a breach of material obligation by the employee.

Business Rehabilitation in Thailand: What Every Thai and Foreign Creditor Needs to Know

2nd July 2020

This newsletter, which is the first in the series on business rehabilitation in Thailand, takes readers through the anatomy of a typical business rehabilitation proceeding under the Bankruptcy Act and highlights a number of the key preliminary issues that both Thai and foreign creditors should be aware of during each stage of the business rehabilitation process.  

Comparative Guides

• Thailand: Real Estate

  Published: December 2023

  Authors: Peerasanti SomritutaiChavisa JinanarongKamonrat KongtheingChayakorn Boonsri

  This country-specific Q&A provides an overview of Real Estate laws and regulations applicable in Thailand.