Thailand

Market Overview
By

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.

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Foreign Investment Law

WHY THAILAND REMAINS A STRATEGIC INVESTMENT DESTINATION AMID GLOBAL UNCERTAINTY

As the world grapples with geopolitical instability and shifting global trade dynamics – including the recent tensions along the Thai-Cambodian border and U.S. tax pressure – foreign investors may naturally feel cautious. However, a deeper look at Thailand’s economic fundamentals, legal framework, and proactive government policies reveals a resilient and attractive investment landscape. Strategic Location in ASEAN’s Economic Heart Thailand remains at the center of mainland Southeast Asia, serving as a natural hub for trade, logistics, and regional operations. The country is uniquely positioned to access over 660 million consumers across ASEAN, and continues to play a central role in regional supply chains, particularly in automotive, electronics, agritech, and medical industries. Even in the face of regional instability, Thailand’s infrastructure, cross-border logistics, and customs facilitation remain largely unaffected. The government has taken measured steps to insulate commercial zones and economic activities from political or military disruptions, maintaining a functional and secure environment for investors. Resilient Economy with Diversified Strengths Thailand boasts one of the most diversified economies in Southeast Asia. From advanced manufacturing and digital services to agriculture and tourism, the country is not overly dependent on any single sector or trading partner. This diversification has allowed the economy to absorb external shocks better than many of its neighbors. Additionally, Thailand has maintained a relatively low inflation rate and a stable currency, thanks to prudent fiscal and monetary policies. Despite global volatility, the country continues to register steady GDP growth, with significant inflows into green energy, logistics, biotech, and digital sectors. Robust Legal and Regulatory Environment Thailand’s legal infrastructure governing foreign direct investment (“FDI”) is mature, transparent, and business-friendly. Foreign investors are supported and protected under key laws such as the Investment Promotion Act (known as “BOI”) and Eastern Special Development Zone Act (known as “EEC”). Dispute resolution mechanisms, both judicial and arbitral, are well developed. The BOI and EEC continues to offer generous incentives for eligible businesses.   Sample Incentives Corporate income tax exemptions for up to 13 years; 100% foreign ownership in promoted sectors; Import duty exemptions on machinery and raw materials; and Work permit and visa facilitation for foreign staff. Even during geopolitical tensions, BOI and EEC remains fully operational and responsive. In fact, the Thai government has continually promoted digital infrastructure, clean energy, medical innovation, and EV-related investment by offering additional incentives to investors willing to participate in the nation’s strategic transformation. Political Neutrality in Trade Tensions While U.S. policies under Trump may reflect a trend toward economic nationalism, Thailand remains a politically neutral and open economy. It is a signatory to key international treaties such as the Regional Comprehensive Economic Partnership (RCEP), and maintains free trade agreements with China, Japan, Australia, India, and the EU (under negotiation). This neutral positioning allows investors in Thailand to maintain access to both Western and Eastern markets without being directly exposed to retaliatory trade barriers or tariffs.   Conclusion In uncertain times, clarity and control become vital. Thailand offers investors both: a clear legal pathway for foreign ownership, and a stable, investor-oriented environment to grow their regional footprint. While conflicts and shifting global politics may dominate the headlines, seasoned investors know that long-term success lies in resilience, diversification, and institutional support – all of which Thailand continues to deliver. If you're considering your next strategic move in Asia, Thailand deserves a closer look. For legal assistance, please contact: [email protected] Mr. Bunnasomboon Chaiparinya (Aaron) Partner / Head of Corporate Department Email: [email protected]    
Joseph Tan Jude Benny LLP - August 29 2025
Corporate Law

FAQ and All You Need to Know about Incorporating a Company in Thailand

Despite recent political unrest and ongoing border conflicts, Thailand has continued to attract foreign investors across several business sectors in recent years. While the overall concept of company incorporation may be similar to that of other countries, the specific criteria and process for establishing a company in Thailand differ in important ways. In this article, we address the most frequently asked questions from our clients about incorporating a company in Thailand. Our aim is to provide clear, practical explanations to help you begin the incorporation process with confidence. Question 1. Does Thai law allow a company to be 100% foreign owned? The Thai Civil and Commercial Code (the “CCC”), which is the law governing and regulating a limited company, does not prohibit foreigners from holding 100% of shares in a company. Therefore, a company can be legally established and exist with all its shares being held by foreigners. However, if foreigners own 51% or more of a company’s aggregate shares, the company will be regarded as a foreign company. It will then be subject to certain restrictions on business commencement—such as limitations on operating specific types of businesses—under the Foreign Business Act B.E. 2542 (the “FBA”). The details of these restrictions will be further elaborated. Question 2. What is the minimum number of shareholders and any other requirements? Currently, the CCC requires a limited company to have at least 2 shareholders at all time. Shareholders can be individuals and/or juristic persons. Noted that the company promoters, who play the key role in forming and registering the company, must be individuals and must subscribe at least 1 share when incorporate the company. Due to this requirement, these 2 individual promoters will be the initial shareholders of the company. Question 3. Is there any requirement on the minimum number or nationality of director? A company must have at least 1 director. Apart from appointing directors, the company must also register the authorized signatory directors and the signing conditions to bind the company. There are no restrictions or requirements on the qualifications or nationality of the director. However, in case the company is 100% Thai-owned but a foreigner is named the sole or joint authorized director, the company will be required to submit to the Department of Business Development (the “DBD”) the letter or certificate issued by the bank to confirm that all Thai shareholders in the company have a sufficient account balance to subscribe for the shares. The requirement that Thai shareholders must demonstrate financial capability by providing sufficient account balances exists to ensure that they are truly able to subscribe to the company's shares, rather than serving as nominees for foreign investors. This measure helps maintain genuine local ownership and prevents circumvention of foreign investment regulations, thereby supporting transparency and the integrity of Thailand’s business environment. Question 4. What is the minimum registered capital for a Thai company? There is no minimum registered capital required by the law and the company can be incorporated with the registered capital it deems appropriate for commencing its business. If the registered capital exceeds 5 million Thai Baht, the company will be required to submit, together with the application for incorporation to the DBD, the banking evidence which proves the remittance of share payment into any of the directors’ bank account. If all directors are foreigner and unable to open the bank account in Thailand for receiving the share payment, the DBD permits the required bank evidence to be submitted within 15 days after the DBD registrar approved the incorporation. Failure to comply with this timeframe, the DBD is empowered to revoke the incorporation. Question 5. What are the Articles of Association and how are they important? Articles of Association (the “AOA”) are the by-laws of the company. Apart from the provisions of the CCC, directors and shareholders are obligated to manage and control the company in accordance with the AOA. Basically, the AOA will specify certain basic rules about the company, such as, classes and groups of shares, number of directors, limitation of the authority of directors, how to summon shareholders’ or the board of directors’ meetings, how board of directors’ and shareholders’ resolutions can be passed, etc. The Articles of Association of the company can be established in one of the following ways: • Adoption of the provisions of corporate law under the CCC in the absence of any customized articles. • Standard template of AOA as provided by the DBD: The company adopts a government-issued template, which contains standard provisions approved by the authorities and is designed for general use. • Company’s own version of AOA: The company drafts its own set of rules, tailored to its specific needs and preferences, allowing for customization of governance and internal procedures. If the company decides to draft its own AOA, the DBD registrar will review to ensure that no articles are in contradiction to the provisions of the CCC. As such, this option will result in the longer registration period compared with the adoption of the CCC or standard template of the DBD as the company’s AOA. However, in the case of a joint venture company, certain clauses agreed upon by the parties to the joint venture agreement should be incorporated into the AOA. For example, provisions regarding meeting quorum, voting rights, and dividend entitlements should be included. Including these clauses in the AOA helps guarantee that the terms of the joint venture agreement are properly implemented and observed by all parties and the company itself. Question 6. Is it necessary for the company to have an office in Thailand? Yes, the CCC requires the company to register the address of its premises when incorporating the company and this premises must locate in Thailand. In addition to the address, an 11-digit house registration number must also be provided in the application. This house registration number can be found in the document called “Thai House Book” or in Thai as “Tabien Baan” which is an administrative document issued by the local municipality to the house owner or the landlord. In case the company leases space in the office building, the house registration number must be requested from the landlord or lessor. Question 7. Is it necessary to appoint an auditor by the time of the company incorporation? The CCC does not require the company to appoint its auditor by the time of its establishment. Therefore, the appointment of auditor and the determination of the remuneration can be resolved by the shareholders’ meeting later after the company incorporation. Question 8. What is the fiscal year for a company in Thailand? The fiscal year refers to the 12-month period used by a company for accounting and tax purposes. In Thailand, the company can choose its own fiscal year (e.g., April 1 to March 31 or July 1 to June 30) as long as it is clearly stated in its Articles of Association, which does not necessarily have to follow the calendar year (January 1 to December 31). Many companies prefer their fiscal year to start and end on the same date as their parent company. This alignment simplifies the process of combining financial statements and ensures consistency in reporting across the corporate group, making financial consolidation more efficient. Question 9. How long does it take to register a company in Thailand? The registration process typically takes about 3–5 working days after the complete application and supporting documents are submitted to the DBD registrar. The DBD registrar may require additional time to review the application, depending on the volume of pending cases and the complexity of the submission. For example, if the Articles of Association of the company are complex and contain many special clauses, this may take additional time for the registrar to review and approve the application. In some instances, the registrar may request amendments to the content of the Articles of Association to bring it in line with the provisions of the CCC. For instance, a clause that grants unusual voting rights to certain shareholders might need to be revised to comply with standard company law requirements. Question 10. Can a company immediately commence business in Thailand after being registered? Once the company is registered with the DBD, it can commence business within the scope of objectives it registered with the DBD. However, if 51% or more of total shares in the company is held by foreigner, its business operation will be subject to the restriction under the FBA. By virtue of the FBA, a foreign company is prohibited from carrying out certain types of businesses in Thailand unless they obtained a Foreign Business License (FBL) or Foreign Business Certificate (FBC) issued in accordance with the approval from the Board of Investment of Thailand (BOI), the Industrial Estate Authority of Thailand (IEAT), or in compliance with any treaty to which Thailand is a party. There are 3 Lists of prohibited businesses for foreigner as annexed to the FBA as follows: List 1: Businesses that are strictly prohibited for foreigners by special reason, such as land trading, rice farming, livestock farming, radio broadcasting station, extraction of Thai medicinal herbs, making or casting Buddha Images and monk alms-bowls, etc. List 2: Businesses related to national safety or security or having impacts on arts, culture, traditions, customs and folklore handicrafts or natural resources and the environment, such as production of wood carvings, domestic transportation, salt farming, mining, etc. List 3: Businesses that Thais are not ready to compete with foreigners, such as engineering services, architectural services, legal and/or accounting services, other services, construction, retail sale, wholesale, etc. For legal assistance, please contact: [email protected] Mr. Krittin Pollagan Partner 
Joseph Tan Jude Benny LLP - August 29 2025
Intellectual Property

New Copyright Act amendment: What’s changing

An update on the draft amendment to Thailand’s Copyright Act In brief The new draft amendment to the Thai Copyright Act has been reviewed by the Office of the Council of State (OCS) and placed for public hearing between 8 and 22 August 2025, retaining the original draft’s intention to endorse performers’ rights while offering clearer, more detailed provisions. Here’s what’s new. In more detail Casting your mind back to 2023, we issued a newsletter detailing the draft amendment to the Copyright Act (link) and its objective of harmonizing Thai copyright law with the WIPO Performances and Phonograms Treaty (WPPT). An initial round of public hearings was scheduled to follow, culminating in the Cabinet’s approval of the draft amendment and its review by the OCS. In light of this, the Department of Intellectual Property has held another public hearing on the updated draft amendment to the Copyright Act between 8 and 22 August 2025. While the key provisions from the earlier draft remain relevant, the current version introduces several notable considerations, including: Definitions: To enhance clarity and ensure adaptability to the evolving electronic and digital landscape, the draft proposes revisions to the definitions of audiovisual work, cinematography, sound recording, communication to the public, and publication. Moral rights: The draft clarifies provisions on moral rights for both authors of copyrighted works and performers, including: (i) the right to be identified, and (ii) the right to object to derogatory treatment. It also introduces a remedy for authors and performers through the publication of court decisions concerning infringement of moral rights. New scheme for performer remuneration: Under the draft, performers are entitled to equitable remuneration for the use of their commercially published sound recordings (including those made available online for on-demand access), whether through sound broadcasting or communication to the public. Users of sound recordings shall make a single payment either (a) directly to the performer, or (b) to the copyright holder, who will subsequently allocate the remuneration to the performer. Where remuneration cannot be agreed upon, the Copyright Committee is vested with the authority to determine an equitable amount. Limitation period for transfer of remuneration rights: The draft proposes limiting the transfer of the right to remuneration to a maximum period of five years, whereas the existing law does not impose such restriction. However, any assignment agreement of performers’ rights executed prior to the effective date of this amendment and still in force shall remain unaffected by this change. Destruction of infringing goods in civil cases: To provide further remedies to rights holders, the draft amendment proposes authorizing courts to consider ordering the destruction of copyright-infringing goods in civil cases at the infringer’s expense, upon the rights holder’s request. This amendment also applies to cases ongoing in the courts on the effective date of this amendment. Removal of minimum penalties: The draft proposes to remove all minimum penalties for all liabilities under the Copyright Act, allowing courts to exercise more flexible discretion when imposing penalties. Once the draft is finalized, it will proceed through the legislative process in the House of Representatives. For further information, specific inquiries, or an assessment of how this draft amendment may affect your business operations, please contact our team for tailored assistance. Contact Us Nont Horayangura Partner nont.horayangura @bakermckenzie.com Yada Viseswongsa  Senior Associate yada.viseswongsa @bakermckenzie.com Burin Saekow Associate burin.saekow @bakermckenzie.com
Baker McKenzie LLP - August 28 2025
Dispute Resolution

In depth Analysis of the Risk of Doing Cannabis Business in Thailand and Strategies for Mitigation

Cannabis Legal History in Thailand Thailand has a long and complex relationship with cannabis. Historically, cannabis (ganja) was widely used for medical, culinary, and cultural purposes. For centuries, Thai traditional medicine employed cannabis extracts as remedies for pain relief, appetite stimulation, and treatment of various ailments. However, under the Narcotics Act B.E. 2522 (1979), cannabis was classified as a Category 5 narcotic, rendering its cultivation, possession, and use strictly illegal. Penalties for violations included imprisonment and heavy fines, and the substance became stigmatized as part of wider international anti-drug campaigns. The turning point began in the late 2010s, when global shifts toward decriminalization and medical legalization influenced Thailand’s domestic policy. In 2018, Thailand became the first country in Southeast Asia to legalize cannabis for medical and research purposes (Narcotics Act (No. 7) B.E. 2562 (2019)), allowing limited use of cannabis oil, extracts, and research-based cultivation. At that time, operators were required to work closely with public agencies, such as universities or government hospitals, to cultivate and extract cannabis. In June 2022, cannabis was officially decriminalized through its removal from the Narcotics List under the Ministerial Notification of the Ministry of Public Health (No. 8) B.E. 2565 (2022). This sparked a rapid proliferation of cannabis-related businesses—from dispensaries and cafes to wellness centers and agricultural ventures. Nevertheless, the swift liberalization also triggered regulatory uncertainty and social debates. The lack of comprehensive oversight, concerns about recreational misuse, and rising public health risks pushed policymakers to reintroduce tighter controls, culminating in the Cannabis and Hemp Control Act (Draft Bill, 2024–2025) and ministerial notifications that now aim to balance economic opportunity with public health and social order.  New Approach of Legal Laws and Regulations in Thailand 2.1 Current Legal Framework Following decriminalization in June 2022, cannabis entered a “grey zone” of regulation. Businesses mushroomed quickly, taking advantage of unclear restrictions, especially regarding recreational use. However, by mid-2025, the Thai government introduced new legislation and ministerial regulations to formally control cannabis cultivation, distribution, marketing, and consumption. Key provisions include: Cultivation Standards: Cultivation of cannabis and hemp requires compliance with Thai GACP (Good Agricultural and Collection Practices) standards, ensuring both quality and traceability of cannabis flowers. Licensing Requirements: Cultivation, import/export, sales, and processing of cannabis require specific licenses issued by the Food and Drug Administration (FDA) and relevant ministries under the Public Health Act B.E. 2535 (1992) and ministerial notifications. Medical-Only Orientation: Cannabis is recognized as a controlled plant for medical and health purposes. Recreational use remains outside the scope of the law and is implicitly prohibited. Doctor’s Prescription Requirement: Any sale of cannabis flowers intended for smoking or direct consumption must be tied to medical use, supported by a prescription from a licensed physician (Ministerial Notification on Controlled Cannabis Products B.E. 2566 (2023)). Any cannabis distillate, extract, or oil with THC exceeding 0.2% w/w is classified as a controlled substance under the Narcotics Act and may only be dispensed upon a doctor’s prescription. Extracts with THC not exceeding 0.2% w/w may be incorporated into cosmetics, herbal, or food supplements, subject to FDA product registration, quality controls, and labeling requirements. Usage Restrictions: Smoking cannabis in public places remains subject to penalties under the Public Health Act on public nuisance. Marketing and advertising are prohibited from promoting recreational consumption or targeting minors (Ministerial Regulation on Cannabis Advertising B.E. 2566 (2023)). Import & Export Controls: Cross-border trade of cannabis or hemp requires pre-approval from the Ministry of Public Health, in line with Thailand’s obligations under the Single Convention on Narcotic Drugs 1961 and domestic legislation. 2.2 Impact on Businesses These rules have reshaped the cannabis landscape. Dispensaries and recreational-style outlets face heightened scrutiny, while medical clinics, licensed manufacturing plants, pharmaceutical companies, and wellness enterprises benefit from clearer compliance pathways. Notably, businesses engaged in the sale of cannabis flowers or high-THC distillates (>0.2% THC w/w) must operate strictly as medical establishments, employing licensed doctors authorized to prescribe cannabis products. This effectively transforms retail-style models into clinically regulated practices, raising compliance and operational costs. Foreign investment in cannabis remains restricted under the Foreign Business Act B.E. 2542 (1999), which caps foreign ownership in agricultural and service sectors unless exemptions are granted. While the Board of Investment (BOI) offers privileges for certain high-value industries, cannabis has not yet been included in BOI-promoted activities. In practice, without a permanent Cannabis Act, obtaining BOI promotion for cannabis businesses is unlikely. Additionally, intellectual property (IP) protections for cannabis strains, cultivation techniques, and extraction processes are increasingly important, as licensing agreements and IP filings help safeguard competitiveness in a regulated market. The Future of Cannabis Business in Thailand and Risk Assessment 3.1 Opportunities and Policy Direction Despite regulatory tightening, the government continues to view cannabis as a sector with high potential in: Medical tourism and integrative health services. Pharmaceutical production with EU-GMP certification for cannabis-derived medicines. Agriculture, with cannabis and hemp positioned as high-value crops under Thai GACP. Industrial hemp exports, including textiles, food supplements, and construction materials. While rumors persist that the government may re-criminalize cannabis, such a move would face strong resistance—including potential class actions from over one million licensed cannabis operators. More realistically, cannabis will remain regulated for medical, industrial, and research purposes, rather than being reclassified as a narcotic. 3.2 Risks in Cannabis Business Regulatory Uncertainty Laws remain in flux. Political changes or international obligations may prompt abrupt policy reversals. Example: The 2022–2023 decriminalization wave was quickly followed by 2024–2025 restrictive reforms. Criminal Liability Unauthorized possession, sale, or use outside medical purposes may trigger penalties under the Narcotics Act B.E. 2522 (1979) or ministerial cannabis regulations. High risk: Dispensing cannabis flowers or >0.2% THC distillates without a prescription may result in imprisonment, fines, and license revocation. Public Health and Social Concerns Businesses risk reputational damage if linked to recreational misuse, underage sales, or public nuisance. Such events may also lead to license suspension by the FDA. Foreign Investor Restrictions The Foreign Business Act limits foreign participation in agriculture and cannabis-related services, unless exemptions are granted. Banking and Financing Risks Cannabis remains a “no-bank” sector in Thailand. Commercial banks typically refuse financing, credit facilities, or lending to cannabis operators due to compliance risks and reputational concerns. Cross-Border Legal Conflicts Exporting cannabis products without authorization can violate ASEAN neighbors’ narcotics laws, leading to severe penalties. Exporters must hold FDA export licenses, while importers must obtain permits from the destination country. Compliance and Licensing Costs Meeting Thai GACP and GMP standards requires significant investment. Smaller operators may be priced out, resulting in consolidation favoring larger, well-capitalized firms. 3.3 Risk Mitigation Strategies Robust Legal Due Diligence: Review licensing requirements, corporate structure, and contracts with qualified legal counsel. Strict Prescription Protocols: Employ licensed doctors and establish patient consultation systems for prescribing cannabis flowers and high-THC distillates. Regulatory Monitoring: Retain compliance teams or external counsel to monitor ministerial notifications and regulatory changes. Corporate Structuring: Form vetted joint ventures with reliable Thai partners. Conduct strict due diligence to avoid fraudulent actors in the market. Product & Marketing Compliance: Adhere to THC content limits, labeling rules, and advertising restrictions. Avoid recreational branding. Risk Management & Insurance: Obtain liability insurance and adopt strong corporate governance policies. Diversification: Focus on industrial hemp, medical cannabis, and pharmaceutical-grade extracts, which carry fewer political and legal risks. Cross-Border Legal Review: Secure legal opinions in both Thailand and destination countries to ensure compliance with international drug control treaties. Conclusion The cannabis industry in Thailand represents both opportunity and risk. Thailand stands as a pioneer in Southeast Asia, opening pathways for medical, wellness, and industrial cannabis. Yet the regulatory environment remains fluid, and businesses face legal, financial, and reputational challenges. Of particular importance is the strict requirement that cannabis flowers and all cannabis distillates with more than 0.2% THC w/w can only be sold with a doctor’s prescription. Violations in this area carry serious criminal and civil liabilities and will be a central enforcement priority going forward. For investors and operators, success depends on rigorous compliance, sound structuring, and proactive legal strategy. By aligning with Thailand’s evolving regulatory framework, businesses can capture opportunities while minimizing risk. At ILAWASIA CO., LTD., we provide comprehensive legal support for cannabis operators. Our Partner, Tanadee Pantumkomon, is one of the most experienced counsels in Thailand on cannabis cultivation, extraction, and cannabis product manufacturing. Our services cover FDA licensing and permits, corporate structuring, tax planning, dispute resolution, and cross-border advisory—ensuring that our clients’ investments are secure and compliant.
ILAWASIA CO.,LTD. - August 28 2025