Firm Profile > Kudun & Partners > Bangkok, Thailand
Kudun & Partners Offices
23rd Floor Units C & F
Gaysorn Tower, 127 Ratchadamri Road
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Kudun & Partners > The Legal 500 Rankings
Dispute resolution Tier 2
Kudun & Partners' dispute resolution group is active on a range of disputes in the Thai market including those concerning real estate, administrative law, bankruptcy and rehabilitation as well as corporate disputes. Somboon Sangrungjang co-heads the team and assists international and domestic clients on commercial and business litigation. Pariyapol Kamolsilp is the co-head of the team and is experienced in insolvency and bankruptcy matters, with knowledge of sectors such as energy, mining and construction.
Advanced Info Services Public Company Limited
Chanwanich Security Printing Company Limited
Jetion Solar/ Jetion Solar China
UOB KayHian Securities
Jiangxi Water and Hydropower Construction (Thailand) Co., Ltd.
Uniqlo (Thailand) Co. Ltd
K.S. Thai Trading Co., Ltd.
Projects and energy Tier 3
Kudun & Partners 'provide innovative solutions' to its clients' cases and offers advice on a broad array of projects and energy issues. Founding partner Kudun Sukhumananda works with Thai and international clients on infrastructure funds while Kom Vachiravarakarn is active in the renewable energy sector. Somboon Sangrungjang and Saravut Krailadsiri provide related litigation and tax expertise, with Krailadsiri notable for his experience in the oil and gas industry.
‘Kudun and Partners team is flexible and highly responsive to our needs. We like that they work as a team across different practice areas and provide business-oriented legal advice. We are happy to work with them as they provide innovative solutions to our problems and seek the best methods to address our concerns.’
‘Kudun and Kongkoch are the partners leading our project. They are highly knowledgeable in this sector, extremely responsive and they put their feet in our shoes to ensure the success of our project. Both are extremely energetic and willing to help. Chai is the senior associate who supported us. His knowledge in the renewable energy sector is outstanding. He is friendly and eager to facilitate our team at any given time.’
B.Grimm Power-Energy China Consortium
One of the eight subsidiaries of the first and largest wind farm in Southeast Asia with a total capacity of over 700MW
Eastern Water Resources Development and Management Public Company Limited
Phongsubthavy Roads and Bridges Construction and Irrigation Sole Company Limited, Lao PDR
BG Container Glass Public Company Limited (BGC)
B. Grimm Power Company Limited
Khonburi Sugar Public Company Limited
Thai Solar Energy Public Company Limited
Earth Tech Environment Co., Ltd. and Better World Green PCL.
Alternative energy company specializing in providing clean energy and reducing greenhouse gas emission with factories based in Bangkok and Chiang Mai
An integrated energy service provider covering oil and gas field decommissioning, renewable energy, transportation and digital solutions with services in Cambodia, Laos, Myanmar and Vietnam
Hydrotek Public Company Limited
Demeter Corporation Public Company Limited (DCORP)
Tax Tier 3
Kudun & Partners represents corporations, individuals, family businesses, and financial institutions, both Thai and international clients, on the full spectrum of tax matters. This includes tax optimisation, advice on the tax issues relationg to M&A transactions and tax planning. Chinawat Assavapokee is an expert on corporate restructuring and M&A tax planning while Saravut Krailadsiri handles income tax issues for clients in the oil and gas sectors.
Pilatus Marine Co., Ltd.
Sahathai Terminal Public Company Limited
Prima Marine Public Company Limited
IRPC Public Company Limited
Siam Health Group Co., Ltd
Siamese Asset Co., Ltd.
Common Area Samui Co., Ltd.
V Property Development Co., Ltd.
Coda Payments (Thailand) Co., Ltd.
IT City Public Company Limited
Corporate and M&A Tier 4
Kudun & Partners' 'in-depth expertise in M&A is remarkable'. Its nascent team advises international corporations, financial advisors and private equity firms on domestic and cross-border transactions. Kudun Sukhumananda co-heads the team; he has broad experience assisting Thai and international clients on M&A and REIT transactions. Kom Vachiravarakarn, also co-heading the team, is active in the energy, construction, and manufacturing sectors in relation to corporate restructuring, joint ventures, and commercial transactions. Chinawat Assavapokee has twenty years of experience in the field of corporate law, advising on joint ventures between foreign and local clients and assisting with corporate restructuring.
Other key lawyers:
‘Kudun and Partners’ team is flexible and highly responsive to our needs. We like that they work as a team across different practice areas and provide business-oriented legal advice. We are happy to work with them as they provide innovative solutions to our problems and seek the best methods to address our concerns. Their in-depth expertise in M&A practice is remarkable and we trusted that they have capabilities to protect our interest. Their due diligence on the acquired company is solid.’
‘Highly knowledgeable in this sector, extremely responsive and they put their feet in our shoes to ensure the success of our acquisition in the agreed time frame. Both are extremely energetic and willing to help.’
Stark Corporation Public Company Limited
Eka Global Company Limited
B.Grimm Power-Energy China Consortium
Phelps Dodge International (Thailand) Limited (PDITL), a subsidiary of Stark Corporation PCL (SET: STARK)
Phongsubthavy Roads and Bridges Construction and Irrigation Sole Company Limited, Lao PDR
BG Container Glass Public Company Limited (BGC)
B. Grimm Power Company Limited
Thaifoods Group Public Company Limited
IT City Public Company Limited
Centralcon Investment Holding (Hong Kong) Company Limited
AA. Nuctech Co., Ltd.
Demeter Corporation Public Company Limited (DCORP)
IRPC Public Company Limited
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 12 partners, over 45 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.
With the appointment in July 2018 of two new partners, Chinawat Assavapokee and Saravut Krailadsiri highly regarded tax and corporate restructuring specialists with decades of experience; we are poised for continued strong future growth.
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
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.
|Corporate and M&A (including Capital Markets), Banking and Finance, Projects & energy||Kudun Sukhumanandafirstname.lastname@example.org|
|Tax and Corporate Restructuring, Corporate and M&A (including Capital Markets), TMT (Technology, media and telecoms)||Chinawat Assavapokeeemail@example.com|
|Tax and Corporate Restructuring, Corporate and M&A (including Capital Markets)||Saravut Krailadsirifirstname.lastname@example.org|
|Dispute Resolution, litigation, arbitration and Restructuring and Insolvency||Pariyapol Kamolsilpemail@example.com|
|Dispute Resolution, litigation, arbitration and Restructuring and Insolvency||Somboon Sangrungjangfirstname.lastname@example.org|
|Corporate and M&A (including Capital Markets), Banking and Finance, Projects & energy||Ekachai Chotpitayasunonemail@example.com|
|Real estate & construction, Corporate and M&A (including Capital Markets), Banking and Finance, Projects & energy, TMT (Technology, media and telecoms)||Kom Vachiravarakarnfirstname.lastname@example.org|
|China Practice, Foreign Direct Investment||Mayuree Sapsutthipornemail@example.com|
|Corporate and M&A (including capital markets), Real estate & construction, Corporate and M&A (including Capital Markets), Banking and Finance, Projects & energy, TMT (Technology, media and telecoms)||Kongkoch Yongsavasdikulfirstname.lastname@example.org|
|Corporate and M&A, Foreign Direct Investment,Real estate & construction, Corporate and M&A (including Capital Markets), Banking and Finance, Projects & energy, Consumer goods and retail||Troy Schoonemanemail@example.com|
|Dispute Resolution / litigation||Niruch Winiyakulfirstname.lastname@example.org|
|Corporate and M&A, Capital Markets, Projects & energy||Chai Lertvittayachaikulemail@example.com|
Staff FiguresNumber of lawyers : 55 Number of business support professionals : 40
LanguagesEnglish Thai Chinese (Cantonese and Mandarin) German Korean Bahasa Malaysia
MembershipsAmCham American Chamber of Commerce The Lawyers Council of Thailand The Thai Bar Association World Services Group (WSG)
Doing Business In
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.
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
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.
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.
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.
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).
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.
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.
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.
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?]
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.
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.
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.
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.
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.
Press Releases25th 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.
ConsiderationsWe 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.
25th May 2021
Living in Uncertain TimesMore 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.
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.
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.
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.
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.
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).
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).
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.
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 Developments23rd 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.
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”):
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.
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.
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.
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.
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.