Recognition and Enforcement of Foreign Judgments in Asia
Recognition and Enforcement of Foreign Judgments in Thailand
Last updated: 1 December 2017
Reporter: Dr Poomintr Sooksripaisarnkit, Lecturer in Maritime Law, Australian Maritime College, University of Tasmania
Unlike jurisdictions like Singapore or Australia, Thailand adopts a civil law legal system. This means that the main sources of law in Thailand are found in statutes while cases decided by the courts are only manifestations of how statutes are to be read and applied. Thailand has no specific statute addressing the recognition and enforcement of foreign judgments. This is so even though Thailand has a statute on private international law which dates back to 1938 (BE 2481),1 namely the Act on Conflict of Laws.2
There is only a rather vague and unhelpful provision in the Act on Conflict of Laws which purports to bridge the gap when there is no specific provision of the Act on Conflict of Laws that addresses a specific private international law issue. This is provided for in section 3 of the Act on Conflict of Laws, which is in the following terms:
Wherever there is no provision in this Act or in any other laws of Thailand to govern a case of conflict of laws, the general principles of private international law shall apply.
Therefore, the first issue to be discussed in this report is the impact of section 3 on the recognition and enforcement of foreign judgments in Thailand. Thereafter, the overall attitude of the courts in Thailand towards the recognition and enforcement of foreign judgments will be addressed.
B. IMPACT OF SECTION 3 OF THE ACT ON CONFLICT OF LAWS
There is, so far, no decided case in Thailand on the application of section 3 of the Act on Conflict of Laws to foreign judgments. Academic commentators in Thailand construe this provision differently. Written in 1984 (BE 2527), Indrambarya opined that it would be inconsistent with the purposive approach to statutory interpretation to give section 3 a wide meaning such that it can encompass the recognition and enforcement of foreign judgments.3
This is because the whole purpose of the Act on Conflict of Laws is to stipulate “connecting factors” for different scenarios of cases involving foreign elements.4 In other words, the Act on Conflict of Laws primarily deals with methods of ascertaining applicable law.5 Conversely, Lengthaisong thought that the “general principles of private international law”, as stipulated in section 3, can be ascertained with reference to the earlier judgment of the Supreme Court of Thailand in Case No 585/2461 decided in 1918.6
In his thesis, Sriboonroj — relying on the report of the sub-committee meeting to set criteria for determining cases on conflict of laws held in 1938 (BE 2481) which led to the enactment of the Act on Conflict of Laws — was inclined to agree with the restrictive interpretation of section 3 on the basis that the drafter of the Act on Conflict of Laws did not have the recognition and enforcement of foreign judgments in mind and the intention was to let Thai courts themselves set out rules or criteria on the recognition and enforcement of foreign judgments.7
This author is also inclined to agree with Sriboonroj's view as it is doubtful what so-called “general principles”, which refer to principles universally accepted, can be recognised in Thailand after just one decided case. However, more facets of the judgment of the Supreme Court of Thailand in Case No 585/2461 need to be discussed. It should be emphasised at this stage, however, that there is still no decision from the court in Thailand which sheds light on how section 3 of the Act on Conflict of Laws should be interpreted.
C. OVERALL ATTITUDE OF THAI COURTS TOWARDS RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
The Supreme Court of Thailand's decision in Case No 585/2461 is the only decision in Thailand which is directly on point. As the case is very old, this author was not able to obtain a copy of the original Thai language judgment of the case. However, it is a case which is widely referred to among Thai academic commentators. Ariyanuntaka sets out the facts, and quotes the ratio decidendi of the case, as follows:8
The plaintiff ... a Vietnamese citizen entered into a contract of sale with the defendant ... also of [sic] Vietnamese subject whereby the defendant sold 15 rickshaws and two bicycles to the plaintiff. The plaintiff claimed that he had paid the defendant for the price but the defendant failed to deliver the goods. The contract was concluded in Saigon. The plaintiff then sued the defendant in Saigon Civil Court. The Court gave judgment for the plaintiff. The defendant fled to Bangkok where the plaintiff sought enforcement of Saigon Civil Court judgment. The Supreme Court of Siam [former name of Thailand] ... held that:
The principle underlying recognition and enforcement of foreign judgments is one of mutual respect among nations. The court of Siam will recognise and enforce judgment rendered by a foreign court provided that the judgment was given by the court of competent jurisdiction. The judgment must also be final and conclusive of the merits of the case. In this case, the plaintiff and the defendant were both Vietnamese citizens and thus, the Saigon Civil Court enjoyed competent jurisdiction over the case. However, the judgment of the Saigon Civil Court was given in default. The plaintiff failed to prove the Vietnamese civil procedural law concerning the finality and conclusiveness of the judgment given in default. Under the Civil Procedural Act BE 2452 (1909) of Thailand, the defendant who had been declared by the court to be in default of appearance and against whom a judgment had been given, may apply for a new trial within fifteen days from the date of judgment. Upon failure to prove otherwise, the Court of Siam will hold that judgment given in default is not final and conclusive. [emphasis in original]
This judgment, as noted by Ariyanuntaka, has received severe criticism from Thai academic commentators on the basis that the judge who presided in this case graduated from Gray's Inn and was called to the Bar in the UK. Hence, his judgment was influenced by English law.9 While it is probable that the judge may have had in mind classic English authorities on the recognition and enforcement of foreign judgments, the question is whether these English authorities have gained acceptance worldwide such that they could be regarded as spelling out the universally accepted general principles of private international law.
By way of analogy, albeit on a different matter, in Book III of the Thailand Civil and Commercial Code,10 which has been in force since 1928 (BE 2471), section 868 provides that “[c]ontracts of marine insurance are to be governed by the provisions of the Maritime Law”. However, Thailand has no law relating to marine insurance. As such, Thai lawyers have to resort to section 4 of Book I of the Thailand Civil and Commercial Code (amended in the year 1992 (BE 2535))11 which provides:
The law must be applied in all cases which comes within the letter and spirit of any of its provisions.
Where no provision is applicable, the case shall be decided by analogy to the provision most nearly applicable, and in default of such provision, by the general principles of law.
The Supreme Court of Thailand in Decision No 7350/2537 held that since the marine insurance policy in question was written in the English language, the UK Marine Insurance Act 190612 should be applied by analogy. This is quite an odd rationale and the better view, as opined by Kanchanachittra-Saisoonthorn in her note attached to this decision, is to treat the UK Marine Insurance Act 1906 as “the general principles of law” concerning marine insurance contracts.13
Transposing this reasoning to the context of the recognition and enforcement of foreign judgments, even if the wider interpretation of section 3 of the Act on Conflict of Laws is adopted, the English common law rules on the recognition and enforcement of foreign judgment are unlikely to be regarded as the “general principles of private international law” for at least two inter-related reasons.
First, unlike public international law, the rules on private international law differ from country to country. Second, the execution of foreign judgment is pretty much left to the forum as procedural matters. Unless court practices around the world on this matter are harmonised,
it is hard to glean any general principle of private international law in this respect.
More recently, the recognition of a foreign judgment was considered again in Decision No 2551/2548 of the Central Juvenile and Family Court of Thailand.14 The facts of the case are well summarised in the work of Sriboonroj.15 The plaintiff, a Swedish man, sued the defendant, a Thai woman. The two of them had lived together as husband and wife, without any legally recognised marriage, and had a child. Under Thai law, a child born out of wedlock is deemed to be the legitimate child of the birth mother. The biological father of the child is not recognised as the legal father of the child and has no rights over the child. The father's rights over the child can, however, be legitimised if, among other things, there is a judgment by the court.16
The plaintiff maintained that he was the father of the juvenile and an application in Sweden for recognition of legitimation of child was made in 1998 (BE 2541) and the juvenile later moved to Sweden under the joint custody of both the father and the mother.
Subsequently, during a proceeding before the court in Stockholm, the defendant (wife) abducted the juvenile and took her back to Thailand without informing the plaintiff (husband) and the plaintiff was not able contact the juvenile. On 14 November 2003 (BE 2546), the court in Stockholm gave judgment, by default, awarding to the plaintiff sole custody of the juvenile. Before the Central Juvenile and Family Court of Thailand, the plaintiff asked the court to make an order for the defendant to return the juvenile to the plaintiff.17
The defendant argued that the plaintiff did not make the application for recognition of legitimacy of child under Thai law. He did so only under Swedish law. So, the juvenile could not be considered as his legitimate child under Thai law.18 Moreover, the judgment of the court in Sweden was a judgment in default of appearance. The defendant maintained that she did not have an opportunity to argue her case in full and hence that judgment could not be recognised and enforced in Thailand. In addition, she argued that Thailand has no law on the recognition and enforcement of foreign judgments.19
The Central Juvenile and Family Court of Thailand made reference to sections 5,20 3121 and 3322 of the Act on Conflict of Laws. The Thai court found that the judgment of the court in Stockholm was rendered, as admitted by the defendant in this case, by a court with competent jurisdiction.23 The defendant also admitted that the judgment of the court in Stockholm was final.24 The law concerning the legitimacy of a child and the right of custody are for the benefit of the juvenile. Therefore, the decision of the court in Stockholm in this case was not contrary to the public policy or good morals of Thailand. Hence, the Thai court ruled that the plaintiff had the sole right of custody of the child following the judgment of the court in Stockholm and that the plaintiff in this case had the right to sue the defendant for an order returning the juvenile to his custody.25
As observed by Sriboonroj, the Central Juvenile and Family Court of Thailand adopted an approach similar to that of the Supreme Court of Thailand in Decision No 585/2461 in that the foreign judgment must:
be rendered by the court with proper jurisdiction;
be final and conclusive; and
not be contradictory to the public policy or good morals of the forum.26
However, Sriboonroj observed further that in this case, the Central Juvenile and Family Court of Thailand only recognised the judgment of the court in Stockholm as evidence in the case. On the likely assumption that section 3 of the Act on Conflict of Laws does not confer a power to Thai courts to recognise and enforce a foreign judgment, in practice, Thai courts are limited in their ability to recognise a foreign judgment in that such a judgment can only be admissible as evidence in the case.
In the absence of law on the recognition and enforcement of foreign judgment in Thailand, a litigant with a foreign judgment needs to commence proceedings afresh before a court in Thailand. The foreign judgment is taken as evidence which the court may take note of so long as a few criteria are fulfilled, namely: it was rendered by a foreign court of competent jurisdiction, it is final and conclusive (noting that a judgment entered in default of appearance may not be “final”), and it is not against the public policy or good morals of Thailand.
ABLI's other Jurisdictional Guides
See ABLI's Jurisdictional Guides for other Asian jurisdictions.