Thammasat Business Law Journal

Front pages

Thammasat Business Law Journal — 2023-12-21

Employees' Right to Disconnection Outside Working Hours

Tanawat Piyarattanakunakorn — 2023-12-21

The purpose of this study is to explore the new right to refuse communication under the Thai Labour Protection Act 1998 section 23/1 and compare it to the right to disconnect whether they are similar or applicable. Since nowadays, despite all the benefits of information and communication technologies, their existence also blurs the boundaries between professional and private life of people. This affects employees’ health and safety. The author therefore conducted this law research regarding the right to refuse communication in Thailand and the right to disconnect in other countries in the hope of promoting Thai employees’ well-being. Although the Thai Labour Protection Act 1998 section 23/1 appears to be issued to protect the employees’ privacy rights, it could not fully resolve the problem of interruption outside of working hours because the wording of the right to refuse communication under Thai Law and the right to disconnect under other countries’ law is not the same.

Because of this problem the author compares the existing Thai law with other countries’ law through various sources regarding the right to refuse communication and the right to disconnect in order to consider which one is appropriate for Thai law.

It has been found that the right to disconnect under each country’s labour law could be usefully adopted more than the right to refuse communication because the right to disconnect implies that the employer is not able to contact the employee at the outset.

Confidentiality or Transparency: What Should Arbitral Institutions do?

Proudparin Amornsak — 2023-12-21

This article pinpoints the question: to what extent should arbitral institutions publish arbitral awards administered by them, with regard to confidentiality and transparency concerns? While there are increasing proposals in international commercial arbitration (“ICA”) on an arbitral institution’s duty to implement more transparency in their arbitral processes to increase consistencies of legal interpretations, it is also undisputed that confidentiality—as a relatively opposite concept to transparency—still stands prominent as one of the greatest advantages of ICA. To respond to the imposed question, the article explores and defines in detail the two concepts of confidentiality and transparency; it provides competing arguments for and against each of the two concepts, considering also the role of confidentiality duty as an exception to transparency. Through these methods, the article finds that it is best to first uphold confidentiality duty when there is any. Lacking such a duty, transparency should only be implemented at stages that do not expose extensively parties’ substantive dispute information; it is suggested that transparency should only be adopted in the process of an arbitral institution’s acceptance of cases and the appointment of arbitrators.

The Impact of Alcoholic Beverage Control Laws in Hotel Business

Pongsiya Pongpiromsri — 2023-12-21

To regulate the responsible consumption of alcoholic beverages, address alcohol-related issues, and mitigate the potential damage resulting from excessive and inappropriate usage, governments have implemented and enforced laws and regulations over the course of decades. Currently, a range of legislation exists to govern and control the sale of alcoholic beverages. These include: (i) the Alcoholic Beverage Control Act B.E. 2551 (“Alcoholic Beverage Control Act”); (ii) the Excise Act B.E. 2560 (“Excise Act”); and (iii) the Mandate of the National Council for Peace and Order No. 22/2558, which encompasses measures to prevent and address problems associated with automobile and motorcycle racing, as well as the control of entertainment spots or similar venues (“NCPO No.22/2558”).

These laws and regulations oversee different facets of alcohol consumption: (i) addresses excise tax on alcohol and liquor license procedures; (ii) designates alcohol-free zones; (iii) regulates entertainment venues; and (iv) governs alcohol sales, drinking age, and advertising. This research has identified a notable loophole affecting hotels' ability to offer alcohol services.

The Future of Contingent Fee in Thailand

Na-can Sermsook — 2023-12-21

A contingency agreement is one of fee structure types that has been used over the world. However, in Thai jurisdiction, it has been prohibited for decades as the court views that such agreement is contradict to Thai public policy and good moral. This is because it allows an attorney to share some interest with the outcome of the lawsuit. Nonetheless, the Supreme Court precedent neither provides nor explains the meaning and scope of contingency agreement as a guidance. Additionally, since there is an amendment of the Civil Procedure Code on the class action lawsuit where the class’s lawyer is allowed to receive a contingent fee as an award. Thereby, there is no unanimous direction for contingent fee in Thailand. On the contrary, in United Kingdom, it has a very clear position on this issue, i.e., the contingent fee is classified into three types, and each type has its own specific laws and regulations. While in Singapore, the contingent fee is strictly prohibited. Nonetheless, it allows a conditional fee to be applied instead. In light of this, as the debate concerning the advantages and disadvantages of contingent fee has been continuously discussed, this article finds that, comparing to foreign jurisdiction, the current Thai legal system is now developing and yet the issues of contingent fee has not been properly regulated. Therefore, this article proposes that the contingent fee should be allowed and regulated by specific regulation in order to minimize concerns of application of the contingent fee.

Protection of Non-Adjusting Creditors of Private Limited Companies in Thailand

Adam Reekie — 2023-12-21

This article analyses the legal framework for protecting non-adjusting creditors of private limited companies in Thailand. Non-adjusting creditors are a subcategory of creditors, not specifically recognised by law, who are unable to negotiate contractual or proprietary protections and are thus vulnerable to potentially abusive actions of the debtor company. Using the Enlightened Shareholder Value model of corporate governance, the legal regime is evaluated across rules relating to legal capital, challenging transactions, directors’ duties and obligations to preserve creditors’ interests, and shareholder liability. The article also performs a comparative analysis with English and German law, which influenced Thai law at the time of its adoption, to highlight Thai law’s path of development and characteristic approach. The article makes six recommendations to align Thai law with the ESV normative model, including the establishment of a regime of public enforcement by way of administrative sanctions and a director disqualification regime to protect non-adjusting creditors.

Regulation of Online Intermediation Service for Tourism Business

Pongkarn Khunphasee — 2023-12-21

This article examines the regulatory challenges and implications surrounding online intermediation services for tourism businesses, focusing on the case of Thailand. The rapid growth of these modernized platforms connecting local guides and tourists seeking touring and guiding services has questionable issues about their legal classification and liabilities within existing regulatory frameworks.

The study explores the nature of these modern intermediation platforms and how they may potentially be considered as tourism businesses. Nonetheless, the current definition of "Tourism Business" in Thailand's Tourism Business and Tourist Guide Act B.E. 2551 (2008) does not explicitly encompass online intermediation services for tourism, leading to questions about their legal status and liabilities.

One key issue is determining whether the existing definition should be broadly interpreted or if specific amendments are required. The article particularly examines the ambiguity surrounding the joint liability of online intermediation service providers or business entrepreneurs when tourists encounter issues during trips arranged through their platforms. It suggests that addressing this legal uncertainty requires amending existing tourism laws to explicitly include these modern businesses and establish a regulatory framework, promoting growth while, ensuring protection for tourists and fair business practices.

Appropriate Measures of Personal Data Protection in Processing by Artificial Intelligence under Thai Law: Study Specific on Machine Learning

Kittitach Mana — 2023-12-21

The escalating use of machine learning for processing personal data has raised concerns about privacy and data protection. This article aims to explore and analyze the measures of personal data protection in the context of artificial intelligence, with a particular focus on machine learning, within the framework of Thai law.

The article begins by examining the existing legal measures for personal data protection related to machine learning in Thailand. It also analyzes data protection laws from other countries, such as the General Data Protection Regulation (GDPR) of the European Union and the California Consumer Privacy Act (CCPA) in the United States.

The study identifies strengths and weaknesses in the current Thai legal framework for personal data protection concerning machine learning. It argues that the existing framework is insufficient in safeguarding individual privacy and advocates for specific provisions to address machine learning-related data processing.

Based on the analysis, the article proposes amendments to the Thai legal framework to bolster personal data protection in the context of machine learning. These amendments aim to promote transparency, accountability, and better protection of individual privacy.

Liability Arising from Autonomous Vehicles

Somchai Champathong — 2023-12-21

In the context of our rapidly advancing technological landscape, autonomous vehicles emerge as a prominent illustration of technological progress. This study centers on autonomous vehicles as embedded systems, combining computer software with vehicular systems, and explores the intricate of liability issues concerning drivers, owners, and manufacturers in this domain.

The article delves into two key facets of strict liability law: tort law defined by Section 437 of the Civil and Commercial Code of Thailand, and liability laws applicable to unsafe products, with a particular focus on level 5 of autonomous vehicles. Adopting an international perspective, the study draws comparisons with Estonia, a renowned hub for computer technology.

The findings reveal that Section 437 of the Thai Civil and Commercial Code can still be applied in autonomous vehicle cases, typically holding vehicle owners responsible in accidents involving individuals. However, this legal provision has limitations and does not encompass all possible scenarios. Consequently, the article expands its scope to encompass Thailand’s broader product liability laws, which take a more comprehensive approach, covering all parties involved in the production and distribution of defective products.

A significant revelation is that manufacturers of computer software used in autonomous vehicles in Thailand may not bear liability under current legislation, especially in the case of packaged software. To address this gap in liability, the author recommends amending Section 4 of the Product Liability Act to explicitly include computer software within the legal definition of a product. Such an amendment would ensure that all entities in the distribution chain are held to the same liability standards as physical products, thereby holding them accountable for safety concerns associated with their autonomous vehicle software products. This amendment seeks to create a more robust legal framework that keeps pace with the evolving technology landscape.

Comparative Study on Noise Tax and Charges Measurement in Civil Aviation

Thanakorn Songtanawong — 2023-12-21

The aviation industry is an important part of the national economy. However, the air transport sector also causes a great deal of environmental damage, especially in terms of noise pollution. The imposition of taxes and charges on Heathrow Airport in the United Kingdom and Paris Charles de Gaulle Airport in France is one approach that has been adopted to combat noise pollution.

In additional, the study in this article compares the principles of environmental taxation, International Civil Aviation Organization (ICAO) charges policies, EU legislation and comparative studies on UK, French, and Thai law with regard to noise tax and charges.

Moreover, the result showed that noise was successfully reduced by the policy applied at airports in the UK and France. The existing legislation does not allow the imposition of a noise tax in Thailand. However, it is possible to impose noise charges, but this can only be achieved if there are substantial amendments in the directive no. 51/2561 from the Pollution Control Department (PCD) and Air Navigation Act B.E. 2497 (1954).

Legal Problems Related to Self-Laundering in Vietnam

Nhan Nguyen Thi An — 2023-12-21

Money laundering consists of self-laundering and third-party laundering. Self-laundering (from here referred to as SL) is defined as a situation where a person who has committed a crime tries to hide the illicit origins of the proceeds from that crime. Article 324 of the Vietnam Criminal Code 2015 regulates self-laundering crimes, explained in more detail in Judicial Council Resolution 03/2019/NQ-HDTP. Although the criminalization is expanded to self-laundering and cases with a high risk of money laundering is increasing, the number of cases successfully prosecuted remains low. Therefore, obstacles to criminalizing self-laundering are studied to ensure its regulation functions efficiently. This paper explores legal problems related to self-laundering in Vietnam in comparison with fundamental principles of the Vietnamese legal system and other related international conventions, and recommends some ways to remove obstacles. There are three kinds of self-laundering and its criminalization protects three legal interests, namely the legal interests protected by the predicate crime, the administration of justice, and the economic order. Understanding theories of criminalization and general criminal justice in the Vietnamese legal system, my paper explores the application of principles to three forms of self-laundering and the legal interests protected. The self-laundering regulation violates some fundamental doctrines of the Vietnamese legal system, but, in my opinion, the criminalization of self-laundering is necessary because money laundering is a global issue and its regulation must be unified.