Thailand: Capital Market and Securities Bulletin Annual General Meeting (AGM) during Covid-19 Pandemic (English Language, download pdf) และคำแนะนำเกี่ยวกับการจัดประชุมผู้ถือหุ้นในสถานการณ์การระบาดของโรคติดเชื้อไวรัสโคโรนา 2019 (Thai Language, download pdf)
Man has known Marijuana (aka Cannabis, Weed, Pot or Mary Jane etc.) since time immemorial. The use of marijuana can be traced back to as early as 500 BC. Although, marijuana is commonly known for its psychedelic property or “the high effect”, it was discovered that ancient civilizations used marijuana as a form of herbal medicine and remedy. Despite this, marijuana was first criminalized around the 19th century in an effort to ramp up the war on drugs.
With the rise of modern medicine backed by multiple medical researches, it was discovered that marijuana can be used to treat various medical conditions such as: Alzheimer, cancer, epilepsy, mental health issues (schizophrenia and PTSD) and many more. This paradigm shift has slowly altered the public’s opinion and perception on the use of marijuana, where it is no longer seen as a mere narcotic. Naturally, the movement to decriminalized marijuana has been spreading around the globe with some countries that have already decriminalized marijuana for both medical and recreational uses.
In Thailand, the Thai Narcotic Act B.E. 2522 (“Narcotic Act”) listed marijuana and hemp as Class 5 Narcotics. Activities relating to (1) growing (2) importing/exporting (3) selling (4) owning (5) owning for the purpose of selling or (6) consuming/smoking of these substances are not allowed and will be met with heavy fines and imprisonment.
The recent Thailand Ministry of Public Health’s Announcement Relating to Listing of Narcotics in Class 5 which was published in the Royal Government Gazette on December 14, 2020 (the “Announcement”) has now removed particular parts and extracts of marijuana (cannabis) and hemp for medical purposes from the list of controlled narcotics.
Under the Announcement, parts and extracts of marijuana and hemp shall not be considered as Class 5 Narcotics, provided that they are fully authorized to be grown or produced in Thailand by the Ministry of Public Health. The delisted parts and extracts of marijuana and hemp are:
In short, the Announcement released specific parts and extracts of marijuana and hemp from the controlled narcotics list if they are used for medical, academic research and production of health products purposes only. The use of these substances for purposes other than those mentioned is still prohibited.
While there are many challenges ahead, the initial unlocking parts/extracts of marijuana and hemp may be a good step toward future medical advancement. Jurisdictions that have already decriminalized marijuana have shown rather promising results and more are expected to be seen. Science and law must progress hand-in-hand on this sensitive subject. By establishing a proper framework, it will be possible to gain the full benefit from these controversial plants.
For more information regarding laws and regulations on the limited use of marijuana and hemp in Thailand, please contact law@ilct.co.th.
By:
Chart Chotiphol
Counsel/Business Development
Ratinuch Kawnachaimongkol, our Intellectual Property Practice partner shared her insight with AsiaIP on how to manage a Company’s IP assets once a threat of closing looms.
In Thailand, there is no specific law that addresses this situation. However, some IP laws have provisions regarding the status of an IP right after the shutdown. For example, the country’s trademark law states that if the owner of a registered trademark ceases to have its office or address or its company is dissolved in Thailand, its trademark registration may be cancelled by the Trademark Registrar pursuant to Section 59 of the Thai Trademark Act.
Thus, before the closure of a company, it is advisable to complete the assignment of the IP to a particular person while the company directors are still authorized to do so in the name of the company.
As the company and directors/shareholders are viewed as different legal entities, the company as the IP owner may license or assign the IP to its directors/shareholders as long as the applicable law is complied with.
Selling and assignment of IP prior to the shutdown also helps to avoid complications arising from the closure of a company.
In the absence of an agreement containing such clauses, the patented invention is owned by the company or employer.
Under this circumstance, to enable the original developer of the technology or employee in this case to use such invention on his own after the shutdown without infringing any IP rights of the employer, the said patented invention must be assigned from the company to its employee before the shutdown. The developer can also sell his patented technology to another person.
The owner of a trade secret is a person who discovers, invents, complies or creates trade information that is eligible for protection as a trade secret under Section 3 of the Thai Trade Secret Act. In the absence of the agreement providing otherwise, the developer of a trade secret could, therefore, be regarded as the owner of a trade secret who can continue using the same after the closure of his previous employer’s shop.
What is a trademark?
A trademark is a type of Intellectual Property (IP) asset, it is simply a word, symbol, design or any combinations that represent your company’s name, products and/or services. There is a wide range of trademarks. As the owner, you may design your trademark to represent your products or services. Examples of commonly seen trademarks are shown below.
Should I register my trademark?
Short answer, YES! It is a good idea to register your trademark, by registering you will be able to claim legal ownership and exercise your exclusive rights over your trademark. Notwithstanding, there are also numerous advantages once you registered your trademark, few examples are discussed below.
I). Brand Protection & Development
Let’s face it, it is not easy building your own brand, let alone protecting it. Your brand is essentially the core asset of your business. Trademark registration will help to prevent others from unlawfully copying/using your trademark. Moreover, registration will also provide safe space for brand expansion, as well as, bolstering consumers/investors’ confidence over your brand.
II). Intangible Assets
Did you know that a registered mark can be sold or licensed? Generally, reputable trademarks are very attractive to potential buyers. By registering your trademark, it tells the buyers that your trademark is secured and not subject to copycats.
In addition to selling your mark, you may choose to “license”. Simply put, you may grant “temporary rights/temporary usage” to others for using your trademark. Under this method, you will be able to gain income via licensing, this is called “royalty fee”. There are few options to grow your business via IP assets, and licensing is one of such.
III). Global Recognition
One important fact, you need to register your trademark in specific country that you intend to sell your products or services. For example, if you would like to operate your business in the US, Thailand and China, you must register your trademark in each of these countries separately to be granted exclusive rights.
In essence, trademark gains strength as it become widespread. The more consumer recognition the stronger your trademark will become.
Trademark Related Symbols
The above two symbols represent the status of a trademark and its level of protection. The symbol “R or ®” shows that your mark is fully registered under the law. Whereas, the symbol “TM or ™” shows that you are using this mark but it is not yet registered, most used “TM” as a way of notifying others that this is their mark. With this being said, misused of these symbols can result in penalties. Thus, be mindful of your usage.
To sum up
As discussed here, there are many advantages to owning a fully registered trademark. While some are still on the fence about investing in their trademark, DON’T BE! The investment you will be making is small compared to risks of not registering at all. Although, it is possible to directly register your trademark with respective Intellectual Property Offices (e.g. DIP, USPTO or EUIPO) by yourself, but it is more advisable to seek an assistance from experts to ensure a smooth process.
In this globalized world, Intellectual Property assets, such as: trademarks and patents are critical to your business. If used properly, these assets will be invaluable. Trademark acts as your brand, represents your business reputation and provides real legal tools against misuse.
Are you interested or would like to know more about trademarks? Contact us to receive consultations on your trademark or other intellectual property rights, our experts are ready to assist you.
By:
Chart Chotiphol
Counsel/Business Development
On November 2, 2020, Thailand Department of Business Development (“DBD”) had made an Announcement re: Convening of the Meeting of Juristic Persons under Section 9 of Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (No. 10) B.E. 2563 (“Announcement No. 10”) regarding the cancellation of COVID-19 related postponement to holding the Annual General Meeting (“AGM”) which will become effective on December 1, 2020.
Background:
Earlier this year, due to COVID-19 pandemic and implemented public health regulations, DBD’s previous announcement made on March 4, 2020 (“Old Announcement”) had allowed Juristic Entities, including: limited company, public company, trade association and chamber of commerce (“Juristic Entities”) to postpone their scheduled AGM to a later date. Seeing that the pandemic is now under control and the public health regulations had been relaxed, Announcement No. 10 will effectively cancel the AGM postponement order made under the Old Announcement.
Final Deadline:
Overall, Juristic Entities that have yet to hold their AGM will now be required to hold the AGM no later than November 30, 2020. Any Juristic Entities failing to hold the AGM by the said deadline will be liable to fine payments as stipulated by the DBD.
Finally, Juristic Entities should timely schedule and hold the AGM to avoid fines and remain in compliance with the latest regulations. Should you need further assistance or any guideline regarding holding the AGM, please contact law@ilct.co.th
By:
Chart Chotiphol
Counsel/Business Development
On September 30, 2020, the Ministry of Interior (“MOI”) had made two announcements in relation to permitting foreign nationals to remain in Thailand under special circumstances. Due to the ongoing COVID-19 pandemic, MOI will be permitting an extension-of-stay, as well as, granting Special Tourist Visa (“STV”) to foreigners.
1). Extension-of-Stay
Foreigner who has entered into Thailand under Section 35 of the Thai Immigration Act, B.E. 2522 (“IA”) and has been allowed to stay in Thailand on a temporary basis under Section 37(5) of the same (e.g. tourism, education or business purposes etc.) shall be allowed to remain in Thailand until October 31, 2020.
Furthermore, foreigner under this criterion whose residence report (i.e. the requirement to notify his/her residence to the immigration officer for every 90 days) has been overdue is now allowed to make such report to the immigration officer by October 31, 2020 without any fines.
2). Special Tourist Visa (STV)
Foreigner may also enter and stay in Thailand under the Special Tourist VISA (“STV”) scheme. The STV scheme is primarily aim toward medical tourists and those who intend to traverse the terrain of Thailand on a long-stay basis.
The STV must be applied at the Thai Embassy of the applicant’s Country-of-origin. After grant, Foreigner with STV will be eligible for a 90-day stay. After the first 90-day stay period has ended, foreigner may apply at the local immigration office (with applicable fees) for another 90-day as the first extension, and another 90-day as the second extension. Overall, foreigner will be able to remain in Thailand for a total of 270 days. Nonetheless, foreigner must remain in Thailand at all times to be eligible for the mentioned extensions.
To be eligible for STV, foreigner must meet the following requirements:
Overall, foreign nationals are encouraged to stay up-to-date on the latest announcement to avoid any unnecessary fines and remain in compliance with the latest immigration rules. For further any assistance, please contact us at: law@ilct.co.th.
By:
Chart Chotiphol
Counsel/Business Development
The most recent development in Thai law which would benefit business and society at large is the Act on the Rules governing the Preparation of Draft Bills and Assessment of their Effectiveness when passed into Law, B.E. 2562 [2019] (the “Act”) which, among other things, empowers the courts to refer certain laws and regulations which are no longer necessary, or which are not in keeping with the times, or which impede the livelihood or occupation of the people (for the purpose of this article, “obsolete law(s)”), to (in the case of the courts of justice) the President of the Supreme Court for submission to the Supreme Court’s general meeting (sitting as a full court), to determine and declare whether such laws or regulations are obsolete.
The effect of the Supreme Court declaring a particular law or regulation obsolete would enable the court of justice concerned to exercise its discretion not to enforce the sanction under that law and prescribe other sanctions which it considers appropriate in the case before it.
This Act applies to Administrative Courts and Military Courts mutatis mutandis.
The Act, as its long name suggests, requires state agencies (as defined) to issue laws and regulations only to the extent that is necessary, and to repeal or amend existing laws and regulations which have outlast their usefulness or are not keeping with the times. It sets out procedures for holding public hearings of the proposed legislation and assessment of its possible impact which, together with the public opinion, must be taken into consideration when drafting the legislation.
However, this article will not deal with the procedures that state agencies must follow when proposing legislation, but will focus on the more significant aspect of the Act which empowers the courts of justice to refuse to enforce the sanctions under the obsolete laws.
I. Scope
The Act covers:
Laws: defined as Organic Laws (implementing constitutional provisions), Acts of Parliament and Codes.
Regulations [or Rules]: defined as the regulations pursuant to the law governing administrative procedure, which creates a burden on the people, or the failure to comply with them incurs punishment, or results in the deprivation of rights, or affects personal status.
These are the subordinate legislation or regulations which implement the acts of parliament.
II. Enabling provision
Section 6 of the Act provides that when a court of justice is going to enforce a legal provision which incurs criminal punishment, administrative sanction, or other sanctions which would adversely affect the violator, if, by its own cognition, or as a result of a reasoned objection from a party in the case, it appears, in the court’s opinion, that such legal provision is not in accord with section 5, first paragraph, of the Act[1], and: i) is not a case within the jurisdiction of the Constitutional Court; and ii) there is no prior ruling by the general meeting of the Supreme Court on that question (i.e. that it is an obsolete law), shall send its opinion to the President of the Supreme Court for submission to the general meeting of the Supreme Court (sitting as a full court) for determination.
Pending such determination, the court proceedings may continue, but no judgment may be issued until the general meeting of the Supreme Court has determined the question. In the event that the general meeting of the Supreme Court determines that such legal provision is obsolete law, the trial court or the Court of Appeal, depending where the case lies, may elect not to sentence, or to issue a lighter sentence than that prescribed by law, or may prescribe sanctions different from what that law stipulates, as the case may be. Such determination by the general meeting of the Supreme Court shall serve as precedent for all cases under the jurisdiction of the courts of justice. In such event, the administrative authority responsible for implementing such legislation shall proceed to amend it to be consistent with section 5, first paragraph, promptly.
III. Analysis
This is indeed a new development in Thai law whereby the legislative branch vests the judiciary with the authority to elect not to apply sanctions under laws which have outlived their usefulness, or which are not in line with present day conditions and which impose unnecessary burden on the livelihood or occupation of the people. It must be noted that the courts have no power to repeal the obsolete law, but can prescribe sanctions different from what that law stipulates. The duty to repeal or amend the obsolete law rests with the agencies under the executive branch responsible for implementing such law.
In the past, Thailand has undergone various attempts to reform its regulatory regime to make the country more competitive with other countries and to do away with laws which are no longer suitable with the times, but its effort has gained little success. The Act enables a party in a court case involving an obsolete law to raise his objection with the Court of First Instance (the trial court) or the Court of Appeal to have the court apprise the President of the Supreme Court to have the general meeting of the Supreme Court declare such law or regulation to be inconsistent with section 5, first paragraph of the Act, enabling the respective court to exercise its discretion not to impose criminal punishment, or to impose a lighter sentence than what is prescribed by such law or regulations, or to prescribe other sanctions different from what is prescribed by such laws or regulations in the case before it.
The laws and regulations mentioned above include announcements and orders having the force of law, i.e. the subordinate legislation and official directives which affect people in their daily lives.
The unique procedure of the Act which enables the courts to ‘weed out’ obsolete laws is an innovative and a more practical way of deregulating the legal system and keeping it attuned to the current requirements of society. The Act is certainly a quicker way of implementing law reforms as compared to the time it would take the other machinery of government to come to grips with the problem.
By:
Prof. Jayavadh Bunnag
On August 8, 2020, the Office of the Prime Minister has made an official announcement in the Government Gazette regarding the Regulations for Online Advertisement of Alcoholic Beverages. This announcement is in addition to the previous regulations stipulated by the Alcoholic Beverage Control Act, B.E. 2551 (2008) (“ABCA”), the Ministerial Regulations Prescribing Bases, and the Conditions on Displaying of Picture & Symbol for Advertising or Public Relations of Alcoholic Beverages, B.E. 2553 (2010) (“Ministerial Regulations”).
About the New Announcement
Due to the evolution of social media and online media platforms, more and more retailers/distributors have switched to online advertisements. As an effort to further control alcohol related advertisements by removing positive associations of brands from the consumption of alcoholic beverages, the Prime Minister has issued the following announcements in accordance with the recommendations of the National Alcoholic Beverage Policy Committee:
Scope of Advertisement
Despite this additional announcement, it is still possible to advertise alcoholic beverages as long as the advertisement content is in compliance with the ABCA and Ministerial Regulations. For instance, advertisements originated from outside of Thailand are exempted by a provision of the ABCA. With this being said, retailers/distributors should still follow the stipulated regulations, several examples are prescribed below:
Final Advice
In conclusion, the new announcement merely emphasizes that the previous regulations stipulated by the ABCA and Ministerial Regulations shall also apply to online media platforms. To this end, advertisement of alcoholic beverages in a “tasteful manner” is still acceptable. Be aware that violations of the ABCA and/or Ministerial Regulations will result in fines, imprisonment or both. For our previous guideline on Advertisement of Alcoholic Beverages, please see: Link.
For further assistance or advice on how to safely construct your advertisement content or compliance evaluation, please contact us at: law@ilct.co.th
By:
Chart Chotiphol
Counsel/Business Development
As an effort to restore the local tourism industry has been affected heavily by COVID-19, the Thai government is proceeding with a new tourism scheme that will allow foreign visitors to remain in Thailand for up to 270 days. This new tourism scheme is called “Special Tourist VISA”.
On September 15, 2020, the Thai Cabinet has approved a Special Tourist VISA scheme (“STV”). The STV scheme is primarily aimed toward foreign visitors with the intention to stay in Thailand on a long-term basis. The STV is expected to be announced in October 2020 and will take effect till September 2021.
Requirements
To be eligible for STV, foreign visitors must meet the following requirements:
Terms-of-Stay & Extension
Provided that the requirements are met, foreign visitors may apply for STV at their local Thai embassy.
Foreign visitors granted with STV will be eligible for 90-day stay. After the first stay period has ended, foreign visitors may apply at the local immigration office (with applicable fees) for another 90-day as the first extension, and another 90-day as the second extension. To this end, foreign visitors must remain in Thailand at all times to be eligible for the second or third extensions.
Overall, the STV scheme is mostly aimed toward medical tourists and those who intend to traverse the terrain of Thailand on a long-stay basis. While the STV scheme is not intended for the typical tourists, it is expected that the Thai government will introduce additional tourism schemes in the coming months. If you required any assistance or have further questions, please contact: law@ilct.co.th.
By:
Chart Chotiphol
Counsel/Business Development
In accordance with the National Council for Peace and Order No. 21/2560 issued on April 4, 2017 to facilitate the ease of doing business in Thailand.
As of August 31, 2020, Thailand Revenue Department (“RD”) has announced a waiver on the requirements for juristic entities to submit company’s Affidavit and other related corporate documents as required by law to RD. From now on, all juristic entities will no longer be required to retrieve the aforesaid documents manually from the Department of Business Development (“DBD”) since it is now the duty of RD to obtain such corporate documents of a company via direct database interlinkage with DBD.
As such, all juristic entities will no longer be required to submit with RD, the following documents:
Overall, this is an effort to reduce the documentary burden for doing business in Thailand in the New Normal era.
By:
Chart Chotiphol
Counsel/Business Development
