Gathering Evidence in Aid of Foreign Litigation Guide |
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Thailand |
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| (Asia Pacific) Firm Tilleke & Gibbins Updated 23 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Thailand is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Where there is no agreement on obtaining evidence in aid of foreign litigation between Thailand and a particular country (such as those discussed below), general principles of international law would apply (e.g., diplomatic channels). With respect to civil matters, Thailand is a party to agreements with five countries (Australia, China, Indonesia, South Korea, and Spain) regarding mutual judicial assistance in civil and commercial matters. These agreements include certain provisions for obtaining evidence in aid of foreign litigation in civil matters. With respect to criminal matters, Thailand is also a party to 15 agreements on Mutual Legal Assistance in Criminal Matters (“MLAT”). As one of these MLATs covers the ten member countries of the Association of Southeast Asian Nations (“ASEAN”), the total number of countries with which Thailand has MLAT agreements is 23: ASEAN member nations (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, and Vietnam), Australia, Belgium, Canada, China, France, India, Norway, Peru, Poland, Sri Lanka, South Korea, the UK, Ukraine, and the U.S. These MLATs include provisions regarding the process for obtaining evidence in aid of foreign litigation in criminal matters. Requests for obtaining evidence in criminal matters from countries with which Thailand is not a party to an MLAT must proceed through diplomatic channels and the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992). |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, the agreements regarding mutual judicial assistance in civil and commercial matters provide that requests for gathering evidence for use in foreign litigation must proceed through the respective Central Authorities of each party. Similarly, requests for evidence in criminal matters pursuant to an MLAT agreement would proceed through the Central Authority for Thailand designated in the relevant agreement. The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) provides that the Attorney General or a person designated by him or her will be the Central Authority under the act. Requests for evidence that is provided voluntarily do not require approval by a court or administrative body. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | There is no specific limitation provided under the applicable Thai law or procedure regarding the types of evidence that can be sought. |
| Who bears the burden of showing whether any privileges apply? | The person asserting a privilege would bear the burden of showing that such privilege applies. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | There is no specific requirement under the applicable Thai law or procedure that there be a showing that the information sought is allowable in the foreign jurisdiction in which the action is pending. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | There is no specific law or regulation prohibiting an individual in Thailand from testifying remotely in a deposition that is taken for use in a foreign legal proceeding. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | There is no specific “blocking statute” in Thailand that limits the extent to which an individual residing in Thailand may give evidence in a foreign proceeding. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, citizens residing in Thailand may voluntarily give evidence in a foreign proceeding. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Although some of the agreements on mutual judicial assistance in civil and commercial matters to which Thailand is a party mention cooperation in foreign arbitration proceedings, they do not specify a procedure for making requests for gathering evidence to be used in those proceedings. Having said that, assuming that the party in the foreign arbitration proceeding submits its requests for gathering evidence through a court proceeding in its country, then the applicable procedures mentioned above with respect to the agreements on mutual judicial assistance in civil and commercial matters or diplomatic channels should apply. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
Thailand is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Where there is no agreement on obtaining evidence in aid of foreign litigation between Thailand and a particular country (such as those discussed below), general principles of international law would apply (e.g., diplomatic channels).
With respect to civil matters, Thailand is a party to agreements with five countries (Australia, China, Indonesia, South Korea, and Spain) regarding mutual judicial assistance in civil and commercial matters. These agreements include certain provisions for obtaining evidence in aid of foreign litigation in civil matters.
With respect to criminal matters, Thailand is also a party to 15 agreements on Mutual Legal Assistance in Criminal Matters (“MLAT”). As one of these MLATs covers the ten member countries of the Association of Southeast Asian Nations (“ASEAN”), the total number of countries with which Thailand has MLAT agreements is 23: ASEAN member nations (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, and Vietnam), Australia, Belgium, Canada, China, France, India, Norway, Peru, Poland, Sri Lanka, South Korea, the UK, Ukraine, and the U.S. These MLATs include provisions regarding the process for obtaining evidence in aid of foreign litigation in criminal matters.
Requests for obtaining evidence in criminal matters from countries with which Thailand is not a party to an MLAT must proceed through diplomatic channels and the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992).
Yes, the agreements regarding mutual judicial assistance in civil and commercial matters provide that requests for gathering evidence for use in foreign litigation must proceed through the respective Central Authorities of each party.
Similarly, requests for evidence in criminal matters pursuant to an MLAT agreement would proceed through the Central Authority for Thailand designated in the relevant agreement. The Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) provides that the Attorney General or a person designated by him or her will be the Central Authority under the act.
Requests for evidence that is provided voluntarily do not require approval by a court or administrative body.
There is no specific limitation provided under the applicable Thai law or procedure regarding the types of evidence that can be sought.
The person asserting a privilege would bear the burden of showing that such privilege applies.
There is no specific requirement under the applicable Thai law or procedure that there be a showing that the information sought is allowable in the foreign jurisdiction in which the action is pending.
There is no specific law or regulation prohibiting an individual in Thailand from testifying remotely in a deposition that is taken for use in a foreign legal proceeding.
There is no specific “blocking statute” in Thailand that limits the extent to which an individual residing in Thailand may give evidence in a foreign proceeding.
Yes, citizens residing in Thailand may voluntarily give evidence in a foreign proceeding.
Although some of the agreements on mutual judicial assistance in civil and commercial matters to which Thailand is a party mention cooperation in foreign arbitration proceedings, they do not specify a procedure for making requests for gathering evidence to be used in those proceedings.
Having said that, assuming that the party in the foreign arbitration proceeding submits its requests for gathering evidence through a court proceeding in its country, then the applicable procedures mentioned above with respect to the agreements on mutual judicial assistance in civil and commercial matters or diplomatic channels should apply.