July 19th, 2009 at 11:38am
Under Administrative Law
In Thailand, Bankruptcy Laws form part of the Commercial Law. Thai bankruptcy law is devised in such a way not only to help debtors to distribute their property but also to help them in rehabilitating via several reorganization provisions.
In other words, the Bankruptcy Law includes the Bankruptcy Act for Business Rehabilitation. The Business Rehabilitation Law was introduced in 1999 as Chapter 90 of the Thai Bankruptcy Law BE 2483. The main purpose of the Business Rehabilitation law is to assist a debtor facing liquidity problem by giving him an opportunity for rehabilitation before being insolvent.
The procedures in connection with rehabilitation are usually commenced by an eligible petitioner by filing a petition with a provincial or a civil court as per the domicile of the debtor. However, petition for business rehabilitation could be filed only if the debtor’s overall debt comes to an amount that exceed Baht ten million. Likewise, In order to file a petition for business rehabilitation, certain legal and perquisites must be complied with such as:
- The names and addresses of creditors must be specified to whom the debtor owes in total at least an amount of Baht ten million
- Specify reasonable methods in order to rehabilitate business functions
- Proposed planner’s name as well as qualification
- Planner’s consent
- In case the petitioner is debtor, then details regarding assets and liabilities must be given
- Consent of authorities which is applicable as mentioned below :
1.In case the debtor is commercial bank or finance company, then the consent of the Bank of Thailand
2.In case the debtor is a securities company, then the consent of the Office of the Securities and Exchange Commission
3.In case the debtor is a file insurance company or a casualty insurance company, then the consent must be of the Insurance Department
On filing the petition as per the above grounds, the liquidator will start the case once when he confirms and proves that the debtor’s assets could not pay off liabilities. The court’s concern with regard to the business rehabilitation is mostly on the basis of debtor’s balance sheet as well as accounting documents and liquidator’s power of arguments. Discussed further in detail in this article are procedures with regard to business rehabilitation.
According to the Article 90 of the Bankruptcy Act, once the petition for business rehabilitation is accepted, a planner is appointed, who in turn possesses duties and powers to manage the debtor’s business as well as assets. In case, a planner is appointed, then the debtor executive’s power in administering the business and assets would cease. In such a situation, until the appointment of a planner, the court will employ one or more persons or sometimes the debtor’s executive for a temporary period to deal with the debtor’s business and assets under the administration of the receiver.
During this interim period, the receiver has complete right to administer interim executives and to order them to prepare explanation regarding the account details as well as anything pertaining to the management of business and assets. The interim executives would be relieved from the powers of receiver by the court when the receiver makes a motion.
In such situations, the court would employ new provisional executive to presume the office. In case the court does not appoint interim executive, then according to the Section 90/20 of the Bankruptcy Act, the receiver would be given power for a temporary period to manage debtor’s business and assets. Likewise, according to the Section 90/21 of the Bankruptcy Act, until a planner is appointed, all of the rights of the debtor’s shareholders would be suspended except for in the case of right to obtain dividends.
Once the acknowledgement order for business rehabilitation has been received, the debtor’s executive should handover everything from assets and seals to book keeping ledgers and documents pertaining to business, assets, and liabilities of the debtor to the provisional executive or the receiver.
Nowadays, a number of leading law firms is in the scenario to provide excellent services in connection with business rehabilitation and bankruptcy. Many of them undertake a plethora of such services in connection with business reorganization as analysis as well as consultation with creditor or debtor, filing petition for business rehabilitation, plan administration, and planner representation.
By Law Article
July 19th, 2009 at 07:06am
Under Labor Law
The Labor Protection Act of 1998 (LPA) and the Civil Commercial Code (CCC) are primarily responsible for administering labor protection laws in Thailand. In other words, the rights and duties pertaining to the employer and employee are governed by series of a laws and procedures.
Apart from Labor Protection Act BE 2541 (1998) and Thai Civil and Commercial Code, the laws in connection with Thai labor issues cover Labor Relations Act BE 2518 (AD 1975), Provident Fund Act BE 2530 (AD 1987), Social Security Act BE (AD 1900), and Workmen’s Compensation Act BE 2537 (AD 1994.)
The Ministry of Labor and Social Welfare, via the Department of Labor Protection and Welfare, administers the laws as well as rights with regard to labor issues. Further, the Minister of Labor and Social Welfare also possess right to appoint labor inspectors as well as to issue regulations and notifications.
The Labor Protection Act and other related laws have set up employees’ minimum rights working in the country. This in turn includes rights covering almost every aspect of an employment such as working hours, remuneration, child and female labor, employee welfare fund, overtime wages, sick leave and maternity leave, holidays, employee dismissal and termination, provident fund issues, workers’ compensation, employee social security, and severance. Discussed further in this article are rights pertaining to certain aspects of employment in Thailand.
Working Hours
An employee is mostly entailed to work eight hours a day or 48 hours a week. However, it is reduced to seven hours a day or 42 hours a week, in case, the work is hazardous and affects employee’s health. In addition, an employee working continuously for five hours a day should be given a resting time of at least one hour. Likewise, an employee must also be given at least one day holiday in a week.
Remuneration
A remuneration committee has been set up, containing chairman who is the permanent secretary of the Ministry of Labor and Social Welfare, government representatives, and representatives of both employers and employees, in order to fix the wages and to determine basic pay.
Place of Payment of Remuneration
As per the Labor Protection Act, an employer is required to make payment of remuneration at the working place itself. However, it can be changed provided if employee is ready to accept payment at some other place or via some other payment modes.
Female Employees
According to the labor acts, both male and female employees must be treated equally in a working environment. However, there are certain exceptions in this case. For instance, an employer is restricted to employ female employee in such organizations engaged in mining as well as construction projects, underwater and tunnel works, and production and transportation of inflammable materials and explosives. Similarly, pregnant female employee is prohibited from working in plant or equipment that vibrates and lifting or carrying on her head more than 15 kilograms of weight. Additionally, an employer cannot terminate a female employee when she is pregnant.
Child Labor
According to the labor law, a child labor could be employed only if he has completed 15 years of age. But, in order to child labor below 18 years of age, the employer is required to notify it to the labor inspector regarding the employment of a child labor within 15 days from the date of his joining the job. Likewise, the law restricts an employer to make a child labor below 18 years to work on public holidays and to do overtime. Further, child labor below 18 are not allowed work in certain working environments such as metal stamping, working with hazardous chemicals, and working with poisonous microorganisms.
Sick Leave and Maternity Leave
As per the law, an employer must grant employees at least 30 days paid sick leave. However, an employee must furnish a doctor’s certificate in case, he takes sick leave continuously for three days. In the case of maternity leave, a female pregnant employee should be granted at least 90 days maternity leave, of which the employer should pay for 45 days of the maternity leave.
Termination
A notice in writing must be given to an employee prior to his termination. However, according to the Labour Protection Act BE 2541 (1998), an employer can dismiss or terminate an employee without any notice or severance payment in any of these following circumstances such as
- Performing his or her duties and responsibilities dishonestly
- Committing any kind of criminal offense
- Negligence from the part of employee that leading to serious damage or loss to the employer
- Disobeying working rules and regulations devised by the employer
- On imprisonment as per the final judgment of imprisonment
A plethora of law firms are now in scenario in order to help you dealing with the Thai labor law. Usually, these law firms provide a range of services in connection with labor issues such as labor disputes, labor court representation, payroll issues, social security, and labor law compliance issues.
By Law Article
July 15th, 2009 at 07:07pm
Under Labor Law
In Thailand, all of the rights and duties pertaining to employers and employees are usually governed by a series of laws and regulations. Among the different acts that govern labor issues in Thailand are Labor Protection Act BE 2541, the Labor Court and Labor Court Procedure BE 2522, Labor Relations Act BE 2518, Social Security Act BE 2533, Thai Civil and Commercial Code, Provident Fund Act BE 2530, and Workmen’s Compensation Act BE 2537.
Usually, according to the employment law in Thailand, an agreement that has been established between the employer and employee should not be less than the minimum requirements or standards devised by the law.
The Labor Protection Act and other relevant acts dealing with the labor issues have set some specific rules and regulations for each and every aspect with regard to an employment such as working hour, remuneration, child labor, female labor, sick and maternity leave, dismissal as well as termination of employees, welfare and social security of employees, and hiring of employees services.
Working hours in an organization is usually on the basis of nature and type of work. In most cases, working hours should not go above eight hours per day or 48 hours each week. In case of such works that are harmful for the health of an employee, then working hours should not exceed seven hours a day or 42 days a week.
Under the Thai employment law, an employee’s maximum probationary period is 120 days. Further, the Labor Law entails every employer in Thailand to provide its employees at least 13 public days each year and at least six vacation leaves on completion of a year’s services.
Likewise, employees are eligible for annual sick leave of 30 working days each year. Apart from sick leave, pregnant employees are eligible for maternity leave of 90 days with 45 days’ full wages. When comes to remuneration, an employer is required to pay all benefits, apart from normal salary, that form part of the employment. In addition, the basic remuneration paid by an employer must be in accordance with the minimum wage as prescribed by the Ministry of Labour and Social Welfare.
Al though, male and female employees are treated alike in a employment, a female employee is prohibited from working in certain organizations or work environments such as construction as well as mining work which are performed underwater, tunnel, or underground, and transportation and production working conditions in which it is necessary to deal with inflammable or explosive items.
Likewise, there are also certain exceptions for pregnant female employees. In other words, an employer should not ask a pregnant employee to work overtime as well as work on public holidays. Further, they are also not allowed to work in certain environments such as on plants, construction firms where it is necessary to carry loads on heads or shoulders, and ships and other water going vessels.
In the case of child labor, the minimum age in order to employ a child labor is 15 years of age. But, to employ a child below the age of 18 years, it is necessary for an employer to notify it to the labor inspector within 15 days as of the date that the child starts his work. An employer is required to give a child labor a rest period of one hour for every four hours he has worked.
Similarly, an employer should not ask a child employee below 18 years to work overtime or on holidays. Additionally, child labors below 18 years are not allowed to perform dangerous works such as rolling as well as stamping metal and works dealing with unsafe chemicals and poisonous microorganisms.
A child below the age of 18 years is also strictly prohibited from certain establishments such as gambling centers, slaughterhouses, dance clubs, and center where liquors and other related beverages are served. Above all, an employer is required to pay the remuneration or benefits of child employees only to child employees and not to any other persons other than the employees.
Now we will discuss laws and regulations pertaining to termination and dismissal. A notice in writing must be provided to an employee prior to his termination. However, according to the Labour Protection Act BE 2541 (1998), an employer can dismiss or terminate an employee without any notice or severance payment in any of these following circumstances such as
- Performing his or her duties and responsibilities dishonestly
- Committing any kind of criminal offense
- Negligence from the part of employee that leading to serious damage or loss to the employer
- Disobeying working rules and regulations devised by the employer
- On imprisonment as per the final judgment of imprisonment
Nowadays, a lot number of law firms are in Thailand to help you dealing with the Thai labor law. Usually, these law firms provide a continuum of services in connection with labor issues such as labor disputes, labor court representation, payroll issues, social security, labor law compliance issues, and more.
By Law Article
July 13th, 2009 at 02:53pm
Under Business Law
With highly sophisticated infrastructure and free enterprise economy, Thailand – officially the Kingdom of Thailand – attracts many foreigners to set up and conduct innovative businesses. However, in order to invest or conduct a business in Thailand, a foreign investor is required to comply with certain laws and regulations. Al though they are sometimes complicated, these regulations are straightforward and not problematic.
The laws regarding foreign business laws in Thailand are governed by the Foreign Business Act, B.E. 2542. In other words, the Foreign Business Act 1999 (FBA) is the most significant law that oversees major foreign-owned businesses in the country. Published on December 4, 1999 in the Royal Government and came into existence with effect from March 3, 2000, this Act actually replaced the Alien Business Law, otherwise known as the National Executive Council No. 281, which was enacted in 1972.
The Foreign Business Act 1999 has been developed to provide the country with a modern as well as effective legal framework that enables foreign investors to invest in large scale. According to the Foreign Business Act, a company is regarded foreign, if it complies with following regulations such as:
- The entity not being registered in the country
- A registered or a limited partnership entity with non Thai managing partner
- Al though the entity is incorporated in the country, foreign shareholding is half or more than half of the overall shares of the company
- Over half of the firm’s capital fund is derived from a person who is not of a Thai nationality
As per the Foreign Business Act, the businesses have been categorized into three categories, such as Category A, Category B, and Category C. Under the Category C, foreign individuals are completely restricted from starting certain business for some special reasons, and some of them are newspaper publication as well as television or radio business firms, livestock business, wood processing business, business in connection with the Thai herbs, trading of antique or any items of historical significance, manufacturing of the images of Lord Buddha, and land business.
As in the case of the Category A, the Category B also prohibits foreigners from investing in certain types of businesses. Among these businesses are businesses that may affect the safety as well as security of the national, such as, manufacture and sales of items like gun powder and explosive items; businesses that may affect the art and culture of the country like manufacture of wood items, manufacturing of earthenware items, silkworm rearing, orchard farming, and laundry services; and businesses that may affect natural resources of the country, such as, manufacture of sugar from sugarcane, mining of rock salt, and processing wood to build furniture as well as utensils. However, such businesses may be conducted if the entity can gain the approval of the Board of Investment.
When comes to the Category C, it allows foreign firms to invest in certain types of businesses, provided they get approval from the Committee. Included in this category are farming of rice as well as production of flour, business in connection with fishery and forestry matters, mining, manufacture of glass containers and crockery, lime production, accounting and legal service businesses, and architecture and engineering related businesses.
A foreigner interested in investing as well as conducting any of the business specified in the Category C is required to submit an application with the Department of Commercial Registration in order to receive a license, namely, Alien Business License, before starting any business activity in the country. This license would be valid for a stipulated time period, and would be further subject to certain conditions.
However, for a foreigner or an alien company to apply for Alien Business License, the Ministerial Regulations, as per the Section 8 of the Law, has put forward certain conditions, of which some of them are the overall debt in connection with the financing of the business should not exceed seven times the capital possessed by the proprietors, partners, and shareholders of the business; money brought from abroad should not be less than the amount that has been declared as capital investment for the business in Thailand; and the number of Thai as well as alien directors must be in accordance with the capital held.
A plethora of law firms and other related service providers are in the scenario to help foreigners in dealing with complicated laws in connection with the foreign business registrations.
By Law Article
July 12th, 2009 at 04:38pm
Under Immigration Law
My mother-in-law died last night in Belgium. Under normal circumstances, I would leave for Brussels tomorrow night, to attend the funeral on Saturday morning.
Circumstances, however, are not normal. In fact, they are rather brain-dead. Immigration Policies in the EU do not permit long-term Visas, and I have an Indian passport, so I need a visa for Europe, and my Schengen Visa has expired. There is no Belgian Consulate in San Francisco where I can walk in and get a visa today. The nearest consulate is in LA.
It made me think, how come, in this age of electronic communication, we cannot tackle situations like this without physical exchange of documents?
It also made me write an email to Mr. Ronald De Langhe, Consul General and Ms. Véronique Marounek, Consul:
“Your laws, dear friends, are impractical and inhuman. In this day and age, with electronic communication of the utmost advanced calibre being available to us – it beats me why you cannot accept documents like bank statements, emails from family in Belgium confirming the news of the death, and payments by credit card. You have issued me a visa before. You have me on your file. Why can’t you let the immigration in Belgium know that a person with such and such passport number is to arrive on such and such date, to attend a funeral? Why can’t they check the passport number, while you check the electronic documents on this end? I need to take a plane tomorrow, and you don’t have a consulate in the San Francisco area … I do not have the time to send you the documents physically, because I will then miss the funeral.
Your laws and systems are outdated, and obsolete. You can tell me that the laws of no country allow for a visa to be issued without the passport being physically available. Well, my response to that then is that ALL immigration laws are outdated and obsolete. You should ALL look into what you are doing with a magnifying glass, study the progress of modern communication technology, and make a collective decision to join the march of human civilization.”
A lady from the Consulate called me back this afternoon to offer me condolences, and to acknowledge my letter.
Who knows, however, where the immigration reforms stand? I wonder if they even know how to spell technology!
By Law Article