2023 Investment Climate Statements: Thailand

POLICIES TOWARDS FOREIGN DIRECT INVESTMENT

Thailand continues to welcome investment from all countries. However, the Foreign Business Act (FBA) prescribes a wide range of business that may not be conducted by foreigners without additional licenses or exemptions. The term “foreigner” includes Thai-registered companies in which half or more of the capital is held by non-Thai individuals and foreign-registered companies. Although the FBA prohibits majority foreign ownership in many sectors, U.S. investors registered under the United States-Thailand Treaty of Amity and Economic Relations (AER) are exempt. Nevertheless, the AER’s privileges do not extend to U.S. investments in the following areas: communications; transportation; fiduciary functions; banking involving depository functions; the exploitation of land or other natural resources; domestic trade in indigenous agricultural products; and the practice of professions reserved for Thai nationals.

The Board of Investment (BOI) assists Thai and foreign investors to establish and conduct businesses in targeted economic sectors by offering both tax and non-tax incentives. In recent years, Thailand has taken steps to reform its business regulations, improving processes and reducing time required to start a business from 29 days to 6 days. Thai officials routinely make themselves available to investors through discussions with foreign chambers of commerce.

U.S. entities planning to invest in Thailand are advised to obtain qualified legal advice. Thai business regulations are governed predominantly by criminal rather than civil law. Foreigners are rarely jailed for improper business activities, yet violations of business regulations can carry heavy criminal penalties. Thailand has an independent judiciary and government authorities are generally not permitted to interfere in the court system once a case is in process.

Limits on Foreign Control and Right to Private Ownership and Establishment

Various Thai laws set forth foreign-ownership restrictions in certain sectors. These restrictions primarily concern services such as banking, insurance, and telecommunications. The FBA details the types of business activities reserved for Thai nationals. Foreign investment in those businesses must comprise less than 50 percent of share capital, unless specially permitted or otherwise exempt. The following three lists detail FBA-restricted businesses for foreigners.

List 1. This contains activities non-nationals are prohibited from engaging in, including newspaper and radio broadcasting stations and businesses; agricultural businesses; forestry and timber processing from a natural forest; fishery in Thai territorial waters and specific economic zones; extraction of Thai medicinal herbs; trading and auctioning of antique objects or objects of historical value from Thailand; making or casting of Buddha images and monk alms bowls; and land trading.

List 2. This contains activities related to national safety or security, arts and culture, traditional industries, folk handicrafts, natural resources, and the environment.Restrictions apply to the production, distribution and maintenance of firearms and armaments; domestic transportation by land, water, and air; trading of Thai antiques or art objects; mining, including rock blasting and rock crushing; and timber processing for production of furniture and utensils. A foreign majority-owned company can engage in List 2 activities if Thai nationals or legal persons hold not less than 40 percent of the total shares and the number of Thai directors is not less than two-fifths of the total number of directors. Foreign companies also require prior approval and a license from the Council of Ministers (Cabinet). However, with a resolution of the cabinet, the Minister of Commerce may alter these requirements, but in no circumstances can the percentage of Thai shareholding in a List 2 business be less than 25 percent.

List 3. Restricted businesses on this list include accounting, legal, architectural, and engineering services; retail and wholesale; advertising businesses; hotels; guided touring; selling food and beverages; and other service-sector businesses. A foreign company can engage in List 3 activities if a majority of the limited company’s shares are held by Thai nationals. Any company with a majority of foreign shareholders (more than 50 percent) cannot engage in List 3 activities unless it receives an exception from the Ministry of Commerce (MOC) under its Foreign Business License (FBL) application.

Aside from these general categories, Thailand does not maintain a national security screening mechanism for investment, and investors can receive additional incentives/privileges if they invest in priority areas, such as high-technology industries. Investors should contact the Board of Investment  https://www.boi.go.th/en/index/ for the latest information on specific investment incentives.

The U.S.-Thai Treaty of Amity and Economic Relations allows approved businesses to engage in some FBA restricted sectors; however, the Treaty does not exempt U.S. investments from restrictions applicable to: owning land; fiduciary functions; banking involving depository functions; inland communications & transportation; exploitation of land and other natural resources; and domestic trade in agricultural products.

To operate restricted businesses as defined by the FBA’s List 2 and 3, non-Thai entities must obtain a foreign business license. These licenses are approved by the Council of Ministers (Cabinet) and/or Director-General of the MOC’s Department of Business Development, depending on the business category.

Every year, the MOC reviews business categories restricted by the FBA. At the end of 2022, the MOC announced plans to review restrictions in the following FBA categories: aircraft maintenance, software, digital services, life and non-life insurance brokerages, futures contracts, extraction of Thai medicinal herbs, and livestock farming. As of this writing, a final decision had not yet been made. American investors who wish to take majority shares or operate wholly-owned businesses restricted by the FBA may apply for benefits under the U.S.-Thai Treaty of Amity:  https://tcc.export.gov/trade_agreements/all_trade_agreements/exp_005404.asp 

The U.S. Commercial Service at U.S. Embassy Bangkok is responsible for issuing a certification letter to confirm that a U.S. company is qualified to apply for benefits under the Treaty of Amity. The applicant must first obtain documents verifying that the company has been registered in compliance with Thai law. Upon receipt of the required documents, the U.S. Commercial Service office will then certify to the Foreign Administration Division, Department of Business Development, Ministry of Commerce (MOC) that the applicant is seeking to register an American-owned and managed company or that the applicant is an American citizen and is therefore entitled to national treatment under the provisions of the Treaty. For more information on how to apply for benefits under the Treaty of Amity, please email: Office.bangkok@trade.gov.

Other Investment Policy Reviews

The World Trade Organization conducted a Trade Policy Review of Thailand in November 2020 https://www.wto.org/english/tratop_e/tpr_e/tp500_e.htm  . The Organization for Economic Cooperation and Development (OECD) concluded its Investment Policy Review for Thailand in January 2021 https://www.oecd.org/investment/oecd-investment-policy-reviews-thailand-2020-c4eeee1c-en.html.

BUSINESS FACILITATION

The MOC’s Department of Business Development (DBD) is generally responsible for business registration. Registration can be performed online or manually. Registration documentation must be submitted in the Thai language. Many foreign entities hire a local law firm or consulting firm to handle their applications. Firms engaging in production activities also must register with the Ministry of Industry and the Ministry of Labor (MOL).

A company is required to have registered capital of two million Thai baht per foreign employee in order to obtain work permits. Additionally, foreign companies may have no more than 20 percent foreign employees on staff. Companies that have obtained special BOI investment incentives may be exempted from this requirement.

OUTWARD INVESTMENT

Outward investment from Thailand has increased rapidly in recent years and Thailand has become one of the largest outward investors in ASEAN. During 2020 and 2021, Thai companies continued to expand and invest overseas despite the pandemic. These investments primarily target neighboring ASEAN countries, China, the United States, and Europe. A relatively stable domestic currency, rising cash holdings, and subdued domestic growth prospects are driving outward investment.

Previously, food, agro-industry, energy, and chemical sectors accounted for the main share of outward flows. Purchasing shares, developing partnerships, and making acquisitions help Thai investors acquire technologies for parent companies and expand supply chains in international markets. Thai corporate laws allow outbound investments to be made by an independent affiliate (foreign company), a branch of a Thai legal entity, or by any Thai company in the case of financial investments abroad. BOI and the MOC’s Department of International Trade Promotion (DITP) share responsibility for promoting outward investment. BOI focuses on outward investment in ASEAN (especially Cambodia, Laos, Myanmar, and Vietnam) and emerging economies. DITP covers smaller markets.

TRANSPARENCY OF THE REGULATORY SYSTEM

Generally, Thai regulations are readily available for public review, though typically only in the Thai language. Thai government agencies are legally required in most cases to hold public consultations before finalizing draft regulations or laws. However, public consultation periods are in some cases short, making it logistically challenging for foreign stakeholders to participate. Certain Thai government agencies hold regular dialogues with foreign stakeholders on issues of particular interest, such as intellectual property. In other areas, such as digital and cybersecurity laws, the Thai government has taken stakeholders’ comments into account and amended draft laws accordingly.

U.S. businesses have repeatedly expressed concerns about Thailand’s customs regime. Complaints center on lack of transparency, the significant discretionary authority exercised by Customs Department officials, and a system of giving rewards to officials and non-officials for seized goods based on a percentage of the value of the goods. Specifically, the U.S. government and private sector have expressed concern about inconsistent application of Thailand’s transaction valuation methodology and the Customs Department’s repeated use of arbitrary values. Thailand’s latest Customs Act, which entered into force on November 13, 2017, was a moderate step forward. The Act removed the Customs Department Director General’s discretion to increase the Customs value of imports. It also reduced the percentage of remuneration awarded to officials and non-officials from 55 percent to 40 percent of the sale price of seized goods (or of the fine amount) with an overall limit of five million baht ($160,000). The 2017 changes, however, have not fully satisfied those concerned that Customs officials have incentives to manufacture violations under the system.

The Thai Constitution requires the government to assess the environmental impact of a wide range of undertakings, including by holding a public hearing of relevant stakeholders. The Ministry of Natural Resources and Environment (MONRE) is responsible for determining which projects, activities, or actions are required to have an environmental impact assessment report and for prescribing the regulations, methods, procedures, and guidelines in preparing an environmental impact assessment report. Additional information can be found at: http://www.onep.go.th/eia/ .

Inconsistent and unpredictable enforcement of government regulations remains problematic. In 2017, the Thai government launched a “regulatory guillotine” initiative to cut down on red tape, licenses, and permits. The initiative focused on reducing and amending outdated regulations in order to improve Thailand’s ranking on the World Bank “Ease of Doing Business” report. The regulatory guillotine project is still underway and making slow progress.

Gratuity payments to civil servants responsible for regulatory oversight and enforcement remain a common practice despite stringent gift bans at some government agencies. Firms that refuse to make such payments can be placed at a competitive disadvantage to other firms that do engage in such practices.
The Royal Thai Government Gazette (  www.ratchakitcha.soc.go.th  ) is Thailand’s public journal of the country’s centralized online location of laws, as well as regulation notifications.

Thailand is among the top countries in the world for environmental, social, and governance (ESG) disclosures, with both the Securities and Exchange Commission (SEC) and Bank of Thailand focused on this issue. New SEC regulations on Sustainable and Responsible Investing fund disclosure requirements became effective in April 2022, and the SEC, as the stock exchange regulator, mandates ESG reporting for listed companies in the 56-1 One Report annual public filing. The Stock Exchange of Thailand (SET) also provides resources, guidelines, and training to help companies with sustainability disclosures follow global reporting standards, including the Global Reporting Initiative (GRI) standards. In addition, SET annually announces Thailand Sustainability Investment (THSI), a list of Thai listed companies with outstanding sustainability performance. In 2022, the SET published the ESG Impact Assessment Report: THSI 2022 to provide information on how THSI companies have used ESG to create positive impacts on both internal and external stakeholders, and developed the ESG Data Platform, to disseminate listed companies’ ESG disclosures to investors.

INTERNATIONAL REGULATORY CONSIDERATIONS

Thailand is a member of the Association of Southeast Asian Nations (ASEAN) and the World Trade Organization (WTO). It notifies most, but not all, draft technical regulations to the WTO’s Technical Barriers to Trade (TBT) Committee and the Sanitary and Phytosanitary Measures Committee. Thailand does not always follow WTO and other international standard-setting norms or guidance (e.g., Codex Alimentarius maximum residue limits for pesticides on food) but prefers to set its own standards in some cases.

LEGAL SYSTEM AND JUDICIAL INDEPENDENCE

Thailand’s legal system is based on the civil law system with strong common law influence. Thailand has an independent judiciary that is generally effective in enforcing property and contractual rights. Most commercial and contractual disputes are generally governed by the Civil and Commercial Codes. The legal process is slow in practice and monetary compensation is based on actual damage that resulted directly from the wrongful act. Decisions of foreign courts are not accepted or enforceable in Thai courts. Most legal cases in Thailand will be under the jurisdiction of the Courts of Justice; however, specialized courts handle specific or technical problems: the Labor Court, the Intellectual Property and International Trade Court, the Bankruptcy Court, the Tax Court, and the Juvenile and Family Courts. Thailand also established the Criminal Court for Corruption and Misconduct Case to specifically handle corruption cases.

LAWS AND REGULATIONS ON FOREIGN DIRECT INVESTMENT

The Foreign Business Act or FBA (described in detail above) governs most investment activity by non-Thai nationals. Other key laws governing foreign investment are the Alien Employment Act (1978) and the Investment Promotion Act (1977). However, as explained above, many U.S. businesses enjoy investment benefits through the U.S.-Thailand Treaty of Amity and Economic Relations (often referred to as the ‘Treaty of Amity’), which was established to promote friendly relations between the two nations. Pursuant to the Treaty, American nationals are entitled to certain exceptions to the FBA restrictions.

Pertaining to the services sector, the 2008 Financial Institutions Business Act unified the legal framework and strengthened the Bank of Thailand’s (BOT, the central bank) supervisory and enforcement powers. The Act allows the BOT to raise foreign ownership limits for existing local banks from 25 percent to 49 percent on a case-by-case basis. The Minister of Finance can authorize foreign ownership exceeding 49 percent if recommended by the central bank. Details are available at: https://www.bot.or.th/th/home.html 

In addition to acquiring shares of existing (traditional) local banks, foreign banks can enter the Thai banking system by obtaining new licenses. The Ministry of Finance issues such licenses in consultation with the BOT. The BOT is currently preparing rules for establishing virtual banks or digital-only banks (no physical branches), a tool meant to enhance financial inclusion and keep pace with consumer needs in the digital age. Digital-only banks can operate at a lower cost and offer different services than traditional banks. The final version of the licensing regulations is expected to be submitted to the Ministry of Finance for consideration by mid-2023.

The 2008 Life Insurance Act and the 2008 Non-Life Insurance Act apply a 25 percent cap on foreign ownership of insurance companies. Foreign membership on boards of directors is also limited to 25 percent. However, in January 2016, the Office of the Insurance Commission (OIC), the primary insurance industry regulator, announced that Thai life and non-life insurance companies wishing to exceed these limits could apply to the OIC for approval. Any foreign national wanting to hold more than 10 percent of the voting shares in an insurance company can seek OIC approval to acquire up to 49 percent of the voting shares. Finally, for the purpose of strengthening the stability of any insurance company or the stability of the life insurance business, the Finance Minister, with OIC’s positive recommendation, can permit greater than 49 percent foreign ownership and/or a majority of foreign directors. While OIC has not issued a new insurance license in the past 20 years, OIC is now contemplating issuing new virtual licenses for firms to sell insurance digitally without an intermediary. Full details have not yet been announced.

The Board of Investment offers qualified investors several benefits and provides information to facilitate a smoother investment process in Thailand. Information on the BOI’s “One Start One Stop” investment center can be found at: https://osos.boi.go.th/EN/home/ .

COMPETITION AND ANTITRUST LAWS

Thailand’s Trade Competition Act covers all business activities, except state-owned enterprises exempted by law or cabinet resolution; specific activities related to national security, public benefit, common interest and public utility; cooperatives, agricultural and cooperative groups; government agencies; and other enterprises exempted by the law. The Act’s definition of a business operator includes affiliates and group companies; directors and management are subject to criminal and administrative sanctions if their actions (or omissions) result in violations. The Act also provides details about penalties in cases involving administrative court or criminal court actions.

The Office of Trade Competition Commission (OTCC) is an independent agency and the main enforcer of the Trade Competition Act (2018). The Commission advises the government on issuance of relevant regulations; ensures fair and free trade practices; investigates cases and complaints of unfair trade; and pursues criminal and disciplinary actions against those found guilty of unfair trade practices as stipulated in the law. The law focuses on the following areas: unlawful exercise of market dominance; mergers or collusion that could lead to monopoly; unfair competition and restricting competition; and unfair trade practices.

The Thai government, through the Ministry of Commerce’s Central Commission on Price of Goods and Services, has the legal authority to control prices or set de facto price ceilings for select goods and services, including staple agricultural products and feed ingredients (such as pork, cooking oil, wheat flour, feed wheat, distiller’s dried grains with solubles (DDGs), and feed quality barley), liquefied petroleum gas, medicines, and sound recordings. As of May 2023, 56 goods and services are on the price-controlled products list, which can be found here: https://www.dit.go.th/Content.aspx?m=105 https://www.dit.go.th/Content.aspx?m=105 . The controlled list is reviewed at least annually, but the price control review mechanisms are opaque. The Thai government also influences prices in the domestic market through its control of state monopoly suppliers of products and services, such as in the petroleum, oil, and gas industry sectors.

EXPROPRIATION AND COMPENSATION

Thailand’s Constitution provides protection from expropriation without fair compensation and requires the government to pass a specific, tailored expropriation law if the expropriation is required for the purpose of public utilities, national defense, acquisition of national resources, or for other public interests. The Investment Promotion Act also guarantees the government shall not nationalize the operations and assets of BOI-promoted investors.

The Expropriation of Immovable Property Act (EIP), most recently amended in 2019, applies to all property owners, whether foreign or domestic nationals. The Act provides a framework and clear procedures for expropriation; sets forth detailed provision and measures for compensation of landowners, lessees and other persons who may be affected by an expropriation; and recognizes the right to appeal decisions to Thai courts. However, the EIP and Investment Promotion Act do not protect against indirect expropriation and do not distinguish between compensable and non-compensable forms of indirect expropriation.

Thailand has a well-established system for land rights that is generally upheld in practice, but the legislation governing land tenure still significantly restricts foreigners’ rights to acquire land.

DISPUTE SETTLEMENT

ICSID Convention and New York Convention

Thailand is a signatory to the New York Convention, which means that investors can enforce arbitral awards in any other signatory country. Thailand signed the Convention on the Settlement of Investment Disputes in 1985 but has not ratified it. Therefore, most foreign investors covered under Thailand’s treaties with investor-state dispute settlement (ISDS) provisions that are limited to ICSID arbitration have not been able to bring ISDS claims against Thailand under these treaties.

Investor-State Dispute Settlement

Thailand is party to bilateral investment treaties with 46 nations. Two treaties — with the Netherlands and United States (Treaty of Amity) — do not include binding dispute resolution provisions. This means that investors covered under these treaties are unable to pursue international arbitration proceedings against the Thai government without first obtaining the government’s consent. There have been three notable cases of investor-state disputes in the last sixteen years, one of which involved U.S. companies. The first case involved a concession agreement for a construction project filed under the Germany-Thailand bilateral investment treaty. The second case concerned the Thai government’s invocation of special powers to shut down a gold mine in early 2017. The third case involved the decommissioning of a company’s assets in the Gulf of Thailand.

International Commercial Arbitration and Foreign Courts

Thailand’s Arbitration Act of 2002, modeled in part after the UNCITRAL Model Law, governs domestic and international arbitration proceedings. The Act states that “in cases where an arbitral award was made in a foreign country, the award shall be enforced by the competent court only if it is subject to an international convention, treaty, or agreement to which Thailand is a party.” Any arbitral award between parties subject to the New York Convention should thus be enforced. The following organizations provide arbitration services in Thailand: Thai Arbitration Institute of the Alternative Dispute Resolution Office; Office of the Judiciary; and the Office of the Arbitration Tribunal of the Board of Trade of Thailand. In addition, the semi-public Thai Arbitration Center offers mediation and arbitration for civil and commercial disputes. An amendment to the Arbitration Act that allows foreign arbitrators to take part in cases involving foreign parties came into force in April 2019. Under very limited circumstances, a court can set aside an arbitration award.

BANKRUPTCY REGULATIONS

Thailand’s bankruptcy law is modeled after the United States. The Thai Bankruptcy Act (1940) authorizes restructuring proceedings that require trained judges who specialize in bankruptcy matters to preside. Thailand’s bankruptcy law allows for corporate restructuring similar to U.S. Chapter 11 and does not criminalize bankruptcy. The law also distinguishes between secured and unsecured claims, with the former prioritized. Within bankruptcy proceedings, it is also possible to undertake a “composition” in order to avoid a long and protracted process. A composition takes place when a debtor expresses in writing a desire to settle their debts, either partially or in any other manner, within seven days of submitting an explanation of matters related to the bankruptcy or during a time period prescribed by the receiver. Despite these laws, some U.S. businesses complain that Thailand’s bankruptcy courts in practice can slow processes to the detriment of outside firms seeking to acquire assets liquidated in bankruptcy processes. Business rehabilitation proceedings can be initiated either by the debtor or the creditor while bankruptcy proceedings may only be initiated by creditors. Thai law does not allow a debtor to commence voluntary bankruptcy proceedings.

The National Credit Bureau of Thailand (NCB) provides the financial services industry with information on consumers and businesses. The NCB is required to provide the financial services sector with payment history information from utility companies, retailers and merchants, and trade creditors.

INVESTMENT INCENTIVES

The Board of Investment: The Board of Investment (BOI) offers investment incentives to qualified domestic and foreign investors. To upgrade Thailand’s technological capacity, the BOI presently gives more weight to applications in high-tech, innovative, and sustainable industries. These include digital technology, “smart agriculture” and biotechnology, aviation and logistics, automation and robotics, medical and wellness tourism, and other high-value services.

The most significant privileges offered by the BOI for promoted projects include:

• corporate income tax exemptions; tariff reductions or exemptions on imports of machinery used in the investment; tariff-free treatment on imported raw materials used in production for export.
• permission to own land; permission to bring foreign experts; and visa and work permit facilitation.

The Thai government is developing a new National Energy Plan that will set a 20 percent target for renewable energy by 2037, and has established a special committee, under supervision of the Deputy Prime Minister and Minister of Energy, to support increased investment in clean energy, electric vehicles, and related industries. In support of these policies, electricity producers can access tax and non-tax incentives from Thailand’s BOI. The tax incentives include a corporate income tax holiday of six or eight years, depending on the type of power production used in electricity generation. Tax incentives also include custom duty exemptions for the import of new equipment.

Thailand also has a feed-in-tariff (FiT) program and additional tax and investment incentives to meet the 20 percent renewable energy electricity supply target by 2037. The FiT program, launched in 2015, replaced the previously offered “adder” scheme. With declining investment costs across various renewable energy technologies, especially solar and onshore wind installation, in 2015, the government moved to competitive bidding with FiT set as the ceiling price.

In February 2022, Thailand joined the U.S.-led Clean Energy Demand Initiative, in which the Thai government agreed to pursue policies that will increase access to alternative energy for the private sector. Electric vehicles are another key focus area for the Thai government. In 2022, the Thai government approved a suite of measures to increase foreign investment in EVs, including a range of tax incentives, subsidies, and other mechanisms.

Investment projects with a significant R&D, innovation, or human resource development component may be eligible for additional grants and incentives. Moreover, grants are provided to support targeted technology development under the Competitive Enhancement Act. BOI offers a one-stop service to expedite multiple business processes for investors.

For additional information, contact the Office of Board of Investment at: www.boi.go.th .Office of the Eastern Economic Corridor:Thailand’s flagship investment zone, the “Eastern Economic Corridor (EEC),” spans the provinces of Chachoengsao, Chonburi, and Rayong (5,129 square miles). The EEC leverages the developed infrastructure networks of the adjacent eastern seaboard industrial area, Thailand’s primary investment destination for more than 30 years. The Thai government’s goal is to develop the EEC as a primary investment and infrastructure hub in ASEAN and a gateway to east and south Asia. Among the planned EEC development projects are smart cities; an innovation district (EECi); a digital park (EECd); an aerotropolis (EEC-A); and a medical hub (EECmd). The EEC targets twelve industries:

• Next-generation automotive
• Intelligent electronics
• Advanced agriculture and biotechnology
• Food processing
• Tourism
• Advance robotics and automation
• Integrated aviation industry
• Medical hub and total healthcare services
• Biofuels and biochemicals
• Digital technology
• Defense industry
• Human resource development

The EEC Act authorized investment incentives and privileges. Investors can obtain long-term land leases of 99 years (with an initial lease of up to 50 years and a renewal of up to 49 years). The EEC Act shortens the public-private partnership approval process to approximately nine months.The BOI works in cooperation with the EEC Office. BOI offers corporate income tax exemptions of up to 13 years for strategic projects in the EEC area. Foreign executives and experts who work in targeted industries in the EEC are subject to a maximum personal income tax rate of 15-17 percent.For additional information, contact the Eastern Economic Corridor Office at: https://www.eeco.or.th/en. 

FOREIGN TRADE ZONES/FREE PORTS/TRADE FACILITATION

The Industrial Estate Authority of Thailand (IEAT), a state-owned enterprise under the Ministry of Industry, develops suitable locations to accommodate industrial properties. IEAT has an established network of industrial estates in Thailand, including Laem Chabang Industrial Estate in Chonburi Province and Map Ta Phut Industrial Estate in Rayong Province in Thailand’s eastern seaboard region, a common location for foreign-owned factories due to its proximity to seaport facilities and Bangkok. Foreign-owned firms generally have the same investment opportunities in the industrial zones as Thai entities. Although the IEAT is required to consider and approve the amount of space/land bought or leased by foreign-owned firms in industrial estates, there is no record of disapproval for requested land. Private developers are heavily involved in the development of these estates.

The IEAT currently operates 15 estates, plus 50 more in conjunction with the private sector, in 16 provinces nationwide. Private-sector developers independently operate over 50 industrial estates, most of which have received promotion privileges from the Board of Investment. Amata Industrial Estate and WHA Industrial Development are Thailand’s leading private industrial estate developers. Most major foreign manufacturing investors, including U.S. manufacturers, are located in these two companies’ industrial estates and in the eastern seaboard region.

Thailand Free Trade Zones have two main types – General Industrial Zone (either under private-sector or the IEAT) and Special Economic Zones. The IEAT has established 12 special IEAT “free trade zones” reserved for industries manufacturing exclusively for export. Businesses may import raw materials into, and export finished products from, these zones free of duty (including value added tax). These zones are located within industrial estates, and many have customs facilities to speed processing. In addition to these zones, factory owners can apply for permission to establish a bonded warehouse within their premises to which raw materials, used exclusively in the production of products for export, may be imported duty-free.

The Customs Act also allows the Customs Director General to grant permits for companies to establish “free zones” for industries and sectors deemed beneficial to the country. Goods imports and exports through free zones are exempt from customs duties, and import duties are also waived for machinery, equipment, tools, appliances, and components necessary for the operation of the business or assembly, installation, or operation of the equipment. To date, there are established free zones at Don Muang Airport, Suvarnabhumi Airport, U-Tapao Airport, Special Economic Development Zone, and in the Eastern Economic Corridor.

The Thai government also established Special Economic Zones (SEZs) in ten provinces bordering neighboring countries. Business sectors and industries that benefit from tax and non-tax incentives offered in the SEZs include: logistics; warehouses near border areas; distribution; services; labor-intensive factories; and manufacturers using raw materials from neighboring countries. These SEZs support Thai government goals for closer economic ties with neighboring countries and allow investors to tap into abundant migrant labor; however, these SEZs have proven less attractive to overseas investors due to their remote locations far from Bangkok and other major cities.

Thai Customs implemented various measures to improve trade and customs processing: Pre-Arrival Processing (PAP); an “e-Bill Payment” electronic payment system; and an e-Customs system, National Single Window System (NSW) that reduces the use of paper and enhances single stop service in the custom process. The measures comply with the World Trade Organizations (WTO) Trade Facilitation Agreement (TFA), which requires WTO members to adopt procedures for pre-arrival processing for imports and to authorize electronic submission of customs documents, where appropriate. The NSW was also developed in conjunction with the ASEAN Single Window, which is a regional initiative that will connect and integrate NSW of ASEAN member States to expedite cargo clearance and enable electronic exchange of border-trade related documents.

PERFORMANCE AND DATA LOCALIZATION REQUIREMENTS

The Thai government does not have specific laws or policies regarding performance or data localization requirements. Foreign investors are not required to use domestic content in goods or technology, but the Thai government has encouraged such an approach through domestic preferences in government procurement proceedings. In March 2021, Thailand announced the “Made in Thailand” initiative, which will direct government agencies to procure at least 60 percent of their goods from local producers.

There are currently no requirements for foreign IT providers to localize their data or turn over source code. However, Thai companies and government agencies may still request companies to store and process data locally, even when not legally required.

In 2022, Thailand adopted a new royal decree on “digital platforms,” which will take effect in August 2023. While the government is still working on implementing regulations of the new decree, tech companies and academics have voiced concerns regarding its ambiguous scope and compliance burden, including new reporting requirements for large digital platforms.

In 2021, the National Cybersecurity Agency (NCSA) published implementing  regulations for the Cyber Security Act (CSA) that define critical information infrastructure (CII) and establish a national coordination center to monitor and resolve cyber threats. The seven sectors classified as CII are national security, essential government services, banking and finance, information technology and telecommunication, transportation and logistics, public utilities (electricity, petroleum and natural gas, water utilities), and health. Legal experts have raised concerns that the law gives NCSA broad powers to enter premises and to monitor, test, freeze, or seize computers without sufficient protections or opportunities to appeal, and that cybersecurity awareness and systems to prevent cyberattacks at public sector organizations remain weak and outdated.

The Personal Data Protection Act (PDPA) took effect on June 1, 2022, but important implementing regulations have yet to be finalized. Modelled after the EU’s General Data Protection Regulation, the PDPA places restrictions on the transmission of personal data abroad. The government has held public consultations on an implementing regulation to govern the cross-border transfer of personal data, but as of this writing has yet to finalize it.

Thailand requires that all transactions using domestic debit cards be processed onshore.

REAL PROPERTY

Property rights are guaranteed by the Thai Constitution and the government provides fair compensation in instances of expropriation (for the purpose of public utilities, military use, agricultural development, or town and country planning). Thai policy generally does not permit foreigners to own land; however, permission has been granted to foreigners under certain laws or ministerial regulations for residential, business, or religious purposes. Foreign ownership of condominiums and buildings is permitted under certain laws. Foreigners can freely lease land for a fixed period of time. Relevant articles of the civil and commercial codes do not distinguish between foreign and Thai nationals in the exercise of lease rights. Secured interests in property, such as mortgage and pledge, are recognized and enforced. Unoccupied property legally owned by foreigners or Thais may be subject to adverse possession by squatters who stay on that property for at least 10 years.

INTELLECTUAL PROPERTY RIGHTS

Thailand remained on the Special 301 Watch List in 2022. USTR noted in its annual report that while Thailand has made substantial progress on improving IP protection and enforcement, concerns remain. The report highlighted Thailand not being a party to some major international IP treaties; the unauthorized activities of collective management organizations; the availability of counterfeit goods; online piracy from streaming devices and applications; the use of unauthorized software in the public and private sectors; and a continued backlog in pharmaceutical patent applications as the main challenges confronting the country’s protection of intellectual property rights.

Thailand has legislation and enforcement mechanisms in place to protect all types of IP, including patent, trademark, and copyright. The Department of Intellectual Property (DIP) is responsible for IP-related administration, including registration and recording of IP rights and coordination of IP enforcement activities.
Thailand’s Patent Act is its principal law governing registration and protection of patents. The process of patent examination through issuance is slow in Thailand, taking on average six to eight years. Thailand does not offer patent term adjustments to compensate for slow patent processing. As of May 2023, Thailand remained in the process of amending its Patent Act to streamline the patent registration process, to reduce patent backlog and pendency, and to help prepare for accession to the Hague Agreement Concerning the International Registration of Industrial Designs. Furthermore, Thailand has increased the number of examiners to reduce the patent backlog.

Thailand allows trademark owners to apply for trademark registrations directly at DIP or through international applications under the Madrid Protocol. DIP currently takes around six months to register a new trademark. Thailand’s Geographical Indications (GI) Act has been in force since April 2004. The geographical origins identified by a GI must be directly attributable to the reputation, qualities, or characteristics of the good. In Thailand, a registered trademark does not prevent a similar geographical name to be registered as a GI.

As Thailand is a member of the “Berne Convention,” copyright works are protected automatically. However, copyright owners may record their works with DIP to establish proof of ownership. Thailand recently amended its Copyright Act to improve enforcement against online piracy and also acceded to the WIPO Copyright Treaty (WCT). The amendment expanded the term of protection for photographic works, adopted liability exemptions for Internet Service Providers (ISPs), and added criminal offences for circumventing of technological protection measures (TPMs). DIP also is currently working on a second phase of Copyright amendments, which will facilitate accession to WIPO Performances and Phonogram Treaty (WPPT).

Thailand maintains a database on seizures of counterfeit goods https://www.ipthailand.go.th/en/ipr-enforcement-operation.html . In 2022, the Royal Thai Police conducted 1,070 raids and seized 951,341 items. The Department of Special Investigation conducted nine raids on trademark violations resulting in 672,881 items being seized, and the Customs Department had 498 seizures that stopped 683,954 IP-infringing items from entering Thailand.

Thailand’s Central Intellectual Property and International Trade Court (CIPIT) is the court of first instance with jurisdiction over both civil and criminal intellectual property cases and the appeals from DIP administrative decisions. The Court of Appeal for Specialized Cases hears appeals from the CIPIT. According to data from Thailand’s Intellectual Property and International Trade Court, the number of IP criminal cases filed at the court significantly dropped compared to previous years while the IP civil cases slightly declined. This trend has encouraged rights-owners to file civil cases in addition to criminal cases, which is in line with the government’s data. Further, the Thai Customs Department issued new rules to increase the efficiency of its processes related to IP recordation and seizures of IP infringing goods.

For additional information about national laws and points of contact at local IP offices, please see the DIP website at: https://www.ipthailand.go.th/en/  and WIPO’s country profiles at: http://www.wipo.int/directory/en/ .

CAPITAL MARKETS AND PORTFOLIO INVESTMENT

The Thai government maintains a regulatory framework that broadly encourages and facilitates portfolio investment. The Stock Exchange of Thailand, the country’s national stock market, was established under the Securities Exchange of Thailand Act in 1992. Government policies generally do not restrict the free flow of financial resources to support product and factor markets. The Bank of Thailand, the country’s central bank, respects IMF Article VIII and refrains from imposing restrictions on payments and transfers for current international transactions.

Credit is generally allocated on market terms rather than by “directed lending.” Foreign investors are not restricted from borrowing on the local market. In theory, the private sector has access to a wide variety of credit instruments, ranging from fixed term lending to overdraft protection to bills of exchange and bonds. However, the private debt market is not well developed. Most corporate financing, whether for short-term working capital needs, trade financing, or project financing, requires borrowing from commercial banks or other financial institutions.

MONEY AND BANKING SYSTEM

Thailand’s banking sector, with 15 domestic commercial banks, is sound and well-capitalized. As of December 2022, the gross non-performing loan rate was low (around 2.7 percent industry wide). The ratio of capital funds to risk-weighted assets (capital adequacy) was high (19.4 percent). Thailand’s largest commercial bank is Bangkok Bank, with assets totaling USD 108 billion as of December 2022. The combined assets of the five largest commercial banks totaled USD 477 billion, or 71 percent of the total assets of the Thai banking system, at the end of 2022.

In general, Thai commercial banks provide the following services: accepting deposits from the public; granting credit; buying and selling foreign currencies; and buying and selling bills of exchange (including discounting or re-discounting, accepting, and guaranteeing bills of exchange). Commercial banks also provide credit guarantees, payments, remittances, and financial instruments for risk management. Such instruments include interest-rate derivatives and foreign-exchange derivatives. Additional business activities to support capital market development, such as debt and equity instruments, are allowed. A commercial bank may also provide other services, such as bank assurance and e-banking.

Thailand’s central bank is the Bank of Thailand (BOT), which is headed by a Governor appointed for a five-year term. The BOT serves the following functions: prints and issues banknotes and other security documents; promotes monetary stability and formulates monetary policies; manages the BOT’s assets; provides banking facilities to the government; acts as the registrar of government bonds; provides banking facilities for financial institutions; establishes or supports the payment system; supervises financial institutions; manages the country’s foreign exchange rate under the foreign exchange system; and determines the makeup of assets in the foreign exchange reserve.

Apart from the 15 domestic commercial banks, there are currently 11 registered foreign bank branches, including three American banks (Citi, Bank of America, and JP Morgan Chase, although Citigroup transferred ownership of its consumer banking business to Thai United Overseas Bank in November 2022), and four foreign bank subsidiaries operating in Thailand. To set up a bank branch or a subsidiary in Thailand, a foreign commercial bank must obtain approval from the Ministry of Finance and the BOT. Foreign commercial bank branches are limited to three service points (branches/ATMs) and foreign commercial bank subsidiaries are limited to 40 service points (branches and off-premises ATMs) per subsidiary. Newly established foreign bank branches are required to have minimum capital funds of 125 million baht (USD 3.6 million at 2022 average exchange rates) invested in government or state enterprise securities, or directly deposited with the Bank of Thailand. The number of expatriate management personnel is limited to six people at full branches, although Thai authorities frequently grant exceptions on a case-by-case basis.

In principle, non-residents can open and maintain savings accounts in Thailand. In practice, however, most banks in Thailand will not open accounts for non-resident foreigners.

In January 2021, the Bank of Thailand began allowing non-resident companies greater flexibility to conduct baht transactions with domestic financial institutions under the non-resident qualified company scheme. Participating non-financial firms that trade and invest directly in Thailand are allowed to manage currency risks related to the baht without having to provide proof of underlying baht holdings for each transaction. This allows firms to manage baht liquidity more flexibly without being subject to the end-of-day outstanding limit of 200 million baht for non-resident accounts. Withdrawals are freely permitted. Since mid-2017, the BOT has allowed commercial banks and payment service providers to introduce new financial services technologies under its “Regulatory Sandbox” guidelines. Recently introduced technologies under this scheme include standardized QR codes for payments, blockchain funds transfers, electronic letters of guarantee, and biometrics.

Thailand’s alternative financial services include state-owned banks (specialized financial institutions or SFIs), cooperatives, micro-saving groups, the state village funds, and informal money lenders. The informal money lenders provide basic but expensive financial services to households, mostly in rural areas. These alternative financial services, with the exception of informal money lenders, are regulated by the government.

FOREIGN EXCHANGE AND REMITTANCES

Foreign Exchange

There are no limitations placed on foreign investors for converting, transferring, or repatriating funds associated with an investment; however, supporting documentation is required. Investment funds are allowed to be freely converted into any currency.

The Thai baht exchange rate is generally determined by market fundamentals but is carefully scrutinized by the BOT under a managed float system. During periods of excessive capital inflows/outflows (i.e., exchange rate speculation), the central bank has stepped in to prevent extreme movements in the currency and to reduce the duration and extent of the exchange rate’s deviation from a targeted equilibrium.

Remittance Policies

Thailand imposes no limitations on the inflow or outflow of funds for remittances of profits or revenue for direct and portfolio investments. There are no time limitations on remittances.

SOVEREIGN WEALTH FUNDS

Thailand does not have a sovereign wealth fund and the Bank of Thailand is not pursuing the creation of such a fund. However, the International Monetary Fund has urged Thailand to create a sovereign wealth fund due to its large accumulated foreign exchange reserves. As of December 2022, Thailand had the world’s 14th largest foreign exchange reserves at USD 217 billion.
7. State-Owned Enterprises

Thailand’s 52 state-owned enterprises (SOEs) have total assets of USD 448 billion and a combined gross income of USD 131 billion (end of 2021 figures, latest available). In 2021, the SOEs employed 267,657 people, or 0.65 percent of the Thai labor force. Thailand’s SOEs operate primarily in service delivery, in particular in the energy, telecommunications, transportation, and financial sectors. More information about SOEs is available at the website of the State Enterprise Policy Office (SEPO) under the Ministry of Finance at: www.sepo.go.th .

A 15-member State Enterprises Policy Commission, or “superboard,” oversees operations of the country’s 52 SOEs. In May 2019, the Development of Supervision and Management of State-Owned Enterprise Act (2019) went into effect with the goal to reform SOEs and ensure transparent management decisions. The Thai government generally defines SOEs as special agencies established by law for a particular purpose that are 100 percent owned by the government (through the Ministry of Finance as a primary shareholder). The government recognizes a second category of “limited liability companies/public companies” in which the government owns 50 percent or more of the shares. Of the 52 total SOEs, 42 are wholly owned and 10 are majority-owned. Three SOEs are publicly listed on the Stock Exchange of Thailand: Airports of Thailand Public Company Limited, PTT Public Company Limited, and MCOT Public Company Limited. By regulation, at least one-third of SOE boards must be comprised of independent directors.

Private enterprises can compete with SOEs under the same terms and conditions with respect to market share, products/services, and incentives in most sectors, but there are some exceptions, such as fixed-line operations in the telecommunications sector.

While SEPO officials aspire to adhere to the OECD Guidelines on Corporate Governance for SOEs, there is not a level playing field between SOEs and private sector enterprises, which are often disadvantaged in competing with Thai SOEs for contracts.

Generally, SOE senior management reports directly to a cabinet minister and to SEPO. Corporate board seats are typically allocated to senior government officials or politically affiliated individuals.

Thailand’s SOEs have many international investments, including in the United States. For example, subsidiaries of the Electricity Generating Authority of Thailand (EGAT) have invested in international projects covering a range of energy technologies. This includes companies like EGAT International, which has an explicit mandate to invest overseas, as well as companies in which EGAT has a sizeable share (like EGCO), which has a corporate strategy of investing in diverse energy technologies overseas.

PRIVATIZATION PROGRAM

The 1999 State Enterprise Corporatization Act provides a framework for conversion of SOEs into stock companies. Corporatization is viewed as an intermediate step toward eventual privatization. [Note: “Corporatization” describes the process by which an SOE adjusts its internal structure to resemble a publicly traded enterprise; “privatization” denotes that a majority of the SOE’s shares are sold to the public; and “partial privatization” is when less than half of a company’s shares are sold to the public.] Foreign investors are allowed to participate in privatizations, but restrictions are applied in certain sectors, as regulated by the FBA and the Act on Standards Qualifications for Directors and Employees of State Enterprises of 1975, as amended. However, privatization efforts have been on hold since 2006 largely due to labor market concerns.

CLIMATE ISSUES

Thailand places high priority on climate change as one of the key challenges affecting communities’ livelihood, economic growth, and sustainable development. The country is among the top 10 countries most vulnerable to climate change and the world’s 20th largest emitter of greenhouse gases. Since 2007, Thailand has incorporated climate change into its national economic and social development plans, including at the highest policy level under the National Strategy (2018-2037) to ensure long-term continuity of the issue alongside other economic and social considerations, including poverty eradication.

On November 2, 2022, Thailand submitted its second updated National Determined Contribution  to the United Nations Framework Convention on Climate Change (UNFCCC), reflecting its intention to reduce its greenhouse gas emissions by 30 percent from the projected business-as-usual (BAU) level by 2030, and in line with the long-term goal of carbon neutrality by 2050 and net-zero greenhouse gas emission by 2065 that Prime Minister Prayut Chan-o-cha announced at the 2021 United Nations Climate Change Conference (COP26). Thailand’s total mitigation, for the first time, will consider agriculture, in addition to energy, waste, and industrial process and product use. The level of contribution could increase up to 40 percent, subject to adequate and enhanced access to technology development and transfer, financial resources, and capacity building support across four areas: policy implementation, mitigation and adaptation technology development and transfer, mechanisms, and instruments to support implementation, and climate information and monitoring and evaluation systems.

Thailand is also drafting a new Climate Change Act that will help ensure stronger interagency coordination among authorities and solidify Thailand’s Climate Change Master Plan, which will be revised every five years. Other notable components of the draft law include establishment of a greenhouse gas emissions database, reporting requirements for government and private sector entities (along with penalties for non-compliance), and guidelines for use of the Thailand Environment Fund. Thailand has also developed the National Adaptation Plan (NAP) with the aim to build adaptive capacity and enhance climate resilience in six priority sectors including water resources management, agriculture and food security, tourism, public health, natural resources management, and human settlements and security.

On December 22, 2022, the Thai cabinet approved the proposal by the Ministry of Natural Resources and Environment (MONRE) to set up the Department of Climate Change and Environment to drive country’s efforts to achieve its climate change goals and plans. The new department will reorganize several offices within MONRE. The Climate Change Management and Coordination Division – Thailand’s focal point for the United Nations Framework Convention on Climate Change (UNFCCC) – will be transferred from the Office of Natural Resources and Environmental Policy and Planning (ONEP) and be merged with the Department of Environmental Quality Promotion. At the time of writing, MONRE is in the process of this reorganization and drafting of relevant regulations.

Clean energy technology is featured prominently in Thailand’s climate landscape, since the energy sector is currently the main source of greenhouse gas emissions. The Thai government is actively pursuing foreign investment related to clean energy, electric vehicles, and related industries. Thailand is currently developing a National Energy Plan (NEP) that will further increase the 2037 target of renewable energy to 50 percent in order to meet the new climate goals and align energy production with the government’s “Bio-Circular Green Economy” model. The NEP and the sub plans, including the Power Development Plan, are expected to be finalized in 2023. Private sector investment is a key driver of success.

The Thai government has established a special committee under the supervision of the Deputy Prime Minister/Minister of Energy to support increased investment in this area. In support of these policies, electricity producers can access tax and non-tax incentives from Thailand’s Board of Investment (BOI). The tax incentives include a corporate income tax holiday of six or eight years, depending on the type of power production used in electricity generation. Tax incentives also include custom duty exemptions for the import of new equipment. Thailand also has a feed-in-tariff (FiT) program and additional tax and investment incentives through the BOI. The FiT is designed to accelerate growth in renewable energy investment by offering a guaranteed, above-market price for long-term power purchase agreements (20–25 years). The FiT is currently offered for solar, solar with energy storage, wind, biomass, biogas, and waste-to-energy power production.

Electric vehicles are another key focus area for the Thai government and its “30@30” policy aims to have 30 percent of domestic vehicle production be electric vehicles by 2030. To achieve this, the Thai government in 2022 approved a suite of measures to increase domestic demand and foreign investment in electric vehicles and parts, including a range of tax incentives, subsidies, and other mechanisms. As of March 2023, nine companies have signed up for the Thai government’s EV manufacturing incentive scheme to date. Government procurement practices also allow government agencies to purchase electric vehicles as part of their vehicle fleet.

Thailand is ahead of its peers on creating a carbon crediting mechanism. The World Bank’s State and Trends of Carbon Pricing 2022 lists Thailand as the only country in ASEAN that implements a crediting mechanism. The Thailand Greenhouse Gas Organization (TGO), part of MONRE, has been leading Thailand’s efforts on carbon market development since 2015 through its Thailand Voluntary Emission Reduction Program (T-VER). T-VER is a carbon credits registry and issuance system for domestic trading that occurs “over-the-counter” between two parties. Meanwhile, state-owned utility Electricity Generating Authority of Thailand (EGAT) is leading efforts on Renewable Energy Certificate (REC) issuance. In September 2020, EGAT became the only local issuer of RECs according to the Netherlands’ International REC Standard (I-REC). On September 21, 2022, TGO and the Federation of Thai Industries (FTI) launched its first carbon credit exchange platform “FTIX” as a pilot for carbon credit, renewable energy, and Renewable Energy Certificate (REC) trading.

In 2022 Thailand became the first country in the world to join the Clean Energy Demand Initiative (CEDI), which aims to increase access to renewable energy for the private sector. Thailand also joined the New Zero World initiative, which will help to accelerate decarbonization of its energy systems.