Preferential public offering of TSR: The Securities Exchange Commission (SEC) has extended filing exemption for an offering of transferable subscription rights (TSR) where the issuer elects to exclude certain shareholders from the offering to avoid additional legal requirements imposed by the home country of those shareholders. Previously, TSR must be offered to all shareholders in proportion to their shareholdings in order to qualify for the filing exemption.
Trade Competition: Thailand’s Trade Competition Commission (TCC) has been very active in 2018. The TCC has continued to issue and develop guidelines on unfair trade practices, the newest being the guideline which imposes certain requirements on wholesale/retail business operators (including hypermarkets, cash and carries, supermarkets, specialty stores, department store and convenience stores) when dealing with manufacturers, suppliers or distributors. Following the effectiveness of Thai merger control regulations in December 2017, the TCC has considered a number of pre-merger filing and post-merger notifications in 2018 and continued to refine its position with respect to merger control regulations.
New Data Protection Law: Thailand’s first specific data protection law, the Personal Data Protection Act B.E. 2562 (2019) (the “Thai PDPA”), came into effect on 28 May 2019. It is modelled on Europe’s GDPR, which means that it imposes a number of duties on businesses when they collect, use and disclose customers’ and employees’ personal data. The law also imposes higher standards in relation to ‘sensitive personal data’ such as health, criminal records, religion and biometric data. Cross-border transfers of data will also be subject to certain requirements. The operative provisions of the Thai PDPA will become effective on 27 May 2020, allowing one year for businesses to prepare for compliance. A new data protection regulator, the Personal Data Protection Commission, will be formed and charged with the powers and duties to implement the Thai PDPA.
The long-awaited Mediation Act 2019 came into force:
The Mediation Act 2019 which became effective on 23 May 2019 allows for a system of private mediators to be set up to mediate:
- (i) civil disputes such as disputes concerning land (except land ownership), disputes relating to inheritance, other disputes prescribed in the regulations or any other dispute not exceeding Baht 5 million and
- (ii) limited types of criminal cases that satisfy the criteria.
Key amendments to labour protection law: Thailand’s Labour Protection Act 2019 (No. 7), effective on 5 May 2019, imposed an increase of statutory severance pay for employees whose terms of service is longer than 10 years, increase of maternity leave entitlements and a requirement for employees’ consent to be obtained for a transfer of employment as a result of an amalgamation.
Relaxation of exchange control regulations: The Bank of Thailand has relaxed the exchange control rules to facilitate capital outflows to help promote capital flow balance and lessen pressure on Thai Baht. Such relaxations include permitting Thai residents to keep foreign currency funds overseas up to USD 200,000 per transaction, permitting retail investors to invest directly in offshore investment products up to USD 200,000 per year without the need to go through a local intermediary (e.g. brokers) and allowing businesses and individuals to transfer funds abroad more freely. Outward remittance of foreign currencies, which used to be permitted based on a positive list of specific purposes, can now be done freely, except for a few restricted purposes, such as for settlement of FX/THB transactions with financial institutions abroad. Documentation is no longer required to be provided to commercial banks when conducting outward transfers of less than USD 200,000 (an increase from the USD 50,000 threshold). These relaxations became effective on 8 November 2019.
Consumer financing: Lending against title to a motor vehicle has been recognised as a ‘personal loan’ under the supervision of Thailand’s central bank (Bank of Thailand: BOT). This provides certainty that non-bank providers of personal loans against title to a motor vehicle may charge effective interest (including fees and other forms of charges) over 15%. per annum.
Foreign Direct Investment
Foreign ownership - Additional exemptions for intra-group services: Foreigners are no longer required to obtain a Foreign Business Licence for providing the following services to their affiliates and subsidiaries:
- (i) providing a loan;
- (ii) lease of office space and utilities; and
- (iii) providing consultation services relating to management, marketing, human resources, and information technology.
These additional exemptions are only applicable to the provision of services to foreign entities.
Modernisation of the Electronic Transaction Act 2019: The Electronic Transaction Act 2019 was amended and became effective in April 2019 to provide more flexibility and practicality for electronic transactions through recognising contracts entered into by automated electronic data exchange system (AEDES), revising the criteria for a valid e-signature, recognising the concept of electronic invitation to offer and establishment of the Electronic Transaction Development Agency to oversee e-service businesses.
Hospitality – ease of obtaining licences and amnesty: The Thai Government issued another extension to enable independent hotel operators to be eligible for obtaining hotel operating licences. The measure involved temporarily lifting town planning restrictions and providing amnesty for non-compliance with the relevant laws, provided that the property complies with requisite fire safety systems.
Promotion of Public-Private Joint Investment: In order to promote PPP projects in Thailand, the Public Private Partnership Act 2019 (“PPP Act 2019”) was amended and became effective on 11 March 2019. The PPP Act 2019 sets out clearer criteria and procedures for PPP projects including: step-in right by the project owner for public benefits, establishment of the PPP Policy Committee and Contract Management Committee and PPP promotion fund. The amendment is to provide transparency, create confidence as well as to encourage the private sector to participate in PPP opportunities in the pipeline.
Right over leasehold assets – new type of property right under Thai law: The Rights over Leasehold Asset Act 2019 became effective from 27 October 2019, allowing a new type of property right over (i) land with a title deed, (ii) land with a title deed and buildings constructed on such land and (iii) condominium units. Under this new law, the owner of any of these three types of immovable assets can create and register a right over such assets for a maximum period of 30 years.