23 December, 2016

Thailand Update: New Specialized Appeal Court will benefit IP matters

Thailand Update: New Specialized Appeal Court will benefit IP matters

The judiciary structure for intellectual property (IP) cases in Thailand has changed, following the opening of a Specialized Appeal Court on 1 October 2016. With the opening of the new Court, Thailand has moved to a three-tier system, which is expected to enhance the rationality, speed and efficiency of IP decisions.  Also, the new three-tiered appeal structure will reduce the number of cases at the Thai Supreme Court and will further accessibility to justice for litigants in Thailand.

Three-Tier Court Structure

On 4 December 2015, Royal Assent was given to the Act on the Establishment of the Intellectual Property and International Trade Court and the Intellectual Property and International Trade Procedure (No.2) B.E. 2558, which created a new Specialized Appeal Court. The Specialized Appeal Court’s jurisdiction covers appeal cases on decisions of the court of first instance, i.e. the Intellectual Property and International Trade (IPIT) Court.

A Royal Decree dated 7 July 2016 set the opening date for the Specialized Appeal Court as 1 October 2016.

Before the passing of this Act, all appeals from the IPIT Court were as of right by the appellant directly to a special division of the Supreme Court, whose decision was final. However, the Act now redirects appeals from the IPIT Court to the Specialized Appeal Court first, while recourse is also provided for appeals – for certain specified cases – against decisions of the Specialized Appeal Court to the Supreme Court. This effectively creates a three-tier judicial structure.

Appeal Procedures

Appeals made against decisions of the IPIT Court rendered on or after 1 October 2016 will no longer be before the Supreme Court, but before the new Specialized Appeal Court. Appeals from the first instance court are now, as was the case previously to the Supreme Court, a rights-based procedure -- the appellant has an automatic right to lodge an appeal.

On the other hand, appeals to the Supreme Court against the Specialized Appeal Court’s decisions will no longer be rights-based, as the appellants are now required to obtain permission of the Supreme Court before an appeal can be lodged. The addition of a new judiciary tier and the requirement of the Supreme Court’s permission for appeals to the Supreme Court brings IP appellate procedures in line with appellate procedures for other matters such as contract disputes, corporate disputes, etc.

The bases for requesting permission to appeal to the Supreme Court are set out in Section 249 of the Thai Civil Procedure Code as follows:

  1. The dispute involves matters of public interest or public order.
  2. The Court of Appeal’s interpretation of the law is inconsistent with a precedent rendered by the Supreme Court.
  3. The Court of Appeal’s decision involves interpretation of a point of law for which there is no precedent.
  4. The Court of Appeal’s decision is contrary to a final decision or order rendered by another court.
  5. Consideration of the requested appeal would aid in developing legal interpretation.
  6. Other significant grounds as may be set by the President of the Supreme Court.

Expected Consequences

First, the three-tiered appeal court structure is expected to expedite final decisions on IP matters, with most IP cases reaching the final stage at the Specialized Appeal Court. In the past  many IP cases proceeded through the Supreme Court process – which was often a lengthy process.  In addition, cases that are now accepted for appeal by the Supreme Court will be cases of significant legal importance, whereas in the past cases were brought to the Supreme Court as a matter of right.

The new three-tiered appeals court structure, along with the new criteria for accepting final appeals to the Supreme Court, should expedite and streamline appeal processes, reduce the workload of the Supreme Court, allow the Supreme Court to focus on highly important cases and finally bring greater clarity to business owners as they pursue their commercial propositions.

For all of these reasons, the new three-tiered appeals process is seen as a welcome development that will further enhance the dispensation of justice and further a positive business environment in Thailand.

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