Graduate Law Journal

LEGAL PROBLEMS CONCERNING INVESTMENT PROMOTION OF LAO PDR INRESPECT OF TAX MEASURES

Kavy Chaidy — Fri, 28 Mar 2025 00:00:00 +0700

This research is intended to explore tax measures for promoting or attracting investment from foreign investors under the investment promotion law of Lao PDR and, for this purpose, compare the Laotian law with the investment promotion law of Thailand and Vietnam. In effect, the research points out that tax measures for promoting or attracting foreign investment under the investment promotion law of Lao PDR contain restrictions constituting impediment to foreign investors and indeed run counter to the competition environment in multinational trade and investment, new innovation development in the production process and international exchange of labour and skills, in the present era. In particular, the investment promotion law of Lao PDR currently requires that foreign investors seeking entitlement to corporate tax deduction in businesses in the prescribed branches must employ at least 30 Lao technicians in their investment projects. Such requirement finds no presence in the investment promotion law of Thailand and Vietnam.

This research, therefore, recommends that the requirements impeding foreign investment opportunities under the investment promotion law of Lao PDR should be amended in the interest of fairness to foreign investors. In this connection, the investment promotion law of Thailand and Vietnam can be relied on as practical models for legislative amendment. However, to ensure that the revision will yield optimum benefit, all persons concerned should also take into account possible consequences in other dimensions, including the considerations of revenue collection, national finance standing and overall social effects as well.

THE RECALL LOCAL COUNCIL MEMBERS AND LOCAL ADMINISTRATORS.

Natthanan Paiboon — Fri, 28 Mar 2025 00:00:00 +0700

The constitution regulate that citizens have the right to sign a petition to recall of Local Council Members or Local Administrators if citizens believe that local council members and local administrators are no longer suitable to be in their positions. This recall is regulate in the Act on Voting for the recall of Local Council Members or Local Administrators, B.E. 2542 (1999). However, this implementation still has some significant problems: First, there is the problem of the principle for recalling local council members and local administrators, including their concordance with the Constitution of the Kingdom of Thailand BE 2560 as the principle for recall is different from the constitution BE 2540 and 2550, by eliminating the voting method. The determination of the number of signatures to initiate the recall process and the number of votes are inappropriate, making the recall too difficult to complete. The law does not clearly specify the grounds for recall. This may be unfair to the person who is removed from position, and law does not provide penalties for dishonest petition that sign the rercall process which could lead to political harassment. Second, there is a problem in the process of recalling local council members and local administrators, in case of each local council member comes from a different electoral district, but when they are recalled, they have to receive votes from all electoral districts in that local administrative organization, which is inappropriate. Also, the determination of the number of votes must receive votes from no less than three-quarters of voters who come to vote, is also inappropriate under the condition that the number of voters at that time must not be less than half of the total number of voters in that local government organization in order that the recall will be successful. It can be seen that the recall of local council members and local administrators under the law is too difficult to complete. Therefore, the Act on Voting for the recall of Local Council Members or Local Administrators, B.E. 2542 (1999). should be amended to specify the proportion of people signing to initiate the recalling process and clearly state the reasons for recalling in the law, including penalties for dishonest petition that sign the recall process, and reconsidering the proportion of votes to recall local council members and local administrators, and taking into account the source of votes to be appropriate for each type of local administrative organization

INTERNATIONAL INVESTMENT TRIBUNALS’ JURISDICTION TO DECIDE COUNTERCLAIMS: INTERPRETATION AND APPLICATION OF ARTICLE 46 OF THE CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTE BETWEEN STATES AND NATIONALS OF 1965

Panthep Nakthippiman — Fri, 28 Mar 2025 00:00:00 +0700

A counterclaim is an option for a respondent or a host state to claim rights, either to assert damages or to begin any international investment disputes. International investment tribunals’ jurisdiction to decide counterclaims is expressly guaranteed in Article 46 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention), requiring that 1) a counterclaim shall be within the scope of the consent of the disputing parties; and 2) a counterclaim shall directly connect to the subject matter of the dispute.

This research reveals that 1) for the conditions of disputing parties’ consent, if the disputing parties expressly agree that the tribunal has jurisdiction to decide counterclaims or disputes related to an investment, the counterclaims are within the scope of the consent of the disputing parties. But if the consent of the disputing parties limits the tribunal's jurisdiction to decide only disputes based on investment treaty obligations or claims by investors, the counterclaims are not within the consent of the disputing parties; 2) for the conditions of a direct connection to the subject matter of the dispute, if the counterclaims have factual connection and legal connection to the principal claims, the tribunals tend to decide that the counterclaims directly connect to the subject matter of the disputes. Anyway, the conditions of disputing parties’ consent and the conditions of a direct connection are key obstacles to international investment tribunals’ jurisdiction to decide counterclaims.

Thus, this article suggests approaches for drafting or amending investment treaties, for determining clear consent of the disputing parties in other relating documents, for accepting consent of the disputing parties where a clear statement is not manifest, for filing appropriate counterclaims, for searching for direct connection to the subject matter of the dispute through the content of the claims, and for the possibility of filing counterclaims of Thailand in international investment disputes.

UNFAIR DISCRIMINATION AGAINST PERSONS WITH COLOUR BLINDNESS : COMPARATIVE STUDY OF PILOT QULIFICATION REQUIREMENTS IN THAILAND AND AUSTRALIA

Kornkanok Buawichien, Pianrat Leelapongsatorn — Fri, 28 Mar 2025 00:00:00 +0700

Current aviation regulations in Thailand still impose restrictions on the employment of pilots with colour blindness. This raises doubts as to whether the laws on pilot qualifications in Thailand unfairly discriminate against persons with colour blindness. Therefore, this research explores the concept of unfair discrimination and compares the laws on pilot qualifications in Thailand and Australia. The aim is to examine the possibility of adopting suitable laws and creating a colour vision deficiency test which will have the least restrictive impact on the right to work for applicants with colour blindness, whilst also protecting the safety of the passengers.

The study finds that the requirements in Thailand’s laws on pilot qualifications do not constitute unfair discrimination against persons with colour blindness and meet international standards. However, Thailand can still learn from Australia’s latest colour vision deficiency test to create more equal opportunities for people with colour blindness.

LEGAL MEASURES FOR PUBLIC PROCUREMENT IN SUPPORT OF ELECTRIC VEHICLES IN THE BANGKOK MASS TRANSIT AUTHORITY (BMTA)

Suwimon Masanga — Fri, 28 Mar 2025 00:00:00 +0700

This study analyzes the laws and policies related to the procurement of environmentally friendly public buses in Thailand, comparing them to those of other countries such as the European Union and Japan. It finds that Thailand still has gaps in the enforcement of laws and policies that promote environmentally friendly procurement.

Government agencies play a crucial role in setting policies and driving the private sector to adopt environmentally friendly practices by establishing standards and setting a good example for other sectors. Environmentally friendly procurement is a key tool for reducing environmental impacts, supporting the development of sustainable technologies, and aligning with greenhouse gas reduction targets. Although Thailand has policies promoting environmentally friendly procurement, laws and regulations remain unclear and lack strict enforcement. Compared to countries like the European Union and Japan, which have more developed systems for environmentally friendly procurement with clear guidelines and standards, Thailand has room for improvement.

To address these issues and promote environmentally friendly procurement in Thailand, relevant laws such as the Public Procurement and supply Administration Act B.E. 2560 should be revised. Specifically, clear definitions of environmentally friendly goods and services should be established; criteria for selecting suppliers should be enhanced; and transparency in procurement processes should be improved. The study highlights the urgent need to improve laws and policies to support the procurement of environmentally friendly public buses in Thailand. Implementing such measures will help reduce environmental impacts, promote sustainability, and align with the United Nations' Sustainable Development Goals.

Furthermore, public participation in monitoring and evaluating government actions is crucial. Raising public and private sector awareness of the importance of environmentally friendly procurement, as well as developing the capacity of procurement personnel to understand the principles and practices of environmentally friendly procurement, are equally important.

THE DEFENSE OF SUBORDINATES COMMITTED TORTURE DUE TO SUPERIOR ORDERS

Athip Pitakanjanakul — Fri, 28 Mar 2025 00:00:00 +0700

This article examines the issue of ‘The Defense of Subordinates Committed Torture due to Superior Orders’. The act of torture frequently occurs within the criminal justice process. This phenomenon is partly attributed to the belief that torturing the accused or defendant in a criminal case is permissible, often framed as a good torture. Although government officials are now aware that torture cannot be justified under any circumstances, incidents of torture continue to persist. This is particularly evident among subordinates, especially police officers, who often feel compelled to follow orders from their superiors. This creates a conflict between criminal responsibility and disciplinary responsibility for police officers, resulting in a dilemma in which subordinates may fear disciplinary repercussions more than criminal consequences. The Criminal Code allows subordinates to assert the defense of superior orders to evade punishment, even when those orders are illegal. This provision creates an loophole in which acts of torture can occur, as subordinates may claim ignorance of the manifestly illegal orders to avoid criminal liability as well, even they may not claim that as a defense.

In light of the aforementioned issue, this article will examine the background of the defense of superior orders, alongside a comparative legal analysis. It will compare the provisions related to such defenses to assess how they address cases of manifestly unlawful orders, as well as investigate the comparative structure of criminal liability. The aim is to analyze the shortcomings of the relevant provisions within Thai criminal law and to propose solutions to these problems. This analysis will be a critical component in the effort to eliminate torture from the Thai criminal justice system.

The study revealed that Thai criminal law needs revisions in two key areas. First, the Criminal Code, Section 70, should be amended to address exclusion in cases of manifestly illegal orders and the provision of orders to commit torture as manifestly unlawful orders. Second, the aspects of disciplinary liability that remain unclear and problematic in practice.

GUIDELINES ON COMPLIANCE WITH EUROPEAN PERSONAL DATA PROTECTION LAWS FOR TOURISM AUTHORITY OF THAILAND (TAT) OVERSEAS OFFICES

Auntika Na Pibul — Fri, 28 Mar 2025 00:00:00 +0700

The Tourism Authority of Thailand (TAT) has established several overseas offices across Europe to achieve its objective of promoting Thai tourism. Each TAT office engages in activities involving the processing of personal data of the data subjects residing in European countries, which means these offices are subject to each country’s personal data protection laws. This article is based on research study that aims to examines the characteristics of personal data processing activities of the Tourism Authority of Thailand (TAT) in the Paris office (Republic of France), the Frankfurt office (Federal Republic of Germany), the Rome office (Republic of Italy), the Stockholm office (Kingdom of Sweden) and the London office (United Kingdom) with a view to creating data mapping for each office. Then, this research explores the personal data protection laws in France, Germany, Italy, Sweden, and the UK in order to provide the appropriate and effective practices for each office to ensure compliance with personal data protection laws, thereby reducing the risk of legal liability and penalties that could potentially have a negative impact on TAT and Thailand as a whole.