Chulalongkorn Law Journal

Supreme Court Decision Number 3296/2566 Compensation Granted for Expenses in Pre-wedding Photoshoot Incurred in the Preparation of the Marriage by the Betrothed

Pairojana Kampusiri — Fri, 29 Mar 2024 00:00:00 +0700

Some Observations on Competent Courts according to the Arbitration Act B.E. 2545 (2002)

Awnrumpa Waiyamuk, Mookkrachang Charani — Fri, 29 Mar 2024 00:00:00 +0700

This article aims to study issues related to competent courts under Article 9 of the Arbitration Act B.E. 2545 (2002) to answer the question of how much discretion parties have in choosing a competent court under the mentioned act. The analysis considers the interpretation of the provisions by Thai courts, the Committee on Jurisdiction of Courts, and the Model Arbitration Law provided by the United Nations Commission on International Trade Law (UNCITRAL). The study reveals that parties cannot freely choose any of the four designated competent courts in Article 9. The assessment of the jurisdiction of each competent court mentioned in Article 9 still requires consideration of other applicable laws. Furthermore, the lack of clear provisions in the Arbitration Act B.E. 2545 (2002) regarding geographical jurisdiction issues leads to unnecessary legal questions and disputes concerning competent courts under the Act, especially in cases involving international arbitration. The article suggests that the Arbitration Act B.E. 2545 (2002) should clearly define the geographical scope of jurisdiction of Thai courts, aligning it with international legal standards. For domestic jurisdiction, the article proposes clearly designating the jurisdiction of the Courts of Justice and Administrative Courts, as well as specifying the jurisdiction of the Intellectual Property and International Trade Court. Additionally, it recommends clearly specifying the competent court in granting assistance in arbitration proceedings and in the annulment or enforcement of arbitral awards.

Jurisdictional Immunities of States in the Enforcement of Arbitral Rulings

Intouch Siriwallop — Fri, 29 Mar 2024 00:00:00 +0700

Although arbitration is a private system of dispute settlement, domestic courts play a role in enforcing arbitral rulings. Where a foreign state is a party to an arbitral proceeding, that state may invoke immunity, both from adjudication and from measures of constraint, to bar a competent court from enforcing the rulings against the state. In this respect, customary international law regarding jurisdictional immunities of states is merely binding in principle without particularity. A forum state may accordingly have its legal rules in detail, giving effect to such a principle of international law. Nevertheless, Thailand has currently no legislative law on state immunity, making Thai court lack certain legal rules in determining the issue of state immunity in the enforcement of an arbitral ruling before the Thai court. This paper thus analyses the relevant concepts and theories, as well as approaches of international and foreign laws to this subject. This paper aims to propose guidelines for the Thai judiciary in determining the matter of jurisdictional immunities of states in the enforcement of arbitral rulings.

Problems of Criminalizing Flag Desecration

Jinjutha Bumpenvattana — Fri, 29 Mar 2024 00:00:00 +0700

Desecration of national flag is criminalized in order to protect national flag as an official symbol of sovereign nation-state and people who belong to such nation. However, crimes of flag desecration prescribed in article 118 of Thai penal code and article 54 of Flag Act B.E. 2522 have four problems. First, the laws are not in accordance with present social and political context. Second, their wordings are contrary to the principal of legality namely, lex certa. Third, they are overcriminalized and fourth, they disproportionately violate freedom of expression. Comparative study of flag desecration in Republic of India, Federal Republic of Germany and Republic of Korea shows that their laws are more consistent with lex certa and principles of criminalization. The purpose of this research is hence to find suitable alterations to crimes of flag desecration in Thailand.

Restrictions on Freedom of Peaceful Assembly on Democratisation Movements between 2020-2021

Pat Niyomsilp — Fri, 29 Mar 2024 00:00:00 +0700

Freedom of assembly is one of the fundamental rights under international human rights law. In Thailand, Public Assembly Act B.E.2558 is the main legal instrument regulating such freedom. However, after Covid-19 pandemic immerged in early 2020, The government of Thailand declared state of emergency to tackle the problem. Many health-related regulations which are imposed between 2020 – 2021 unduly restricted freedom of assembly significantly. This research investigates how the government restricted student-led democratisation movements between 2020 – 2021 and identifies difficulties in reviewing these health-restrictions limiting freedom of assembly. It argues that the emergency law and emergency decree gave too wide legal basis granting too much discretion to officers while the judicial review process was weakened and departed from international standards significantly. Under these circumstances, political activists in 2021-2022 were unable to exercise their freedom of assembly effectively. They face restrictions on freedom of assembly which did not comply with international standards.

Some Thoughts Derived from an Analysis of Legal Status and Operating Characteristics of Stock Exchange in Foreign Countries

Voraphol Malsukhum — Fri, 29 Mar 2024 00:00:00 +0700

The operating characteristics of stock exchange in foreign countries are naturally mixed between the ones having an impact on society as a whole and the country’s economy, and the ones operating a private business unit as the center for trading and exchanging securities between investors. This raises a noteworthy legal issue to conduct research on the legal status of a stock exchange. This research article presents a survey of the legal status and operating characteristics in terms of structure, history, legal establishment, acquisition and remittance of income, procurement, tax payment, accounting, ownership, management structure, employment, exercise of administrative power, status under the regulation by a state audit and under the control of a state financial regulator for the stock exchanges in South Korea, Singapore, China, Malaysia, Germany, Vietnam, and countries in the Euronext group. Next, it offers some thoughts derived from a comparative analysis of the legal status and operating characteristics of these foreign stock exchanges, namely the organizational forms, characteristics that indicate the status of a private body on a stock exchange, characteristics that indicate the status of a public body on a stock exchange, and characteristics that cannot identify a stock exchange as a private or public body.

The Right of an Immovable’s Owner to Have Inconvenience or Injury Abated under the Civil and Commercial Code Section 1337

Nareekarn Tongsan — Fri, 29 Mar 2024 00:00:00 +0700

Civil and Commercial Code Section 1337 is the provision about an exclusive right relating to an action to abate immovable property to the greater injury or inconvenience of the owner. Such an act consists of several challenges facing law enforcement and interpretation. According to the study and analysis, the researcher found that Section 1337 is the provision aiming to specially protect the rights of the owner of immovable property when the owner has suffered greater injury or inconvenience caused by exercising the rights of others. Thus, applying this section does not require consideration of the principles of tort liability. Moreover, the owner of immovable property also has the right to arbitrarily abate greater injury or inconvenience to himself without applying to the court since it is the right that acts over the property of the owner of immovable property. In addition, the owner is entitled, without prejudice to any claim for compensation, to have such injury or inconvenience abated without consideration of liability in tort. Hence, suffice it to say that applying Section 1337 to immovable property is beneficial to the owner. Based on the result of the study and analysis, the researcher suggests that law enforcement authorities should consider the spirit of the law by applying Section 1337 individually and should not try to adjudicate by involving the principle of tort liability. The owner of immovable property must exercise the right to abate greater injury deliberately under the scope of rights. Regarding the right to claim compensation, the researcher suggests that calculating compensation claims in tort following Section 438 should be considered as well.

Problems Regarding the Obtaining of Evidence for the Prevention and Suppression of Corruption of the Office of the National Anti-Corruption Commission of Thailand

Tanatthep Tianprasit — Fri, 29 Mar 2024 00:00:00 +0700

This research article aims to propose the legislating of the special investigative techniques from Article 50(1) of the United Nations Convention against Corruption (UNCAC) into the Organic Act on Anti-Corruption Act B.E. 2561 (2018) of Thailand. A doctrinal research methodology was imposed in this research article by conducting a comprehensive analysis of the obligations under Article 50 of the UNCAC. Furthermore, the domestic laws of England and Wales, the United States of America and the Netherlands relating to the issues would be critical analysis to compare with the domestic laws of Thailand. Consequently, the results of this research will contribute to the development of the use of special investigative techniques, as legal instruments to combat public sector’s corruption in Thailand. Eventually, this research article had concluded that the special investigative techniques needed to be legislating into the Organic Act on Anti-Corruption Act B.E. 2561 (2018) of Thailand to successfully combat public sector’s corruption in Thailand because the conventional investigative techniques are insufficient to obtain criminal evidence in the corruption cases. Nonetheless, there must be a strike balance between the imposing of the special investigative techniques and the violation of individual’s human rights.

Legal Measures to Prevent and Suppress Online Fake News

chatjakrit choochuay — Fri, 29 Mar 2024 00:00:00 +0700

The increasing problem of spreading false news online. This thesis aimed to (1) study the concepts, theories, and principles of legal measures for preventing and combating fake news, (2) study the international law: the Budapest Convention on Cybercrime and the laws related to preventing and combating fake news in Malaysia, Singapore, Philippines, China, and Germany, (3) analyze Thai laws concerning the prevention and combat of fake news in comparison to international and foreign laws, and (4) propose recommendations for improving and clarifying the laws related to preventing and combating fake news.This research is qualitative research by studying criminal measures and administrative measures to prevent and suppress online fake news, including researching both Thai and foreign language documents of edict, The study found that (1) freedom of expression and freedom of speech were protected by the constitution. However, if the exercise of these rights impacted the public order or good morals of the people or infringed on the rights or freedoms of others, the state could intervene by enacting laws that restricted these rights and freedoms. (2) in the comparative study with the laws of Malaysia, Singapore, Philippines, China, and Germany, it was found that the prevention and combating of fake news were legislated as specific laws, clear definitions were provided, the severity levels of offenses were defined, authorities was empowered to issue orders to manage fake news, and measures and penalties were established for service providers to self-regulate. (3) Thailand has no specific laws, making it an obstacle to preventing and suppressing fake news online. (4) therefore, it was advisable to amend the Act on Commission of Offences Relating to Computer B.E. 2550 (2007) by providing clear definitions and boundaries of offenses, authorizing government officers to issue the administrative order to manage fake news, and specifying administrative measures and punishments for service providers under government supervision.