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The new Trade Competition Act 2017 was published on 7 July 2017 and became effective on 5 October 2017 ("2017 Act"). It repealed and replaced the Trade Competition Act 1999. The 2017 Act establishes the Trade Competition Commission ("Commission") as a separate entity, with its own budget, and independent of the government. Another key change is that, whereas state enterprises are completely excluded from the former act, under the 2017 Act, they are exempted only under limited circumstances; for example, where they carry out activities pursuant to a law or cabinet resolution as required for national security, public benefit or infrastructure requirements.
The 2017 Act also restricts and prohibits certain types of behaviour which would be considered as restricting trade competition or causing damage to other business operators in the market. Significant restrictions are a requirement for a business operator to obtain the Commission’s pre-merger permission for any mergers which may result in a monopoly or a business operator having market dominance, and a requirement for a business operator to submit a post-merger notification to the Commission in case of any other mergers which may cause a significant decrease of competition in a particular market.
A long awaited overhaul of customs laws took effect on 13 November 2017 ("Customs Act 2017"). Significant changes include the following:
- Reduced criminal punishments. For example, the penalty for duty evasion under the previous act (Customs Act 1926) of a fine equal to 4 times the duty-paid value of the goods and / or imprisonment for a period up to 10 years has been reduced to a fine from ½ up to 4 times the deficit duty and/or imprisonment up to 10 years.
- The language on the liability of individuals where the alleged offender is a juristic person eliminates the affirmative burden of proof imposed on individual defendants under Customs Act 1926 and imposes a burden on the Public Prosecutor to prove that the individuals had the duty to give an instruction or act, or omit to give instructions, which caused such juristic person to commit the offence.
- Assessment must be made within 3 years from import clearance.
- Post-audit will be limited to a five year period following importation, which is also in line with the document retention period.
- The Board of Appeal must now rule on appeals within 180 days from the date on which the submission of relevant documents is complete.
- Substantially reduced rewards will be payable to informants and officials with a maximum amount per case.
Throughout November and December the Ministry of Finance and Customs Department issued a plethora of implementing regulations and notifications, such as the following:
- Ministerial Regulation on the Determination and application of the customs value B.E. 2560 (2017), dated 13 November 2017, which replaced the previous Ministerial Regulation No.132 (as amended) issued in 2000 (MR 132), and implements the customs valuation provisions of the WTO Agreement on Implenmentation of Article VII of the General Agreement on Tariffs and Trade 1994 (CVA);
- Notification of the Customs Department No. 189/2560 Re: Criteria, Procedures and Conditions on Appeal Submission and Appeal Procedures and Request for a Stay of Duty Payment, issued on 29 December 2017;
- Regulation of the Customs Department Regarding Waiver or Reduction of Penalty B.E. 2560 (2017), notified on 22 November 2017, for the purpose of specifying the waiver or reduction of penalty in the case of an importer’s or exporter’s failure to pay full duty within the period specified in the notice of assessment;
- Regulation of the Customs Department Regarding Attachment of Property of Person Having Unpaid Duty B.E. 2560 (2017); and
- Regulation of the Customs Department regarding Payment of Bribe and Reward B.E. 2560 (2017), which provides for interesting reading on how officials allocate any reward received amongst the different positions.
The internal Customs Procedure Code was also recently amended to take into account the changes introduced by Customs Act 2017.
On 7 August 2017, the Thai Government submitted the instrument of accession to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks ("Madrid Protocol") with the World Intellectual Property Organization. Thailand became the 99th contracting party of the Madrid Protocol on 7 November 2017. Under the Madrid Protocol, trademark owners are able to submit an international application in Thailand seeking registration of their trademark in other designated member countries. An international application can also be filed in other member countries seeking registration of trademark in Thailand. However, whether or not a trademark registration would be granted in each member country is subject to the applicable laws of such country. The Thai Trademark Act has been duly amended to reflect Thailand’s accession to the Madrid Protocol, and the Thai Department of Intellectual Property currently accepts applications accordingly.
The Payment Systems Act 2017 ("PSA") was published in the Government Gazette on 18 October 2017 and will become effective on 16 April 2018. The PSA consolidates and reforms existing payment laws to bring them in line with international standards of governance.
Under the PSA, holders of certain e-payment business licenses granted under existing laws must submit an application for a new licence or registration within 120 days (i.e., between 16 April 2018 to 13 August 2018). If an application is not submitted within the prescribed period, the operators would be prohibited from continuing with their businesses. For some new businesses, such as those utilising new financial technology and those undergoing a trial stage or whose services are provided to a limited number of customers without any impact on the payment system or public benefit on a broad scale, only registration would be required.
Further details of specific businesses requiring a new license or registration, and the process of licencing and registration are expected to be announced by the BOT in the near future. Once the new licenses are issued, the licenses previously granted for the same service businesses would be cancelled.
On 8 September 2017, the Cabinet approved the publication of the Guidelines on Appropriate Internal Control Measures for Juristic Persons to Prevent Bribery of State Officials, Foreign Public Officials, and Agents of Public International Organisations ("Guidelines") prepared by the National Anti-Corruption Commission ("NACC"). Although non-binding in nature, the key objective of the Guidelines is to clarify section 123/5 of the Organic Act on Counter Corruption 1999 (as amended), which makes it a criminal offence to bribe state officials, foreign public officials, and agents of public international organisations by corporate entities – except where appropriate internal controls are adopted to prevent bribery, possible liabilities would be eliminated or mitigated. The Guidelines also provide best practices for appropriate internal controls, together with several case studies on the implementation of the same. Samples of the recommended controls include development of strong and visible anti-corruption policy from top-level management, anti-corruption risk assessment, and maintaining of accurate books and accounting records.
The sixth amendment to the Labour Protection Act was enacted and came into force on 1 September 2017. Under the amendment, employers are no longer required to submit work rules or amendments thereto to the authority. Other major amendments relate to retirement, for example, a provision requiring employers to pay statutory severance pay to retiring employees, and a criminal penalty for failure to do so. Further, the new law also provides that in the absence of an agreement on a retirement age, or if the agreed retirement age is over 60 years, employees would still be entitled to retire when they reach the age of 60 by notifying their employer of their intention 30 days in advance.
Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only
intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice.
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