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  1. Will Privacy Policies be Mandatory under the PDPA?

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    After Thailand’s Personal Data Protection Act B.E. 2562 (2019) (PDPA) was passed into law, numerous provisions related to the collection, use, and disclosure of personal data will come into effect on May 27th, 2020.

    This includes strict requirements for every natural or juristic person who has the power to decide about the collection, use, or disclosure of personal data. Such a data controller must, according to Section 23 PDPA, inform the data owner of the following:

    • The purpose of the collection of personal data;
    • The personal data to be collected;
    • The period the personal data is kept;
    • The expected data retention period
    • The persons to whom the collected personal data may be disclosed;
    • Contact details of the data controller / data protection officer (if required);
    • Rights of the data owner.
    PDPA Thailand

    A privacy statement is not required if the person or type of use, collection or disclosure of personal data is exempted by Section 4 PDPA, e.g.: 

    • Persons who collect personal data for personal benefit/household activity;
    • Mass media, fine arts, and literature (in accordance with professional ethics / public interest);
    • The Parliament;
    • Trial and adjudication at Courts.

    As circumstances differ for each data controller, a specific Privacy Statement is recommended for the respective case. A standard template may be feasible for a simple website of a small business, but is not recommendable for larger operations, as the statement also must cover the collection, use, and disclosure of offline data (like data from CCTV, or hand files). A properly drafted privacy statement will help companies to comply with the law and avoid liability.

    Typically, a hyperlink to the full text of the privacy statement should be provided at the company’s website and in its publications such as newsletters.

    Feel free to contact us if you have questions about the privacy statement at [email protected].

  2. Work Permit Extension under the Emergency Decree on Foreign Employment Management B.E. 2560

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    On the 10th of May 2018, the Department of Employment (DoE) has published a letter to address the scope of the Work Permit under the Emergency Decree on Foreign Employee Management B.E. 2561 (the “Decree 2018”). It especially elucidated the question whether a foreigner who has been granted a Work Permit once is able to work in another type of work, for another employer, at another workplace or work condition in Thailand.

    Section 70 of the Emergency Decree on Foreign Employee Management B.E. 2560 (the “Decree 2017) has been repealed through the Decree 2018 and, therefore, the application form TM.6 has been revoked, neither the employer nor the employee has to register any changes related to the type of work, the employer, workplace or work condition any longer.

    Section 70 of the Decree 2017 had stipulated the interdiction to employ a foreigner who had registered a different type of work, a different employer, workplace or work condition in the Work Permit; the application form TM.6 had been used to amend the Work Permit if changes occurred.

    As a result, a foreign employee can work continually in a different type of work, at a different workplace or under different work conditions. However, this only applies as long as the employment is under the same employer as recorded in the existing Work Permit.

    This means a foreign employee is allowed to work anywhere and is not obliged to submit an application for changing or adding the workplace in the Work Permit as long as the employee works for the same employer.

    A foreigner is not allowed to employ himself and thereby apply for the Work Permit. However, a foreigner may be employed by a registered company in which he himself has director authority.

    It is notable that the DoE has issued a new form of Work Permit book which does not include the section “condition”. This seems to enable the foreigner to work under flexible conditions. A foreigner who holds an old version of the Work Permit is not obligated to notify the DoE from now on regarding the.

    A foreigner who wishes to change or add a type of work is not prohibited from doing so, as long as that work is not excluded by the Official List. The employee can start with a new or additional type of work immediately without notifying the DoE. Employer and Employee must notify the DoE only if the employee has a new or additional employer according to Section 13 of the Decree 2018.

    In summary, if the employee wishes to change or add the type of work, workplace or work condition then the employee is free to do so without notifying the DoE. The employee is allowed to work with the existing Work Permit without amendments.

    Once the employee wants to change the employer or add an employer, both the employee and employer, have to proceed the registration at the DoE. Both have to submit an employment form to the officials within 15 days from the date of commencement, according to Section 64/2 and 13 of the Decree 2018. Otherwise, the employer and employee are liable for a fine of THB 20,000.

  3. Visa and Work Permit under the BOI Scheme

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    Since 15th June 2016, it is possible for foreigners to obtain a visa (extension of stay) and work permit in Thailand for a period of two years, under the Board of Investment (BOI) or the Industrial Estate Authorized Thailand (IEAT) schemes. In specific cases, a period of even four years may be granted.

    1. Two-year visas and work permits

    Foreigners employed by BOI or IEAT promoted companies may obtain two-year visa and work permits from the One Stop Service Centre, and would not need to deal with the Labour Department or Immigration Office. The process is quicker and can be completed in a single day, after the online registration process has been completed.

    The process of visa and work permit application is as follows:

    1. The company intending to bring in a foreign skilled worker contacts the BOI and IEAT office to issue an invitation letter. This application is carried out online and can take between 1 to 2 weeks.

    2. The invitation letter issued by the BOI or IEAT office should be delivered to the foreigner along with supporting company registration documents, for the foreigner to apply for a non-immigrant business visa (type B only) (90 days) at a Thai Embassy or Consulate abroad.

    3. The company should submit an online request to “open a position” for the foreigner to work under the company, where details of the foreigner’s position, job description, etc. will need to be provided. The consideration process for opening a position takes approximately one week.

    4. Once the position is opened and approved, the application for the foreigner’s work permit and visa extension can be submitted online. This process usually takes between 3-4 business days.

    5. The final step involves the foreigner physically going to collect the work permit booklet from the Employment Office and having his visa extended at the Immigration Bureau, both located at the One Stop Service Centre for Visas and Work Permits. The visa and work permit may be granted for periods of 1 year or 2 years depending on type of business.

    2. Four-year visas and work permits

    Moreover, the BOI announced that certain foreign workers employed by either International Head Quarters (IHQ) or International Trading Centers (ITC) may be granted visa extensions and work permits for up to 4 years (together with their dependents).

    Feel free to contact us if you have any questions: [email protected]

  4. Purchaser Protection under the Thai Land Development Act

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    It is a rather unknown fact among foreign property purchasers, in particular in tourist resort destinations in southern Thailand, that Thai property law sets forth a strict regime for development of real estate projects. One significant piece of legislation in this context is the Land Development Act, B.E. 2543 (2000) (hereinafter referred to as “LDA”).

    1. The “Development License”

    The LDA requires any real estate development in Thailand comprising ten or more units to obtain a development license. This license will be granted if certain required standards are met by the project and it may contain detailed and specific conditions for the development of the project.

    The LDA provides purchasers of property in Thailand with a certain minimum level of legal protection. In order to take the full advantage of this protection, prior to a property purchase from a licensed development, the development license should be compared with following important documents:

    1. the brochure and other marketing material provided by the developer (the land developer can advertise its project before obtaining the land development license from the Land Development Commission),
    2. the land and house purchase agreements and
    3. the development plan.

     

    1. Specific procedure for legal disputes

    In our experience, legal disputes frequently occur when a land developer breaches the contract and/or does not follow his own development plan. For this case the LDA provides protection for purchasers, if the correct legal procedure is considered. The LDA applies for both individuals and juristic persons. If there are any problems with a land developer, purchasers may file a complaint with the Land Development Commission in accordance with LDA Section 52.

    This legal procedure is a very efficient means of dispute resolution.

    1. The “Developed Estate Juristic Person”

    From the beginning to the completion of a real estate development project, the LDA sets forth procedures related to the development of the land. For instance, the land developer has the responsibility to maintain public facilities and public services until the so-called “Developed Estate Juristic Person” has been established to take over the responsibility for the maintenance. We note that

    1. the public facilities provided by the land developer for the purposes of the land development in accordance with the approved map and project (such as the road, park or children playground) shall be subject to a servitude in the interest of each unit in the development. In this regard, the land developer shall have the duty to maintain such public facilities to be in the original condition and shall refrain from doing any act which may adversely affect the servitude or make it less convenient.
    2. the land developer shall conduct maintenance of the public facilities in the project for a period of at least 1 year as from the date of completion of the construction of the public facilities within the project.
    3. the land developer shall cause a bank or a financial institution to conclude a guarantee with the Commission with regards to the maintenance of public facilities which have been provided by the land developer and remain within the responsibility of the land developer to maintain.
    4. according to LDA Section 41, the land developer shall be discharged from the duty to maintain the public facilities if the purchasers of developed land of not less than half of the sub-lots in the project map have established a developed estate juristic entity under the LDA (or a juristic person under other law for the purpose of taking the transfer of such property for its operation and maintenance) within the notice period specified by the land developer, which shall be not less than 180 days from the date of the receipt of the notification by the land developer. If the purchasers cannot establish a developed estate juristic entity on time, the land developer may
    • obtain an approval from the Commission to carry out any particular act for the purpose of maintaining the public facilities or
    • register the transfer of such property to be a property for public use.

    According to LDA Section 44 (1), it is not allowed that the purchasers of developed land of not less than half of the sub-lots in the map under the project establish the developed estate juristic person while the land developer still has the responsibility of maintenance of public facilities. In case that the purchasers of developed land represent less than half of the sub-lots, they do not have the right to establish the developed juristic person in any event.

    The purchasers should be aware that their right to establish the developed juristic person will permanently expire if they do not establish the developed juristic person on time. But it is highly recommended that the purchasers establish the developed juristic person to maintain the public facilities by themselves as it is very helpful and beneficial for their community.

    The establishment of the developed juristic person by the purchasers has following legal effect:

     

    1. For the land developer:
    • Release from the duty to maintain the public facilities
    • He becomes a member of the juristic person for the unsold plots
    1. For the purchasers (both the agreeing and disagreeing voters):
    • They become members of the juristic person
    1. For the juristic person:
    • It has the legal status of a ‘juristic person’
    • It has ‘the juristic person committee’ to act on its behalf according to the law;
    • The ‘juristic person committee’ represents the juristic person in dealings with third parties.
    1. Mandatory terms and conditions of purchase contracts

    The LDA interestingly stipulates very strict requirements for land and house purchase agreements between the land developer and purchasers. A house purchase agreement must be in accordance with the standard contract prescribed by the LDA in order to protect purchasers. There are two versions of this standard contract:

    1. For purchase of land with building and
    2. For purchase of only land.

     

    Any terms and conditions of the contract that has actually been entered into between land developer and purchaser are deemed invalid if they are in contravention to the standard contract.

    As part of the standard due diligence prior to the property acquisition, we further recommend a thorough review of the land title deed (and the title history according to the registry at the land office), building permit, construction agreement and invoices / receipts for payments to the land developer or contractor. In a professionally managed development all such documents should be in line with pertinent laws and available for review to the purchaser.

    1. Legal framework for property purchaser protection in Thailand

    It is important to note that the aforementioned protection by the LDA applies fully only in the case of outright purchases of property, not in the cases of long term leases, such as 30 year leases, which are frequently used to legally structure property acquisitions by foreigners.

    However, further to the LDA there are various laws and procedures in place in Thailand that aim to protect the rights of real estate purchasers. For instance, according to the Consumer Protection Law B.E. 2541 (1998), a land developer may be held accountable for the information provided in marketing material. Furthermore, the Condominium Act, 1979, B.E. 2522 provides a standard condominium unit sale and purchase agreement which is comparable to the aforementioned standard contracts under the Land Development Act. And an Announcement of the Consumer Protection Board regarding Section 35 (2) Consumer Protection Act, dated as of 15 September 2000, stipulates detailed contract terms for condominium unit purchases.

    This article is intended for general guidance only. It should not be relied upon as legal advice. 

  5. Purchaser Protection under the Land Development Act

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    It is a rather unknown fact among foreign property purchasers, in particular in tourist resort destinations in southern Thailand, that Thai property law sets forth a strict regime for development of real estate projects.

    (more…)