Jonathan W. Leeds
Background:
Thailand's first court designed specifically for bankruptcy
cases became operational on June 18, 1999. The Act Establishing
the Bankruptcy Court and Bankruptcy Case Procedure was
one of a series of legislative bills designed to rectify
problems in the legal infrastructure of Thailand that
became highlighted in Thailand's recent economic crisis.
The
rationale for establishing a special Bankruptcy Court
is that bankruptcy cases are fundamentally different from
general civil cases and that the results of bankruptcy
cases may have effects on the economy as a whole. Further,
it was considered necessary to have judges with specialized
experience and training in bankruptcy cases presiding
in these cases.
The
Act Establishing the Bankruptcy Court and Bankruptcy Case
Procedure ('the Act") creates a Central Bankruptcy for
the Bangkok Metropolitan District as well as Area Bankruptcy
Courts and sets out the procedures to be followed in accepting
and handling bankruptcy cases. The Act mandates the appointment
of judges, gives the Court limited authority to establish
its own procedures, and sets out transitory provisions
to handle existing cases and cases that arose prior to
the establishment of Area Bankruptcy Courts.
Jurisdiction:
The Act provides that the Central Bankruptcy
Court shall have jurisdiction throughout the Bangkok metropolis.
Cases from outside of Bangkok may be submitted to the
Central Bankruptcy Court and it is within the Court's
discretion to accept or decline these cases. Once the
Central Bankruptcy Court has accepted jurisdiction of
a case, other Courts of First Instance are prohibited
from accepting or considering the same case.
The
Bankruptcy Court shall be considered a Court of First
Instance pursuant to the Court of Justice Institution
rules and the provisions of the Court Constitution shall
apply to the Bankruptcy Court. If there is a question
of jurisdiction of the Bankruptcy Court as opposed to
any other Court of Justice, the Court is required to stay
consideration of the case and submit the issue of jurisdiction
to the president of the Supreme (Dika) Court to decide
the issue. The decision of the Supreme Court in this regard
will be final.
Bankruptcy
Court Judges: Pursuant to the Act,
the Central Bankruptcy Court will have one Director Judge
and one Deputy Director Judge. The number of Deputy Director
judges may be increased by decree of the Ministry of Justice.
Initially, the Central Bankruptcy Court will have 53 judges
and 53 administrative clerks.
Procedures
in the Court of First Instance: The procedure
to be followed in case before the Bankruptcy Court shall
be in addition to existing laws and acts on bankruptcy.
One
of the unique aspects of the Act is that it empowers the
Bankruptcy Court to draft its own new rules of procedure
as it deems necessary, thereby bypassing the normal legislative
process. Pursuant to Section 19 of the Bankruptcy Court
Act, the Director-Judges of the Bankruptcy Court shall
have the authority to enact any additional procedural
rules that are deemed necessary, subject to the approval
of the President of the Supreme Court. Any new provision
of the Court shall be enforceable once published in the
Government Gazette.
Pursuant
to Section 90/11 of the Bankruptcy Act, B.E. 2483, the
Court is required to sit in consideration of a case continuously
without postponement until that case is completed. Also
the court is required to render its decision as soon as
possible.
In
cases where a party to a bankruptcy proceeding is concerned
that evidence is in danger of being lost or destroyed,
Section 16 of the Act provides for the party to apply
to the Bankruptcy Court for an expedited hearing to receive
the evidence or testimony in question. When the Court
receives such a request, it will send a writ to either
the applicant, the other party or third person who is
required in Court. Thereafter the Court will make such
orders as are appropriate for the taking of that person's
testimony or evidence. Section 17 concerns those instances
where there is an emergency making the procedures set
out in Section 16 more urgent. If time is of the essence,
the Bankruptcy Court will issue a writ without delay as
well as empower the Official Receiver to seize or impound
any document or material witness according to the conditions
which the Court states.
Section
18 of the Act provides that the Court may grant other
courts or court officials the right to take testimony
of a witness. This testimony may take place either at
the Court or outside of the Court. Expert testimony is
permitted pursuant to Section 20 of the Act. Pursuant
to said section, any party shall be entitled to to present
his own expert to either rebut the testimony of another
party's expert or to present new testimony. Any expert
providing testimony shall be entitled to expert witness
fees, traveling expenses and room and board pursuant to
Ministry of Justice regulations. |
