Jurisdiction of Electronic Transaction in Thailand

Songsil Norintorongkul Na Ayudhaya*

In these days, the development of information technology affects our way of life greatly. People can communicate easily and borderless. By 2004 consumer shopping on the web is expected to exceed $300 billion and the total volume of business activities conducted using electronic data transmission via the internet and the World Wide Web is expected to exceed $4 trillion by 2004. (1) It is obvious that the growing number of electronic transactions is increasing considerably. (2) For Thailand, the use of internet has grown rapidly for the past five years.

The emergence of the internet brings about many legal issues and challenges. One of the important issues to be considered is the issue concerning territory and jurisdiction. Because jurisdiction of the internet or cyberspace is different from territorial jurisdiction, we should learn how courts have authorities to consider electronic transaction cases and what laws the courts should apply to regulate electronic transaction issues.

Definition of Jurisdiction

As mentioned in the Introduction, there are many legal aspects to be concerned with in the field of jurisdiction. First, what we need to know is what jurisdiction is. The term "jurisdiction" in the traditional concept of jurisdiction, covers the power of government to legislate in relation to particular person or circumstances and to adjudicate by subjecting persons or entities to the dispute resolution process of courts and administrative tribunals and to enforce by compelling compliance or punishing non-compliance with the laws. (3)

In addition, jurisdiction means many things to many people and concerns with the power to legislate, ability to validly serve a defendant with notice of proceedings, the power of court to hear and adjudicate the case, subject matter jurisdiction, personal jurisdiction, forum conveniens or forum non conveniens, governing law or choice of law: and enforcement of judgments. (4) In the other words, jurisdiction describes the system under which government powers are traditionally limited by geographical boundaries. (5)

According to Thai law, the term "jurisdiction" relating to civil and commercial matters is prescribed in the Thai Civil Procedure Code section 3, 4, 5. These provisions describe the power of a court to hear and adjudicate cases and be mainly concerned with parties such as nationality, domicile, residence or presence in the forum, or possession of property located in the forum. Consequently, traditional jurisdiction refers to the competence of national courts to adjudicate cases within their territories.

Secondly, after learning the definition of traditional jurisdiction, the next important matter we need to understand is what are the differences between territorial jurisdiction and cyberspace jurisdiction are. There are law professors in the United States who attempted to describe the differences. David R. Johnson and David Post believed that global electronic communication creates new space in which distinct rule sets should be developed because Cyberspace has no territorially based boundaries and requires a system of rules which is different from the laws that regulate physical, geographically-defined territories. They encourage people to treat Cyberspace as a separate space and attempt to establish new rules or separate laws to regulate Cyberspace transactions. (6)