Service
of Process of Foreign Subpoena Within Thailand
Chaninat & Leeds Co., Ltd., Thailand
Attorneys
There
are three major issues with regard to service of process in Thailand:
(1) Is the service legal pursuant to the foreign laws and (2) Is the service
legal pursuant to Thailand law? And is the service enforceable in Thailand?
(3) What are the conflict of law issues?
(1) |
Is
the service legal pursuant to Foreign Law? There is a split
in jurisdictions on this question. Some jurisdictions (including
many US states) allow service by certified mail or by the execution
of a return of service form prepared by the person serving the documents.
Many US states require that the person serving the documents speak
English. Other jurisdictions require that the service be pursuant
to local (Thailand) laws.
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(2) |
Is
the Service Legal Pursuant to Thai law? The relevant provision
is Section 70 of the Civil Procedure Code: |
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All plaints, summonses and other writs, and all orders and decrees
of the Court shall be served by an officer of the Court on the
parties or any third person concerned; however (1) subpoenas for
witnesses shall be served directly by the party on whose behalf
the witnesses are summoned, unless the Court otherwise orders
or the witnesses refuse to accept the subpoenas; in such case,
the subpoenas shall be served by an officer of the Court. (2)
any order or decree of the Court, including orders fixing the
day of hearing or of taking evidence, as the case may be, or an
order for adjournment, shall, if the parties or persons concerned
are present in Court at the time when it is issued and have affixed
their signatures in cognisance thereof, be deemed to have been
served according to law. "In case of plaints, the plaintiff
shall pay the fees for service, and he shall or shall not procure
the service as he thinks fit, unless the Court shall order him
to have the duty to procure the service thereof. In case of summonses,
other writs, orders or decrees of the Court issued upon the application
of any party, if the Court does not order him to procure service
also, such party shall only pay the fees for service. In any other
case, it shall be the duty of the Court to secure service on the
party or person concerned."
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Although this provision allows for service of a subpoena by the
party directly, this refers to domestic subpoenas. Foreign subpoenas
may qualify as "other orders." Therefore a foreign subpoena
would have to be served by a Thai Court officer to comply with Thai
law.
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Having a subpoena sent through official channels, that is, by the
Letters Rogatory Process, will result in the Thailand Ministry of
Justice having the Thai Courts serve the subpoena through an official
process server of the Thailand Court.
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A validly served subpoena that was obtained through the Letters
Rogatory process would be a document of record within the Thai Court
system and provide evidence that it was validly served by Thailand
Judiciary officers. Whether contempt of such a subpoena, by non-appearance
or non-compliance, would be punishable pursuant to Thai law and
in Thai Courts is an issue that has not yet been addressed by the
Thailand Supreme Court.
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(3) |
Conflict
of Law Issues: Assuming that the service of process in Thailand
was contested in a US Court, the validity of the service of process
would come into play. The Conflict of Law rules of the US and/or
those of Thailand may be triggered. If the Conflict of Laws Act
of Thailand was triggered, Section 9 of the Act states:
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"Unless
otherwise provided, the formal validity of a juristic act shall
be governed by the laws of the country where the act is made."
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As
a result in may be possible to challenge in US Courts subpoenas
that are not served by court officials in Thailand, because they
would not be pursuant to Thai law. However, the phrase "unless
otherwise provided" may be interpreted to mean that if the
foreign service of process laws allows service by certified mail
or personal service in foreign jurisdictions, then it may be permissible
pursuant to the Thailand Conflict of Laws Act.
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