Banking & Finance 2023

Last Updated October 12, 2023

Thailand

Law and Practice

Authors



Chandler MHM Limited is a leading Thai law firm committed to achieving an international standard of practice for the company's international clients. The firm has a total of 100 lawyers and 80 non-legal professionals, with 20 of the firm’s lawyers, including six partners, in its banking and finance practice group. This group has advised on some of Thailand’s and neighbouring countries’ most complex and high-value financings. The practice has significant experience acting for both lenders and borrowers on a wide range of financing transactions, including major power, infrastructure, and real estate projects. It continues to focus on major cross-border transactions, supported by MHM’s offices across Asia, such as in China, Indonesia (ATD Law in association with Mori Hamada & Matsumoto), Japan, Myanmar, Singapore and Vietnam. The practice maintains long-standing relationships with all major commercial banks in Thailand as well as with well-known international financial institutions.

Despite the impact of the COVID-19 pandemic, higher energy prices, global inflation and weak export markets, Thailand’s economy has recovered steadily supported by government initiatives. Having learnt from previous financial crises (including the Tom Yum Kung crisis) Thailand’s banking system remains resilient, with high capital funds, loan loss provisions and liquidity. Lending standards for businesses and consumers are generally stringent, particularly when the risk of default increases.

In August 2023, the Monetary Policy Committee decided to increase policy interest rates from 2.00% to 2.25% per annum, which is in line with other countries. Higher interest rates are in part intended to reduce inflationary pressures and address the accumulation of financial imbalances caused by prolonged low interest rates (introduced following the 2007–2008 global financial crisis).

Over the past few years, the economy has been weaker than usual, which has impacted the ability of SMEs and households to manage their debt repayments and to secure new financing. Household debt has reached 90.6% of the country’s gross domestic product, which is historically high. Household debts are escalating due to rising interest rates. There has been an overall fall in demand for loans, particularly hire-purchase loans for automobiles.

The global impact of the Ukraine war has resulted in higher energy costs and, consequently, higher inflation. This is combined with strong demand for goods and services following the pandemic when supply chains were still recovering. Central banks around the world, including the Bank of Thailand (BOT), have responded to this crisis by increasing interest rates to decrease overall demand in the economy as well as potential inflation.

Thailand has experienced the highest inflation rate in 24 years since the Tom Yum Kung crisis. In the third quarter of 2023, Thailand's inflation reached 7.3%, resulting in an average inflation rate of 6.1% for the year 2022. Despite the above, due to the generally conservative and stringent approach to lending, Thai banks’ non-performing loans are not as high as expected (2.67% of outstanding loans as of June 2023). However, the higher costs combined with higher interest rates are impacting the ability of all sectors to maintain their current financial commitments and obtain new financing.

The ability of the new Thai Government to provide financial support will be limited by rising borrowing costs. In light of weak economic growth, high inflation and higher interest rates, financial institutions will be particularly cautious in their approach to lending. Corporates with strong balance sheets such as in the energy sector will be able to attract finance whereas SMEs in the export market will face more stringent lending conditions. 

The issuance of high-yield bonds has remained stable since 2021, the value of which accounts for 4% of the overall value of bonds in the Thai bond market. Issuers tend to be concentrated in the capital and securities, energy, utilities, and real estate development sectors. Recently, the issuance of high-yield bonds would typically involve the provision of more collateral to raise the confidence of investors. At least 70% of high-yield bonds are secured either by corporate guarantees or fixed assets such as land and buildings.

In 2023, the high-yield bonds market has experienced multiple cases of maturity extensions resulting from the inability to roll over existing bonds. A significant portion of these bonds, around 63%, belong to the real estate development sector. Moreover, the recent incident involving a major property developer in Thailand defaulting on interest payments for their bonds has raised concerns among investors. These concerns are not limited to unrated or non-investment-grade bonds; they are now also affecting investment-grade bonds.

Traditional financial institutions, such as commercial banks and specialised financial institutions, continue to be the major credit providers in Thailand, especially when it comes to financing large corporate transactions. Non-banks and start-ups have become more prominent in the market for typical loans to individuals such as personal loans and nano-finance. By having a more approachable method for accessing loans with a less complicated process, such alternative credit providers can be a more convenient option for individuals and retail customers.

Digital Factoring Ecosystem

In the past, SMEs were generally unable to access factoring transactions because factoring business operators were concerned about the unreliability of invoices submitted by customers and their requests for double financing on the basis of the same invoices. Using central web services (CWS) technology, the BOT launched a platform for digital factoring. By using the central database of the platform, it is possible to verify the invoices of customers in order to prevent double financing issues. In recent months, the platform has built confidence among factoring business operators, and more have agreed to enter into factoring transactions, which makes factoring a more readily accessible means of obtaining funding for SMEs.

Peer-to-Peer Lending

Lending by an individual or a juristic entity to an individual can be done on a licensed peer-to-peer (P2P) lending electronic platform. The platform operator will act as an intermediary by matching lending and borrowing activities and arranging the execution of loan agreements. Furthermore, the platform operator will have to assess the borrower’s creditworthiness and client suitability, as well as procure the funds through a custodian or an escrow account.

This method of lending excludes administrative costs that normal financial institutions have to bear, and the platform operator will be able to eliminate significant costs normally charged to the borrower for similar services. Using this financing technique not only allows the borrower to access funds via a simpler and faster method, but also offers investors an alternative way to manage excess funds in addition to saving.

Digital Lending

Digital lending is a financing technique that allows licensed personal loan business operators to employ digital technology and alternative data as part of their credit risk analysis. It helps customers who may not have regular income or sufficient assets to serve as collateral for a loan but may have other online information that proves their ability to repay a loan to access a source of funds. Business operators are urged to proceed with the borrowing and repayment processes through an electronic platform such as wire transfer or electronic money to create a digital footprint that will be useful for the customers when it comes to future financial products and services.

Crowdfunding

Crowdfunding, either by way of equity or debt, can be performed through a licensed funding portal. A borrower or an issuer will have to submit a business plan to the funding portal, which conducts a screening process and discloses relevant information online. Investors will then consider the published information and if they decide to make an investment to such business, they will pay a subscription fee that will be held by an escrow agent. The borrower will then issue shares or debentures to investors and will be required to provide periodic updates on the progress of the business.

Holding Company

A holding company normally engages in generating income through equity ownership in other companies without engaging in its own operational activities. This arrangement establishes legal separation between the operating company’s assets and its owners, decreasing the owners’ liability in case the operating company faces financial difficulties. Holding company (HoldCo) financing involves the offering of loans to a holding company positioned above an operating company. This would typically be an arrangement used in infrastructure and energy project financing, particularly where holding companies have more than one project.

Financial regulators, including the Fiscal Policy Office, the BOT, the Securities and Exchange Commission, the Office of Insurance Commission, and the Stock Exchange of Thailand have established a Working Group on Sustainable Finance to promote sustainable finance and to support the Thai economy in achieving sustainable development goals.

The BOT, the Thai Banker Association and 15 commercial banks have jointly signed a Memorandum of Understanding setting forth responsible lending guidelines for each commercial bank in order to promote sustainability within the banking sector and the national economy. A strong commitment to responsible lending, stakeholder engagement considerations, internal implementation mechanisms, and transparency are the four pillars of the responsible lending guidelines.

The BOT and the Securities Exchange Commission have jointly developed Thailand Taxonomy, which is a reference tool for classification of economic activities deemed environmentally sustainable. Different classifications of each activity will be subject to different level of compliance. Taxonomy Phase I focuses on energy and transportation sectors, whereas Phase II focuses on manufacturing, agriculture, real estate, construction and waste management sectors.

Financial institutions are increasingly integrating sustainability (environmental, social and governance) into their businesses and embedding it into their core strategies. Currently, the BOT is encouraging the financial sector to move towards environmental sustainability by creating appropriate incentives to support businesses in transitioning towards sustainable models.

Licensed commercial banks (Thai commercial banks, subsidiaries of foreign commercial banks and branches of foreign commercial banks) are authorised to provide financing to companies. In the case of non-banks, specific types of financing, eg, personal loans, nano-finance for occupational purposes and provincial retail loans (pico finance) are regulated and subject to licensing requirements. Licence applications can be submitted to the BOT or the Ministry of Finance for consideration and approval. Non-banks who conduct business that is not regulated, and who are foreigners under the Foreign Business Operation Act, are also required to obtain a foreign business licence.

In general, foreign lenders are not restricted from providing loans to Thai residents, except in the case when the loans are provided to individuals and can be classified as personal loans, nano loans or pico loans. In such cases, loans from foreign lenders are subject to the BOT’s regulations.

There are no substantial restrictions on the provision of security or guarantees to foreign lenders, except for a provision of security under the Business Security Act B.E. 2558 (2015) to a foreign lender. In these cases, a foreign lender that is a commercial bank is required to grant a loan in syndication with Thai banks to be eligible to have security under this law, see 6.1 Enforcement of Collateral by Secured Lenders.

The purchase and remittance of foreign exchange are subject to the approval of authorised agents, usually commercial banks, for all bona fide transactions that do not fall into the restricted purposes outlined under the Exchange Control Act, B.E. 2485 (1942), as amended.

If a transaction falls within such restricted purposes, specific approval from the BOT must be obtained. In any case, the remittance and payment made under a loan, guarantee, or any other associated interest or fees are not categorised as restricted purposes; therefore, a specific approval from the BOT is not required.

While the BOT’s approvals are granted on a case-by-case basis, such approvals have been routinely granted for all bona fide transactions, provided that the relevant supporting documents/agreements to prove a legitimate commercial purpose are submitted to the BOT together with other supporting documents, as required by the BOT.

There are no general laws imposing a restriction on the borrower’s use of proceeds from loans or any debt securities. Nevertheless, a borrower is prohibited from using the proceeds in connection with illegal activities.

In most loan agreements, the purposes of the loan proceeds are specified and any deviation from such purposes would constitute a default, giving the lender the right to terminate the loan agreement.

Generally, the creation of a trust by a will or by a juristic act is prohibited under Section 1686 of the Thai Civil and Commercial Code. However, a trust can be established for purposes of securities, securitisation, and capital market transactions under the Trust for Transaction in Capital Markets Act B.E. 2550 (2007). Accordingly, the concept of a trust established for general purposes is not recognised under Thai law and the obligations of a person to hold anything in trust for any other person may not be enforceable, although analogous rights are recognised in certain transactions.

However, such unenforceability would not in itself affect the recognition of the validity of the particular transaction to which the person acting as trustee was a party.

Notwithstanding the above, an appointment of an agent is commonplace in financing transactions in Thailand and a concept of principal-agent relationship is recognised under Thai law. In a syndicated loan, lenders usually appoint a security agent among themselves to hold security for and on behalf of a lender. There is no specific licensing requirement for acting as a security agent. However, mortgage registration does not allow the concept of a security agent, thus each lender must enter into a mortgage agreement as a mortgagee.

Assignment

A loan transfer by way of assignment of rights is usually made when loan disbursements have already been made in full and no commitments are available under the loan agreement. As a result, only the right to receive loan repayments will be transferred.

An assignment of rights of the existing lender to the new lender must be made in writing. For an assignment to be valid against the borrower, a written notice must be given, or written consent must be obtained from the borrower. Following the assignment, the rights over the mortgage, pledge and business security agreement existing on the loan and the rights arising from a guarantee established for the loan are automatically transferred to the new lender, provided that the transfer of the mortgage and business security agreement is registered with the appropriate authorities. Nevertheless, the security interest over an assignment of rights under the project agreements, insurances, etc, which is not considered preferential rights under the law, will not be automatically assigned upon the assignment of the loan. Therefore, such assignments must be executed between the new lender and the borrower to ensure their validity.

Although a guarantee or any security interests created by a third party will be automatically assigned to the new lender, it is advisable that the notice of assignment is delivered to the relevant guarantor and a third-party security provider to ensure that the assignment is duly acknowledged.

Novation

Where the loan has not been fully disbursed, an assignment of the loan may not be a viable option since the assignment only transfers the rights of the original lender to the new lender but not the obligations. In this situation, a novation should be executed to ensure that the new lender remains liable for any further disbursements of the loan.

A transfer of rights and obligations of the existing lender to the new lender may be executed by way of novation where a form of tripartite agreement is required to be entered into among the existing lender, the new lender and the borrower. Additionally, the parties may agree to transfer the security granted to the existing lender under the existing loan agreement to the new lender, provided that, if the security is provided by a third party, consent from such third party is obtained.

A loan participation, where the existing lender wholly or partially sell its interests in a loan to another lender, is also a viable option for a transfer of the loan, provided that the commercial bank assigns the loan to a financial institution that meets the requirements set out by the BOT.

Under Thai law, debt buy-backs by the borrower result in the loan’s rights and obligations being vested in the same entity, and the loan will be extinguished. Even though the rights and obligations under the loan can be merged within the same entity, debt buy-back arrangements are not commonly used in Thailand. Often, lenders and borrowers will enter into discussions to restructure and reduce the amount of debt to be repaid by the borrower should there be a situation where the borrower is unable to pay the debt in full.

For a debt buy-back by a third party – ie, a sponsor, there is no specific law or regulation explicitly prohibiting the sponsor from buying back the borrower’s debts. Sponsors are legally permitted to repay the loan to the lenders (or purchase debt or claim rights against the borrower) and then subrogate the lenders’ rights as creditors. However, loan agreements can specify that the transferee of the lender must appear on an approved list of banks, thus making the debt buy-back infeasible for the sponsor.

In public acquisition transactions, if an acquiror wishes to acquire shares of a target company that reach certain thresholds as specified by law, the acquiror must make a tender offer for all the issued shares of the target company. The offeror is required to indicate the source of funding in its tender offer documents as a method of demonstrating its ability to fund the tender. If the source of funds includes funds secured by debt financing from a financial institution, a commitment letter issued by the financial institution must be submitted as a supporting document along with the tender offer documents, which are to be publicly filed with the Securities and Exchange Commission.

There is no specific requirement for details or minimum particulars in such commitment letter; however, in practice, commitment amounts and an effective period for such commitment are specified. Loan agreements for certain funds can be executed thereafter with certain condition precedent documents set forth by the lenders that are sometimes subject to lenders’ satisfaction.

Replacement of Interest Rates

As a consequence of the London Interbank Offered Rate (LIBOR) cessation on 30 June 2023, a number of loan agreements in the Thai market have been amended to replace the existing IBOR reference rates with the new interest rate. In the past, one of the most commonly used reference rates for floating rate products in Thailand was the Thai Baht Interest Fixing (THBFIX) which comprises LIBOR as a key element for calculation. New interest rates vary among each of the loan agreements. Common new rates include Secured Overnight Financing Rate (SOFR) and Thai Overnight Repurchase Rate (THOR) (for a loan agreement that originally used LIBOR and THBFIX as a reference rate, respectively).

Default Interest

Recently, the Thai Civil and Commercial Code has been amended to provide that where monetary obligations are due in instalments, the default interest rate shall be calculated on the due but unpaid principal amount of such default instalment. Usually, loan agreements are normally drafted in a way that the default interest is charged on the unpaid amount. Such provision would thus have to be amended so that the basis of calculation of the default interest is on the due and unpaid amount.

Order of Application of Proceeds

In late 2020, the BOT announced a regulation in relation to the order of application of proceeds when lenders receive payments from borrowers and such payments cannot satisfy the entire outstanding amount under the loan agreements. Under the BOT Notification, repayment for loans structured with instalment repayments or revolving credit extended to customers by financial institutions regulated by BOT must be applied towards applicable fees, default interest and the principal amount of the amount outstanding respectively. If the debt is due on an instalment basis, the proceeds must be applied towards the outstanding amount of each instalment based on the respective order above, from the furthest overdue instalment to the nearest.

The interest rate charged on a loan shall not exceed 15% per year in general.  According to the BOT’s Notification on practices regarding interests, discounts, service charges, and penalties for commercial banks, each commercial bank is entitled to announce its own maximum interest rate to be charged to its customers for Thai baht commercial loans above a cap of 15% per annum. The charging of interest on a foreign loan provided by banks or financial institutions registered and located in foreign countries is limited to 20% per annum.

Fees, penalties and other payments under a loan agreement which are in the nature of interest may be regarded as additional interest. If interest is charged at a rate in excess of the applicable ceiling, the entire interest charged may be held to be void and unenforceable.

Default Interest

The default interest rate can be agreed at a higher rate than that of the loan interest rate. However, the Thai courts can classify exorbitant default interest rates as penalties. The courts can use their discretion to reduce the default interest rate if they take the view that such default interest rate is disproportionately high.

In addition, the newly amended Thai Civil and Commercial Code prescribes that where debts are due in instalments, the default interest rate shall be calculated on the due but unpaid principal amount of such default instalment. Thus, default interest can be charged only on the principal amount of each instalment.

Under the Thai Civil and Commercial Code, interest on interest can be charged after it is overdue for more than one year, provided that the lender and the borrower have agreed in writing in advance, and that the entire debt shall be charged interest at a specified rate. In respect of financial institutions and non-banks under supervision of the BOT, in 2022, the BOT issued a notification regarding practices for calculation of interest for entities under its supervision meaning that, except for certain transactions, they may not accumulate the interest, service charges, penalties, and expenses to a loan’s outstanding balance to recalculate the interest and penalties.

Related-Party Transactions

Under the Securities and Exchange Commission Act B.E. 2535 (1992) and relevant Securities and Exchange Commission (SEC) regulations, listed companies may enter into certain transactions with a related party upon approval by the board of directors or the shareholders, as the case may be. Disclosure of such a transaction must be made to the Stock Exchange of Thailand. A financial contract that may fall within the scope of such related-party transaction (RPT) may include, among others, a guarantee agreement where a listed company agrees to guarantee the indebtedness of its affiliates or vice versa. In any case, disclosure is only required when the transaction value reaches the applicable threshold when compared to the net tangible assets of the relevant listed company as specified in relevant SEC regulations.

Where a disclosure is required to be made, the details below in relation to the agreement must be provided to the Stock Exchange of Thailand:

  • date and relevant parties to the agreement;
  • general explanation regarding the nature of the offer or receipt of financial assistance relating to the decision to enter into the transaction; and
  • the total value and criteria used in determining the transaction’s total value.

It is important to note that the disclosure requirement is not applicable where the listed company holds at least 90% of the total share capital of the affiliate.

Reporting Obligations in Relation to Anti-Money Laundering Laws

Under the Anti-Money Laundering Act B.E. 2542 (1999), Thai financial institutions are required to report to the Anti-Money Laundering Office (AMLO) a transaction which involves real property and machinery worth more than THB5,000,000. In respect of project financing transactions, execution of mortgage agreements (land/building/machinery) is usually required to be reported to the AMLO, since the mortgage amount or transaction value would typically be the amount of the loan facility which would be higher than THB5,000,000.

Upon entering into a mortgage agreement, financial institutions, which include commercial banks, finance companies, securities companies, insurance companies and other business related to finance, are required to report to the AMLO the following information:

  • transaction type;
  • date and relevant parties to the agreement;
  • details of the property; and
  • value of the transaction (mortgage amount).

Interest, other fees, expenses, charges, penalties, and other payments made to an offshore lender are generally subject to withholding tax of 15%. However, the withholding tax may be reduced or waived by virtue of a tax treaty between Thailand and the resident country of the relevant lender.

The payment of stamp duty on the following financing documents is a condition of entry into civil proceedings before the Thai courts:

  • Loan agreements: stamp duty of THB1 for every THB2,000 or a fraction thereof of the total amount of the loan, but not exceeding THB10,000.
  • Guarantee agreements: stamp duty of THB10 of the total guaranteed amount exceeding THB10,000.
  • Pledge agreements: stamp duty of THB1 for every THB2,000 or a fraction thereof of the total amount of the loan, without limitation (note that if the loan agreement, which is a principal obligation, has been affixed with stamp duties, the relevant pledge agreements are not required to be affixed with the stamp duty).
  • Nominal duty on duplicates of dutiable instruments.

Stamp duties are required to be affixed within 30 days of bringing the document into Thailand if it is signed abroad, or within 15 days if it is signed in Thailand, otherwise penalties will be applied for the late stamping. Furthermore, a dutiable instrument without a stamp cannot be admitted as evidence in Thai courts.

Additionally, the following fees apply to the registration of certain securities under Thai law with the relevant government body:

  • mortgage registration for land and/or building mortgage – 1% of the mortgage amount but not exceeding THB200,000;
  • machinery mortgage registration – THB1 per THB1,000 of the mortgage amount but not exceeding THB120,000; and
  • business security agreement registration – 0.1% of secured amount but not exceeding THB1,000, except for registration of security over land where the fee shall be equivalent to the land mortgage registration fee.

There are generally no other tax concerns for foreign lenders apart from withholding tax, as mentioned in 4.1 Withholding Tax.

It should be noted that the tax treatment does not differ between money centre banks and non-money centre banks or any foreign financial institutional lenders under the Revenue Code. However, certain international financial organisations such as the World Bank, International Finance Corporation (IFC) and Asian Development Bank (ADB) are not subject to withholding tax liabilities on interest, other fees, expenses, charges, penalties, and other payments. This is provided that in such particular transactions, the relevant international financial organisations do not operate in a commercial setting or with the purpose of seeking benefit in Thailand.

In Thailand, assets that can be provided as collateral are generally real estate, movable property, shares and claims. Security executed not in accordance with the formalities and perfection requirements may be considered invalid, void, or unenforceable, as the case may be.

Real Estate

A typical form of security interest over land and/or buildings is a mortgage. A mortgage agreement must be registered with the competent official at the relevant land offices where such land/building is situated, otherwise the mortgage is invalid. As mentioned in 3.5 Agent and Trust Concepts, since Thai law does not recognise the concept of trust, the mortgage agreement must be entered into between the mortgagor and the lenders or secured parties as mortgagees and not by a security trustee, to ensure each lender’s preferential rights.

It is important to note that Thai law prohibits a third-party mortgagor from being liable for the remaining balance of a secured obligation when the mortgage is enforced should the proceeds from enforcement not cover the amount due. Additionally, Thai law also prohibits a third-party mortgagor from acting as a guarantor while acting as a mortgagor for the same underlying obligation.

Movable Properties

Pledges and business security agreements over property are the most common form of security over movable property. Pledges require the actual delivery of the pledged property to the pledgee, and if the property is returned to the pledgor for any reason, the pledge is legally extinguished.

The Business Security Act allows the creation of security for movable property without the physical delivery of such assets to the security receiver. A Business Security Agreement (BSA) must be made in writing and registered via an online system with the Secured Transactions Registry Division. Due to this special feature of no actual delivery requirement, the use of the BSA over property prevails over the use of pledge of property in corporate loans.

Under the Business Security Act, the security receiver must be a financial institution, or any other person as prescribed under relevant Ministerial Regulations, which includes a foreign commercial bank that provides facilities in syndication with a financial institution as defined in the Financial Institutions Businesses Act B.E. 2551 (2008) – eg, Thai commercial banks. A foreign commercial bank that intends to be a security receiver must serve written notice of its intention to be a security receiver under the Business Security Act to the Department of Business Development, Ministry of Commerce with supporting documents proving that it is a commercial bank under the relevant laws in the jurisdiction of its registration/incorporation.

Shares

Shares are considered rights represented in an instrument and can be secured as collateral by way of a pledge. When pledging shares in a company, in addition to the physical delivery of the share certificates to the pledgee, a record of the pledge along with the name and address of a pledgee must be registered in the share register book of the company to ensure the pledge is valid against the company and third party.

Claims and Other Assets

Certain claims such as deposits in bank accounts, rights to receive proceeds, rights under agreements or intellectual property can be provided as collateral under the BSA.

In a project finance transaction, it is also common practice for a borrower to agree in advance to conditionally assign its rights under project-related contracts, rights to receive proceeds under insurance policies, etc, for the purpose of providing collateral to secure loan obligations in favour of a lender. However, the assignee will not be considered a secured creditor in bankruptcy proceedings.

An assignment of a right is not valid unless it is made in writing, and such assignment can be set up against the debtor or third persons if written notice thereof has been given to the debtor, or if the debtor has consented in writing to the assignment.

Rights Over Leasehold Assets

The Rights over Leasehold Asset Act B.E. 2562 (2019) introduced a new type of legal interest over land and/or buildings that is capable of mortgage registration, namely, the right over a leasehold asset (Sap-Ing-Sith). Rights over a leasehold asset are similar to leasehold rights whereby the owner of an immovable property registers with the relevant land office a right over a leasehold asset or the right to use the immovable property in favour of another person (the “Leasehold Right Holder”). The maximum duration for the registered right over a leasehold asset is 30 years. Rights over a leasehold asset can only be registered over land represented by a title deed, land with buildings constructed on land represented by a title deed, and condominium units under the Condominium Act B.E. 2522 (1979).

Traditionally, a person who could be a mortgagor in relation to real estate was limited to the owner of the land and/or building. However, pursuant to the Rights over Leasehold Asset Act, a Leasehold Right Holder is able to mortgage its rights over the immovable property that has been registered as a right over a leasehold asset.

Note that, in contrast to the limitation of a foreigner to hold ownership of land, a foreigner is allowed to be a Leasehold Right Holder and can subsequently mortgage such right in favour of the mortgagee.

There is no concept of a floating charge in Thailand, but the closest available option of security is business security which can cover the present and future assets of the security provider without requiring it to deliver any of its assets to the security receiver.

Business security can be created over a whole business.

However, the key difference between floating charges and security over the whole business under the Business Security Act is the Thai legal requirement to register all assets secured under a BSA over the whole business and the requirement to notify the security receiver of any changes in details of the secured assets.

Contrary to the floating charge concept where a specification of a class of asset charged to the chargee is required only once, and re-registration for future assets acquired by the chargor or assets disposed of in the ordinary course of business is not required, the Business Security Act requires that security providers notify the security receiver when they acquire new assets so that the registration of the security can be amended.

Nevertheless, a party may agree to set a threshold of changes that require notification, for example, the duty to notify will apply only if inventory increases or decreases by 20%. As a result of this stringent requirement and the uncertainty of enforcement, to date, a BSA over a whole business has rarely been used in Thailand, especially in relation to large commercial loans or project financing transactions.

There is no restriction in giving downstream, upstream and cross-stream guarantees under Thai law, and the arrangement can be structured to allow one company to secure another company’s debt. A guarantee provided by publicly listed companies or their subsidiaries to secure the debt of another company that shares the same controlling shareholder(s) or person(s) with management power is considered a related-party transaction that may require approval from the board of directors or shareholders, and may be subject to reporting requirements (depending on the size of the transaction).

There are no specific restrictions on the target to grant guarantees, security or financial assistance for the acquisition of its own shares. However, if the provision of a guarantee, security or financial assistance by the target for the acquisition of target’s shares is considered a related-party transaction, certain requirements must be met as outlined in 5.3 Downstream, Upstream and Cross-Stream Guarantees.

Requirement of a Licence

A foreign entity (which includes a Thai-incorporated entity of which its shareholding structure is majority or wholly owned by a foreign entity) is considered a “foreigner” under the Foreign Business Operation Act B.E. 2542 (1999), and that foreign entity is restricted from providing guarantees or any security to secure a third party’s debts since provisions of a guarantee or security to secure a third party’s debt are considered as provision of services under Annex 3 of the Foreign Business Operation Act. In such cases, a foreigner is required to obtain a foreign business operation licence before providing a guarantee or any form of security in Thailand. A foreign business licence is to be granted for each transaction individually, and the foreigner is required to apply for the licence each time it is required to provide security or a guarantee.

Thai Guarantee Law Limitations

As a result of the amendment to the Thai Civil and Commercial Code, the Thai guarantee law imposes certain limitations on the provision of guarantees, such as:

  • an individual guarantor is prohibited from the provision of guarantees as a primary debtor;
  • in the event of an extension of time granted by the creditor to the debtor for the secured obligation, the guarantor’s obligation shall be extinguished, unless the guarantor consents to such extension of time at the time or after such extension;
  • in the event that the creditor reduces the amount of the secured obligation, interest, compensation, or any other charges and if the payment after deduction has been made either by the debtor and/or the guarantor, the guarantor shall be free from the guarantee; and
  • when a debtor defaults, the creditor must deliver a written notice to the guarantor within 60 days from the date that the debtor defaults. If the creditor fails to do so, the guarantor is released from interests, compensation and any other charges relating to such obligation after such 60-day period has ended.

Any provision in the guarantee agreement contrary to the guarantee law limitations will be rendered void and unenforceable.

A full repayment of a secured obligation (a loan) will legally extinguish all ancillary obligations or security agreements related to such secured obligation.

If the security is registered with a competent official – ie, security created under a mortgage and BSA, the registration of release shall be made to reflect the actual extinguishment of the underlying loan agreement. For other types of security, a notice of release is usually served to the relevant obligors, and, in case of a pledge, the pledged property shall be returned to the pledgor.

With respect to security which requires registration (ie, a mortgage and BSA), the security interest that was registered the earliest has priority over interests registered later. Assets subject to a mortgage can subsequently be collateralised under the BSA and vice versa. However, an asset subject to collateral under the BSA cannot subsequently be pledged, otherwise the pledge will be invalid.

In bankruptcy proceedings, under Section 96 (1) of the Bankruptcy Act B.E. 2485 (1942), a secured creditor who has preferential rights over an asset may waive its priority by agreeing to relinquish such asset given as security for the benefit of all creditors and may apply for repayment of the debt in full. Nevertheless, it is uncertain whether the secured creditor can contractually waive its preferential rights over the secured assets prior to bankruptcy proceedings.

With respect to unsecured debt, contractual and structural subordination are feasible in Thailand. In bankruptcy proceedings, a contractual subordination provision is recognised under Section 130 bis of the Bankruptcy Act and, as a result, the subordinated debt shall be payable after all other unsecured debts are repaid in full.

There is no concept of priming liens in Thailand. In general, security interest duly created in favour of a lender will give such lender preferential rights over other creditors which cannot be primed by any other lenders. Where the security is created in favour of multiple lenders, the security interest would rank according to the time of registration as mentioned in 5.7 Rules Governing the Priority of Competing Security Interests.

However, rights to enforce the security of a secured creditor may be subject to the right of retention of other creditors. A right of retention allows a person who possesses another’s property to retain it until an obligation relating to the property is performed. The right may be exercised against the whole of the property until the obligation is completely fulfilled. Certain conditions must be satisfied for the right to arise:

  • there must be an obligation owed to the possessor by the borrower or the property owner which has become due;
  • in the case of insolvency of the borrower or the property owner, the right may be exercised even if the debt has not become due;
  • the obligation must arise in relation to the property itself; and
  • the possession must have commenced lawfully.

As a result, a person who has the right of retention is legally entitled to withhold the secured property and may not be required to deliver such property to the secured creditor until the obligations owed to them by the borrower or the property owner are duly performed. In any case, a person who has the right of retention is not entitled to enforce the property and apply the proceeds toward the performance of the borrower’s or the property owner’s obligation in the same manner that a mortgagee, a pledgee or secured creditors may have.

Further, in respect of real property, where a debtor owes any of the following duly registered obligations, a creditor of such obligations shall have preferential rights over the mortgagee:

  • preservation of real property; or
  • hire of work in relation to property situated on real property.

In other words, a creditor of debt obligations in relation to the abovementioned transactions owed by the landowner, shall have priority over a mortgagee of the same land.

In addition, in rehabilitation proceedings, a lender who has provided financial support to the borrower, during the period when the borrower was undergoing rehabilitation proceedings, is not required to submit an application for debt repayment under the rehabilitation proceedings and shall not be subject to the repayment terms under the rehabilitation plan (not subject to any debt hair-cut). Instead, such lender may enforce its loan in accordance with relevant terms in the financing documents, subject to automatic stay, or moratorium. Although new lenders may have priority over other unsecured creditors who have applied for debt repayment, the security interest provided in favour of existing creditors cannot be prejudiced in any manner.

Normally, collateral enforcement is triggered by an event of default under the relevant loan agreement.

Security enforcement typically involves the following methods:

  • public auction through legal procedures with a court order;
  • out-of-court public auction; and
  • foreclosure.

When enforcing a mortgage or BSA, public auctions through legal procedures with a court order are usually required, except when the mortgagor or the security provider consents to the enforcement of the secured asset; in this case, an out-of-court public auction may be conducted.

For enforcement of a pledge, the pledgee may enforce the pledged property by a public auction without court procedures.

The foreclosure of secured assets is a viable option; however, it is uncommon in practice due to the requirement that the debtor have outstanding interest payments for at least five years and that the value of the secured asset not exceed the outstanding unpaid debt. If there is an agreement in advance allowing the lender to dispose of secured assets contrary to the foregoing, for example, a private execution agreement, such an agreement is invalid.

Under a BSA, there are also special provisions for the enforcement of deposit claims and security over the whole business. Whenever the security receiver of a deposit claim is a financial institution, the enforcement procedures can be carried out immediately through direct settlement for those deposits, followed by a subsequent notice (without obtaining consent) to the security provider. For the whole business collateral, a third-party security enforcer appointed in advance by the parties will be responsible for enforcing and disposing of the whole business.

The choice of foreign law agreed upon by the parties as the governing law of the loan will be recognised and applied by Thai courts, but only to the extent that such law is proven to the satisfaction of a Thai court (satisfaction is within the discretion of the court) and it is not considered contrary to Thailand’s public order or good morals by the court. The scope of a court’s discretion on public order or good morals has not yet been definitively established.

A provision that allows the courts of a foreign jurisdiction to have exclusive jurisdiction to settle any dispute may not be enforceable in Thailand. However, Thai law is silent on the effect of irrevocable submission to the jurisdiction of a foreign court, waivers concerning objection to venue, or the appointment of agents for service of process for the purposes of proceedings before such courts. There is no precedent case under Thai law ruling such submission, waiver or appointment invalid.

An express waiver of sovereign immunity made in writing may be effective in Thailand.

A judgment of a foreign court will not be enforced by the Thai courts but may, at the sole discretion of the Thai courts, be admissible as evidence in an action in the Thai courts.

An award rendered by an arbitral tribunal is recognised and enforceable in a Thai court under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Thai Arbitration Act B.E. 2545 (2002). Arbitral awards are enforced by Thai courts upon due application of a party seeking to enforce the award. Generally, Thai courts will not reexamine the merits of the dispute since they have already been examined and decided on by the arbitration tribunal. However, a Thai court may refuse to recognise and enforce an arbitral award based on several grounds as prescribed in Section 40 of the Thai Arbitration Act, for example, if the court views that the arbitral award is contrary to Thai law, public order or good morals.

Due to Thai laws generally prohibiting foreigners from owning title to lands, there are very few exceptions where foreign lenders can enforce security over land by foreclosure. However, there are no restrictions that could affect a foreign lender’s ability to enforce its rights under a loan or security agreement.

Bankruptcy Proceedings

Under bankruptcy proceedings, upon a receivership order, an unsecured creditor will be prohibited from enforcing any of its rights in respect of claims against an insolvent debtor outside of the insolvency proceedings and shall submit an application for repayment in order to be repaid.

A secured creditor may opt to enforce its security outside of bankruptcy proceedings. However, if the proceeds from enforcement of secured property do not cover the whole amount of debt, the secured creditor will not be able to apply for the repayment of debt in respect of the outstanding amount. A secured creditor may also choose to file an application for repayment. In such case, the secured creditor will be entitled to any debt shortfall after enforcement of the secured property.

Rehabilitation Proceedings

When the bankruptcy court accepts the petition for rehabilitation proceedings, an automatic stay, or moratorium, is levied to protect the debtor against actions by creditors such as litigation, enforcement of security and bankruptcy proceedings. As such, secured creditors would be unable to enforce their security outside the rehabilitation proceedings, unless otherwise approved by the bankruptcy court.

Creditors whose rights are restricted by the moratorium may submit a request to the bankruptcy court for an order to amend, modify or annul the limitations on their rights on the grounds that the restrictions are not necessary for the rehabilitation proceedings or that they do not sufficiently protect secured creditors’ rights.

In the context of a corporate debtor’s bankruptcy, Section 130 of the Bankruptcy Act outlines a specific hierarchy for the payment of debts, as follows:

  • expenses incurred by the official receiver in the management of the debtor’s property;
  • fees for the collection of property;
  • fees incurred by the plaintiff creditor as well as lawyers’ fees as determined by the court or the receiver;
  • taxes and duties due within six months prior to the receivership order and money which employees are entitled to receive prior to the receivership order in return for the service performed for the employer debtor;
  • other debts; and
  • subordinated debts.

In instances where there is insufficient money to fully satisfy the debts within a given tier, a pro-rata distribution will be made among the creditors in that tier.

The secured creditors will have preferential rights over their secured assets as mentioned in 7.1 Impact of Insolvency Processes. Any debt shortfall after enforcement of the secured assets will be classified as other debts.

The period of insolvency proceedings in Thailand typically depends on many factors. If the bankrupt entity has no assets, when such entity is declared bankrupt the bankruptcy process would take approximately one year from the initiation of the bankruptcy proceedings until the bankruptcy court orders the case to be closed.

On the other hand, if the bankrupt entity holds assets, when such entity is declared bankrupt creditors may notify and request the official receiver to confiscate the debtor’s assets and proceed to sell those assets at public auction. The period of insolvency, where the debtor has assets, depends on the number of assets held by the debtor and whether each of the assets is successfully sold at auction. If the assets were not sold at auction, the auction process will be reinitiated, with the assets being discounted each time, until the assets are sold. The period when the auction takes place also depends on the number of auction cases. Typically, the auction occurs once every three to four months. As a result, an insolvency process where the debtor has assets may take three years or more after bankruptcy proceedings have been initiated.

The recovery rates for unsecured creditors in Thai insolvency proceedings are varied. Given that secured creditors typically have the right to enforce their security over the debtor’s assets first, what remains for distribution among unsecured creditors is often limited. Consequently, the recovery rates for unsecured creditors are generally minimal.

Commencement of Business Rehabilitation

Business rehabilitation procedures outside of insolvency proceedings are available in Thailand. Either the debtor or the creditor has the right to submit to the court a petition for a business rehabilitation. If it appears that a debtor is insolvent or unable to pay its debt, is indebted to one or more creditors for a definite amount of not less than THB10 million, regardless of whether such debt is due immediately or not, and there are reasonable prospects of rehabilitating the debtor’s business, the court will usually accept the petition for rehabilitation proceedings.

Application for Repayment

As soon as the court issues an order to initiate the rehabilitation proceedings and appoints the planner (nominated by the one who filed the rehabilitation petition or by the creditors), all creditors (including foreign creditors) are required to file debt repayment applications, together with all supporting documents, against the debtor with the official receiver within one month from the date on which the order appointing the planner is published in the government gazette. A failure to file a claim by the end of such period (which is not extendable and no exceptions are provided for foreign creditors) will result in the creditor forfeiting its claim against the debtor.

Business Rehabilitation Plan

After the plan has been prepared by the planner, a creditors meeting must be held for approval of the plan. The proposed plan must be approved by either:

  • creditors holding at least two-thirds of the outstanding debt value and more than half of the number of the total creditors from each class of creditors; or
  • creditors holding two-thirds of the outstanding debt value and more than half of the number of the total creditors from at least one class of creditor, and creditors holding 50% of the outstanding debt value of all classes of creditors.

Upon approval of the plan by the creditors and the court, the plan will be considered to be binding on all creditors who submitted an application for repayment, whether voting for or against the plan or absent during the voting. If creditors have not filed an application for repayment of debt, these creditors will forfeit their rights to repayment unless the rehabilitation plan states otherwise, or the court cancels the order for business rehabilitation.

In any case, the creditors will always have the right to claim the full amount of debt from any guarantor, joint debtor or third-party security provider, since they are not bound by the rehabilitation plan.

The major risks to lenders when obligors become insolvent are the risks of the financing transaction or any related action thereof being subject to revocation under undue preference provisions pursuant to the Bankruptcy Act and the Thai Civil and Commercial Code.

In a case where it appears that the borrower, security provider or guarantor becomes insolvent and is subject to bankruptcy proceedings, other creditors or the official receiver may be entitled to ask the court to cancel any payment made or provision of any security by the borrower, the security provider, or the guarantor to the lender with knowledge that it would prejudice other creditors. There is a legal presumption that if the payment or the provision of security is made during a period of one year before the initiation of the bankruptcy proceedings and thereafter, the borrower, the security provider, or the guarantor and the lender knew that such action would be prejudicial to the other creditor(s).

In addition, in the bankruptcy proceedings of the borrower or security provider, the court has the power, upon the application of the official receiver, to order the cancellation of the transfer of property or any act carried out by the borrower or security provider, or carried outwith the borrower’s or the security provider’s consent, three months before the bankruptcy petition or thereafter with the intent to give any creditor an advantage over other creditors.

Project financing structures in Thailand are commonly used for power plants, large-scale infrastructure projects, oil and gas and mining projects. Project financing structures are in fact usually found in the energy sector and power plant projects.

Following various government policies supporting renewable energy projects, in 2022, the Energy Regulatory Commission of Thailand (ERC) announced that it would purchase power from four types of renewable energy projects, namely biogas, wind, ground-mounted solar and ground-mounted solar with a Battery Energy Storage System (BESS). The total purchasing target is 5,203 MW. Furthermore, the ERC is currently considering purchasing 3,668 MW of additional renewable energy. We anticipate that the majority of these renewable projects will be structured using project financing as the financing method.

The Public-Private Partnership Act B.E. 2562 (2019) came into force in March 2019. The Act streamlines the process of investment partnerships between the public and private sectors. It is applicable to various types of projects, ranging from infrastructure transportation to public services, energy, telecommunications, hospitals, schools and exhibition centres.

In 2018, the Eastern Special Development Zone Act, B.E. 2561 (2018) was enacted. This Act creates an expedited process for the approval of public-private partnership projects within the so-called Eastern Seaboard.

Apart from the Eastern Seaboard initiative, under the Public Private Partnership Project Preparation Plans 2020-2027 (PPP Plans), there are 127 PPP projects in the pipeline with investment costs of over THB1.16 trillion to be executed within an announced timeframe.

There are no legal requirements that any of the project documents be governed by Thai law. The parties can agree to project documents being governed by a foreign law, including English and New York law, and disputes may be resolved in any foreign courts or by international arbitration.

In all circumstances, if a governmental authority is a party to the project documents, it is generally necessary for the project documents to adhere to standard terms/templates with Thai law being the governing law, and disputes resolved by the Thai courts. For example, where an offtaker of power projects is a state-owned Thai electricity utility enterprise or where an owner of project land is a governmental authority, the power purchase agreement and land lease agreement would typically need to be drawn up in accordance with standard terms, allowing only limited room for negotiation, with Thai law stipulated as the governing law, and disputes resolved solely by the Thai courts.

Under Thai law, foreigners are generally prohibited from owning real property, both surface and subsurface including any water resource which is represented by a title deed. Consequently, foreign lenders may not be able to foreclose on real property secured in favour of them following an enforcement event. Exceptions may apply, such as where land has been acquired under Board of Investment incentives or in respect of condominium units.

Given this drawback, in the case of syndicated financings, foreign lenders normally rely on separate security-sharing arrangements whereby proceeds from the enforcement of real property will be shared among all lenders on a pro-rata basis based on each lender’s outstanding commitment.

With respect to water rights, there are no restrictions on foreigners applying for use of water resources, unless the water resource is located on private land where ownership is subject to foreign ownership restrictions. There is no private ownership of public water resources and the use of such water is subject to the relevant official’s permission.

It is important to note that where security is created over shares, if the foreign pledgee opts to foreclose on the pledged shares, such foreclosure will result in the borrower becoming a foreign entity (majority-owned by a foreigner). Consequently, such entity may not be able to carry on its business if its business operation is considered a restricted business for a foreigner, unless a foreign business license is obtained. See  5.5 Other Restrictions. Similarly, where a security is created over a ship and the foreign mortgagor forecloses on the mortgaged ship, the ship will need to be deregistered and exit Thai waters.

In structuring deals, several types of risk need to be carefully considered by lenders and their advisers. To ensure lenders’ protection, specific issues relating to cashflow projections, project operations, and the identities of relevant counterparties should be taken into account.

The project company is usually a limited liability company newly set up as an SPV for the construction and operation of a project. Certain businesses, such as service businesses, are prohibited from being operated by a company wholly or majority owned by foreigners, except when a business licence is issued to allow the operation of such foreign businesses.

Bank loans are a major source of project financing in Thailand. The structure of the financing can be either bilateral or syndicated financing, depending on the risk exposure of each project. Lenders normally require capital contribution commitments by the project’s sponsors up to a certain ratio without any or only limited recourse. Security packages range from security over fixed assets to mere contractual rights of the project owner under project-related agreements. Export and import credit financing is used to support the export of products and services from Thailand as well as the import of overseas products and services into Thailand. Forms of financing include a letter of credit, packing credit, trust receipt, shipping guarantee, etc.

Issuance of bonds is another common way for companies to raise funds for investments in projects. There has been an increase in the issuance of green bonds, social bonds, and sustainability bonds in the Thai bond market. These bonds are intended for investment or refinancing of loans for projects that are environmentally friendly, with the objective of promoting social and sustainability purposes. Nowadays, sustainability-linked bonds are more prevalent where issuers set a sustainability performance target whereby interest payment of the bonds will tie with their or their subsidiary’s performance in achieving such target.

While there is no particular legislation dealing with ownership of natural resources in Thailand, under the Thai constitution, the state possesses the power to manage, utilise, organise, use, and safeguard natural resources. Since regulations concerning natural resources vary by type of natural resource, should a person aim to obtain the rights to any particular natural resource, they must comply with the relevant laws enacted for that resource. Regarding beneficiation, there are no regulatory requirements that restrict the beneficiation of minerals in Thailand before export.

The Office of Natural Resources and Environmental Policy and Planning Environment is the main regulatory body that imposes a requirement to conduct an Environmental Impact Assessment or an Environmental Health Impact Assessment for certain types of projects under the Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (1992).

The Department of Industrial Works oversees various environmental, health and safety issues such as electrical system safety, chemical and radioactive safety, workplace safety, fire hazard safety and general management for air and water pollution, as well as the submission of Environmental Safety Assessments in accordance with the Factory Act B.E. 2535 (1992).

In addition to the two major regulators, there are various governmental agencies responsible for environmental, public health and safety issues, including:

  • the Hazardous Substance Control Bureau, which is responsible for the management of hazardous substances, namely, oil, gas and fuel;
  • the Department of Energy Business, which is responsible for the operation and construction of large oil storage facilities;
  • the local authorities, which are responsible for construction and public safety; and
  • the Department of Health, which is responsible for general public sanitation.        
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Trends and Developments


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Chandler MHM Limited is a leading Thai law firm committed to achieving an international standard of practice for the company’s international clients. The firm has a total of 100 lawyers and 80 non-legal professionals, with 20 of the firm’s lawyers, including six partners, in its banking and finance practice group. This group has advised on some of Thailand’s and neighbouring countries’ most complex and high-value financings. The practice has significant experience acting for both lenders and borrowers on a wide range of financing transactions, including major power, infrastructure, and real estate projects. It continues to focus on major cross-border transactions, supported by MHM’s offices across Asia, such as in China, Indonesia (ATD Law in association with Mori Hamada & Matsumoto), Japan, Myanmar, Singapore and Vietnam. The practice maintains long-standing relationships with all major commercial banks in Thailand as well as with well-known international financial institutions.

Technology and Data in the Financial Services Sectors

The financial services sector in Thailand, much like in other parts of the world, is experiencing a digital transformation. Many financial institutions are shifting away from traditional “bricks and mortar” models, embracing digital platforms and broadening their range of digital services beyond conventional banking.

We have outlined below some key developments in the financial services sector in relation to the digital transformation.

Virtual bank

The Bank of Thailand (BOT) has proposed a policy that will allow new and existing players to establish virtual banks. The scope of virtual banks is the same as that of traditional banks, and they will be required to be established and headquartered or have a parent company in Thailand in order to be supervised.

A key element differentiating virtual banks from traditional banks is that virtual banks do not have physical branches and will generally offer services through a digital channel. In its consultation paper, the BOT has articulated a clear and strategic vision for the role of virtual banks in the financial ecosystem. The primary objectives are twofold: to significantly reduce operating costs and to improve the accessibility of financial services for consumers.

Under the BOT’s “open competition policy”, new players are invited to compete in the banking market using new formats that meet the needs of customers. The BOT imposes a licensing framework for virtual banks which includes the place of establishment, paid-up registered capital, cyber security certification system requirements, and an exit plan, among other requirements. In June 2023, the BOT issued a consultation paper on virtual banking and held a public hearing to gather feedback on the proposed framework. A few players, including SCB X Public Company Limited and Kakao Bank, have confirmed that they will apply for a virtual bank license. Further, SCBX has confirmed that it is ready to commence the license application process and has forged a partnership with Kakao Bank to establish a consortium to upgrade its technology to meet the needs of its customers.

Digital currency – Central Bank digital currency

Since 2018, the BOT has been exploring adopting a central bank digital currency (CBDC) for inbound and cross-border transactions through many projects, such as Project Inthanon, Project Inthanon-LionRock, and Project mBridge. Project mBridge was conducted in collaboration with the Hong Kong Monetary Authority, the Central Bank of the United Arab Emirates, and the Digital Currency Institute of the People’s Bank of China with the Bank for International Settlement Innovation Hub as a supporter. The project testing took place in 2022. The testing evaluated three types of transactions: (i) issuance and redemption (ii) cross-border payment; and (iii) cross-border exchange. The test involved 20 participants from four different countries.

Test results revealed that conducting cross-border money transfers and currency exchanges on the mBridge system using CBDC could enhance the efficiency of international fund transfers with less reliance on correspondent banks compared to current fund transfer systems. The mBridge system reduces transfer times from the current three to five days to mere seconds, with lower transaction costs and settlement risk. It also promotes local currency usage for international payments.

In the next phase, the mBridge project aims to leverage technology for the development of systems and features that can efficiently support transactions. The BOT will further assess the feasibility of expanding the scope of development and testing the practical application of the mBridge project.

Sustainable Solutions to Thailand’s Structural Debt Overhang Problems - Responsible Lending

The structurally high level of household debt in Thailand impacts the quality of life of the debtors and the stability of the financial system. In light of this, in February 2023, the BOT released a Directional Paper titled “Sustainable Solution to Thailand’s Structural Debt Overhang Problems”, aiming to provide a comprehensive understanding of Thailand’s household debt situation and to communicate the fundamental approaches for addressing the debt in a holistic and systematic manner. This approach requires time and collaborative efforts from all sectors. Since 2020, the BOT’s primary focus has been on assisting debtors who have been impacted by COVID-19. As the situation has gradually improved, the BOT has pivoted its strategy to tackle more long-term challenges associated with debt repayment. At the forefront of this strategic shift is the concept of “responsible lending”, a multi-faceted approach aimed at addressing persistent debt issues. An important element of responsible lending is that advertising should not encourage reckless borrowing or debt accumulation; instead, it should encourage responsible borrowing behaviour, offering loan products that are tailored to meet the specific needs and financial circumstances of individual borrowers. This ensures that loans are not only accessible but also aligned with the borrower’s ability to manage repayments effectively.

These measures will be enforced from 2024 except for the provisions related to persistent debt (where the amount of interest is greater than the principal during the past five-year period), which will take effect from 1 April 2024. Furthermore, the BOT is also in the process of considering additional measures for household debt management. This includes testing a Sandbox project for implementing risk-based pricing (RBP) and debt service ratio (DSR) criteria.

Green-Financing: Investing in a Sustainable Future - Environment, Social and Governance (ESG)

The financial services sector in Thailand is playing its part in adopting the principles of ESG into its business model. This is strongly supported by the Thai Government which attended and seeks to implement the outcomes of the United Nations Climate Conference (COP27).

Many more financial institutions are setting goals for aligning their lending criteria with the principles of ESG. This means that businesses need to understand the transition to ESG compliance throughout their business life cycle, from seeking finance to managing supply chains, when making any investment decisions. We have outlined below some of the recent developments with respect to ESG.

Bio-Circular-Green

The Thai government has launched the Bio-Circular-Green Economy (BCG) framework to steer the country’s recovery following the COVID-19 pandemic. A BCG economy encompasses the “Bioeconomy”, “Circular Economy” and “Green Economy”. The BCG approach prioritises leveraging science, technology, and innovation to transform Thailand’s inherent strengths in biological and cultural diversity to gain a competitive edge. Its primary objectives include advancing the sustainability of biological resources, empowering communities, and fostering the transition towards a low-carbon society in line with the UN Sustainable Development Goals. Financial institutions are continuously integrating the principles of ESG into their product offerings which support the Bio-Circular-Green Economy (BCG) framework. This includes providing green financing options, promoting ESG investments, assisting in mitigating ESG-related risks and supporting innovation in sustainable technologies. Financial institutions are moving towards responsible practices that align with sustainability and resource efficiency.

Additionally, under the Investment Promotion Act B.E. 2520, businesses that comply with BCG classifications qualify for a reduction in corporate income tax and various incentives, both tax-related and non-tax-related. Further advantages include exceptions or reductions in import duties applied to machinery, raw materials, and research and development materials as stipulated in the investment-related laws. One sector which is rapidly adapting to the BCG framework is the energy sector. The Ministry of Energy promotes waste-to-energy production with the inclusion of community participation and has also announced the purchase of power generated from renewable energy resources and municipal solid waste. In response to this, there are likely to be more stringent regulations and measures for businesses to comply with, ensuring that activities engaged in environmentally impactful products, goods, and services uphold their environmental responsibilities.

Environment conservation bonds

The Securities and Exchange Commission of Thailand (SEC) is taking steps to promote ESG principles within the Thai capital markets by evaluating a company’s performance in terms of its environmental impact, social responsibility, and corporate governance practices. The SEC is actively promoting the issuance and offer for sale of green bonds, social bonds, and sustainability bonds (collectively referred to as “environment conservation bonds”) which are to finance sustainable projects. The issuers must comply with SEC regulations and international standards such as the ASEAN Bond Standards or the International Capital Market Association Bond Principles (ICMA). Moreover, the SEC has established regulations and guidelines for sustainability and set incentives for participating in green finance by waiving the requirement for official fees with respect to ESG-related bond issuances.

Thailand sustainability investment

As a regular practice, the Stock Exchange of Thailand (SET) annually announces a list of Thai-listed companies that have been selected to be part of Thailand Sustainability Investment (THSI). This list comprises companies that engage in sustainable business practices and uphold ESG principles, demonstrating a commitment to responsible business operations. The concept of sustainable investment, focusing on ESG, has become a prominent trend among investors. In 2022, the number of companies included in the THSI list increased significantly to 166 companies, up from 144 companies in 2021. This uptick signifies the growing importance and recognition of corporate sustainability, both from the market and the wider public’s viewpoint. With SET’s vision “To Make the Capital Markets ‘Work’ for Everyone” – ie, to promote inclusive and responsible capital markets, the SET actively supports listed companies in operating businesses in a responsible manner to foster resilience and sustainable growth. According to the SET, 80% of individual investors in Thailand engage in trading stocks of companies with sustainable attributes, holding at least one such company in their investment portfolio, while institutional investors and lenders are integrating ESG factors into their investment and lending decisions to support the development of sustainable products. Financial institutions are increasingly engaging in sustainable banking by supporting projects which have a positive impact in line with ESG principles.

Carbon market and carbon financing

There has been a growing interest in the carbon credit market around the world. Unlike some other countries which implement compliance or a mandatory carbon market, Thailand adopts a voluntary carbon market. Whilst there is no legal requirement for businesses to reduce or maintain their greenhouse gas emission level, certain Thai business operators are approaching this issue very seriously resulting in carbon credit playing an important role in various sectors.

The Thailand Voluntary Emission Reduction Program (T-VER Program) was developed and introduced by the Thailand Greenhouse Gas Management Organization (TGO) as a mechanism for obtaining carbon credits in Thailand. The T-VER program enables projects to generate carbon credits which can be used to offset greenhouse gas emissions or be sold to businesses that are unable to reduce their own emissions. Recently TGO has introduced a Premium T-VER project which incorporates additional methodologies aligned with international standards. Thailand has to navigate pressures from foreign entities regarding environmental measures, including the practices of multinational companies, especially from the European Union (EU). This requires advance preparation and adaptation; for instance, from 1 October 2023, the EU plans to impose a carbon price at its borders, known as the Carbon Border Adjustment Mechanism (CBAM), impacting Thai products such as cement, steel, and fertilisers. This incurs additional costs for Thai exporters who normally engage in their export business in the EU market. There is also a platform for trading carbon credits established to promote the liquidity of the carbon market and to create economic incentives for emissions reduction. In terms of the financing market, financial institutions have played a significant role in supporting projects that generate carbon credits and integrate carbon offset programmes. Carbon credits can now be connected with derivatives transactions (ie, futures, options, and swaps) as they help businesses manage climate-related and transition risks. Early this year, Krung Thai Bank Public Company Limited, PTT Public Company Limited and PTT International Trading Pte Ltd signed a memorandum of understanding (MOU) relating to carbon credit-linked derivatives with an aim to mitigate risks in carbon prices and greenhouse gas emissions. The MOU would serve as a prototype project for developing a market of carbon credit-linked derivatives for risk management or other trade products in the future.

Emerging Innovation in Financial Markets

Payment systems

The BOT has introduced a three-year strategic plan (2022-2024) to make digital payments the primary method for accessing banking services for all and to enhance Thailand’s competitive edge while transitioning towards a cashless society. The strategy focuses on:

  • openness – utilising shared payment infrastructure and data for efficiency and to promote competition;
  • inclusivity – encouraging accessible and understandable payment services for all; and
  • resiliency – implementing flexible oversight to effectively manage digital-era risks.

The objective is to increase the frequency of usage of digital payments up to 2.5 times or an equivalent of 800 transactions per person per year.

Foreign exchange ecosystem

The volatility of the Thai Baht currency arises from external factors, primarily related to the economies of major countries together with internal factors such as economic and political uncertainty and foreign investments by Thai investors. Business owners have to be able to adapt to unpredictable currency fluctuations in order to shield their businesses from these risks. Simultaneously, the BOT is working to help business owners navigate the new FX ecosystem to ensure more efficient exchange rate transactions. The concept of the FX Ecosystem is a long-term strategy pursued by the Thai government to continuously adjust the structure of the foreign exchange rate system, benefiting both domestic entrepreneurs and foreign investors.

The FX Ecosystem aims to promote the use of local currency and provide more flexibility in regulations on funds transfer. This involves expanding the scope of permitted outward remittances and their maximum amounts.  for The requirement for case-by-case approval will be lifted for Thai companies wishing to provide funds to their foreign parent companies for notional pooling. Furthermore, the investment cap for foreign securities by individual investors, without intermediaries, will be increased from USD5 million to USD10 million.

From a foreign investors’ standpoint, this FX Ecosystem will help expand the scope of the Non-Resident Qualified Company (NRQC) programme to allow foreign companies engaged in cross-border payments to participate in the programme, in addition to foreign companies that are obligated to receive or make payment in THB from direct trade or investment in Thailand. The measure aims to facilitate transactions between foreign companies and Thai financial institutions. Furthermore, the FX Ecosystem enables foreign investors who invest in the Thai securities market to hedge against exchange rate risks with Thai financial institutions, without having to process through intermediary financial institutions abroad. These measures are designed to create a more robust FX ecosystem, supporting businesses in navigating the challenges posed by currency volatility.

Bill on the Supervision of Hire Purchase and Leasing of Automobiles and Motorcycles

Although the number of hire purchase and vehicle leasing businesses operated by non-banks in Thailand has steadily increased, there has never been clear supervision over such activities. Currently, there is no specific regulation governing the hire purchase and leasing of vehicles business - only provisions of general laws – ie, the Thai Civil and Commercial Code, which would apply to the hire purchase or leasing transaction in general, and Notification of the Contract Committee re: the Hire Purchase of Car and Motorcycle Business as a Contract-Controlled Business B.E. 2565 (2022), which specifies that the hire purchase business is a contract-controlled business and as such the hire purchase agreements are subject to certain requirements set forth thereunder. This notification applies only to Business-to-Consumer hire purchase businesses, not Business-to-Business businesses.

However, recently, the BOT and the Fiscal Policy Office have been preparing to incorporate a specific legal framework to oversee and regulate car and motorcycle leasing and hire purchase businesses through their introduction of a bill on supervision of the hire purchase and lease of automobiles and motorcycles (the “Bill”). When in force, the Bill will bring hire purchases by non-banks and leasing companies under the BOT’s supervision.

The key elements of the Bill are outlined below.

Regulate and close a loophole

Personal hire purchase of cars for personal use, personal hire purchase of cars for business use and hire purchase of cars by a legal person will be regulated. Moreover, business operators are required to disclose details regarding interest rates, service fees (the BOT is authorised to announce methods for calculating annual service fees for operators to follow), discounts etc, and also report the same to the BOT. Additionally, the BOT, under reasonable circumstances, may require business operators to comply with various matters, including interest rates, applicable service fees, deposit amounts, collateral assets, and potential penalty fees.

Inspection of business operators

The BOT has the authority to appoint its officials or external individuals as inspectors to examine the assets, liabilities, related individuals, and operations of business operators. Therefore, the inspector shall have the authority to request information related to the business operation, assets, and liabilities of the business operator and to examine premises and operation.

Business compliance and penalties

Business operators failing to adhere to compliance under the Royal Decree are subject to fines.

Currently, the Bill is still under the consideration of the Office of the Council of State. The BOT is in the process of preparing plans to support the implementation. This includes engaging in discussions with business operators and consumers to ensure that when the law comes into effect, the BOT will be able to properly supervise and oversee the businesses to protect consumers and maintain the overall financial stability of the vehicle hire purchase and leasing industry.

Chandler MHM Limited

17th and 36th Floors
Sathorn Square Office Tower
98 North Sathorn Road
Silom, Bangrak
Bangkok 10500
Thailand

+66 2009 5000

+66 2009 5080

cmhm_info@mhm-global.com www.chandlermhm.com
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Law and Practice

Authors



Chandler MHM Limited is a leading Thai law firm committed to achieving an international standard of practice for the company's international clients. The firm has a total of 100 lawyers and 80 non-legal professionals, with 20 of the firm’s lawyers, including six partners, in its banking and finance practice group. This group has advised on some of Thailand’s and neighbouring countries’ most complex and high-value financings. The practice has significant experience acting for both lenders and borrowers on a wide range of financing transactions, including major power, infrastructure, and real estate projects. It continues to focus on major cross-border transactions, supported by MHM’s offices across Asia, such as in China, Indonesia (ATD Law in association with Mori Hamada & Matsumoto), Japan, Myanmar, Singapore and Vietnam. The practice maintains long-standing relationships with all major commercial banks in Thailand as well as with well-known international financial institutions.

Trends and Development

Authors



Chandler MHM Limited is a leading Thai law firm committed to achieving an international standard of practice for the company’s international clients. The firm has a total of 100 lawyers and 80 non-legal professionals, with 20 of the firm’s lawyers, including six partners, in its banking and finance practice group. This group has advised on some of Thailand’s and neighbouring countries’ most complex and high-value financings. The practice has significant experience acting for both lenders and borrowers on a wide range of financing transactions, including major power, infrastructure, and real estate projects. It continues to focus on major cross-border transactions, supported by MHM’s offices across Asia, such as in China, Indonesia (ATD Law in association with Mori Hamada & Matsumoto), Japan, Myanmar, Singapore and Vietnam. The practice maintains long-standing relationships with all major commercial banks in Thailand as well as with well-known international financial institutions.

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