The new rules are intended to improve the efficiency and fairness of court proceedings.
The Central Intellectual Property and International Trade Court (the “IP&IT Court” or the “Court”) recently announced the imminent implementation of a new version of the Intellectual Property and International Trade Cases Rules BE 2566 (the “Rules”). The IP&IT Court expects to hold another final meeting to discuss the rules and subsequently publish them in the Royal Gazette for them to come into force in the coming months. The rules will replace rules written around 1997. The new rules aim to improve the efficiency and fairness of court proceedings and streamline procedures to make better use of technology.
Although several revisions have been made, the main changes are as follows:
Major revisions
- The IP&IT Court may request the continuation of the case based on the agreement reached by the parties or in a manner deemed appropriate by the court.
Under this new rule, the court has the flexibility to conduct court proceedings in a manner that the parties wish and/or the court deems appropriate, as long as the proceedings are not opposed by any party and are not contrary to morality and public policy.
Previous rules provided that parties had the right to file a petition asking the court to hold a trial based on their agreement, but did not authorize the court to propose alternative methods of trial. The implementation of this new rule enables the court to advance cases in a more convenient and faster way.
- Disclosure of evidence before trial
According to the new rules, the court has the power to require the parties to disclose evidence on the preliminary hearing date to resolve issues, or to disclose evidence before the witness hearing date, and the court gives the parties at least 15 days’ advance notice.
As required by the court, each party must disclose all evidence in its possession to the court and allow the other party to verify and review the evidence.
The new rule is expected to help courts rule on certain issues without hearing witness testimony. The court will be expected, where appropriate, to consider and resolve certain matters on the basis of evidence already presented, potentially avoiding the need to hear further witnesses and saving court time. If witness testimony is required on the remaining issues in issue, a witness hearing will be held specifically for those issues in issue.
This means that the court will not be able to consider any evidence that is not disclosed within the discovery date unless the court deems it necessary.
If both parties fail to appear on the discovery date, the lawsuit will be dismissed. If one party is absent on the day of discovery, the court will further hear the case on the assumption that the absent party accepts the facts stated in the evidence of the other party.
This approach is intended to shorten and simplify proceedings, allowing the courts to focus on important matters requiring witness testimony.
- Court documents can be sent via email
The rule authorizes courts to email plaintiffs’ pleadings, defendants’ answers, and other relevant court documents instead of sending them by post or by the clerk of court.
If the plaintiff can prove that the defendant’s physical address is unknown, the court has the authority to require that the plaintiff’s complaint and summons be sent to the defendant at the defendant’s email address. The email address shall be an email address used by the defendant in connection with its business operations or for communications with the other party regarding the dispute.
Complaints and summonses sent via email are deemed to be valid within 15 days of receipt if the defendant resides in Thailand; if the defendant resides outside Thailand, they are deemed to be valid within 30 days of receipt.
- Amendments related to litigation before the IP&IT Court regarding the Trademark Board’s decision
Among the civil trademark cases heard by the IP&IT Court, litigation against Trademark Board resolutions accounts for a large proportion. The rules clearly provide that to challenge the decision of the Trademark Board; the plaintiff can file a lawsuit against the competent government agency, namely the Ministry of Intellectual Property. It is not necessary to name every member of the Trademark Board as a defendant.
In addition, for such cases challenging Trademark Board decisions, according to the rules, the court has the power to require the parties to provide witness testimony only by way of written affidavits and supporting evidence, and does not have to provide witness testimony in person. Therefore, in these cases, the court will make decisions based solely on the affidavits and evidence exchanged by the parties, without cross-examination of witnesses.
While this is consistent with current practice in most cases challenging Trademark Board resolutions, the question also arises as to whether courts are still willing to allow in-person witness testimony where appropriate or at the request of the parties, for example, in objections to Board rejections and revocations The requirements of the decision are challenged rather than an ordinary indiscriminate resolution.
Cross-examination is a core part of due process. Cross-examination of the other side’s witnesses plays an important role in the above cases as some factual issues require cross-examination. We hope that the courts will accept requests for in-person witness testimony in more complex cases such as these.
- Accept foreign language documents
Strictly speaking, in the current situation, most foreign language documents must be translated into Thai. However, the court has the power to allow the submission of English documents without a Thai translation if the parties agree, the documents in question do not address key issues and are in English.
The new rules make it clear that if a document submitted to the IP&IT Court is in another foreign language (not just English), and the parties agree that a Thai translation of the entire document or certain parts of it does not need to be provided, the court may, at its discretion, allow the document to be submitted in a foreign language without the need for Thai translation Translation or only partial Thai translation. This permission is subject to court evaluation to determine that the untranslated portion is not material to the case. Essentially, the new rules extend the non-translation rule to documents in foreign languages in addition to English documents.
Furthermore, the court has the power to consider other international regulations, treaties or norms in foreign languages and does not have to rely solely on Thai translations submitted by the parties. This allows the court to examine the source of the document directly rather than relying on a submitted translation.
The new rules also allow the IP&IT Court to consider international treaties to which Thailand is a party, regardless of whether the parties submit a Thai translation. However, while the rules clearly state that a Thai translation is not required, the wording is not clear enough. In contrast, the new rules are broad enough that the Court may consider them even if no treaty has been submitted by either party, to ensure consistency with international principles and practice.
- Record of witness testimony during witness hearing
IP&IT courts may record all or part of the audio and/or video of a witness’s testimony in person, rather than just recording the important information that the court summarizes from the testimony. This recording is novel under Thai practice, as the current court practice is not to record the actual witness testimony, but rather to record the chief judge’s summary of the witness testimony. The chief judge must summarize all matters in his own words and the court clerk must write such relevant summaries in the proceedings report, so this situation is outdated and time-consuming. The implementation of the new approach brings Thailand into harmonization with other similar jurisdictions.
Under the new rules, parties or witnesses will have the right to verify the accuracy of witness testimony under the supervision of the court and the court clerk, but these groups will not be able to record, copy or publish files containing such witness testimony without the permission of the court.
- Hearings can be held online
If the court deems it appropriate or at the request of the parties, the court may allow the parties to conduct witness hearings through online methods such as Google Meet, Cisco Webex, and Zoom. Online hearings in civil cases can be used by all parties at any stage of the proceedings.
However, in criminal cases, online hearings can only be held with the consent of all defendants in the case. Except for the defendant’s plea hearing and sentencing hearing in criminal cases, they cannot be conducted online.
Overall, the new rules simplify court procedures, shorten time for all parties, reduce costs, and provide clearer regulations and more freedom for IP&IT courts to manage litigation. Although the Court will hold one more review session to discuss the Rules before they are published in the Royal Gazette and come into effect, the essence of the Rules, which is to streamline procedures and provide greater convenience to parties, is likely to remain unchanged . Since the IP&IT courts hear a large number of cases, it will be interesting to see whether the rules will help the courts dispose of cases more efficiently and quickly.
For further information, please contact:
Peeraya Thammasujarit, Rouse
pthammasujarit@rouse.com
