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Service of Process of Foreign Subpoena Within Thailand

Siam Global Associates Co., Ltd.

There are three major issues with regard to service of process in Thailand: (1) Is the service legal pursuant to the foreign laws and (2) Is the service legal pursuant to Thailand law? And is the service enforceable in Thailand? (3) What are the conflict of law issues?

Is the service legal pursuant to Foreign Law? There is a split in jurisdictions on this question. Some jurisdictions (including many US states) allow service by certified mail or by the execution of a return of service form prepared by the person serving the documents. Many US states require that the person serving the documents speak English. Other jurisdictions require that the service be pursuant to local (Thailand) laws.

Is the Service Legal Pursuant to Thai law? The relevant provision is Section 70 of the Civil Procedure Code:

All plaints, summonses and other writs, and all orders and decrees of the Court shall be served by an officer of the Court on the parties or any third person concerned; however (1) subpoenas for witnesses shall be served directly by the party on whose behalf the witnesses are summoned, unless the Court otherwise orders or the witnesses refuse to accept the subpoenas; in such case, the subpoenas shall be served by an officer of the Court. (2) any order or decree of the Court, including orders fixing the day of hearing or of taking evidence, as the case may be, or an order for adjournment, shall, if the parties or persons concerned are present in Court at the time when it is issued and have affixed their signatures in cognisance thereof, be deemed to have been served according to law. "In case of plaints, the plaintiff shall pay the fees for service, and he shall or shall not procure the service as he thinks fit, unless the Court shall order him to have the duty to procure the service thereof. In case of summonses, other writs, orders or decrees of the Court issued upon the application of any party, if the Court does not order him to procure service also, such party shall only pay the fees for service. In any other case, it shall be the duty of the Court to secure service on the party or person concerned."
Although this provision allows for service of a subpoena by the party directly, this refers to domestic subpoenas. Foreign subpoenas may qualify as "other orders." Therefore a foreign subpoena would have to be served by a Thai Court officer to comply with Thai law.

Having a subpoena sent through official channels, that is, by the Letters Rogatory Process, will result in the Thailand Ministry of Justice having the Thai Courts serve the subpoena through an official process server of the Thailand Court.

A validly served subpoena that was obtained through the Letters Rogatory process would be a document of record within the Thai Court system and provide evidence that it was validly served by Thailand Judiciary officers. Whether contempt of such a subpoena, by non-appearance or non-compliance, would be punishable pursuant to Thai law and in Thai Courts is an issue that has not yet been addressed by the Thailand Supreme Court.

Conflict of Law Issues: Assuming that the service of process in Thailand was contested in a US Court, the validity of the service of process would come into play. The Conflict of Law rules of the US and/or those of Thailand may be triggered. If the Conflict of Laws Act of Thailand was triggered, Section 9 of the Act states:

"Unless otherwise provided, the formal validity of a juristic act shall be governed by the laws of the country where the act is made."

As a result in may be possible to challenge in US Courts subpoenas that are not served by court officials in Thailand, because they would not be pursuant to Thai law. However, the phrase "unless otherwise provided" may be interpreted to mean that if the foreign service of process laws allows service by certified mail or personal service in foreign jurisdictions, then it may be permissible pursuant to the Thailand Conflict of Laws Act.