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Immunity from Attachment and Execution of the Property of Foreign States: Thai Practice*

Published online by Cambridge University Press:  07 July 2009

Sompong Sucharitkul
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Extract

The situation in Thailand with regard to the subject under review is a matter of particular interest in many respects, and as such deserves close attention. To determine the extent to which a foreign state may claim that its property is immune from attachment or execution pursuant to a judicial order or ruling made by a court of law in Thailand, requires an examination of the relevant law and practice prevailing in that country on two basic questions, namely, sovereign immunity or exemption of foreign states from territorial jurisdiction and from execution in respect of their property, and the capacity of foreign states to sue and be sued before a Thai court.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 10 , December 1979 , pp. 143 - 151
Copyright
Copyright © T.M.C. Asser Press 1979

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References

1. See s. 68 which stipulates that juridical persons can come into existence only by virtue of the provisions of the Civil and Commercial Code of Thailand or of other Acts, such as the Act for the Administration of the Kingdom, B.E. 2495, the Act for the Administration of the Provinces B.E. 2498, and the Act for the Administration of the Municipalities B E. 2496.

2. S. 72 of the Civil and Commercial Code recognizes the following categories of juridical persons: (1) bodies politic, (2) monasteries and temples, (3) registered partnerships, (4) limited companies, (5) associations, and (6) authorized foundations. The State and the Government as such are not included under the provisions of this Code or any other Act.

3. See ss. 68 and 72 of the Civil and Commercial Code and n. 1 supra.

4. Supreme Court Decisions, No. 724/2490.

5. Supreme Court Decisions, No. 1525/2495, 17 December 1952, Supreme Court Report, (1952), 2495, Vol. IV pp. 1147–1152.

6. Supreme Court Decisions, Nos. 984–990/2496, 10 September 1953, Supreme Court Report, (1953) 2496, Vol. III pp. 1098–1104.

7. See, for instance, the Conciliation Commission of 1947, and the Temple of Preah Vihear case before the International Court of Justice, ICJ Reports 1962, p. 6.

8. See, for instance, the case involving a motor car accident, Mr. Vichai Ittikamchorn (1961), where immunity was established and waived by the Secretary-General of the United Nations; Mr. Sunant Virakierti (1968) house theft, suspension of employment pending investigation; and a number of car accident cases involving Mr. Serevirantri (1970) and Mr. Kasem Yongyingsakdi (1972).

9. Thailand, or Siam as it has been interchangeably known, has exchanged diplomatic missions and embassies with European countries on the basis of strict reciprocity and equality in accordance with the traditions of customary international law since the turn of the seventeenth century. The Thai Government has signed, and is about to ratify, the Vienna Convention on Diplomatic Relations, 1961.

For judicial cognizance of the legal status and capacity of the Japanese Imperial Navy, as well as the rights and obligations of the Allied Occupation Authorities who were invited to enter Thailand to accept the surrender of Japanese Forces in that country at the close of World War II, see an interesting decision of the Supreme Dika Court, Phya See Wikramatit v. Ministry of Commerce, Case No. 793/2498, Report of Supreme Court Decisions (1955) Vol. II p. 642, also reported in ILR 1955 pp. 1001–1006. The case indirectly involved the question of the legal capacity of the Japanese Naval Forces to sublet property and to build warehouses thereon in Thailand, and subsequently the capacity of the British Forces to administer the warehouses.

10. See Report of the International Law Commission, on the work of its thirtieth session, GAOR, 33rd Session, Supplement No. 10 (A/33/10) pp. 379–388.

11. See Art. III, para. I, of the Brussels Convention 1926, Cf., Hudson, , International Legislation, Vol. III, No. 154 pp. 1837-1845, at p. 1840.Google Scholar

12. UN Doc. A/CONF. 13/L 52; 516 UNTS p. 205.

13. Art. 20, para. (2):“ The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course of or for the purpose of its voyage through the waters of the coastal State.”

14. Art. 20, para. (3): “The provisions of the previous paragraph are without prejudice to the right of the coastal State in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.”

15. Art. 21: “The rules contained in sub-sections A and B shall also apply to government ships operated for commercial purposes.”

16. UN Doc. A/CONF.13/L 53 and Corr. 1; 450 UNTS p. 11.

17. 500 UNTS p. 95.

18. 596 UNTS p. 261.

19. Annex to General Assembly Resolution 2530 (XXIV) of 8 December 1969.

20. Official Records of the UN Conference on the Representation of States in Their Relations with International Organizations, Vol. II, UN Publications, Sales No. E 25, V. 12 p. 207.

21. See, for instance, an agreement between Banque Française du Commerce Extérieur and the Kingdom of Thailand signed on 23 March 1978 in Paris by the authorized representative of the Minister of Finance of Thailand. Art. III, para. 3.04 provides: “For the purpose of jurisdiction and execution or enforcement of any judgment or award, the Guarantor certifies that he waives and renounces hereby any right to assert before an arbitration tribunal or court of law or any other authority any defence or exception based on his sovereign immunity.”