Thai & Cross-Border Contract Drafting

Bilingual drafting is a legal decision, not a courtesy

A Thai court conducts proceedings in Thai. If a contract exists only in English, the court will work from a translation produced during the litigation, and the party who did not commission that translation will contest it. Drafting bilingually at the outset means the Thai text that will one day be read by a judge is the text both parties negotiated, rather than a rendering made under adversarial conditions three years later.

The controlling-language clause is where most bilingual contracts go wrong. Saying the English version prevails does not stop the court reading the Thai; it merely creates an argument about which text expresses the common intention. Under the Civil and Commercial Code approach to interpretation, a court seeks the true intention of the parties rather than a literal reading, which means an inconsistent pair of texts invites the court to construct the bargain for you.

Our practice is to draft the operative provisions in parallel with a single drafter responsible for both texts, run a defined-terms table across the two languages, and lock the numbers, dates and party names so they are identical in both. Where a term has no Thai equivalent — indemnity and consequential loss are the classic examples — we define it functionally in Thai instead of transliterating it.

Clauses that decide the outcome when the relationship fails

• Governing law and jurisdiction, drafted consistently: a Thai-law contract with an exclusive foreign jurisdiction clause and Thai-situs assets is an expensive combination.
• Dispute resolution: Thai courts, or arbitration under the Arbitration Act B.E. 2545 (2002) through the Thai Arbitration Institute, THAC, SIAC or ICC. Thailand is a party to the New York Convention, so a foreign award is enforceable subject to the Act's grounds for refusal.
• Termination triggers with cure periods expressed in business days, and a definition of business day that names the calendar used.
• Liquidated damages, which a Thai court may reduce under the Civil and Commercial Code if the stipulated sum is disproportionately high — so we set defensible figures with a rationale recorded.
• Limitation and exclusion of liability, drafted knowing that exclusions for wilful default or gross negligence will not be upheld.
• Force majeure defined by event and by consequence, not by a list copied from an unrelated industry.
• Confidentiality and personal-data clauses aligned to the Personal Data Protection Act B.E. 2562 (2019), including a lawful basis and a processor obligation where data is handled on the other party's behalf.
• Intellectual-property assignment executed in writing, because an assignment of registered rights must be recorded to be effective against third parties.
• Execution formalities: authorised signatories per the company affidavit, company seal where the affidavit requires it, and stamp duty affixed where the Revenue Code schedule applies.

Our drafting workflow

1. Commercial intake: We take the deal in the client's words first and reduce it to a one-page term sheet. Drafting from a term sheet the client has approved eliminates most of the redraft cycles.
2. Counterparty verification: We pull the DBD company affidavit to confirm registered objectives, capital, directors and signing authority. Contracts signed by a person outside the affidavit's signing rule are a recurring enforcement problem.
3. First bilingual draft: English and Thai produced together, with a defined-terms table and a schedule of commercial variables so the business team can check figures without reading the legal text.
4. Risk annotation: We deliver the draft with margin notes explaining which clauses are negotiable, which protect against a specific Thai-law risk, and what the fallback position is.
5. Negotiation support: We mark up counterparty redlines in both languages and keep a change log, so the final execution version can be traced clause by clause.
6. Execution and stamping: We supervise signing, initialling of every page and annex, stamp duty where applicable, and where the counterparty is abroad, notarisation by a Notarial Services Attorney and onward legalisation.

Stamp duty and formality, the quiet risks

Certain instruments listed in the Stamp Duty schedule of the Revenue Code must be duly stamped. An unstamped instrument in a category requiring stamping cannot be used as evidence in a civil case until the duty and any surcharge are paid, which in practice means a party discovers the problem on the morning of a hearing. We identify stampable instruments at the drafting stage and record the duty paid on the file.

Some contracts also require registration to bind third parties: leases exceeding three years must be registered at the Land Office, and certain security interests have their own registration regimes. Registration is not a formality that can be deferred — an unregistered long lease is enforceable only for three years, and clients who discover this after buying a thirty-year leasehold have very few options.

Common mistakes and how we avoid them

More questions we are asked

Which language should prevail?

We usually recommend Thai prevails where the contract will be performed and enforced in Thailand, with a carefully drafted translation warranty. The right answer depends on where enforcement is realistically going to happen.

Is an electronically signed contract valid in Thailand?

The Electronic Transactions Act B.E. 2544 (2001) gives legal effect to electronic signatures, subject to reliability requirements and to instruments that law requires in a particular form or that must be registered.

Can we choose foreign law?

Parties can generally choose a governing law for a commercial contract, but mandatory Thai rules and public order still apply, and a foreign law must be proved as fact before a Thai court.

Do you review contracts drafted by the other side?

Yes. We review, mark up in both languages and give a written risk memo identifying which points to fight and which to trade.

How long does drafting take?

A standard NDA or employment agreement is usually turned around in a few working days; a shareholders' agreement or a purchase agreement with schedules takes materially longer and depends on negotiation cycles.