The Act

for the Establishment of and Procedure

B.E. 2539 (1996)

His Majesty King Bhumibol Adulyadej has been graciously pleased to proclaim that:

Whereas it is expedient to establish intellectual property and international trade court as well as the procedure for intellectual property and international trade cases,

BE IT THEREFORE ENACTED BY THE KING, by and with the advice and consent of the National Assembly, as follows:

Section 1. This Act shall be called, “The Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 ”.

Section 2. This Act shall come into force from the date following its publication in the Government Gazette.

Section 3. In this Act:

“Intellectual Property and International Trade Courts” means the Central Intellectual Property and International Trade Court and Regional Intellectual Property and International Trade Courts;

“Intellectual Property and International Trade Cases” means civil and criminal cases under the jurisdiction of the intellectual property and international trade courts.

Section 4. The Minister of Justice shall be in charge of this Act and shall be empowered to issue Ministerial Regulations under this Act.

Ministerial Regulations shall come into force after their publication in the Government Gazette.

Section 5. The Central Intellectual Property and International Trade Court shall be established. The date on which it shall be inaugurated shall be proclaimed by Royal Decree.

The Central Intellectual Property and International Trade Court shall have jurisdiction throughout Bangkok Metropolis; Samut Prakarn, Samut Sakorn, Nakorn Pathom, Nonthaburi and Pathum Thani Provinces. However, any intellectual property and

international trade cases arising outside the jurisdiction of the Central Intellectual Property and International Trade Court may be filed with the Central Intellectual Property and International Trade Court. It shall be the discretion of the Central Intellectual Property and International Trade Court to determine whether to reject such cases.

Section 6. The establishment of a regional intellectual property and international trade court shall be made by an Act which shall also specify its jurisdiction and location.

Section 7. The intellectual property and international trade courts shall have jurisdiction over the following matters:

1. Criminal cases regarding trade marks, copyrights and patents;
2. Criminal cases regarding offences under Sections 271-275 of the Criminal Code;
3. Civil cases regarding trade marks, copyrights, patents and cases arising from agreements on technology transfers or licensing agreements;
4. Civil cases in connection with offences under Sections 271-275 of the Criminal Code;
5. Civil cases regarding international sale, exchange of goods or financial instruments, international services, international carriage, insurance and other related juristic acts;
6. Civil cases regarding Letters of Credit issued in connection with transactions under (5), inward and outward remittance of funds, trust receipts, and provision of guarantees in connection therewith;
7. Civil cases regarding arrest of ships;
8. Civil cases regarding dumping and subsidization of goods or services from aboard;
9. Civil or criminal cases regarding disputes over layout-designs of integrated-circuits, scientific discoveries, trade names, geographical indications, trade secrets and plant varieties protection;
10. Civil or criminal cases that are prescribed to be under the jurisdiction of the intellectual property and international trade courts;
11. Civil cases regarding arbitration to settle disputes under (3)-(10).

Cases falling under the jurisdiction of juvenile and family court shall not be under the jurisdiction of intellectual property and international trade courts.

Section 8. Once an intellectual property and international trade court is inaugurated, no other courts of first instance shall accept a case that falls under the jurisdiction of the intellectual property and international trade courts for adjudication.

Section 9. Where there is a dispute as to jurisdiction, whether the dispute arises in the intellectual property and international trade court or in other courts of justice; the court shall stay the proceedings and submit the matter to the President of the Supreme Court for a ruling. Such ruling shall be final.

Section 10. Parties in a case which is pending in a regional intellectual property and international trade court may agree to file a petition with such court to transfer the case to the Central Intellectual Property and International Trade Court for adjudication, provided that such court shall not grant the request without prior consent of the Central Intellectual Property and International Trade Court.

Section 11. The intellectual property and international trade court shall be the courts of first instance under the Law Governing the Organization of Courts of Justice. The provisions of the Law Governing the Organization of Courts of Justice shall apply to the intellectual property and international trade courts mutatis mutandis.

Judges In The Intellectual Property

Section 12. The number of judges and associate judges in an intellectual property and international trade court shall be determined by the Minister of Justice.

Section 13. In the Central Intellectual Property and International Trade Court and each Regional Intellectual Property and International Trade Court, there shall be a Chief Justice, and Deputy Chief Justices in such number to be determined by the Minister of Justice.

Section 14. Judges of the intellectual property and international trade court shall be appointed by the King from the judicial officials under the Law on Judicial Service who possess competent knowledge of the matters relating to intellectual property or international trade.

Section 15. Associate judges shall be appointed by the King from intellectual property or international trade proficients selected by the Judicial Service Commission under the Law on Judicial Service, in the accordance with the rules and methods prescribed in the Ministerial Regulations. An associate judge shall possess the qualifications specified in (1) to (4), and shall have none of the prohibited characteristics specified in (5) to (9), as follows:

1. Being Thai nationality;
2. Being not less than thirty years of age;
3. Having been trained on the purposes of the intellectual property and international trade court and on judicial duties in accordance with the rules and methods prescribed in the Ministerial Regulations;
4. Having knowledge and expertise in intellectual property or international trade;
5. Having bad behaviour or lacking good morals;
6. Being insolvent;

7. Having been imprisoned by a final judgment, except for an offence committed by negligence or a petty offence;
8. Being incompetent, quasi-incompetent, mentally infirm, physically or mentally unfit for the position of associate judge or having contacted diseases as specified in the Ministerial Regulations;
9. Being a political official, a committee member or staff of any political party, a member of the National Assembly, an executive to the Bangkok Metropolitan or a member of the Bangkok Metropolitan Assembly, an executive to a local administration or a member of any local council, a public prosecutor, a police officer or an attorney.

Each associate judge shall hold office for term of five years, but may be reappointed by the King.

Prior to taking office, associate judges shall make a solemn declaration before the Chief Justice of the Central Intellectual Property and International Trade Court that they shall justly perform their duties and maintain all official secrets.

Section 16. An associate judge shall cease office upon:

1. Expiration of one's term;
2. Death;
3. Resignation;
4. Lacking qualifications or having any prohibited characteristics under Section 15;
5. Having been absent from one’s assigned duties for three consecutive times without justification;
6. Behaving improperly rendering oneself unfit to be associate judge.

The cessation of office by virtue of (2) or (3) shall be reported to the King. The cessation of office by virtue of (4), (5) or (6) must be approved by the Judicial Committee under the Law on Judicial Service and shall be tendered to the King for removal.

Section 17. Where a position of an associate judge is vacant by virtue of any grounds apart from the termination of one’s term under Section 16(1), the King shall appoint a person selected by the Judicial Committee to fill the vacancy. If the remaining term is less than one hundred and eighty days, a new associate judge may not be appointed. The replacing associate judge shall hold office for the remaining term of the associate judge whom he replaced.

Section 18. Where the replacing associate judge is not appointed or has been appointed but has not reported to work, the leaving associate judge whose term has expired shall continue to perform his duties and be empowered to adjudicate the cases that he has been hearing until such cases are disposed of, but shall not retain his office for more than sixty days after the expiration date of his term.

Section 19. Subject to the provisions of Sections 20 and 21, at least two judges and one associate shall be present to form a quorum for the adjudication. Judgment or order of the court shall require a majority vote.

Section 20. A judge in the intellectual property and international trade court shall be empowered to conduct any proceedings or issue any order, in addition to the adjudication.

Section 21. Where the intellectual property and international trade court deems appropriate, it may empower another court or its court officer to examine any evidence on its behalf. The examination of such evidence may be conducted in or outside the court.

In the case where evidence to be examined under paragraph one is the evidence of the prosecutor in a criminal case, the examination shall not be conducted in the absence of the accused. Furthermore, the accused shall be given full opportunity to cross-examine the witness or to oppose other evidence, save in the case where the evidence may be examined in the absence of the accused by virtue of Section 172 bis of the Criminal Procedural Code.

Section 22. The Chief Justice of the Central Intellectual Property and International Trade Court or the Chief Justice of a Regional Intellectual Property and International Trade Court, as the case may be, or the person acting on his behalf shall arrange a rota for the associate judges to perform their duties in court.

An associate judge who hears any case shall sit in that case until it is disposed of unless he is unable to perform his duties because of illness or other necessities. In such a case, the person empowered under paragraph one call on another associate judge to replace him.

An associate judge shall receive allowance, transportation and accommodation expenses and other remunerations as prescribed by the Royal Decree.

Section 23. The provision on the Challenge of Judges under the Civil Procedural Code shall apply mutatis mutandis to associate judges.

Section 24. An associate judge shall be a judicial officer under the Criminal Code.

Section 25. The provisions on Discipline and Disciplinary Actions of Judicial Officials under The Law on Judicial Service shall apply mutatis mutandis to associate judges.

CHAPTER 3

Section 26. Proceedings in the intellectual property and international trade courts shall be in accordance with the provisions of this Act and the Rules and procedural issued under Section 30. Where there are no provisions and Rules on the issue, laws the provisions of the Civil Procedural Code, the Criminal Procedure Code or the Act for the Establishment of Kwaeng Court and its Criminal Procedure Code shall apply mutatis mutandis.

Section 27. The intellectual property and international trade court shall proceed with the hearing without adjournment until the hearing is over, save in the case of unavoidable necessities. After the hearing is over, the court shall promptly render a judgment or order.

Section 28. Where a person apprehends that the evidence on which he may have to rely in the future will be lost or become difficult to produce, or where a party to a case apprehends that the evidence on which he intends to rely will be lost before he can adduce it in Court or become difficult to adduce at a later stage, such person or party may apply to the Court by petition or motion for an order directing such evidence to be taken at once.

Upon receipt of such application the Court shall summon the applicant and the opposing party or third person concerned, and after having heard them, shall decide on the application as it thinks fit. If the application is granted, the evidence shall be examined as prescribed by law. The memorandum and other documents relating thereto shall be kept by the Court.

Section 29. In case of an emergency, when an application is filed under Section 28, the applicant may simultaneously file a motion to the effect that the court may issue an order or a warrant without delay. Where necessary, the applicant may also request the court to seize or attach the documents or materials that will be adduced as evidence upon any conditions as the Court may think fit.

The provisions of sections 261 to 263 and sections 267 to 269 of the Civil Procedural Code shall apply mutatis mutandis to the cases referred to in paragraph one.

Section 30. For the purpose to ensure convenience, expediency and fairness of the proceedings, the Chief Justice of the Central Intellectual Property and International Trade Court shall be empowered, subject to the approval of the President of the Supreme Court, to issue Rules of the Court on proceedings and hearing of evidence in the intellectual property and international trade cases such provision shall not impair the right of defence of an accused in a criminal case.

Such Rules shall come into force after their publication in the Government Gazette.

Section 31. The intellectual property and international trade court may call any knowledgeable persons or experts to appear and give opinions for its consideration. The court shall notify all parties of such calling and shall not debar the parties from requesting the court to call their knowledgeable persons or experts to give opinions on their behalf in order to give contradictory or additional opinion to the opinions of such knowledgeable persons or experts.

Section 32. The knowledgeable persons or experts whom the intellectual property and international trade court has called to appear and give opinions shall be entitled to allowance, transportation and accommodation expenses in accordance with the Regulations prescribed by the Ministry of Justice.

Section 33. In a civil case, a party may appoint any person who domiciles in the jurisdiction of the intellectual property and international trade court to receive pleadings or documents on its behalf, by submitting a Request to the competent court. After the approval of the court, such pleadings or documents may be served on the appointed person.

If any party has no domicile or place of business in the jurisdiction of the intellectual property and international trade court before which the case is pending, the court may, for the sake of convenience, order that party to appoint a person who domiciles in its jurisdiction to receive pleadings or documents on that party’s behalf within the prescribed period.

If the concerned party fails to comply with the court order issued under paragraph two, service of pleadings and documents may be conducted by posting the same at the court before which the case is pending or by notifying the parties concerned to collect the same from the court in lieu of service by other means. Pleadings or documents served by such means shall be effective after fifteen days have elapsed from the posting date.

Service of pleadings or documents to the appointed person may be conducted in the same manner as service to the parties or conducted by such other means provided in the Civil Procedural Code. Service of pleadings or documents to the person appointed as aforesaid shall be effective after seven days have elapsed after the posting date or fifteen days have elapsed after the date of service by other means.

Section 34. In a civil case, when the intellectual property and international trade court has notified a party of the hearing date and such party does not appear in court on the scheduled date, it shall be the duty of such party to inquire the court about the next hearing date. Otherwise, that party shall be deemed to have noted the same.

Section 35. In a criminal charge where a single act violates several offences and one of offences falls within the jurisdiction of the intellectual property and international trade court, the court shall also accept other offences for adjudication.

Section 36. In a criminal case where several related offences are filed in the same charge, and some of the offences are not within the jurisdiction of the intellectual property and international trade court, the court may accept all offences for adjudication or reject any one or more of the offences which falls outside its jurisdiction so that the prosecutor may file a new charge with the competent court. In reaching its decision, the court shall regard convenience and fairness as its prime consideration.

Section 37. The intellectual property and international trade court may, where necessary and in the interest of justice, shorten or extend the period of time prescribed in this Act or fixed by it, when it thinks fit or upon application of any party concerned.

APPEAL

Section 38. Subject to the provisions of this Act, the Civil Procedural Code or the Criminal Procedural Code, an appeal against any judgment or order of the intellectual property and international trade court shall be submitted to the Supreme Court within one month from the date of its pronouncement.

Section 39. In a criminal case where the maximum penalty prescribed by law does not exceed there years imprisonment or sixty thousand bath fine or both, no appeal shall lie against any judgment of the intellectual property and international trade court in question of fact, except in the following cases where the accused may appeal against the judgment even with respect to the question of fact:

1. The accused is sentenced to imprisonment or is detained in lieu of imprisonment;
2. The accused is sentenced to imprisonment, but the imprisonment is suspended;
3. The court convicts the accused, but suspend the sentence;
4. The accused is fined for more than five thousand baht.

Section 40. In a case where appeal is not allowed under Section 39, if a judge who sat in the case or affixed his signature in the judgment or gave a dissenting opinion, certifies that there is reason to appeal or in a case where the prosecutor exercises the right to appeal, and the Attorney General or the prosecutor delegated by the Attorney General certifies in the appeal that there is reason to appeal, that appeal shall be accepted.

Section 41. In a civil case where the value of the asset or the amount in dispute on appeal does not exceed two hundred thousand bath or does not exceed the amount prescribed in the Royal Decree, no party shall appeal against a judgment of an intellectual property and international trade court with respect to the question of fact unless the judge who sat in the case has made a dissenting opinion or has certified that there is reason to

appeal. In the absence of such dissenting opinion or certification, there may be written approval of the Chief Justice of a regional intellectual property and international trade court as the case may be.

Section 42. In requesting a judge who sat in the case to certify that there is reason to appeal or in requesting the permission of the Chief Justice of the Central Intellectual Property and International Trade Court or the Chief Justice of a regional intellectual property and international trade court, the appellant shall file a Motion with any of the judges who sat in the case or the Chief Justice, as the case may be, together with the appeal to the intellectual property and international trade court. After receipt of the Motion, the court shall forward the Motion and the dossier of the case to the judge or the Chief Justice concerned.

Section 43. The President of the Supreme Court shall set up an Intellectual Property and International Trade Section in the Supreme Court for the adjudication of intellectual property and international trade cases that may be appealed to the Supreme Court. In this regard, a judgment or an order shall be given promptly.

Section 44. In the case where the intellectual property and international trade court has accepted an appeal for submission to the Supreme Court, and the Supreme Court holds that such appeal is prohibited by law, the Supreme Court shall dismiss the appeal. On the other hand, if the Supreme Court deems it appropriate, for reason of fairness, to rectify the same, the Supreme Court may accept and consider the appeal that is prohibited by law.

Section 45. The provisions of this Act and of the Civil Procedural Code or the Criminal Procedural Code governing the proceedings of cases in the Court of Appeal and the Supreme Court shall apply mutatis mutandis to the proceedings of intellectual property and international trade cases in the Supreme Court.

Section 46. Cases within the jurisdiction of the intellectual property and international trade court which are pending in a court of first instance on the inauguration date of the intellectual property and international trade court to be established in accordance with Section 5, shall be determined and disposed of by the said court of first instance and shall not be deemed intellectual property and international trade cases under this Act. However, if all parties agree, within 180 days from the inauguration date of the Central Intellectual Property and International Trade Court, to request that their case be transferred to the intellectual property and international trade court that has jurisdiction over the case, such court shall accept the case for adjudication.

Section 47. During the period when a regional intellectual property and international court has not been opened, the Central Intellectual Property and International Trade Court shall have jurisdiction in the locality. In a civil case, the plaintiff may file a plaint with the provincial court where the defendant is domiciled or with the provincial court where the cause of action occurred. In a criminal case, the prosecutor may file a charge with the provincial court where the offence was committed or was alleged, believed to be committed, or where the accused is domiciled or arrested or where the inquiry official has interrogated the accused. The provincial court shall then notify the Central Intellectual Property and International Trade Court of the matter. After the Central Intellectual Property and International Trade Court has accepted the case for adjudication it may conduct the preliminary examination, the hearing and give judgment at the relevant provincial court or at the Central Intellectual Property and International Trade Court, as it may think fit.

Where necessary, the Central Intellectual Property and International Trade Court may request the provincial court where the plaintiff or the prosecutor has filed the plaint or the charge or any other provincial court to conduct any proceedings which does not amount to giving a ruling on the issue in dispute. In this event, the provincial court shall apply the procedure of intellectual property and international trade cases under Chapter 3 to the proceedings in such case.

The provincial court where the prosecution has been instituted or such other provincial court as is referred to in paragraph two shall be empowered to issue a warrant of detention or grant provisional release of the alleged offender or the accused.

Countersigned

Banharn Silapa-acha

Prime Minister