Analysing the Thai trusts for Capital Market Transactions Act 2007: two different approaches to understanding the curious case of trusts in Thai law

Boot, Nadtara (2019) Analysing the Thai trusts for Capital Market Transactions Act 2007: two different approaches to understanding the curious case of trusts in Thai law. Doctoral thesis, Birkbeck, University of London.

Abstract

As the Thai legal system is based on the civil law model, trusts created in Thai law were “void” under the Civil and Commercial Code prior to the enactment of the Trusts for Capital Market Transactions Act 2007 (TCMT). The TCMT amended those provisions to allow trusts in Thai law for the first time. Its scope was limited to creating trusts as legal mechanisms for investment. However, no trusts were established under its provisions for almost a decade after its’ enactment. Only after 6 years, a limited number was established under the legislation, only for the purpose of real estate investment. The main research question for this study is whether existing laws or practices were preferred to creating trusts under the TCMT. Answers were sought for why it took 6 years for the first trust to be established. The initial hypothesis was that trusts, as an instrument of common law origin, may be incompatible with the Thai civil law-oriented legal system, and therefore that there was a reluctance to move away from existing practices. Based on this hypothesis, the first approach taken was to use the theory of legal transplants to analyse the TCMT. This was done in accordance with the ‘official’ representation of the TCMT to introduce trusts into Thai law. When applied, it was found that trusts did exist outside of the legislation, as evidenced in Thai High Court judgments and in the form of informal practices and arrangements which gave effect to trust-like ownership structures. The study then adapted the method of research to try and understand this contradiction between the initial lack of trusts under the TCMT and the existence of trust-like mechanisms outside the legislation. An analysis was made of secondary sources of data and semi-structured interviews were conducted to both understand and paint a picture of the “mentality towards trusts in Thai law” of the judiciary, legal academics and stakeholders. In doing so, it was found that no trusts had been established under the act because of a preference for other, existing legal practices, and those directly involved with the use of trusts have a certain “Thai mentality towards trusts and trust-like mechanisms”. Even though trusts were eventually established in limited numbers under the TCMT, the findings of this research still remain relevant in understanding why there was an initial reluctance in establishing trusts. In looking into the Thai mentality, it provides an insight into an informal system of relationships based formed by culture and religion that cannot be found from a literal reading of academic text. In analysing the TCMT as a legal transplant, the research contributes to the comparative law study of legal transplants in the use of cultural analysis of the conditions of transplants. In conducting a comparative analysis of trust-like laws in the Thai legal system, this research constitutes an unprecedented attempt to consolidate Thai laws and cases on the subject of trusts in Thai law. It is hoped that this research will provide a comparative perspective on well-known accounts of Thai legal practice to depict existing similarities between Thai law and English trusts. On a broader scale, it is hoped that the knowledge gathered from this research will provide an insight into Thai values and perspectives, which is to be taken into account for future law drafting, especially in light of the trusts for private transactions Bill that came to be proposed by the Thai Financial Policy Office in 2018.

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