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A summary of the academic discussion on “The legal measures to facilitate foreign Arbitrators’ entrance in the Kingdom of Thailand to perform their duties”
1. Smart Visa
The Board of Investment of Thailand (BOI) announcement
Arbitration is one of the industries that can benefit from the provisions concerning the Smart Visa T. This visa can be issued under different conditions, i.e. no minimum salary required; a related contract with no time limit requirements; a different type of industries with a certification of the expert’s skills from an Alternative Dispute Resolution Center requested in the country.
Procedures
Applicants have to apply with the supporting documents online. If the applicant is not contacted by the officer because the application is not complete or additional documents are required, the application will be processed in approximately 30 days.
After receiving the online application, the Board of Investment (BOI) will contact the relevant departments (Department of Employment, Alternative Dispute Resolution Center, Office of Immigration) for consideration. If the application is approved by all the departments, the Smart Visa will be issued.
In case of a positive outcome, the BOI will contact both the applicant and the competent authority, i.e. the Immigration Bureau for domestic application or Thai Embassy for foreign application, to issue the visa. Following the issuance of the visa, the applicant, after confirming his/her identity, can collect the visa from the competent office. Every year, the immigrant has to report to both the BOI and the Immigration Bureau to declare his/her status. According to the statistics, out of approximately 150 Smart Visa applications, 89 were successful.
Requirements for being qualified as a high skilled expert
Board of Investment Announcement n. 12/2561 has the authority to and specifies the requirements for being qualified as a highly-skilled arbitrator for the Smart Visa application process. Entitled to such qualification are the arbitrators, the counsels and all the other experts involved in the arbitration proceedings, i.e. translator.
Documents necessary for the Smart Visa application
Beyond the application form, other 5-6 documents are required for the Smart Visa application. These documents are the following: a medical certificate issued by a Thai hospital or clinic; a certificate from an Alternative Dispute Resolution Center; the contract to appoint the applicant as arbitrator, counsel or expert in the arbitration proceedings; documents proving the relevant working-experience and education qualifications.
However, the appointment contract could be replaced by a certificate issued by an Alternative Dispute Resolution Center. This certificate shall include the duration of the arbitration, the compensation for the applicant, etc.
Note: Smart Visa T has never been used before for ADR industries. Therefore, it is necessary to wait until the first application of such kind is filed to study the case and the criteria.
Ministry of Foreign Affairs, Department of Consular Affairs
After the receipt of the BOI approval, it takes approximately 3-5 days to process the application. Thai embassy or consulate will apply for the visa on the applicant passport. However, the Ministry of Foreign Affair is working to simplify the whole process.
Immigration Bureau
In the application process, the Immigration Bureau is involved in two stages.
- (1) After the receipt of the BOI approval, the Immigration Bureau has to confirm the visa for the period indicated by the BOI. Applicants have to fill 3 forms to obtain the confirmation by the Immigration Bureau: Form Tormor 90 (specific for Smart Visa) to request the confirmation; Form Sortorngor 6, to acknowledge the condition to stay in the Kingdom of Thailand; Form Tormor 91 to notify to the Immigration Bureau the applicant’s address in Thailand. Contrary to the other types of visa that request to report the status every 90 days, the Smart Visa allows doing so once every year.
- (2) The period stated on the Smart Visa can be extended if the conditions for the extension are satisfied. The issuance of the Smart Visa extension is subject to the BOI approval.
Smart Visa holders can enter the Kingdom of Thailand using the priority lane at the airport, where this is available. Holders are allowed to stay in the Kingdom of Thailand for the period stated on the Smart Visa.
Ministry of Labor, Department of Employment
Smart Visa holders are exempted from applying for the work permit to the Ministry of Labor. They are entitled to work in Thailand for the period specified in their Smart Visa.
Other benefits for Smart Visa holders are that their spouse and children are entitled to stay in Thailand without applying for other visas. Moreover, the spouse and the children above the age of 18 are entitled to work in Thailand without applying for the work permit.
Smart Visa Benefits
Summarizing, Smart Visa holders can work in Thailand without applying for a work permit. Moreover, their spouse and children are entitled to stay in Thailand for the same duration and under the same condition of the Smart Visa. Spouse and children above 18 are allowed to work without applying for the work permit.
Smart Visa holders can report their status every year instead of every 90 days.
During its validity, Smart Visa grants holders an unlimited entry (re-entry permit) in the Kingdom of Thailand. Moreover, it allows using the priority lane (when it is available) at the airports.
2. Work permit under Section 59
The Emergency Decree on Management of Foreign Workers B.E. 2560 (2017) allowed foreign workers to work only in the field specified in their work permit, any changes of career request the worker to apply for a new work permit. The Decree of 2017 was amended in 2018, in particular, the new Section 59, last paragraph, allows workers to change job without applying for a new work permit. This provision is limited only for jobs that are not listed as “prohibited work for foreigner” in the Decree.
The arbitrator is not listed as a prohibited work for foreigners, therefore once the foreigner has obtained the work permit under Section 59 of the Emergency Decree on the management of Foreign Workers 2017, he/she does not need to apply for a new work permit according to Section 62 of the mentioned Decree. The work permit for arbitrators lasts for the duration stated in the permit and any case no longer than 2 years.
Procedures
The application process for the work permit under Section 59 requires applicants to prepare more documents compared to that for the work permit under Section 62.
- (1) A certificate from an Alternative Dispute Resolution Center in Thailand stating all the details of the arbitration cases. Documents related to that case, i.e. letter of appointment as an arbitrator, name of the parties, identity documents of the parties and arbitrator, case number, expected conclusion of the proceedings.
Note: The certificate from an Alternative Dispute Resolution Center allows to waive the medical certificate.
- (2) If it is not possible to provide the certificate from an Alternative Dispute Resolution Center in Thailand, the applicant has to submit: the letter of appointment as an arbitrator, name of the parties, identity documents of the parties and arbitrator, expected conclusion of the proceedings, copy or the Visa non-immigrant B, a medical certificate issued by a Thai hospital or clinic.
Duration of the application process
After the submission of the application, it will take approximately 2 working days to process the request.
Benefits
Possibility to work in all the categories not mentioned in the list of prohibited work for foreigners. No limitation concerning the type of work will appear on the work permit.
Suitable for long-term visiting workers and for applicants who intend to do occupations other than arbitration.
Restriction
The application process could take longer.
3. Work permit under Section 62
The arbitration work permit is regulated by Section 62 of the Emergency Decree on Management of Foreign Workers B.E. 2560 (2017). This section provides different conditions compared to the ordinary work permit under Section 59 of the same Decree. One difference is that the work permit could be longer than the 2 years granted by the ordinary work permit, its length depends on the certificate provided by the Alternative Dispute Resolution Center. Another difference is that the Department of Employment has no discretion on the length of the permit as for the ordinary work permit but it has to follow the length indicated in the said certificate. The Department of Employment reserves discretion only regarding the type of work.
Applications submitted to the service centre at Chamchuri Square take approximately 3 hours from the time of the submission. Applications submitted to the provincial employment office usually take longer, approximately 1-2 working days.
Another advantage granted by the certificate issued by the Alternative Dispute Resolution Center, under the Arbitration Act (No. 2) B.E. 2562, applicants for the work permit can immediately start working while a representative can forward the work permit application. The Center shall communicate to the Department of Employment the issuing of the certificate. Usually, it is the employer that has to fulfil this duty according to Section 59.
The certificate can be issued only for arbitrators or parties’ representatives and for a specific period. Work permit holders who fail to comply with the limits provided in the work permit could be fined between 5,000 and 50,000 Baht, their visa will be revoked and they are required to leave the country immediately. Moreover, they are barred from entering Thailand for work for at least 3 years.
Procedures
The applicant after receiving the certificate from the Alternative Dispute Resolution Center has to contact the Thai embassy to obtain the Visa non-immigrant B and the work permit.
Documents necessary for the application
The number of documents necessary for the application is reduced. The certificate from an Alternative Dispute Resolution Center in Thailand and the identity documents are sufficient, no need to provide other documents, i.e. medical certificate, letter of appointments, etc.
Immigration Bureau
Those allowed to work under the Arbitration Act (No. 2) B.E. 2562 (2019) will be allowed to stay in Thailand for 90 days. However, if the dispute cannot be settled within 90 days, an application for extension of the stay in the Kingdom of Thailand shall be submitted to the Immigration Bureau.
In the case of arbitration, the Royal Thai Police Regulation 3232/2557 does not provide specific criteria, therefore it falls under Section 5 of the same Regulation. According to this Section, the competent officer has the discretion to decide if the applicant has the right to stay in Thailand, the decision is taken on a case by case basis. Usually, an extension of maximum 1 year is granted after the submission of a copy of the applicant’s passport, the work permit and the certificate from an Alternative Dispute Resolution Center in Thailand.
