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Thai Contract Law: Non-Compete Agreements in Thailand

Transcript of the above video:

As the title to this video suggests, we are going to be discussing Non-Compete Agreements here in the Kingdom of Thailand. This is a general overview.  It's meant to be, just provide some basic insights into how non-compete agreements work, if it all here in the Kingdom.

It should be noted as previously mentioned, I am an American trained attorney, I am the Managing Director of the firm. We do have Thai legal staff on hand including attorneys, lawyers as well as various other professionals here on the staff that assist in these matters more hands on.  This is simply an overview video to provide insight to those who are interested in these matters generally and basically provide some insight and maybe some guideposts if you will, in order to understand where one sits with respect to Non-compete Agreements here in the Kingdom and how best to go about finding a legal professional to assist in drafting a non-compete agreement or non-compete clause within a greater employment agreement here in the Kingdom. For those who are unaware, Non-compete Agreements are pretty much what they sound like. I have heard them described in the past as Covenant not to compete etc. Basically a Non-compete Agreements is an agreement between two parties that stipulates that "in the event of certain conditions precedent one-party will not compete against another party". Generally speaking, the Non-compete Agreements usually stipulates a given geographical area; it usually stipulates a given duration of time. Here in the Kingdom, Thailand in my opinion, and this is again as a sort of foreign legal observer looking at their system, from sort of an outsider's perspective if you will and having worked with various legal professionals here in the Kingdom with respect to Non-compete Agreements specifically. It is my opinion that Thailand, I won't say takes a dim view with respect to non-compete agreements, but with respect to the free movement of labor I think that the overriding policy thinking within the Judiciary as well as the Legislative Branches here in the Kingdom as well as the Executives Branches is sort of a paradigm that basically dictates that you know, we really want to encourage free movement of labor. The notion of non-compete agreements of sort of arbitrarily being bound or kept from working in one's given field or a field similar to something that one is trained in, that sort of restriction is again not necessarily, I won't necessarily say they take a dim view of it, but I will say that I think that they look a bit askance at documents or instruments that would look to hinder, especially a Thai  National's, ability to work in their chosen field and in the cases where they do allow them, there's going to be a lot of scrutiny; in fact I think it is safe to use the term strict scrutiny with respect to the provisions of the non-compete agreement. It has been my experience that there is only going to be a relatively short period of time that a Non-compete Agreements is going to be enforceable and it's also my opinion again based on just prior experience that is going to be a relatively constricted scope of geography that's going to be enforced with respect to enforcing a non-compete agreement within a given area. So that being said, there are ways in which to draft a Non-compete Agreement that one can sit back and rely with a pretty high degree of certainty that the thing would survive scrutiny of a later Court, or something of that nature, or later Tribunal. I think that there is pretty good ways of crafting a document that will go ahead and survive that scrutiny. But that being said, especially in the Kingdom here and we have done videos on this specifically, especially where they don't utilize president in there making of Thai legal opinions. Again the certainty levels one can have with respect to these issues are not at the same levels  that one can have, or that one can sort of enjoy in sort of a common law jurisdiction. That's not to say that it's good, better, or different in my opinion I rather respect that because it operates on a case-by-case basis and in a lot of ways there is something to be said for making decisions based on the unique circumstances of a given situation rather than necessarily relying on, you know sort of antiquated thinking. But that being said, for the lay people watching this video and for those interested in this issue as just sort of a general matter, Non-compete Agreements can be properly drafted, one can fall back on a reasonable degree of certainty that they will be enforced, but one needs to have them properly drafted by a legal professional who has dealt with them specifically in over a fairly long period of time and they need to be drafted in such a way that they can work with not only with the laws on the subject but also the policy thinking of those who may be later be interpreting such an agreement.