Karen Wong has been a partner in the Global Project Finance Group of Milbank, Tweed, Hadley & McCloy LLP since 1996 and is a resident in the Los Angeles office. Her practice focuses on the representation of sponsors and financing parties of power, petrochemical and other infrastructure facilities in Asia, Latin America and North America. Ms. Wong was the partner in charge of the Tri Energy Company Limited 700 megawatt gas-fired power project located in Ratchaburi Province, Thailand, which was named the "Deal of the Year 1998" by both Corporate Finance and Project Finance magazines. Ms. Wong received her Bachelor of Science in Business Administration from the University of Southern California (magna cum laude 1992) and received a Juris Doctor from the University of Southern California in 1986. She served on the editorial boards of Major Tax Planning and the Computer/Law Journal.

Chiridacha Phunsunthorn is currently the manager of the legal department at BANPU Public Company Limited. He served as associate at Baker & McKenzie previously and was responsible for natural resource and energy projects, giving advise on all aspect of commercial laws for clients doing business in Vietnam, Laos, Cambodia and Myanmar, as well as advising the Laotian and Cambodian government. Mr. Phunsunthorn received his Bachelor of Laws (LL.B.) from Chulalongkorn University and his Master of Laws (LL.M.) from Southern Methodist University.

Tiziana Sucharitkul is currently an associate at the Los Angeles office of Milbank, Tweed, Hadley, McCloy LLP and is in charge of nalyzing, negotiating and drafting various business contracts, loan agreements and purchase documents for major infrastructure and energy projects. She previoiusly practiced international trade law at Tilleke & Gibbins R.O.P. Ms. Sucharitkul received her BA from Mount Holyoke College, MA from University of Virginia, and her Doctorate of Jurisprudence from the University of California, Hastings College of Law.

Introduction

Thailand, like many other countries in Southeast Asia, grew rapidly in the 1980s under a legal framework that could not support the developments of the country or cope with the consequences of such rapid growth. Many areas of Thai law lacked the sophistication required to appropriately handle difficulties and problems arising from modern day situations. It was not until the eruption of the Asian crisis in mid-1997 and the ensuing economic turmoil, however, that the need for reform became a priority. In particular, it became clear that legal reforms in areas of law that directly impacted the economy were desperately needed. The Thai government realized that in order for the country to emerge favorably from the economic downfall, many of its existing laws needed to be overhauled. The Thai Bankruptcy Act of 1940 was one such law.

The Thai Bankruptcy Act of 1940 was by no means Thailand's first bankruptcy law. In fact, Thailand's first bankruptcy law was enacted several hundred years ago in 1645 during the Ayuddhaya Era. At that time the bankruptcy law was part of the Law on Debt and was extremely severe to those judged bankrupt. For example, a man judged bankrupt was susceptible to losing to his creditors not only his possessions but also his slaves, his wives, and his children. It was not until several hundred years later in 1891, during the reign of King Rama V, that a new bankruptcy law was enacted. The impetus for such enactment was the demand created by new commercial activities brought about by the influx of international trade. This law stayed in place until 1940 when the Bankruptcy Act was promulgated.

The Thai Bankruptcy Act of 1940 was based on the English Bankruptcy Act of 1914. Because of its origin, it was considered outdated and unsuitable for the modern Thai economy and its business culture. Apart from the antiquity of the document and its inability to function adequately in an Asian environment, the Act also proved to be lacking in substance and was deficient in several respects. For example, the only parties who could claim for payment of debt were Thai citizens or foreigners whose countries’ laws permitted reciprocal claims for Thai citizens. Another deficiency of the 1940 Act was that it limited creditors’ legal recourse against ailing debtor companies. The 1940 Act only recognized the dissolution of the legal status of an entity when such entity could no longer meet its financial obligations and had undergone a liquidation procedure or absolute receivership. Thus, the only avenue available to creditors owed Baht 1,000 or more was to file bankruptcy proceedings with the Thai courts under Section 7 of the Act. And although a debtor adjudged bankrupt would be subjected to bankrupt status for ten years as of the date of the division of the assets, such subjection rarely benefited the creditors. Furthermore, the process of filing bankruptcy proceedings was both tiresome and time consuming for the creditors, as the courts often dismissed the few deadlines and granted extensions to debtors. As the process frequently failed to lead to a debtor's realization of assets and to a creditor's satisfaction, creditors avoided utilizing the provisions of the 1940 Act and preferred instead to work out compromises with debtors. Such compromises often led to the demise of the debtor's business despite the debtor's potential to survive as a profitable entity.

Another shortcoming of the 1940 Act was that a filing for bankruptcy could only be initiated by creditors and not by debtors. Moreover, creditors who injected new capital into a debtor company with knowledge of the company’s insolvency did so at their own risk, since they were not considered creditors under the 1940 Act and therefore were not entitled to seek the right of repayment under the Act. Naturally, this led to a stagnant environment in which no fresh funding was being made available to struggling, yet potentially viable, entities. Most importantly, the Bankruptcy Act of 1940 lacked a process whereby a troubled entity could be reorganized, revived, and given a second chance. It soon became clear to all parties concerned that a more workable legal framework was needed.

Although the 1940 Act was amended in 1968 and then again in 1983, these amendments failed to adequately address the substantive issues described above and focused primarily on the amount of debt required before a bankruptcy proceeding could be initiated against a debtor. The 1968 amendment raised the amount from Baht 1,000 to Baht 30,000, while the 1983 amendment raised the figure to Baht 50,000 for a natural person and Baht 500,000 for a juristic person (a "legal" person, such as a corporation). Finally, in the early 1990s, the Thai government, having been aware for many years that more substantive changes were needed, set up a committee through the Ministry of Justice to research the country's bankruptcy law and to propose appropriate and much needed amendments, including amendments that would allow for the rehabilitation of struggling businesses. The committee looked to laws of various countries in order to come up with an appropriate legal framework for the new Thai bankruptcy law. Again, English law, with the English Administration under the Insolvency Act of 1986, became a focal point as did the Singapore Organization Law and the renowned Chapter 11 of the United States Bankruptcy Code. However, this time, in drafting the amendments to the Thai Bankruptcy Act, the committee resolved to adopt a law that would not only be practical but that would also be functional in the Thai business context.

Although a draft amendment was prepared in 1992, it was not until 1997, when Thailand was entering into one of its worst economic recessions, that a draft bill was reviewed by the Juridical Council, a legislative body of the Thai government responsible for drafting and reviewing legislation before it is sent to the House of Parliament. It had taken several amendments, eleven years of drafting and a dire economic crisis before the bill was passed. Given the country’s excessive borrowing of foreign currencies, many Thai companies struggled to stay afloat when the Thai Baht was heavily devalued as a result of the Thai Government's decision to allow the Baht to float at international market rate. Even the strongest of Thai companies encountered difficulties paying off their foreign debts and Thai financial institutions experienced the highest rate of non-performing loans, estimated at the end of 1998 to be more than Baht 2.7 trillion or 45% of its outstanding credit. The need for corporate restructuring and procedures to rehabilitate financially distressed companies in order to stop the rise of crippling non-performing loans and to allow banks to resume lending could not have been stronger.

Even though the concept of implementing a restructuring procedure during the era of the bubble economy had been considered many years prior to the 1997 economic upheaval, nobody had felt the immediate need for such a mechanism. However, when Thailand found itself struggling to survive the Asian crisis, many believed that if the government further obstructed the passage of the Bankruptcy bill and its provisions creating a workable reorganization procedure, the country would be placed in an increasingly difficult situation since lenders, especially foreign lenders, would be reluctant to make any investments in Thailand. Because businessmen who sat in the appointed upper house of parliament feared that passage of the bill would hurt their interests, they acted to delay to the passage of the bill, thereby exacerbating the recession and smothering commercial activity. Many felt that this delay had to come to an end. As a result of such sentiments and also in part because the International Monetary Fund had made the passage of the new amendment a condition to Thailand’s receipt of the US$ 17.2-billion bail-out package, Thailand's House of Representatives and Senate approved and adopted the long-awaited amendment to Thailand's 1940 Bankruptcy Act on March 4, 1998. The amendment became effective on April 10, 1998 in the form of the Bankruptcy Act Amendment No. 4.

The New Law – the 1998 Amendment (Amendment No. 4)

The 1998 Amendment does not replace the 1940 Act. Instead, it adds a new chapter to the old Act, Chapter 3/1, and consequently many of the old regulations concerning bankruptcy and liquidation remain intact. Although the new chapter does not contain any revolutionary revisions, it has nevertheless drawn much attention and has been warmly welcomed by both the legal and business communities in Thailand and abroad, since it introduces alternative avenues for creditors to seek satisfaction of amounts owed to them. Of particular significance, the amendment contains a structure designed to rehabilitate a debtor's business and to render viable a distressed company while protecting the interests of the creditors.

One feature of the new law is that it allows new creditors, such as those putting fresh funds into a cash-strapped company, to seek the right of repayment under the reorganization plan by sending a letter to the planner or, by a repayment request with the receiver. This aspect of the new law is commended as it allows parties to inject new capital into ailing businesses without the fear that they will be denied the opportunity to regain their investment. Under Section 94(2) of the old law, a party extending new loans to insolvent companies did so at its own risk during the known insolvency of the receiving company. This naturally was an impediment to the restructuring of viable businesses as it prevented institutions from lending funds to entities in need.

The New Law – the 1999 Amendment (Amendment No. 5)

Because the 1998 amendment was passed abruptly, the house of Parliament decided to pass an amendment to the 1998 amendment, the Bankruptcy Act Amendment No. 5, was passed by the house of parliament in March 1999. The purpose of Amendment No. 5 was to refine and strengthen the principles introduced in the 1998 amendment and to address certain issues of contention which were not properly dealt with under the 1998 Amendment.

One such issue concerned the exemption of guarantors of debts from bankruptcy suits. In Thailand, personal guarantees are often given by individuals to lenders as security against the borrowing of loans. Such guarantees act as a check against poor corporate management, lack of accounting standards, and the improper channeling of funds by insiders. The 1998 amendment, reflecting the views of those senators who had themselves pledged personal assets as collateral for loans to their companies and who stood to lose personally under the guarantees, gave immunity from bankruptcy to personal guarantors. This outraged many in the business and legal community who thought that this grant of immunity and waiver of guarantors' responsibility would jeopardize Thailand's credit system and would conflict with international business standards. After several months of intense negotiation, debate, and political struggle, the upper house reluctantly dropped its request for immunity to guarantors on condition that foreclosure of guarantors’ assets would not extend to private residences. Although the request to exempt guarantors’ residences from foreclosure was overridden, the immunity clauses for guarantors were nonetheless successfully taken away in the 1999 amendment.

Another issue of contention under the 1940 Act concerned the time period after which a person declared bankrupt would be discharged. Originally under the old law, the time frame was ten years. However, as the Asian sentiment of humiliation is pervasive, many felt that the social stigma of being adjudged bankrupt for ten years was too severe, and several senators proposed that the time period be reduced to one year. This proposal, however, was met with much opposition by the business community who argued that one year was too short to act as a deterrence against non performing loans for debtors who were otherwise capable of paying but might be motivated to avail themselves of protection under the bankruptcy law. A compromise was reached and is currently reflected in Section 35 of the 1999 Amendment Act, which shortens the time period from ten to three years on the condition that the bankrupt person is not guilty of any misconduct or fraud contributing to his insolvency.

The 1999 amendment also resolved issues involving the rights of small creditors. Under the 1998 amendment, small creditors were unable to make themselves heard because many privileges were reserved for creditors who owned a minimum of two thirds of the total outstanding debt. Thus small creditors could not participate in many aspects of the re-organization process, such as the nomination of the planner or the drafting of the reorganization plan itself. The 1999 amendment attempted to resolve this dilemma by introducing a mechanism of classification of creditors. Under Section 90/46 of the 1999 amendment, classes of creditors are set up according to the percentage of debt owed and each class has equal rights as the plan must be approved by each of them or, with some exceptions, by a group of creditors owed a minimum of 75% of the debt. There are, however, three types of creditors who are automatically deemed to accept the plan and who are therefore excluded from the classification. They are (i) creditors who are to be repaid within fifteen days of the plan, (ii) creditors who receive payments under existing contracts, and (iii) subordinated creditors. Furthermore, the 1999 amendment increased the amount of debt required before a bankruptcy proceeding could be initiated against a debtor. The 1998 amendment had raised the amount to Baht 50,000 for a natural person and to Baht 500,000 for a juristic entity. Section 9 of Amendment No. 5, however, further increased the amount to Baht 1,000,000 for an individual and Baht 2,000,000 for a juristic entity.

The 1999 amendment also extends the definition of acts which the court can set aside as acts committed for undue preference. Acts, such as debtors’ transfers of assets done three months before or after a filing of a petition for adjudication of bankruptcy, are deemed committed for undue preference; a one-year rule is implemented for "insiders of the debtors". Thus, if the transferee of a debtor's assets is an "advantaged creditor" (an advantaged creditor includes directors, managers, partners, and shareholders owning more than 5% of the shares, and their spouses and minor children, and juristic persons holding more than 30% of the equity), the court can cancel a transfer done one year prior to the application for bankruptcy. Section 115 reads in part "[I]f any advantageous creditor is an insider of the debtor, the court is empowered to order the cancellation of the transfer or any act done under paragraph one which had been committed between the period of one year before the application for adjudication of bankruptcy and thereafter." Section 114 also allows transfers at below market value to be set aside. Furthermore, fraudulent transactions may also be set aside pursuant to Section 237 of the Thai Civil and Commercial Code which reads, in part, that a "…creditor is entitled to claim cancellation by the Court of any juristic act done by the debtor with knowledge that it would prejudice his creditor; but this does not apply if the person enriched by such act did not know, at the time of the act, of the facts which would make it prejudicial to the creditor, provided, however, that in case of a gratuitous act the knowledge on the part of the debtor alone is sufficient."

Procedures under the New Law

Filing the Petition

The purpose behind the process of business re-organization under the new law is to ensure that viable businesses are not driven unnecessarily into bankruptcy because of short-term liquidity problems. Accordingly, the process commences with a filing with the Thai court of a petition for restructuring. Unlike the old law, the new law allows such action to be taken by either the creditor (whether secured or unsecured and whether foreign or local), the debtor itself, or a governmental agency owed at least Baht 10 million. Once the petition is filed with and accepted by the court, the court will determine whether or not the debtor is insolvent and whether or not there is potential for the debtor to successfully reorganize itself. If the court feels that such potential exists, the court will issue a reorganization order. Otherwise the court will dismiss the petition.

The Automatic Stay

Upon the issuance of the reorganization order by the court, a moratorium or automatic stay takes effect to protect the debtor. This automatic stay comes into effect immediately upon the filing of the application for reorganization with the courts and lasts until one of the following three occurs: the successful completion of the restructuring of the business, the passing of five years, or the court’s repeal or cancellation of the order for a business restructuring. Under Section 90/12, this stay not only exempts the debtor from having its utilities disconnected or its business registrations revoked but, it also prevents all creditors, secured or unsecured, from pursuing their debts in any way other than through the restructuring proceedings. The moratorium also prevents creditors from enforcing payment of their debt against debtors' assets which were put up as collateral unless permission is given by the courts. This permission is provided only when it is shown that there is not enough protection of the rights of the secured creditors. Moreover, if there is an existing judgment already, the execution of the judgment over the assets of the debtor cannot be carried through unless permitted by the court. Such permissions are granted only to a secured creditor who can show that the moratorium is unnecessary for the reorganization of the business or that its existence does not adequately protect the creditor's rights.

The Planner

The petitioner, whether it is the debtor or the creditor, has the privilege of electing a planner for the restructuring process. If there are objections as to the chosen planner, the debtor will be allowed to put forward his nomination. If the debtor's choice proves to be unsatisfactory to the creditors, the creditors may override it with a nominee of their own.

The planner's functions are twofold: (1) to ensure the continuance of the business under the supervision of the court and the official receiver, who is a government official and performs administrative roles, as well as supervises the implementation of the reorganization plan (the "Plan"), and (2) to prepare the Plan within three months. Note that once the court has ordered the restructuring, the directors of the debtor are essentially forced out of power and the shareholders lose control, in particular since the Plan can call for a drafting of a new Articles of Association which could, in turn, result in the rights of shareholders being severely limited. Accordingly, in running the business of a bankrupt entity, the planner is vested with the rights of the shareholders (except for the right to receive dividends), and the rights of the debtor’s directors and management.

When drafting the Plan, the planner must examine all pertinent information to be provided by the directors of the debtor company. The directors are to deliver the accounting books, all asset related documents, the company seal, and the assets themselves to the planner or receiver. Furthermore, they must submit a report on the business and its assets within seven days of the appointment of the planner and meet with the planner for discussions. If a director intentionally fails to provide any material information or provides false information regarding the debtor’s business operations or assets, he or she is liable to a fine of up to Baht 200,000 and/or imprisonment for up to 2 years.

Plan Approval

Once completed, the drafted Plan will be put to a vote of the creditors. The right to vote is reserved only for those creditors who file their proofs of claim with the official receiver within one month from the publication date of the appointment of the planner. In approving the plan, no priority is given to secured creditors versus unsecured creditors. It is interesting to also note that interests of equity holders appear very limited as all the control relating to the future of the company, including the power to reduce or increase capital, is now placed in the hands of the creditors. Once the Plan is approved by the creditors, it is resubmitted to the court for confirmation.

Unlike the 1998 amendment, under which the court had complete discretion as to whether to approve or reject a Plan, the 1999 Amendment introduced more objective criteria. Section 90/58 requires that the court consider if the Plan contains material elements required by the amendment and confirm that upon the successful completion of the Plan’s implementation, "the results shall be that the creditors receive debt repayments in amounts that are not less than the case where the court has adjudged the debtor a bankrupt". If the plan receives the court's approval, the duties of the planner are passed to the plan administrator identified in the Plan, whose responsibility is to enforce the Plan within a five year period, such period extendable for an additional one to two years.

Thai Parliament building in Bangkok

Management of the Business

After the Plan has been implemented, the creditors have the option of passing a resolution to appoint a committee composed of three to seven creditors to oversee the proper implementation of the Plan. However, there is also a plan administrator, an independent licensed practitioner, who is given the responsibility of controlling the management of the company. Aside from assuming the duties of the directors and the shareholders, the administrator has the duties of managing the business and its assets according to the Plan. One of the more specific duties of the administrator is that of submitting to the official receiver every three months, an informational report on the progress of the implementation of the Plan. The official receiver also has the authority to authorize payments to creditors if such payments are not opposed by the planner, the creditors or the debtor. Note that employees of the debtor company, who have preferential rights under the new law, are also entitled to receive all salary for work done for the debtor.

Termination of Plan

If the court never adopts the Plan, the implementation of the Plan fails, or the court decides to terminate the Plan, the debtor is obligated to proceed with bankruptcy procedures as they existed under the old law.

Role of the Court

The role of the court, under a restructuring pursuant to the new amendments, is not superficial. The reorganization of a debtor company is very much a court-supervised affair whereby the court oversees the entire restructuring of the business of the distressed entity. From the beginning of the procedure until the very end, the court makes inquiries and issues orders. Because of the significant part that the court plays, many observers of the new law initially felt uncomfortable. In particular, foreign creditors feared that the court's discretion would be used unwisely and inaccurately, especially in light of the lack of case law in this field. Furthermore, there was concern as to whether or not the Thai courts had the ability to conduct supervisions of reorganization plans.

However, many of these fears were appeased when the Act Establishing the Bankruptcy Court and Bankruptcy Case Procedure was passed on June 18, 1999 and when Thailand established a court specifically to hear bankruptcy cases. The Act creates a Central Bankruptcy Court for the Bangkok Metropolitan Area as well as Area Bankruptcy Courts. It also sets out the procedures to be followed in the handling of such cases, mandates the appointment of judges, allows the Bankruptcy Court limited authority to develop some of its procedures, and provides for provisions to deal with existing cases that arose prior to the establishment of the Bankruptcy Court. As bankruptcy cases differ in essence from general civil cases and as such cases affect the economy as a whole, the creation of a forum in which cases are heard by judges with special knowledge of business and financial matters was hailed. In addition to offering judges with specialized experience and training in the areas of law concerned, specialists may also be called to comment on matters of the case.

Another advantage presented by the Act Establishing the Bankruptcy Court and Bankruptcy Case Procedure is that hearings of bankruptcy cases are now expedited. Previously, only one trial date was set for each case per month. This resulted in cases being prolonged for months or years, generating excessive costs for creditors and encouraging debtors to avoid paying off their debts as they realized that the time frame worked to their advantage. Currently, cases concerning the reorganization of businesses are required to be heard continuously on a daily basis until completion, and the court avoids postponing hearings. This has resulted in cases being completed within one month of the date of filing. Cases have also been expedited due to the fact that writs or notice of summons may now be served by mail and no longer have to be physically presented to defendants.

Foreclosure Laws

In line with the amendment to the Bankruptcy Act and the establishment of the Bankruptcy Court, new foreclosure laws have also been passed. Under such laws, it is believed that foreclosure cases will now be completed within a short time frame. According to Judge Wisit Wisitsora-at, who also serves as Thailand’s Business Reorganization Office’s executive director, the new laws will allow most foreclosure cases to be completed within a twelve to eighteen month time frame. Apart from giving the courts discretionary power to deny appeals based on case delaying tactics, the laws also direct that "non-complicated cases" are to be heard continuously every day until judgment is rendered. This is in contrast to the old law under which cases could be extended for months. Moreover, the execution process which follows the foreclosure adjudication has also been shortened due to the fact that (a) there can only be one objection to a bid price at an auction and (b) if the price, at the second auction, is close to the one offered at the first auction, the property must be sold. Previously, the process could be prolonged as anyone was allowed to object to a bid price at the auction. In addition to such new elements to the law, the expansion of the Courts of Appeal will also allow for faster process if foreclosure cases are taken to the appeal stage.

Conclusion

The new laws are no cure-all for Thailand's economic woes. However, despite the inadequacies, the passage of the laws is in itself a starting point towards economic and social recovery. Many are hopeful that the promised efficiency of the new provisions will not only reduce non-performing loans but will tackle some of the country’s current problems and help regain the confidence of foreign lenders. Accordingly, the new laws have given hope to the business community by providing a forum whereby creditors and debtors can work together to create a win-win situation for all parties concerned.

Thailand’s path to economic recovery, impeded by, among other things, red tape and political rivalries, has proven to be more difficult than imagined. However, the country is making an effort to ameliorate its situation. Aside from the passage of the new amendments to the Bankruptcy Law and the Foreclosure Law, the government has taken significant and noteworthy steps to pull Thailand out of its fiscal ordeal. To restructure the financial system, the government has taken over four banks. It has also shut down fifty-six insolvent finance companies and set up the Financial Sector Restructuring Authority to liquidate the assets seized from such finance companies. Furthermore, the government has imposed strict time frames for solvent banks to re-capitalize, opened the banking sector to foreign investment, eased restrictions on foreign ownership of assets, and cut government spending.

Moreover, the government has set up a debt restructuring process under the office of the Corporate Debt Restructuring Advisory Committee and has adopted measures to accelerate the restructuring of non-performing loans. For example, the Finance Ministry has given tax incentives to debtors who undergo the debt restructuring process. Thailand is also in the process of opening up new opportunities for foreign investment, most notably in the fields of energy, transportation, communication, telecommunication and public utilities. Legislation with regard to the implementation of a privatization program involving fifty-nine public enterprises has already been introduced. As a result of these efforts, foreign investors in Thailand have rising confidence. Inflation and interest rates are falling, export volume has increased, the Thai Baht has strengthened significantly and has remained constant, between 37 to 40 Baht to one US Dollar for the last six months or so, and new foreign investment has been introduced. Step by step, Thailand is emerging from the crisis and will most likely be the first country in Asia to successfully do so.

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• "Court speeds bankruptcy cases," The Nation, Oct. 3, 1999, available in file://D:TEMP\04bs16.html.
• "SG Asia Credit, Crisis highlights risks to investors," The Bangkok Post, Jan. 27, 1999, available in http://www.bkkpost.samart.co.th/news/BParchive/BP19990127/270199_Business11.html.
• "Sit down, discuss and pass this law," The Bangkok Post, Mar. 10, 1999, available in http://www.bkkpost.samart.co.th/news/BParchive/BP19990310/100399_News24.html.
• "Senate whips opt for free vote," The Bangkok Post, Mar. 10, 1999, available in http://www.bkkpost.samart.co.th/news/BParchive/BP19990310/100399_News02.html.
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• Economic and Social Information on Thailand, Royal Thai Embassy Brussels, available in http://www.waw.be/rte-be/english/eco-prof.htm.