Whereas Section 44 of the Administrative Procedure Act B.E. 2539 enables the party to file an appeal or make an argument against an administrative order and whereas the Secretary -General and the SEC are empowered to consider the appeal or the argument against the SEC Office's administrative order. For the purpose of facilitating order and effectiveness and directing fairness to the public as to the filing, consideration, and adjudication of the appeal in correspondence with the legislative rationale of the Act, The Securities and Exchange Commission (SEC) adopts the Rule of Practice as follows:
Clause 1 In this Regulation:
"administrative order" means administrative order issues by Secretary-General in accordance with the Administrative Procedure Act B.E. 2539;
"appellant" means applicant or person having objection to any applicant, any person subject to or likely to be subject to the administrative order and any person entered administrative proceedings because his right has been affected by the administrative order;
"department in charge" means department of the SEC Office responsible for or giving opinion in connection with the matter of appeal;
"Secretary-General" means Secretary-General of the SEC Office;
"SEC" means the Securities and Exchange Commission;
"SEC Office" means the Office of the Securities and Exchange Commission.
Clause 2 In filing an appeal against an administrative order, the party shall file the appeal with the SEC Office within fifteen days after the date on which such party is informed of such order.
The party may file the appeal by hand with the SEC Office or by registered mail. For the purpose of calculating statute limitation as to filing of the appeal by mail, the date posted by the post office of the mailing place shall be deemed as the date of filing such appeal.
Clause 3 An appeal shall be made in writing and signed by the appellant.It shall clearly state the cause of appeal, reasons of argument against the administrative order together with referred factual or legal issues, as the case may be.
All documents pertaining to the matter of appeal, which the appellant considers as usefulness for consideration an appeal shall be attached to the appeal.
Clause 4 The SEC Office shall record receipt of an appeal and shall issue a receipt or a notice of acceptance of the appeal, as the case may be, to the appellant.
The receipt or notice of acceptance of the appeal under the first paragraph shall contain the date, month and year on which the appeal has been received.
Clause 5 Upon the receipt of an appeal by the SEC Office, the Secretary-General shall appoint the chief of department in charge to be responsible for the matter of appeal.
Where the Secretary-General considers that the appeal: (i) has not been filed within the period specified in Clause 2, (ii) has not been signed by the appellant (iii) or fails to identify the cause of appeal together with facts or circumstances relating thereto, the Secretary-General may not accept the appeal and issue written notice to the appellant stating the reasons therefor.
In this regard, the SEC Office shall gather all information pertaining to the matter for the purpose of reporting to the SEC for times to times.
Clause 6 The chief of department in charge shall prepare a memorandum on consideration of appeal which clearly identifies the matter of appeal or the argument brought by the appellant and shall demonstrate reasons or consideration in the process of issuance making the administrative order which is the matter of appeal. The memorandum shall further state the opinion of [the department in charge] whether or not the matter of appeal is, wholly or partially, agreed or disagreed upon. The department in charge shall submit the memorandum and the appeal to the Secretary-General for his consideration.
Clause 7 In considering an appeal, the Secretary-General shall be entitled to scrutinize both factual and legal issues contained in the administrative order which is the matter of appeal, the appeal, and the memorandum on consideration of appeal prepared by the department in charge together with the properness of making the administrative order. [The Secretary-General] may request the appellant to (i) file additional documents; (ii) explain addition facts relating thereto within the specified period or (iii) allow the appellant to present any person to give opinion as considered appropriate. [The Secretary-General] shall further make an order stating whether or not he, wholly or partially, agrees or disagrees with the appeal, in case of which he shall provide reasons supporting the order making.
Where the Secretary-General does not agree with the appeal either wholly or partially, he shall report his opinion and reasons to the SEC. Consideration or order making and report of opinion of the Secretary-General in accordance with the first paragraph shall be completed within thirty days from the date on which the SEC Office receives the appeal. In deliberating the Secretary-General's reasons in accordance with the first paragraph, those reasons shall at least contain material facts, referred legal provisions, considered factors and supporting factors of [the Secretary-General's] discretion thereon.
In the following cases, the Secretary-General may not give any reason supporting his order as specified in the first paragraph:
(1) the request [of the appellant] is fulfilled without [adverse] effect to right and duty of others;
(2) such reasons have been known in general and need no restatement;
(3) the matter is confidential;
(4) it is the case where the administrative order is made orally or urgently; provided that written reasons shall be made within reasonable period if requested by the person subject to such order.
Clause 8 The SEC Office shall, within thirty days from the date on which the SEC Office receives the appeal, notify the appellant, in writing, of the Secretary-General's consideration in accordance with Clause 7 stating whether or not the SEC Office agrees or disagrees with the appeal together with and supporting reasons. In case where the Secretary-General disagrees with the appeal, he shall also notify the appellant of the fact that the SEC Office shall subsequently submit the appeal to the SEC for its consideration.
Clause 9 In considering an appeal against the SEC Office's administrative order, the SEC shall complete its consideration on the appeal within thirty days from the date of receiving the report under Clause 7.
Where it is necessary in the light of circumstances that the consideration cannot be completed within the period specified in the first paragraph, the SEC may extend the period of consideration not exceeding thirty days from the last date of such retiring period. In this regard, the SEC Office shall issue a written notice [of extension] to the appellant prior to the last date of the period to be extended.
Clause 10 In considering an appeal against the SEC Office's administrative order, the SEC may review the order both factual and legal issues including appropriateness of order making; provided that the SEC may request the appellant or the chief of the department in charge to submit additional documents or to explain any fact relating to the matter of appeal within the specified period. [The SEC, further,] at its discretion, may allow the appellant or any person to give opinion as considered appropriate.
Clause 11 The SEC shall consider an appeal against the SEC Office's administrative order without delay, and shall reasonably allow the appellant to explain and produce evidence to support the explanation, except where under the light of circumstances, it is an emergency case or there are any other necessary and proper causes.
In making an explanation and producing the evidence by the appellant in accordance with the first paragraph, the appellant may also prepare a brief of opinion to file with the SEC and may further appear before the SEC to give an explanation to the brief. Without filing of the brief of opinion, [the appellant] shall, however, be prohibited from giving such explanation.
Clause 12 For the purpose of considering the appeal against the SEC Office's administrative order, the SEC may appoint any of the commissioners, or a panel comprising of not more than three persons to summarize factual and legal issues together with giving an opinion in the matter of appeal to the SEC for its consideration.
Where the SEC does not appoint any commissioner or any panel to perform the duty in accordance with the first paragraph, or such appointment has been made but consideration on the matter of appeal requires expertise, the Chairman of the SEC or the Vice-Chairman as appointed by the Chairman shall be empowered to appoint the commissioner or the panel in accordance with the first paragraph on the SEC's behalf.
Clause 13 When the SEC completes its consideration on an appeal, the SEC Office shall notify the appellant of such consideration and supporting reasons in writing; provided that the supporting reasons shall at least contain material facts, referred legal provisions, considered factors, and supporting factors of [the SEC's] discretion thereon. In this regard, the provision of the third paragraph of Clause 7 shall, matatis mutandis, be applicable.
Clause 14 Filing of an appeal shall not be a cause of relief as to the enforcement of the administrative order. The appellant, however, may file a motion for relief together with the appeal. [In so doing, the appellant] shall explain urgent and necessary causes supporting the grant of relief.
The chief of department in charge shall consider the motion urgently and prepare an opinion to the Secretary-General or the SEC, as the case may be, for further consideration. In this regard, the provision of Clause 12 shall, matatis mutandis, be applicable.
Where the Secretary-General or the SEC considers that the motion [for relief] is filed on urgent causes and supporting reasons are proper, [the Secretary General or the SEC] may issue an order [on such matter] as considered appropriate and with or without any condition. In this regard, the SEC Office shall, in writing, notify the appellant of such consideration.
Where the Secretary-General or the SEC does not make an order in response of the motion, the SEC Office shall, in writing, notify the appellant of such fact.
Clause 15 With respect to the SEC's administrative order either that passing upon the consideration of the SEC Office's administrative order or upon its own consideration, the appellant or the party shall be empowered to appeal to the Petition Council in accordance with the Council of State Act B.E. 2522, within ninety days from the date on which the order has been informed.
Clause 16 This Rule of Practice shall come into force on the following date of its publication on the Government Gazette.
Given on the date of 26th July B.E. 2542
(Mr. Tarrin Nimmanhaeminda)
Chairman of Securities and Exchange Commission
This English version is prepared by Legal Department with the sole purpose of facilitating the comprehension of foreign participants in the SEC's rules and regulations and shall not in any event be construed or interpreted as having effect in substitution for or supplementary to the Thai version thereof.
Please note that the translation has not been subjected to an official review by the SEC Office. The SEC Office, accordingly, cannot undertake any responsibility for its accuracy, nor be held liable for any loss or damages arising out of or in connection with its use.