Toward International Excellence
The SEC stress the importance of practices in compliance with the international standards, so that the Thai capital market will be developed towards greater efficiency, trustworthiness, gaining recognition and interests from investors and parties wishing to raise fund at an international level. Participating in assessment programs organized by international agencies provides opportunities to measure our practice against the international benchmarks. During the past years, Thailand and the Thai Capital Market have undergone assessments invarious international platforms such as:
Survey on Ease of Doing Business by World Bank
According to the World Bank's Doing Business Survey 2019, Thailand is ranked at No. 27 among the 190 participating economies worldwide on the overall assessment of the ease of doing business regulatory environment. The ranking was determined by sorting the aggregate scores on 10 topics below, each consisting of several indicators. Experts in various areas, governmental agency personnel as well as the World Bank's regional officers contributed to the survey. The impacts of relevant laws and regulations on local businesses throughout their life cycle were also taken into consideration.
* Due to the recalculation based on the adjusted methodology, the 2018 score became equal to the 2019 score.
Protecting Minority Investors
In This topic measures the strength of minority shareholder protection against directors' misuse of corporate assets for their personal gain, the scope of shareholder rights and governance safeguards for both listed companies and limited companies. Positive results on this topic promote investors' confidence as well as the benefits for businesses, the capital market and the Thai economy.
|Extent of disclosure index (0-10)||Extent of shareholder rights index (0-10)|
Review and approval requirements for related-party transactions
|Shareholders' rights and role in major corporate decisions |
|Internal, immediate and periodic disclosure requirements for related-party transactions|
|Extent of director liability index (0-10)||Extent of ownership and control index |
|Minority shareholders' ability to sue and hold interested directors liable for prejudicial related-party transactions||Governance safeguards protecting shareholders from undue board control and entrenchment|
|Available legal remedies (damages, disgorgement of profits, disqualification, rescission of transactions) |
|Ease of shareholder suits index (0-10)||Extent of corporate transparency index |
|Access to internal corporate documents||Corporate transparency on significant owners, executive compensation, annual meetings and audits|
|Evidence obtainable during trial|
Source : http://www.doingbusiness.org/en/data/exploretopics/protecting-minority-investors/what-measure
Legal Protection and Key Developments
On the topic of Protecting Minority Investors, Thailand's rank rose from No. 16 to No. 15 in the Doing Business Survey 2019. Compared with other East Asia & Pacific economies, Thailand is ranked at No. 4 together with Taiwan, following only Malaysia, Singapore and Hong Kong, respectively. The higher ranking based on the Protecting Minority Investors Index was due in large part to the SEC Office's cooperation with the Office of the Public Sector Development Commission (OPDC) and the Department of Business Development under the Minister of Commerce, by actively participating in the Doing Business Survey and providing knowledge on Thai laws to the public and the participants in the Doing Business Survey to promote better understanding of the spirit of Thai law as well as rules and regulations concerning minority investor protection. Key developments include the followings:
Thai law protects the right of minority investors to bring an action against any director who acts or omits to act in any way that constitutes a failure to perform duties with responsibility, due care and loyalty for the best interest of the company, which causes damage to the company or creates benefits for oneself or others. In this regard, shareholders are entitled to claim on the company's behalf for damages or returns of benefits that such director had received as a result of his/her misconduct. In addition, the criminal and civil sanctions prohibit such director from holding the position at any listed company. More efforts are given to the proposal to amend the Public Limited Companies Act B.E. 2535 (1992) to prohibit any company from exempting the liability of any director who fails to perform duties with loyalty and due care for the company's best interest. The amendment would also require that the company claim indemnity from such director.
If a shareholder intends to bring an action against the company or the board of directors, the shareholder shall comply with the Civil Procedure Code, which prescribes the procedures and methods for filing a civil lawsuit. In this regard, the Law clearly prescribes that the plaintiff is entitled to adduce evidence by specifying only the categories of documents without the need to identify specific details on the evidence list. Besides, the Law requires only the procedure for taking evidence by the plaintiff and the defendant, ex., the sequence of examination, cross-examination and re-examination. In case of witness examination, there is no statutory requirement for the court to grant a prior approval. Such supportive conditions allow shareholders to exercise the right to enter a legal action more conveniently.
Shareholders' rights are protected by Thai law, including the right to participate in the decision making on the important matters of the company. For example, a capital increase of a limited company must be preceded by a right offering and if existing shareholder waives such right, the board must offer the issued shares to other shareholders or the directors may buy such shares themselves. In any case, a capital increase must be approved at the shareholders' meeting with at least three fourths of the total voting rights of the attending shareholders. Such conducive environment contributes to a higher score in this index. In addition, more efforts are given to the proposal to amend the Civil and Commercial Code regarding the shareholders' meeting whereby the minimum requirement for proposing a shareholders' meeting would be reduced from 20 percent to 10 percent of the total shares of the company. This would allow shareholders to call for a shareholders' meeting more easily and promote the exercise of voting rights to control, monitor and participate in the decision making on important matters. The proposed amendment is expected to complete by the second quarter of 2019.
The Securities and Exchange Act B.E. 2535 (1992) allows listed company shareholders who collectively hold shares at least 5 percent of the total voting rights to propose that the board of directors include a matter in the agenda of the shareholders' meeting; the board of directors must do so within a specified period for the upcoming shareholders' meeting; however, the board may refuse to include the matter proposed by the shareholders in the agenda only if the proposed matter does not fall within the scope specified by law. In addition, the SEA prescribes further protection of shareholders' rights by requiring the board to notify the refusal to include the proposed matter of the shareholders and the reason thereof as the matter for information in that shareholders' meeting. In any case, if the shareholders' meeting resolves by a majority vote to accept such proposed matter, the board must include the matter in the agenda of the next shareholders' meeting. This is to ensure that the shareholders are entitled to make the final decision. Also, a draft amendment to the Civil and Commercial Code is being proposed to allow limited company shareholders a similar right as their listed company counterparts whereby the shareholders would be able to participate in the control, monitoring and the decision making on important matters of the company. This would also promote the exercise of the shareholders' voting right. The draft amendment is expected to complete within the second quarter of 2019.
The overall results of the Doing Business Survey 2019 for Thailand on the topic of Protecting Minority Investors have shown a progress from the previous year. This is because, apart from the existing strict provisions on minority investors protection, more efforts are given to legal amendment to further protect investors and support the use of electronic systems in the communication among the company, shareholders and the Ministry of Commerce. This is to facilitate shareholders in getting the company's information updates faster and consequently having more time to consider the updates more carefully before making informed decisions that truly meet their demands. Moreover, the proposal for the use of an e-proxy system would make it easier for shareholders to exercise their voting rights. The draft amendment in this matter is also expected to complete by the second quarter of 2019.
The Financial Sector Assessment Program by IMF and World Bank
The Financial Sector Assessment Program (FSAP), established in 1999, is a comprehensive and in-depth assessment of a country's financial sector, jointly developed by the International Monetary Fund (IMF) and the World Bank. The program aims to examine the stability and soundness of the financial sector, as well as its potential contribution to the country's growth and development. The assessment covers various aspects of the financial system, including banking, securities and insurance sectors, payment and settlement systems, monetary and financial policy transparency, and anti-money laundering.
As part of an FSAP undertaken in Thailand in 2007, the Securities and Exchange Commission, Thailand (SEC) participated in an assessment of securities market regulation. Results of the assessment indicate a satisfactory level of compliance with international standards, with fundamentally sound, secure, efficient and reliable regulatory framework for supervision of the capital market and securities settlement systems. Recommended plans of action were provided to address any identified deficiencies in the legal framework. 2007 Full assessment report can be found here: http://www.imf.org/external/pubs/cat/longres.aspx?sk=22939.0
In addition, Thailand has already requested the interest to participate in FSAP review around the last quarter of 2018. The assessment of securities regulation will be conducted with reference to the IOSCO Objectives and Principles of Securities Regulation.
The Report on the Observance of Standards and Codes: Corporate Governance Country Assessment (CG-ROSC) by World Bank
The Report on the Observance of Standards and Codes: Corporate Governance Country Assessment (CG-ROSC) is an assessment of CG policy framework and compliance with international standards of capital markets by the World Bank.
As participation in this program is voluntary, frequency of assessment may vary. The participating countries can also choose whether or not to disclose the assessment results. CG-ROSC participants are not required to pay any expenses but to facilitate the assessment process by providing information and coordinating with related entities in their country for the World Bank's officers to be able to collect information for the assessment. Thailand firstly joined the program in 2005 and secondly joined the program in 2013.
The full reports are available at:
(The first assessment)
(The second assessment)
The World Bank has assessed corporate governance policy framework of the Thai capital market based on the Corporate Governance Principles of the Organization for Economic Co-operation and Development (OECD), which cover six areas as follows:
1. Enforcement and CG framework
2. Rights of shareholders
3. Equitable treatment of shareholders
4. Roles of stakeholders in CG
5. Disclosure and transparency
6. Responsibilities of the Board