THAILAND Law and Practice Contributed by: Sunyaluck Chaikajornwat, Chumpicha Vivitasevi, Pratumporn Somboonpoonpol and Threenuch Semaming, Weerawong, Chinnavat & Partners Ltd
2.4 Antitrust Regulations The 2017 Trade Competition Act BE 2560 (TCA) is currently the primary legislation governing the merg - er control regime in Thailand. Any merger that meets the criteria under the TCA and relevant subordinate regulations issued thereunder is subject to the merger control process as stipulated under the TCA. This leg - islation also applies to state-owned enterprises, pub - lic organisations and other government agencies, but exemptions have been provided for activities speci - fied by law or cabinet resolutions to enhance national security, public benefit or the provision of utilities. The TCA does not apply to certain industries where merger control is already regulated by specific indus - try legislation (ie, the telecommunications, broadcast - ing and television, and energy sectors). An important point to note regarding the merger con - trol rules under the TCA is that it divides regulated mergers into two categories: • those that require prior approval (pre-merger filing) from the TCC; and • those that require TCC notification after closing (post-merger notification). Essentially, the submission of a pre-merger filing will be required if the merger may result in a monopo - ly or a dominant market position. Conversely, if the merger may substantially lessen competition but does not result in a dominant market position, the merging entity (or entities) must notify the TCC within seven days after the closing date. In 2025, the criteria for determining a “dominant mar - ket position” remained largely unchanged. The only substantive amendment, introduced in late 2025, relates to the exemption threshold under the collective dominance rule. While the top three business opera - tors, with a combined market share of at least 75%, continue to be considered collectively dominant, an individual operator will now be exempt from being considered dominant if it has annual sales turnover in the preceding year of less than THB1 billion or a market share in the preceding year of less than 20%, increased from the previous threshold of 10%.
In addition, M&A activity in certain sectors is regulat - ed by specific authorities; for example, the insurance business is regulated by the Office of the Insurance Commission, banking and finance businesses by the Bank of Thailand, and the telecommunications busi - ness by the National Broadcasting and Telecommu - nications Commission (NBTC). 2.3 Restrictions on Foreign Investments Foreign investment is generally governed by the For - eign Business Act (FBA), international treaties and privileges granted by the Board of Investment (BOI). Pursuant to the FBA, a foreign entity is prohibited from conducting certain businesses in Thailand unless it obtains a foreign business licence or foreign business certificate from the Ministry of Commerce (MOC) or qualifies for specific exemptions. For these purposes, a foreign entity includes a Thai-incorporated company with 50% or more of its shares owned by foreigners. Certain businesses in sectors regulated by specific Thai authorities, such as finance, securities and insurance, are typically exempt from the ownership requirements of the FBA while remaining subject to foreign ownership restrictions under sector-specific legislation. In April 2025, the Thai Cabinet approved in principle a proposal to amend the FBA as part of a broader modernisation initiative aimed at enhanc - ing national competitiveness and fostering a more investment-friendly regulatory environment. How - ever, the proposed exemptions and broader legisla - tive amendments remain under review and, in light of recent changes in government following the general election, no immediate legislative developments are expected in the first half of 2026 (see 3.1 Significant Court Decisions or Legal Developments for more details). Furthermore, pursuant to the Land Code of Thailand, a foreign entity, including a Thai-incorporated company with more than 49% of its shares owned by foreigners or a majority of its shareholders (by headcount) being foreigners, is prohibited from owning land in Thailand unless, among other things, an investment promotion certificate is granted by the BOI.
1303 CHAMBERS.COM
Powered by FlippingBook