THAILAND Trends and Developments Contributed by: Pisut Rakwong, Yaowalak Suleesathira and Supachoke Pongdasakorngamjai, Pisut & Partners
the case. A transferable instrument is a type of legal act. However, with the current evolution in communication and legal transactions, people are increasingly conducting transactions through electronic channels, which include the transfer of rights in instruments via electronic means. The ETA does not yet provide sufficient provi- sions to accommodate the use of transfer- able instruments in the form of electronic data, whether in terms of the legal effects of such instruments or the rules governing their use. The ETB introduces provisions regarding elec- tronic transferable instruments to align with the UNCITRAL Model Law on Electronic Transfer- able Records, incorporating the following provi- sions: • It defines the meaning of an electronic trans- ferable instrument, which had not previously been established in the current electronic transactions law, under the definitions as follows: “electronic transferable instrument” means a transferable instrument in the form of electronic data that can be transferred through electronic means, with legal effects similar to those of a transferable instrument. • It affirms that electronic transferable instru- ments will have the same legal effects as a transferable instrument in paper form. No one may deny the legally binding effect of an electronic transferable instrument solely on the grounds that it was created as electronic data under the ETB. • It stipulates the characteristics of electronic transferable instruments that are legally pro- tected, as follows: (a) they must contain the information required by law for a transferable instru- ment in paper form and may include additional information not required by law,
solely for the purpose of making or using the electronic transferable instrument, without altering the rights or duties of the parties involved; (b) they must use a reliable method to con- trol the rights associated with the crea- tion, transfer, endorsement, modification, addition of data, or destruction of the electronic transferable instrument, or any method specified by the ETDA; and (c) they must use a reliable method to ensure the integrity of the data in the electronic transferable instrument, including the ac- curacy of modified or added data, in ac- cordance with normal communications or with lawful modifications, or any method specified by the ETDA. • It addresses the methods of possession and delivery of the instrument, moving from the traditional method of possessing or delivering physical documents to include the transfer of control over the document and endorsement of electronic transferable instruments under legal protection in the following cases: (a) where the law requires possession of a transferable instrument, if a reliable meth - od has been used that enables a person to have exclusive control over the rights to the electronic transferable instrument, and that person’s identity is verified as the controller, or if a method specified by the ETDA is used, it will be deemed that the person has possession of the electronic transferable instrument; (b) where the law requires delivery of pos- session, if control over the rights to the electronic transferable instrument has been transferred, it will be deemed that possession has been delivered; and (c) where the law requires endorsement of a transferable instrument, if the necessary endorsement data is provided in the elec-
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