Seven facts about financial service regulations in Thailand
Thailand’s regulatory framework for financial institutions
Financial services, investment advisory, and other securities businesses are highly regulated. The authorities maintain a list of black sheep of outlawed service providers and the following seven regulatory facts should be carefully considered when doing securities business in the land of smile:
#1. Financial institutions: Thailand’s financial institutions are supervised and regulated by the Ministry of Finance, the Bank of Thailand, and/or the Securities and Exchange Commission (SEC), depending on their type and characterization. Customary is the separation into depository and non-depository entities: Depositary corporations are especially commercial banks, special financial institutions, saving corporative and credit unions, and money market mutual funds. As non-depository corporations qualify mutual funds, insurance companies, provident funds, asset management companies to manage non-performing assets of financial institutions, and securities companies.
#2. Securities means treasury bills, bonds, bills, shares, debentures, investment units which are instruments or evidence representing the rights to the property of a mutual fund, certificates representing the rights to purchase shares, debentures, or investment units. Also, the term includes any other instruments as specified by the SEC. Securities dealing means a purchase, sale or exchange, outside the Securities Exchange or an OTC center, of securities, for one’s own account in the normal course of business.
Security businesses are under the supervision of the SEC Securities and Exchange Commission in accordance with the Securities and Exchange Act (SEC-Act). The SEC, established in 1992, is an independent government agency with the purpose to develop and supervise the Thai capital markets to ensure efficiency, fairness, transparency, and integrity.
PUGNATORIUS Ltd. provided a legal opinion under Thai laws for a European PSP regarding the compliance requirements of a foreign-based and not Thai-licensed securities dealer when accepting and serving Thai customers for the purchase of foreign CFD financial products.
— Bangkok Lawyer (@bangkoklawyer) January 25, 2020
Financial services by brokering, dealing, investment advisory and private fund management
#3. Seven licenses: Depending on the case, seven different licenses cover the undertaking of the securities business. These are securities business license types A, B, C and D, the business license to undertake advisory services, securities borrowing, and lending, as well as to undertake venture capital management.
Thailand’s financial markets are heavily regulated and it is essential to observe and consider protocols and procedural requirements to be compliant in the minefield of Thai laws and regulations. External procedures are especially the legal requirements for the general market presence, the legal requirements for the contact with target companies in Thailand, and requirement specifications and liability aspects.
#4. Bitcoin & Co.: Cryptocurrency and digital asset transactions are of increasing importance in the FinTech sector. A comprehensive overview of this sector provides the article “Baht, Blockchain & Bitcoin“. Tax considerations are described in “Seven statements on crypto taxation in Thailand“.
#5. Crackdown on unlicensed operators and criminal liability: Outlawed marketing includes business activities in Thailand, online marketing and, subject to specific qualifications, activities from abroad. Even the placement of an advertisement by an independent agency and other assisting services might constitute the operation of a securities business. The criminal liability of the market participants for undertaking securities business without having obtained a license has to be carefully considered as follows: Imprisonment for a term of 2-5 years, a fine from THB 200,000 to THB 500,000, and a further fine not exceeding THB 10,000 for every day during which the contravention continues.
It is getting more and more customary that the SEC actively files criminal complaints with the Economic Crime Suppression Division of the Royal Thai Police for operating securities business without a license. Recently, the SEC announced that it will “be beefing up its activities having to do with financial intermediaries in its crack-down on unlicensed investment advisers “.
#6. Foreign securities companies: Foreign businesses, operating under non-Thai legislations, could be qualified as providing securities business in Thailand if certain requirements are fulfilled. In such cases, regulatory requirements apply even when the service provider is located abroad. However, foreign securities firms can benefit from exemptions for certain private investment advisory and fund management services. In such cases, the requirements under the Foreign Business Act have to be considered as well.
#7. Industry developments: Thailand’s legal environment is under constant adjustments. These are important amendments.
17/07/18: Under the SEC’s ‘Wealth Advice for All’ project, business intermediaries can now apply to become a licensed wealth advisor. This includes brokerage firms, unit trust fund managers, mutual fund businesses, private fund management businesses, and investment advisers.
31/01/19: The Bank of Thailand has eased qualifications for international money transfer operators to attract new players and increase competition. Enacting yesterday, BOT relaxed requirements on the percentage of Thai nationals needed as shareholders of cross-border money transfer providers, lowering the threshold to 25% from 75% in an effort to lure new operators to the business.
Professional services in Thailand’s Fin-Tech sector
PUGNATORIUS Ltd. is the Bangkok-based specialist provider of transactional legal and tax advice on foreign investments in Thailand. The law firm assists and supports foreign companies to provide financial services in Thailand by
- ascertaining the facts and circumstances of the business abroad, its corporate and industry background, as well as the scope and validity range of existing licenses and permissions,
- discussing and recording the Thai business venture, type and scope of financial services, available resources and budgets, as well as requested time schedule
- preparation of an expert statement regarding legal requirements and the regulatory framework in Thailand, and
- the required steps and conditions, the work-flow, cost expenditure, and expected timeline to accomplish the turnkey working structure.