M&A Monthly Report : August 2018

Digital Asset License

Operators who intend to operate a digital asset business can now apply to obtain the business license from the Securities Exchange Commission (SEC).  The licenses that will be considered by the SEC are: 1) Cryptocurrency Exchange, 2) Digital Token Exchange, 3) Cryptocurrency Broker, 4) Digital Token Broker, 5) Seller of Cryptocurrency, and 6)  Seller of Digital Token.  Qualifications of the applicant includes: 1) must be company registered in Thailand, 2) have well-prepared work system, 3) sound financial status, 4) have Shareholders’ Equity as required by the type of license as follows:

 

  1. Not less than 25 million baht for Cryptocurrency Exchange or Digital Token Exchange.
  2. Not less than 12.5 million baht for Cryptocurrency Broker or Digital Token Broker.
  3. Not less than 5 million baht for Cryptocurrency Exchange or Digital Token Exchange in case that the asset is not kept at the Exchange, or the asset is kept at the Exchange but cannot access or transfer such asset unless approval is given to customer each time.
  4. Not less than 2.5 million baht for following business:

 

    (1) Cryptocurrency Dealer or Digital Token Dealer.

    (2) Cryptocurrency Broker or Digital Token Broker in case of the asset kept at the Broker but cannot access or transfer such asset unless approval is given by customer each time.

  1. Not less than 500,000 baht for Cryptocurrency Broker or Digital Token Broker in case that asset is not kept at the Broker.

Reduction of Bank Deposit Protection Coverage

According to the Royal Decree on the Deposit Coverage Limit of B.E. 2559, the reduction of bank deposit protection coverage by the Deposit Protection Agency  is now at below schedule:

1) August 11, 2016 to August 10, 2018 – Deposit Protection up to 15 million Baht

2) August 11, 2018 to August 10, 2019 – Deposit Protection up to 10 million Baht

3) August 11, 2019 to August 10, 2020 – Deposit Protection limit up to 5 million Baht

4) Protection limit up to 1 million Baht will be from August 11, 2020 onward.

 

In case of bankruptcy financial institution, depositor who has deposits more than coverage must reclaim the excess portion of that amount from the asset of the failed financial institution.

Foreign Business

Transferring the use of the Carbon Credit rights to others

Q: A foreign company registered in Thailand is operating and International Headquarter business and has plan that either its parent company and/or company itself would like to plant mangrove forest on rented land in Nakon Si Thammarat Province and after the rental period expires, the land and the remaining assets will be returned to owner without any remuneration.  This project will also obtain the “Carbon Credit” Certificate from the Thailand Green House Gas Management Organization.  As the Certificate is saleable and transferable, the company would like to confirm whether such transaction is considered as doing business under the Foreign Business Act B.E. 2542 or not.

 

A: Case 1) If the parent company and/or company will utilize the Carbon Credit for its own benefit, this shall not to require to obtain the Foreign Business License because the parent company and/or company has the ownership of Carbon Credit.

Case 2) If the parent company and/or company will transfer the right to use the Carbon Credit to an affiliated company in Thailand, such transfer is considered as doing the sales business according to the Section 4 of Foreign Business Act B.E.2542 because the Carbon Credit is the asset of the parent company and/or company; therefore, to transfer or sell the ownership of the Carbon Credit whether with or without compensation, shall be considered as doing the service business under Annex List 3 of the Foreign Business Act B.E.2542 and must obtain approval of the Foreign License prior to operation.

Case 3) If the parent company and/or company will transfer or sell the asset and ownership of the Carbon Credit to other operators, this shall be considered as a service business under Annex List 3 of the Foreign Business Act B.E.2542 and must obtain approval of the Foreign License prior to operation.

Case 4) If the parent company and/or company will plant the mangrove forest, it must not be a business of forestry from a grown forest under Annex List 3 of the Foreign Business Act B.E.2542 which the wood from the project must not be used for the purpose of trade.

 

 

A foreign company providing service beyond the duration of contractual obligations

Q: A foreign company registered abroad obtained a Foreign Business License under Annex List 3 (21) of Foreign Business Act B.E. 2542 to provide consulting service according to a contract with Aeronautical Radio of Thailand Ltd. The service would be provided for a duration starting from the date of license fee payment until the termination of obligations which it was due in May 2018. However, such service cannot be completed on schedule, as it is in the process of inspection and correction for the counterparty. As a result, the duration of service would be extended until December 2019. In this regard, there will be no change to the scope of service under this contract.  In this case, the company would like to consult whether under the granted Foreign Business License, the company can continue to provide the service until its completion or not. Although, it is overdue the obligations period as specified in the contract.

A: As the company is granted the permission to operate the business under the service contract mentioned in the existing Foreign Business License where the duration of service is permitted from the date of license fee payment until the completion of contractual obligations. However, if the duration of the service contract will need to be extended because the obligations are not yet completed while the scope of service under such contract will not be changed, the company would still be able to perform the service under the granted Foreign Business License without the need to obtain any new license.