Legal Issues in the Application of Pre-Filing Interim Relief in Administrative Proceedings

Abstract

     This article examines the legal issues arising from the application of pre-filing interim relief procedures in administrative proceedings. It employs a comparative method, studying foreign legal frameworks for pre-filing interim relief in administrative cases in combination with Thai statutes that already provide for interim measures. The analysis addresses: (1) the feasibility of establishing pre-filing interim relief in administrative proceedings; (2) the types of pre-filing measures suitable for use in administrative proceedings; and (3) the criteria and conditions under which such measures could be applied in Thai administrative proceedings.

     The study found that under Thailand’s Administrative Procedure Law, interim measures only take effect after an administrative suit is filed without any provision stating for pre-filing relief. However, in general administrative proceedings, courts may be compelled to consider and issue interim orders prompted by urgent necessity or emergency during the pre-filing period to protect the parties’ interests, the public interest, or to avert irreparable harm. For these reasons, the administrative systems of the French Republic, the Italian Republic, and the Federal Republic of Germany each provide clear statutory rules for pre-filing interim relief in administrative cases, requiring that any request demonstrate an urgent necessity or emergency. It is worth noting that Thailand has increasingly adopted pre-filing relief principles across various statutes e.g., the Arrest of Ship Act B.E. 2534 (1991), the Copyright Act B.E. 2537 (1994), the Patent Act B.E. 2522 (1979), the Trademark Act B.E. 2534 (1991), the Trade Secrets Act B.E. 2545 (2002), the Regulation for Intellectual Property and International Trade Cases, B.E.2566 (2023), the Consumer Case Procedure Act B.E. 2551 (2008), and the Arbitration Act B.E. 2545 (2002). Nonetheless, within the realm of administrative proceedings, pre-filing relief is so far confined to applications for interim measures during arbitration, with no equivalent mechanism in other types of administrative cases.

     Therefore, in order to provide the Administrative Court with additional legal tools to swiftly protect the parties’ interests and the public interest and prevent further irreparable harm, this article proposes incorporating additional statutory provisions into the Administrative Procedure Law on pre-filing interim relief. Such an amendment would modernize and enhance the effectiveness of interim-measure criteria in Thai administrative proceedings, aligning them with contemporary legal practice and current social conditions