Affidavit of Foreign Law

An affidavit of foreign law is a formal legal document used in Thailand to confirm the applicable laws of another country. It is most commonly required in cross-border transactions, family law matters, estate administration, corporate activities, and litigation where foreign legal principles must be recognized by Thai authorities or courts.

In Thailand, affidavits of foreign law play an essential role in bridging legal systems. Thai courts and administrative agencies do not automatically apply foreign law unless it is properly presented and proven. The affidavit serves as expert confirmation of the relevant foreign legal provisions and how they apply to a specific case.

This article provides a comprehensive overview of the affidavit of foreign law in Thailand, including its legal foundation, when it is required, preparation standards, authentication procedures, evidentiary weight, and compliance risks.

I. Legal Basis Under Thai Law

Thailand follows a civil law system codified under the Civil and Commercial Code and procedural rules governed by the Thai Courts of Justice.

Under Thai conflict-of-law principles:

• Thai courts may apply foreign law when the dispute has international elements.

• However, foreign law must be proven as a fact.

• If foreign law cannot be sufficiently proven, Thai courts may apply Thai law by default.

This means that foreign law is not presumed. The burden of proof rests on the party invoking it.

An affidavit of foreign law is therefore critical in litigation and administrative matters involving foreign legal systems.

II. What Is an Affidavit of Foreign Law?

An affidavit of foreign law is a sworn statement prepared by a qualified legal professional (usually a licensed lawyer in the relevant foreign jurisdiction) that:

1. Identifies the applicable foreign law.

2. Explains its legal provisions.

3. Interprets how it applies to the specific factual circumstances.

4. Confirms its validity and current status.

The affidavit must be factual, objective, and supported by references to statutes, regulations, or case law from the foreign jurisdiction.

III. Common Situations Requiring an Affidavit of Foreign Law

1. Marriage and Divorce Involving Foreign Nationals

When a foreign national marries or divorces in Thailand, authorities may require proof that:

• The person is legally free to marry.

• A foreign divorce is legally valid under home-country law.

For example, district offices under the Department of Provincial Administration may require documentation confirming a foreigner’s marital status.

2. Inheritance and Probate

If a deceased person was a foreign national or owned property abroad, Thai courts may require confirmation of:

• Foreign inheritance laws.

• Validity of foreign wills.

• Succession rights of heirs under foreign statutes.

3. Corporate and Commercial Matters

Foreign companies operating in Thailand may need to prove:

• Corporate authority under foreign law.

• Shareholder rights.

• Valid execution of foreign contracts.

• Director appointment validity.

4. Litigation and Contract Disputes

When a contract specifies foreign governing law, Thai courts may require:

• Proof of the governing law.

• Interpretation of contractual clauses under that foreign law.

Failure to provide adequate proof may result in Thai law being applied instead.

IV. Preparation of the Affidavit

A. Who May Prepare It?

Typically, the affidavit must be prepared by:

• A licensed attorney in the foreign jurisdiction.

• A legal expert qualified to interpret the relevant law.

• Occasionally, a law professor or recognized expert witness.

The affiant must clearly state their qualifications and licensing status.

B. Required Contents

A properly drafted affidavit should include:

1. Affiant’s credentials – legal license number, jurisdiction, experience.

2. Statement of oath – confirming the declaration is made under oath.

3. Description of relevant foreign law – statutes and case references.

4. Application to facts – explanation of how the law applies to the specific matter.

5. Confirmation of accuracy – declaration that the law cited is current and valid.

The document must be clear, detailed, and legally reasoned.

V. Authentication and Legalization

To be accepted in Thailand, an affidavit of foreign law typically requires authentication.

Step 1: Notarization

The affidavit is signed before a notary public in the foreign country.

Step 2: Legalization

Depending on the country of origin:

• If the country is a party to the Hague Apostille Convention, an apostille may be used.

• If not, the document must be legalized through the Thai embassy or consulate abroad.

After arrival in Thailand, further certification may be required by the Ministry of Foreign Affairs.

VI. Translation Requirements

If the affidavit is not in Thai:

• A certified Thai translation must be prepared.

• The translation may need official certification.

Courts and government offices will rely on the Thai version in official proceedings.

Accuracy in translation is crucial. Errors may weaken evidentiary value.

VII. Evidentiary Weight in Thai Courts

Thai courts treat foreign law as a question of fact.

Judges may:

• Accept the affidavit as expert testimony.

• Request additional evidence.

• Appoint independent experts.

• Disregard insufficiently supported affidavits.

If foreign law cannot be adequately proven, courts may apply Thai law instead.

This can significantly affect the outcome of cases involving contracts, inheritance rights, or marital property.

VIII. Risks and Common Mistakes

1. Inadequate Legal Analysis

A mere citation of statutes without explanation is insufficient.

2. Outdated Legal Provisions

Affidavits must confirm that the foreign law cited is current.

3. Improper Authentication

Failure to complete proper legalization procedures may result in rejection.

4. Translation Errors

Incorrect translation can alter legal meaning and invalidate arguments.

5. Lack of Expert Credentials

Courts may question the credibility of the affiant if qualifications are unclear.

IX. Interaction with Thai Conflict-of-Law Principles

Thailand applies its own conflict-of-law framework to determine when foreign law governs.

For example:

• Capacity to marry may be governed by the individual’s national law.

• Property located in Thailand is generally governed by Thai law.

• Contractual disputes may follow the governing law clause.

An affidavit of foreign law is often necessary to activate the intended foreign legal application.

X. Practical Considerations for Foreign Nationals and Businesses

When anticipating cross-border legal interaction in Thailand:

1. Plan ahead for documentation requirements.

2. Engage qualified foreign counsel early.

3. Ensure proper notarization and legalization.

4. Allow sufficient time for translation and authentication.

5. Verify that the affidavit specifically addresses Thai procedural expectations.

Proactive preparation reduces delays and legal uncertainty.

XI. Administrative vs. Judicial Use

Affidavits of foreign law are used in both:

• Court proceedings.

• Administrative processes (marriage registration, corporate filings, visa matters).

Administrative agencies may apply stricter formal requirements than courts.

Inconsistencies in documentation can delay approvals.

XII. Strategic Importance in International Transactions

In cross-border contracts, parties often specify foreign governing law. However, enforceability in Thailand depends on:

• Proper proof of foreign law.

• Consistency with Thai public policy.

• Compliance with procedural rules.

The affidavit serves as a bridge between legal systems, enabling Thai authorities to understand and apply foreign statutes accurately.

Conclusion

An affidavit of foreign law is a vital legal instrument in Thailand for proving the content and application of foreign legal systems. Whether used in marriage registration, inheritance proceedings, corporate transactions, or litigation, the affidavit allows Thai courts and administrative authorities to properly assess foreign legal principles within Thailand’s civil law framework.

Because foreign law must be proven as a matter of fact, failure to prepare a comprehensive, authenticated, and properly translated affidavit can result in the unintended application of Thai law instead.

Given the technical and procedural complexity involved, careful coordination between foreign legal counsel, Thai legal advisors, translators, and government authorities is essential. With thorough preparation and compliance, an affidavit of foreign law can effectively support cross-border legal recognition and ensure that international rights and obligations are properly upheld within Thailand’s legal system.