On 12 April 2025, the Emergency Decree on Digital Asset Businesses B.E. 2561, the primary law governing digital assets in Thailand, was amended.
The amendment is called the Emergency Decree on Digital Asset Businesses (No. 2) B.E. 2568 (the “Emergency Decree (No. 2)”) and had effect immediately upon its publication in the Royal Thai Government Gazette.
The primary focus of Emergency Decree (No. 2) is to clarify and codify the extraterritorial application of the original digital asset law. Businesses subject to the law, called “digital asset business operators,”1 now include those “operating outside the Kingdom of Thailand but providing services to persons within the Kingdom of Thailand, except for those providing services as prescribed by the S.E.C. [The Thai Securities and Exchange Commission].”2
Accordingly, unless falling under an exception prescribed by the S.E.C., digital asset business operators based outside of Thailand but providing services to Thai residents or other persons located in Thailand are now subject to this Thai digital asset law. The S.E.C.’s definition of digital asset business operators includes exchanges, brokers, dealers, fund managers, advisors and custodians dealing with cryptocurrencies or digital tokens.3
Emergency Decree (No. 2) sets forth seven bright-line factors to determine whether a digital business operator is deemed to have provided services to people located within Thailand. This is pursuant to a new Section 26/14:
- The digital asset business operator displays content, in whole or in part, in Thai language;
- The digital asset business operator is registered using a domain name with the extension “.th” or “.ไทย”, or any other name that signifies Thailand, the Kingdom, or the Kingdom of Thailand, or using a domain name in Thai language;
- The digital asset business operator requires or allows for the option of payment to be made in the currency of Thai baht, or accepts payments through electronic money accounts or deposit accounts in Thailand;
- There are conditions that require Thai law to be the governing law for digital asset trading transactions, or that require dispute cases be resolved in a Thai court;
- Remuneration has been paid to the provider of search engines to specifically facilitate access by users within the Kingdom of Thailand to the digital asset business operator’s services;
- There is an office or entity established, or having personnel to support or assist users within the Kingdom of Thailand;
- There are any other characteristics as prescribed by the S.E.C.
These seven factors closely resemble those introduced in 2022 in the Royal Decree on the Operation of Digital Platform Service Businesses that are Subject to Prior Notification B.E. 2565 (the “Royal Decree”). The interpretation of those factors may be instructive for determining how the S.E.C. will interpret these seven newly codified factors.5
In contrast to the unofficial “reverse solicitation” safe harbor often invoked by foreign service providers,6 the new seven factors of the Emergency Decree (No. 2) establish a bright-line test when a digital asset business operator is considered to be soliciting customers within Thailand:
- Focusing on servicing Thai customers by including Thai language7, by accepting Thai baht payments8, or by having a dedicated office or hiring dedicated staff to service Thai customers9;
- Representing a connection with Thailand by having a Thai-based domain name10 or by stating that Thai law is to be the governing law of customer agreements or that Thai courts are to be the forum to settle disputes11; or
- Targeting a local Thai location for advertising or marketing12.
The S.E.C. may also add to this list under Section 26/1(7). Further, the S.E.C. may issue interpretative guidance to resolve ambiguities and to add details to the other six factors.
1See Emergency Decree on Digital Asset Businesses B.E. 2561, Section 3
2Unofficial translation of Emergency Decree (No. 2), Section 3. While we have taken every effort to convey meaning and effect accurately in our unofficial translation, we disclaim responsibility and liability if our unofficial translation differs materially from any translation published by the S.E.C. in the future. Only the original Thai version carries legal authority.
3See the Notification of the Ministry of Finance regarding licensing of digital asset businesses B.E. 2561 (Consolidated), Section 2.
4Unofficial translation of Emergency Decree (No. 2), Section 4. While we have taken every effort to convey meaning and effect accurately in our unofficial translation, we disclaim responsibility and liability if our unofficial translation differs materially from any translation published by the S.E.C. in the future. Only the original Thai version carries legal authority.
5Section 10 of the Royal Decree lists seven basic factors with very similar wording to determine whether a foreign service provider has provided services to users located within Thailand. The legal interpretation of these factors may be useful as guidance as to how the Emergency Decree (No. 2) factors will be interpreted. However, we advise caution to not rely completely on prior interpretations of the Royal Decree factors. First, several of the Emergency Decree (No. 2) factors have been written with minor changes to the Royal Decree factors. Second, and more importantly, the Royal Decree is implemented by a different government agency, the Electronic Transactions Development Agency, operating under a different ministry than the S.E.C.
6“Reverse solicitation” is a concept relied upon by some foreign companies to argue that Thai law should not apply to them, even though they provide goods or services to customers within Thailand. The argument is that Thai law should not extend to a foreign goods or service provider if it does not actively solicit customers in Thailand. Instead, if it happens to gain customers in Thailand because those customers reach out on their own to buy its goods or service, then it should not be subject to Thai law. There are uncodified factors that seem to have been at least acknowledged by some Thai regulators to determine whether a goods or service provider solicited the customer in Thailand, or whether the customer reached out and “reverse solicited” the goods or service provider.
7See Emergency Decree (No. 2), Section 26/1(1).
8See Emergency Decree (No. 2), Section 26/1(3).
9See Emergency Decree (No. 2), Section 26/1(6).
10See Emergency Decree (No. 2), Section 26/1(2).
11See Emergency Decree (No. 2), Section 26/1(4).
12See Emergency Decree (No. 2), Section 26/1(5).
