Cross-Border Construction / EPC / FIDIC Contract Notarisation for Foreigners — Employers, Contractors and PPP / BOI / EEC Projects

Why does a FIDIC contract need notarisation in Thailand when it doesn't elsewhere?

Because (1) **Foreign Business Act § 8(3)** layers compliance that other jurisdictions don't have — JV / BOI / EEC structures must be proven; (2) **COE / COA licensing** forces foreign engineers to hold APEC / ACPE, with the notary certifying the SD; (3) **HCCH Apostille (entering into force for Thailand 28 February 2027)** makes the contract immediately usable abroad — overseas lenders require it; (4) **date certainty + capacity verification** defeats the forged-signature defence common in cross-border deals. Every EEC / Map Ta Phut / industrial-estate deal closed by Japanese, Korean and Chinese EPCs uses the notary pack as standard.

How does Silver Book (EPC turnkey) differ from Red Book for notarisation?

**Silver Book** = lump-sum, single-point responsibility — contractor takes design + construction + schedule + cost risk. The notary focuses on (1) **parent company guarantee** (because liability is very high); (2) **performance bond 15–20%** (higher than Red Book 10%); (3) **LD cap** (usually 10–15% of contract value); (4) **reduced variation rights** (Sub-Clause 13). **Red Book** = employer-design, contractor builds against BOQ — the notary focuses on the variation-order mechanism and EOT procedure. Silver is used on power / petrochemical / LNG; Red on buildings / roads.

How does a genuine 51% Thai JV differ from a nominee — and how does the notary check?

**Genuine JV**: Thai shareholders must (1) **vote independently** (no side letter waiving rights); (2) **inject genuine capital** pro rata; (3) **hold genuine director seats**; (4) **run a genuine business** (not a letter box). **Nominee** (illegal): the Thai shareholder holds for the foreigner in exchange for a fee, with no voting power — FBA § 36 breach, 3 years' imprisonment + THB 1M fine + asset forfeiture. The notary verifies the **Thai shareholder's source of funds, director-meeting minutes and bank statements** before certifying the JV agreement. We refuse nominee structures 100%.

Can foreign engineers sign Thai construction drawings? What does COE require?

Under **Engineering Profession Act 2542 § 7**, design / supervision / signature of 'controlled work' drawings must be performed by an **Associate / Professional / Senior Professional** licence holder under COE. Foreign engineers can practise via (1) the **APEC Engineer Register** (seven disciplines: Civil, Mechanical, Electrical, Mining, Chemical, Industrial, Environmental); (2) the **ASEAN Chartered Professional Engineer (ACPE)** register; or (3) a **BOI / EEC special permit** (project-specific). The notary certifies the engineer's SD — preventing disqualification of the design in court or refusal of Or.1 issuance. Signing without a licence = THB 100K fine + project suspension.

What is DAAB and why does FIDIC 2017 mandate it?

The **Dispute Avoidance/Adjudication Board (DAAB)** is a panel of 1–3 independent experts, normally standing for the whole project (not ad-hoc), that issues binding-pending-arbitration decisions within **84 days** under Sub-Clause 21. Benefits: 5–10× faster than arbitration and avoids project stoppage. Parties must comply immediately — if dissatisfied, they file a notice of dissatisfaction within 28 days → amicable → arbitration. The notary certifies DAAB appointment, decision and notice — enforceable in court. Projects > USD 50M almost always mandate a standing DAAB.

SIAC vs ICC vs THAC — how to choose?

**SIAC Singapore**: fast (12–18 months), moderate cost, strong Asian enforcement, Thai / English / SG law, seat = Singapore. **ICC Paris**: highest prestige, used for deals > USD 100M, higher cost (USD 5,000 filing + arbitrator), seat anywhere. **THAC Bangkok**: lowest cost, Thai law, seat = Bangkok, fast. All three sit under **NY Convention 1958** — enforceable in 168 states. Japanese GCs prefer SIAC; European EPCs prefer ICC; local players prefer THAC.

Does FIDIC 2017 force majeure cover COVID and sanctions?

**Sub-Clause 18 (Exceptional Events)** covers (1) war / hostilities / terrorism; (2) **epidemics / pandemics** (post-COVID amendment); (3) **government sanctions** (Russia / Iran / Myanmar); (4) natural catastrophe; (5) strikes / lockouts. Declaration requires: (a) notice within 14 days of awareness; (b) mitigation plan; (c) cost / time impact within 28 days. Late notice = waiver of EOT / cost claim. We hold the template and notarise the notice within 24 h — critical in the current sanctions era.

What is the penalty for starting construction before EIA approval?

**Environment Act B.E. 2535 § 100**: breach of EIA = **up to 5 years' imprisonment + THB 500,000 fine + project suspension**. Projects must wait for ONEP approval (typically 90–180 days for EIA; up to 365 days for EHIA on special projects like power / mining). Lenders (JBIC, IFC, ADB) will not disburse without EIA. The notary certifies the project manager's SD confirming permit coverage — a condition precedent for disbursement.

What are typical FIDIC LD rates and caps?

**LD daily rate**: usually 0.05–0.1% of contract price per day. **LD cap**: 5–15% of contract price (Silver Book 10–15%; Red Book 5–10%). Caps that are too high = penalty (unenforceable under CCC § 380); too low = the contractor isn't disciplined. Our notary + construction lawyer benchmarks the cap against market and reviews Sub-Clauses 8.8 (delay damages) and 14.15 (currency). LDs above 10% in Thailand may be reduced by the court.

How do you make a parent company guarantee (PCG) enforceable in Thailand?

The PCG requires: (1) **parent board resolution** authorising it + cap; (2) **parent director's wet signature** in the originating country before a notary; (3) **Apostille** (HCCH (in force for Thailand 28 February 2027) — no Thai embassy step); (4) **sworn translation** + notarised; (5) **governing-law clause** — Thai or English law; (6) **submission to jurisdiction** — Thai courts / SIAC / ICC; (7) **no set-off clause** — to stop the parent claiming offsets. Overseas lenders generally insist on English law + SIAC for better enforceability.

What does a project-finance lender (JBIC / IFC / ADB) need on top of the notary pack?

Standard project-finance pack: (1) **notarised contract + PCG + bond**; (2) **EIA / social impact assessment**; (3) **environmental & social action plan (ESAP)**; (4) **Equator Principles compliance** (projects > USD 10M); (5) **independent engineer report** (Knight Frank / WSP / Mott MacDonald); (6) **legal opinion** from local counsel (we issue); (7) **insurance pack** (CAR/EAR + marine cargo + ALOP/DSU + liability). The notary certifies items 1, 6 and 7. HCCH (in force for Thailand 28 February 2027) cuts the lender's local-counsel duplication step — 30–50% faster.

How long do you retain an EPC file under PDPA?

**10 years** under (1) the CCC § 193/30 statute of limitations; (2) AMLA § 22 (5 years post-completion); (3) Revenue Code § 19 (5 years for tax). Adding the **defects-liability period** (12–24 months) + **arbitration time-bar** (5 years) → **15 years** for large projects. PDPA § 26 purpose-limitation. ISO 27001 + AES-256 + off-site Singapore backup. Disclosure only to client + lender + DAAB / arbitrator + court + regulators (BOI / EECO / DIW / ONEP).