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Brookfield on US$100 Million Sale of Thai Solar Energy Business

Global law firm White & Case LLP has advised Brookfield Renewable Partners on the sale of its solar energy business in Thailand to Global Power Synergy Public Company (GPSC) for approximately THB3 billion (US$100 million).

GPSC is the power and energy arm of PTT Public Company, a leading state-owned oil and gas company in Thailand. Pursuant to the transaction, which closed in March 2020, GPSC has acquired 100 percent ownership of N.P.S. Star Group Company Limited (NPS), World Exchange Asia Company Limited (WXA), and P.P. Solar Company Limited (PPS), with a total capacity of 39.5 MW. In addition to these three companies, GPSC has also acquired 100 percent ownership of TerraForm Global Operating (Thailand), which provides operation and maintenance services to the nine solar farms.

Brookfield previously acquired these assets as part of its 2017 investment in a global renewable energy asset portfolio belonging to Terraform Global Power.

The White & Case team which advised on the transaction was led by partner Jon Bowden (Singapore), with support from partners Melody Chan (Hong Kong) and Douglas Jensen (New York) and associates Rob Whitworth, Jessica Leung, Trishala Naidu, Lisa Yeo and Kian Newlyn (all Singapore), Lorraine Yip and Connie Ng (Hong Kong) and Ashley Williams (Washington, DC).

Thailand Postpones Effective Date of Data Privacy Law

Background

The Thai Cabinet, on May 19, 2020, approved a Royal Decree on Organizations and Businesses which shall be exempted from compliance with the Personal Data Protection Act B.E. 2562 (2019) (“Royal Decree“) to delay the enforcement date of the Personal Data Protection Act B.E. 2562 (2019) (“PDPA“). The Royal Decree has been published in the Royal Gazette on May 21, 2020 and will be effective from May 27,2020 to May 31, 2021. It provides exemptions to data controllers listed under the Royal Decree to certain chapters and section under the PDPA which include:

–          Chapter 2 (data controllers’ obligations relating to the use, collection, and disclosure of personal data, privacy notices, consent requirements, exemptions and cross-border of data privacy);

–          Chapter 3 (data subject rights, data protection officer and record of processing);

–          Chapter 5 (complaints and administrative punishments);

–          Chapter 6 (civil penalties and punitive damages);

–          Chapter 7 (criminal liabilities and administrative punishments); and

–          Section 95 (transitional matter).

Data controllers who shall obtain the exemptions under the Royal Decree are as follows:

1)      Government authorities;

2)      Foreign public authorities and international organizations;

3)      Foundations, associations, religious organizations, and non-profit organizations;

4)      Agricultural businesses;

5)      Industrial businesses;

6)      Commercial businesses;

7)      Medical and public health businesses;

8)      Energy, steam, water and waste disposal businesses, including their related business;

9)      Construction businesses;

10)  Repair and maintenance businesses;

11)  Transportation, logistic, and warehouse business;

12)  Tourist businesses;

13)  Communication, telecommunication, computer, and digital businesses;

14)  Financial, banking and insurance business;

15)  Real estate businesses;

16)  Professional businesses;

17)  Management and support services business;

18)  Scientific and technological, academic social welfare and artistic businesses;

19)  Educational businesses;

20)  Entertainment and recreational businesses;

21)  Security business; and

22)  Household and community enterprise businesses whose activities cannot be clearly classified.

If there is any question as to whether particular organizations or businesses are fallen under the above list, the Personal Data Protection Committee (PDPC) shall consider and render its final decision at its sole discretion.

The main reason as specified in the Royal Decree is to provide more time for the business operators, which shall be regarded as data controllers by the PDPA, to prepare themselves to be fully compliant with the PDPA. The Royal Decree further specifies that business operators, including private and government sectors, are not ready to be in compliance with the PDPA. This was mainly due to requests from the private sector filed with the government indicating problems with the economy and within their organizations, such as the economic impact and other restrictions due to Covid-19 situation.

The extension is not to be interpreted that the Government of Thailand is relaxing its readiness to implement the PDPA. An essential action by the Thai government is that the PDPC committee has been appointed and will start the process of formulating regulations and an enforcement culture surrounding the PDPA.  The list of the PDPC members approved by the Cabinet as announced by the government’s spokesperson on 19 May 2020 are as follows (note that this list is not official until published in The Government Gazette):

1)      The Chairman: Mr. Thienchai Na Nakorn

Professor of faculty of law, Sukhothai Thammatirat Open University

Former Constitution Drafting Committee (CDC)

Former senior member of various committees (e.g. Committee of Official Information Commission, Committee of National Institute of Educational Testing Service (NIETS) and secretary-general of Political Development Council).

2)      Senior committee (personal data protection): Mr. Nawanan Theera-Ampornpunt

Technocrat on health informatics;

Deputy dean on practitioner level of faculty of medicine, Ramathibodi Hospital.

3)      Senior committee (consumer protection): Pol.Lt.Col Thienrath Vichiensan

Senior committee of Official Information Commission;

Former chief of inspector of Prime Minister Office;

Director of the Official Information Commission.

4)      Senior Committee (Information and communication technology): Mr. Pansak Siriruchatapong

Former Vice Minister of Ministry of Digital Economy and Society;

Former director of National Electronics and Computer Technology Center (NECTEC)

5)      Senior committee (social science): Asst. Prof. Tossapon Tassanakunlapan

Professor and researcher of faculty of law, Chiang Mai University

6)      Senior committee (legal): Ms. Thitirat Thipsamritkul

Teacher of faculty of law, Thammasat University

7)      Senior committee (legal): Prof. Supalak Pinitpuvadol

Professor of faculty of law, Chulalongkorn University

8)      Senior committee (health): Prof. Prasit Watanapa

Dean of faculty of medicine, Siriraj Hospital

9)      Senior Committee (finance): Ms. Ruenvadee Suwanmongkol

Secretary-general of the Securities and Exchange Commission

10)  Senior Committee (Government Information Management): Mrs. Methinee Thepmanee

Former secretary-general, Office of the Civil Service Commission (OCSC);

Former permanent secretary, Ministry of Information and Communication Technology (ICT).

In addition to the abovementioned members, please note that the PDPA requires that the PDPC must appoint permanent secretary of the MDES as the vice-president of the PDPC, together with 5 additional board members which include (i) the permanent secretary of the Prime Minister Office, (ii) the secretary-general of the juridical council, (iii) the secretary-general of the office of consumer protection board, (iv) the director-general of the Rights and Liberties Protection Department, and (v) the attorney-general. Please note that as of the writing of this article 27 May 2020, the official list of the PDPC members are not yet published in The Government Gazette.

The above is for general information purposes only and should not be relied upon as legal advice.

UN Condemns Thailand poultry producer for silencing human rights defenders

A group of United Nations (UN) experts condemned Thammakaset, a Thai poultry producer, for alleged targeting of human rights defenders Thursday.

In 2019, Thammakaset allegedly used Thai defamation laws to sue and have prosecuted ten individuals who criticized Thammakaset’s labor practices for human rights abuses. The UN experts called upon Thailand to reform defamation laws based on the UN Guiding Principles on Business and Human Rights to prevent companies from silencing human rights activists.

Thailand is the first country in the Asia Pacific region to have a national action plan against human rights abuses in business. Additionally, Thailand has recently proposed to amend laws and protect human rights defenders.

Despite these promising actions, the UN experts recommended that Thailand take further action:

Although the adoption of the national action plan and the amendment to the Criminal Procedure Code to protect human rights defenders are positive steps in the right direction, it is time for the Thai Government to ensure that these measures are effective and that companies like Thammakaset stop vexatious legal proceedings against human rights defenders.

The report follows a March 2018 report to the Human Rights Council that previously called upon Thailand to reform its defamation laws for similar concerns.