When Administrative Cases Cross Borders: Legal Considerations Regarding the Service of Judicial Documents and the Use of Video Conferencing with Parties Residing Abroad

Abstract

    In principle, the exercise of state sovereignty is anchored in the principle of territoriality, whereby legislative, executive, and judicial powers are strictly confined within a state’s borders. However, the increasing exigency of transnational litigation has compelled courts worldwide to face the challenge of finding a balance between protecting the parties' right to be heard and respecting the sovereign equality of states. While international cooperation frameworks have evolved to facilitate cross-border proceedings—specifically regarding the Service Abroad of Judicial and Extrajudicial Documents and the taking of evidence via video-conferencing technologies—such mechanisms remain predominantly restricted to criminal, civil, and commercial matters, leaving a notable lacuna in the realm of administrative litigation. In the context of Thailand, this study identifies a significant procedural disparity. While the Courts of Justice have clear provisions and practices for cross-border criminal, civil, and commercial cases, the Thai Administrative Court still lacks a unified legal framework on this issue. Consequently, as the Requesting State (the state initiating cross-border judicial power), Thailand lacks procedural clarity in administrative matters. Similarly, in its capacity as a Requested State, Thailand has yet to formalize its stance on reservations or consent regarding the service of judicial documents and video-link examinations initiated by foreign courts. This results in delays in international judicial cooperation, as it must primarily rely on the traditional Diplomatic Channel. A comparative study of the practices in the French Republic, the United Kingdom, and the Commonwealth of Australia reveals that challenges in conducting cross-border video proceedings often stem from blocking statutes in civil law jurisdictions. This is evident in the French Republic, which prohibits French nationals, French residents, and representatives or employees of French legal entities from disclosing informationor transmitting documents that may affect French sovereignty, security, or economic interests to foreign public authorities, unless done under international cooperation frameworksor diplomatic channels. Consequently, conducting cross-border video proceedings involving the French Republic cannot be done easily. In light of such civil law limitations, the UK has systematically established clarity as a Requesting State by surveying other countries’ positions on cross-border video-link evidence for its courts and Tribunals, covering criminal, civil, and administrative cases. If a country consents or raises no reservations to taking video-link evidence from witnesses or parties residing within its territory, UK courts and Tribunals
can proceed in a timely manner without resorting to significantly more time-consuming international frameworks or diplomatic channels. Meanwhile, Australia has clearly declared its state positions and reservations as a Requested State. Such proactive measures enable courts and relevant agencies to coordinate international judicial cooperation rapidly and in accordance with international law.

    This article, therefore, proposes that the Thai Administrative Court establish guidelines using the traditional Diplomatic Channel while concurrently coordinating with the Ministry of Foreign Affairs to issue Verbal Notes to survey the legal constraints of foreign states regarding cross-border administrative proceedings to create clarity for future cooperation. Additionally, it is recommended that the Thai government should declare clear positions on judicial cooperation requests from foreign administrative courts to enable relevant agencies to respond effectively—such as whether it consents to the service of judicial documents via postal channels directly to persons residing in Thailand, or whether it consents to witness examination via cross-border video-link for witnesses or parties residing in Thailand.