ข้อตกลงการไม่แข่งขันในประเทศไทย: ข้อตกลงดังกล่าวมีผลบังคับใช้หรือไม่

ปรับปรุงล่าสุดเมื่อ 26 ตุลาคม 2569

A non-compete clause in Thailand is not automatically void, and it is not automatically binding either. Thai courts enforce restraints on a former employee’s right to work, but only to the extent that the restraint is reasonable. The clause that tends to fail is the one that reads like a global ban for five years; the clause that tends to hold is narrow, short and tied to something the employer genuinely needs to protect.

That distinction matters on both sides of the desk. Employers in Thailand routinely copy restrictive covenants out of English or American templates and are surprised when a court cuts them down. Employees sign them assuming they are unenforceable boilerplate and are surprised when an injunction or a damages claim arrives. Below is how the test actually works.

Are non-compete clauses legal in Thailand

Yes, in principle. Thailand has no statute banning post-employment restraints, and freedom of contract is the starting point. An employee may validly agree not to compete with a former employer for a period after leaving.

The limit comes from two directions. The first is มาตรา 150 แห่งประมวลกฎหมายแพ่งและพาณิชย์, under which a juristic act with an object contrary to law, public order or good morals is void. A restraint so wide that it stops a person earning a living at all runs into that provision.

The second, and the one that decides most real cases, is the Unfair Contract Terms Act B.E. 2540. Section 5 of that Act deals specifically with terms restricting a person’s freedom to carry on an occupation or business: such a term is enforceable only so far as it is not an unreasonable restriction, and the court weighs the scope of the restricted activity, the geographical area and the duration. The court does not simply strike the clause out. It enforces it to the extent that is reasonable and no further.

The reasonableness test that decides the case

Because the court can trim rather than cancel, the practical question is never “is my non-compete valid” but “how much of it will survive”. A clause that bans an ex-employee from the entire industry nationwide for three years will often be read down to the specific competing activity, in the area where the employer really trades, for a year or so. The employer who drafted the three-year global ban then discovers he has spent his leverage on a clause the court rewrote.

Drafting choice	Likely to be upheld	Likely to be cut down
ระยะเวลา	Six months to about two years	Three years or more
ภูมิศาสตร์	The province or region where the employer actually trades	Worldwide, or all of Thailand with no trading link
Activity	The specific competing role or product line	Any work in the sector in any capacity
Who is bound	Senior staff with client relationships or trade secrets	Junior or operational staff with no confidential access
ค่าตอบแทน	Compensation paid for the restricted period	Nothing given in return

These are tendencies drawn from how the reasonableness test is applied, not fixed statutory limits. There is no bright-line period in Thai law, which is exactly why the drafting matters so much.

What Thai courts actually look at

Five questions do most of the work.

1. Is there a legitimate interest to protect? Customer relationships, pricing, formulae, source code, supplier terms. An employer protecting itself from ordinary competition rather than from misuse of something proprietary starts badly.
2. Did this employee have access to it? A restraint imposed on staff who never saw confidential material is hard to justify at any length.
3. Is the restraint proportionate to that interest? The shorter and narrower the clause, the easier the employer’s argument.
4. Can the employee still earn a living? If the honest answer is no, the clause is in trouble.
5. How did the employment end? An employer who dismissed the employee without cause and then seeks to bar him from working presents a far less sympathetic case than one losing a key person to a direct rival.

Penalty clauses and why they get cut down

Thai non-competes usually carry a fixed sum payable on breach, often expressed as a multiple of monthly salary. That figure is a penalty, and Section 383 of the Civil and Commercial Code allows the court to reduce a penalty to a reasonable amount where it is disproportionately high, taking into account the creditor’s legitimate interest rather than the number the parties wrote down.

So an employer relying on a headline figure of twenty-four months’ salary should assume it will be tested against the loss actually suffered. Conversely, an employer who can prove real loss, a client that followed the employee out of the door, is not confined to the contractual figure and may claim damages for the wrongful act under มาตรา 420 where the conduct goes beyond breach of contract. Our note on การละเมิดสัญญาในประเทศไทย covers how damages and penalties interact.

Non-compete, non-solicitation and confidentiality are different animals

Lumping the three together in one paragraph is the most common drafting mistake, because they are judged differently and the weakest one can drag the others down.

• Non-compete: stops the employee working for a competitor. The most intrusive, so the most closely scrutinised under the reasonableness test.
• Non-solicitation: stops the employee approaching named clients or poaching colleagues. Far easier to defend, because the employee can still work in the sector.
• Confidentiality: protects defined information and can last indefinitely for genuine trade secrets. It is reinforced by the Trade Secrets Act B.E. 2545, which gives independent remedies for misappropriation. See our page on ข้อตกลง NDA ในประเทศไทย.

Drafted as three separate clauses with their own severability, an employer who loses the non-compete still keeps the non-solicitation and the confidentiality obligations. That is usually where the real protection was anyway.

Which court hears the dispute

A dispute arising from an employment contract goes to the ศาลแรงงาน, under the Act on the Establishment of Labour Courts and Labour Court Procedure B.E. 2522. Three features of that forum shape the strategy.

• Procedure is deliberately informal and the court pushes hard for conciliation. Many of these cases settle at the first hearing on an agreed narrowing of the restraint.
• The court has an explicit protective function toward employees, which colours how an aggressive clause is read.
• Limitation periods matter. General contractual claims are subject to the periods in the Civil and Commercial Code, and employment claims have their own shorter deadlines. Our page on อายุความ sets out the main ones.

Drafting a non-compete clause in Thailand that survives

If you are an employer in Thailand, the following produces a clause worth relying on.

1. Name the competing activity precisely, not the industry.
2. Limit the area to where you actually trade.
3. Keep the period to twelve months unless you can explain why longer is necessary.
4. Apply it only to staff who hold client relationships or confidential material.
5. Consider paying for the restricted period. Compensation is the single strongest argument for reasonableness.
6. Separate the three covenants, and add a severability clause.
7. Execute it in Thai and English, and have the employee sign at hiring rather than on the way out. For the surrounding rules see our guides to กฎหมายแรงงานไทย และ สิทธิของลูกจ้างในประเทศไทย.

If you are the employee being asked to sign

Do not assume the clause is worthless, and do not assume it is airtight. Ask for the period and the area to be narrowed before you sign, which is far easier than arguing about it later. If you are already bound and you have an offer from a competitor, get the clause reviewed before you resign: the question is usually not whether you can move but how, in what role, and after how long. Resigning first and asking afterwards is the expensive order of operations.

If the employment ended in dismissal, the circumstances of that dismissal are part of your defence. Our page on การเลิกจ้าง explains what the employer had to do. Thailand’s labour framework and official guidance are published by the กระทรวงแรงงาน.

คำถามที่พบบ่อย

This article was written and reviewed by Sebastien H. Brousseau, LL.B., B.Sc., who has been based in Thailand since 2004 and has run ThaiLawOnline since 2006. Our team drafts and reviews Thai employment contracts for employers and reviews restrictive covenants for departing executives, in Thai and English, and represents both sides in Labour Court proceedings. If you need a non-compete clause that will hold, or an opinion on one you have already signed, contact ThaiLawOnline for a review.

This article is general information about Thai law and is not legal advice. Whether a particular restraint is reasonable depends entirely on the wording of your contract, your role and the circumstances in which the employment ended. Please take advice on your own situation before signing, enforcing or breaching a non-compete clause.