Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
The development of the Siamese or Thai private international law is, in significant parts, a transfer of Western legal methodology, especially that of German and French civil laws, and British common law, as evidenced in provisions in the Thai Conflict of Laws Act (of 20 March BE 2481 (1938), Government Gazette, vol 55, p 1021, henceforth Thai PILA), the Thai Civil and Commercial Code (Book I and II of 11 November BE 2468 (1925), Government Gazette, vol 42, p 1; Book III of 1 January BE 2471 (1928), Government Gazette, vol 45, p 1; Book IV of 18 March BE 2473 (1930), Government Gazette, vol 47, p 442; Book V of 29 May BE 2478 (1935), Government Gazette, vol 52, p 474; Book VI of 19 June BE 2486 (1943), Government Gazette, vol 60, part 32, p 1092, henceforth Thai CCC) and other special legislation.
The proliferation of European colonization to all neighbouring countries of Thailand has accelerated the codification process of the Thai CCC and the Thai Civil Procedure Code (of 20 June BE 2478 (1935), Government p. 1Gazette, vol 52, p 723, henceforth Thai CPC). Facing the expansion of the West, Thailand was left with no choice but to exercise its self-determination by restructuring the legal system to pursue a type of modernization. In addition, drafting Thai private international law was a condition for the containment of extraterritorial rights of the great powers and for their concluding treaties with Thailand as an equal sovereign state. It was a reception of Western private international law with a gradual and contextual evolution which has become today’s Thai private international law.
II. Sources of Thai private international law
Thai private international law has both international and national sources. International sources are quite limited in number since Thailand is not keen on ratifying private international law-related treaties, preferring to apply the best practice and private international law rules into its domestic legislation. The conventions to which Thailand is a party are, for example, the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134), the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27, and 1985, 828 UNTS 221), the Paris Industrial Property Convention (Paris Convention for the Protection of Industrial Property, 20 March 1883, with later amendments, 828 UNTS 305) and the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3). Thailand is also a party to bilateral agreements on judicial cooperation in →civil and commercial matters concluded with →Australia, →China, →Indonesia, Laos, →Spain and →Vietnam.
Internal law, as another source of Thai private international law, is made up of rules contained in the Thai PILA, the Thai CCC and the Thai CPC. The law is also unevenly distributed in special legislations, including, but not limited to, the Thai Carriage of Goods by Sea Act (of 22 November BE 2534 (1991), Government Gazette, vol 109, part 203, special issue, p 68, henceforth Thai CGS), the Thai Arbitration Act (of 29 April BE 2545 (2002), Government Gazette, vol 119, part 39Kor, p 1, henceforth Thai AA) and the Thai Child Adoption Act (of 22 April BE 2522 (1979), Government Gazette, vol 96, special part, special issue, p 21, henceforth Thai CAA). The Thai PILA, as the main legislation of Thai private international law, contains 42 provisions, which are divided into six chapters:
Chapter I – General Provisions.
Chapter II – Status and Capacity of Persons.
Chapter III – Obligations.
Chapter IV – Things.
Chapter V – Family.
Chapter VI – Succession.
III. General principles in Thai private international law
Certain provisions of the Thai PILA provide techniques and general principles for solving issues related to all possible areas of private international law and connected to specific provisions in the other parts.
Section 3 Thai PILA makes reference to general principles of private international law in the absence of the relevant provisions of Thai private international law. The court may regard general principles of private international law as applicable, despite foreign doctrines and jurisprudence of their origin, ie classification (qualification or Qualifizierung; →Classification (characterization)), incidental questions (question préalable or Vorfrage), the application of foreign law ex officio (application d’office), the evasion of laws, vested or acquired rights (droits acquis or wohlerworbene Rechte) theory, the law of immediate application (loi d’application immédiate), public order (ordre public), etc.
Section 3 Thai PILA has the objective of upholding the flexibility of Thai private international law, as may be elaborated in academic writings and jurisprudence in accordance with p. 1changing requirements. However, recent development is relatively slow taking into account that of other countries. Nevertheless, these doctrines, as compared with their countries of origin, have some characteristic implications for the Thai legal system.
Reference to droits acquis before a court is deemed to assist the court in focusing on the enforcement of such legal status, instead of engaging in an unnecessary ascertainment and reapplication of the foreign law relating to the legal status acquired abroad. This is particularly the case where the ascertainment turns out to be unfeasible according to s 8 Thai PILA, given the passive role of the judge discussed below.
Section 4 Thai PILA contains a partial regulation of →renvoi which is meant to reconcile the conflict rules of the legal systems involved in a given case. There is no need for such reconciliation where a foreign conflict-of-laws rule designates the same law as applicable as the Thai PILA. Here, the issue will be regulated by the substantive law of such a country. For example, the capacity of A, a national of country X, to perform a juristic act in Thailand shall be governed by the law of country X, as the lex patriae according to s 10 Thai PILA. This includes a reference to the conflict rules of country X. The latter country is a civil law system and also considers the lex patriae as the law of closest connection governing A’s capacity. Consequently, the substantive law of country X gives the answer regarding A’s capacity regardless of whether a court in country X or in Thailand will deal with the case.
If a foreign conflict rule does not refer to the same law as does the Thai PILA, but remits the issue to a law of another country, the issue will subsequently be remitted either to the foreign conflict rules of a third country or to its substantive law depending on the private international law of the first foreign country. For example, the capacity of B, a national of country Y and domiciled in country Z, to do a juristic act in Thailand shall be governed, in accordance with s 10 Thai PILA, by the law of country Y, which, by hypothesis, is a common law system. The private international law of country Y remits the issue to the conflict of laws of another country, say, the law of B’s domicile, which is the law of country Z. In that case the Thai court would follow the reference by the conflict rules of country Y.
It is possible that a foreign conflict rule remits an issue back to the Thai PILA. If this happens, Thai substantive law applies in accordance with s 4. For example, C had a domicile at the time of his death in country Z. With regard to movables, intestate →succession is governed by the law of the last domicile, ie by the law of country Z. If the conflict rules of country Z consider the law of Thailand as applicable, the succession will then be governed by the Thai substantive law, not the Thai PILA (see s 4 Thai PILA).
The ordre public as reserved in s 5 Thai PILA is expressed in the transliterated Thai term as public order and good morals. The ordre public in this provision is narrowed down to ordre public plein, which implies a full sanction against the application of the foreign law. Ordre public atténué, as another type of ordre public, is not explicitly prescribed in the Thai PILA, but is reflected in special legislation and is often used by the courts, mostly in cases of recognition and enforcement of droits acquis, foreign judgments or judicial orders. The ordre public atténué is asserted in a number of statutes. Section 5(1) Thai CAA recognizes the legal effect of an adoption made in a party to the Hague Adoption Convention, unless such a droit acquis is contrary to the Thai ordre public atténué. Section 44 Thai AA vests a judicial competence to dismiss an application for the enforcement of foreign arbitral awards which are contrary to the ordre public atténué.
Although widely criticized as an enfant terrible, or unruly horse, the concept of ordre public in Thai private international law is not beyond the accessibility of foreign lawyers because it can be observed in public order or public policy laws (lois d’ordre public), including, but not limited to, criminal law, procedural law and certain legislation having mandatory effect, which help to clarify the possibility of application. For example, under Thai family law, →marriage is restricted by the age of either of the partners; marriage of underage partners may meet the requirements under the family law of their →nationality, but it would be against the ordre public as reflected in the relevant provisions in the Thai CCC and in the Thai Penal Code (of 15 November BE 2499 (1956), Government Gazette, vol 73, p 95, special issue, p 5). Certain acts which are legitimate according to the legal systems of some countries are unacceptable under the Thai ordre public, for example, gambling, prostitution, drug trafficking and pornography.
Apart from the aforementioned ordre public, another obstacle in the employment of private p. 1international law principles and foreign law is the passive function of the judges. It is the party who has the primary role in ascertaining the foreign law before the court. If the proof of the foreign law is not to the satisfaction of the court, it may decide to apply Thai law in pursuance to s 8 Thai PILA. Thai law has not regarded the role of the judges as being responsible for the cooperation with the parties.
As in other civil law jurisdictions, nationality is acknowledged as a genuine link under the Thai PILA. A conflict of nationalities of a natural person can be settled under s 6 Thai PILA. If individual X obtains more than one nationality, the law of the last acquired nationality is applicable. Thus, the time factor shall be regarded, for example, where X obtained the nationalities, first, of A and later of B and then did a juristic act. Afterwards, he obtained nationality C. In this case, the law of country B shall be applicable to the individual’s capacity according to ss 6 and 10 Thai PILA.
In the case of a simultaneous acquisition of nationalities, the lex domicilii shall apply in accordance with s 6(2) Thai PILA. Using the same example, if X obtained nationalities A and B at the same time, but his domicile is in country A, the law of country A is the governing law. If X’s domicile is neither in country A nor country B, the law of the country where the claim was brought is the governing law. The Thai legal system has recognized the nationality of juristic persons in s 7 Thai PILA, which gives preference to the place of the headquarters of the business, the law of which is thus considered as the lex patriae of the juristic person.
As a condition for the validity of juristic acts, formality requirements are governed by the general provision of s 9 Thai PILA. Under that rule, the form shall be governed by the law of the country where such act is made (locus regit actum), except for juristic acts relating to →immovable property the form of which is subject to the lex rei sitae. Further exceptions result from specific rules for formality requirements for juristic acts in fields such as obligations (s 13(3) Thai PILA), family (s 20 Thai PILA) and succession (s 40 Thai PILA). Formality provisions in the Thai PILA, from the perspective of Thai private international law, are supportive rather than restrictive of formal validity. For example, if the law of a country where a contract is made requires a certain form and the parties have not complied with it under the locus regit actum rule, but have satisfied the criteria under the law governing the substance of the contract in accordance with s 13 Thai PILA, the contract is nevertheless valid as far as its form is concerned. If the case happens vice versa and the contract complies with the formal requirements of the place of contracting, but not with those of the law governing its substance, the legal effect remains the same: the contract is formally valid (→Formal requirements and validity). Section 9 Thai PILA is interpreted as a supporting provision by qualified experts of Thai private international law. However, this interpretation does not clearly result from the text and system of the Thai PILA, as normal readers may consider a specific provision such as s 13 as a lex specialis excluding the application of the general provision of s 9 Thai PILA, considering the latter as a default provision that applies only in the absence of any specific rule. This view will produce different results, giving a prevailing weight to the formality issue. A common understanding is at least that the general provision of s 9 Thai PILA deals with juristic acts, whereas s 13 Thai PILA deals with contracts. General principles in Thai private international law include some other techniques, ie qualification and Vorfrage, which are not exhausted in this national entry. Thai courts have rarely tackled the issue of the law applicable to qualification and to the determination of the law governing Vorfrage. There is no clear case-law where the Thai courts make reference to these rules, even though the courts may apply them according to s 3 Thai PILA.
IV. Specific parts of the Conflict of Laws Act BE 2481 (1938)
1. Law of status and capacity of persons
Status and capacity of persons (→Capacity and emancipation) are subject to the Thai PILA, ss 10–12. The lex patriae is regarded as providing the closest link to the question on the capacity of a person. If an individual is not capable under his or her law of nationality, but is capable to do juristic acts under Thai law, such an individual is capable of doing the juristic acts in Thailand according to s 10(2) Thai PILA. Certain issues of legal status, for example, sex, and the beginning and termination of the personality of a natural person are also considered as being regulated by the lex patriae which applies as a general principle of private international law in the light of ss 10 and 3 Thai PILA. If a juristic act is connected with p. 1immovable property, the lex rei sitae shall be applied to the capacity of the parties involved.
Section 11 Thai PILA gives judicial competence to Thai courts to declare the disappearance of an alien who has a domicile in Thailand. The decision on the disappearance and its effects shall meet the requirements set out in the alien’s lex patriae (s 11 Thai PILA) unless immovable property in Thailand is concerned. The incapacitation of a person having a domicile in Thailand is conditional on the fulfilment of the requirements established by the lex patriae in accordance with s 12 Thai PILA; the same law governs custodianship and curatorship.
2. Law of obligations
Obligations are subject to ss 13–15 Thai PILA, which regulate the law applicable to the formation and legal effects of contracts, to →negotiorum gestio, to unjustified enrichment and to liability for wrongful acts. Contracts with foreign elements are governed by the law chosen by the parties in compliance with the principle of →party autonomy. In the absence of a →choice of law by the parties, a contract is governed by the national law of the parties if both have a common nationality. If not, the lex loci contractus, ie the law of the place of contracting, shall govern their contractual relations in accordance with s 13 Thai PILA. It follows that obligations arising out of contracts concluded abroad may, according to Thai private international law, be governed by foreign law, subject, in some cases, to renvoi. Nevertheless, the court will apply the relevant lois d’application immédiate of Thailand, including the Unfair Contract Terms Act (of 16 November BE 2540 (1997), Government Gazette, vol 114, part 72Kor, p 32), the Product Liability Act (of 20 February BE 2551 (2008), Government Gazette, vol 125, part 36Kor, p 17, henceforth Thai PLA), and the Consumer Protection Act (of 4 May BE 2522 (1979), Government Gazette, vol 96, part 72, special issue, p 20). The court may also give effect to the lois d’application immédiate of a foreign state.
Section 14 Thai PILA provides that →negotiorum gestio and unjustified enrichment are governed by the law of the place where the facts constituting such obligation have occurred.
Liability arising from a wrongful act is governed by lex loci delicti, the law of the place where the facts for such wrongful act took place. It is an additional condition that the act must be considered a wrongful act and must give rise to liability under Thai law. Moreover, the ordre public shall be used to assess the extent of the application of foreign law (→Foreign law, application and ascertainment). If, for example, a foreign law recognizes punitive →damages, which are, in general, not accepted under Thai law, the provision on punitive damages will not have legal effect in Thailand, except in some special cases, in particular in competition law (→Competition law (antitrust)) and product liability law.
3. Law of property
Proprietary rights (→Property and proprietary rights) in things are governed by ss 16–17 Thai PILA, which endorse the application of the lex rei sitae to movable and →immovable property. A diamond ring of Ms B was in possession of Ms C in country Y, from where she moved to Thailand after eight years. Ms C may have acquired ownership of the diamond ring through prescriptive possession according to the law of country Y and to the Thai CCC. The law of country Y requires ten-year possession for the prescriptive acquisition of movable property, whereas s 1382 Thai CCC requires five-year possession. Ms C has possessed the diamond ring in country Y for eight years. She left that country before prescriptive possession had been accomplished, but when 80 per cent of the →prescription period had already passed. Under the principle of the protection of droits acquis (s 3 Thai PILA), Thai law will treat the matter of prescriptive possession as if 80 per cent of the five-year period of Thai law had already passed; accordingly, Ms C is required to possess the ring for one more year to become its owner.
If movable property has been shipped to another country under a deed or juristic act related thereto, the law of the owner’s nationality shall govern the proprietary effect of the transaction, in particular the transfer of ownership, pursuant to s 16(2) Thai PILA. Moreover, if movable property is relocated to another country after the commencement of litigation relating to such property, the lex rei sitae at the time of litigation is applicable in accordance with s 17 Thai PILA.
Private international law rules may give rise to benefits of foreigners over property located in Thailand. Some restrictions are nevertheless p. 1maintained in the system. The restriction of acquisition of immovable property by foreigners is a common occurrence in ASEAN neighbouring countries and in Thailand, which shared a common experience in the past. In general, rights of foreigners to acquire rights in immovable property are restricted, except as specified otherwise in the law. The Land Code (of 30 November BE 2497 (1954), Government Gazette, vol 71, part 78, special issue, p 1) and the Condominium Act (of 30 April BE 2522 (1979), Government Gazette, vol 96, part 67, special issue, p 29) are statutes which govern the rights of foreigners in immovable property. However, foreigners may benefit from preferential treatment if they fall into certain categories as accepted by the legislation, for example, the Investment Promotion Act (of 4 May BE 2520 (1977), Government Gazette, vol 94, part 38, special issue, p 1) and the Industrial Estate Authority of Thailand Act (of 24 March BE 2522 (1979), Government Gazette, vol 96, part 41, special issue, p 10).
4. Law of family
The family part of the Thai PILA (ss 18–36) is the biggest chapter in the act, governing betrothal, formation of →marriage, the personal and property relationship of spouses, the dissolution of marriage and numerous issues relating to the legal position of children. In the Thai legal system the conflict rules governing the marital relationship are to be read in conjunction with the provisions and in light of the spirit of the Thai CCC.
The Thai legal system regards betrothal as a pre-marital relationship protected under certain provisions in the Thai CCC. According to s 18 Thai PILA, the capacity to conclude or revoke a betrothal shall be governed by the national laws of each party. In accordance with s 19 Thai PILA, the same conflict rule applies to the conditions of marriage. For further and detailed clarification in cases involving a Thai spouse, the latter provision shall be read together with ss 1448–1460 Thai CCC, which set forth conditions such as minimum age, the prohibition of incestuous marriage, the prohibition of marriage of an incapacitated person, the legal effect of marriage without consent and the prohibition of polygamy.
The minimum age of each partner is conditional on his or her national law. It is acceptable under Thai law if the marriage of the partner of such age is not inconsistent with the Thai ordre public as evidenced especially by criminal law, which absolutely disallows sexual intercourse even when undertaken with the consent of the minor of 15 years or less. The grey area is between 15 and 17 years of age; in such cases judges may consider the marriage of the minor lawful under foreign law, but repugnant to the Thai ordre public. However, a possible means of rendering a marriage of a minor lawful under Thai law is the celebration of the marriage in a country which regards it as legal. The court may use private international law techniques, namely droits acquis and qualification, to uphold a marital status acquired abroad as legal before Thai law. SCJ 45/2524 (1981) has once accepted a marital status acquired under Chinese law, which, at the time, did not prohibit the marriage of minors of a certain age. In this case, minors of 12 and 14 got married in China and then moved to and resided in Thailand. The court did not classify the question as a problem of conditions for substantive validity under s 19 Thai PILA, but as a problem of formal validity under s 20. The methodology behind this is seemingly an application of the theory of droits acquis, which recognized the marital status of the two Chinese partners referred to in Thailand. Despite incomplete reasoning in the judgment, it was, at least, theoretically justified in the outcome, since the right to marital status had been vested in both spouses by the celebration in China.
Besides maturity age, polygamy is a great concern of Thai private international law. The Thai legal system recognizes polygamy not beyond the frontiers of the four southern provinces of Thailand, where Islamic law is applicable to Muslims in family and inheritance matters. Although ancient Thai and Chinese migrants also had a polygamous tradition, polygamy, mostly in the form of polygyny, has been outlawed by the Thai legal system. Except for cases where droits acquis prevail, the court may consider this to be a matter of ordre public according to ss 1452 and 1495 Thai CCC. Section 1452 Thai CCC reads ‘A marriage cannot take place if the man or woman is already the spouse of another person’ and s 1495 Thai CCC reads: ‘The marriage which is made against . . . Section 1452 and s 1458 shall be void.’ An establishment of a polygamous family abroad may be justified as long as the marital status to be recognized or enforced is not against the ordre public atténué of Thailand. In any case, p. 1the rights of children born out of polygamy are to be acknowledged in Thailand; the country is a party to the UN Convention on the Rights of the Child, which ensures equal and fair protection to children born out of wedlock. The legal protection is to be ascertained in the spirit of the Thai CCC, as reflected in ss 1536 and 1538 Thai CCC and s 2(2) UN Convention on the Rights of the Child, which gives equal protection to children of either of the polygamous parents. However, the application of legal provisions regarding non-discrimination of children is less than clear in Thai jurisprudence. Taking into consideration the best interests of the child as enshrined in the Thai CCC and the UN Convention on the Rights of the Child, an application of Thai law shall not discriminate against the children of a polygamous family, who are innocent individuals.
After →marriage, the spouses’ personal and property relations are subject to the law of common nationality according to ss 21 and 22 Thai PILA. If the spouses have different nationalities, the applicable law should be the national law of the husband. With regard to the property relationship, the Thai legal system recognizes ante-nuptial agreements of the spouses on the applicable law (see s 25 Thai PILA and s 1465 Thai CCC). Both provisions appear paradoxical. Section 1465 Thai CCC disallows the choice of a foreign applicable law and the violation definitely makes the agreement void, whereas s 25 Thai PILA provides that choosing a foreign law as the law governing the marital property relationship is possible. However, both provisions can be reconciled. Section 1465 Thai CCC shall be construed as to apply to the marriage between Thais or between a Thai and a foreigner who apply to marriage registration under the Thai system, which may be completed at an Embassy of Thailand abroad or at a District Office in Thailand. However, to avoid the sanction of s 1465 Thai CCC, which is considered to be an ordre public provision, the spouses are usually advised by lawyers to draft contractual clauses taking substantive content from the foreign family law instead of referring, by a choice of the applicable law, to the foreign law. In any case, the ante-nuptial agreement between a Thai and a foreigner or between foreigners, in the circumstances other than those mentioned above, is entitled to a →choice of law according to s 25 Thai CCC. By way of exception, property relations relating to immovable property are subject to the lex rei sitae. This is an exception to both a choice of the applicable law (s 25(2) Thai PILA) and to the law applicable in the absence of choice (s 22(3) Thai PILA).
Relations between family members, including the legitimacy of the child and parental authority, are subject to the national law of the legitimate father or husband of the mother, as provided in ss 29–30 Thai PILA. The national law of the mother governs her legal relationship with the child in cases where the child is born out of wedlock (s 30(2) Thai PILA). Under s 36 Thai PILA, a maintenance claim is governed by the debtor’s national law. A uniqueness of Thai family law is the ‘Utalum case’, where descendants are not entitled to bring either civil or criminal actions against their ascendants according to s 1562 Thai CCC. However, s 34 Thai PILA provides that a descendant having a foreign →nationality may bring a claim against his or her ascendant if the plaintiff’s national law allows the exercise of such a right.
Divorce (→Divorce and personal separation) can be classified into two types; divorce by mutual consent and divorce by judgment. In comparison with most European systems, Thai family law does not restrict the right of the spouses to dissolve their marriage by consent. If both spouses are willing to divorce, the divorce by mutual consent shall be made in writing and certified by the registrar according to s 1514 Thai CCC. A marriage registered abroad may be dissolved by this means, taking into account s 26 Thai PILA, which sets forth the condition for the divorce by mutual consent that the lex patriae of each spouse allows divorce of this kind. However, the Thai PILA provision was enacted for long and its reference to the foreign law is subject to some emerging mandatory rules, especially those relating to domestic violence and human rights (→Human rights and private international law). The consideration does not fall within the scope of s 26 Thai PILA exclusively. In other words, the restriction of divorce by foreign law shall be read in conjunction with the relevant Thai mandatory rules.
The dissolution of a marriage between two foreigners registered abroad is a complicated issue for the Thai registration system, since no clear criteria for registration have been established. In some cases, the registrars rejected the registration, but, in some other cases did not do so. The Thai registrars have the discretion to make a decision on this matter. However, in practice, spouses of this kind are recommended to request a divorce at the embassy of p. 1the country of the celebration of the marriage. Where the divorce request is rejected by the embassy, the spouses will turn to the district office for a divorce application.
Divorce by judgment is governed by s 27 Thai PILA. As under s 26 Thai PILA, the court shall apply the lex patriae of each spouse to the question whether the foreign law allows the divorce, taking into account the relevant mandatory rules mentioned above. For grounds of action for divorce, s 27(2) Thai PILA refers to the law of the place where the litigation was filed. If the litigation was filed before a Thai court, the court will consult s 1516 Thai CCC, which includes 12 grounds for divorce by judgment, namely: (i) committing adultery; (ii) misconduct; (iii) causing serious harm or torture to the body or mind of the other, or seriously insulting the other or his or her ascendants; (iv) deserting the other for more than one year; (v) being sentenced by a final judgment of the court for one-year imprisonment; (vi) living separately for more than three years; (vii) being adjudged to have disappeared; (viii) failure to give proper maintenance or committing acts that are seriously adverse to the relationship; (ix) being an insane person for more than three years continuously; (x) breaking a bond of good behaviour; (xi) being infected with a communicable and dangerous disease; and (xii) being permanently unable to perform sexual intercourse.
Although the grounds for divorce under s 1516 Thai CCC have been listed in detail, judicial consideration of each case shall be exercised by bearing in mind the surrounding conditions, which vary according to the case at hand and are, at a certain level, subjective. In general, the court cannot apply the same standard of consideration to all families. This methodology of the Thai courts has been influenced by that used in European legal systems.
5. Law of succession
The law of →succession is governed by ss 37–42 Thai PILA. A problem related to movable property inherited by operation of either law or a will is regulated by the law of the domicile of the deceased at the time of his or her death (s 38 Thai PILA). In the case of →immovable property, as in other legal issues, the law of the place where such property is located shall govern according to s 37 Thai PILA. The capacity of a person to make a will (→Capacity and emancipation) is assessed according to the testator’s national law at the time when the will is made, pursuant to s 39 Thai PILA. The form of a will is subject to the national law of the testator or, alternatively, to the law of the country where the will is made; however, the legal effects and interpretation, nullity and revocation of a will or of a clause in a will are governed by the law of domicile of the testator at the time of his or her death (ss 40–41 Thai PILA).
Problems of succession law with foreign elements can be highly complicated and require profound legal theories and principles for answering. The few existing provisions in the Thai PILA are definitely not adequate to deal with such complications. Difficult cases may not be resolved by applying these provisions alone. For example, to answer the question whether an inheritance right of pacsés (civil partners in French family law) is enforceable under Thai law, lawyers need to consult not only written provisions, but also the general principles of private international law, including, but not limited to, ordre public, qualification, Vorfrage, and droits acquis. It was a misunderstanding that their rights are unenforceable in Thai law. A profound consideration shall be taken on a case-by-case basis with the support of distinct legal theories.
V. Specific legislation in Thai private international law
Apart from the Thai PILA and the Thai CCC, legal relations with foreign elements are subject to a number of specific statutes, ranging from international business transactions, competition law, intellectual property law and product liability to labour protection.
1. Law related to international business transactions
International business transactions are relevant to various topics including, inter alia, international sale of goods (→Sale contracts and sale of goods), →carriage of goods by sea, and transfer of payments, which are subject to a number of sources, for example, practice or usage, customs, treaties and domestic law. Thailand regularly adopts only a limited number of treaties. The country has not ratified substantive law conventions relating to international business law, especially the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of p. 1Goods, 1489 UNTS 3) and the Hamburg Rules (United Nations Convention of 31 March 1978 on the carriage of goods by sea, 1695 UNTS 3), but preferred to enact its own legislation, in which provisions are influenced from or originate in international conventions. The Thai CGS gives evidence of this; it contains mixed provisions influenced by both the Hague-Visby Rules (International Convention for the unification of certain rules of law relating to bills of lading signed at Brussels, 25 August 1924, as amended by the 1968 Visby Protocol and the 1979 Brussels Protocol) and the Hamburg Rules.
An international sale of goods is principally subject to the contract written by the parties and also, where applicable, to the clauses defined in the INCOTERMS. While Thailand is not a party to the CISG, s 13 Thai PILA, in conjunction with art 1(1) CISG, allows the application of the CISG in certain cases. In accordance with s 13, this is the case when the parties have chosen the law of a state party to the CISG as the applicable law, where the parties have a common nationality of a contracting state of the CISG or where the contract has been made in a country that is a party to the CISG, provided that in these cases the conditions laid down in art 1(1) CISG are fulfilled. Nevertheless, this mechanism is hardly deemed to be an absolute guarantee of the application of this convention. In other words, if the demonstration of the international character and of the CISG content does not satisfy the judges, Thai law will be in place according to s 8 Thai PILA.
The Thai law of sale of goods, as an applicable law for certain aspects of the international sale of goods, is contained in the Thai CCC. To name a few, formality requirements concern the sale of special movables, including vessels of five tons or more, floating houses and beasts of burden according to s 456(1) Thai CCC, whereas the same is not required for the sale of movables at a price of 20,000 baht or higher, but written evidence for such expensive property is required for enforceability. Another example is the transfer of ownership under s 458 Thai CCC; the article provides that the ownership of the property sold is transferred to the buyer from the moment when the contract is entered into. The relevant Thai CCC provisions do not correspond to the character of an international sale of goods. Thus, the idea of drafting domestic legislation on international sale of goods has been raised, but not realized, to present, in an enactment.
→Carriage of goods by sea, another dimension of international business, is subject to the Thai CGS, which, in general, regulates the →carriage of goods by sea with international character. As set forth in s 4 Thai CGS, this legislation is applied to carriage of goods by sea from other countries to Thailand or vice versa. The same provision recognizes the principle of →party autonomy whereby the parties may agree by reference, in a contract or →bill of lading, to a treaty or foreign legislation as the applicable law. Such an arrangement, however, is ineffective if a party to the contract is a Thai national or a juristic person established under Thai law; in such a case, the contract is accordingly governed by the Thai CGS.
Letters of credit are a documentary payment employed in Thailand generally for the performance of payments in an international sale of goods contract. No specific legislation has been enacted to regulate the letter of credit issued by a bank. The letter of credit is subject to the Thai CCC, general provisions on juristic acts and contracts, which determine, inter alia, the formation, validity and legal effects of the credit contract. Issuing banks may make reference, by writing in the credit form, to the UCP 600 (Uniform customs and practice for documentary credits (ICC, Publication No 600, 2007)), in which the rights and obligations of the banks, the applicant and the beneficiary are laid out. Failure to include such specifications in the credit may result in ambiguity as to whether to apply the UCP 600 and, where they apply, to which source of law they belong. This has been discussed once in SCJ 2122/2499 (1956), where the court pointed out that banking usage will be a part of the contract only if the bank customer has realized this before.
2. Competition law
The Trade Competition Act (of 31 March BE 2542 (1999), Government Gazette, vol 116, part 22Kor, p 7, henceforth Thai TCA), is a principal legislation governing competition-related activities and transactions of both (→Competition law (antitrust)) Thai and foreign business operators, including manufacturers, distributors, retailers, etc. The legislation prohibits, among other things, abuse of dominant market power, cartels, anti-competitive mergers and acquisitions, and p. 1unfair commercial practices. As a provision of extraterritorial character, s 28 Thai TCA requires an intervention with transactions between operators in Thailand and overseas who agree to use their relationship in order to restrict the ability of individuals in Thailand to purchase goods or services. These practices, among other things, may be sanctioned by the enforcer of this act, the Trade Competition Commission, which has the authority to impose a rectification, suspension or cessation order to the abusive act or the violation committed by the business operator. Moreover, not only the injured person but also consumer associations may file a lawsuit before the court for compensation according to s 40 Thai TCA. Besides the Thai TCA, special legislative acts are also relevant to competition law within specific areas of business, for example, broadcasting, telecommunication and energy.
3. Intellectual property law
Intellectual property rights are basically protected under the Copyright Act (of 21 December BE 2537 (1994), Government Gazette, vol 111, part 59Kor, p 1), the Patent Act (of 16 March 2522 (1979), Government Gazette, vol 96, part 35, special issue, p 1) and the Trademark Act (of 15 November BE 2534 (1991), Government Gazette, vol 108, part 199, special issue, p 7). Some provisions of these Acts regarding intellectual property rights as such or the assignment of such rights do not correspond to the international character of the activities involving the use of intellectual property rights, which therefore requires future specific principles of private international law on this aspect. Sections 16–17 Thai PILA concern traditional property rights in tangibles and do not actually reflect the needs of intellectual property matters; hence, they are not applied by the courts. In contrast, s 13 Thai PILA is applicable to intellectual property matters where the qualification brings the issue to the category of contract. However, when complicated issues relating to intellectual property plus private international law arise, judges prefer to apply the existing intellectual property legislation, ie the substantive provisions of national law, along with binding treaties, although a closer analysis under private international law would be required.
4. Product liability law
The Thai PLA, as a principal legislative act, provides substantive provisions and a general mechanism to protect consumers suffering from damage arising from an unsafe product. The Thai PLA presumes the joint liability of all business operators concerned, which are mostly domestic undertakings, for injury caused to consumers; it does not permit contract clauses exempting those business operators from that liability. Moreover, legislation provides for punitive damages, which are rarely found in Thai law and jurisprudence. Private international law issues especially relate to the recourse for reimbursement against the ultimate debtor or actual wrongdoer, where this debtor has its place of business in another country. Product liability may be classified as a wrongful act, which relates to s 15 Thai PILA designating the lex loci delictii as applicable. However, it is an open question in Thai private international law as to whether such qualification leads to the law of Thailand where the resulting loss occurred or to the law of the country where the wrongdoing was committed; private international law theories have endorsed both possibilities.
5. Labour law
Labour law in Thailand has a private law and a public law dimension. The right of the foreigner is primarily restricted under the Aliens Working Act (of 22 February BE 2551 (2008), Government Gazette, vol 125, part 37Kor, p 24), according to which foreigners are allowed to work in areas which are not reserved for Thai citizens. After the issuance of a work permit, foreigners are granted the same protection as Thais in view of most legislation, especially the Thai CCC and the Labour Protection Act, BE 2522 (1979). The latter statute, in conjunction with other substantive law, is considered a loi d’application immédiate. The minimum age for labour has been set at 15 years. Gender equality in the workplace has progressed tremendously. Clauses exempting the employer from severance payments, whether endorsed by Thai or foreign employees, are void. Giving effect to foreign law of immediate application may have a certain degree of support in private international law theory, but has not been developed in Thai jurisprudence, where judges are likely to p. 1use Thai law of immediate application even in overseas cases, as evidenced in SCJ 3223/2525.
VI. Jurisdiction, procedure and enforcement of judgments
Before going to court, the aggrieved party should use supporting mechanisms which help to resolve arising difficulties. The Consumer Protection Board provides assistance to consumers offended by business operators. Product liability is enforceable through the Consumer Protection Board system. Regarding competition law, the Trade Competition Commission is competent to impose sanctions on undertakings abusing their market power. Employing these supporting mechanisms helps to avoid time-consuming litigation. However, Thailand also provides for the judicial process as a traditional mechanism of dispute resolution.
In order to exercise jurisdiction over cases concerning the application of private international law, judges have to consult the provisions in ss 2–5 Thai CPC as bases for contentious and non-contentious claims. These provisions set forth criteria for accepting the claim, including, but not limited to, the domicile of the defendant (→Domicile, habitual residence and establishment), the place where the cause of action arises, the location of an immovable, the domicile of the plaintiff (in certain cases) and the headquarters of a juristic person. These considerations are also taken into account in cases connected to more than one jurisdiction. Section 4 ter Thai CPC provides that where the defendant has no domicile in Thailand, the case can be brought before the court, which has jurisdiction over the plaintiff’s domicile, if the plaintiff has the →nationality of, and domicile in, Thailand. Moreover, the Thai CPC, in related provisions, also sets forth certain →connecting factors for jurisdiction, including the place of the agent and the place of a movable where enforcement into that movable is in dispute.
The parties often choose a forum as having exclusive jurisdiction. However, courts do not necessarily comply with such agreements and may instead have recourse to the aforementioned jurisdictional requirements. Thailand is not a party to the Hague Choice of Court Convention (Hague Convention of 30 June 2005 on choice of court agreements, 44 ILM 1294). Sometimes, court rulings dealing with forum selection clauses employ methods similar to theories and principles of private international law, as enshrined in SCJ 9524/2544 (2001), 3537/2546 (2003) and 3882/2549 (2006). The judgments ignored clauses of exclusive jurisdiction and used other connecting factors to establish their own competence. From the fragmentary reasoning of the court, academics have concluded that the principle of →forum non conveniens may be the missing piece of the puzzle. The foreign courts, as specified in the contract, would be a forum non conveniens, whereas the Thai court is a forum conveniens. However, it has to be noted that this principle has a certain basis in a domestic legal principle in s 6 Thai CPC. In conclusion, even though the law of international litigation has not been explicitly regulated in Thai law, the general principles of private international law concerning procedural law are definitely applicable in the light of s 3 Thai PILA. →Lis alibi pendens is another such principle that is applicable in certain cases. Even though its recognition in cases of an international character is limited, a Thai court may apply principles as reflected in domestic law in the Thai CPC.
Thailand’s judicial system, like those of other civil law countries, bestows judicial functions on specialized courts to exercise jurisdiction subject to the special legislation. The specialized courts which have jurisdiction over cases related to private international law are, among others, the Intellectual Property and International Trade Court, the Juvenile and Family Court, the Bankruptcy Court, the Labour Court and, even the Administrative Court. Judges working in these courts have special skills.
For the time being, procedural law does not provide a complete system of rules governing proceedings with an international element, ie where the plaintiff, defendant, witness, evidence or other element has links with more than one jurisdiction, which requires judicial cooperation at the international level. At least, the Thai CPC provides usable machineries for either incoming or outgoing submissions of requests for the service of claims and other documents, for the procurement of evidence, etc (→Evidence, procurement of). The current system requires a substantive amendment or, where appropriate, an enactment of separate legislation on judicial p. 1cooperation in →civil and commercial matters, in a similar form to the one already in existence in criminal matters.
Moreover, Thailand is not bound by multilateral cooperation on the topic, as it has not ratified multilateral conventions relating to this matter, for example, the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163) and the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241). Nevertheless, the preferred mechanism is instead bilateral agreements. Thailand has ratified six bilateral agreements on judicial cooperation in civil and commercial matters with →Australia, →China, →Indonesia, Laos, →Spain and →Vietnam.
3. Recognition and enforcement of foreign judgments
There are currently no written rules on the recognition and enforcement of foreign judgments in Thai legislation. However, certain judicial rulings, in conjunction with academic work, propose criteria for such judicial recognition and enforcement of foreign decisions which actually conform to the general principles of private international law: (i) the judgment has res judicata effect according to the foreign law; (ii) the conduct of the procedure complies with the requirements of the due process of law; (iii) the reasoning in the judgment complies with the rules of private international law; and (iv) the recognition or enforcement does not offend the Thai ordre public. The last requirement is rather vague as the ordre public atténué is highly subjective and varies over time.
After acceding to the New York Convention, Thailand arranged domestic settings through the enactment of legislation and the establishment of institutions in response to international obligations resulting therefrom. The domestic law governing arbitration is the Thai AA, which has adapted substantial parts from the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985, and as amended on 7 July 2006, UN doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law) and is designed for both domestic and international arbitration.
Some parts of the act should be mentioned here. The rules on the arbitration agreement are connected to domestic law, especially the Thai CCC and the Thai PILA. With regard to the validity of an arbitration agreement, certain requirements have to be complied with, concerning, for example, the capacity of the parties (→Capacity and emancipation) or the declaration of intention, which is governed by national Thai law. There is no formal requirement for the validity of an arbitration clause or agreement concluded in Thailand, but in order to be enforceable in a court, such clause or agreement shall be made in writing and signed by both parties (→Formal requirements and validity). The arbitration also has some aspects relating to other legal problems, which require further consideration, for example, arbitration relating to co-owned property under family law, to limits of an agent’s authority under the law of agency, to the debtor’s management of property under bankruptcy law, etc.
The Thai AA also provides for a connection to the court’s exercise of jurisdiction. Unlike uncertain jurisprudence regarding choice of court, as mentioned above, in a case involving an arbitration agreement, the other party may refer to the arbitration clause or agreement before the court for the disposal of the case. Moreover, the court is competent to adopt a provisional measure to maintain rights of the contesting party before or during the arbitration proceedings. The jurisdiction of the court is also exercised for the recognition and enforcement of foreign arbitral awards, unless the arbitral awards are contrary to the ordre public of Thailand.
VII. Future trends
Thai private international law contains provisions, rules and principles which are unsystematically diffused in a considerable number of specific legislative acts, some of which have not even been addressed in this national report. It is modestly accepted by lawyers in the area that the system needs further development through the consolidation of current private international law rules and the enactment of specific legislation, as well as intensive training of legal academics and practitioners. p. 1During the transitional period and henceforth, while the ASEAN is transforming into what is called the ASEAN Community, Thailand has accelerated its legal adaptation through various means. In no more than ten years’ time, it will be necessary to rewrite this national report.
Kittisak Prokati and Akawat Laowonsiri
Saowanee Asawaroj, Lecture on Commercial Dispute Resolution: Arbitration (Thammasat University Press BE 2554 2011);
Prasopsuk Boondet, Lecture on Civil and Commercial Code, Book 5: Family Law (20th edn, The Thai Bar BE 2556 2013);
Dominique Holleaux, Jacques Foyer and Gérard de Geouffre de la Pradelle, Droit International Privé (Masson 1987);
Kumchai Jongjakrapun, International Commercial Law (Thammasat’s Faculty of Law BE 2555 2012);
Pairojana Kampusiri, Lecture on Civil and Commercial Code, Book 5: Family Law (8th edn, Thammasat University Press BE 2556 2013);
Jan Kropholler, Internationales Privatrecht (6th edn, Mohr Siebeck 2006);
Yvon Loussouarn, Pierre Bourel and Pascal de Vareilles-Sommières, Droit International Privé (10th edn, Dalloz 2013);
Kanung Luchai, Lecture on Conflict of Law (Winyuchon BE 2555 2012);
Prasit Piwawatanapanich, Lecture on Private International Law (Thammasat University Press BE 2556 2013);
Yud Saenguthai, Lecture on Private International Law: Conflict of Laws and Law of Nationality (Thammasat University Press BE 2524 1981);
Phunthip Saisoonthorn, Lecture on Private International Law: General Concepts of Private Relations with International Character (Winyuchon BE 2548 2003);
Kamol Sontikasetrin, Lecture on Private International Law (Nitibannagarn BE 2539 1996).