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Some Theoretical Remarks on Thai Private International
Law Compared to the Continental and the Common Law Traditions*

Prasit Pivavatnapanich**

Part One
General Considerations on Private International Law

I. What is Private International Law?: A Penumbra Area

At the outset, the author calls the subject of research "A Penumbra Area" because the title, private international law, easily leads to misunderstanding. Many Thai lawyers in academic circles confuse the definition and domain of private international law. In Thailand, it seems clear that everything relating to aliens, even in the area of public law, as well as criminal law, falls into the realm of private international law. Now is the time to rethink this practice, and to analyze this issue carefully. The following sentences discuss the definition of private international law, or conflict of laws.

II. Definition and Nature of Private International Law

It is generally admitted among scholars, as well as legal practitioners that private international law, as it is widely called in Europe and Latin America, or conflict of laws, as it is known in the common law world, is a domestic corpus of legal rules and juristic techniques, enabling a judge to aptly determine and apply foreign law as proper law in a civil dispute involving a foreign element(4). Foreign element, a generic term used by theorists, refers to the abstract notion that connotates a juristic relation of an individual being pertinent to more than one country, in addition to the country where adjudication on the case in question, the lex fori, is taking place.

III. The Title of Private International law and Conflict of Laws

One might feel that the meaning of private international law and conflict of laws are different. Some Thai lawyers take the view that private international law has a broader meaning than conflict of laws which confines itself only to the choice of laws rules. I am of the definite opinion that such an academic view is flawed; several reasons are given as support for my cogent argument

First, and very simply, most leading publicists employ two words interchangeably(5). When law professors mention private international law, they usually put it in brackets: "or widely known as conflict of laws" or vice versa. they usually put it in brackets

A good example is the authoritative book written by Prof. Clive Shmithoff, Private international law Conflict of laws(6). It goes without saying that some countries, like China, use the term private international law instead of conflict of laws6. Secondly, one might think that conflict of laws is exclusively concerned with the choice of laws rules. But when we read the Common Law textbooks, either British, Scott(7), Canadian, Austrian(8) or American, these treatises deal considerably with the subject matter of jurisdiction and the closely interrelated issues of recognition and enforcement of foreign judgments. In addition, it is impossible for British legal scholars to either intentionally or unintentionally ignore the topic of jurisdiction because jurisdiction plays such a crucial role in considering cases containing a foreign element in the British courts.

IV Can private international law properly be called international law?

This problem requires careful examination because some lawyers consider private international law, or legal rules of private international law such as lex situss, as international law. In the following paragraphs, I will elaborate why such a classification is dubious.

The first, and most important, point for law students to keep in mind, is the words "international law" in the phrase "private international law" do not really signify international law, unlike the addition of "public" in front of "international law". To put it simply, international law refers to a group of legal norms governing international parties, such as sovereign States, intergovernmental organizations, Holy See, and other political entities, i.e. a liberal movement.

Indeed, there are a wide range of reasons why most renowned academics consider the word "international" misleading when it is used in the context of private law(9).

First, it is noteworthy that most textbooks and national pieces of legislation employ "French private international", "Japanese private international law", "British conflict of laws", "Canadian conflict of laws" and so forth because private international law is national law by its nature. On the contrary, we absolutely can not say "German public international law" or "Swiss international law" because international law is not the product of an individual country. Instead, international law is a set of legal norms, established bilaterally, regionally or universally, which govern between sovereign states.

Part 3            Footnote

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