Thailand’s approach to the conflict of laws for prenuptial agreements vaguely resembles the aforementioned lex loci approach from the United States. However, Thailand’s approach does not suffer from the same unpredictability and ambiguities as the United States’ approach. Thailand, unlike the United States, has national statutory law that applies in all Thai courts and addresses the conflict of laws issues of international prenuptial agreements. Therefore, there is little inconsistency among Thai courts as all the courts apply the same statutory laws for the conflict of law issues. Moreover, the Thailand Conflict of Laws Act makes clear distinctions among the issues of validity, enforceability and interpretation and makes separate laws to govern each accordingly68. This differs significantly from the statutory law and common law of the United States. The statutory law rarely addresses this distinction (see discussion of the U.P.A.A.). The U.S. state courts that follow the lex loci approach (which most closely resembles Thailand’s conflict of law approach) do not uniformly draw this distinction and, when they do draw the distinction, they do not have a consistent conflict of laws approach for each category.
The Thailand Conflict of Laws Act appears to protect the interests of foreign nations with substantial ties to the marital parties or their property. Both Section 24 and 25 protect the interests of the countries that have significant ties to the marital parties. They both apply the law of the country of the parties’ nationality. In contradistinction to the approach utilized by many U.S. state jurisdictions, the Thailand approach appears to respect and defer to the foreign nations’ interests. Section 25 designates that immovable property will be governed by the law of the place where the property is situated.69 Thus, Section 25 protects the interests of foreign nations that have connections to the marital properties’ property. By making a special exception for immovable property from the rest of Section 25, Thailand respects the country with the most significant interest in a marital parties’ real property. The Thailand Conflict of Laws Act protects the interests of foreign nations in the couple and their property.
V. International Prenuptial Agreements: a rose not by any other name
A number of U.S. state courts have held that prenuptial agreements are distinguishable from other contracts as they often concern sensitive public policy concerns.70 Due to the heightened public policy concerns, courts have found that the forum state should have a heightened amount of control over the agreement.71 This argument supports the retention of a flexible enough approach to prenuptial agreements to ensure that the policies of the forum state are not violated. However, this policy objective does not legitimize the unpredictability and uncertainty that surrounds international prenuptial agreements within the United States. As globalization increasingly brings people and legal systems together, the protection of the forum state’s public policy interests should reasonably be balanced against both the marital parties’ expectations and the foreign nation’s interests.
A Freedom to Contract and Spouses’ Expectations
The marital parties’ expectations should be a factor considered by U.S. courts that review prenuptial agreements. While prenuptial agreements have unique public policy concerns, they are at their essence contracts.72 According to Restatement (Second) of Contracts the “Prime objectives of contract law are to protect the justified expectations of the parties”.73 The Second Restatement elaborates arguing that parties should be able to “foretell with accuracy what will be their rights and liabilities under the contract”74 so that the goals of “certainty and predictability of result”75 are secured. The Second Restatement of Conflict of Laws similarly emphasizes the importance of the marital parties’ expectations. According to comment g of the Second Restatement of Conflict of Laws “it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state”.76 The current inconsistent and unpredictable treatment of international prenuptial agreements cannot protect the marital parties’ expectations. As seen in Part II, a couple’s prenuptial agreement can be governed by the laws of a jurisdiction that was never intended or even anticipated by the parties. Thus, marital parties cannot adequately predict their rights or their responsibilities under their agreement as they cannot tell ex ante what jurisdiction’s laws will control the validity, construction or enforcement of their prenuptial agreement. Accordingly, the need for a uniform predictable approach to the conflict and choice of law issues of internationally prenuptial agreements is necessary to reasonably protect the parties’ expectations and their freedom to contract a binding agreement.
B Sovereignty and International Prenuptial agreements
A foreign nation’s interest in the internationally signed prenuptial agreement should be considered by U.S. courts for a variety of reasons. First, the Second Restatement on Conflicts of Law stresses the importance of the foreign state’s or nation’s interests. In fact, two of the seven public policy goals seek to protect other unrepresented states or countries that have an interest in the litigation (“the needs of the interstate and international systems” and “relevant policies of other interested states and the relative interests of those states in the determination of the particular issue”).77 The presence of these two goals is strong evidence that the drafters of the Restatement thought that the foreign states’ interests in the agreements is worthy of consideration by courts. Courts should recognize these foreign interests in their review of an international prenuptial agreement.