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.
