Second, in principle, there are two basic issues that a judge must
resolve under private international law: the which court has jurisdiction
over a case, and the law, either lex causae or lex fori, that can be
applied in cases involving foreign elements. It is perhaps more accurate
to state that the two basic issues are not a concern of international
law but are more closely and directly linked to national law, lex fori.
It means that the resolution of who has jurisdiction of civil case,
i.e. Thai or British courts, lex forum, cannot be found in public international
law. On the contrary, such a problem is purely a domestic matter, depending
exclusively on the procedural law of the given state, not the rules
of international law.
Third, as to the question of selecting a foreign law applicable to
a case in question, most eminent jurists unanimously agree that a judge
resorts to her own private international law in order to resolve a civil
or commercial case involving the foreign systems of law of more than
one country. It follows that, by and large, the main legal sources of
private international law heavily rely its substance and juristic method
heavily on various forms of national laws partially imcorporated in
civil codes(10),
statues(11) and case law (12).
It is also interesting to note that public international law does not
considerably influence the rules of conflict of laws, let alone function
as a directive or principal source. Legal methods (such as renvoi, incidental
questions, classification and fraud de le loi,) and rules of connecting
points (such as lex ptiae, lex loci contractus, and lex loci solutionis)
are taken from authoritative works, proposed gradually and developed
logically from Romanists, like Bartorus, and von Savigny, and acomparatists,
like Story, Yetema, and Rabel. On this point, I defer to the words of
Professor Lipstein, a leading voice on private international law and
the chief editor of The International Encyclopedia of Comparative Law.
He succinctly stated, "International law...does not contain any
specific rules of private law(13)."
He continues "They do not prescribe the application of any one
particular rule of Private International Law (14).."
He comes to the correct conclusion, “Private International Law
as part of the law of individual countries is domestic law, unfettered
by special rules of Public International Laws(15)....
In addition, some lawyers believe that the rules determining foreign
law-- lex situs, lex loci actus et - are international law whether they
take the form of customary international law or the general principle
of law. In fact, such rules were articulated and elaborated by private
jurists, rather than by international lawyers, for almost four centuries.
Professor Lipstein wrote, " they [lex situs,lex loci actus, lex
fori J are not rules of Public International Law(16).
And he also emphasized, "Title to property is said to be governed
by the lex situs, but this principle is not universally applied, especially
where general assignments on marriage, death or bankruptcy are concerned(17)....
According to several leading publicists, based in Anglo-Saxon countries
and Asian countries, such as China and Japan(18),
private international law, also known as conflict of laws in the common
law system, refers to a series of domestic legal rules and legal techniques,
instructing a learned judge as to which foreign law is a governing law
and of relevance to a particular civil case containing a foreign element(19).
Private international law, a division of municipal law rather than international
law, is primarily concerned with the rules of selecting and applying
foreign law as a proper law. Consequently, the names of private international
law and conflict of laws can be employed interchangeably, but the meaning
remains the same.
However, it is very difficult to define the meaning of private international
law in the French context because French private international law,
or droit international prive in French, can be divided into four categories:
jurisdiction, conflict of laws, the treatment of aliens and procedural
law (20).
The separate divisions are not concerned with the same laws. Whereas
the primary purpose of conflict of laws is to single out foreign laws,
the other three categories are exclusively dependent upon French Domestic
Law. Making a definition that completely covers all four divisions is
an arduous task. For this reason, the study of private international
law in Thailand, at both the Bachelor of Law and the postgraduate level,
is confusing.
The first thing to keep in mind is that the core of private international
law, or conflict of laws, is the rules that govern the choice of laws,
namely applying an applicable law, in civil cases containing a foreign
element. At the same time, any case regarding public law, or specifically
speaking, relating to administrative law, is excluded from the realm
of private international law. Consider the revocation of a Thai nationality,
inter alia, is primarily concerned with administrative law rather than
private international law because the revocation is a direct result
of an administrative order issued by administrative authorities; the
order has a legal effect on the rights and duties of an individual,
rescinding their Thai nationality.
Another example is the granting of permission to foreigners to enter,
work or operate a business in Thailand. These laws should be categorized
as a branch of public law. Under a territorial jurisdiction, as a rule,
every State lays down a set of legal rules concerning the entrance into
a country and working or investing in the Host State, in order to monitor
and control foreigners living in the Host State. These public rules
are concerned mostly with law that is administrative in its nature,
rather than with conflict of laws.
