V. Provinces of Private International Law
After considering the content of private international law from a the
conciseness of comparative survey, the scope of the subject matter of
this discipline can be categorized into three approaches. The first
is the French tradition. The Second is the common law approach. Aside
from French and common law practices, the German Conflict of law is
viewed as the last one. The following paragraphs will focus largely
on each type.
According to the French approach, private international law into four
parts(21).
The first part deals with rules on nationality. The second part involves
the treatment of aliens(22),
the choice of laws, and rules on the procedure called recognition and
enforcement of foreign judgement. The study of the four aforementioned
subjects is unique to French private international law and has long
been adopted in French treatises.
In the common law world, conflict of laws studies not only choice of
law rules but also jurisdiction and recognition and enforcement of foreign
judgments which are closely interrelated(23).
Unlike the French and common law traditions, it is well established
that the German treatises on private international law confine themselves
only to choice of law rules(24).
The law of nationality and the law of aliens, by nature, fall outside
the scope of German private international law and are incorporated into
constitutional law and administrative law. The rules relating to recognition
and enforcement of foreign judgments are viewed as a part of the law
of civil procedure.
The question is why did France incorporate nationality into private
international law? The answer is quite simple. France was the first
nation in Europe to become a modern state strongly rooted in Nationalism
and Territorial jurisdiction. France was proudly nationalistic and possessed
a chauvinistic attitude in regards to the extent that nationality plays
a paramount role in French private international law. Nationality is
key factor, enabling lawyers to distinguish citizens to be distinguished
from aliens. According to article 3 of the Napoleon code, all French
nationals are subject only to French civil code.
Nowadays, there are only a few countries following the French tradition.
The topic of nationality and the legal status of foreigners living in
host state are excluded from the subject of private international law
even in Venezuela that, in the past, was influenced by French tradition(25).
Also, it is has long been accepted among scholars that the general lecture
courses relating to private international law delivered at the Hague
Academy in the Netherlands are only concerned with conflict of laws
rules rather than rules of nationality and aliens(26).
However, Thai private international law has long been in thrall to
French tradition. Dr. Preedee Phanomyong, the renowned scholar who graduated
from French university Paris II, may have been the first jurist to write
a textbook on this discipline influenced by the French approach. After
that, many Thai jurists followed the trend, except for Dr. Yut Sangoudhai.
Up to now, Thai curriculum of bachelor of law, both public and private
law school, relies heavily on the French approach. One might think that
we cannot integrate the difference of applicable laws into the same
subject, for example, while a conflict of law deals primarily with selecting
foreign laws, the remainder are concerned exclusively with domestic
law, that is to say, public law.
Unnecessary confusions arise, both in theory and in study, because
of the failure to distinguish between private law and public law, to
separate national law from foreign law, to recognize differences between
personal jurisdiction and territorial jurisdiction. With regard to Thai
authorities, Thai private international law should exclude the topic
of the law of nationality and legal status of foreigners in Thailand.
There are several reasons why private international law should not integrate
these two topics into a part of itself. The following sentences are
mostly devoted to examining the scope of this subject.
In the area of nationality, textbooks or syllabuses should pay more
attention to the principle of law of Thai nationality as a connecting
factor instead of detailed rules of nationality. In addition, law students
should be familiar with nationality as a point of contact recognized
by the Thai conflict of laws, especially in the question of law of person
and family. According to the Thai conflict of laws, nationality plays
a leading role in determining the applicable law relating to all problems
of status and capacity of persons, including the questions of family
law such as the conditions of marriage, the relationship between husband
and wife, the legitimacy of a child et al.
