In general, Thai private international law is mostly wedded to nationality
as a connecting factor rather than domicile. Therefore, it is not necessary
to discuss a large number of detailed rules that are not concerned with
conflict of laws, like the decree of Coup no. 337 as well as the article
5 of the Nationality Act B.E. 2508 (amended in 2535). The decree of
Coup no. 337 is exclusively based upon an idea of Thailand 's national
security, revoking the Thai nationality of the person who obtained Thai
nationality in the light of jus soli i.e. one or both of his/her parents
dwell in Thailand as a refugee or illegal immigrant. Obviously, this
law is not involved in choosing and applying foreign law. And it does
not deal with private law as well. Thus, the decree of Coup d' etat
no. 337 is regarded as an irrelevancy.
The realm of treatment of the legal, status of aliens in Thailand is
incorporated into Thai private international law, too. On this point,
I disagree with this classification. In my academic view, influenced
by German jurists like Zitelmann, Kahn and Wolff, it is inappropriate
to say that private international law embraces the treatment of aliens
because this issue is closely linked with public laws, domestic law.
In several countries, such as Germany, Japan etc, treatment of aliens
is regarded as a branch of public law, administrative law, because there
are a myriad of legal rules concerning the discretion of State and public
policy.
For example, immigration law relies heavily on public policy and security
of state. The admission of aliens depends chiefly on the discretion
of Host State. The admission involves public law, administrative law,
not foreign law. Also, the problems of owning land or buildings by foreigners
are decided in the light of the law of the Host State.
Another example supporting my argument is the employment of foreigners
in Thailand. Under the Working of Aliens Act, B.E 2521 (1978), this
law authorizes the Minister, as an administrative agent, to impose rules
as well as prescriptions of work on aliens.
VI. Silence on Some Topics in the Thai Academia and Practices
of the Thai Supreme Court
From the academic and practical point of view, the author wonders why
Thai lawyers and scholars do not pay serious attention to some topics
considered key concepts of private international law such as classification,
renvoi, incidental problem et al. There is little or no mention many
of the topics mentioned above, both in legal literature and in judgments.
In Thailand, conflict of laws rule is sometime viewed as the periphery
of private international law. In contrast to foreign countries with
both continental and common law systems, there are few works, or lawyers,
that write about these issues substantially in Thailand. Perhaps, Thai
lawyers' reticence on such legal matters these topics implies that these
issues are so complicated that they ignore them.
There are several examples that should be mentioned in order to support
my arguments and opinion. Typically, plenty of leading publications
of private international law, or conflict of laws, concentrate primarily
on classification, otherwise known as qualification, renvoi, preliminary
problem, or widely known as incidental question, the proofs of foreign
law and so forth. They play a crucial role in determining and applying
the applicable law in the light of the process of conflict rules. If
a judge is not closely familiar with these concepts, he will be unable
to rule the case in question correctly.
In practice, in addition, several judgments rendered by Thai Supreme
Court rarely refer to the concept of qualification, renvoi, when a judge
employs the conflict of laws. It should be also noted that the learned
judge never mentions or examines the incidental question when he adjudicates
on the problem of divorce and succession. It is generally believed that
preliminary problem plays a key role in the law of family and law of
succession. But Thai court used its own conflict of laws nonchalantly.
At the same time, a few judgments gave rise to a problem of study of
private international law in universities because lecturers could not
show how to decide a case containing foreign element in accordance with
conflict of laws in concrete. It is quite reasonable to say that a study
of conflict of laws in Thailand has not taken root and grown although
the Thai Conflict of Law Act came into force almost seven decades ago.
It seems that jurists and legal practitioners seldom think about Thai
conflict of laws and it has sunk into oblivion by degrees. It is time
to remind jurists of their lack of awareness.
