VII. The Relationship between Conflict of Laws and Law of Nationality.
As we have seen, Thai private international law should not treat law
of nationality as a province of private international law although Thai
conflict of laws expressly considers nationality a key connecting factor
not only in law of persons but also in family law. Some rules in conflict
of laws possibly relate to rule of nationality and vice versa. It is
difficult to explain this issue in depth but it is possible to mention
how the two topics closely relate to each other. For example, if someone,
either a Thai citizen or a foreigner, obtains a new nationality by marriage
or nationalization, the latter nationality may impact on capacity to
act. Conflict of laws of some countries fill this gap by stipulating
that a capacity is not changed by a subsequent change of domicile or
nationality.
Another good example is the meaning of marriage in the Thai Nationality
Act B.E 2505 in pursuant of article(9).
Thai law of nationality acknowledges that only foreign women can receive
Thai nationality by marriage with a Thai citizen. The word "marriage"
means a lawful marriage celebrated in accordance with the law of each
spouse. Logically, before acquiring new nationality, an alien must be
married legally, so a fundamental question is how a learned judge knows
whether the marriage is legal. In order to reach a decision on such
a problem properly, he must answer the question of the conditions of
marriage of each party, including the point of the form of marriage.
A learned judge can find these answers appropriately by resorting to
conflict of laws relating to family law.
Summing up, it must be noted that whether lawyers cite
private international law or conflict of laws, their decision must be
primarily anchored in the choice and application of foreign laws relating
to civil and commercial cases, not criminal disputes. The confusion
does not arise from a name but from content.
Part Two
The Theoretical Frameworks of Basic Concepts of Thai
Private International Law
Part two is the heart of this article. By resorting to a comparative
method and analytical approach, the general principles of conflict of
laws, the Allgemine Tile, will be closely examined. The salient features
of general principle of private international law, such as classification,
preliminary question, renvoi and fradude a la loi, are dogmatic, abstract
and necessary(27).
Before examining the conflict of laws in detail, the present author
would like to briefly outline the history of Thai conflict of laws.
I. Historical Background of Thai Private International Law:
Two periods of time
Although Thailand, formerly known as Siam, had conducted international
relations, both political and commercial, with occidental and eastern
countries since the Sukhothai era to the Bangkok period, Ratanakosin,
Thai conflict of laws had never been used in resolving a civil case
arising from a dispute between Thai citizens and aliens dwelling in
the Kingdom of Thailand. For a better understanding of the rise and
development of the Thai conflict of laws, we should divide its evolution
its two periods. The first was the period when Siam did not enact the
Act on Conflict of Laws B.E. 2481. The second was the era after Siam
promulgated the legislation that empowered Thai courts to hear and rule
cases concerning foreign systems of law, entitled the Act on Conflict
of Laws B.E. 2481. The following paragraphs draw attention to the such
period.
Regarding the first period prior to the Act B.E.2481, it was not until
approximately 2460 B.E. that Thailand initially employed conflict of
laws, albeit without written law on conflict of laws, to resolve civil
disputes containing foreign element decided by Thai courts. There were
fewjudgments dealing with conflict of laws. In deciding such cases,
the Thai Supreme Court, by way of resorting to piecemeal western conflict
of laws rules, applied foreign laws to any civil cases in hand. For
example, the Thai Supreme Court composed of foreign and Thai judges
adjudicated on the problem of intestate succession belonging to a foreigner
where the immovable property was located in Siam(28).
In that case, the Court relied on lex situs and also, interestingly,
cited the Dicey's book entitled Conflict of laws as an authoritative
means for determination of rules of law.
