A Comparative Study of the Determination of Applicable Laws on Contractual Obligations under EU, Chinese and Thai Laws and Regulations

Abstract

The current Thai conflict law on contractual obligations has some defects and it should be amended to keep pace with other jurisdictions such as EU and China. The defects of the current Thai conflict law on contractual obligations include the default of the rule of the most significant connection, the uncertainty of Renvoi, the default of overriding mandatory rules, and the absence of some legal terms adopted by other legislation. The author recommends that the amendment should consider these proposals: Firstly, the rule of the most significant connection should be adopted by the legislation in case the choice of law is absent in the contract. Secondly, it should exclude Renvoi in the field of contract law expressly by which will bring more stability and predictability into the legal outcome. Thirdly, not only the reservation of public policy, but the overriding mandatory rules also are adopted by the amendment which will help the weaker party to the contract or the domestic political, financial, and economic order of Thailand. Finally, the connecting factors of ‘characteristic performance’ and ‘habitual residence’ should be taken into account into the new Thai rule of conflict of law, which will benefit the Thai court to allocate the substantially applicable rules.