Page 64 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

a close connection with the law of the country of location at the time the facts
which serve as the cause of acquisition or loss were completed, and there is no

difficulty in ascertaining the physical location at that time. Furthermore, among
such cars, there are cars which are traded as unregistered cars with

the assumption that they will be newly registered and placed in use
in the importing country, but which in fact, had been registered in another
country such as the Car in the present case. If laws other than the law of

its physical existence, such as the law of the country of registration, is made
the applicable law, it would not be easy for those who participate in

the transaction to understand which law is the applicable law at the time of
the transaction. Such a situation is against the requirement that those who are
involved in international trade should be allowed to clearly predict the choice

of applicable laws which have a major potential to affect his transaction and
to take measures in advance. It also significantly harms the stability of trade
from the viewpoint of international private law. Therefore, those cars which,

at the time the cause for the acquisition and loss of the rights was completed
were in such a state that they were not ready to be placed in use, the law of
the place of its physical presence should be the applicable law in the same

manner as ordinary movables, unless the car is being transported to the consignee
country and there is a problem in making the law of its physical presence

the applicable law”. [underlined by the author]

The Supreme Court referred to the fact that it is not difficult in cases of
the category for parties to acknowledge the actual place of physical existence of a car,

in order to sustain the principle of the lex loci rei sitae. However, in terms of places that
parties can easily identify at the time of transaction, there are other options, such as

the place of transaction or the place which the parties to the transaction choose in terms
of choice-of-law as party autonomy. Nevertheless, instead of these options, the Supreme
Court held the principle of lex loci rei sitae as for a car not being ready for use, except

in particular cases.

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