Page 31 - ดุลพาห เล่ม3.indd

ดุลพาห

property right may be filed with the Japanese courts if the subject matter of the claim
is located within Japan. It further states that, when the action is a claim for the

payment of money, Japanese courts can also assert international jurisdiction over
such a claim if the defendant’s seizable property is located within Japan, excluding

cases where the value of the property is extremely low. This approach can be
contrasted with the Brussels regime, where general jurisdiction based on the presence

of the defendant’s property is precluded. The Brussels Convention disbarred the use
of Section 23 of the German Code of Civil Procedure as the grounds of jurisdiction in

personam. Also, the 1999 Draft Hague Convention prohibits the founding of general
jurisdiction over a defendant based on the presence or seizure of property belonging

to the defendant in the forum . However, the Convention does not forbid the use of
60
situs of the property as the basis for special jurisdiction when the claim is directly

connected to the property of the defendant located in the forum .
61

5. Jurisdiction based on the business activities of the defendant
(“doing business” jurisdiction)

(1) The current state of Thai law

Section 3 (2) of the CPC appears to empower the Thai courts to assert
general jurisdiction over non-resident defendants if they presently carry out business

or used to carry out business, in whole or in part, in Thailand within the past two
years before filing a complaint . The precise delineation of the scope of this jurisdictional
62
ground, as well as the quality and quantity of the defendant’s activity in the forum
needed in order to establish jurisdiction, is left to the judiciary to decide. Up to now,

there has been no Supreme Court precedent giving a clear explanation on this matter.

60. Article 18(2)(a) of the 1999 Draft Hague Convention.
61. Peter Nygh and Fausto Pocar, “Report on the Preliminary Draft Convention on Jurisdiction and Foreign
Judgments in Civil and Commercial Matters adopted by the Special Commission,” (August 2000):
79, www.hcch.net/upload/wop/jdgmpd11.pdf.
62. See supra n. 31.

20 เล่มที่ ๓ ปีที่ ๖๕