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ดุลพาห

(2) Insertion of detailed jurisdictional rules suitable for each type of
litigation

The need to increase legal certainty and foreseeability leads to the
clarification of jurisdiction rules in each category of transaction. As previously

explained, general principles based on the cause of action under Section 4 (1) of the
CPC are not sufficiently clear and precise enough to ensure legal certainty.

Explanations on the application of this section are mostly found in case law
established by the Supreme Court. However, such case law is generally complicated

and difficult for foreign parties to understand. From the viewpoint of predictability
and clarity, it is desirable to codify unwritten rules and lay down specific

jurisdictional requirements for application in each type of international litigation,
particularly the most common actions, such as contract and tort claims.

As for claims in relation to contracts, the new scheme should provide clear
grounds of international jurisdiction using the place for performance of the

contractual obligation and the place for the conclusion of the contract as jurisdictional
bases. The first basis is a common approach found in several countries including

Japan, the EU, and also Thai case law. The second basis is established on Thai case
law and could be justified on the grounds that a significant part of the transaction

occurred in the forum state and is closely connected with the location of evidence,
which facilitates the parties’ interest in the availability of evidence. Also, the location

of a contract can be seen as identifying the parties’ implied choice of forum, by the
same analogy as the methods used to identify a choice of law in contractual cases in

the absence of an expressed choice .
111

111. Section 13 of the Act on Conflict of Laws, B.E. 2481 (1938):
“The question as to what law is applicable in regard to the essential elements or effects of a
contract is determined by the intention of the parties to it. If such intention, express or implied,
cannot be ascertained, the law applicable is the law common to the parties when they are of the same
nationality, or, if they are not of the same nationality, the law of the place where the contract has
been made.”
For further discussion on this matter, see Keyes, “Critical Analysis of Jurisdiction,” 387.

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