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ดุลพาห

freedom of parties to agree on jurisdiction has been removed from the CPC
before due to concerns over public interests and the protection of economically

weak parties such as consumers, such concern can be mitigated by imposing
legal constraints on the freedom of the parties to enter into a choice-of-court

agreement. In fact, the freedom to select jurisdiction under Japanese and EU
laws have also been limited by exclusive jurisdiction provisions and special

restrictions for the protection of weak parties from which the parties cannot
derogate . Accordingly, exclusive jurisdiction of Thai courts should be clarified
119
in order to protect certain public interests and ensure matters that fall within the
scope of exclusive jurisdiction, such as the incorporation of companies and validity

of entries in public registers, cannot be circumvented by the use of choice-of-court
agreements. Also, the standards for protection of weak parties under the Consumer

Case Procedure Act and the Act for the Establishment of and Procedure for Labor
Court can still be maintained by limiting the choice of jurisdiction to only the courts

of the country where the consumer was domiciled or the court of the country where the
employee worked. Furthermore, the formal validity requirements for choice-of-court

agreements should be clearly prescribed to ensure legal certainty and cover electronic
means of agreement. In order to protect public interests and guarantee the parties’

right to access to the court, the new framework should recognize the discretion of the
Thai courts to refuse to enforce a choice-of-court agreement if it is contrary to public

policy or the good morals of Thailand under Section 150 of the Thai Civil and
Commercial Code, or if the chosen foreign court is unable to exercise its jurisdiction,

similar to Article 3-7 (4) of the JCCP.

(6) Establishment of jurisdiction by appearance of the defendant

The entry of an appearance by the defendant is a common basis for
international jurisdiction in many countries including Japan and the EU. The

appearance of the defendant could be viewed as an implicit agreement to submission

119. See Articles 3-5 and 3-7 of the JCCP, and Articles 24 and 25 of the Brussels I (recast).

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