Final Report For Research on “Comparative Study of the Provisions of Non-performance under the Principles of Asian Contract (PACL) and Thai Law”
By Assistant Professor Dr Korrasut Khopuangklang*
Submitted to the Research Promotion Committee, Faculty of Law, Thammasat University
*Assistant Dean for Communications, Director of the Thammasat Legal Centre, Members of Centre for Civil Law and Centre for Business and Commercial Law, Faculty of Law, Thammasat University
Background of the Research
There has been co-operation in creating legal models for European contract law. The Principles of European Contract Law (PECL) was first published in 1995 and completed in 2002. It was subsequently followed by the Draft Common Frame of Reference (DCFR), which is the latest legal framework. This seeks to harmonise the principles of European private law (i.e. not merely contract law) and its outline edition was published in 2010. In contrast to the European contract law, there has been very little movement toward seeking the harmonisation of Asian contract law.
Nevertheless, there has been an attempt to create the so-called the “Principles of Asian Contract Law” (PACL), which is based on the PECL. Contract law academics from a number of Asian countries, including Japan, South Korea, Singapore, China, Malaysia, The Philippines, Myanmar, Indonesia, Cambodia, and Vietnam, together with Thailand, are cooperating in an attempt to develop a set of model rules for Asian contract law. The PACL forums began in 2010. Since 10 October 2009, when it was agreed on the plan for the harmonisation of the Principles of Asian Contract Law at the international conference at Qinghua University, Beijing, there has been a number of PACL forums held in different places such as Tokyo, Hanoi, Seoul, Osaka and Beijing.The Chapter of Non-Performance has been being worked on since then.
This researcher has been invited join the PACL forums since May 2016, which was held in Tokyo between the 26th and 29th May 2016, to represent the views of the Thai jurisdiction on the Chapter of Non-Performance. During this forum, Korean representatives (the Korean Team), who were the drafters, presented the provisions on Non-Performance that were intended to be used for the PACL and the participants commented on them; thus, the finalised draft of the PACL on Non-Performance was agreed. A “Finalisation Committee” consisting of the PACL participants whose first language is English was appointed to ensure that the English in the PACL drafts was correct and consistent. The “Finalization Committee” draft was completed in August 2017. Later forums were held in November 2017, March 2018, and January 2019, to complete the Chapter.
Objectives of the Research
This researcher is required to submit a National Report to represent the extent to which the provisions on Non-Performance under The PACL are consistent (i.e. similar or different) with the Thai law. As a result, this researcher wishes to conduct a comparative research on the provisions of Non-Performance under the PACL and Thai Law, the outcome of which would become the National Report that will be subsequently published in the PACL books. The main aim of this research is therefore to compare the provisions on Non-Performance between the PACL and Thai law in order to examine their salient similarities and differences. This research only consists of a comparison of the provisions under the PACL and the Civil and Commercial Code due to space constraints and the nature of the systems studied. As a result, the term “Thai law” refers to the Civil and Commercial Code, unless otherwise stated.
It will not only involve comparing the substance or contents of the provisions in the studied systems, but it will also justify the theory behind the rules. In this respect, the justification for each provision on Non-Performance under the PACL will be partly based on the direct experiences of the researcher during the PACL forums in Tokyo and Seoul. The extent to which the provisions on Non-Performance under The PACL and Thai law are similar will also be analysed, not only in terms of the similarities or differences of the “legal concept”, but also the “terminology”. Specifically, the analysis will determine whether or not the terminologies adopted under the PACL reflect any essential differences in Thai law. Finally, the circumstances in which a legal concept under the PACL does not seem to be recognised under Thai law will be analysed in terms of how the Thai courts or Thai writers would approach this situation. For instance, the PACL recognises the notion of Anticipatory Non-Performance, which allows creditors to resort to remedies for non-performance, other than specific performance, before the due date of the performance, and this notion does not seem to be theoretically recognised under Thai law.
As this research is a perspective on provisions of Non-Performance under the PACL from Thai law, in terms of its significance for Thai legal academics, this research will provide a new body of knowledge of the concept of Non-Performance for Thai law.