One of the most important issues in private international law is determining which national law applies to a dispute involving a foreign element. Today, due to increasing cross-border movement of people, the globalization of trade, international marriages, and expanding commercial relations between different countries, it has become very common for a single legal dispute to be connected to more than one legal system.
At this point, the question of “applicable law” arises. In other words, which country’s substantive law should be used to resolve the dispute? For example, in a divorce case between a Turkish citizen and a German citizen, which law will govern the case? Or in a contract between a company based in Turkey and another based in France, which legal system will apply?
These questions are answered through private international law rules. In Turkish law, the determination of applicable law is mainly regulated under Law No. 5718 on Private International Law and International Civil Procedure (MÖHÜK).
In this article, we will examine how applicable law is determined under MÖHÜK, the role of connecting factors, the function of the judge, the application of foreign law, and the public policy exception in detail.
What Is Applicable Law?
In private international law, applicable law refers to the national legal system that will govern the resolution of a dispute containing a foreign element.
The main issue is that the dispute may not be governed solely by Turkish law; instead, it may need to be resolved under the legal system most closely connected to the case.
For example:
- Contracts concluded abroad
- Divorce between spouses of different nationalities
- Property located in another country
- International inheritance relations
In such cases, the question of applicable law arises.
Before addressing the merits of the case, the court must first determine which country’s law applies. Only after this determination does the court proceed to the substantive examination of the dispute.
Therefore, determining applicable law is one of the fundamental steps in private international law.
What Is MÖHÜK?
MÖHÜK (Law on Private International Law and International Civil Procedure) is the main legal source regulating:
- Applicable law in foreign-related disputes
- Jurisdiction rules
- Recognition and enforcement of foreign judgments
It forms the backbone of the Turkish private international law system.
MÖHÜK regulates:
- Which court has jurisdiction
- Which country’s law applies
- How foreign judgments produce legal effects in Turkey
In particular, it provides specific conflict-of-law rules for different areas of private law.
What Are Connecting Factors?
Under MÖHÜK, the determination of applicable law is carried out through connecting factors.
Connecting factors are legal criteria used to determine which national legal system governs a legal relationship involving a foreign element.
In other words, they link a legal relationship to a particular legal system.
They generally consist of:
- The type of legal relationship
- The connecting point (criterion)
For example, in inheritance law, the nationality of the deceased may serve as a connecting factor.
Types of Connecting Factors
Several connecting factors are used in private international law:
Nationality
A person’s nationality is an important connecting factor, especially in personal status matters.
Domicile / Residence
The habitual residence of a person is frequently used in determining applicable law.
Habitual Residence
This is particularly important in family law and child protection matters.
Place of Performance
In contract law, the place where the contract is performed may determine applicable law.
Location of Property
In real property matters, the law of the place where the property is located generally applies.
Determination of Applicable Law under MÖHÜK
MÖHÜK provides specific rules for different areas of private law.
Personal Law
The capacity of natural persons is generally governed by their national law.
For example, the legal capacity of an Italian citizen is determined according to Italian law.
Family Law
In matters such as marriage, divorce, and custody, the common national law or the common habitual residence of the spouses may be taken into account.
For example, in a divorce case between a Turkish citizen and a French citizen, if their common habitual residence is France, French law may apply.
Inheritance Law
Inheritance relations are generally governed by the national law of the deceased.
However, for immovable property, the law of the place where the property is located becomes relevant.
For example, inheritance of real estate in Germany may be governed by German law.
Contract Law
If the parties have chosen a governing law, that law will apply.
If no choice of law has been made, the law most closely connected to the contract will apply.
This is particularly important in international trade.
Freedom of Choice of Law
Under MÖHÜK, parties are granted a limited freedom to choose the applicable law.
For example, in a contract between a company in Turkey and a company in the United Kingdom, the parties may agree that English law will govern the contract.
This is especially important in:
- International trade
- Investment contracts
- Transport agreements
- Financial transactions
However, freedom of choice is not unlimited.
Any chosen law that clearly violates Turkish public policy may not be applied.
Role of the Judge
A Turkish judge is required to determine the applicable law ex officio.
This means that even if the parties do not invoke foreign law, the judge may apply it when necessary.
This is one of the distinctive features of private international law.
However, determining the content of foreign law is not always easy in practice.
Courts may rely on:
- Expert reports
- Academic opinions
- International databases
- Information provided by the Ministry of Justice
Application of Foreign Law
Once the court determines that foreign law applies, it must apply the substantive rules of that foreign legal system.
The important point is that foreign law must be applied in its real substance, not merely formally.
For example, if French law applies, the court must apply French substantive legal rules.
Renvoi (Referral Problem)
In private international law, a foreign legal system may refer the matter back to another legal system.
This is known as “renvoi” or referral.
For example, Turkish conflict rules may refer a case to German law, but German conflict rules may refer the matter back to Turkish law.
MÖHÜK accepts renvoi in certain areas.
Public Policy Exception
Foreign law is not always applied.
If the application of foreign law leads to a result that is clearly contrary to Turkish public policy, Turkish courts may refuse to apply it.
Examples include:
- Polygamy
- Violations of fundamental human rights
- Serious violations of the right to defense
However, mere differences between legal systems do not justify public policy intervention.
Courts interpret this exception narrowly.
Mandatory Rules (Directly Applicable Rules)
Some legal rules are so important for the state that they apply regardless of the applicable foreign law.
These are known as mandatory rules.
Examples include:
- Labor protection rules
- Competition law provisions
- Consumer protection regulations
In certain cases, these rules apply directly even if foreign law governs the relationship.
Practical Challenges
Determining applicable law under MÖHÜK may create several practical difficulties:
Determining Foreign Law Content
Accessing foreign legislation is not always easy.
Translation Issues
Incorrect translations may lead to legal errors.
Different Legal Systems
Differences between civil law and common law systems may create difficulties.
Public Policy Disputes
Whether a foreign rule violates public policy may be controversial.
Importance of Court of Cassation (Yargıtay) Decisions
The decisions of the Turkish Court of Cassation play a crucial role in the application of MÖHÜK.
Especially in cases involving:
- Public policy exceptions
- Application of foreign law
- Renvoi issues
- Jurisdiction matters
Yargıtay case law significantly shapes legal practice.
Conclusion
The determination of applicable law under MÖHÜK is one of the core issues of private international law. In disputes involving a foreign element, identifying the applicable legal system is carried out through connecting factors.
Due to globalization, increasing international marriages, and expanding cross-border trade, the issue of applicable law has become even more significant today.
Therefore, understanding the MÖHÜK system and conflict-of-law rules is essential for law students, practitioners, and legal professionals working in the field of private international law.
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