One of the primary objectives of private international law is to determine which national legal system should apply to disputes involving a foreign element and to ensure the orderly functioning of cross-border legal relations. However, in some cases, the foreign law that should normally be applied may conflict with the fundamental values of the Turkish legal system. At this point, the concept of “public policy intervention” comes into play.
Public policy (ordre public) intervention is one of the most important safeguard mechanisms in private international law. While states generally allow the application of foreign law, they also seek to protect their constitutional order, fundamental legal principles, and core social values.
In Turkish law, public policy intervention is regulated under Law No. 5718 on Private International Law and International Civil Procedure (MÖHÜK). This system gives Turkish courts the authority to refuse the application of foreign legal rules that clearly produce results contrary to Turkish public policy.
In this article, we will examine the concept of public policy in private international law, the conditions of its application, its areas of use, the approach of the Court of Cassation, and relevant examples.
What Is Public Policy?
Public policy refers to a broad legal concept that reflects the fundamental principles, social order, and essential values of a state.
In Turkish law, public policy generally includes:
- Constitutional principles
- Human rights
- Fundamental freedoms
- Legal certainty
- Moral values
- Protection of family structure
- Principles of justice
Public policy is not a fixed concept. It may evolve depending on social, economic, and political conditions.
Therefore, public policy has a dynamic nature.
Why Is Public Policy Intervention Necessary in Private International Law?
The basic principle of private international law is the application of the relevant foreign law in disputes involving a foreign element.
However, some foreign legal rules may seriously conflict with the fundamental principles of the Turkish legal system.
For example:
- Legal systems that allow polygamy
- Regulations creating severe gender inequality
- Rules eliminating the right to defense
- Provisions contrary to human rights
Such rules may be considered incompatible with Turkish public policy.
Therefore, public policy intervention serves as a safeguard mechanism protecting the fundamental values of the state.
Public Policy in MÖHÜK
According to MÖHÜK, foreign law will not be applied if it produces results that are manifestly contrary to Turkish public policy.
The key term here is “manifest contradiction.”
This means that mere differences between Turkish law and foreign law are not sufficient.
For example, the existence of different grounds for divorce in a foreign legal system does not, by itself, constitute a public policy violation.
The court evaluates whether the application of foreign law would seriously undermine the fundamental values of the Turkish legal system.
Characteristics of Public Policy Intervention
It Is Exceptional in Nature
Public policy intervention is not a normal rule but an exception.
Courts first attempt to apply foreign law. Only if a serious violation occurs is public policy invoked.
Case-by-Case Assessment
Each case is evaluated individually.
The same foreign legal rule may lead to different outcomes in different situations.
Focus on the Result
Courts generally focus not on the foreign rule itself but on the consequences of its application.
Examples of Public Policy Violations
Polygamy
Some legal systems allow polygamy. However, Turkish law is based on the principle of monogamy.
Therefore, foreign rules permitting polygamy may be considered contrary to public policy.
Violation of the Right to Defense
Foreign judgments rendered without proper notice or without granting the right to defense may be considered contrary to public policy.
Human Rights Violations
Any practice that violates human dignity or fundamental rights may be regarded as contrary to public policy.
Gender Inequality
Rules that create excessive discrimination between men and women may conflict with the principle of equality in Turkish law.
Public Policy and Recognition/Enforcement
Public policy intervention is not limited to the application of foreign law. It is also highly relevant in the recognition and enforcement of foreign judgments.
Turkish courts may refuse to recognize or enforce foreign judgments that are clearly contrary to public policy.
For example:
- Judgments violating the right to defense
- Decisions contrary to human rights
- Outcomes seriously incompatible with Turkish family law principles
Difference Between Public Policy and Mandatory Rules
These two concepts are often confused in practice.
Public policy intervention concerns the exclusion of foreign law.
Mandatory rules, on the other hand, are provisions that apply directly regardless of the applicable foreign law because of their importance to the state’s social and economic structure.
For example, certain labor protection rules may apply directly even if foreign law governs the relationship.
Approach of the Court of Cassation (Yargıtay)
The Court of Cassation adopts a narrow interpretation of public policy.
This is because the main objective of private international law is to ensure the application of foreign law whenever possible.
Therefore:
- Not every difference constitutes a violation
- Intervention is considered exceptional
- A clear and serious violation is required
In recognition and enforcement cases, Yargıtay places particular emphasis on the protection of the right to defense.
Public Policy in International Law
The concept of public policy is not unique to Turkish law.
Many legal systems impose limits on the application of foreign law.
However, the content of public policy differs from one country to another.
A rule accepted in one country may be considered contrary to public policy in another.
This makes public policy one of the most complex areas of private international law.
Criticism of Public Policy Intervention
Although necessary, public policy intervention has been subject to criticism.
Uncertainty
The boundaries of public policy are not clearly defined, which may reduce predictability.
Judicial Discretion
Wide judicial discretion may lead to inconsistent decisions.
Lack of International Uniformity
Excessive use of public policy may hinder international legal harmony.
Common Areas of Application
Public policy intervention is most commonly seen in:
- Divorce cases
- Alimony claims
- Adoption procedures
- Parentage disputes
- Enforcement of foreign judgments
- Arbitration awards
Family law disputes are particularly sensitive in this regard.
Role of the Judge
The judge may apply public policy ex officio.
This means that even if the parties do not raise the issue, the court may intervene if it detects a violation.
This reflects the state’s interest in protecting fundamental legal values.
Conclusion
Public policy intervention in private international law is one of the most important limitations on the application of foreign law. It ensures the protection of fundamental values of the Turkish legal system while maintaining balance in international legal relations.
However, due to its exceptional nature, courts must apply this concept cautiously and proportionately.
In today’s globalized world, where cross-border disputes are increasingly common, the importance of public policy in private international law continues to grow.
Therefore, understanding both the theoretical and practical dimensions of public policy intervention is essential for law students and practitioners working in this field.
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