1. What Does Applicable Law Mean in Private International Law?
Applicable law in private international law refers to the national legal system that governs a private law dispute containing a foreign element. When a legal relationship is connected with more than one country, the court cannot automatically assume that its own domestic law applies. Instead, the court must identify the proper conflict-of-laws rule and determine which country’s substantive law governs the dispute.
In Turkish law, the main statute governing this area is Law No. 5718 on Private International Law and International Civil Procedure, commonly referred to as the Turkish PILA or MÖHUK. This law regulates the applicable law in private law relations containing a foreign element, the international jurisdiction of Turkish courts, and the recognition and enforcement of foreign judgments and arbitral awards.
2. The First Question: Is There a Foreign Element?
The first step is to determine whether the dispute contains a foreign element. A foreign element exists when the legal relationship is connected to more than one legal system. This may occur when one party is a foreign national, the contract is performed abroad, the damage occurs in another country, the deceased person is a foreign citizen, the relevant property is located abroad, or the parties have chosen a foreign law in their agreement.
For example, a contract between a Turkish company and a German company, a divorce case between spouses of different nationalities, an inheritance dispute involving real estate in Turkey and assets abroad, or a tort claim arising from an accident in another country may all contain a foreign element.
The Turkish Court of Cassation has also described the foreign element as a factor that connects a legal transaction, relationship or event with more than one state law.
3. International Conventions Come First
Before applying domestic conflict-of-laws rules, it is necessary to check whether an international convention applies. Turkish PILA expressly states that provisions of international conventions to which the Republic of Türkiye is a party are reserved.
This is particularly important in areas such as international child abduction, maintenance obligations, international carriage, arbitration, intellectual property, enforcement of foreign judgments and cross-border family law. If a treaty contains a special rule, that rule may prevail over the general provisions of Turkish PILA.
4. Classification of the Legal Issue
The court must then classify the legal issue. Is the dispute contractual? Is it a tort claim? Does it concern inheritance, family law, property rights, consumer protection, employment, intellectual property or unjust enrichment?
This classification is crucial because Turkish PILA contains separate conflict-of-laws rules for different legal categories. It includes rules on capacity, guardianship, marriage, divorce, matrimonial property, parentage, maintenance, inheritance, property rights, intellectual property, contractual obligations, consumer contracts, employment contracts, carriage of goods, representation, torts, personality rights, product liability, unfair competition and unjust enrichment.
A wrong classification may lead to the application of the wrong connecting factor and therefore the wrong law.
5. Foreign Law Is Applied Ex Officio
Under Article 2 of Turkish PILA, the judge applies Turkish conflict-of-laws rules and the foreign law designated by those rules ex officio. This means that the court must consider the applicable foreign law even if the parties do not expressly request it. The judge may ask the parties to assist in determining the content of the foreign law. If the content of the foreign law cannot be determined despite all efforts, Turkish law applies.
The Turkish Court of Cassation has confirmed that determining the content of foreign law may require special and technical expertise and that the court may obtain expert evidence. If foreign law cannot be established despite all research, Turkish law will apply.
In practice, this means that a party relying on foreign law should not merely state that foreign law applies. It should provide the relevant statutory provisions, case law, legal opinions, translations and, where necessary, expert reports.
6. Choice of Law in International Contracts
Choice of law is one of the most important concepts in private international law. In cross-border contracts, parties may agree on the law governing their contractual relationship. Under Article 24 of Turkish PILA, contractual obligations are governed by the law expressly chosen by the parties. A choice of law that can be clearly inferred from the terms of the contract or the circumstances of the case is also valid.
The parties may choose the applicable law for the entire contract or for only part of it. They may also make or change the choice of law after the contract has been concluded, provided that third-party rights are not prejudiced. If there is no valid choice of law, the contract is governed by the law most closely connected with it. Turkish PILA uses factors such as the habitual residence, workplace or place of business of the characteristic performer to identify the closest connection.
However, party autonomy is not unlimited. In consumer contracts, employment contracts, insurance contracts and real estate-related contracts, mandatory protective rules may restrict or modify the effect of the parties’ choice.
7. Public Policy Exception
Even if a foreign law is designated as applicable, it may not be applied if its result is clearly contrary to Turkish public policy. Article 5 of Turkish PILA provides that if the provision of the applicable foreign law is clearly contrary to Turkish public policy, that provision will not be applied and, where necessary, Turkish law may apply instead.
The public policy exception is narrow and exceptional. A foreign law is not contrary to Turkish public policy merely because it differs from Turkish law. The Turkish Court of Cassation has emphasized that public policy intervention in conflict-of-laws matters is limited and exceptional; not every difference from mandatory Turkish law is sufficient. A foreign rule may trigger public policy intervention if it violates fundamental values of Turkish law, constitutional rights, basic principles of justice or internationally accepted legal standards.
8. Overriding Mandatory Rules
Turkish law also recognizes overriding mandatory rules. Under Article 6 of Turkish PILA, even where foreign law applies, Turkish overriding mandatory provisions apply if the matter falls within their purpose and scope.
These rules protect not only individual party interests but also the social, economic or political interests of the state. Depending on the facts, certain labor safety provisions, competition law rules, consumer protection measures or public regulatory rules may operate as overriding mandatory rules.
9. Form and Limitation Periods
Private international law analysis is not limited to substantive rights. The form of legal transactions and limitation periods must also be considered. Under Article 7 of Turkish PILA, legal transactions may be valid in form if they comply either with the law of the place where they are made or with the substantive law governing the transaction. Under Article 8, limitation periods are governed by the law applicable to the substance of the legal relationship.
This can be decisive in practice. A contract may be valid under one legal system but invalid under another due to form requirements. Similarly, a claim that is not time-barred under Turkish law may be time-barred under the foreign law applicable to the merits.
10. Family Law Disputes
In international family law disputes, Turkish PILA provides specific connecting factors. Capacity and conditions for marriage are governed by each party’s national law at the time of marriage, while the form of marriage is governed by the law of the place where the marriage is celebrated. Divorce and separation are governed by the spouses’ common national law; if they have different nationalities, their common habitual residence law applies; if there is no such law, Turkish law applies.
Therefore, a divorce case filed in Turkey between foreign spouses is not automatically governed by Turkish law. The court must examine the spouses’ nationalities, habitual residence, possible public policy issues and the specific rules of Turkish PILA. Temporary measures, however, are governed by Turkish law.
11. Inheritance Law
Inheritance is governed by the national law of the deceased. However, Turkish law applies to immovable property located in Türkiye. Rules concerning the opening, acquisition and distribution of the estate are governed by the law of the country where the estate is located.
This rule is particularly important when a foreign national leaves real estate in Türkiye. Turkish inheritance law may apply to Turkish immovable property even if the deceased was a foreign citizen. Movable assets, bank accounts, company shares or assets located abroad may require a separate legal analysis.
12. Property Rights and Real Estate
Property rights are generally governed by the law of the place where the property is located. Under Article 21 of Turkish PILA, ownership and other real rights over movable and immovable property are subject to the law of the country where the property is located at the time of the transaction. The form of transactions concerning real rights over immovable property is also governed by the law of the place where the property is located.
As a result, ownership, transfer, mortgage, usufruct and other real rights over real estate in Türkiye are governed by Turkish law. Parties cannot avoid the Turkish real estate regime merely by choosing a foreign law in their contract.
13. Torts and Non-Contractual Obligations
For torts, the main rule is the law of the country where the tort was committed. If the place of the wrongful act and the place where the damage occurred are in different countries, the law of the country where the damage occurred applies. If the tort relationship is more closely connected with another country, that country’s law may apply. The parties may also choose the applicable law after the tort has occurred.
This is highly relevant for traffic accidents, product liability, online defamation, data breaches, unfair competition and cross-border commercial damage claims.
14. Practical Importance of Determining the Applicable Law
Determining the applicable law is not a theoretical exercise. It directly affects the outcome of the case. The applicable law may determine whether a contract is valid, whether a party has capacity, whether a claim is time-barred, whether compensation is available, whether a marriage or divorce is legally recognized, how inheritance shares are calculated, and whether a foreign judgment can produce legal effects in Türkiye.
For this reason, in cross-border disputes, the applicable law must be analyzed at the very beginning of the legal strategy. A claim based on the wrong law may be dismissed even if the claimant is substantively right under another legal system. Likewise, failure to raise the correct foreign law provisions, expert evidence or public policy arguments may cause serious loss of rights.
15. Conclusion
In Turkish private international law, the applicable law is determined through a structured legal analysis. The court first identifies the foreign element, checks whether an international convention applies, classifies the legal issue, selects the correct conflict-of-laws rule, examines any choice of law, considers public policy and overriding mandatory rules, and finally applies the designated substantive law.
Because this process involves technical conflict-of-laws analysis, foreign legislation, translations, expert opinions and strategic litigation planning, professional legal assistance is essential in international family law, inheritance disputes, commercial contracts, employment claims, tort actions, real estate matters and recognition or enforcement proceedings in Türkiye.
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