Non-Contractual Obligations Arising from Torts under MÖHUK

In cases involving a foreign element, determining the law applicable to obligations arising from torts is one of the important issues of Turkish Private International Law. Situations in which the tortfeasor and the injured party are nationals of different countries, the harmful act occurs in one country while the damage arises in another, or the parties have their habitual residences in different countries may create a conflict of laws.

In such cases, it is not sufficient to directly apply the substantive provisions of Turkish law. First, it must be determined which country’s law is applicable under the Act No. 5718 on Private International Law and International Procedural Law (MÖHUK).

The principal provision concerning tortious obligations is Article 34 of MÖHUK. In addition, the provisions concerning the international jurisdiction of Turkish courts and the recognition and enforcement of foreign judgments may become relevant depending on the circumstances of the case.

The purpose of the rules concerning torts is to determine the legal system that will govern the consequences of an unlawful act causing damage where the dispute contains a foreign element.

The Concept of Tortious Obligations

A tortious obligation arises when a person unlawfully causes damage to another person and is therefore required to compensate that damage.

Under Turkish substantive law, the general framework for tort liability is regulated primarily under the Turkish Code of Obligations. However, where the dispute contains a foreign element, the first question is not directly whether the conditions of liability under Turkish law have been satisfied.

The first question is:

Which country’s law governs the tortious obligation?

This question is answered according to the conflict-of-laws rules of MÖHUK.

Accordingly, the court must first determine the applicable law and then examine the conditions of tort liability under that law.

The Applicable Law to Torts under MÖHUK

Article 34 of MÖHUK establishes the principal conflict-of-laws rules applicable to obligations arising from torts.

The basic rule is that obligations arising from torts are governed by the law of the country where the tort was committed.

This rule establishes the place where the unlawful act occurred as the primary connecting factor.

For example, if a person causes damage to another person through an unlawful act committed in Germany, German law may, as a general rule, be applicable to the resulting tortious obligation.

However, the application of the law of the place where the tort was committed is not absolute. MÖHUK Article 34 contains additional connecting factors and exceptions that may lead to the application of another country’s law.

The Law of the Country Where the Damage Occurred

The place where the damage occurred may differ from the place where the unlawful act was committed.

This distinction is particularly important in cases involving cross-border damage.

For example, a person may commit an unlawful act in one country, while the resulting financial or physical damage occurs in another country.

In such circumstances, Article 34 of MÖHUK provides a mechanism for determining the applicable law by taking the place of the damage into consideration.

The distinction between the place of the wrongful act and the place where the damage occurs must therefore be carefully established in each individual case.

The Law of the Common Habitual Residence of the Parties

Another important connecting factor under MÖHUK is the common habitual residence of the parties.

Where the parties have their habitual residences in the same country, that country’s law may become relevant to the tortious obligation.

For example, if both the injured party and the person who caused the damage have their habitual residences in Türkiye, but the harmful act occurs temporarily in another country, the common habitual residence of the parties may constitute a significant connection with Turkish law.

The purpose of this rule is to take into account the close and substantial relationship between the parties and a particular legal system.

Habitual residence should not be confused with temporary physical presence.

The determination of habitual residence requires an assessment of the person’s actual and stable social and personal connection with the relevant country.

The Law More Closely Connected with the Tort

MÖHUK also recognizes the possibility that a tort may have a significantly closer connection with a particular country’s law.

The existence of such a closer connection may justify the application of that country’s law instead of the law that would normally apply under the primary connecting factor.

This approach is particularly important in complex international tort disputes, where several countries may have connections with the same event.

For example, the parties may have their habitual residence in one country, the wrongful act may occur in another country, and the damage may arise in a third country.

In such a situation, determining the country with the closest connection to the dispute becomes important.

The Parties’ Choice of Law

One of the significant features of MÖHUK Article 34 is that the parties may, under the conditions prescribed by the law, agree on the application of a particular law to the non-contractual obligation.

This possibility reflects the principle of party autonomy.

However, party autonomy in tort matters is not unlimited.

The choice of law must comply with the requirements established by MÖHUK, and mandatory provisions of Turkish law or other overriding rules may become relevant depending on the circumstances.

Accordingly, the mere existence of a choice-of-law clause does not automatically resolve every issue arising from a tort.

The validity, scope and effects of the choice of law must be assessed separately.

The Scope of the Applicable Law

Once the applicable law has been determined under MÖHUK, that law generally governs the substantive aspects of the tortious obligation.

These matters may include:

• the existence of tort liability;
• the conditions for liability;
• whether the conduct constitutes an unlawful act;
• the existence and extent of damage;
• causation;
• grounds excluding or limiting liability;
• the types of compensation that may be claimed;
• the calculation of damages;
• the persons entitled to claim compensation;
• the transfer and succession of claims, where relevant;
• and other substantive consequences of the tort.

Therefore, determining the applicable law is not merely a preliminary procedural issue. It directly affects the substantive outcome of the dispute.

The Distinction between Substantive Law and Procedural Law

A crucial distinction must be made between the law applicable to the substance of the tort and the procedural law applicable before the court.

If a tortious dispute is brought before a Turkish court, the court may be required to apply the law of another country to the substantive aspects of the dispute.

However, the proceedings before the Turkish court are generally governed by Turkish procedural law.

Thus, two different legal systems may operate within the same dispute.

For example, a Turkish court may have jurisdiction over a tort dispute but determine that German law is applicable to the substantive tortious obligation.

In such a case:

German law may govern the substantive tort liability, while Turkish procedural law governs the proceedings before the Turkish court.

This distinction is fundamental in Turkish private international law.

International Jurisdiction of Turkish Courts in Tort Disputes

The determination of the applicable law and the determination of international jurisdiction are two separate questions.

The fact that Turkish law is applicable does not necessarily mean that Turkish courts have jurisdiction.

Likewise, the fact that Turkish courts have jurisdiction does not necessarily mean that Turkish law will apply.

The international jurisdiction of Turkish courts is primarily regulated under MÖHUK Articles 40 et seq.

Article 40 establishes the general rule that the international jurisdiction of Turkish courts is determined according to the domestic rules concerning territorial jurisdiction, unless a specific provision of MÖHUK provides otherwise.

Therefore, when determining whether Turkish courts have jurisdiction over a tort dispute containing a foreign element, the court must first identify the applicable Turkish domestic jurisdiction rule.

Jurisdiction in Tort Claims

Special rules concerning tort claims may become relevant when determining the international jurisdiction of Turkish courts.

The location of the harmful event, the location where the damage occurred, the defendant’s domicile or habitual residence, and other connecting factors may be relevant depending on the nature of the dispute.

For example, if the harmful act occurred in Türkiye or the damage occurred in Türkiye, Turkish courts may have jurisdiction depending on the applicable domestic jurisdiction rules.

However, the mere existence of some connection with Türkiye does not automatically establish jurisdiction in every case.

The specific facts of the dispute must be examined.

The Place Where the Damage Occurred

The place where the damage occurred is particularly significant in international tort disputes.

In cross-border cases, the place of the wrongful act and the place of the resulting damage may be located in different countries.

For example, a defective product may be manufactured in one country, sold in another country, and cause injury in Türkiye.

In such a case, several countries may have a connection with the dispute.

The Turkish court must therefore distinguish between the place of the conduct causing the damage and the place where the damage itself materialized.

This distinction may affect both the applicable law and the international jurisdiction of Turkish courts.

Cross-Border Traffic Accidents

Traffic accidents involving foreign elements are among the most common examples of international tort disputes.

For example, a Turkish citizen may be involved in a traffic accident in another country with a foreign national.

Alternatively, a foreign national may cause an accident in Türkiye.

In such cases, the applicable law must be determined according to the relevant provisions of MÖHUK and, where applicable, international conventions to which Türkiye is a party.

The nationality of the parties, the place of the accident, the habitual residence of the parties, the place where the damage occurred, and the existence of insurance relationships may all be relevant.

Therefore, it would be incorrect to assume that Turkish law automatically applies merely because one of the parties is a Turkish citizen.

Product Liability and Cross-Border Damage

Product liability may also give rise to significant conflict-of-laws issues.

A product may be manufactured in one country, distributed by a company located in another country, purchased by a consumer in a third country, and cause damage in Türkiye.

In such a case, the dispute may have connections with several legal systems.

The applicable law must therefore be determined according to the relevant conflict-of-laws rules.

In addition, mandatory consumer protection rules and international conventions may become relevant depending on the specific circumstances.

Environmental Damage and Cross-Border Torts

Environmental damage may create particularly complex international tort disputes.

For example, pollution originating in one country may cause environmental or economic damage in another country.

The location of the harmful conduct and the location of the resulting damage may therefore be different.

Such disputes require careful determination of the applicable law and the international jurisdiction of the courts.

The existence of mandatory rules and international agreements may also affect the legal analysis.

Online Torts and Damage Caused Through the Internet

Modern technology has created new forms of cross-border tort disputes.

Defamation, privacy violations, unlawful processing of personal data, intellectual property-related infringements, and other harmful conduct may occur through the internet.

In such cases, it may be difficult to identify a single place where the wrongful act occurred.

The harmful content may be created in one country, uploaded from another country, hosted on servers in a third country, and accessed by persons around the world.

Accordingly, determining the place of the wrongful act and the place where the damage occurred can be particularly difficult in online disputes.

The connecting factors under MÖHUK must therefore be applied carefully in light of the specific circumstances.

Mandatory Rules and Public Policy

Even where the conflict-of-laws rules point to the application of foreign law, the application of that law may be subject to the limitations recognized under Turkish private international law.

One of the most important limitations is the public policy exception.

If the application of a foreign law in a particular case would produce a result that is manifestly incompatible with Turkish public policy, Turkish courts may refuse to apply the relevant foreign-law provision to the extent necessary.

However, the public policy exception is exceptional in nature.

The mere fact that the content of foreign law differs from Turkish law does not, by itself, justify refusing to apply the foreign law.

There must be a sufficiently serious incompatibility with fundamental principles of the Turkish legal order.

Proof of Foreign Law

Where the conflict-of-laws rules designate a foreign legal system as the applicable law, the Turkish court may need to determine the content of that foreign law.

The court therefore does not simply disregard the foreign law because the dispute is being heard in Türkiye.

The relevant foreign legal rules must be established in accordance with the procedural framework applicable before the Turkish court.

This issue is particularly important in international tort disputes because the parties may be subject to substantive rules that differ significantly from Turkish law.

Recognition and Enforcement of Foreign Judgments

A tort dispute may have already been decided by a foreign court.

If the parties wish to rely on that foreign judgment in Türkiye, the judgment may need to be recognized or enforced in accordance with MÖHUK, depending on the nature of the judgment and the relief sought.

Recognition and enforcement are separate from determining the applicable law to the original tort.

Accordingly, three distinct issues may arise:

Which court has international jurisdiction?

Which country’s law governs the tort?

Can a judgment rendered by a foreign court be recognized or enforced in Türkiye?

These questions must be analyzed separately.

The Relationship between Applicable Law and Jurisdiction

The distinction between applicable law and jurisdiction can be summarized as follows.

A Turkish court may have international jurisdiction even though the substantive tortious obligation is governed by foreign law.

Conversely, Turkish law may be the applicable substantive law even though the dispute is heard before a foreign court.

Therefore:

Jurisdiction determines which court will hear the dispute, whereas the applicable law determines which country’s substantive legal rules will govern the dispute.

This distinction is one of the fundamental principles of private international law.

The Importance of International Conventions

In certain tort disputes, international conventions to which Türkiye is a party may take precedence over the general provisions of MÖHUK where their conditions of application are satisfied.

International conventions may contain special rules concerning jurisdiction, applicable law, liability, compensation, transportation, traffic accidents, environmental damage, or other specific areas.

Therefore, before applying MÖHUK directly, it should always be considered whether an applicable international convention exists.

This is particularly important in disputes involving international transportation, road traffic accidents, aviation, maritime activities, and other areas governed by international instruments.

Practical Assessment of a Foreign-Element Tort Dispute

When a tort dispute contains a foreign element, the following issues should be examined together:

• the nationality of the parties;
• the habitual residence of the parties;
• the place where the harmful act occurred;
• the place where the damage occurred;
• whether the parties have a common habitual residence;
• whether the parties have made a valid choice of law;
• whether an international convention is applicable;
• whether mandatory rules are relevant;
• whether Turkish courts have international jurisdiction;
• whether a foreign court has already rendered a judgment;
• and whether recognition or enforcement proceedings are required in Türkiye.

The answers to these questions determine the legal framework of the dispute.

Conclusion

Tortious obligations containing a foreign element are governed in Turkish private international law primarily by MÖHUK Article 34.

The applicable law is not determined solely by the nationality of the parties. The place where the tort was committed, the place where the damage occurred, the habitual residence of the parties, the closer connection between the dispute and a particular legal system, and, where permitted, the parties’ choice of law may all be relevant.

The determination of the applicable law must be distinguished from the determination of the international jurisdiction of Turkish courts.

Turkish courts may have international jurisdiction over a tort dispute even when the substantive obligation is governed by the law of another country. Conversely, the fact that Turkish law is applicable does not automatically establish the jurisdiction of Turkish courts.

Therefore, in a foreign-element tort dispute, the correct method is:

First, identify the legal nature of the dispute → determine whether an international convention applies → determine the applicable law under MÖHUK → determine whether Turkish courts have international jurisdiction → apply the relevant substantive law → and, where necessary, consider the recognition or enforcement of foreign judgments.

Accordingly, neither the presence of a foreign party nor the occurrence of damage in Türkiye automatically means that Turkish law will apply.

The connecting factors established by MÖHUK must be examined in their entirety, and the specific circumstances of each case must be taken into consideration.