International Jurisdiction of Turkish Courts

In private law disputes involving a foreign element, determining the international jurisdiction of Turkish courts is one of the fundamental issues of private international law. The fact that a dispute involves a foreign element does not necessarily mean that the case must be heard by a foreign court. Likewise, the fact that Turkish law applies to a dispute does not, by itself, mean that Turkish courts have jurisdiction.

Therefore, two different questions must be distinguished in private international law:

Which country’s law will apply to the dispute, and which country’s courts will hear the dispute?

Determining the applicable law is a matter of conflict-of-laws rules, whereas determining the international jurisdiction of Turkish courts is a matter of international procedural law.

In Turkish law, the main provisions concerning the international jurisdiction of Turkish courts are set out in Article 40 et seq. of Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK). Under the current system of the MÖHUK, Article 40 establishes the general rule of jurisdiction, while Articles 41 to 46 provide special international jurisdiction rules for certain types of disputes.

The Concept of International Jurisdiction

International jurisdiction refers to which state’s courts may hear a private law dispute involving a foreign element.

For example, if a dispute arises from a contract concluded in Germany between a Turkish citizen and a German citizen, the question of whether the case should be heard by Turkish courts, German courts, or the courts of another state constitutes a question of international jurisdiction.

At this stage, it must first be determined whether the dispute contains a foreign element. The fact that one of the parties is a foreign national, that the parties have habitual residences in different countries, that the legal relationship is connected to a foreign country, or that the relevant events occurred in different countries may give rise to a foreign element.

The MÖHUK regulates the international jurisdiction of Turkish courts in transactions and legal relationships governed by private law that contain a foreign element. The provisions of international conventions to which Türkiye is a party are also preserved.

The General Rule of International Jurisdiction under Article 40 of the MÖHUK

The fundamental provision concerning the international jurisdiction of Turkish courts is Article 40 of the MÖHUK.

Article 40 of the MÖHUK provides:

“The international jurisdiction of Turkish courts shall be determined by the rules of territorial jurisdiction under domestic law.”

This provision means that the international jurisdiction of Turkish courts is determined, as a general rule, on the basis of the rules of territorial jurisdiction under Turkish domestic law.

In other words, in a dispute involving a foreign element, it must first be determined which Turkish court would have territorial jurisdiction under Turkish domestic law. If a Turkish court has jurisdiction according to the territorial jurisdiction rules of Turkish domestic law, that court will, as a general rule, also be considered internationally competent.

Therefore, Article 40 of the MÖHUK establishes a general jurisdictional connection for determining the international jurisdiction of Turkish courts.

The Importance of Territorial Jurisdiction Rules under Domestic Law

In order to apply Article 40 of the MÖHUK, it is first necessary to determine which Turkish court would have territorial jurisdiction under the domestic rules applicable to the particular dispute.

At this point, primarily Law No. 6100 on Civil Procedure, as well as the territorial jurisdiction provisions of other relevant special laws, must be taken into consideration depending on the nature of the dispute.

For example, if the dispute arises from a contract, the general and special jurisdiction rules under Turkish law must be examined. In disputes concerning employment, consumer matters, insurance, family law, inheritance, or other areas of private law, the relevant special jurisdiction provisions may need to be applied.

Therefore, Article 40 of the MÖHUK does not, by itself, determine which Turkish court will hear every dispute. Rather, the provision functions as a connecting rule that refers to the territorial jurisdiction rules of Turkish domestic law in determining international jurisdiction.

The Existence of Special International Jurisdiction Rules

Although Article 40 of the MÖHUK establishes the general rule, the Law also provides special international jurisdiction rules for certain types of disputes.

These special provisions are particularly important with regard to:

• actions concerning the personal status of Turkish citizens,
• certain actions concerning the personal status of foreigners,
• inheritance disputes,
• disputes arising from employment contracts and employment relationships,
• disputes arising from consumer contracts,
• disputes arising from insurance contracts.

Where such special jurisdiction rules exist, the relevant special provision must be examined first.

Therefore, it would not be correct to rely directly and exclusively on Article 40 of the MÖHUK in every dispute involving a foreign element.

Jurisdiction in Actions Concerning the Personal Status of Turkish Citizens

Article 41 of the MÖHUK establishes a special international jurisdiction rule for actions concerning the personal status of Turkish citizens.

Where actions concerning the personal status of Turkish citizens cannot be brought before foreign courts or have not been brought before such courts, an action may be filed before the Turkish court that has territorial jurisdiction.

If there is no such court in Türkiye, the court of the place where the relevant person is residing in Türkiye has jurisdiction. If the person does not reside in Türkiye, the court of their last place of residence in Türkiye has jurisdiction.

If none of these courts exists, the courts of Ankara, Istanbul, or İzmir have jurisdiction.

This provision is particularly important in disputes concerning the family and personal status of Turkish citizens and plays an important role in ensuring access to Turkish courts.

Jurisdiction in Certain Actions Concerning the Personal Status of Foreigners

Article 42 of the MÖHUK regulates the international jurisdiction of Turkish courts in certain personal status disputes concerning foreigners who do not have a domicile in Türkiye.

Under this provision, in matters such as guardianship, trusteeship, restriction of legal capacity, declaration of absence, and declaration of death, the court of the place where the relevant person resides in Türkiye has jurisdiction. If the person does not reside in Türkiye, the court of the place where their assets are located has jurisdiction.

It should be emphasized that Article 42 does not cover all personal status actions, but only the specific personal status disputes expressly listed in the provision.

International Jurisdiction in Inheritance Disputes

Article 43 of the MÖHUK establishes a special jurisdiction rule for inheritance disputes involving a foreign element.

As a general rule, inheritance actions are heard by the court of the deceased’s last domicile in Türkiye.

If the deceased did not have a last domicile in Türkiye, the court of the place where the assets forming part of the estate are located has jurisdiction.

This provision establishes a special system for determining the connection between inheritance disputes and Türkiye.

Jurisdiction in Disputes Arising from Employment Contracts

The MÖHUK provides a special international jurisdiction rule for employment relationships in order to protect employees.

Under Article 44 of the MÖHUK, in disputes arising from an individual employment contract or employment relationship, the court of the place in Türkiye where the employee habitually performs their work has jurisdiction.

In addition, in actions brought by an employee against an employer, Turkish courts at the employer’s domicile or at the employee’s domicile or habitual residence may also have jurisdiction.

The purpose underlying this provision is the protection of the employee, who is generally considered to be the economically and legally weaker party in the employment relationship.

International Jurisdiction in Consumer Disputes

There is also a special international jurisdiction system for disputes arising from consumer contracts, designed to protect the consumer.

Under Article 45 of the MÖHUK, under certain conditions, a consumer may bring an action before the Turkish courts of the consumer’s domicile or habitual residence, or before the Turkish courts of the counterparty’s place of business, domicile, or habitual residence.

In actions brought against the consumer, under the relevant conditions, the court of the consumer’s habitual residence in Türkiye has jurisdiction.

This provision constitutes an important example of the principle of protecting the weaker party in private international law.

International Jurisdiction in Disputes Arising from Insurance Contracts

Article 46 of the MÖHUK establishes a special international jurisdiction rule for disputes arising from insurance contracts.

The court of the place in Türkiye where the insurer has its principal place of business, or where the branch or agency that concluded the insurance contract is located, may have jurisdiction.

In addition, in actions brought against the policyholder, insured person, or beneficiary, the Turkish court of their domicile or habitual residence may have jurisdiction.

This provision also establishes a special jurisdiction system that takes into account the balance of power between the parties to the insurance relationship.

Jurisdiction Agreements

In contractual relationships involving a foreign element, the parties may, under certain conditions, enter into a jurisdiction agreement.

Under Article 47 of the MÖHUK, where territorial jurisdiction is not determined on the basis of exclusive jurisdiction, the parties may agree that disputes arising from their relationship involving a foreign element and concerning a contractual obligation will be heard by the courts of a foreign state. The agreement must be capable of being proven by written evidence.

Therefore, under certain conditions, a contractual provision designating the courts of a foreign state as having jurisdiction may be valid.

However, the parties’ freedom to choose a court is not unlimited.

Limitations on Jurisdiction Agreements

One of the most important limitations under Article 47 of the MÖHUK concerns cases involving exclusive jurisdiction.

Where Turkish courts have exclusive jurisdiction over a particular dispute, the parties cannot, by agreement, designate a foreign court as having jurisdiction.

Furthermore, in employment, consumer, and insurance disputes governed by Articles 44, 45, and 46 of the MÖHUK, the jurisdiction established by these provisions cannot be excluded by agreement of the parties.

Therefore, when determining whether a jurisdiction clause contained in a contract is valid, it is not sufficient to examine the contractual provision alone.

The nature of the dispute, the applicable special jurisdiction rules, and any provisions establishing exclusive jurisdiction must be evaluated together.

Exclusive Jurisdiction

Exclusive jurisdiction means that a particular dispute is assigned exclusively to the jurisdiction of a particular state or court.

Where exclusive jurisdiction exists, the parties generally cannot choose the courts of another state.

Therefore, from the perspective of international jurisdiction, it must first be determined whether the dispute falls within the scope of exclusive jurisdiction.

If there is no exclusive jurisdiction and the dispute falls within the scope of Article 47 of the MÖHUK, an agreement selecting a foreign court may become relevant.

Bringing an Action against a Foreign Defendant before Turkish Courts

The fact that the defendant is a foreign national does not automatically mean that Turkish courts lack jurisdiction.

A foreign natural or legal person may have a domicile, habitual residence, place of business, or another relevant legal connection in Türkiye, which may establish the international jurisdiction of Turkish courts in a particular case.

Therefore, the defendant’s nationality is not, by itself, decisive.

For the purposes of international jurisdiction, what matters is whether, under the MÖHUK and other applicable rules, there is a sufficient legal connection between Türkiye and the dispute.

Foreigners Bringing Actions before Turkish Courts

A foreign individual or company may also bring an action before Turkish courts.

However, in order for a foreign person to bring an action in Türkiye, Turkish courts must first have international jurisdiction over the dispute.

In addition, under Article 48 of the MÖHUK, the issue of security for costs may arise in proceedings involving foreign natural or legal persons.

Under Article 48 of the MÖHUK, foreign natural and legal persons who bring an action, intervene in proceedings, or initiate enforcement proceedings before Turkish courts are required to provide security in an amount determined by the court to cover litigation and enforcement costs and any potential damages suffered by the opposing party. However, the court may exempt the foreign party from providing security on the basis of reciprocity.

Therefore, the ability of a foreign person to bring an action before Turkish courts and the international jurisdiction of Turkish courts are separate legal issues.

Distinguishing the Jurisdiction of Turkish Courts from the Applicable Law

One of the most important distinctions in private international law is the distinction between jurisdiction and applicable law.

For example, Turkish courts may have jurisdiction over a dispute arising from a contract. However, under the conflict-of-laws rules of the MÖHUK, French law may be the law applicable to the contract.

In such a case:

The case is heard by a Turkish court, but French law is applied to the merits of the dispute.

The opposite situation is also possible.

Turkish law may be the applicable law, while the dispute may nevertheless be heard by a foreign court.

Therefore, in examinations and legal practice, the following two questions must always be considered separately:

Do Turkish courts have international jurisdiction?

If Turkish courts have jurisdiction, which country’s law will apply to the dispute?

Recognition and Enforcement of Foreign Court Decisions in Türkiye

A dispute may have been heard by a foreign court and a final judgment may have been rendered.

If it is desired for this judgment to produce legal effects in Türkiye, recognition or enforcement may become necessary depending on the nature of the judgment.

Under Article 50 of the MÖHUK, foreign court judgments concerning civil matters that have become final under the law of the state in which they were rendered may be enforced in Türkiye only after an enforcement decision has been granted by the competent Turkish court.

Under Article 51 of the MÖHUK, the court of first instance has jurisdiction over enforcement proceedings. In terms of territorial jurisdiction, the court of the place where the person against whom enforcement is sought has a domicile or habitual residence in Türkiye has jurisdiction. If neither exists, the courts of Ankara, Istanbul, or İzmir have jurisdiction.

Therefore, the direct enforceability of a foreign court judgment in Türkiye and the jurisdiction of Turkish courts to hear the original dispute are entirely different matters.

Priority of International Conventions

When determining the international jurisdiction of Turkish courts, examining only the provisions of the MÖHUK is not always sufficient.

Article 1 of the MÖHUK expressly reserves the provisions of international conventions to which the Republic of Türkiye is a party.

Therefore, if Türkiye is a party to an international convention relevant to the subject matter of the dispute, it must first be determined whether that convention applies.

International conventions may contain special provisions concerning the jurisdiction of Turkish courts, particularly in areas such as international transportation, family law, protection of children, commercial relations, and other specialized fields.

Assessment of Jurisdiction in Practice

When determining the international jurisdiction of Turkish courts in a dispute involving a foreign element, the legal nature of the dispute must first be established.

It must then be determined whether a special international jurisdiction rule exists for that particular dispute.

If no special jurisdiction rule exists, the general system under Article 40 of the MÖHUK applies, and the territorial jurisdiction rules of Turkish domestic law are examined.

It must also be determined whether the parties have entered into a jurisdiction agreement, whether such an agreement is valid, and whether the dispute falls within the scope of exclusive jurisdiction.

Finally, it must be verified whether there is an applicable international convention to which Türkiye is a party.

Conclusion

Whether Turkish courts may hear a dispute involving a foreign element is determined according to the rules of international jurisdiction.

The fundamental rule is set out in Article 40 of the MÖHUK. According to this provision, the international jurisdiction of Turkish courts is, as a general rule, determined according to the territorial jurisdiction rules of Turkish domestic law. In addition, Articles 41–46 of the MÖHUK establish special international jurisdiction rules for specific types of disputes.

International Jurisdiction of Turkish Courts in Disputes Involving a Foreign Element

In private law disputes involving a foreign element, determining which country’s law will apply is just as important as determining which country’s courts will hear the dispute. The application of foreign law to a dispute does not, by itself, mean that Turkish courts lack jurisdiction. If Turkish courts have international jurisdiction over the dispute, they may hear the case and apply foreign law where the conflict-of-laws rules require them to do so.

Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK) regulates the international jurisdiction of Turkish courts in Articles 40 et seq. These provisions contain not only the general rule of international jurisdiction but also special jurisdiction rules concerning personal status, inheritance, employment contracts, consumer contracts, insurance contracts, jurisdiction agreements, security for costs, and the jurisdictional immunity of foreign states.

General Basis of International Jurisdiction

Article 40 of the MÖHUK is the fundamental provision determining the international jurisdiction of Turkish courts. According to this provision, the international jurisdiction of Turkish courts is, as a general rule, determined on the basis of the territorial jurisdiction rules under Turkish law. In other words, in a dispute involving a foreign element, it must first be determined which Turkish court would have territorial jurisdiction under Turkish law; then it must be assessed whether that territorial jurisdiction establishes international jurisdiction for Turkish courts.

This system demonstrates the connection between international jurisdiction and territorial jurisdiction under domestic law. For example, if a defendant has a domicile in Türkiye and is sued in connection with a contractual dispute, the general jurisdiction rules of Turkish law may establish the international jurisdiction of Turkish courts.

However, Article 40 of the MÖHUK is only the general starting point. The Law provides special international jurisdiction rules for certain types of disputes. Therefore, the specific case must first be examined under the special provisions of Articles 41 et seq. of the MÖHUK.

Actions Concerning the Personal Status of Turkish Citizens

Article 41 of the MÖHUK specifically regulates the international jurisdiction of Turkish courts in actions concerning the personal status of Turkish citizens. The purpose of this provision is to preserve the legal connection of Turkish citizens with Türkiye in disputes concerning their personal status.

Under the provision, actions concerning the personal status of Turkish citizens may be brought before the Turkish court that has territorial jurisdiction if such actions cannot be brought before foreign courts or have not been brought before them. If there is no such court in Türkiye, the court of the place where the relevant person resides in Türkiye has jurisdiction. If the person does not reside in Türkiye, the court of their last domicile in Türkiye has jurisdiction. If none of these courts exists, one of the courts of Ankara, Istanbul, or İzmir has jurisdiction.

This provision is particularly important in disputes concerning divorce, marriage, personal status, and similar matters. It ensures that certain personal status disputes involving Turkish citizens with a connection to Türkiye may be heard by Turkish courts.

Certain Actions Concerning the Personal Status of Foreigners

Article 42 of the MÖHUK regulates the international jurisdiction of Turkish courts in certain personal status disputes concerning foreigners who do not have a domicile in Türkiye.

Under this provision, in matters concerning guardianship, trusteeship, restriction of legal capacity, declaration of absence, and declaration of death, the court of the place where the relevant person resides in Türkiye has jurisdiction. If the person does not reside in Türkiye, the court of the place where their assets are located has jurisdiction.

This provision ensures that the person’s factual connection with Türkiye may establish the jurisdiction of Turkish courts. Accordingly, the absence of a domicile in Türkiye does not necessarily mean that Turkish courts lack jurisdiction in every case.

Jurisdiction of Turkish Courts in Inheritance Disputes

Article 43 of the MÖHUK specifically regulates the international jurisdiction of Turkish courts in inheritance disputes involving a foreign element. According to this provision, inheritance actions are, as a general rule, heard by the court of the deceased’s last domicile in Türkiye. If the deceased’s last domicile was not in Türkiye, the court of the place where assets forming part of the estate are located has jurisdiction.

Under this provision, the deceased’s last domicile serves as the primary connecting factor between the inheritance dispute and Türkiye. If the deceased’s last domicile was outside Türkiye, the existence of estate assets in Türkiye may establish the jurisdiction of Turkish courts.

Jurisdiction in Disputes Arising from Employment Contracts and Employment Relationships

Article 44 of the MÖHUK regulates the jurisdiction of Turkish courts in disputes arising from individual employment contracts and employment relationships.

If the employee habitually performs their work at a workplace located in Türkiye, the court of that place has jurisdiction. In addition, in actions brought by an employee against an employer, Turkish courts at the employer’s domicile or at the employee’s domicile or habitual residence may also have jurisdiction.

This provision is particularly important for the protection of employees. The fact that an employee is a citizen of another state does not, where the employee works in Türkiye, necessarily eliminate the international jurisdiction of Turkish courts.

Jurisdiction in Disputes Arising from Consumer Contracts

Article 45 of the MÖHUK regulates the international jurisdiction of Turkish courts in disputes arising from consumer contracts involving a foreign element. This provision establishes a special jurisdiction system based on the protection of consumers.

In particular, in actions brought against a consumer, the jurisdiction of the court of the consumer’s habitual residence in Türkiye is significant. The purpose is to prevent consumers from being forced to bring proceedings in a foreign country.

Jurisdiction in Disputes Arising from Insurance Contracts

Article 46 of the MÖHUK establishes special jurisdiction rules for disputes arising from insurance contracts.

The court of the place in Türkiye where the insurer has its principal place of business, or where the branch or agency that concluded the insurance contract is located, may have jurisdiction. In addition, in actions brought against the policyholder, insured person, or beneficiary, the court of their domicile or habitual residence in Türkiye may also have jurisdiction.

Here too, multiple connecting factors are provided with the aim of protecting the parties and taking into account the nature of the insurance relationship.

Jurisdiction Agreements and Their Limitations

Article 47 of the MÖHUK allows parties, under certain conditions, to designate a foreign court as having jurisdiction over disputes arising from contractual relationships involving a foreign element.

However, this possibility is not unlimited. First, the dispute must involve a foreign element and arise from a contractual relationship. In addition, the dispute must not be one in which territorial jurisdiction is determined on the basis of exclusive jurisdiction. The jurisdiction agreement must also be capable of being proven by written evidence.

Therefore, the inclusion in a contract of a provision designating the courts of a foreign state as competent does not necessarily eliminate the jurisdiction of Turkish courts in every case.

Security for Costs and Jurisdictional Immunity of Foreign States

Article 48 of the MÖHUK regulates the obligation of foreigners to provide security when bringing an action or participating in proceedings before Turkish courts. This provision is important in terms of reciprocity and ensuring the payment of litigation costs in international procedural law.

Article 49 of the MÖHUK regulates the circumstances in which foreign states may not benefit from jurisdictional immunity before Turkish courts. It therefore allows a distinction to be made between activities carried out by foreign states in the exercise of sovereign authority and activities carried out within the context of private law relationships. Articles 40–49 of the MÖHUK thereby establish the fundamental system governing the international jurisdiction of Turkish courts.

General Assessment

Under the MÖHUK, when determining the international jurisdiction of Turkish courts, the nature of the dispute and the foreign element must first be identified. It must then be determined whether the MÖHUK contains a special jurisdiction rule applicable to the dispute. If no special provision exists, Article 40 of the MÖHUK applies and the territorial jurisdiction rules of Turkish domestic law are examined.

Accordingly, a dispute involving foreigners may be heard in Türkiye. Similarly, a dispute arising from a contract concluded between a Turkish citizen and a foreign person may be heard by Turkish courts if, under the circumstances of the particular case, there is a connecting factor establishing the international jurisdiction of Turkish courts.