Authorization Agreements and Validity Conditions within the Scope of the Private International Law Act
Entrance
In international commercial and legal relations, parties often wish to determine in advance which country's court will have jurisdiction in the event of a dispute . Jurisdiction agreements , arising from this need , have become an indispensable part of contracts involving foreign elements. However, these agreements are not valid in all cases and without limitation.
While Law No. 5718 on Private International Law allows for the free use of jurisdiction agreements, it also limits this freedom with the principles of public order, exclusive jurisdiction, and protection of the weaker party . This article examines in detail the legal nature, validity requirements, grounds for invalidity, and Supreme Court practice regarding jurisdiction agreements under Law No. 5718 on Private International Law.
1. What is an Authorization Agreement?
A jurisdiction agreement is an agreement whereby the parties designate a specific state court as competent to resolve disputes that have arisen or may arise between them .
This agreement:
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It is not related to the merits of the case
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It relates to procedure
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It creates international jurisdiction.
A jurisdiction agreement differs from an arbitration agreement; it is based on state courts.
2. Legal Basis of the Jurisdiction Agreement in the Private International Law Act
According to Article 47 of the Private International Law Act:
"The parties may designate a foreign court as the competent authority in cases arising from debt relationships involving a foreign element."
This arrangement:
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The authorization agreement is not exceptional,
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a valid legal technique .
However, this acceptance is not absolute.
3. Validity Conditions of the Authorization Agreement
For an authorization agreement to be valid, simultaneously :
1️⃣ The Presence of the Foreign Element
Authorization agreement:
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This can be done in disputes involving foreign elements.
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The Private International Law Act does not apply solely to domestic legal relations.
If there is no foreign element involved, the provisions of the Code of Civil Procedure apply.
2️⃣ A Dispute Arising from a Debt Relationship
Authorization agreements:
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From the contract,
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From tort,
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This is possible for lawsuits arising from debt relationships
Cases relating to personal status (divorce, custody, etc.) cannot be the subject of a jurisdiction agreement.
3️⃣ Be Clear and Specific
Competent court:
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It must be clearly stated,
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There should be no room for doubt.
General statements such as "The competent courts are foreign courts" are considered invalid.
4️⃣ Not Falling Within Exclusive Jurisdiction
Authorization agreement:
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This cannot be done in matters falling under the exclusive jurisdiction of Turkish courts .
Examples:
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Lawsuits concerning the ownership of immovable properties in Türkiye,
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Lawsuits regarding the cancellation and registration of title deeds,
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Claims relating to the family home.
Authorization agreements made in these areas are absolutely null and void.
4. The Principle of Protecting the Weaker Party
The Turkish Code of Private International Law provides specific protection to the weaker party in jurisdiction agreements
In this context:
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Employee,
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Consumer,
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Authorization agreements made to the detriment of the insured are, as a rule, invalid
It is possible to enter into power of attorney agreements in favor of these individuals.
5. Authorization Agreements Between Merchants
Authorization agreements between merchants:
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It has greater freedom,
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It is evaluated based on presumption of validity.
However:
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Extreme imbalance,
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Actual impossibility,
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Public order intervention is permissible if it leads to consequences that undermine the freedom to seek justice
6. Distinction Between Jurisdiction Agreement and Arbitration Agreement
Another point that is frequently confused in practice:
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Jurisdiction agreement: State court
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Arbitration agreement: Arbitrators
If an arbitration agreement exists, the jurisdiction agreement becomes null and void. The will to arbitrate takes precedence.
7. The Effect of the Jurisdiction Agreement on Turkish Courts
If there is a valid authorization agreement:
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Turkish courts a ruling of lack of jurisdiction .
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He cannot examine the case on its merits.
However:
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If the authorization agreement is invalid,
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If there is an exclusive jurisdiction,
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Turkish courts retain jurisdiction if the weaker party is protected
8. The Approach of the Supreme Court
The Supreme Court, within the scope of the Private International Law Act, ruled on authorization agreements as follows:
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Strictly adhering to the text,
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that respects public order and the right of access
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In particular, authorization agreements that are detrimental to workers and consumers are consistently deemed void.
9. Common Mistakes in Practice
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Concluding an exclusive jurisdiction agreement
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Vague and ambiguous jurisdictional records
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Provisions to be made against the weaker party
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Confusing arbitration with jurisdiction agreements
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The authorization agreement is assumed to be automatically valid.
Conclusion
Within the scope of the Private International Law Act, jurisdiction agreementsprovide predictability and security in international legal relations. However, these agreements do not constitute an area of unlimited freedom. Public order, exclusive jurisdiction, and the protection of the weaker party form the natural limits of this area.
A well-structured power of attorney agreement:
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It prevents procedural rejection
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It speeds up the trial,
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It produces a result consistent with the will of the party.
An incorrect or invalid authorization record invalidates the entire case from the outset.
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