Determination of the Applicable Law within the Scope of the Private International Law Act

One of the most important problems in private international law is determining which state law should apply to a dispute involving a foreign element. Today, with people living in different countries, the spread of international trade, the increase in marriages between foreign nationals, and the proliferation of cross-border commercial relations, it has become quite common for a dispute to be linked to more than one legal system.

At this point, the question of "applicable law" arises. This is because different national laws may apply to the same dispute. For example, which country's law will apply to a divorce case between a Turkish citizen and a German citizen? Or which law will apply to a contract between a company operating in Türkiye and a company based in France?

The answers to these questions are determined through the rules of private international law. In Turkish law, the determination of the applicable law is primarily regulated under Law No. 5718 on Private International Law and Procedural Law, also known as the Private International Law and Procedural Law Act.

This article will examine in detail how the applicable law is determined under the Private International Law Act, the rules of connecting laws, the role of the judge, the application of foreign law, and the intervention of public order.

What is the applicable law?

In private international law, the applicable law refers to which state's law will be taken as the basis for resolving a dispute involving a foreign element.

The key issue here is that the dispute should be resolved not solely according to Turkish law, but according to the legal system most closely related to the case.

For example:

• A contract made in a foreign country,
• Divorce between spouses of different nationalities,
• Real estate properties abroad,
• International heritage relations

The question of which law should be applied in matters such as these arises.

In such disputes, the court first determines which country's law applies. Only then does it proceed to the merits of the dispute.

Therefore, determining the applicable law is one of the most important stages forming the basis of private international law.

What is MÖHÜK?

The Private International Law Act is the fundamental law regulating the applicable law in private law disputes involving foreign elements, international jurisdiction, and the recognition and enforcement of foreign court judgments.

This regulation, whose full name is the "Law on International Private Law and Procedural Law," is the fundamental source of the Turkish international private law system.

Within the scope of the MÖHÜK (Turkish Code of Civil Procedure):

• Which court has jurisdiction,
• Which state law will apply,
• How foreign decisions will affect Türkiye

Important issues such as these have been addressed.

Particularly with regard to applicable law, the Private International Law Act provides specific connecting rules for different areas of law.

What are Binding Rules?

The determination of the applicable law within the scope of the Private International Law Act is done through connecting rules.

Connecting rules are the rules that determine which state's law a dispute will govern.

In other words, connection rules determine which legal system a legal relationship involving a foreign element will be subject to.

These rules generally consist of two basic elements:

• Type of legal relationship
• Port

For example, in inheritance law, the deceased's national law can be a point of connection.

What are the connection points?

Different points of connection are used in private international law.

Citizenship Bond

A person's citizenship is an important point of connection in many areas.

National law is particularly important with regard to personal matters.

Settlement

The person's place of permanent residence may also be taken into account in determining the applicable law.

Customary Dwelling

Habitual residence has become particularly important in family law and child law.

Place of Performance of the Contract

In contract law, the place of performance can be influential in determining the applicable law.

Location of the Item

With regard to immovable property, the law of the place where the property is located generally applies.

Determining the Applicable Law in the Private International Law Procedures

The Private International Law Council has introduced specific regulations for different areas of law.

Law of Persons

Driving licenses for natural persons are, as a rule, subject to national law.

For example, Italian law may apply to an Italian citizen with regard to their legal capacity.

Family Law

In matters such as marriage, divorce, and child custody, the spouses' common national law or the law of their common habitual residence may be taken into account.

For example, in a divorce case between a Turkish citizen and a French citizen, if their common habitual residence is in France, French law may apply.

Inheritance Law

In inheritance matters, the national law of the deceased applies.

However, with regard to immovable property, the law of the place where the property is located is important.

For example, German law may apply to the inheritance division of real estate in Germany.

Contract Law

If the parties have chosen a legal policy, the chosen policy shall apply.

If the parties have not chosen a legal system, the law most closely associated with the contract shall apply.

This issue is of great importance in international trade.

Freedom of Choice

Within the scope of the Private International Law Act, parties are granted a certain degree of freedom to choose the law they wish to practice.

For example, in a contract between a company operating in Türkiye and a company based in the UK, the parties may agree that English law will apply.

This situation is particularly:

• International trade,
• Investment contracts,
• Transportation contracts,
• Financial transactions

It is important in this respect.

However, the freedom to choose law is not unlimited.

Legal rules that produce results clearly contrary to Turkish public order may not be applied.

The Role of the Judge

Turkish judges are obligated to investigate the applicable law ex officio.

Therefore, even if the parties do not invoke foreign law, the judge may examine foreign legal rules if he/she deems it necessary.

This is one of the important characteristics of private international law.

However, in practice, determining the content of foreign law is not always easy.

Courts:

• Expert reports,
• Academic opinions,
• International databases,
• Information provided through the Ministry of Justice

It can utilize methods such as these.

Application of Foreign Law

After the court decides that foreign law applies, it applies the substantive law rules of that state.

The important point here is that foreign law is applied not only formally but also in terms of its substance.

For example, if French law needs to be applied, the judge must take French legal rules into account.

Citation Problem

In private international law, sometimes foreign law can refer to another type of law.

This situation is called "renvoi" or "attribution".

For example, Turkish law may have designated German law as having jurisdiction. However, if German conflict of laws rules refer back to Turkish law, a referral problem arises.

The Turkish Code of Civil Procedure accepts the referral institution in some areas.

Public Order Intervention

Foreign law does not apply in all cases.

A Turkish court may choose not to apply foreign law if that law would clearly contradict Turkish public order.

For example:

• Polygamy,
• Human rights violations,
• Violation of the right to defense

Situations like these can lead to intervention to maintain public order.

However, the mere fact that foreign law differs does not automatically mean it violates public order.

The courts interpret the public order exception narrowly.

Directly Applicable Rules

Some legal rules are so important to a state that they must be applied even if foreign law is in effect.

These are called directly applicable rules.

For example:

• Worker protection provisions,
• Competition law,
• Consumer protection regulations

In some cases, it can be applied directly.

Problems Encountered in Practice

Determining which law should be applied under the Private International Law Act may lead to some problems in practice.

Determining the Content of Foreign Law

Accessing foreign legislation may not always be easy.

Translation Problems

Incorrect translations can lead to legal errors.

Different Legal Systems

Differences between common law and continental European systems can create difficulties in practice.

Public Order Debates

There may be disagreements about whether certain foreign legal rules are contrary to public order.

The Importance of Supreme Court Decisions

In the application of the Private International Law Act, Supreme Court decisions are of great importance.

Especially:

• Intervention in public order,
• Application of foreign law,
• The citation problem,
• International authority

In these matters, the precedents set by the Supreme Court guide the application of law.

Conclusion

Determining the applicable law under the Private International Law Act is one of the most important issues in private international law. In disputes involving a foreign element, the applicable state law is determined through connecting rules.

The issue of applicable law has become much more important today, especially due to the development of international trade, the increase in foreign marriages, and the acceleration of globalization.

Therefore, a thorough understanding of the Private International Law System and its related rules is of paramount importance for law students, lawyers, and practitioners.