Choice of Law (Lex Voluntatis) and Validity Requirements in the Turkish Private International Law Code
Entrance
In private law relations of an international nature, the most fundamental question is: Which country's law will apply to the dispute?
No. 5718 on International Private Law and Procedural Law (MÖHÜK) answers this question by granting significant scope to the will of the parties. This scope is referred to in doctrine and practice "choice of law" or lex voluntatis .
Choice of law grants parties the freedom to determine which state's law governs their contractual relationship. However, this freedom is not unlimited. The Private International Law Act clearly regulates both the validity conditions and the limitations of choice of law. Errors in practice often result in an invalid choice of law, a public order objection, or the application of the wrong law.
This article will examine the institution of choice of law in the Turkish Code of Private International Law , including its conditions, limitations, Supreme Court practice, and practical examples
1. What is Choice of Law (Lex Voluntatis)?
Choice of law is the right of parties to freely determine which state law applies.
Choice of law in the MÖHÜK system:
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As a rule, in contractual relationships .
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It gives precedence to the will of the party
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However, it is limited by public order and mandatory rules.
According to Article 24/1 of the Private International Law Act:
"Contractual obligations are subject to the law that the parties expressly or implicitly choose."
This provision is the clear basis of the lex voluntatis principle in Turkish law.
2. Legal Basis for Choice of Law (Article 24 of the Turkish Code of Private International Law)
Article 24 of the Turkish Code of Private International Law determines the applicable law in contractual obligations through a three-stage system:
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The law chosen by the parties
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If there is no choice of law, the law most closely associated with the contract
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Exceptional binding rules for special cases
Therefore, if there is a choice of law, the first thing the judge will do is:
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To determine whether there is a valid choice of law,
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The goal is to assess whether there are any obstacles to the application of the chosen law.
3. Validity Requirements for Choosing the Law
a) Presence of a Foreign Element
The Turkish Code of Private International Law applies only to relationships involving a foreign element . If all parties are Turkish citizens, the contract is concluded in Turkey, and the place of performance is Turkey, then choice of law is not possible.
The element of foreignness can manifest itself in the following ways:
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One of the parties being a foreigner,
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The fact that the contract will be performed in a foreign country,
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The fact that the obligation is to be fulfilled in a foreign country,
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The subject matter of the contract is located in a foreign country.
b) Whether the Choice of Law is Explicit or Implicit
The Private International Law Council acknowledges that the choice of law can be explicit or implicit
Explicit choice of law:
This means the contract contains a clause explicitly stating, for example, "This contract is governed by English law."
Implicit choice of law:
This refers to the parties' intention being understood from the contract as a whole, the terms used, the jurisdiction clause, the currency, and other elements.
However, in practice, the implicit choice of law is interpreted narrowly. The Court of Cassation does not accept implicit choice of law in cases of doubt, and seeks concrete and strong indications.
c) The chosen law must be specific and applicable
Parties:
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a specific state law .
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Vague phrases like "international trade law" and "general principles" are insufficient on their own.
However, within the chosen legal framework:
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The laws of that country,
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Case law,
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Supplementary rules
apply.
4. Scope of Choice of Law
Choice of law, as a rule:
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Establishment of the contract,
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Its validity,
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The provisions,
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Its performance,
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It encompasses all aspects, including its conclusion
However, some issues are excluded from the choice of law:
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The legal capacity of the parties (subject to the separate binding rule),
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Real rights over immovable properties,
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Provisions relating to public order.
5. Limitations of the Choice of Law
a) Public Order
According to Article 5 of the Private International Law Act:
"The application of competent foreign law shall not be applied if it is clearly contrary to Turkish public order."
Selected law:
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Fundamental rights and freedoms,
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Constitutional principles,
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to the fundamental values of Turkish law
, the judge will not apply it.
Public order objection in practice:
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Family law,
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Labor law,
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It comes up more frequently in areas such as consumer contracts
b) Directly Applicable Rules (Mandatory Rules)
Some Turkish legal rules apply absolutely , even if the parties have chosen foreign law .
For example:
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Provisions relating to worker protection,
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Provisions relating to consumer protection,
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Regulations concerning the public interest, such as competition, foreign exchange, and taxation.
Such rules do not completely invalidate, but they do limit.
6. Partial Choice of Law and Subsequent Choice of Law
Parties:
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The contract may have a choice of law for specific parts , not for the entire contract .
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The choice of legal policy can also be made after the contract has been established.
However, the subsequent legal choice:
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It cannot infringe upon the vested rights of third parties
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It must be done with explicit consent.
7. Court of Appeals Practice
The established approach of the Supreme Court is as follows:
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The choice of law must be clear and unambiguous.
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The choice of implicit law is interpreted narrowly.
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The public order exception will not be applied in an expanded manner.
The Supreme Court, particularly in commercial contracts involving foreign elements, gives weight to the intentions of the parties; however, it adopts a protective approach in favor of the employee and the consumer.
8. Common Mistakes in Practice
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Confusing a power of attorney agreement with choice of law
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Ambiguous choice of law statements
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Ignoring the boundaries of public order
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The assumption that foreign law is absolute despite mandatory rules
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Incompatibility between contract language and choice of law
These errors can lead to the choice of law being deemed entirely invalid during the litigation process
Conclusion
In private international law, the choice of law, while granting parties considerable freedom, is not an area of absolute sovereignty. For a valid choice of law:
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There must be a foreign element
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The will must be either explicit or strongly implicit,
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The chosen law must be specific
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Public order and mandatory rules must not be violated.
A well-structured choice of law predictability and confidence ; a poorly structured choice of law risks invalidation from the outset.
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