Public Order Intervention in Private International Law

The fundamental aim in private international law is to determine which state law applies to disputes involving foreign elements and to ensure the orderly conduct of international legal relations. However, in some cases, the foreign legal rules that should be applied may conflict with the fundamental values ​​of the Turkish legal system. This is where "intervention of public order" comes into play.

Public order intervention is one of the most important security mechanisms in private international law. This is because states, while allowing the application of foreign law, also wish to protect their own constitutional order, fundamental legal principles, and social values.

In Turkish law, intervention in public order is regulated particularly under Law No. 5718 on Private International Law and Procedural Law (MÖHÜK). Thanks to this system, Turkish courts have the authority to refuse to apply foreign legal rules that clearly violate public order.

This article will examine in detail the concept of public order in private international law, the conditions for intervention, its areas of application, the Supreme Court's approach, and case studies.

What is public order?

Public order is a broad concept encompassing a state's fundamental legal framework, social order, and values ​​that must be protected.

In Turkish law, when the term "public order" is used, it generally refers to:

• Constitutional principles,
• Human rights,
• Fundamental freedoms,
• Legal security,
• Moral understanding,
• Preservation of the family structure,
• Principle of Justice

Values ​​such as these come to mind.

The concept of public order is not precisely defined. It can change according to the social, economic, and political conditions of the time.

Therefore, public order has a dynamic structure.

Why is public order intervention necessary in private international law?

The fundamental principle in private international law is the application of relevant foreign law in disputes involving a foreign element.

However, some foreign legal rules may seriously conflict with the fundamental principles of the Turkish legal system.

For example:

• Systems that accept polygamy,
• Regulations that create severe inequality between women and men,
• Practices that eliminate the right to defense,
• Provisions that violate human rights

This could be considered contrary to Turkish public order.

This is why public order intervention functions as a security mechanism that protects the fundamental values ​​of the state.

Public Order Intervention in the MÖHÜK (State Council of International Law)

According to the Private International Law Act, foreign law cannot be applied if it would clearly result in consequences contrary to Turkish public order.

The most important point to note here is the "clear discrepancy" requirement.

Therefore, it is not enough for foreign law to simply differ from Turkish law.

For example, the mere existence of different grounds for divorce does not, in itself, constitute a violation of public order.

The court examines whether the effect resulting from the application of foreign law seriously undermines the fundamental values ​​of the Turkish legal system.

Characteristics of Public Order Intervention

It has exceptional characteristics

Public order intervention is not a normal method.

Courts primarily attempt to apply foreign law. However, in cases of serious discrepancies, the exception of public order is invoked.

Case-by-case analysis is conducted

Each case is evaluated within its own context.

The same foreign legal rule can produce different results in different cases.

Evaluation is made based on the result

Courts generally focus more on the effect of applying foreign law than on the law itself.

Examples of Violations of Public Order

Polygamy

Polygamy is possible in some legal systems. However, monogamy is the principle adopted in Turkish law.

Therefore, foreign legal rules regarding polygamy may be considered contrary to public order.

Violation of the Right to Defense

Foreign court decisions rendered without granting either party a proper right to defense may be considered contrary to public order.

Violation of Human Rights

Practices that undermine human dignity or violate fundamental rights are considered contrary to public order.

Gender Inequality

Regulations that are excessively discriminatory may be incompatible with the fundamental principle of equality in the Turkish legal system.

Public Order and the Relationship Between Recognition and Enforcement

Public order intervention is important not only in terms of applicable law, but also in terms of the recognition and enforcement of foreign court judgments.

Turkish courts may not recognize or enforce foreign court decisions that are clearly contrary to public order.

For example:

• Decisions made in violation of the right to defense,
• Provisions that violate human rights,
• Results that are severely contrary to the Turkish family structure

It may be refused on grounds of public order.

The Difference Between Public Order Intervention and Directly Enforced Rules

These two concepts are often confused in practice.

Public order interference relates to preventing the application of foreign law.

Directly applicable rules refer to the direct application of rules deemed very important for the economic and social structure of a state, even if foreign law applies.

For example, worker protection provisions can be applied directly in some situations.

The Supreme Court's Public Order Approach

The Supreme Court's rulings appear to interpret the concept of public order intervention narrowly.

Because the fundamental aim in private international law is to ensure the application of foreign law as much as possible.

Because:

• Not every difference is considered a violation of public order.
• Intervention is considered exceptional.
• Clear and serious irregularities are required.

Particularly in recognition and enforcement cases, the Court of Cassation places great importance on protecting the right of defense.

Public Order in International Law

The concept of public order is not unique to Turkish law.

Many legal systems impose certain limitations on the application of foreign law.

However, each state may have a different understanding of public order.

For example, a practice accepted in one country may be considered contrary to public order in another.

This situation constitutes one of the most complex areas of private international law.

Criticisms of Public Order Intervention

While intervention in public order is a necessary institution, it is subject to some criticism.

The Problem of Uncertainty

The boundaries of the concept of public order are not precisely defined.

This situation can lead to a predictability problem.

Judge's Discretion

The broad discretionary power of the courts can lead to differing decisions.

International Harmonization Problem

Excessive interference can undermine harmony in international legal relations.

Most Common Areas Seen in Practice

Public order interventions are particularly common in the following areas:

• Divorce cases,
• Alimony decisions,
• Adoption procedures,
• Paternity disputes,
• Enforcement of foreign court judgments,
• Commercial arbitration awards.

Public order debates are particularly intense in family law.

The Role of the Judge in Public Order Interventions

The judge may take the issue of violating public order into consideration ex officio.

Therefore, even if the parties do not request it, the court can intervene if it sees a violation of public order.

This situation stems from the fact that the concept of public order is linked to the fundamental interests of the state.

Conclusion

In private international law, public order intervention is one of the most important limitations on the application of foreign law. This institution ensures the protection of the fundamental values ​​of the Turkish legal system while simultaneously promoting a balanced conduct of international legal relations.

However, due to the exceptional nature of public order intervention, courts must apply this institution carefully and proportionally.

Especially in today's world of accelerating globalization, the increase in international private law disputes further enhances the importance of the concept of public order.

Therefore, a thorough understanding of the theoretical and practical dimensions of public order intervention is of great importance for law students and practitioners.