The Role of the Judge in the Application of Foreign Law

1) Introduction: Why is finding the right law at the heart of justice?

International private law comes into play when a dispute involves a "foreign element." For a fair, swift, and predictable resolution of the dispute, it is necessary to first the applicable law , and then to correctly identify and apply the substantive content . The judge's role is central to both of these steps. The judge first the connecting rule , identifies the competent (often foreign) law, and then ensures its application to the specific case. This process is not merely a theoretical technique of attribution; it is a practical discipline that reduces the risk of reversal, enhances the effectiveness of the proceedings, and predictable outcomes .

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2) Normative framework: The roadmap of the Private International Law Act and the judge's responsibilities

Law No. 5718 on Private International Law and Procedural Law (MÖHUK)outlines the course a Turkish judge must follow when applying foreign law. The core points are:

• Article 2 of the Turkish Code of Private International Law: The judge shall apply Turkish conflict of laws rules and the foreign law that is competent according to these rules ex officio . The judge may request the assistance of the parties in determining the content of the foreign law; if the content cannot be determined despite all reasonable investigations, Turkish law shall apply. Furthermore, renvoi is only considered in the fields of personal status and family law

• Article 5 of the Turkish Code of Private International Law (Public Order): If the application or outcome of the applicable foreign law is clearly contrary to Turkish public order, that provision shall not apply; Turkish law shall take effect if necessary.

• Article 6 of the Turkish Code of Private International Law (Directly Applicable Rules): The mandatory "lois de police" rules of Turkish law apply even if the competent law is foreign.

• Article 7 of the Turkish Code of Private International Law (Form): The form of a transaction is valid as long as it conforms to the law of the place where it was made or the law applicable to the merits of the case.

• Article 8 of the Turkish Code of Private International Law (Statute of Limitations): As a rule, the statute of limitations to the law applicable to the merits of the case .

This framework assigns three critical roles to the judge:

1. 1) ex officio determination (competent law), 2) ex officio determination (content of foreign law), 3) application (application to the specific case and review of exceptions).

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3) Procedural principle: "The judge knows the law ex officio" and the practical meaning of Article 2 of the Private International Law Act

Article 33 of the Code of Civil Procedure , the judge applies the law ex officio. This general principle operates in two stages specifically within the Private International Law Act:

• The first stage: The judge applies the rules of connection ex officio and determines the applicable law

• Second stage: The judge independently investigates and determines the substantive provisions of the foreign law in question . Here, foreign law is considered as law , not as a fact . Therefore, foreign law is not disregarded simply because the parties have not presented it. However, the judge may request the parties' contribution; this is a cooperation mechanism explicitly recognized by Article 2.

This approach;

• the parties presenting and proving the events ,

• The principle is that the judge must find and apply the law . Since foreign law has comprehensive and technical aspects, expert opinions and testimonies may also come into play in practice.
  

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4) Determining foreign law: Toolkit, methods and the “last resort” rule

4.1. Main tools for detection

• Seeking assistance from relevant parties: Legislative texts, official translations, commentaries, case law compilations, country reports, reliable academic sources, and informative notes from bar associations and universities.

• Expert opinion: When the application of foreign law and case law becomes technical, the court may obtain a report from a specialist in the field.

• Legal cooperation channels: Obtaining information on legislation and practice through foreign judicial authorities or official institutions.

• Libraries and databases: Open-source legislative archives, university publications, official gazette systems, and decision compilations.

4.2. Translation and verification

Clear and accurate translations of foreign law are of critical importance. The court may request a sworn translation if necessary, especially to avoid missing the technical, word-by-word meaning of the provision. Explanations of concepts that cannot be translated can be provided through explanatory paragraphs replacing comparative law footnotes

4.3. “If it cannot be detected despite all reasonable investigations”

Article 2 of the Turkish Code of Private International Law provides a safety valve for the judge who has fulfilled the duty of reasonable investigation: If the content of foreign law cannot be determined , the dispute is resolved according to Turkish law . The key here is for the court to leave a trace in the file : Which sources were consulted? What was requested from the parties? What was asked of the expert? This visibility both facilitates appeal/cassation review and increases the persuasive power of the decision.

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5) Public order exception: Limits, proportionality, and adaptation technique

Public order comes into play when the application of foreign law would severely undermine the fundamental principles of the Turkish legal system. In practice, the following principles stand out:

• Narrow interpretation – focus on concrete outcomes: Predictability is lost if the public order exception is broadened. The judge looks not at abstract conflicts of norms, but at the extreme injustice that will arise in the concrete outcome

• Partial exclusion and adaptation: A result contrary to public order should render ineffective only the conflicting part of foreign law, not the whole. Where possible, the adaptation should be based on a principle that respects the general framework of foreign law.

• International public order perspective: In assessing violations, the international nature is taken into account; areas where flexibility is shown even in domestic law may be evaluated more flexibly in an international context.

• Fundamental rights and equality: Constitutional principles, human dignity, fair trial, and equality are emphasized. The best interests of children and mandatory social protection areas also carry weight in the analysis of public order.

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6) Directly enforced rules: How do mandatory norms change the game?

Directly applicable rules (mandatory domestic norms) apply to a specific case regardless of which law is competent. Typical examples:

• Occupational health and safety, minimum wage, working hours and other labor law protection rules.

• Consumer protection, unfair trade practices,

• Competition law, public procurement rules,

• Money and foreign exchange, certain mandatory provisions relating to taxation.

These rules are applied top-down in specific aspects of a case, with the aim of "market order" and "protecting the vulnerable," without completely excluding applicable foreign law .

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7) Renvoi (attribution): When is it taken into account, and when is it excluded?

In the Turkish Private International Law Code (MÖHUK) , renvoi is generally not accepted; it is only permitted in a limited way in the fields of personal status and family law . The aim is to ensure harmony and unity in these areas . In areas such as contracts, torts, and property law, renvoi does not apply because it could disrupt predictability. After the competent law is chosen, the judge applies the substantive provisions of that law ; he generally does not take into account that law's own conflict of laws rules.

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8) Procedural-substantive distinction: Issues of evidence, proof, statute of limitations, form, and language

8.1. Lex fori – lex causae distinction

• Procedural matters (the order of proceedings, the framework of the evidentiary regime, the timing of the presentation of evidence, the language of the proceedings, notification, rules of representation) Turkish procedural law(lex fori).

• The core issues (elements of tort, validity of contract, scope of liability, types of compensation, inheritance shares, etc.) to the applicable substantive law (lex causae).

8.2. Statute of limitations and forfeiture periods

The general rule to the law applicable to the merits . However, discretionary and procedural time limits (e.g., calculation of time limits, time limits related to procedural actions) may fall within the lex fori domain. The judge must correctly classify the nature of these time limits.

8.3. Figure validity

If the transaction has a valid form according to the law of the place where it was made or the law applicable to the merits of the case , it is considered to have fulfilled the formal requirements. This is a "two-pronged" security mechanism that enhances safety in international transactions.

8.4. Proof and evidence

The content of foreign law relates to law and falls within the judge's purview to determine its content ex officio; however, evidence, expert reports, and the contributions of the parties are important in determining its content . The concrete facts (events) are proven by the parties; the judge finds the law.

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9) Areas of application: The role of the judge in sectoral and substantive law

9.1. Contracts (choice of law – closest relationship – protection of the weaker party)

• The choice of law is the primary criterion. If the choice, whether explicit or implicit, is disputed, the judge will consider a reasonable interpretation of the parties' intentions and the overall context .

• If there is no choice, the most closely related law applies. Typical links include: place of performance, place of business of the party undertaking the characteristic performance, language of the contract, currency, places of residence of the parties, and economic centre of performance.

• weaker-party contracts (such as consumer, insurance, and employment contracts), a protective approach is adopted; directly applicable rules and public order exceptions become more visible.

• the substantive validity of the contract, representation authority, limits of liability, interest, and penalty clauses strengthens the judge's decision.

Practical note for the lawyer: In the list of evidence, presenting the text of the chosen law , its current consolidated version , any necessary translation , a summary of doctrine if available, and examples of local practice in similar contracts concretizes the burden of determination on the judge.

9.2. Tort (lex loci delicti – tests of unavoidable close ties)

In tort cases, the rule the law of the place where the act occurredapplies. In multi-country situations, the place where the damage occurred and the place where the conduct was performed may differ. The judge close connection and foreseeability . The parties' proximity to the same place of residence, their contractual relationship, or the concentration of the market center in a single country an exceptional connection .

9.3. Real rights (lex rei sitae)

The rule is clear regarding immovable property: the law of the place where the property is located (lex rei sitae) applies. The acquisition of ownership, the creation of limited real rights, registration in the land registry, and their effects are subject to this law. However, with movable property and securities, the systems of relocation and registration, as well as the interaction between lex causae and lex fori, require careful consideration.

9.4. Companies and representation

The status of companies can be determined by criteria such as their place of establishment or headquarters. In areas such as representation and the authority of organs, share transfers, and liquidation, the prevailing and applicable law maintains a systematic integrity ; it does not neglect the directly applicable nature of mandatory capital market and competition rules .

9.5. Intellectual property

The principle of territoriality is paramount for rights such as works, trademarks, and patents . The law of the country where the infringement occurs determines the duration of protection and the compensation regime. While choice of law is possible in licensing, domestic mandatory rules may prevail in areas of public order, such as cultural heritage and competition law.

9.6. Family and personal circumstances (window of renvoi, public order, best interests of the child)

In areas such as marriage, divorce, kinship, custody, and alimony, binding rules vary according to individuals' citizenship, habitual residence, and the center of their family ties. The limited passage of renvoi ( returns to the deceased) in this field facilitates harmony , especially in cases where citizenship systems overlap . Public order review is conducted on the axis of equality, human dignity, and the best interests of the child .

9.7. Inheritance

The binding factors in matters such as the opening of the inheritance, the distribution of the estate, reserved shares, reduction of inheritance shares, and inheritance agreements the nationality, their last habitual residence , and the nature of their assets (immovable/movable). Statute of limitations and claim periods are subject to the competent law; the lex foriapply to the administration and liquidation of the estate.

9.8. Labor law and social protection

Even when a choice of law is made in employment contracts, of minimum protection prevails. The mandatory rules of the place where the work is actually performed (wages, working hours, occupational health and safety) apply directly. The judge, proceeding from the fact that the worker is the weaker party, meticulously applies the filters of public order and mandatory norms.

9.9. Consumer contracts

If a close connection is established with the consumer's usual residence, mandatory protection norms provide a minimum safety net , regardless of the choice of law. The judge addresses information obligations, rights of withdrawal, and unfair term review with a pro-protection approach consistent with established case law

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10) The role of the judge in enforcement and recognition cases: The fate of a foreign judgment in Türkiye

In order for foreign court decisions to have legal effect in Turkey enforcement (executability) or recognition (final effect) procedures are followed. Judge:

• the jurisdiction and procedural requirements (such as reciprocity between the country where the decision was made and Turkey, the finality of the decision, and respect for the right to defense).

• the public order filter: If the consequences of the decision in Turkey clearly harm Turkish public order, enforcement is refused or its scope is narrowed.

• Partial enforcement and adaptation are possible: If specific parts of a foreign judgment are contrary to public order, only those parts may be excluded.

• Interim legal protections: The use of protective measures similar to precautionary measures in the enforcement process is evaluated in accordance with the principles of lex fori.

Conclusion and summary: Measured activism for the judge; predictability for the parties

The judge's role in the application of foreign law rests on two pillars:

1. Ex officio: The task of determining the applicable law and defining the content of foreign law belongs to the judge. This task may be supported by party input and expert opinions; however, it is never entirely on the shoulders of the parties.

2. Proportionality: Public order and directly applicable rules automatically exclude foreign law; only as needed and are focused on concrete outcomes . Renvoi, on the other hand, is accepted in limited areas, thereby strengthening predictability.

From a lawyer's perspective, success depends on accurately identifying the connecting rule , presenting the content of foreign law clearly and understandably , balancing the mandatory norm-public order-adaptation triad, and establishing disciplined evidence management . For a judge, the correct approach involves a traceable effort at determination , flexible but cautious use of exceptions , and clarity in the reasoning of the decision . This approach both facilitates appellate and cassation review and serves the principle of fair and predictable outcomes , which is the main goal of international private law practice