Blog › Turkish Private International Law Portal › Article 1

The Scope of Turkish Private International Law: An Analysis of Article 1 of Law No. 5718

I. Introduction

Private-law relationships may extend beyond a single legal system in many ways. The parties to a contract may be established in different countries, employment may be performed abroad, a family relationship may involve different nationalities, or a foreign judgment may need to produce legal effects in Türkiye.

Such circumstances raise a preliminary question before the applicable substantive rules can be identified:

When does a private-law relationship enter the field of Turkish private international law?

Article 1 of Law No. 5718 provides the starting point.

Article 1(1) states that MÖHUK regulates the law applicable to private-law transactions and relationships containing a foreign element, the international jurisdiction of Turkish courts, and the recognition and enforcement of foreign judgments.^[3]

Article 1(2) adds that the provisions of international conventions to which the Republic of Türkiye is a party are reserved.^[4]

Article 1 therefore defines the general scope of MÖHUK and makes the existence of a foreign element central to its application to private-law relationships.

Understanding this provision is important not only for interpreting Article 1 itself, but also for determining when and how the remaining provisions of MÖHUK become relevant.

II. The Scope Established by Article 1

Article 1(1) provides:

“Yabancılık unsuru taşıyan özel hukuka ilişkin işlem ve ilişkilerde uygulanacak hukuk, Türk mahkemelerinin milletlerarası yetkisi, yabancı kararların tanınması ve tenfizi bu Kanunla düzenlenmiştir.”

Translated as:

The law applicable to private-law transactions and relationships containing a foreign element, the international jurisdiction of Turkish courts, and the recognition and enforcement of foreign judgments are regulated by this Law.^[5]

Article 1(1) thus identifies three distinct areas: the law applicable to private-law relationships containing a foreign element; the international jurisdiction of Turkish courts; and the recognition and enforcement of foreign judgments.

These areas are related, but they answer different legal questions.

A Turkish court may possess international jurisdiction without Turkish substantive law necessarily governing every issue in the dispute. Conversely, identifying the law applicable to a relationship does not itself determine whether a Turkish court possesses international jurisdiction.

Article 1 is therefore not itself a rule selecting the applicable substantive law or establishing jurisdiction in a particular dispute. It defines the general fields regulated by MÖHUK, while the relevant provisions elsewhere in the statute provide the rules necessary to answer those specific questions.

III. The Foreign Element as a Threshold Concept

The expression “yabancılık unsuru”, or foreign element, is central to Article 1. Yet Law No. 5718 does not define the concept.

Mesut Aygün describes the foreign element as fundamental to both conflict-of-laws law and international procedural law. Where a dispute contains a foreign element, questions concerning applicable law enter the field of Turkish conflict-of-laws law, while questions concerning the proceedings enter the field of Turkish international procedural law.^[6]

Whether such an element exists must be assessed in light of the particular legal relationship.

Depending on the nature of that relationship, the foreign element may arise from circumstances such as nationality, residence or habitual residence, the place of performance, the location of property, the place of a relevant transaction or event, or the establishment of a company. No single connecting factor is decisive in every category of private-law relationship.^[7]

The significance of a particular connection therefore depends upon the legal relationship under examination.

IV. Identifying the Foreign Element in Different Private-Law Relationships

What constitutes a foreign element varies according to the type of legal relationship involved.

Nationality may be particularly relevant in a family-law dispute, while the place where work is habitually performed may be important in an employment relationship. In contractual disputes, the parties’ establishments, the place of performance, or other connections with another state may become relevant.

This relationship-specific approach can also be seen in Yargıtay jurisprudence.

In Yargıtay 9th Civil Chamber, E. 2023/9545, K. 2023/12447, 20 September 2023, the Chamber described a foreign element as a factor connecting a legal transaction, relationship, or event with the laws of more than one State. In the employment context, it identified circumstances such as the foreign nationality of the employee or employer, the employer’s place of business being abroad, the employee habitually working in another country, or the employment relationship otherwise having a close connection with a foreign country.^[8]

The decision illustrates an important point: the foreign element is not confined to nationality. The relevant international connection must be identified in light of the characteristics of the particular legal relationship.

V. Foreign Element and “International” Transactions

The concept of a foreign element should not be confused with the narrower idea of an economically international transaction.

A private-law relationship may fall within the field of private international law because of a legally relevant foreign connection even where it does not involve international commerce in the conventional sense.^[9]

This distinction is important because Article 1 refers broadly to private-law transactions and relationships containing a foreign element. Its scope is therefore not limited to cross-border commercial activity.

Family, succession, capacity and other private-law matters may equally raise MÖHUK questions where the necessary foreign connection exists.

VI. Yargıtay and the Identification of the Foreign Element

Yargıtay jurisprudence provides concrete guidance on both the meaning of a foreign element and the consequence of identifying one.

In Yargıtay 2nd Civil Chamber, E. 2022/3764, K. 2022/5114, 30 May 2022, the Chamber considered divorce proceedings between two foreign nationals who were living in Türkiye as refugees. It expressly held that the case contained a foreign element because of the parties’ foreign nationality and stated that the applicable law therefore had to be determined under Law No. 5718, expressly referring to MÖHUK Article 1.^[10]

The Court then applied the relevant MÖHUK framework. It referred to Article 14(1) on divorce, Article 2 on the judge’s ex officio application of Turkish conflict-of-laws rules and the designated foreign law, Article 4(a) in determining the applicable personal law of refugees, and Article 5 on public policy. The Chamber found that the relevant foreign divorce rules did not provide equal rights to women and men, considered their application manifestly contrary to Turkish public policy, and held that Turkish law should be applied. The Regional Court of Appeal’s decision dismissing the appeal on the merits was set aside and the first-instance judgment was reversed.^[11]

Taken together, the two decisions illustrate complementary aspects of Article 1. The 9th Civil Chamber provides a general description of the foreign element in the context of an international employment relationship, while the 2nd Civil Chamber expressly connects the existence of a foreign element with Article 1 and demonstrates how that finding leads to the application of the relevant conflict-of-laws rules.

They also show that the source of the foreign element depends on the legal relationship under consideration. In one case, the international connection arose from the characteristics of employment performed abroad; in the other, it arose from the foreign nationality of the parties to family-law proceedings. Once a foreign element is identified, the relevant MÖHUK provisions must then be applied to determine the legal consequences.

VII. Applicable Law and International Jurisdiction Are Separate Questions

One of the clearest structural features of Article 1 is its separate treatment of applicable law and international jurisdiction.

Article 1 refers separately to:

“uygulanacak hukuk” — applicable law; and

“Türk mahkemelerinin milletlerarası yetkisi” — the international jurisdiction of Turkish courts.

The distinction matters because the existence of jurisdiction before a Turkish court does not automatically determine the substantive law governing the dispute.

The remainder of MÖHUK reflects this separation. Article 2 addresses the application of conflict-of-laws rules and the foreign law designated by them, while Article 40 provides the general rule concerning the international jurisdiction of Turkish courts.^[12]

The 2023 Yargıtay employment decision discussed above provides a practical illustration. Although the dispute was before the Turkish courts, the Chamber concluded that the parties had made a valid choice of law under Article 27(1) and that Russian law applied to the relevant employment period.^[13]

It should be noted that Article 27 was amended by Law No. 7550, in force since 4 June 2025, which rephrased paragraphs (1) and (4). The 2023 decision applied the provision as it stood before that amendment.

The correct analysis is therefore not:

The dispute is before a Turkish court; therefore Turkish law applies.

Applicable law and international jurisdiction require separate analysis under the relevant MÖHUK provisions.

VIII. Article 1(2) and International Conventions

Article 1(2) provides:

“Türkiye Cumhuriyetinin taraf olduğu milletlerarası sözleşme hükümleri saklıdır.”

For the purposes of this article, this may be translated as:

The provisions of international conventions to which the Republic of Türkiye is a party are reserved.^[14]

Although brief, this paragraph has an important practical consequence. MÖHUK does not operate in isolation from Türkiye’s international treaty obligations.

Where an international convention binding Türkiye governs the particular private international law issue, that convention must be considered before assuming that the corresponding domestic MÖHUK provision controls the matter.

This reservation reflects the constitutional status of treaties in Turkish law. Under Article 90(5) of the Constitution of the Republic of Türkiye, duly ratified international agreements have the force of law; and where an international agreement on fundamental rights and freedoms conflicts with a statute on the same matter, the agreement prevails. Article 1(2) expresses this priority specifically for private international law.

A useful example concerns the form of wills containing a foreign element.

Cansu Yener Keskin explains that both MÖHUK Article 20(4) and the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions contain relevant conflict-of-laws rules. Because of Article 1(2), however, the Convention must be considered first where it applies.^[15] Her article specifically examines the circumstances in which Article 20(4) continues to operate alongside that treaty framework.

Article 1(2) therefore makes treaty analysis an important preliminary step in appropriate cases. A practitioner cannot necessarily determine the governing rule by consulting MÖHUK alone.

IX. Legislative Continuity: Article 1 and Former Law No. 2675

Unlike some provisions of Law No. 5718, Article 1 was not substantially redesigned when the former private international law statute was replaced.

The legislative reasoning accompanying Article 1 states:

“2675 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanunun 1 inci maddesini aynen karşılamaktadır.”^[16]

In other words, the legislative reasoning records continuity with Article 1 of former Law No. 2675 rather than a substantive amendment to the scope provision.

Law No. 2675 of 20 May 1982 was repealed by Article 64(1) of Law No. 5718, which was adopted on 27 November 2007 and entered into force upon its publication in the Official Gazette of 12 December 2007 (No. 26728).

Former Article 1 likewise addressed the law applicable to private-law transactions and relationships containing a foreign element, the international jurisdiction of Turkish courts, and the recognition and enforcement of foreign judgments, while preserving international conventions binding Türkiye.^[17]

The significance of Article 1 therefore lies less in legislative change than in the continuing role it performs in defining the general scope of Turkish private international law.

X. Article 1 within the MÖHUK Framework

Article 1 defines the general scope of the statutory framework, while the provisions that follow answer more specific conflict-of-laws questions.

For example, Article 2 governs the application of Turkish conflict-of-laws rules and designated foreign law. Article 5 addresses the public-policy exception. Article 9 determines the law applicable to capacity.

Other provisions establish specific conflict-of-laws rules for particular private-law relationships, while the international civil procedure provisions regulate matters including the international jurisdiction of Turkish courts and the recognition and enforcement of foreign judgments.

The analysis therefore proceeds from identifying the foreign element and the nature of the private-law relationship to determining the particular MÖHUK rule governing the issue.

Where that rule designates foreign law, Article 2 then governs how the Turkish judge approaches that law.

XI. Practical Significance

In practice, Article 1 requires several preliminary matters to be separated before the merits of an international private-law dispute are considered.

The first is whether the relationship contains a legally relevant foreign element and whether the underlying matter belongs to private law. The nature of the issue must then be identified: applicable law, international jurisdiction, or recognition and enforcement. It is also necessary to determine whether an international convention binding Türkiye governs the matter before turning to the relevant domestic MÖHUK provision.

Importantly, the existence of a foreign element does not itself mean that foreign substantive law will ultimately apply.

It means that the private international law analysis must be undertaken.

The relevant conflict-of-laws rule may ultimately designate Turkish law or foreign law. Similarly, whether a Turkish court possesses international jurisdiction must be determined under the relevant jurisdictional rules.

Article 1 therefore establishes the framework within which those questions are answered rather than providing the substantive answer itself.

XII. Conclusion

Article 1 of Law No. 5718 defines the general scope of Turkish private international law. Although concise, it establishes the framework within which questions of applicable law, international jurisdiction, and recognition and enforcement are addressed.

Central to that framework is the foreign element. Neither the statute nor the jurisprudence reduces that concept to a single connecting factor. Its existence must instead be determined in light of the nature and circumstances of the particular private-law relationship. Turkish scholarship and the Yargıtay decisions discussed above illustrate that foreign nationality, habitual work abroad, an employer’s place of business abroad, and other legally relevant connections may perform this function in different contexts.^[2][8][10]

Article 1 also makes clear that applicable law and international jurisdiction are distinct questions, while paragraph 2 preserves the operation of international conventions binding Türkiye. The legislative reasoning confirms that the basic structure of Article 1 was carried over from former Law No. 2675 without substantive alteration.^[16]

Article 1 therefore provides the starting point for the MÖHUK analysis: before asking which law governs a cross-border private-law relationship, it is first necessary to identify the foreign element and the legal question to which the relevant MÖHUK rule must be applied.

Notes

1. [1] Law No. 5718 on Private International Law and International Civil Procedure (“MÖHUK”), Art. 1(1)–(2).
2. [2] Mesut Aygün, “Yabancılık Unsurunun Mahiyeti ve Yargılamadaki Rolü,” Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Vol. 16, Special Issue (2014), pp. 1025–1066.
3. [3] MÖHUK, Art. 1(1).
4. [4] MÖHUK, Art. 1(2).
5. [5] MÖHUK, Art. 1(1). The English wording used in this article is a working translation of the Turkish statutory text.
6. [6] Aygün, supra note 2, pp. 1025–1027.
7. [7] Aygün, supra note 2, pp. 1032–1034.
8. [8] Yargıtay 9th Civil Chamber, E. 2023/9545, K. 2023/12447, 20 September 2023.
9. [9] Aygün, supra note 2, pp. 1031–1033.
10. [10] Yargıtay 2nd Civil Chamber, E. 2022/3764, K. 2022/5114, 30 May 2022.
11. [11] Yargıtay 2nd Civil Chamber, E. 2022/3764, K. 2022/5114, 30 May 2022.
12. [12] MÖHUK, Arts. 2 and 40.
13. [13] Yargıtay 9th Civil Chamber, E. 2023/9545, K. 2023/12447, 20 September 2023.
14. [14] MÖHUK, Art. 1(2).
15. [15] Cansu Yener Keskin, “Yabancılık Unsuru İçeren Vasiyetnamelerin Şekline Uygulanacak Hukuk,” Selçuk Üniversitesi Hukuk Fakültesi Dergisi, Vol. 30, No. 3 (2022), pp. 1079–1113, DOI: 10.15337/suhfd.1103406.
16. [16] Article-by-article legislative reasoning (madde gerekçesi) accompanying Article 1 of Law No. 5718.
17. [17] Former Law No. 2675 on Private International Law and International Civil Procedure, Art. 1.