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The Turkish Public Policy Exception in Private International Law: An Analysis of Article 5 of Law No. 5718

I. Introduction

The application of foreign law is an ordinary consequence of a functioning system of private international law. Where Turkish conflict-of-laws rules designate foreign law as applicable, that law must in principle be given effect. Article 5 of Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK) establishes an exceptional limit to that principle.

Under Article 5, where a provision of the applicable foreign law, as applied to a particular case, is manifestly contrary to Turkish public policy, that provision is not applied; where necessary, Turkish law is applied instead.^[1]

The central difficulty lies in identifying the threshold for intervention. Legal systems routinely regulate the same subject differently, and private international law would lose much of its function if every divergence from Turkish substantive law permitted the forum to return immediately to Turkish law. Article 5 therefore asks a more demanding question: does the concrete result produced by the otherwise applicable foreign provision amount to a manifest incompatibility with Turkish public policy?

II. The Legal Framework of Article 5

A. Foreign Law Must First Be Applicable

Article 5 is not an independent choice-of-law rule. It does not determine which country’s law governs the dispute. The applicable law must first be identified under the relevant conflict-of-laws rule in MÖHUK. Article 5 operates only after foreign law has been designated, and only as an exceptional control on the effect of a particular provision of that law. The analytical sequence is therefore: designation of the applicable foreign law, consideration of the effect of the relevant foreign provision in the concrete dispute, and public-policy intervention only if that effect is manifestly incompatible with Turkish public policy.^[2]

B. The Focus Is on the Concrete Effect of the Foreign Provision

The wording of Article 5 is deliberately concrete. It refers to the provision of the applicable foreign law as applied to a particular case. The inquiry is therefore not whether a foreign legal rule appears unfamiliar, less protective, or inconsistent with a Turkish rule when compared in the abstract. The court must consider the result that the relevant foreign provision would produce in the dispute before it.

This distinction preserves the logic of the conflict-of-laws system. A foreign legal system is not rejected as a whole merely because one of its rules differs from Turkish law. The public-policy exception concerns the effect of the relevant provision in the concrete case and operates only when that effect reaches the level of manifest incompatibility required by Article 5.^[3]

C. Manifest Incompatibility and the Exceptional Character of Intervention

Article 5 does not refer simply to incompatibility with public policy; the incompatibility must be manifest. The adverb is important because it marks public-policy intervention as exceptional. The 9th Civil Chamber has expressly described intervention under Article 5 as limited and exceptional, while the General Assembly of Civil Chambers has likewise emphasized the exceptional character of public-policy intervention.^[4]

Accordingly, the public-policy exception cannot be used as a general corrective whenever Turkish substantive law would produce a different, more familiar, or more protective outcome. A lower threshold would allow the forum’s substantive law to displace the foreign law selected by Turkish conflict rules too readily.

III. Legislative Background and Function of the Public-Policy Exception

The legislative reasoning accompanying Article 5 is concise: the provision corresponds to Article 5 of former Law No. 2675.^[5] Article 5 of Law No. 5718 therefore preserves, rather than fundamentally redesigns, the public-policy exception previously recognized in Turkish private international law.

Its function is best understood as a safeguard at the outer boundary of the application of foreign law. Turkish private international law accepts that a foreign legal system may legitimately govern a relationship connected with another state. At the same time, the forum is not required to give effect to a foreign provision where the result of its application in the individual case would be intolerable in light of fundamental values protected by the Turkish legal order. Article 5 reconciles those two considerations by setting a deliberately high threshold.

IV. The Scope of Turkish Public Policy

MÖHUK does not provide an exhaustive statutory definition of Turkish public policy. The concept is therefore necessarily evaluative and context-dependent, but the absence of an exhaustive definition does not make the Article 5 inquiry unrestricted. Yargıtay jurisprudence repeatedly stresses its narrow operation in the conflict-of-laws context.

In the 2020 Oman decision, the 9th Civil Chamber stated that public policy in conflict of laws is different from and narrower than the concept of public policy in domestic law. It further explained that a foreign rule may raise public-policy concerns where it conflicts with fundamental values of Turkish law, basic conceptions of justice and legal policy, constitutionally protected fundamental rights and freedoms, internationally accepted legal principles, or comparable foundational values. The Chamber gave rules permitting child labour or race-based discrimination in wages and other employment rights as examples capable of engaging Turkish public policy.^[6]

The same judgment also makes clear what is not enough. The fact that a Turkish rule is mandatory in domestic law does not automatically mean that every foreign rule departing from it is manifestly contrary to Turkish public policy. This distinction between domestic mandatory rules and international public policy is essential: otherwise, the public-policy exception would become a means of extending Turkish mandatory law to disputes for which the conflict rules designate foreign law.

V. Article 5 in Yargıtay Jurisprudence

A. Employment in Oman: Yargıtay 9. Hukuk Dairesi, E. 2020/6479, K. 2020/16559, T. 24.11.2020

The dispute concerned an employee who worked in Oman between 28 June 2012 and 1 February 2015 and sought severance compensation, notice compensation and other employment receivables. The employer argued that Omani law was applicable. The employment contract provided for the law of the country of work in relation to matters including termination, annual leave, overtime, weekly rest and public holidays, and the employee had performed the relevant employment entirely in Oman.^[7]

The 9th Civil Chamber treated the case as one involving a choice of law under Article 27(1) MÖHUK and also observed that Oman was the employee’s habitual place of work. It concluded that Omani law should be applied and that, if necessary, a report should be obtained from an expert in Omani law before the claims were assessed.^[8]

For Article 5, the judgment is important because of the principles stated in the Chamber’s reasoning. It describes public-policy intervention as limited and exceptional. Rules on severance and notice compensation, annual leave, overtime, weekly rest and public-holiday claims may be mandatory under Turkish domestic law, but different foreign regulation of those matters does not, merely because of the difference, justify intervention under Article 5. The Chamber further states that the fact that the applicable foreign law affords the employee less protection than Turkish law is not by itself sufficient to trigger the public-policy exception.^[9]

The judgment should nevertheless be read with an important limitation. The Chamber did not establish the content of a particular Omani employment provision and then hold that the provision either satisfied or violated Article 5. Rather, it held that Omani law had to be applied and that its content should be properly established. The decision is therefore authority for the restrictive methodology of Article 5, not an example of Yargıtay excluding a specific Omani rule on public-policy grounds.

B. Employment in Russia: Yargıtay Hukuk Genel Kurulu, E. 2022/985, K. 2023/426, T. 10.05.2023

The later decision of the General Assembly of Civil Chambers concerned employment performed at the defendant company’s worksites in Russia. For the period from 6 June 2013 to 8 May 2015, the employment contract provided that the law of the country of work would govern specified rights and obligations and would apply to disputes covered by the contract. The General Assembly concluded that the parties had chosen Russian law for that period and that Russian law was also the law of the habitual place of work.^[10]

The General Assembly’s reasoning gives Article 5 a systematic place within the applicable-law analysis. Once the applicable foreign law has been identified, the court must consider whether there is a legally recognized obstacle to its application. Article 5 and Article 6 address different types of such obstacles: public policy under Article 5 and directly applicable Turkish rules under Article 6.^[11]

With respect to Article 5, the General Assembly emphasized that only manifest incompatibility with Turkish public policy prevents the application of the designated foreign law. The statutory language reflects the exceptional character of the mechanism. Mere difference between the foreign rule and Turkish law does not establish a public-policy violation. In the employment context, the mandatory nature of Turkish employment rules likewise does not automatically justify public-policy intervention. Where foreign law is applicable, the court must examine whether the consequences produced by its relevant provisions are manifestly contrary to Turkish public policy.^[12]

The procedural result is particularly instructive. The General Assembly did not itself undertake a detailed comparison of Russian and Turkish employment law. It held that Russian law governed the relevant period and that a report from an expert in Russian law should be obtained so that the employee’s claims could be assessed under that law together with the evidence in the file. The resistance decision applying Turkish law was therefore reversed.^[13]

The Russia decision consequently strengthens the methodological lesson of the Oman decision. Article 5 is not a shortcut allowing the court to avoid determining and applying the foreign law. The foreign law must first be treated as the applicable law; its relevant content and consequences must then be considered; only a manifestly unacceptable result can justify the exceptional intervention contemplated by Article 5.

C. Principles Emerging from the Two Decisions

Read together, the two decisions establish a coherent approach. First, Article 5 presupposes that foreign law is otherwise applicable. Second, difference from Turkish law is not equivalent to manifest incompatibility with Turkish public policy. Third, the mandatory character of a Turkish domestic rule does not automatically transform that rule into a rule of international public policy. Fourth, even lower protection under foreign employment law is not, by itself, sufficient. Finally, the decisive inquiry concerns the concrete consequences produced by the relevant foreign provision.

Neither judgment should be overstated. Neither is a case in which Yargıtay finally identified a particular Omani or Russian substantive provision and excluded it under Article 5. Their significance lies principally in defining the threshold and methodology governing public-policy review.

VI. Article 5 and Article 6: Public Policy and Directly Applicable Rules

Article 5 should also be distinguished from Article 6 MÖHUK. The two mechanisms can both affect the operation of foreign law, but they do so in different ways. Article 5 begins with the foreign law designated by the conflict rule and asks whether the concrete result of applying a relevant foreign provision is manifestly contrary to Turkish public policy. Article 6, by contrast, concerns Turkish rules that apply directly because of their purpose and scope, irrespective of the law otherwise governing the relationship.^[14]

The 2020 Oman judgment explains that directly applicable rules pursue social, economic or political interests of the state and apply within their intended field of operation regardless of a foreign element or a choice of law. It also warns that not every mandatory employment rule is a directly applicable rule. The 2023 General Assembly decision adopts the same distinction and requires attention to the purpose and territorial or substantive scope of the Turkish rule said to apply directly.^[15]

The distinction matters analytically. A court should not label a Turkish rule ‘public policy’ merely because it is mandatory, nor should it characterize every protective rule as directly applicable. Article 5 and Article 6 each have their own requirements and should not be used interchangeably to bypass the foreign law designated by MÖHUK.

VII. Consequences of Public-Policy Intervention

Where Article 5 is satisfied, the statutory consequence is directed at the relevant foreign provision: that provision is not applied. The second part of Article 5 then provides that Turkish law is applied where deemed necessary.^[16] The text therefore does not state that the entire foreign legal system automatically ceases to govern the dispute because one provision produces a manifestly unacceptable result.

This targeted structure is consistent with the exceptional nature of the mechanism. Intervention should extend no further than necessary to prevent the result that conflicts manifestly with Turkish public policy. Article 5 is thus a corrective limit on the application of foreign law, not an alternative general choice-of-law rule.

VIII. Assessment

Article 5 performs a necessary but deliberately narrow function within Turkish private international law. A system of conflict rules cannot operate coherently if the forum rejects foreign law whenever domestic law would produce a different result. At the same time, the Turkish legal order retains an exceptional safeguard against giving effect to foreign provisions whose concrete consequences conflict manifestly with its fundamental public-policy values.

The Yargıtay jurisprudence examined here is particularly valuable because it resists two possible expansions of Article 5. The first is the equation of domestic mandatory law with international public policy. The second is the assumption that lower protection under foreign law is necessarily unacceptable. The Oman decision rejects both propositions in express terms, while the General Assembly’s Russia decision places the same restrictive approach within a broader methodology of determining, ascertaining and applying foreign law.

The cases also show why the concrete-effect requirement matters procedurally. A court cannot ordinarily determine whether the application of a foreign provision is manifestly contrary to Turkish public policy without first identifying the applicable foreign law and establishing the content relevant to the dispute. Public policy therefore operates after, and not instead of, the applicable-law analysis.

IX. Conclusion

Article 5 of Law No. 5718 establishes one of the principal limits on the application of foreign law in Turkish private international law. Its threshold is intentionally demanding. Where Turkish conflict-of-laws rules designate foreign law, the fact that the foreign rule differs from Turkish law does not ordinarily justify refusing to apply it. Nor does the mandatory character of the corresponding Turkish rule, or the fact that foreign law may afford less protection, automatically activate the public-policy exception.

The decisions of the 9th Civil Chamber in 2020 and the General Assembly of Civil Chambers in 2023 reinforce three central propositions: application of the designated foreign law is the rule; Article 5 intervention is limited and exceptional; and the relevant inquiry concerns whether the concrete consequences of the applicable foreign provision are manifestly contrary to Turkish public policy. The decisions do not themselves exclude a specific Omani or Russian provision under Article 5, but they provide a clear judicial methodology for the courts that must perform that assessment.

Properly understood, Article 5 therefore protects fundamental Turkish public-policy values without undermining the basic premise of private international law: foreign law legitimately designated by Turkish conflict rules should ordinarily be applied.

Notes

1. [1] Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK), Art. 5, Resmî Gazete, 12 December 2007, No. 26728. The English formulation in the text is a working translation of the authoritative Turkish statutory provision. ↩
2. [2] See Sibel Özel, “Milletlerarası Özel Hukukta Uygulanacak Hukukun Lex Fori Esasına Göre Belirlenmesi,” Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Vol. 28, No. 2 (2022), pp. 962–978, DOI: 10.33433/maruhad.1172152. ↩
3. [3] See generally Burcu İrge Erdoğan, “5718 Sayılı MÖHUK Uyarınca Tenkis Davasında Uygulanacak Hukukun Kamu Düzeni Bakımından Değerlendirilmesi ve Yetkili Mahkeme,” Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Vol. 20, No. 1 (2018), pp. 397–430. ↩
4. [4] Yargıtay 9. Hukuk Dairesi, E. 2020/6479, K. 2020/16559, T. 24.11.2020; Yargıtay Hukuk Genel Kurulu, E. 2022/985, K. 2023/426, T. 10.05.2023. ↩
5. [5] Türkiye Büyük Millet Meclisi (TBMM), Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Tasarısı ile Adalet Komisyonu Raporu (1/1231), S. Sayısı: 1324, Dönem 22, Yasama Yılı 5, Article 5 legislative reasoning (madde gerekçesi): “Madde 5 – 2675 sayılı Kanunun 5 inci maddesini aynen karşılamaktadır.” ↩
6. [6] Yargıtay 9. Hukuk Dairesi, E. 2020/6479, K. 2020/16559, T. 24.11.2020. The judgment refers, in developing its public-policy framework, to Yargıtay İçtihadı Birleştirme Büyük Genel Kurulu, E. 2010/1, K. 2012/1, T. 10.02.2012, published in Resmî Gazete, 20.09.2012, No. 28417. The earlier decision is referred to here only because the 2020 judgment itself relies on it in its discussion of public policy. ↩
7. [7] Yargıtay 9. Hukuk Dairesi, E. 2020/6479, K. 2020/16559, T. 24.11.2020. ↩
8. [8] Ibid. ↩
9. [9] Ibid. ↩
10. [10] Yargıtay Hukuk Genel Kurulu, E. 2022/985, K. 2023/426, T. 10.05.2023. ↩
11. [11] Ibid.; Law No. 5718 (MÖHUK), Arts. 5-6, Resmî Gazete, 12 December 2007, No. 26728. ↩
12. [12] Yargıtay Hukuk Genel Kurulu, E. 2022/985, K. 2023/426, T. 10.05.2023. The judgment also refers to the 2012 unification judgment when discussing the content of public policy; that earlier decision is referred to here only through the General Assembly’s own reasoning. ↩
13. [13] Ibid. The General Assembly held that Russian law applied for the relevant period and that an expert report in Russian law should be obtained; it reversed the resistance decision. ↩
14. [14] Law No. 5718 (MÖHUK), Arts. 5-6, Resmî Gazete, 12 December 2007, No. 26728; Özel, supra note 2. ↩
15. [15] Yargıtay 9. Hukuk Dairesi, E. 2020/6479, K. 2020/16559, T. 24.11.2020; Yargıtay Hukuk Genel Kurulu, E. 2022/985, K. 2023/426, T. 10.05.2023. ↩
16. [16] Law No. 5718 (MÖHUK), Art. 5, Resmî Gazete, 12 December 2007, No. 26728. ↩

Selected Bibliography

1. Altuğ, Yılmaz / Yasan, Mustafa, “Milletlerarası Özel Hukukta Kamu Düzeni,” in Prof. Dr. Ergun Önen’e Armağan, Marmara Üniversitesi Hukuk Fakültesi, İstanbul, 2003, pp. 139–150.
2. İrge Erdoğan, Burcu, “5718 Sayılı MÖHUK Uyarınca Tenkis Davasında Uygulanacak Hukukun Kamu Düzeni Bakımından Değerlendirilmesi ve Yetkili Mahkeme,” Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Vol. 20, No. 1 (2018), pp. 397–430.
3. Özel, Sibel, “Milletlerarası Özel Hukukta Uygulanacak Hukukun Lex Fori Esasına Göre Belirlenmesi,” Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Vol. 28, No. 2 (2022), pp. 962–978, DOI: 10.33433/maruhad.1172152.
4. Türkiye Büyük Millet Meclisi (TBMM), Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Tasarısı ile Adalet Komisyonu Raporu (1/1231), S. Sayısı: 1324, Dönem 22, Yasama Yılı 5, Article 5 legislative reasoning (madde gerekçesi).
5. Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK), adopted 27 November 2007, Resmî Gazete, 12 December 2007, No. 26728, particularly Arts. 5, 6 and 27.
6. Yargıtay 9. Hukuk Dairesi, E. 2020/6479, K. 2020/16559, T. 24.11.2020.
7. Yargıtay Hukuk Genel Kurulu, E. 2022/985, K. 2023/426, T. 10.05.2023.