Blog › Turkish Private International Law Portal › Article 2

The Application of Foreign Law Before Turkish Courts: A Commentary on Article 2 of Law No. 5718

I. Introduction

A dispute being heard before a Turkish court does not necessarily mean that Turkish substantive law will govern that dispute.

As private relationships increasingly cross national borders, Turkish courts frequently encounter disputes involving foreign nationals, international contracts, cross-border employment relationships, marriages between foreign nationals, international succession, and assets or transactions connected with more than one country.

In such cases, the first question may not be how Turkish law resolves the dispute, but rather which country’s law is applicable in the first place.

Law No. 5718 on Private International Law and International Civil Procedure (“MÖHUK”) provides the principal statutory framework governing these questions in Turkish law. Article 1 defines the scope of the Act to include 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.^[1]

II. The Ex Officio Application of Foreign Law

A. The Judge’s Duty to Ascertain and Apply the Applicable Law

Article 2(1) provides that the judge shall apply Turkish conflict-of-laws rules and the foreign law designated by those rules ex officio.^[2]

The significance of this requirement is considerable.

Application of foreign law does not depend solely upon a party requesting it. Where a dispute contains a foreign element, the court must identify the relevant Turkish conflict-of-laws rule and ascertain the law designated by that rule.^[3]

Where that process points to foreign law, the foreign law becomes applicable as a consequence of Turkish private international law itself.

Foreign law is therefore not applied because a foreign state has asserted authority over proceedings before a Turkish court. Rather, it is applied because the Turkish conflict-of-laws system has determined that the relevant legal issue is governed by that foreign legal system.

This also explains why jurisdiction and applicable law must remain conceptually distinct. The fact that a Turkish court is internationally competent to hear a dispute does not, by itself, establish that Turkish substantive law governs its merits.

B. The Role of the Parties

Article 2(1) recognizes the practical difficulties involved in applying another legal system by permitting the judge to request assistance from the parties in determining the content of the applicable foreign law.^[4]

The distinction is important.

The parties may assist the court in determining foreign law, but the court’s obligation to ascertain and apply the applicable law does not arise only when a party successfully invokes or proves it.

Depending on the circumstances, materials submitted by the parties may include foreign legislation, judicial authorities, translations, academic commentary, or other material capable of assisting the court in understanding the relevant foreign legal rules.

Turkish scholarship has consequently treated the respective roles of the judge and the parties in foreign-law ascertainment as a distinct issue under Article 2.^[5]

III. Determination of Foreign Law and the Subsidiary Application of Turkish Law

Determining that foreign law applies does not complete the conflict-of-laws inquiry. The court must subsequently establish what that foreign law actually provides.

This may involve more than locating the text of a foreign statute. Amendments, judicial interpretation, secondary legislation, and the interaction between different provisions may be relevant to establishing the current content and operation of the applicable law.^[6]

The practical difficulty of this exercise should not be underestimated. Differences between legal systems, language barriers, problems of access to authoritative materials, and uncertainty concerning the interpretation of foreign rules may complicate the task of a domestic court called upon to apply foreign law.

A. Article 2(2): The Threshold for Applying Turkish Law

Article 2(2) provides a subsidiary solution where the applicable foreign law cannot ultimately be established.

Where the provisions of the applicable foreign law cannot be determined despite all necessary research, Turkish law applies.^[7]

The statutory sequence is therefore important:

Article 2 does not establish that: difficulty in determining foreign law = application of Turkish law.

Turkish law operates as a fallback mechanism, not as an alternative available merely because foreign law is unfamiliar or difficult to ascertain.

This distinction preserves the effectiveness of the Turkish conflict-of-laws system. If difficulty alone justified immediate recourse to Turkish law, the designation of foreign law under MÖHUK could readily be deprived of practical effect.

B. Means of Ascertainment and Expert Assistance

A particularly important question concerns the methods through which a Turkish court may obtain reliable information concerning foreign law.

The parties may assist the court, and international instruments, notably the European Convention on Information on Foreign Law (London, 1968), to which Türkiye is a party, and other judicial-cooperation mechanisms may also facilitate access to information concerning foreign law.^[8]

The possible use of experts requires particular care.

Turkish procedural law generally prohibits referring purely legal questions to experts. Academic commentary has nevertheless distinguished between impermissibly delegating the judicial task of legal assessment and obtaining expert assistance for the more limited purpose of establishing and understanding the content of foreign law.^[9]

This distinction is reflected in Yargıtay jurisprudence. In appropriate circumstances, a court may obtain assistance from a person with relevant expertise in the applicable foreign legal system.

The ultimate responsibility for interpreting and applying the law, however, remains with the court.

IV. Legislative Reasoning and Background: From Law No. 2675 to Law No. 5718

Article 2 of Law No. 5718 should also be understood against the background of its predecessor, Article 2 of former Law No. 2675.

The legislative reasoning accompanying the current Article 2 is particularly significant in relation to renvoi.^[10]

Renvoi arises where a Turkish conflict-of-laws rule designates a foreign legal system and consideration is then given to that foreign system’s own conflict-of-laws rules. Those rules may refer the matter to another legal system.

Under former Law No. 2675, the renvoi mechanism contained in Article 2(3) operated more broadly. The legislative reasoning for the current provision expressly refers to the practical difficulties experienced by courts in applying foreign law and, in particular, the difficulty of proceeding from the conflict-of-laws rules of one foreign legal system to researching and determining another foreign law.^[11]

The same legislative reasoning also records that paragraphs (4) and (5) had no counterpart in the former provision. Paragraph (4) turned into statute the view, generally accepted in scholarship, that a choice of law refers to the substantive rules of the chosen law, while paragraph (5) was added for states composed of territorial units with different legal systems.

Law No. 5718 responded by restricting the operation of renvoi.

Article 2(3) now provides that the conflict-of-laws rules of the designated foreign law are taken into consideration only in disputes concerning the law of persons and family law. The substantive provisions of the law ultimately designated through that process are then applied.^[12]

The reform therefore represents a deliberate legislative compromise. Renvoi was not abolished, but its scope was narrowed in response to the practical difficulties associated with its broader operation.

The legislative history consequently adds something that the statutory text alone cannot provide: Article 2(3) tells us where renvoi operates, while the legislative reasoning helps explain why its scope was restricted.

V. Party Choice of Law

Article 2(4) addresses a different route through which foreign law may become applicable: party autonomy.

Where MÖHUK permits the parties to choose the law governing their legal relationship, their choice is understood, unless they clearly agree otherwise, as referring to the substantive provisions of the selected legal system.^[13]

This prevents a choice of foreign law from automatically activating that state’s conflict-of-laws rules and potentially referring the relationship to another legal system.

The provision is particularly relevant in international contractual relationships, where choice of law commonly serves the objectives of predictability and legal certainty.

Article 2(4) does not itself grant an unrestricted right to select the applicable law. Whether a choice is permitted, and the limits imposed upon it, must be determined under the specific MÖHUK provision governing the legal relationship concerned.

VI. States Containing Multiple Territorial Legal Systems

Article 2(5) addresses cases in which the applicable state contains two or more territorial units governed by different legal systems.^[14]

In such circumstances, identifying the applicable state may not sufficiently identify the applicable law.

The relevant territorial legal system is first determined according to the law of the foreign state concerned. Where that state’s law contains no rule capable of making that determination, Article 2 directs the court to apply the law of the territorial unit most closely connected with the dispute.

The provision therefore completes the choice-of-law process where the designated state does not possess a single territorially uniform system of private law.

VII. Article 2 in Yargıtay Jurisprudence

A. Ex Officio Application of Foreign Law: Yargıtay 2nd Civil Chamber, E. 2022/6574, K. 2022/8516, 25 October 2022

The dispute concerned divorce proceedings in which the parties were not Turkish nationals at the date the action was filed. Yargıtay therefore treated the case as containing a foreign element and held that the applicable law had to be determined under MÖHUK.^[15]

The Chamber emphasized Article 2(1): the judge must apply Turkish conflict-of-laws rules and the foreign law designated by those rules ex officio, irrespective of whether the parties request the application of foreign law. In a divorce case, this required the court first to determine the spouses’ nationality and then apply the sequence prescribed by Article 14(1): common national law, failing that common habitual-residence law, and, where neither exists, Turkish law.^[16]

Because the lower court had applied Turkish law directly without completing that applicable-law inquiry, Yargıtay reversed the judgment.^[17]

B. The Court’s Duty to Ascertain Foreign Law: Yargıtay 11th Civil Chamber, E. 2018/3313, K. 2020/2354, 4 March 2020

The dispute arose from a claim for damages following an allegedly wrongful provisional attachment of a Syrian-flagged vessel. The determination of ownership required consideration of Syrian law under the relevant MÖHUK rules.^[18]

The lower court had requested the parties to provide information concerning Syrian law. When they failed to do so, it proceeded under Turkish law. Yargıtay held that this was not sufficient. Referring expressly to Article 2(1), the Chamber stated that the judge applies the designated foreign law ex officio and may request the parties’ assistance in determining its content. Article 2(2), however, permits recourse to Turkish law only where the relevant provisions of foreign law cannot be determined despite all research.^[19]

The Chamber therefore found it incorrect to apply Turkish law without conducting the necessary additional research into the content of Syrian law, including, where appropriate, inquiries through the relevant public authorities or institutions.^[20]

C. Choice of Foreign Law and Its Application: Yargıtay 9th Civil Chamber, E. 2023/6900, K. 2023/8321, 31 May 2023

The case concerned employment performed at the employer’s projects in Russia. For specified periods of employment, an earlier Yargıtay reversal had established that the parties had made a valid choice of Russian law under Article 27(1) MÖHUK and that Russian law therefore had to be applied to the relevant claims.^[21]

After the reversal, both parties sought the application of Turkish law and the Regional Court nevertheless decided the dispute under Turkish law. The 9th Civil Chamber held that this did not satisfy the requirements of the earlier reversal. It reiterated Article 2(1) and (2), under which the designated foreign law must be applied and Turkish law becomes the fallback only if the relevant foreign-law provisions cannot be determined despite the required research.^[22]

Yargıtay accordingly reversed the judgment so that the requirements of the earlier decision concerning the application of Russian law could be carried out.

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

D. Article 2(3) and Renvoi in the Case Law Reviewed

Article 2(3) provides that the conflict-of-laws rules of the designated foreign law are taken into account only in disputes concerning the law of persons and family law, after which the substantive provisions of the law designated through that process are applied.

Recent family-law judgments reviewed for this commentary reproduce that rule as part of the general Article 2 framework. For example, Yargıtay 2nd Civil Chamber, E. 2023/3881, K. 2024/494, 25 January 2024, quoted the Article 2(3) rule in a divorce dispute involving Syrian nationals. The actual ground of reversal, however, was the lower court’s failure to investigate and apply the spouses’ common national law before proceeding under Turkish law.^[23]

Accordingly, that decision should not be characterized as a concrete application of renvoi. In the jurisprudence reviewed here, Article 2(3) is therefore used cautiously: the statutory renvoi mechanism is explained from the text of Article 2(3) and its legislative background, while the cited judgment is relevant only as an example of the provision being stated within the broader applicable-law framework.

VIII. Article 2 and the Public Policy Exception

Article 2 must be distinguished from Article 5 MÖHUK, which regulates the Turkish public policy exception.

The provisions address fundamentally different problems.

Under Article 2(2), the content of the applicable foreign law cannot be determined despite the necessary research.

Under Article 5, the applicable foreign rule has been identified, but its application in the particular case would be manifestly contrary to Turkish public policy.^[24]

The distinction is essential.

Public policy does not constitute a general mechanism for preferring Turkish law whenever foreign law differs from Turkish domestic law.

A clear example of the distinct operation of Article 5 appears in Yargıtay 2nd Civil Chamber, E. 2022/3764, K. 2022/5114, 30 May 2022. In that divorce dispute, the Chamber first identified the applicable foreign-law framework and then held that the relevant provisions of the parties’ common national law were manifestly contrary to Turkish public policy because they did not provide equal rights to women and men. Turkish law was therefore to be applied.^[25]

The decision illustrates the difference between Article 2(2) and Article 5: Article 2(2) addresses inability to determine the content of the designated foreign law despite the necessary research, whereas Article 5 presupposes that the relevant foreign rule has been identified and asks whether its application would be manifestly contrary to Turkish public policy.

Accordingly, neither Article 2(2) nor Article 5 should become a shortcut through which the foreign law designated by the Turkish conflict-of-laws system is displaced without completing the analysis required by MÖHUK.

IX. Assessment: Article 2 as a Methodological Provision

Article 2 reflects a fundamental tension inherent in private international law.

On the one hand, Turkish conflict-of-laws rules recognize that a private relationship sufficiently connected with another state may properly be governed by that state’s law.

On the other hand, a domestic court must be capable of identifying, understanding, and administering a legal system with which it may have limited familiarity.

Article 2 attempts to reconcile these considerations.

The ex officio principle protects the integrity of the conflict-of-laws process. The possibility of obtaining assistance acknowledges the practical difficulty of foreign-law ascertainment. The subsidiary application of Turkish law prevents proceedings from becoming incapable of resolution where foreign law genuinely cannot be established. The restriction of renvoi responds to the complexity generated by successive references between legal systems.

Article 2 should therefore be understood not merely as a technical rule concerning foreign law but as a methodological provision governing the transition from choice of law to adjudication.

The employment litigation discussed above illustrates this particularly well. Determining that Russian law was applicable to the relevant employment periods did not conclude the private international law analysis. It generated a further institutional task: giving effect to the designated foreign law in a form capable of judicial application.

This distinction between designating foreign law and ascertaining foreign law is central to understanding Article 2.

X. Conclusion

Article 2 of Law No. 5718 occupies a foundational position within Turkish private international law.

Where Turkish conflict-of-laws rules designate foreign law, the Turkish judge is required to apply that law ex officio. The parties may assist in establishing its content, but its application does not depend solely upon their initiative.

At the same time, Article 2 acknowledges the practical difficulties inherent in administering foreign law before a domestic court. It provides a subsidiary solution where foreign law genuinely cannot be determined despite the necessary research, restricts the operation of renvoi, clarifies the effect of party choice of law, and addresses foreign states containing multiple territorial legal systems.

The legislative history and Yargıtay jurisprudence demonstrate that these rules have direct consequences for cross-border litigation.

The central proposition underlying Article 2 can ultimately be stated simply:

A Turkish forum does not necessarily imply the application of Turkish substantive law.

For disputes containing a foreign element, determining jurisdiction is only one part of the inquiry. Identifying — and properly ascertaining and applying — the governing law remains a separate and indispensable task of Turkish private international law.

Notes

1. [1] Law No. 5718 on Private International Law and International Civil Procedure (“MÖHUK”), Art. 1(1).
2. [2] MÖHUK, Art. 2(1).
3. [3] Tuğçe Nimet Yaşar, “Türk Mahkemelerinde Yabancı Hukukun Uygulanması,” Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, Vol. 33, No. 2 (2013), pp. 75–114.
4. [4] MÖHUK, Art. 2(1).
5. [5] Volkan Özçelik, “Yabancı Hukukun Uygulanmasında Taraf Rolleri,” Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, Vol. 10, No. 1 (2020), pp. 190–220.
6. [6] Yaşar, supra note 3.
7. [7] MÖHUK, Art. 2(2).
8. [8] Özçelik, supra note 5.
9. [9] İlyas Arslan, “Yabancı Unsurlu Özel Hukuk Uyuşmazlıklarında Yabancı Hukukun İçeriği Hakkında Bilgi Edinilmesinde Bilirkişinin Rolü,” Türkiye Adalet Akademisi Dergisi, No. 51 (2022), pp. 293–328, DOI: 10.54049/taad.1140168.
10. [10] Türkiye Büyük Millet Meclisi (TBMM), Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Tasarısı, 23rd Legislative Term, Bill No. 1/337 (renewed from 22nd Legislative Term Bill No. 1/1231), Article 2 legislative reasoning (madde gerekçesi).
11. [11] Ibid.
12. [12] MÖHUK, Art. 2(3).
13. [13] MÖHUK, Art. 2(4).
14. [14] MÖHUK, Art. 2(5).
15. [15] Yargıtay 2nd Civil Chamber, E. 2022/6574, K. 2022/8516, 25 October 2022.
16. [16] MÖHUK, Arts. 2(1) and 14(1).
17. [17] Yargıtay 2nd Civil Chamber, E. 2022/6574, K. 2022/8516, 25 October 2022.
18. [18] Yargıtay 11th Civil Chamber, E. 2018/3313, K. 2020/2354, 4 March 2020.
19. [19] Ibid.
20. [20] Ibid.; MÖHUK, Arts. 2(1)–(2).
21. [21] Yargıtay 9th Civil Chamber, E. 2023/6900, K. 2023/8321, 31 May 2023.
22. [22] Ibid.; MÖHUK, Arts. 2(1)–(2), 24(3) and 27(1).
23. [23] Yargıtay 2nd Civil Chamber, E. 2023/3881, K. 2024/494, 25 January 2024.
24. [24] MÖHUK, Art. 5.
25. [25] Yargıtay 2nd Civil Chamber, E. 2022/3764, K. 2022/5114, 30 May 2022.