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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.^[2]

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.^[3]

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.^[4]

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.^[5]

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.^[6]

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.^[7]

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.^[8]

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 and judicial-cooperation mechanisms may also facilitate access to information concerning foreign law.^[9]

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.^[10]

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.^[11]

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.^[12]

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.^[13]

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.^[14]

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.^[15]

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

The significance of Article 2 becomes particularly apparent when its statutory language is examined alongside its application in actual litigation.

A. Ex Officio Application: Yargıtay 2nd Civil Chamber, E. 2022/4788, K. 2022/6927, 12 September 2022

The dispute concerned divorce proceedings containing a foreign element. At the date the action was filed, both parties were foreign nationals.^[16]

Article 14 MÖHUK provides that the grounds and consequences of divorce and separation are governed first by the spouses’ common national law. Where the spouses have different nationalities, their common habitual-residence law applies; in the absence of such a common habitual residence, Turkish law applies.^[17]

The 2nd Civil Chamber emphasized the obligation contained in Article 2(1): the judge must apply Turkish conflict-of-laws rules and the foreign law designated by those rules regardless of whether the parties have requested its application.^[18]

The lower courts had dealt with the dispute under Turkish substantive law without first completing the applicable-law inquiry required by MÖHUK.

Yargıtay held that this approach was incorrect and reversed the judgment.

B. Ascertainment of Foreign Law: Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022

The 9th Civil Chamber considered the applicable law in a dispute concerning employment performed on projects outside Türkiye, including a final period of employment in Iraq.^[19]

For the relevant final period, the Court found that the parties had entered into a choice-of-law agreement directing the employment relationship to the law of the country where the work was performed. The employee’s habitual workplace during that period was Iraq. The Court consequently concluded that Iraqi law was applicable to the claims relating to that period.^[20]

The judgment reiterated the general Article 2 framework concerning the application and ascertainment of foreign law.

Importantly, the Court stated that, if necessary, a report could be obtained from an expert knowledgeable in Iraqi law before the dispute was determined.^[21]

C. Subsequent Proceedings: Yargıtay General Assembly of Civil Chambers, E. 2024/227, K. 2024/278, 22 May 2024

The subsequent procedural history of the employment dispute provides an instructive illustration of foreign-law ascertainment in practice.^[22]

Following the 9th Civil Chamber’s 2022 reversal, the first-instance court obtained a translated copy of the relevant Iraqi labour legislation through the Ministry of Justice and commissioned an expert report addressing the employee’s claims under Turkish and Iraqi law.^[23]

The matter subsequently reached the Yargıtay General Assembly of Civil Chambers.

It is important, however, to distinguish the evidentiary history recorded in that judgment from the General Assembly’s actual holding.

The General Assembly did not issue a substantive interpretation of Article 2. Its decision concerned a procedural question. Because the lower court had obtained new evidence following the 9th Civil Chamber’s reversal, its subsequent decision was regarded as a new judgment rather than a true resistance decision. The file therefore had to be reviewed by the relevant Civil Chamber.^[24]

Nevertheless, the procedural history recorded in the judgment is valuable for understanding Article 2 in practice. It demonstrates a concrete sequence through which foreign law may be ascertained:

The example shows why Article 2 cannot be reduced to the proposition that “the judge applies foreign law ex officio.” In practice, one of the most difficult stages may arise after foreign law has been designated: establishing its content in a sufficiently reliable form for judicial application.

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.^[25]

The distinction is essential.

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

Yargıtay jurisprudence emphasizes the exceptional nature of public-policy intervention in private international law. In employment cases involving foreign law, the 9th Civil Chamber has stated that the mere fact that foreign law provides different or even less extensive protection than Turkish law does not, by itself, establish a violation of Turkish public policy.^[26]

The Yargıtay Grand General Assembly on the Unification of Judgments has likewise articulated a restrictive conception of international public policy in the context of the recognition and enforcement of foreign judgments, stressing that incompatibility with every mandatory provision of Turkish law does not automatically amount to a public-policy violation.^[27]

That unification judgment arose in the context of recognition and enforcement rather than Article 5 itself. Its broader observations concerning public policy have nevertheless been relied upon in subsequent Yargıtay jurisprudence addressing the application of foreign law.

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 Iraqi law was applicable did not conclude the private international law analysis. It generated a second institutional task: establishing the content of Iraqi 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”), particularly Arts. 1, 2 and 40, which distinguish questions of applicable law from the international jurisdiction of Turkish courts.
2. [2] MÖHUK, Art. 1(1). ↩
3. [3] MÖHUK, Art. 2(1). ↩
4. [4] Tuğçe Nimet Yaşar, “Türk Mahkemelerinde Yabancı Hukukun Uygulanması,” Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, Vol. 33, No. 2 (2013), pp. 75–114. ↩
5. [5] MÖHUK, Art. 2(1). ↩
6. [6] Volkan Özçelik, “Yabancı Hukukun Uygulanmasında Taraf Rolleri,” Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi, Vol. 10, No. 1 (2020), pp. 190–220. ↩
7. [7] See generally Yaşar, supra note 4. ↩
8. [8] MÖHUK, Art. 2(2). ↩
9. [9] Özçelik, supra note 6, discussing the mechanisms available for determining foreign law, including assistance from the parties and international instruments concerning information on foreign law. ↩
10. [10] 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. ↩
11. [11] Türkiye Büyük Millet Meclisi (TBMM), Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Tasarısı, Esas No. 1/1231, legislative reasoning (madde gerekçesi) concerning Article 2; subsequently enacted as Law No. 5718 on Private International Law and International Civil Procedure, 27 November 2007. ↩
12. [12] Ibid., Article 2 legislative reasoning. The reasoning explains that Article 2 partly corresponds to Article 2 of former Law No. 2675 and that the broader operation of renvoi under the former provision created practical difficulties, particularly where courts were required to proceed from the conflict-of-laws rules of one foreign legal system to researching and determining another foreign law. The legislature therefore restricted renvoi under the new provision to disputes concerning the law of persons and family law. ↩
13. [13] MÖHUK, Art. 2(3). ↩
14. [14] MÖHUK, Art. 2(4). ↩
15. [15] MÖHUK, Art. 2(5). ↩
16. [16] Yargıtay 2nd Civil Chamber, E. 2022/4788, K. 2022/6927, 12 September 2022. ↩
17. [17] MÖHUK, Art. 14(1). ↩
18. [18] Yargıtay 2nd Civil Chamber, E. 2022/4788, K. 2022/6927, 12 September 2022. ↩
19. [19] Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022. ↩
20. [20] Ibid. The Chamber found that, for the employment period beginning on 28 September 2011, the parties had made a choice of law and that the employee’s habitual workplace during the relevant period was Iraq. ↩
21. [21] Ibid. The Chamber stated that, if necessary, a report could be obtained from an expert knowledgeable in Iraqi law before the dispute was determined. ↩
22. [22] Yargıtay General Assembly of Civil Chambers, E. 2024/227, K. 2024/278, 22 May 2024. ↩
23. [23] Ibid. The judgment records that, following the earlier reversal, the first-instance court obtained a translated copy of the relevant Iraqi labour legislation through the Ministry of Justice and obtained an expert report addressing the claims under Turkish and Iraqi law. ↩
24. [24] Ibid. The General Assembly concluded that, because new evidence had been collected following the reversal, the lower court’s judgment constituted a new decision rather than a true resistance decision; appellate review therefore belonged to the relevant Civil Chamber. ↩
25. [25] MÖHUK, Art. 5. ↩
26. [26] See Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022, emphasizing that the fact that the applicable foreign law affords an employee less protection than Turkish law is not, by itself, sufficient to justify intervention on Turkish public-policy grounds. ↩
27. [27] Yargıtay Grand General Assembly on the Unification of Judgments, E. 2010/1, K. 2012/1, 10 February 2012. The judgment concerned public policy in the recognition and enforcement of foreign judgments under MÖHUK Art. 54(c). Its broader observations concerning the restrictive application of international public policy have subsequently been relied upon in Yargıtay jurisprudence concerning the application of foreign law. ↩