Blog › Turkish Private International Law Portal › Article 5

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 a private-law relationship contains a foreign element, Turkish conflict-of-laws rules may designate the law of another state as applicable. Article 2 of Law No. 5718 requires Turkish judges to apply the foreign law designated by those rules ex officio.^[1]

The designation of foreign law, however, does not mean that every foreign rule must be given effect in Türkiye regardless of its consequences.

Article 5 MÖHUK establishes an exceptional safeguard:

where the 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.^[2]

The provision therefore reflects a tension inherent in private international law.

On the one hand, the conflict-of-laws system requires respect for the foreign law designated by its own connecting rules. On the other hand, the Turkish legal system retains an exceptional mechanism through which it may refuse to give effect to a foreign rule where the concrete result of its application would be incompatible, to an intolerable degree, with fundamental principles protected by Turkish public policy.

The difficult question is therefore not whether foreign law differs from Turkish law. Differences between legal systems are expected in international disputes.

The real question is: When does that difference cross the threshold required for public-policy intervention under Article 5?

II. The Legal Framework of Article 5

Article 5 provides:

Where the provision of the applicable foreign law, as applied to a particular case, is manifestly contrary to Turkish public policy, that provision shall not be applied; where deemed necessary, Turkish law shall apply.^[3]

Several elements of this provision are significant.

A. Foreign Law Must First Be Applicable

Article 5 is not itself a conflict-of-laws rule determining which country’s law governs a dispute.

The applicable law must first be identified under the relevant MÖHUK conflict-of-laws rule.

Only after foreign law has been designated does Article 5 become relevant.

The structure can therefore be expressed as follows:

Public policy consequently operates as an exception to the application of otherwise applicable foreign law, rather than as an independent basis for selecting Turkish law.^[4]

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

Article 5 contains an important qualification: it refers to the provision of foreign law “as applied to a particular case.”

The relevant inquiry is therefore not simply whether a foreign legal rule is different from a Turkish rule in the abstract.

The court must consider the consequences that application of the foreign provision would produce in the specific dispute before it.

This distinction is central to the operation of Article 5.

A foreign legal system is not rejected merely because one of its rules differs from Turkish law. Instead, the court considers whether giving effect to that rule in the particular case would produce a result manifestly incompatible with Turkish public policy.^[5]

C. The Requirement of Manifest Incompatibility

Article 5 does not refer simply to a result that is “contrary” to public policy.

The incompatibility must be manifest.

This wording reflects the exceptional character of the mechanism. Public-policy intervention cannot become an ordinary method of replacing foreign law whenever the Turkish court considers domestic law preferable.

Yargıtay has expressly described public-policy intervention under Article 5 as limited and exceptional.^[6]

The threshold is therefore deliberately higher than mere inconsistency with Turkish domestic law.

III. Legislative Background and the Rationale of the Public Policy Exception

The official legislative reasoning accompanying Article 5 of Law No. 5718 is brief.

It states that Article 5 corresponds exactly to Article 5 of former Law No. 2675.^[7]

Unlike certain other provisions of Law No. 5718, Article 5 therefore did not represent a major substantive reform. The legislature preserved the public-policy exception already contained in the former Turkish private international law legislation.

The rationale of the public-policy exception can be understood principally through the function of the provision within the conflict-of-laws system, academic doctrine, and its judicial interpretation.

That function can be described as a balancing mechanism.

Private international law accepts that foreign law may legitimately govern a dispute connected with another legal system. At the same time, the forum state is not required to give effect to the designated foreign rule where its application in the particular case would produce a result fundamentally incompatible with the forum’s public policy.

Article 5 therefore does not contradict the application of foreign law. Rather, it establishes the exceptional outer boundary of that application.

IV. What Constitutes Turkish Public Policy?

MÖHUK does not provide an exhaustive statutory definition of “Turkish public policy.”

Public policy is not a completely fixed concept. Its content must be assessed in light of the legal values considered fundamental within the Turkish legal order and in relation to the circumstances of the particular case.

The Yargıtay Grand General Assembly on the Unification of Judgments discussed the concept extensively in its decision E. 2010/1, K. 2012/1 of 10 February 2012.^[8]

That decision concerned the recognition and enforcement of foreign judgments under Article 54 MÖHUK rather than the direct application of foreign law under Article 5. Its broader discussion of public policy has nevertheless subsequently been relied upon by Yargıtay in Article 5 jurisprudence.^[9]

The decision approaches public policy as protecting fundamental principles and values of the Turkish legal order, while emphasizing that not every violation of a mandatory provision of Turkish law automatically constitutes a violation of Turkish public policy.^[10]

This does not mean that every foreign rule touching upon one of these areas automatically triggers Article 5.

The decisive inquiry remains the concrete effect of applying the foreign rule in the particular case.

The concept is therefore both fundamental and deliberately restrictive: it protects core values of the Turkish legal order without converting Turkish substantive law into the default law for every international dispute.

V. Article 5 in Yargıtay Jurisprudence

A. Foreign Employment Law and the Limits of Public Policy Intervention

Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022

The 9th Civil Chamber considered Article 5 in an employment dispute involving work performed abroad, including a relevant period of employment in Iraq.^[11]

For that period, the Chamber concluded that Iraqi law was applicable to the relevant claims.

The significance of the judgment extends beyond the determination of applicable law. The Chamber addressed whether differences between the protection afforded by foreign employment law and Turkish employment law could justify public-policy intervention.

Yargıtay emphasized that intervention under Article 5 is limited and exceptional.

The Chamber explained that certain rules concerning severance compensation, notice compensation, annual leave, overtime, weekly rest and public-holiday claims may possess mandatory character under Turkish domestic law. Nevertheless, the fact that the applicable foreign law regulates those matters differently does not automatically produce a violation of Turkish public policy.

Similarly, the fact that the applicable foreign law affords the employee less protection than Turkish law is not, by itself, sufficient to trigger Article 5.^[12]

The decision therefore confirms an important distinction:

A mandatory rule of Turkish domestic law does not necessarily form part of Turkish international public policy.

B. The 2012 Unification Judgment and the Meaning of Public Policy

Yargıtay Grand General Assembly on the Unification of Judgments, E. 2010/1, K. 2012/1, 10 February 2012

The 2012 unification judgment concerned whether the absence of reasoning in a foreign court judgment prevented its recognition and enforcement in Türkiye on public-policy grounds.^[14]

The Court concluded that the mere absence of reasons did not, by itself, constitute manifest incompatibility with Turkish public policy for the purposes of Article 54(c) MÖHUK.

Although the case did not directly concern Article 5, it is significant for Article 5 analysis because Yargıtay subsequently relied upon its discussion of public policy when explaining the scope of public-policy intervention in foreign-law cases.^[15]

Of particular importance is the proposition that a violation of every mandatory provision of Turkish law cannot automatically be equated with a violation of Turkish public policy.

VI. The Consequence of Public Policy Intervention

Where the requirements of Article 5 are satisfied, the relevant foreign provision is not applied.

The second part of Article 5 then provides that Turkish law is applied where deemed necessary.^[16]

The wording is significant.

The statute does not state that the entire foreign legal system automatically ceases to govern the dispute once one foreign provision conflicts with Turkish public policy.

The intervention is directed toward the problematic provision and its effect in the particular case.

Turkish law may then be used where necessary to resolve the resulting issue.

This structure is consistent with the exceptional character of Article 5: public-policy intervention should not extend further than required to prevent the manifestly unacceptable result.

VII. Assessment: Public Policy as an Exceptional Safeguard

Article 5 performs a necessary but carefully limited function within Turkish private international law.

A conflict-of-laws system cannot operate effectively if the forum rejects foreign law whenever it differs from domestic law. Such differences are inherent in cross-border legal relationships.

At the same time, no legal system is entirely indifferent to the consequences produced within its own legal order by the application of foreign law.

Article 5 reconciles these competing considerations by establishing a high threshold.

The relevant foreign rule must not merely differ from Turkish law. Its application in the particular case must be manifestly contrary to Turkish public policy.

Yargıtay’s jurisprudence reinforces that restrictive approach. In particular, the distinction between mandatory domestic rules and international public policy prevents Article 5 from becoming a general mechanism for preferring Turkish substantive law.

The provision can therefore be understood as an exceptional safeguard rather than an alternative choice-of-law rule.

Its purpose is not to ask whether Turkish law would reach a different or more desirable result.

The relevant question is narrower:

Can the Turkish legal order tolerate the concrete result produced by applying the otherwise applicable foreign rule?

Only where the answer crosses the threshold established by Article 5 should public-policy intervention occur.

VIII. Conclusion

Article 5 of Law No. 5718 establishes one of the principal limits on the application of foreign law in Turkish private international law.

Where Turkish conflict-of-laws rules designate foreign law, difference from Turkish substantive law does not ordinarily justify refusing to apply it.

Public-policy intervention requires something more: the application of the relevant foreign provision to the particular case must be manifestly contrary to Turkish public policy.

The continuity between Article 5 of former Law No. 2675 and Article 5 of Law No. 5718 demonstrates that this safeguard is not a new feature of the Turkish conflict-of-laws system. Its contemporary scope, however, is best understood through doctrine and Yargıtay jurisprudence.

That jurisprudence makes two principles particularly clear.

First, public-policy intervention is limited and exceptional.

Second, not every mandatory Turkish rule forms part of international public policy, and the fact that foreign law provides a different or even less protective substantive solution does not, by itself, justify displacement of that law.

Article 5 therefore protects fundamental Turkish public-policy values while preserving the basic premise of private international law: where Turkish conflict-of-laws rules legitimately designate foreign law, that law should ordinarily be applied.

Notes

1. [1] Law No. 5718 on Private International Law and International Civil Procedure (“MÖHUK”), Art. 2(1). ↩
2. [2] MÖHUK, Art. 5. ↩
3. [3] Ibid. The English formulation in the text is a working translation of the Turkish statutory provision. ↩
4. [4] 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. ↩
5. [5] See generally Yılmaz Altuğ and Mustafa Yasan, “Milletlerarası Özel Hukukta Kamu Düzeni,” in Prof. Dr. Ergun Önen’e Armağan (Marmara Üniversitesi Hukuk Fakültesi), p. 139 et seq.; 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. ↩
6. [6] Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022. ↩
7. [7] Legislative reasoning (madde gerekçesi) accompanying Article 5 of Law No. 5718: “Madde 5 – 2675 sayılı Kanunun 5 inci maddesini aynen karşılamaktadır.” ↩
8. [8] Yargıtay Grand General Assembly on the Unification of Judgments, E. 2010/1, K. 2012/1, 10 February 2012, published in the Official Gazette, 20 September 2012, No. 28417. ↩
9. [9] See Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022, referring to the 2012 unification judgment in its discussion of Article 5. ↩
10. [10] Yargıtay Grand General Assembly on the Unification of Judgments, E. 2010/1, K. 2012/1, 10 February 2012, concerning the scope and restrictive operation of Turkish public policy in the recognition and enforcement context. ↩
11. [11] Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022. ↩
12. [12] Ibid. The Chamber explains that different or less extensive protection under the applicable foreign employment law does not, by itself, establish a violation of Turkish public policy. ↩
13. [13] Ibid. The Chamber treats the understanding of public policy in the conflict-of-laws context as narrower than the understanding of public policy in domestic law. ↩
14. [14] Yargıtay Grand General Assembly on the Unification of Judgments, E. 2010/1, K. 2012/1, 10 February 2012. The judgment concerned the public-policy requirement for recognition and enforcement under MÖHUK Art. 54(c), rather than the direct application of foreign law under Art. 5. ↩
15. [15] Yargıtay 9th Civil Chamber, E. 2022/6529, K. 2022/8022, 16 June 2022. ↩
16. [16] MÖHUK, Art. 5. ↩