Introduction

In the previous article on defining the “foreign law” element in Private International Law (“PIL” or “Conflict of Laws”), an example was given of a dispute involving a breach of contract between Y and Z where the contract was made in Turkey (place of contracting), but the terms of the contract require Z’s performance in England (state of the forum). It was determined that if legal proceedings were brought at the forum then the English courts will decide whether there was a breach of contract. Therefore, having accepted that justice might best be served by the application of a foreign law, another question nevertheless presents itself. How can the courts apply foreign law?

 Rules of Private International Law

There are two (2) sets of rules under Turkish PIL laws. Multilateral (absolute or total) PIL rules determine the applicable law, that is either domestic or foreign law, to a particular issue. Turkish PIL rules are usually of a multilateral nature, except in a few instances. The other set of rules is the partial unilateral rules. These determine in which cases domestic law may be applied regarding an issue that involves a foreign element. For instance, Article 11 of the PIL Code of 2007 on the declaration of disappearance or death by absence regulates situations where only Turkish law is applicable.

These rules comprise two (2) components, namely a connecting subject and a connecting factor. These concepts are best illustrated using examples. Article 9(1) of the PIL Code states, “The capacity to have rights and to act is subject to the national law the person concerned.” When broken down, “The capacity to have rights and to act” constitute the connecting subject whereas “…the national law”, that is, the citizenship of the person concerned, is the connecting factor.

A connecting factor defines the relationship which the issue at hand has with a certain legal order. This relationship considers factors such as, inter alia, citizenship, place of domicile, the place where the contract was executed or where a tort was committed. Interestingly, the concept of “connection” defines a legal order or a command stipulated within the PIL rules that determine a connecting subject. As an example, the provision “Ownership and right in rem are subject to the laws of the place where the object concerned happens to be” found in Article 21 of the PIL Code would be broken down in that the “ownership and right in rem” constitute the connecting subject and “...the place where the same thing happens to be” is the connecting factor.

Applying Foreign Law

Recall that in applying foreign law, the foreign law does not become the judge’s law and consequently becomes domestic law; it still remains a foreign law.

Jura Novit Curia

Jura novit curia, commonly translated as “the judge knows the law”, is a fundamental principle of legal procedure. It means that if a court knows the law, the parties are mostly expected to furnish the facts to which there is a dispute and then leave the decision to the courts. However, this principle is not valid in cases where foreign law is applied, but there are some special circumstances that would need to be considered in determining the contents of foreign law. These are discussed below:

1. According to Article 2(1) of the PILC Code, the judge who is required to rule on his own motion pursuant to Turkish laws, applies his own conflict of laws rules of his own motion without the parties to the dispute claiming the application of foreign law. Thus, the judge determines applicable rules pursuant to the provisions of the PIL rules just as he does with the domestic. This considered the official duty of the judge, and when this happens, the jura novit curia is
2. In a court of law, the facts presented by the parties are the only considerations the judge will take into account. Note that connecting factors which may enable the application of foreign law must be asserted and evidenced by the parties concerned.
3. The judge who determines that a foreign law is to be applied is not required to know this law. But, where he/she knows then he/she is entitled to apply it to their motion. Where he/she does not know, they must exercise discretion in searching for them.
4. The correct content of foreign law must be determined correctly and in depth so that the issue at hand can be resolved. Where the foreign law may not be so determined, it is at this point that Turkish law is to be applied.
5. Determining the applicable law and its application is subject to the review of the Court of Appeal.
6. Because a judge has recourse to several sources of information to determine the applicable law, including the European Convention on Obtaining Information Regarding Foreign Law, he/she may rule pursuant to this information having based his/her decision from the validity and completeness of the information obtained.

Conclusion
Courts must consider the type of PIL rules in approaching foreign law issues. These rules are further comprised of a connecting subject and connecting factor, both of which are required to measure an individual’s connection to a particular country so as to establish jurisdiction and determine the applicable law.