Introduction

Over the years, the problem of how to define the rules of private international law (“PIL” or “Conflict of Laws”) has been evident as some scholars have suggested concentrating on describing and classifying the factual situations where a PIL problem is involved. PIL covers rules that determine the scope and application of domestic rules of various countries in legal disputes containing a foreign element. The foreign elements in the case may be events that have occurred in foreign countries or they may be foreign residence or place of business of the parties involved in the dispute.

In Turkey, the first codification of the PIL rules dates back to 1982 with the Private International Law and International Civil Procedure Code of 1982 (“1982 Code”). The 1982 Code focused on the modernization and codification of the existing PIL system. However, its provisions were inadequate to address the changing and increasing needs in the globalizing world. For instance, adjustments were taking place in PIL in European (“EU”) Law which were in line with the Turkey’s future membership, amendments were needed to provide clarity on ambiguous matters, and determining the new specialized courts that would have jurisdiction on the new rules. Therefore, it was against this backdrop and the need for further development of PIL 1982 that the new PIL (“PIL 2007”) was enacted.

Definition

As previously mentioned, PIL comprises rules that determine the provision of which States from among the provisions of various other States will be applicable in a legal dispute containing a foreign element.

1. Foreign Element

The use of the word “foreign” in connection with PIL emphasizes a feature characteristic of this branch of law. Every country has been built for the purpose of translating the rules of its own law, so how can it ever happen that a legal dispute is governed by foreign law?

Where a PIL problem arises, what happens is that the rules of the foreign law will not replace the rules of the forum (the place where the legal dispute is held), but it will govern the translation process. Suppose there’s a particular dispute involving a breach of contract between Y and Z. The contract is made in Turkey (place of contracting), but the terms of the contract require Z’s performance in England (state of the forum). If legal proceedings were brought then the English courts will decide whether there was a breach of contract by reference to the law of the forum. In determining this, the courts must find a way to bring England’s legal terms to the understanding of the forum by translating into the corresponding terms of Turkey’s laws. This type of translation therefore requires finding a common ground of understanding.

1. Scope

This foreign element can arise in one of three ways: (1) jurisdiction, (2) choice of law and (3) recognition and enforcement of foreign judgments.

1. Judgment

The first point which may have to be decided in a case having foreign elements is whether the Turkish court has power to deal with the case at all. This raises the issue of when foreigners should be able to sue or be sued in the Turkish courts.

1. Choice of Law

If the Turkish court does assume jurisdiction, the next question is whether in deciding the case it will apply the rules of Turkish law or those of a foreign country with which the case has connections.

1. Recognition and Enforcement of Foreign Judgments

According to PIL 2007, foreign court judgements are not directly enforceable in Turkey. A final judgement from a foreign court can only be enforced if competent Turkish court decides that it is enforceable.

Conclusion

Certainly, a foreign element plays an important role in determining the applicable law under PIL rules as it can help to prescribe the conditions under which a court is competent to entertain a particular claim. Therefore, it is only when a foreign element is present in a particular case that PIL rules have a function to perform.