Application of Foreign Law In Turkey
Article 2 of PILA (Turkish Private International Law) stipulates that the judge applies the foreign law when PILA (Turkish Private International Law) makes reference to it. As understood from the close interpretation of Article 2, the application of the foreign law shall not be necessarily put forward by the parties. However, where parties wish to put forward their choice of law, this must be brought to the attention of the judge. For instance, the parties are allowed to choose the applicable law in the field of contract law. In this case, the parties will rely on the applicability of the chosen law.
A judge can obtain assistance from the parties regarding the determination of foreign law’s content, as indicated in PILA (Turkish Private International Law) . Furthermore, PILA states that the judge applies the foreign law by its own motion. However, if the judge does not have sufficient knowledge about the foreign law, the judge may ask for assistance from the parties in this respect. At the first step, priority is given to determine the content of the foreign law in accordance with the judge’s personal legal background and his own research. The judge should apply the foreign law in accordance with the provisions determined by him. Moreover, the judge is obliged to apply the foreign law as it is applied in the respective foreign country. Besides the accurate application of foreign law, the effect of the provision which is propounded by the parties to the judge must be discussed. The judge is not bound by the foreign law’s provisions which are put forward by the parties. This applies also in cases where the parties agreed on the content of the foreign law. According to Article 2 of PILA, the parties undertake the obligation to help the judge. The judge also has the obligation of ex officio examination, and, in cases where foreign law is applied, may ask for help from the party who will benefit from the application of that foreign law. However, asking for help from the parties on foreign law does not amount to a burden of proof. Since the foreign law rules are not accepted as fact, the special procedural rules on evidential burdens regulated in the Civil Procedural Code do not apply in such cases. The only goal of the judge is to obtain accurate and sufficient information about the content of the foreign law that he/she is going to apply in the specific case. The judge can take help from the parties present during the proceedings, but simultaneously, the judge is not bound by the claim of either one of the parties. In other words, if a judge is uncertain about the information presented, he /she is at liberty to conduct his/her own research. Any court judgment rendered without asking for help or without applying the European Convention on Information On Foreign Law will be likely reversed by the Court of Cassation.
The Turkish Court of Cassation examines whether or not the determination of the applicable law is correct in accordance with PILA (Turkish Private International Law) . This examination scrutinizes the procedure used in ascertaining the applicable law. In other words, the court examines whether Turkish law (lex fori) or the law of another legal system is applicable to the case. This analysis is conducted in the light of PILA’s conflict of law rules. If national law rules are violated, any such violation is grounds for appeal to the Court of Cassation. Concerning the content of the foreign law, the Turkish Court of Cassation also has the authority to examine the accuracy of application of foreign law. Since the Court of Cassation pursues a goal to serve justice based on the facts, the misapplication of foreign law can be a subject for review. Accordingly, the misapplication of the foreign law is also within the scope of the appeal court’s examination.