Turkish Private International Law

Article 2 – Application of Foreign Law

Article 2 of the Turkish private international law regulates how the Turkish judge has to apply foreign law. The foreign law does not become domestic law, it still remains foreign.

In paragraph 1 it is explicitly written that the judge has to apply the Turkish conflict of law rules and to find the applicable foreign law according to these rules ex officio. In case the judge isn’t sure which regulations, statues, rules of the applicable foreign law he should choose, he can also ask the parties for supporting him in this issue. Due to the fact that the judge cannot know every foreign law the rule Jura Novit Curia is not valid in the conflict of laws. The parties also have the possibility and the right to check the foreign law statutes.

Paragraph 2 implies that Turkish law has to be applied if the judge can’t ascertain the specific rules of the foreign law regarding to the case. This rule should guarantee to speed up proceedings.

Paragraph 3 defines that in certain incidences the applicable foreign law demands the application of another law. This law should only be exerted in the scope of law of persons and family law. Otherwise the judge has to adopt Turkish law.

Paragraph 4 permits the parties to choose the law they already had agreed before excepts the parties changed their mind and are against the former choice. Due to that the applicable foreign law is the chosen law by the parties.

Paragraph 5 regulates the case that the applicable foreign law contains two or more laws, e.g. in Germany the federal law, state law and communal law. The law of the region which has to be applied should be ascertained regarding to the law of that state. Are there no provided regulations in the law of that state the law of the region which has the closest connection to this incident shall be applied. The Turkish private international law from 1982 had not contained this stipulation. The private international law from 2007 closed this gap.

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