Private International Law

I. Public International Law

*** Consulate, UN Conventions, ECHR etc.

State vs state transcations…
II. Milletlerarası Özel Hukuk – (Private International Law)
*** marriage with a foreign national, international transport, import-export,
adoption of a foreigner, international sale contracts….
 PIL regulates private law issues having «foreign element» (yabancılık
unsuru)!

International Commercial
If you buy a ticket and Lawtoas
travel from Bursa subcategory
Istanbul, this does notof
have
foreign element. If you fly from Istanbul to London, this transaction has
Private International
«foreign element» Lawis(PIL)
because England another country.

Turkish PIL Act-5718: Article 1- (1) This Act regulates the law applicable to private
law transactions and relations that contain a foreign element, the international
jurisdiction of the Turkish courts, and the recognition and enforcement of foreign
judgments. (2) Provisions of international conventions to which the Republic of
Turkey is a signatory are reserved.
 Private International Law
Conventions:
PIL Act article 1/p.2: Provisions of international conventions to which the Republic
of Turkey is a signatory are reserved.
-----It means that first, you need to look at international conventions!!!!
*International Transport (Passenger, Cargo etc.): Montreal air), CMR (road-higway)
….
**Export-import international sale contracts: CISG
*** Adoption: The Hague Convention on the Protection of Children and Co-
operation in Respect of Intercountry Adoption ….
 CISG:
United Nations Convention on Contracts for the International Sale of Goods
*Entered into force on January 1, 1988.
** It aims to provide a modern, uniform and fair regime for contracts for the
international sale of goods. Thus, the CISG contributes significantly to introducing
certainty in commercial exchanges and decreasing transaction costs.
***Some topics are excluded…
*** TURKEY (1 August 2011)
….
 International Sale Contracts & CISG:
PIL Act article 1/p.2: Provisions of international conventions to which the Republic
of Turkey is a signatory are reserved.
** international sale contracts for goods are regulated by CISG..
 CISG:United Nations Convention on Contracts for the International Sale of
Goods
https://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf
 92 state parties including Turkey:
http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.htm
 Application and Rules of the CISG:
Scope of Application:
Article (1):
This Convention applies to contracts of sale of goods between parties whose places
of business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law, lead to the application of the law of a
Contracting State.
Direct application (a)-------------indirect application (b)
 Application and Rules of the CISG:
Scope of Application:
Article 1/p. 3:
Neither the nationality of the parties nor the civil or commercial character of the
parties or of the contract is to be taken into consideration in determining the
application of this Convention!!!
 Application and Rules of the CISG:
This Convention does not apply to sales:
(a) of goods bought for personal, family or household use, unless the seller, at any
time before or at the conclusion of the contract, neither knew nor ought to have
known that the goods were bought for any such use;
(b) by auction;
(c) on execution or otherwise by authority of law;
(d) of stocks, shares, investment securities, negotiable instruments or money;
(e) of ships, vessels, hovercraft or aircraft;
(f) of electricity
 Examples for the CISG’s application:
* Both Germany and Turkey are parties to the CISG! A company is in Hamburg-
Germany and B company is in Istanbul- Turkey.
**If A and B conclude a sale agreeement for sale of patatoes, CISG shall apply!
Direct application of CISG…
However if companies A and B conclude a sale agreeement for sale of aircarft (hava
aracı), CISG shall not apply!! See article 2/(e)
***CISG provides «substantive rules» (maddi hukuk kuralları)!, not conflict of laws
(kanunlar ihtilafı). It looks like a uniform-universal code of obligation….
 Direct and Indirect application of CISG:
q Both Germany and Turkey are parties to the CISG! A company is in Hamburg-
Germany and B company is in Istanbul- Turkey. If A and B conclude a sale
agreeement for sale of patatoes, CISG shall apply! Direct application of CISG
because Article 1/a says so..
q UK has not been party to the CISG but Turkey has. Suppose that you import
patatoes from London to Istanbul. There is a legal dispute and you bring the case
before a Turkish court. If the applicable law under Turkish PIL Act -5718 is Turkish
Law then CISG shall aplly!!! Because article 1/b allows such application…
****You cannot rely on Article 1/a because UK and Turkey must be parties to CISG
together!!!
 To include or exlude/Opt-out or Opt –
q
in?
Parties’Autonomy is very essential in international commercial contracts..
q Therefore without looking at Article 1/a (direct application) and Article 1/b
(indirect application), parties may freely choose to apply CISG (opting-in) or
exclude the CISG (opting- out)!!!
Opting – in: UK and Turkmenistan are not parties to the CISG. However Company A
seated in London and company B in Ashgabat may decide to apply CISG by
agreement! Normally CISG will not apply due to Article 1/a…
Parties are free to choose substantive law applicable to their contract…See article
24/p.1 of Turkish PIL Act (5718)

«Submitting all disputes to the CISG is not enough, a national law may be required
to fill in gaps. CISG is NOT a national law system like Swiss Law, Turkish Law etc.
 To include or exlude/Opt-out or Opt –
q
in?
Therefore without looking at Article 1/a (direct application) and Article 1/b
(indirect application), parties may freely choose to apply CISG (opting-in) or
exclude the CISG (opting- out)!!!
Opting – out: Both Turkey and France are parties to the CISG. However Company A
seated in Paris and company B in İzmir may decide on NOT to apply CISG in their
agreement! Normally CISG shall apply due to Article 1/a…
***In conclusion, if parties desire to exclude CISG; they MUST do that explicitly
(açıkça) in the contract!!! In the absence of such clear exclusion, CISG shall apply
against their will!!!

Sample clause:
«Any dispute arising out of this Sale Contrract shall be solved by Swiss Law
excluding the CISG (1980)!» ---------------YES, opt-out
«Any dispute arising out of this Sale Contrract shall be solved by Swiss Law!»…NO
Opt-out or Opt –in?PROs and CONs
q If parties OPT OUT the CISG, they can apply their own contractual rules. This
provides FLEXIBILITY!
q If parties OPT IN the CISG, this will provide CERTAINTY because the Convention
provides very useful subtantive rules that are foreesable...
q If parties DO NOTHING, the CISG may apply under Artciles 1/a or 1/b…It may not
also apply if 1/a and 1/b requirements are not met….
What does the CISG regulate?
CISG provides «substantive rules» (maddi hukuk kuralları)!, not conflict of laws (kanunlar ihtilafı). It looks like a uniform-
universal code of obligation…

Article 4:

This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and
the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not
concerned with:

(a) the validity of the contract or of any of its provisions or of any usage;

(b) the effect which the contract may have on the property in the goods sold.

Article 5

This Convention does NOT apply to the liability of the seller for death or personal injury caused by the goods to any
person!!!

EXAMPLE:

Both Turkey and France are parties to the CISG. Suppose that Company A seated in Paris and company B
in İzmir enter into a sale agreement for export-import of wheat (buğday).

If A argues that the agreement is invalid because it is not in written form, this conflict regards
«formation of contract» and falls within scope of the CISG!!

If A argues that the agreement is invalid because it was threatened (ikrah, korkutma) to sign the
 What does the CISG regulate?
***Article 4 is insignificant (yetersiz) and misleading because there are other topics
regulated by the CISG in other articles:
Article 8:
(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted
according to his intent where the other party knew or could not have been unaware what that intent was…
(Interpretation of Contract)

Article 29
(1) A contract may be modified or terminated by the mere agreement of the parties. (Termination of Contract)

EXAMPLE:

Both Turkey and France are parties to the CISG. Suppose that Company A seated in Paris and company B
in İzmir enter into a sale agreement for export-import of wheat (buğday).

If A wants to terminate the sale contract, parties may do so in accordance with the article 29 of the
CISG!!

****legal capacity (hak ve fiil ehliyeti ) and representation (temsil yetkisi) are also NOT within the
scope of the CISG!!!!
 GAPs (boşluklar) in the CISG?
*If a topic is not regulated in the CISG, how can a national Court or an arbitral tribunal settle the
conflict???

Article 7

(1) In the interpretation of this Convention, regard is to be had to its international character and to the need
to promote uniformity in its application and the observance of good faith in international trade.

(2) Questions concerning matters governed by this Convention which are not expressly settled in it are
to be settled in conformity with the general principles on which it is based or, in the absence of such
principles, in conformity with the law applicable by virtue of the rules of private international law.

**Analogy (kıyas), general principles, private international law are 3 methods to solve GAPs..

EXAMPLE: Handellsgericht Zurich, Switzerland, No. HG930138.U/HG93, September 9, 1993, CLOUT No.
97:
The case involved an Italian seller of furniture who sued the Swiss buyer for payment of the purchase price. The buyer
claimed that the furniture was defective (ayıplı mobilya), but neither accepted the seller's offer to remedy any defects nor
paid the purchase price. The court held that it is implicit (açık değil) in the Convention that the buyer must prove the
existence of defects and that it give notice of lack of conformity within a reasonable time (Arts. 7(2), 38 and 39
CISG). According to the buyer's obligation to prove non-conformity of goods with the contract provided in Arts. 38 and 39
CISG, the court found that the buyer is also obliged to submit evidence to which he refers. In view of the court's finding
that the buyer had failed to meet this burden of proof, it was held that, even if the buyer had the right to rely on lack of
conformity of the goods, he had lost that right. For this reason the court ordered the buyer to pay the purchase price
 GAPs, lacunae iuris (hukuki boşluklar) in the CISG?
*GAPs in the CISG are either

1. Internal Gap (Dahili Boşluk) or

2. External Gap (Harici Boşluk)

** If the GAP is internal, first we need to look at the CISG again to solve the issue! If the GAP is external,
in other words, is not concerning the CISG at all then we need to find solution outside of the CISG..

EXAMPLE:

Internal Gap: See Handellsgericht Zurich, Switzerland, No. HG930138.U/HG93, September 9, 1993,
CLOUT No. 97

External Gap: Set-off (takas) or statute of limitation (zamanaşımı) is not regulated in the CISG, it is an
EXTERNAL GAP and subject to the rules of private international law ----in Turkey, 5718 PIL Act…
 Declarations/çekinceler: form and scope of application!
Article 96

A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by

writing may at any time make a declaration in accordance with article 12 that any provision of article 11,
article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by
agreement or any offer, acceptance, or other indication of intention to be made in any form other than in
writing, does not apply where any party has his place of business in that State.

Article 11

A contract of sale need NOT be concluded in or evidenced by writing and is not subject to any other
requirement as to form. It may be proved by any means, including witnesses. (şekil serbestisi kuraldır).

Declaration is also possible for excluding the article 1/b (indirect application of the CISG) ---USA!

http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html
 CISG & Turkish PIL’s Article 24
*What is relation between the CISG and Article 24 of Turkish PIL (MÖHUK)?

Turkish PIL Act-5718: Article 1- (1) This Act regulates the law applicable to private law transactions and
relations that contain a foreign element, the international jurisdiction of the Turkish courts, and the
recognition and enforcement of foreign judgments. (2) Provisions of international conventions to
which the Republic of Turkey is a signatory are reserved.

The Applicable Law for Contractual Obligation Relations ,Article 24-

(1) The law explicitly designated by the parties shall govern the contractual obligation relations. The designation which
can be concluded without hesitation from the provisions of the contract or is understood from the affairs of the case is
also valid.

(2) The parties may decide that the designated law shall be applied totally or partially to the contract.

(3) The designation of the applicable law can any time be realized and amended by the parties. The designation of law
after the conclusion of a contract is retrospectively effective with the condition that the rights of third parties' stay
reserved.

(4) If the parties have not explicitly designated any law, the relation arising from the contract will be governed by the
most connected law to the contract. This law is accepted to be the law of the habitual residence (at the moment of the
conclusion of contract) of the debtor of the characteristic performance; the law of the workplace or (in absence of a
workplace) the law of the residence of the abovementioned debtor in case the contract is concluded as a result of
commercial and professional activities; in case that the debtor has multiple workplaces, the law of the workplace which is
the most tightly related to the contract. Nevertheless considering the state of all affairs if there is a law more tightly
related to the contract, that particular law shall govern.
 CISG & Turkish PIL’s Article 24/1 -24/4
*What is relation between the CISG and Article 24 of Turkish PIL (MÖHUK)?

1. Suppose that you have a sale contract which has the following article: «Any dispute arising out of this
Sale Contrract shall be solved by Swiss Law!»

Since both Turkey and Switzerland are parties to the CISG and the CISG is not clearly opted out by the
parties, the CISG shall also apply. But the CISG DOES NOT cover everything. Therefore Swiss Law is
choosen by the parties under the article 24/p.1 of the Turkish PIL + the CISG shall apply
simultaneously(birlikte) by Turkish courts.

2. Suppose that you (in Istanbul) have a sale contract for furniture from Madrid, but you did not choose
any national law to govern disputes. The furniture you bought came defective and you sue the Seller in
Turkey. The CISG shall still apply under the article 1/a (Spain and Turkey are parties) but the CISG DOES
NOT cover everything remember! There is not choosen law by the parties, so we need to look at article
24/4 of the Turkish PIL. This is a COMMERCIAL activity, therefore the law of the workplace of debtor of
the characteristic performance (Seller –Spain) which is Spanish Law shall also apply
simultaneously(birlikte) with the CISG by Turkish court.

What is characteristic performance?: This performance determines/characterizes the contract, it is more

important…In sale contract, the Seller has characteristic performance; not the Buyer who just gives
money!!