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I NTERNAT I ONAL COMMERC I AL LAW
27
Application of Jurisdiction Agreements which Authorize
Foreign Courts and the Parties’ Choice of Foreign Law by the
Turkish Court of Appeal
*
I. Jurisdiction of Turkish Laws
According to Article 47 of Law No. 5718 on International Private
Law and Procedural Law, parties may agree that a foreign court will have
jurisdiction to resolve disputes which carry a foreign element and arise
from a private law relationship. Pursuant to Article 47/1:
Jurisdiction Agreements and its Limits
ARTICLE 47- (1) The parties may agree that a foreign
court will have jurisdiction to resolve any disputes
which carry a foreign element and arise from a private
law relationship, where the domestic courts do not have
exclusive jurisdiction. Such an agreement must be made
in writing. Such a case may only be brought before a
competent Turkish court, provided that the foreign court
has deemed itself incompetent, or no plea of jurisdiction
have been raised in the Turkish court.
In cases where a lawsuit is brought before Turkish courts despite a
jurisdiction agreement, contradictory judgments have been delivered by
the 11
th
Civil Chamber of the Court of Appeal.
In one of its decisions given when the prior Law No.2675 on
International Private Law and Procedural Law was in force, the 11
th
Civil
Chamber of the Court of Appeal decided on the non-competence of the
Turkish court of general jurisdiction by stating that,
“…It is clear from the
scope of the file that the claimant is a foreign entity and that the dispute in
question carries a foreign element; in such disputes, provided they not to
related to exclusive jurisdiction and public order, a jurisdiction agreement
is applicable; in the contract between the respective parties, a foreign court
is deemed to have jurisdiction; under the given circumstances, refusal of
jurisdiction is appropriate in terms of the respective procedure and law”.
The same chamber, in another decision during the same period,
approved the Turkish court’s judgment which held that it has jurisdiction
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Article of February 2010