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despite the existence of a jurisdiction agreement by stating that,
“…although
the incident in question occurred in the Pacific Ocean, the jurisdiction
agreement authorizing a foreign court may not abolish the international
jurisdiction of Turkish Courts that are generally, and exclusively competent;
Turkey has not become a signatory of the London Convention; thus, the
lawsuit in question has been brought before the Turkish Courts as the
forum of the place of performance and thus competent in accordance with
Articles 22 and 23 of the Law on International Private Law and Procedural
Law, and Articles 9 and 10 of the Law of Civil Procedure”.
As there are contradictory decisions from the same Chamber, the
ambiguity was clarified by the new provision of Law No. 5718 which
provides that the Turkish courts may assume jurisdiction only in two
exceptional cases. These cases are (i) if the competent foreign court
decides on its non-competence for some reason; or (ii) the respondent does
not object to the jurisdiction of the Turkish court.
In line with that, in a more recent decision, following the adoption
of Law No. 5718, the 11
th
Civil Chamber of the Court of Appeal decided
that,
“As it has been agreed that disputes which arise from bills of lading,
subject to the lawsuit in question, would be resolved in the Naples court
and Italian Law would be applicable in the settlement thereof, and that
an issue of jurisdiction, or public order is not in question, a foreign court
may accordingly be deemed competent in such disputes carrying a foreign
element. Thus, it is supposed to dismiss the lawsuit in terms of non-
jurisdiction, and to have the decision stating that the Naples courts are the
competent courts approved
”.
II. Applicable Law
According to Article 24 of Law No.5718 on International Private Law
and Procedural Law, the choice of law of the parties to the disputes arising
out of contractual relations carrying a foreign element must be respected.
Pursuant to the said Article:
Applicable law to the contractual relations
ARTICLE 24- (1) A contract shall be governed by the law
chosen by the parties. The choice must be expressed or
demonstrated with reasonable certainty by the terms of
the contract or the circumstances of the case. By their