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Overriding Mandatory Rules in Private International Law
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Att. Naciye Yilmaz
In general
There are certain limitations to freedom of contract. Under nation-
al laws, these limitations appear as mandatory rules based on public
policy. Similarly, under international law, even if the parties have made
a choice of law, in case there are overriding mandatory rules, these
rules shall apply despite the choice of law. In this Newsletter article,
overriding mandatory rules shall be assessed especially within the
framework of Article 31 of Act No. 5718 on Private International and
Procedure Law (“MOHUK”).
Definition and Scope
Overriding mandatory rules can be defined as mandatory rules that
are crucial for the countries’ economic, social and political purposes,
and their applications are required for the disputes within their scope
in order to implement the above-mentioned purposes
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.
There are three categories of overriding mandatory rules: overrid-
ing mandatory rules pertaining to lex fori; overriding mandatory rules
pertaining to lex causae; and finally, overriding mandatory rules of a
third country.
Overriding mandatory rules are regulated under Article 6 and
Article 31 of MOHUK under Turkish law. Article 6 of MOHUK regu-
lates overriding mandatory rules of Turkish law, while Article 31 of
MISCELLANEOUS
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Article of July 2015
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Francescakis Ph.,
Quelques précisions sur les “lois d’application immédiate” et leurs rapports
avec les règles de conflits des lois, Rev.Cr.DIP, 1966/I(p. 1-18), p. 13 in
Hatice ÖZDEMİR
KOCASAKAL,
Sözleşmelere Uygulanacak Hukukun MÖHUK m. 24 Çerçevesinde Tespiti ve
Üçüncü Devletin Doğrudan Uygulanan Kuralları, MHB Yıl 30, No. 1-2, 2010, p. 71.