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MOHUK sets forth giving effect to the overriding mandatory rules of
another country’s law, under the condition that this law is closely relat-
ed to the contract.
Difference between Overriding Mandatory Rule and Public
Policy
Overriding mandatory rules are related to social and economic pol-
itics of the relevant country, serving the general public interest, with-
out regard to private law norms. These rules usually serve the related
external commerce, economic, defense, environmental, and social pol-
itics of the country. These provisions are of such material importance
to the country that they require strict implementation thereof.
Therefore, even if a foreign law governs a given
inter partes
relation,
these overriding mandatory rules shall apply. Similarly, when public
policy is concerned, a local provision may be preferably applied based
on the positive effect of public policy, even when a foreign law is
applicable
2
. However, when an overriding mandatory rule is con-
cerned, such rule shall absolutely be applied, regardless of the results;
whereas, the results are taken into consideration for the implementa-
tion of public policy. In other words, when a foreign law is applicable
in a given case, public policy shall only intervene if a result arises that
would be unacceptable within the framework of the national laws
3
.
Overriding Mandatory Rules of a Third Country
Pursuant to Article 31 of MOHUK, “
While applying the law that
the contractual relationship is subject to, the effect of the overriding
mandatory rules of another country’s law may be recognized on the
condition that they are closely related to the contract. The intent,
nature, content and effects of these provisions are respected in decid-
ing whether to recognize and whether to apply them.
”
The first condition to give effect to another country’s overriding
mandatory rules is that this rule should be applied, irrespective of the
applicable law, to the contract
4
.
382
NEWSLETTER 2015
2
Ergin NOMER,
Devletler Hususi Hukuku, Beta, Edition 19, 2011, p. 163.
3
NOMER,
p. 183.
4
ÖZDEMİR KOCASAKAL,
p. 77.