399 / 522
The second condition within this framework is the concept of the
close connection between the third country’s law and the given case.
Since there is no clarity for the cases of close connection, the court’s
discretion shall be applied
5
.
Rome Convention and Rome I Regulation
The source of Article 31 of MOHUK is Article 7/1 of the Rome
Convention. The related article of the Rome Convention is as follows:
“
When applying the law of a country under this Convention, effect may
be given to the mandatory rules of the law of another country with
which the situation has a close connection, if and insofar as, under the
law of the latter country, those rules must be applied, whatever the law
may be that is applicable to the contract. In considering whether to
give effect to these mandatory rules, regard shall be had to their nature
and purpose, and to the consequences of their application or non-
application.
”
The Rome Convention was replaced by the Rome I Regulation a
short while after the entry into force of MOHUK. The Rome I
Regulation contains in its Article 9 the definition of the overriding
mandatory provisions since there were doubts between scholars during
the application of Rome Convention that related to the difference
between the mandatory rules and overriding mandatory rules
6
. As per
Article 9/1 of the Rome I Regulation, overriding mandatory rules are
“
provisions, the respect for which is regarded as crucial by a country
for safeguarding its public interests, such as its political, social or eco-
nomic organization, to such an extent that they are applicable to any
situation falling within their scope, irrespective of the law otherwise
applicable to the contract.
”
Conclusion
As stated above, mandatory rules are the general provisions that
limit the freedom of contract. Their appearing in international law is
due to national laws. Within this framework, it should be noted that
MISCELLANEOUS
383
5
ÖZDEMİR KOCASAKAL,
p. 77.
6
ÖZDEMİR KOCASAKAL,
p. 79.