I. Applicable Law for Contracts for the Sale of Movable Goods with a Foreign Element
Pursuant to Article 1/1 of the Code of Private International Law and Civil Procedure ("CPILCP"), the law applicable to transactions and relations with a foreign element shall be determined by the provisions of this code. However, pursuant to Article 1 / 2 of the CPILCP, the provisions of international agreements are reserved.
The United Nations Convention on Contracts for the International Sale of Goods (“CISG”), to which Turkey is a party, may be applicable to transactions and relations relating to the sale of movable goods. If there is a situation that falls within the scope of application of the CISG, the provisions of the CISG shall take precedence over the relevant provisions of the CPILCP.
A. Applicable Law Pursuant to the Provisions of the Law on Civil Procedure
The applicable law to contractual relations is set out in Article 24 of CPILCP. The parties may choose the applicable law in such contractual relations according to the relevant provision. If there is no choice of law, then according to the relevant provision; the law of the habitual residence of the debtor of the characteristic performance at the time of the conclusion of the contract, if contracts established as a result of commercial or professional activities the law of the place of business of the debtor of the characteristic performance or if those are not available the law of the domicile of the characteristic performance obligor shall apply. In order to determine the applicable law, it must first be determined which party's performance in the sales contract is the characteristic performance. In contracts for the sale of movable goods, the performance of one party is money, while the performance of the other party is certain movable goods. In this case, it should be accepted that the characteristic performance in such a contractual relationship is the said movable goods. Therefore, in the absence of a choice of law between the parties, the law of the habitual residence of the party whose performance is the movable goods in question at the time of the conclusion of the contract, if contracts established as a result of commercial or professional activities the law of the place of business of the same person or if those are not available the law of the domicile of the same person shall apply.
B. The Question of Priority between the Law referred to by the Law on Civil Procedure and the CISG Provisions
In order to determine whether the CISG or the law referred to by the CPILCP will be applied in a legal case, the field of application of the CISG should be examined. Article 1 of the CISG defines the scope of application of the CISG and the exceptions to this provision are specified in Article 2 and Article 3. Considering the aforementioned provisions, if there is a situation that falls within the scope of application of the international convention in question, the provisions of the CISG shall take precedence over the provisions of the CPILCP.
As mentioned in the previous paragraph, Article 1 of the CISG contains provisions on the scope of application of the convention. Pursuant to Article 1/1 of the CISG, this convention shall apply to contracts for the sale of goods between parties whose places of business in different states, if these states are contracting states or the rules of private international law refer to the law of a contracting state. Pursuant to Article 1/2 of the CISG, the fact that the parties have their places of business in different states shall not be taken into account unless it is evident from the contract or from the negotiations or information given at or before the conclusion of the contract. Furthermore, pursuant to Article 1/3 of the CISG, neither the nationality of the parties, nor whether they are merchants, nor whether the contract is of an ordinary or commercial nature, shall be taken into account in the application of this Convention.
II. International Jurisdiction of Turkish Courts in Contracts for the Sale of Movable Goods with a Foreign Element
The international jurisdiction of Turkish courts should be determined in accordance with the relevant provisions of the CPILCP. Regarding this issue, there is a general provision under Article 40 of the CPILCP and special provisions under Articles 41-46 of the CPILCP. If there is no issue that falls within the scope of the special provisions, then the general provisions shall apply. Contracts for the sale of movable goods do not fall within the scope of the special regulations. Therefore, the general regulation will be applicable.
In the general rule of jurisdiction in Article 40 of the Code of Civil Procedure, it is stated that "the international jurisdiction of Turkish courts shall be determined by the jurisdictional rules of domestic law." and this rule refers to the regulations on jurisdiction in domestic law. Therefore, in a dispute evaluated within this scope, the authorized court will be determined in accordance with the relevant legislation, especially the CCP.
Pursuant to Article 6 of the CCP, the general authorized court is the court of the place of residence of the defendant real or legal person on the date the lawsuit is filed. In addition, pursuant to the special jurisdiction rule under Article 10 of the CCP, lawsuits about contractual relationships may also be filed before the court where the contract will be performed. The special jurisdiction under the CCP, does not abolish the general jurisdiction, and in the event that there is both a court with general jurisdiction and a court with special jurisdiction for a dispute; both courts will be the authorized court for the trial of the case.
Therefore, in disputes arising from contracts for the sale of movable goods, both the court of the place of residence of the defendant real or legal person at the time of filing the lawsuit and the court of the place of performance of the contract will be authorized.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.