A Turkish judge applies the relevant foreign law of their own motion and may ask the parties for help in establishing what it provides. For a lawyer abroad whose client’s position in a Turkish case depends on the law of another country, that sentence sets the whole exercise: the task belongs to the court, and the parties are invited to assist rather than left to prove a statute. Article 2 of the Code on Private International and Procedural Law (MÖHUK, Law No. 5718) says this in five paragraphs, and each one changes what counsel abroad is asked to supply.
Of the court’s own motion, with the parties’ help
Article 2(1) has the judge apply the Turkish conflict of laws rules, and the foreign law competent under those rules, of their own motion, and provides that the judge may ask the parties for help in establishing the content of the competent foreign law. The two halves of that sentence belong together. The court is not waiting to be told which law governs, and at the same time it may turn to the parties for the text and the decisions. What reaches a translator on this route is therefore usually a bundle assembled by counsel abroad rather than a request addressed to a foreign authority.
The contrast with Turkish law
Article 33 of the Code of Civil Procedure (Law No. 6100) says in a single line that the judge applies Turkish law of their own motion. MÖHUK carries the same principle over to the foreign law designated by the conflict rules and then adds the possibility of asking the parties for assistance, which Article 33 does not contain. Article 31 of the Code of Civil Procedure separately allows the judge, where clarification of the dispute makes it necessary, to have the parties explain matters the court finds unclear or contradictory in fact or in law, to put questions and to ask for evidence to be produced.
If the content cannot be established
Article 2(2) provides the fallback: where the provisions of the foreign law relating to the case cannot be established despite all research, Turkish law is applied. That is why the completeness of what the parties supply carries weight. An incomplete bundle is not a neutral outcome, because it moves the case towards a different substantive law. The article says nothing about who bears the cost of the research or in what form the material is to be presented.
A reference onwards, in two fields only
Article 2(3) limits the effect of the foreign conflict rules: where the conflict of laws rules of the applicable foreign law designate another law, that is taken into account only in disputes concerning the law of persons and family law, and the substantive provisions of the law so designated are applied. Outside those two fields the reference is to substantive law and stops there. Article 2(4) applies the same logic to a chosen law, since where the parties are given the possibility of choosing the applicable law the substantive provisions of the chosen law apply unless the parties have expressly agreed otherwise.
States with more than one legal system
Article 2(5) deals with a composite State: where the State whose law applies has two or more territorial units and those units have different legal systems, which regional law applies is determined according to the law of that State and, in the absence of a decisive provision there, the law of the region most closely connected with the dispute applies. For counsel in a federal jurisdiction, that paragraph decides whether the material to be prepared is one body of law or several.
What the Code leaves open
Neither Article 2 of MÖHUK nor Article 33 of the Code of Civil Procedure says in what form the content of foreign law is to be laid before the court. Article 266 of the Code of Civil Procedure, on court appointed experts, provides that an expert cannot be resorted to on matters capable of being resolved by general knowledge or experience or by the legal knowledge the judicial profession calls for, and that persons who have studied law cannot be appointed as experts unless they document a separate expertise outside the field of law. How those provisions bear on establishing foreign law is not settled by their wording, and it is not answered here. Article 1(2) of MÖHUK also reserves the provisions of the international agreements to which Türkiye is a party, and an official channel between States for obtaining such information exists alongside the route described above.
Preparing a bundle on a foreign law
Acte Tercüme translates statutes, regulations, reported decisions and counsel’s own notes on the content of a foreign law into Turkish for filing, and Turkish decisions applying such a law into English or French. Article and paragraph numbers, dates of entry into force and the names of the courts cited are kept exactly as they stand, because the court reads the foreign provision through them.