Public policy, on which a consented definition on international and even local platforms is ever absent, plays a hugely important role in myriad areas of law.
Today,
it is almost impossible to find a concept that is unable to depict a clear
perspective, but plays a crucial role during interaction of different
jurisdictions other than the public policy. Strikingly, while a consented definition
on international and even local platforms is ever absent, importance of public
policy can be observed in myriad areas of law.
However,
one could identify some of the eloquent attempts to describe public policy. For
instance, latter is often denoted as values, principles and responsibilities
within social, moral, commercial themes that a State attaches its protective
power.
Moreover, violation of public policy signifies the consequences to which the
core values of fairness, justice and public morals of a society would strongly
object.
In another inclusive remark, public policy
consists of rules that has gained legitimacy over the time throughout
collective subconscious of a nation by safeguarding fundamental interests of
it.
Having
explained that, in this brief summary, selected dimensions of public policy
pursuant to Turkish International Private and Procedural Law (‘IPPL’) and practices
of the Supreme Court (‘Yargıtay’) will be brought under the spotlight.
According
to Article 54 of the IPPL,
among other conditions, the competent court shall rule on the enforcement
provided that the decree of the foreign court is not plainly contrary to Turkish public policy. While inspecting the
foreign judgment, an extensive discretion is conferred on the judge.
The
ex-officio duty of the competent court to determine conditions for enforcement cannot
be extended as constituting a substantial review of the foreign judgment. Article
54 orders the judge to only take ‘conclusion section’ of the foreign judgment
into account and bars him from examining and verifying methodology of the
foreign court’s application of its own legislation.
At
this junction, the question as to whether or not a foreign judgment which lacks
a reasoning section plainly violates Turkish public policy has occupied the
agenda of the numerous chambers of the Supreme Court for more than a decade. In
its groundbreaking decision
of 2012, General Assembly for the Unification of Judgments of Yargıtay has
concluded the debate.
Relevant
and illuminating parts of the decision follows:
‘‘Public policy, by its nature, is
a changing concept, which adapts itself to time, place and the subject matter.
Despite explanations provided by scholars and court decisions, it does not have
a definition even within long-established jurisdictions. Nevertheless, this
legal concept, whose scope is a burdensome task to determine, may be described
as the rules which protect fundamental values and structure of the society... The
area that public policy intervenes is vast and can be expanded by
interpretation… Indeed, the consequences of recognizing and enforcing foreign
judgments in Turkey must be evaluated by determining their compliance with the
Turkish public policy as oppose to evaluating substantive law and its
application procedure by the foreign court… It is evident that reasoning is in
strong relation with public policy. Reasoning of a court decision not only rationalizes
the judgment in democratic constitutional states, but also scrutinizes efficiency
of the judge with its sense of reality. Reasoning is binding… Reasoning must be
inclusive and reflect a pluralist outlook… Approaches of Private International
Law and Civil Procedure Law are different from each other… One of the
conditions that is required for enforcement of the foreign court decisions is related
with the Turkish public policy. Pursuant to Article 54.c of the Law No:5718, in
order for a foreign court decision to be enforced, it must not carry a
provision that violates Turkish public policy. Here, violation of Turkish
public policy is possible only if the conclusion section or one of its provisions
plainly breaches Turkish public policy. Therefore, reasoning of a foreign
judgment does not have any power to affect the enforcement procedure… To comply
with Turkish public policy, the presence of a reasoning, in the context of the Turkish
Procedural Law is not necessary in a foreign judgment… Therefore, a foreign
judgment cannot be considered in plain violation with Turkish public policy
only because it does not bear its reasoning.’
Despite
the reform-minded and progressive approach depicted above, it must be mentioned
that practice of the Supreme Court still consists of certain restrictions and
conservative manner. For instance, particular matters of family law, including
guardianship and adoption, severance pay, along with change of name conflicts
are by default considered in strict relation with the Turkish public policy.
Ultimately, public policy is an immeasurably
important actor in private international law which has a big potential to
determine the outcome of an enforcement procedure in a jurisdiction and ability to
possess disguise itself under different areas of law. For more information on
precedents of Turkish courts regarding public policy, please do not hesitate to
contact us.
Yılmaz Altuğ, Amme lntizamı ve
Tesirleri, Ankara Üniversitesi Siyasal Bilgiler Fakültesi Dergisi, Cilt:
XXVII, Sayı: 3, Doç Dr. Cem Sar'a Armağandan Aynı Baskı, p.365