Consumer Contracts in Private International Law
Zeynep Derya TarmanUnder international private law, the issue of consumer protection bears significance regarding conflict of laws rules and international jurisdiction. Turkish Private International Law and International Civil Procedure Code no. 5718 (PIL Code) stipulates the relevant choice of law rules pertaining to consumer contracts under Art.26. On the other hand, the international jurisdiction of Turkish courts over consumer contracts are stated under Art.45 of PIL Code. In determining the international jurisdiction of Turkish courts over consumer contracts, PIL Code refers to Art.26. Hence, the scope of Art.26 regarding the types of consumer contracts it encompasses, bears a great significance both regarding the applicable law and international jurisdiction of Turkish courts. Under the first section of this study, the scope of the Art.26 will be determined. Following this, under the second section international civil procedure rules pertaining to consumer protection are examined. In this context, the legal characteristics of international jurisdiction rules under Art.45 will be explained; the validity of choice of court agreements in matters relating to a consumer contract will be examined; and finally, the recognition and enforcement of foreign judgments regarding consumer disputes will be discussed.
Milletlerarası Özel Hukukta Tüketicinin Korunması
Zeynep Derya TarmanMilletlerarası özel hukuk alanında tüketicinin korunması meselesi, kanunlar ihtilafı kuralları ve milletlerarası yetki olmak üzere iki noktada önem arz etmektedir. 5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun (MÖHUK) yabancılık unsuru içeren tüketici sözleşmelerine uygulanacak hukuku m.26 altında düzenlemektedir. Tüketici sözleşmelerinden doğan uyuşmazlıklarda Türk mahkemelerinin milletlerarası yetkisi içinse MÖHUK m.45 özel bir yetki kuralı içermektedir. MÖHUK m.45 hangi tür tüketici sözleşmelerinin bu madde kapsamına girdiğini belirlerken MÖHUK m.26 kapsamına giren sözleşmelere atıf yapmıştır. Bu nedenle, MÖHUK m.26’nın kapsamının belirlenmesi hem uygulanacak hukuk hem de yetki kuralları açısından önem taşır. Bu çalışmanın ilk bölümünde, MÖHUK m.26’nın uygulama alanı tespit edilecek; ikinci bölümünde milletlerarası usul hukuku alanında tüketiciyi koruyan hükümlere ilişkin açıklamalara yer verilecektir. Bu kapsamda, MÖHUK m.45’teki yetki kuralının niteliği, tüketicinin taraf olduğu yetki anlaşmalarının geçerliliği ve yabancı mahkemede açılan dava sonucu verilen kararın Türkiye’de tanınması ve tenfizi konusu ele alınacaktır.
Turkish Private International Law and International Civil Procedure Code no. 5718 (PIL Code), stipulates both choice of law and jurisdiction rules on matters relating to consumer contracts, which aim at protecting the consumer. While Article 26 of PIL Code determines the applicable law, Article 45 states the international jurisdiction of Turkish courts over consumer contracts. According to Art. 26/1 of PIL Code, the law of the consumer’s habitual residence shall govern the consumer contract in the absence of choice of law. To ascertain which types of contracts fall within the scope of this provision, Art. 26/1 initially lays down a general definition for consumer contracts. Accordingly, consumer contracts are such contracts that lack a professional or commercial aim and are concluded in order to acquire goods, service or credit. Following that, under the second paragraph of Art. 26, three alternative conditions are listed for a contract to be characterized as a consumer contract. Accordingly; (a) the contract should be concluded upon a specially sent invitation or an announcement, and the required acts should be performed by the consumer in the abovementioned state, or (b) the other party or its representative should receive the consumer’s orders in the abovementioned state, or (c) in case the relationship is a sales contract, the seller should organize a trip in order to persuade the consumer to purchase and the consumer should travel to another country and give his order therein. Thus, for a contract to be characterized as a consumer contract under Art. 26 of PIL Code, the definition under Art. 26/1 is not conclusive and the relevant contract shall fulfill one of the conditions set forth under Art. 26/2. Finally, law applicable to package tours, carriage contracts and the contracts in which it is required to provide the service to the consumer in a country different than the location of his/her habitual residence (such as contracts pertaining to a stay at a hotel or a language teaching course at a different country) are excluded from the scope of Art. 26/2 and are subjected to Art. 24 which regulates the general rule for the law applicable to contracts. With regards to the international jurisdiction of Turkish courts over consumer contracts, Art. 45 states a special jurisdiction rule. Accordingly, regarding the disputes arising from the consumer contracts specified in Art. 26, according to the choice of the consumer, the Turkish courts in places where the consumer’s domicile or habitual residence or the counter-party’s work place, domicile or habitual residence is located are competent. On the other hand, regarding proceedings initiated against the consumer, the competent court is the court of the place where the consumer has his/her habitual residence. The wording of Art. 45 causes a debate in Turkish legal doctrine as to whether Art. 45 refers only to the consumer contracts within the general meaning of Art. 26/1 or whether the conditions set forth under Art. 26/2 shall also be required for a contractual dispute to be considered within the special jurisdiction of Art. 45. In light of comparative law and in line with the objective of protecting the weaker party, it is shown under this paper that the latter view should be adopted. Another controversy over Art. 45 is related to the legal characteristics of this special jurisdiction rule, as whether it introduces an exclusive jurisdiction or not. It is argued under this paper that the jurisdiction rule under Art. 45 should not be interpreted as an exclusive jurisdiction rule. This debate also triggers two issues, namely the validity of choice of court agreements and the recognition and enforcement of foreign judgements, as one of the non-recognition grounds is that the judgement is given on a matter falling within the exclusive jurisdiction of the Turkish courts. In relation to choice of court agreements, according to Art. 47/2 of PIL Code, the competency of courts specified in Art. 45 cannot be removed by the parties’ agreement. The debate over this provision is mainly focused on the question as to whether this provision enables the parties to provide the consumers with alternative forums along with those specified under Art. 45 or if this provision renders all the choice of court agreements relating to consumer contracts invalid. In light of comparative law and in line with the objective of protecting the weaker party, it is shown under this paper that the former view should be adopted. The main cause for different legal interpretations in the doctrine in matters relating to the international jurisdiction of Turkish courts over consumer contracts is the wording under the provisions of Art. 26, 45 and 47/2 of the Turkish PIL Code; and amendments to such provisions should be considered.