Depecage: Application of the Laws of Different States to Different Parts of the Same Cause of Action, Especially Analysing the Appearances in Law No. 5718 on Private International and Procedural Law
In disputes involving a foreign element, subjecting the relevant transactions or relations to the law of a single state with which they are most closely connected is preferable to prevent conflicts of law rules of different states and to maintain the balance and integrity of the dispute itself. However, contrary to expectations, the application of the laws of different states to different parts of the same cause of action, both due to the interests protected in private international law and within the framework of the freedom of will granted to the parties, is a frequent situation. Depecage, which can be expressed as the splitting of the applicable law, which emerged as a result of the tort theory of ‘most closely connected law” in the American conflict of laws revolution, finds its conceptual equivalent in Turkish law, especially in the form of partial choice of law. However, the concept of depecage is much more comprehensive. This study examines the concept of depecage and reveals its applicability and relevance in the context of Law No. 5718 on Private International and Procedural Law.
Depecage: Aynı Hukuki İlişkiden Doğan Farklı Hukuki Kategorilere Farklı Devlet Hukuklarının Uygulanması, Özellikle 5718 Sayılı MÖHUK’taki Tezahürlerinin İncelenmesi
Yabancılık unsuru içeren uyuşmazlıklarda, farklı devletlere ait hukuk kurallarının çatışmalarını önlemek ve uyuşmazlığın kendi içerisindeki denge ve bütünlüğünü korumak amacıyla ilgili işlem veya ilişkilerin, en sıkı ilişki içerisinde oldukları tek bir devlet hukukuna tâbi tutulmaları tercih edilir. Ancak hem milletlerarası özel hukukta korunan menfaatler gereği hem de taraflara tanınan irade serbestisi çerçevesinde aynı hukuki ilişkiden doğan farklı hukuki kategorilere farklı devlet hukuklarının uygulanması, tahmin edilenin aksine, sıklıkla karşılaşılan bir durumdur. “En sıkı ilişkili hukuk”a dair haksız fiil teorisi ile Amerikan kanunlar ihtilafı devriminin bir sonucu olarak ortaya çıkan uygulanacak hukukun parçalanması olarak ifade edilebilecek depecage, Türk hukukunda özellikle kısmi hukuk seçimi şeklinde kavramsal karşılığını bulmaktadır. Oysa depecage kavramı, çok daha geniş kapsamlı olup işbu çalışmanın amacı, depecage kavramının 5718 sayılı MÖHUK özelinde incelenerek uygulanabilirliğini ve yerindeliğini ortaya koymaktır.
The term ‘depecage’ refers to the application of the laws of different states to different parts of the same cause of action. Depecage may arise when the law of State A is applied to the contract’s formal validity, the laws of States B and C to the contracting parties’ capacity to act, and the law of State D to the contractual status in a contractual dispute. Again, the application of different laws to each part constituting the tortious act, for example, the application of different laws to the illegality of the action, damage, and compensation also constitutes depecage. While the law of State A is applied to the merits of the dispute, the application of the law of State B, which is the law of the judge, to the same dispute due to the public order intervention of the judge's law or overriding mandatory rules will also constitute depecage.
Depecage is essentially a product of changes in the field of conflict of laws in the United States. According to II. Restatement of the Law, the most fair result in disputes involving a foreign element can only be achieved by applying the law most closely connected to the dispute and the parties. Therefore, instead of fixed connecting factors such as the place of the tort or the place of the foundation of the contract, the application of the law that is most closely connected to the dispute will provide a fairer and more flexible solution. On the other hand, depecage constitutes a situation contrary to the understanding of the equity principle of international private law that dominates the Continental Law System. This is because the conflict of laws rules are not concerned with the situation that arises as a result of its application, nor with whether the rules of law applied to the concrete case provide the fairest result in this system. Rather, the purpose of the conflict of laws rules is to indicate the law of the country with which the dispute and its parties are most closely related. In American tort law, a hybrid understanding of equity has developed. Accordingly, on the one hand, it is aimed to apply the law most closely connected to the dispute, and on the other hand, it is aimed to ensure that the result of the application of the relevant rule is the most equitable. In this context, the Continental Law System prefers to move away from traditional and fixed connecting factors only by exception clauses.
In Turkish law, depecage, as a partial choice of law, is limited to contractual relations. In many provisions of Law No. 5718, depecage may arise automatically as required by law, as a result of the application of the judge, or as a result of the will of the parties (voluntary).
A distinction should be made between the appearance of depecage arising from the law, the practice of the judge, and its voluntary application. This is because the application of depecage arising from the law, for example, is always inevitable because the elements of form and capacity in contractual relations are subject to different laws. In fact, the law permits splitting in the applicable law by foreseeing the application of different laws to different categories. In this sense, one of the objectives of this study is to demonstrate that, contrary to the general belief, in disputes involving a foreign element, the dispute is not essentially subject to a single law, but that different state laws are already applied to the different legal categories of the dispute.
With regard to voluntary depecage, which is manifested as a partial choice of law, distinguishing between freedom and necessity is important. Partial choice of law is possible in both contractual and noncontractual relations in accordance with the freedom of choice of law. However, the desired legal relationship should be subject to a single law, and in this sense, legal harmony and justice should be realised between the obligations arising from the same legal relationship. Especially due to the developing international commercial relations, the contract will be split and its different parts will be subject to different legal systems. Similarly, in today’s globalised and digitalised world, considering that new types of special torts are emerging every day, the same situation is also present for non contractual relations. In this framework, we agree with some of the opinions in the doctrine that partial choice of law cannot be restricted within the scope of freedom of contract without causing artificial and unwarranted divisions in the law to be applied in the contract. However, this situation should be avoided in practice.