5718 Sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Çerçevesinde Franchise Sözleşmelerine Uygulanacak Hukukun Tayini
Çalışmamızda, ulusal ve uluslararası piyasalarda ürün ve hizmetlerin dağıtımının sağlanması amacıyla ortaya çıkan franchise sözleşmeleri tanımlanarak; franchise kavramı hususunda genel bilgiler verilmiştir. 5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun çerçevesinde franchise sözleşmelerine uygulanacak hukukun tayinine ilişkin incelemeler yapılarak; franchise sözleşmelerine uygulanacak hukukun tayini araçlarından hukuk seçimi müessesesi sonuçlarıyla birlikte ele alınmıştır. Çalışmanın devamında ise objektif bağlama kuralına ilişkin açıklamalara yer verilerek; objektif bağlama kuralının temelinde yer alan karakteristik edim ve karakteristik edimin tayini hususları ele alınmıştır. Bunlara ilaveten fikri mülkiyet haklarına ilişkin hükümler içermekte olan franchise sözleşmelerine uygulanacak hukukun tespiti incelenmiştir.
Determination of the Applicable Law on Franchise Contracts within the Frame of the Code on Private International Law and International Procedural Law No. 5718
In our study, general information is given about the franchise concept by introducing franchise contracts that came to existence to ensure the distribution of products and services in national and international markets. Choice of law concept that is one of the instruments for determination of the applicable law on franchise contracts is considered together with the results by making an examination regarding applicable law to franchise conracts within the frame of the Code on Private International Law and International Procedural Law No. 5718. As for continuation of the study, characteristic performance and determination of the characteristic performance questions that partake in basis of objective choiceof-law rules are considered by giving place to examinations relating objective choice-of-law rules. In addition to these, the determination of the applicable law on franchise contracts that contains provisions related to intellectual property rights is examined.
As a result of the rapid development of international trade, the number of franchise contracts, that have been linked to more than one country, has increased at the same rate. Therefore, the determination of the applicable law to international franchise contracts will be of great importance. The applicable law to the franchise contracts that involve cross-border element will be determined by the conflict-of-laws method. Provisions concerning the determination of applicable law to obligations arising from contracts involving crossborder elements are stipulated in the article 24 of the Code on Private International Law and International Procedural Law No. 5718 (Code of PIL). In accordance with conflict-of-laws rules, parties may choose the applicable law to the contract. According to the article 24 of the Code of PIL, choice-of-law agreement might be made either explicitly or implicitly. It is also possible to make a choice-of-law agreement applicable to certain part(s) of a contract. Choice-of-law agreements are not subject to any form requirements. Parties might make a choice-of-law agreement either before or after conclusion of contract. Choice-of-law agreements might be concluded by parties at any time. However choice-of-law agreements concluded after conclusion of contract shall be valid, without prejudice to the rights of third parties. In case of a franchise contract involving cross-border element, choice of applicable law by parties before occurance of any dispute, will be very important in terms of ensuring legal security and predictability. Currently, there is no international agreement on franchising for the countries involved. For this reason, the work of organizations, such as ICC and UNIDROIT, play an important role in the development of international franchise law. The Model Franchising Agreement by ICC and the Code of Ethics, created by the International Franchise Association (IFA) for international franchise agreements are important as lex mercatoria resources. ICC Model Franchising Agreement or Code of Ethics, created by IFA, might be selected to be applied to franchise contracts by parties. However, this choice does not constitute a choice-of-law agreement before Turkish courts. Where lex mercatoria resources are selected by parties, they shall be regarded as a part or provision of contract. Lex mercatoria resources, included in contract through incorporation, shall be applicable to extent that they comply with the mandatory rules of the law applicable to contract, which is determined in accordance with article 24 of the Code of PIL. There is no special provision either in the Code of PIL or in another code of Turkish law about the law applicable to international franchise contracts. Therefore, according to the general acceptance in the Turkish literature, the law applicable to international franchise contracts is subject to the general rule relating to the contracts in article 24 of the Code of PIL. 5718. However, there is also another opinion in the literature, that franchise contracts are contracts for intellectual property rights and that they are subject to the rule laid down in article 28 of the Code of PIL. In our opinion, intellectual property rights serve only the economic establishment of franchise contracts but subject of franchise contracts is too extensive to be limited to intellectual property rights. For these reasons, the law applicable to international franchise contracts should be determined in accordance with article 24, in parallel with the general acceptance in the literature. Accordingly, where parties have not made a choice-of-law agreement, the party undertaking the characteristic performance shall be determined in order to determine the applicable law in accordance with article 24 of the Code of PIL. There is neither any legal provision nor any consensus in the literature which expressly states the party undertaking the characteristic performance in franchise contracts. Since the component -which is (in our opinion) the main reason for a franchise contract- is the brand value, that has been created and developed by franchisee, characteristic performance is the act of franchisee. Therefore, while determining the applicable law to franchise contracts in accordance with article 24, where parties have not made a choice-of-law agreement, franchisee should be accepted as the party undertaking the characteristic performance of franchise contract. In a franchise contract, that contains provisions relating to intellectual property rights; it will be more accurate to determine applicable law to franchise contract by applying the provisions of article 24 and article 28 to the relevant parts of the franchise contract. Thus, in cases where parties did not made a choice-of-law agreement, acceptance of franchisee as the party undertaking the characteristic performance shall ensure application of the same law either article 24 or article 28 is applied. In the article 4(1) of the Rome (I) Regulation, which is one of the regulations of the European Union, the law applicable to franchise contracts is determined by a clear and definite rule. Thus, the discussion on the characteristic performance of franchise contracts has ended. We are of the opinion that it would be appropriate to have a similar regulation in terms of article 24 of Code of PIL or to regulate it in a new special provision in order to determine the applicable law to international franchise contracts clearly. In addition, since franchise contract is a kind of framework contracts, the mutual rights and debts of parties shall be regulated in general terms of such contracts. Details shall be determined by complementary agreements between parties during the contract period. As an example, if a product franchise contract is concluded between parties, franchisee and franchisor will have to make a sales contract in order to make these products available during the contract period. When a dispute arises from the franchise contract regarding sale of products, the dispute may stay within the scope of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Since Turkey is a party to the CISG, unless otherwise agreed, in disputes falling within the field of application of the Convention, the Turkish courts shall apply the provisions of the CISG.
