Alman Federal Mahkemesi’nin 17.10.2019 Tarihli Kararı Işığında Milletlerarası Yetki Anlaşmalarının İhlal Edilmesinin Tazminat Sorumluluğu Doğurması Hakkında Bir İncelemeMelis Avşar
Alman Federal Mahkemesi’nin 17.10.2019 tarihli kararına konu olay, Bonn mahkemeleri lehine münhasır nitelikte bir yetki anlaşması bulunmasına rağmen, taraflardan birinin ABD mahkemelerinde dava açması sonucu, diğer tarafın yüksek tutarlarda dava masrafı ve avukat ücreti ödemek zorunda kalması nedeniyle uğramış olduğu zararın tazmini talebine ilişkindir. Mahkemece bu davada, milletlerarası yetki anlaşmasının ihlal edildiği kabul edilmiş ve borçlar hukuku kapsamında bir tazminat ödenmesine karar verilmiştir. Bu karar, Kıta Avrupası hukuk sistemine dahil devletler bakımından emsal olabilecek niteliktedir. Kararda, kabul edilen gerekçeler Türk hukuku bakımından da ileri sürülebilecek niteliktedir. Münhasır nitelikteki milletlerarası yetki anlaşmasıyla taraflar seçilen mahkemede dava açma (prorogasyon) ve seçilmeyen diğer devlet mahkemelerinde dava açmama (derogasyon) borcu altına girmektedir. Milletlerarası yetki anlaşmasının hukuki niteliğini, usul hukuku sözleşmesi olarak kabul etme görüşü eskiden hâkim olsa da yeni içtihatlarla birlikte maddi hukuk sözleşmesi niteliğine sahip olduğu da kabul edilmektedir. Yetki anlaşmasının ihlal edilmesi, yani seçilmeyen bir devlet mahkemesinde bir dava açılması halinde oluşacak tazminat sorumluluğuna Türk hukukunda TBK madde 112’nin uygulanması gerekecektir. TBK madde 112’de aranan şartlar; bir borcun ihlal edilmiş olması, zarar meydana gelmiş olması, kusurlu olunması ve illiyet bağı bulunmasıdır. Yetki anlaşmasının ihlalinin de tazminat sorumluluğuna yol açabilmesi için bu unsurların mevcut olması gerekir.
An Examination of the Liability for Compensation for the Breach of Choice of Court Agreements: In the Light of the German Federal Court Decision of 17.10.2019Melis Avşar
In the case subject to the decision of the German Federal Court (BGH) dated 17.10.2019, there was an exclusive choice of court agreement in favor of the Bonn courts, because of one of the parties filed a lawsuit in the US courts, the other party had to pay high amounts of litigation costs and attorney fees. In the case, the BGH accepted that the international choice of court agreement was violated, and it was decided that compensation be paid in accordance with the provisions of the law of obligations. This decision could set a precedent for the states included in the Continental European legal system. The reasonings accepted in the decision are of a nature that can also be asserted in terms of Turkish law. With the exclusive choice of court agreement, the parties are obliged to file a lawsuit in the chosen court (prorogation) and not to file a lawsuit in other non-chosen state courts (derogation). Although the dominant approach was accepting of the legal nature of the international choice of court agreement as a procedural law contract in the past, the new jurisprudence confirmed that the choice of court agreement also has a substantive law character. Article 112 of the TCO will have to be applied to the compensation liability under Turkish law in case of a breach of the choice of court agreement. The conditions sought in article 112 of the TCO are as follows: a breach of an obligation, occurrence of damage, existence of a fault and the presence of a causal link. These elements must be present for the breach of the choice of court agreement to lead to a liability for compensation.
The US company and the German company, both operating in the field of telecommunications, decided in their contract that any disputes arising from the contract would be heard exclusively in the Bonn courts. However, as a result of a contractual dispute, the US company filed a lawsuit against the German company in the District Court of Washington. In this case, the US court gave a decision of lack of jurisdiction and dismissed the case for this reason. Thereupon, in the lawsuit filed in the Bonn court, a compensation for the damages arising from the litigation costs (the American rule of cost) and attorney fees due to the lawsuit filed in the US was requested. In the 2019 German Federal Court (BGH) decision, the claim for compensation for the damages arising from the breach of the choice of the court agreement was accepted within the framework of the German Civil Code (BGB) § 280.
The 2019 BGH decision is quite innovative in terms of accepting the breach of the choice of court agreement, and leads to compensation liability in the field of substantive law (obligations law). The decision has the impact of setting a precedent both in terms of the legal systems in Continental Europe and Turkey. In addition, a clear jurisprudence was presented in the decision in terms of the legal nature of the choice of court agreement, the law applicable to the choice of court agreement and the interpretation of the choice of court agreement. The legal nature of the choice of court agreement was accepted as a substantive law contract in terms of the obligation not to file a lawsuit in the non-chosen court. Furthermore, regardless of the legal nature of the choice of court agreement, if the interpretation of the party wills indicates that the parties enter into an obligation of not to file a lawsuit against each other in a nonchosen court, the liability must arise.
The court accepted that the liability for compensation would be subject to the BGB § 280, that regulates liability for compensation in the case of the breach of contract. In Turkish law, this issue is regulated in article 112 of the Turkish Code of Obligation (TCO). Therefore, the examination of the applicability of the legal grounds in the 2019 BGH decision in terms of Turkish law should be examined within the framework of this article. According to the conditions provided in article 112 of the TCO, the act of filing a lawsuit in the non-chosen court will constitute a breach of contract.
The second condition provided by this article is the occurrence of damage. If the non-chosen court where the lawsuit was filed gives a decision of lack of jurisdiction, the litigation costs and attorney fees incurred must be calculated. However, if the non-chosen court, where the lawsuit was filed, found itself having jurisdiction and making decisions on the merits, revealing the occurrence of damage would be quite difficult. In accordance with the international comity, in this case, finding that damage has occurred and may constitute an interference with the sovereignty of the states. The third condition sought in article 112 of the TCO is the existence of a fault. The plaintiff will be liable for the damage incurred unless he can prove that he was not at fault in filing a lawsuit in the non-chosen court. The plaintiff cannot prove that he is not at fault by claiming that his lawyer recommended filing a lawsuit in the nonchosen court. The last condition sought in TCO article 112 is that there should be a causal link between the damage and the act of the breach of the contract.
The compensation claim arising from the breach of the choice of court agreement is subject to a ten-year limitation period stipulated in article 146 of the TCO. This period will begin to run from the date of filing a lawsuit in the non-chosen court.