Abstract:

Implicit Choice of Law in Contractual Relations Under the Code on Turkish Private International and Procedural Law and Rome I RegulationA contract with a foreign element is in relation with more than one country’s law. In such a situation, it is required to determine which law will be applicable to that contract. This determination can be made by parties’ choice in a subjective way or if parties did not make such a choice, it can objectively be determined by the forum. In accordance with subjective choice of law, parties may make an express choice of law. Or an implicit choice of law may be assumed when a genuine will of the parties can with a reasonable degree of certainty be deducted from the contract and the surrounding circumstances. Issues such as whether parties are entitled to make express choice of law or whether implied choice of law is possible and if it is possible its conditions and also objective determination of applicable law have been regulated under Rome I Regulation on the Law Applicable to Contractual Obligations in the European Union Law and in the Code on Private International and Procedural Law (MÖHUK) in Turkish Law. According to Article 3/1 of Rome I, implied choice of law has been accepted by stating that “The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case.” With regard to MÖHUK, as distinct from former MÖHUK, party autonomy has been emphasized and in accordance with article 24/1/2, implied choice of law has been enabled under the conditions that “it has to be deducted from the provisions of the contract and the circumstances of the case without any uncertainty.”

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