Abstract:

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.

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