European and Turkish Private International Law – Background and Methodology
Duygu Damar
The methodological approach of the European legislator and the Turkish legislator in adopting private international law rules differs substantially due to differences in their underlying motives. As a candidate state, Turkey must comprehend and be aware of these differences both in motivation and in methodology. The aim of this paper is to compare the motivational and methodological aspects in private international law regulations in Turkey and in the European Union.
Private International Law, (Turkish) Code on Private International Law and International Civil Procedure, European regulations in the field of Private International Law.
Milletlerarası Özel Hukuk alanındaki yasama çalışmalarının temelinde yatan saiklerdeki farklılıklara bağlı olarak, Avrupa ve Türk yasakoyucularının bu yasama çalışmalarında benimsedikleri metodoloji de birbirinden esaslı şekilde ayrılmaktadır. Avrupa Birliği’ne üye devlet konumundaki Türkiye, saik ve metodolojideki bu farklılıkları dikkate almalıdır. Bu çalışmanın amacı, Türkiye ve Avrupa’daki Milletlerarası Özel Hukuk alanında yürütülen yasama çalışmalarındaki saik ve metodolojik farklılıkları karşılaştırmaktır.
Milletlerarası Özel Hukuk, Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun, Milletlerarası Özel Hukuk’a İlişkin Avrupa Birliği Düzenlemeleri.
A. INTRODUCTION
As the historical development of Turkish law – including Turkish private law – shows, Turkey is one of the countries where legal transplantation was quite successful. In the early years of the Turkish Republic, the fundamental aim was a revolutionary transformation of the legal system that formed the basis of the subsequent legal evolution1. Throughout this evolution, the Turkish legal system effectively aligned itself with the developments made in the European countries, and in the past 20 years particularly that of European Union (EU) law. Moreover, Turkey – as a candidate state to the EU – has adopted a national program for the adjustment of its law to the European law2. However, the development of Turkish private international law and its codification provide an important exception to this general state of affairs.
The methodological approach of the European legislator and the Turkish legislator in adopting private international law (PIL) rules differs substantially due to differences in their underlying motives. As a candidate state, Turkey must comprehend and be aware of these differences both in motivation and in methodology. Furthermore, special attention must be given to the ongoing discussions and criticism of the method employed by the European legislator – especially with regard to PIL regulations. The aim of this paper is to compare the motivational and methodological aspects in PIL regulations, rather than a comparison of the specific PIL regulations3.
B. CODIFICATION AND HARMONIZATION
The first codification of the PIL rules in Turkey dates back to 1982. Before the first Code on Private International Law and International Civil Procedure, since repealed, was adopted in 19824, there were several, although insufficient5 conflict-of-laws rules spread across different codes and acts6. An identification of the need for, and the first initiative for a modern codification was launched in 1975 by the Private International Law Chair and by the Private International Law Research Centre of the Faculty of Law of Istanbul University7. The preliminary draft prepared by this initiative formed the basis of the following discussions and for the draft prepared by the Ministry of Justice which subsequently became the first Code on Turkish PIL in 19828. Thus, the underlying motives of the PIL Code of 1982 focussed on a modernization and codification of the existing PIL system, not a radical change through transplanting a foreign code, nor adjusting Turkish law to European law. Despite this, international and regional developments were taken into consideration during the preparation of this Code9.
