Issues Arising from Uncertainty of Chosen Court in Choice-of-Forum Agreements Conferring Jurisdiction on Foreign Courts

In Turkish law, Article 47 of Turkish Code on Private International Law and International Civil Procedure no.5718 (CPIL) allows parties to agree on foreign courts to resolve disputes arising out of contractual relationships with foreign elements. Although there's no such stipulation in Art.47, the Court of Cassation demands that a foreign court(s) chosen by the parties must be determined specifically in the choice-of-forum agreement. However, the Court has not revealed reasonable or justified reasons for their decisions. More recently, the Court has based its decisions only on Art.17-18 of Turkish Code on Civil Procedure which determines the legal regime of choice-of-forum agreements in Turkish courts. More importantly, even the most recent decisions in the Court regarding the application of this condition in question contradicts each other. This situation pushes the parties, who believe that the competence of Turkish courts have been abolished and possible disputes will be heard before foreign courts by relying on Art.47 of CPIL, to the uncertainty. Moreover, it can also be argued as to what extent it's appropriate to seek for this condition in terms of the purpose and function of choice-of-forum agreements.