Abstract
FDL claims are filed by tort victims residing in host countries against parent companies residing in home countries. Therefore, FDL claims have, per se, an international nature, as they concern more than one legal jurisdiction and thus bear a foreign element. For this reason, it is important to assess the private international law aspects of the matter to determine the competent jurisdiction and applicable law in these specific disputes. The desired outcome of a successful FDL claim would be to address the liability of the parent company before the courts of the home country, which would apply the home country’s laws. In fact, the identification of the applicable law and jurisdiction is important in FDL cases, as they affect legal and practical feasibility. The courts of developed countries are generally acknowledged as being able to provide legal certainty, with more reliable legal infrastructure, better accommodation for class actions and legal aid, which are all beneficial to FDL claimants. The applicable law is important to determine whether there is a tort law in place for claims against MNCs and the conditions for liability, while the jurisdiction is important to check if the relevant courts have previously handled a transnational tort claim and what the procedural requirements of that country would be.
As the subject matter of FDL claims is the alleged responsibility of the parent company for damages arising due to its transnational subsidiary’s operations, it would be important to determine the place where the tortious act took place and the place where the damage occurred in order to assess the questions on applicable law and jurisdiction. This approach requires a substantive legal analysis before deciding on the private law aspects of the claim, which constitutes the reason why this chapter comes after the substantive legal analysis of FDL.
The analysis presented in this chapter will be made in light of the two scenarios: (1) a foreign parent company being sued for damages arising from the operations of its Turkish subsidiary, and (2) a Turkish parent company being sued for damages arising from the operations of its foreign subsidiary. To this end, this analysis will firstly be focused on the question of jurisdiction, to determine which country’s courts would have jurisdiction to hear the FDL claim in a potential scenario, and secondly, the question of which applicable law would apply in those cases will be assessed. The main point of focus will be Turkish law, with comparative analysis under the EU Acquis and the US law, thereby introducing certain suggestions for reform under Turkish private international law with a hope to better address FDL claims.
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Notes
- 1.
Van Den Eeckhout (2017), p. 41.
- 2.
Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters: OJ L 304 (30.10.1978). The non-member states may also join the Brussels Convention. Within scope of the negotiations held with EFTA states, Lugano Convention (Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16.09.1988: OJ L 319 (25.11.1988)), which basically bears the same regulations as the Brussels Convention is signed.
- 3.
For detailed information on the reasons and results of the incorporation of Brussels Convention provisions onto the EU regulation please see Sakmar and Ekşi (2002), pp. 728–735.
- 4.
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters: OJ L 351/21 (20.12.2012). As per Article 66 of the Brussels I Recast, its provisions will apply only to “legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015”. Thus Brussels I provisions will continue to apply to all legal proceedings instituted before this date.
- 5.
Roorda and Ryngaert (2016), p. 787.
- 6.
- 7.
Okpabi & Ors v Royal Dutch Shell Plc & Anor [2018] EWCA Civ 191.
- 8.
Friday Alfred Akpan v Royal Dutch Shell Plc and Shell Petroleum Development Co Nigeria Ltd. (District Court of The Hague, 337050/HA ZA 09-1580, 2013).
- 9.
Article 7 “Jurisdiction over counter actions, joinders and interventions” of Dutch Code of Civil Procedure. The English text of the code is available at http://www.dutchcivillaw.com/civilprocedureleg.htm.
- 10.
Cambou (2015), p. 353.
- 11.
Weller and Pato (2018), p. 407.
- 12.
Isidro (2016), p. 78.
- 13.
Aristova (2018), p. 10.
- 14.
Palombo (2019), p. 278.
- 15.
Baughen (2015), p. 173.
- 16.
Young v Anglo-American South Africa Limited [2014] EWCA Civ. 1130.
- 17.
Baughen (2015), p. 173.
- 18.
Isidro (2016), p. 81.
- 19.
Motto & Ors v Trafigura [2011] EWCA Civ 1150.
- 20.
Lungowe v Vedanta [2019] UKSC 20 (10.04.2019).
- 21.
UK Supreme Court, Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) (10.04.2019), https://youtu.be/_s7YvSnX63w.
- 22.
Aristova (2018), p. 14.
- 23.
Vava v Anglo American South Africa Ltd. [2013] EWHC 2131 (QB).
- 24.
Young v Anglo American South Africa Ltd. [2014] EWCA Civ 1130.
- 25.
“(…) the judge did note that Mr Guy Philipps QC, counsel for AASA, “did not dispute” that AASA would not make an important decision such as, for example, to dispose of shares in a subsidiary company such as AOL, “otherwise than in accordance with [AA’s] wishes”.” (para. 20).
- 26.
Aristova (2018), p. 18.
- 27.
Aristova (2018), p. 19.
- 28.
See the Opinion of Advocat General Léger in Roche Nederland and others (C-539/03 - 08.12.2005) for the optional status of the special jurisdiction rule in tort claims under Brussels Convention (paras. 10-11).
- 29.
Magnus and Mankowski (2016), p. 276. See also ECJ judgment dated 29.07.2019, numbered Case C-451/18 in Tibor-Trans v DAF Trucks NV cartel case, where the ECJ stated that “the place where the harmful event occurred is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of two places” (para. 25).
- 30.
Handelskwekerij G. J. Bier B.V. v Mines de Potasse d’Alsace S.A. (preliminary ruling requested by the Gerechtshof of The Hague) Case 21/76 (30.11.1976). The case was handled under the provisions of the then in force 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ L 299, 31.12.1972). Having said that, Article 5/3 of the 1968 Brussels Convention bears the same provision on jurisdiction in tort claims with Article 7/2 of Brussels I Recast, as it refers to ‘the place where the harmful event occurred’, with the difference that it does not bear any reference to the ‘the place where the harmful event may occur’ as the Brussels I Recast.
- 31.
Van Den Eeckhout (2017), p. 42.
- 32.
Magnus and Mankowski (2016), p. 277.
- 33.
Magnus and Mankowski (2016), p. 303.
- 34.
Weller and Pato (2018), p. 400, fn. 11. In the opinion of Van Den Eeckhout, the jurisdiction regulated under Article 7/2 of Brussels I Recast constitutes an additional ground of jurisdiction to the general rule under Article 4/1 of Brussels I recast (in conjunction with Article 63/2), which addresses the courts of the place of the defendant’s domicile, thus the courts of the parent company’s headquarters (i.e. the home country courts) (Van Den Eeckhout 2017, pp. 42–43).
- 35.
ECJ judgment dated 07.03.1995, numbered C-68/93 in Fiona Shevill et al. v Presse Alliance SA concerned claim for damages due to the publication of a defamatory newspaper article, where the ECJ held that the place where the tortious act was committed was the place of the company’s headquarters.
- 36.
Magnus and Mankowski (2016), p. 282. See also ECJ judgment dated 29.07.2019, numbered Case C-451/18 in Tibor-Trans v DAF Trucks NV cartel case, where the ECJ referred to its settled precedents stating that “the term ‘place where the harmful event occurred’ cannot be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually occurring elsewhere, can be felt. Consequently, it stated that this notion cannot be construed as including the place where the victim claims to have suffered financial damage following initial damage arising and suffered by him in another State” (para. 28).
- 37.
Magnus and Mankowski (2016), p. 287.
- 38.
Magnus and Mankowski (2016), p. 339.
- 39.
The proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM/2010/0748 final - COD 2010/0383, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52010PC0748.
- 40.
Having forum non conveniens regulated under Brussels I Recast would deprive the FDL plaintiffs of a significant advantage against the ATS, under which forum non conveniens can be invoked (Van Den Eeckhout 2017, p. 48).
- 41.
Owusu v Jackson C-281/02 [2005] EUECJ.
- 42.
It would be worth to consider that the English courts’ approach to forum non conveniens doctrine under Brussels Convention may change due to Brexit, resulting in the UK’s exit from the scope of Brussels Convention along with other EU legislation. In such a case, English courts may reject jurisdiction over a parent company where there is a more appropriate forum for seeing the dispute; except when the claimant lacks financial and litigation strength in the natural forum, where English courts might apply a kind of forum necessitatis and accept jurisdiction. For further details, see Ahmed (2022), pp. 27–28.
- 43.
- 44.
Magnus and Mankowski (2016), p. 109.
- 45.
Weber and Baisch (2016), pp. 682–683.
- 46.
Baughen (2015), p. 175.
- 47.
Spiliada Maritime Corp. v Cansulex Ltd [1987] 1 AC 460.
- 48.
- 49.
Eroğlu (2008a), p. 106.
- 50.
Bantekas (2004), p. 342.
- 51.
Connelly v RTZ [1997] UKHL 30 (24th July, 1997).
- 52.
Lubbe and Others v Cape Plc., [2000] UKHL 41.
- 53.
Choudhury (2005), p. 55.
- 54.
Isidro (2016), p. 80.
- 55.
Lungowe v Vedanta [2017] EWCA Civ 1528.
- 56.
For further information on this decision see Aristova (2017), http://conflictoflaws.net/2017/court-of-appeal-allows-in-england-claims-against-english-based-multinational-for-overseas-human-rights-violations/.
- 57.
Lungowe v Vedanta [2019] UKSC 20 (10.04.2019).
- 58.
European Convention on Human Rights, as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16; Rome, 4.XI.1950.
- 59.
Lubbe v. Cape Plc. [2000] UKHL 41.
- 60.
Enneking (2009), p. 919.
- 61.
For the official Italian version see: Legge Federale Sul Diritto Internazionale Privato del 18 dicembre 1987 (Stato 1 Aprile 2017), https://www.admin.ch/opc/it/classified-compilation/19870312/index.html.
- 62.
European Court of Human Rights, Naït-Liman v Switzerland [GC], no. 51357/07, 15 March 2018.
- 63.
COM (2013) 554: Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
- 64.
Nwapi (2014), p. 33.
- 65.
Roorda and Ryngaert (2016), pp. 807–808.
- 66.
Roorda and Ryngaert (2016), p. 785.
- 67.
Roorda and Ryngaert (2016), p. 808.
- 68.
- 69.
28 U.S.C. § 1350; it was embedded in a statute that was enacted in 1789.
- 70.
28 U.S.C. § 1350; Alien’s Action for Tort.
- 71.
De Schutter (2010), p. 170.
- 72.
Haider (2012), p 1365.
- 73.
Fielding (2008), pp. 516–517.
- 74.
Webb (2013), p. 155.
- 75.
Filártiga v Peña-Irala 630 F.2D 876 (2D Cir. 1980).
- 76.
- 77.
Fielding (2008), p. 517.
- 78.
Union Carbide/Dow lawsuit (re Bhopal), Business & Human Rights Resource Centre, https://www.business-humanrights.org/en/latest-news/union-carbidedow-lawsuit-re-bhopal/.
- 79.
Bhopal Plant History and Ownership, Union Carbide Corporation, https://www.bhopal.com/bhopal-plant-history-ownership.html. It is worth noting that United Carbide Corporation has distinguishably tried to show that the construction phase of the plant was almost fully undertaken by Indian firms and workers, under the supervision of UCIL, and that UCC was not involved in the design, construction and operation of the plant.
- 80.
Union Carbide Corporation became a wholly owned subsidiary of Dow Chemical Company in 2001.
- 81.
Enneking (2012), p. 94.
- 82.
Krishnan (2020), p. 13.
- 83.
- 84.
Krishnan (2020), pp. 4–5.
- 85.
Enneking (2012), p. 95.
- 86.
Krishnan (2020), p. 6. The mentioned cases include Sajida Bano v Union Carbide Corporation and Warren Anderson, No. 99 Civ. 11329 (JFK), Janki Bai Sahu v Union Carbide Corporation and Warren Anderson, No. 04 Civ. 8825 (JFK) (Sahu I), Jagarnath Sahu v Union Carbide Corporation and Madhya Pradesh State, No. 07 Civ. 2156 (JFK) (Sahu II) – for detailed information on the cases see EarthRights International, Sahu v Union Carbide, https://earthrights.org/case/sahu-v-union-carbide/.
- 87.
Doe v Unocal 395 F.3d 932 (9 Cir. 2002).
- 88.
Christmann (2000), pp. 207–208.
- 89.
Christmann (2000), pp. 213, 217.
- 90.
Several interpretations were made on the out-of-court settlement of this case: (i) Unocal had accepted responsibility and its obligation to compensate the victims, and (ii) Unocal had only wanted to dismiss the case without any formal admission of liability and avoiding any damage to its reputation (see Smith and Pangsapa 2011, p. 225). My opinion favours the second interpretation.
- 91.
Fielding (2008), p. 518.
- 92.
Sosa v Alvarez-Machain 542 U.S. 692, 738 (2004).
- 93.
Webb (2013), p. 135.
- 94.
Enneking (2009), p. 914.
- 95.
Enneking (2009), p. 914.
- 96.
Enneking (2009), pp. 914–915.
- 97.
Brief of Amicus Curiae the European Commission in Support of Neither Party, Sosa v Alvarez-Machain, No. 03-0339, January 23, 2004, 542 US 692(2004); Enneking (2009), p. 910.
- 98.
Khulumani et al. v Barclay National Bank et al. US Court of Appeals Second Circuit 05-2141, 05-2326 (12 October 2007). Within framework of Apartheid cases, Three groups of plaintiffs (Ntsebeza, Digwamaje and Khulumani) initiated lawsuits before US courts against various corporate defendants (Lungisile Ntsbeza et al. v. Daimler AG et al., and Khulumani et al. v. Barclays National Bank et al., the cases are collectively referred to as South African Apartheid Litigation).
- 99.
It is worth noting that the allegation of aiding and abetting the Apartheid regime in South Africa does not exactly fall within scope of this study, as the study focuses on violations of bodily integrity due to the activities of transnational subsidiaries in a corporate group. Nevertheless, the outcome of the alleged aiding and abetting is the violation of bodily integrity of the people. Therefore, the case was studied hereunder.
- 100.
Khulumani et al. v Barclay National Bank et al. US Court of Appeals Second Circuit 05-2141, 05-2326 (12 October 2007), p. 70.
- 101.
There were three groups of plaintiffs that filed several actions before federal district courts; namely, the Khulumani plaintiffs, the Ntsebeza plaintiffs and the Digwamaje Plaintiffs.
See In re S. African Apartheid Litig., 346 F. Supp. 2d 538, 542 (S.D.N.Y. 2004) and In re S. African Apartheid Litig., 238 F. Supp. 2d 1379, 1380–81 (J.P.M.L. 2002).
- 102.
In re South African Apartheid Litigation, 238 F. Supp. 2d 1379 (J.P.M.L. 2002).
- 103.
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
- 104.
Judge Katzmann referred to the US Supreme Court’s Sosa v Alvarez-Machain judgment, where it was stated that the scope of ATS liability was defined by the law of nations and that aiding and abetting was made subject to international treaties concerning organized crime and terrorism. Judge Hall, on the other hand, argued that the ATS did not provide any guidance on the grounds of secondary liability, and therefore, the federal courts were to look into the federal common law to fill the loophole.
- 105.
SCOTUS Opinion no. 07-919 (27.03.2008). The Supreme Court stated that while the defendants argued that the mere act of doing business in South Africa did not amount to aiding and abetting under the ATS, they had not raised this defense during the proceedings (p. 1).
- 106.
De Jonge (2011), p. 104.
- 107.
Apartheid reparations lawsuits (re So. Africa), Business & Human Rights Resource Centre, https://www.business-humanrights.org/en/latest-news/apartheid-reparations-lawsuits-re-so-africa/.
- 108.
van Dam (2015), p. 488.
- 109.
Morrison v National Australia Bank 130 S Ct 2869 (2010).
- 110.
Webb (2013), p. 136.
- 111.
Kiobel lawsuit was predated by Wiwa lawsuit, which was initiated by the heirs of the Ogoni activist Ken Saro-Wiwa, who was executed together with Barinem Kiobel by the military government. In Wiwa lawsuit, it was also alleged that Shell supported and aided the Nigerian military government and facilitated the commission of various human rights violations. The parties reached an out-of-court settlement in 2009, without any admission of liability by Shell. See Shell lawsuit (re Nigeria - Kiobel & Wiwa), Business & Human Rights Resource Centre, https://www.business-humanrights.org/en/latest-news/shell-lawsuit-re-nigeria-kiobel-wiwa/.
- 112.
Oguru, Efanga, Milieudefensie v Royal Dutch Shell Plc and Shell Petroleum Development Co Nigeria Ltd. (District Court of The Hague, C/09/330891/HA ZA 09-0579, 2013); Friday Alfred Akpan v Royal Dutch Shell Plc and Shell Petroleum Development Co Nigeria Ltd. (District Court of The Hague, 337050/HA ZA 09-1580, 2013); Barizaa Manson TeteDooh v Royal Dutch Shell Plc and Shell Petroleum Development Co Nigeria Ltd. (District Court of The Hague, C/09/337058/HA ZA 09-1581, 2013).
- 113.
Okpabi & Ors v Royal Dutch Shell Plc & Anor [2018] EWCA Civ 191.
- 114.
Kiobel et al. v Royal Dutch Petroleum Co. et al. [2010] USCA 621 F.3d 111.
- 115.
Haider (2012), p. 1373.
- 116.
SCOTUS Certiorari To The United States Court of Appeals for the Second Circuit No. 10–1491 (17.04.2013).
- 117.
Stewart and Wuerth (2013), p. 605.
- 118.
Dittmers (2017), p. 14.
- 119.
Enneking (2014), p. 50.
- 120.
Weber and Baisch (2016), p. 680.
- 121.
Weber and Baisch (2016), p. 680.
- 122.
De Jonge (2011), p. 106.
- 123.
Brief of the European Commission on behalf of the European Union as Amicus Curiae in Support of Neither Party, June 13, 2012, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491).
- 124.
Kaeb and Scheffer (2013), p. 853.
- 125.
Doe v Unocal 395 F.3d 932 (9 Cir. 2002).
- 126.
Van Dam (2015), p. 487.
- 127.
Kaeb and Scheffer (2013), p. 852.
- 128.
Enneking (2013), p. 136.
- 129.
Webb (2013), pp. 132, 139.
- 130.
Chander (2013) p. 829.
- 131.
Daimler AG v Bauman, 571 U.S. (2014).
- 132.
Enneking (2012), p. 269.
- 133.
Erb and Pell (2012), p. 1075.
- 134.
Haider (2012), p. 1384.
- 135.
Choudhury (2005), pp. 48–49.
- 136.
Erb and Pell (2012), p. 1073.
- 137.
Dine (2012), p. 53.
- 138.
Dine (2012), p. 53.
- 139.
Fielding (2008), p. 520.
- 140.
Fielding (2008), p. 521.
- 141.
Stewart and Wuerth (2013), p. 607.
- 142.
Stewart and Wuerth (2013), p. 612.
- 143.
Chander (2013), p. 834.
- 144.
Chander (2013), p. 831.
- 145.
Carey (2016), p. 460.
- 146.
Jesner et al. v Arab Bank, PLC, 584 U.S. No. 16-499, (24.04.2018).
- 147.
Jesner et al. v Arab Bank, p. 27.
- 148.
Jesner et al. v Arab Bank, p. 29.
- 149.
Dodge (2019), p. 133.
- 150.
- 151.
- 152.
- 153.
- 154.
Dodge (2019), p. 137.
- 155.
John Doe I v Nestle 9th Cir. No. 17-55435 (23.10.2018).
- 156.
Nestle USA, Inc. v Joe Doe et al. Nos. 19–416 and 19–453, 593 U.S. (17.06.2021).
- 157.
While the scope of this study does not comprise child labour, this decision is examined only for purposes of the analysis on the ATS practice.
- 158.
Sarei v Rio Tinto, PLC 671 F.3d 736, 746 (9th Cir. 2011) (en banc).
- 159.
Jesner et al. v Arab Bank, PLC, 584 U.S. No. 16-499, 24.04.2018.
- 160.
Nestle USA, Inc. v Joe Doe et al. Nos. 19–416 and 19–453, 593 U.S. (17.06.2021), p. 5.
- 161.
Justice Sotomayor, although concurring with the majority opinion, notes that the delimitation of the scope of the ATS with the three international torts recognised in 1789 would contravene with the history of the ATS and previous case law. In doing so, she emphasizes the change in international and national legal landscape after the eighteenth century and states that today’s torturers, slave traders, and perpetrators of genocide are hostis humani generis, such as the pirates of the eighteenth century. See Opinion of Sotomayor, J., in Nestle USA, Inc. v Joe Doe et al. Nos. 19–416 and 19–453, 593 U.S. (17.06.2021).
- 162.
Budha Ismail Jam et al. v. International Finance Corporation, Supreme Court of the United States, No. 17–1011, 27.02.2019.
- 163.
Budha Ismail Jam et al. v. International Finance Corporation, United States District Court for the District of Columbia, Civil Action No. 15-612 (JDB), 14.02.2020.
- 164.
Foreign Sovereign Immunities Act, Public Law 94-583, 21 October 1976.
- 165.
Şanlı et al. (2018), p. 373. The mentioned rule of Article 40 of PIPC that makes the international jurisdiction subject to the rules of domestic jurisdiction has also procedural consequences. Accordingly, the same rules on jurisdiction and proceedings regarding objecting against jurisdiction shall apply in international disputes as the domestic ones. Therefore, in a case that was initiated before Turkish court that had no jurisdiction, if the defendant does not raise any objection, then it will be deemed that the parties have reached an implied agreement on jurisdiction. If the defendant raises an objection, the Turkish court shall reject jurisdiction, but it shall not be able to determine the foreign court that has jurisdiction in that specific case. See Doğan (2020), p. 52.
- 166.
Doğan (2020), pp. 60–61; Nomer (2015), p. 455; Sarıöz (2012), p. 156; Şanlı et al. (2018), p. 373. These rules of jurisdiction that govern both domestic and international disputes are defined as “rules having double function” (Doğan 2020, p. 61; Sarıöz 2012, p. 156). Concurring with this opinion, see also decision of Turkish Court of Appeal, 21th Civil Chamber, numbered 2016/17700 E., 2016/14575 K., dated 24.11.2016. Çelikel/Erdem state that PIPC adopts a mix approach in determining international jurisdiction of Turkish courts, whereby jurisdiction in disputes with a foreign element are determined in accordance with domestic rules of jurisdiction, but with support of rules on international jurisdiction where needed (Çelikel and Erdem 2020, p. 561).
- 167.
Doğan (2020), p. 61.
- 168.
Süral (2012), p. 168.
- 169.
- 170.
- 171.
Exclusive jurisdiction is accepted only in exceptional cases where this is clearly stipulated by law (Albayrak and Mavzer 2019, p. 283). By the same token, special jurisdiction rules do not abrogate the jurisdiction of the court authorized by general jurisdiction rule (Çelikel and Erdem 2020, p. 570).
- 172.
- 173.
Süral (2012), p. 182.
- 174.
Şanlı et al. (2018), p. 378.
- 175.
Albayrak and Mavzer (2019), p. 285.
- 176.
The abrogated Turkish Civil Procedure Code no. 1086 (OJ dated 02.07.1927 numbered 622, abrogated as of 20.07.2016), the courts of the place where the tort took place would have jurisdcition in disputes arising out of torts. Hence, the new provision under Article 16 of CPC has a much wider scope, as it refers to both the place where the tortious act is committed and the place where the damage occurred or might potentially ocur, as well as an alternative jurisdiction of the plaintiff’s place of residence.
- 177.
Civil Procedural Code No. 1086, OJ 02.07.1927/622.
- 178.
Turkish Court of Appeal 3rd Civil Chamber decision dated 24.12.1956 and numbered 8766/6523.
- 179.
- 180.
Demir and Sıdıka (2008), p. 66.
- 181.
Nomer (2015), p. 462.
- 182.
Nomer (2015), p. 356.
- 183.
Albayrak and Mavzer (2019), p. 292.
- 184.
Sarıöz (2012), p. 161.
- 185.
Sarıöz (2012), p. 168. The ECJ decision referred dated 07.03.1995, numbered C-68/93 in Fiona Shevill et al. v Presse Alliance SA concerned claim for damages due to the publication of a defamatory newspaper article, whereby the ECJ held that “the expression ‘place where the harmful event occurred’ (…) must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage” (para. 20). The ECJ also stated in this judgment that the place of the harmful event should be understood as important as the place of damage in terms of evidence and conduct of proceedings (para. 21).
- 186.
Sarıöz (2012), p. 166.
- 187.
Sarıöz makes this interpretation in light of the provisions of 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ L 299, 31/12/1972 P. 0032 - 0042), which refers to the place where the harmful event has occurred for jurisdiction in disputes arising out of tort; see Sarıöz (2012), p. 167. With the enactment of Brussels I Recast, however, the interpretation of the place of harmful event has been widened so as to cover both the place of the tortious act and the place of damage. This issue is further analysed herein on the question of jurisdiction in tort claims under Brussels I Recast provisions.
- 188.
Sarıöz (2012), p. 171.
- 189.
Nomer (2015), p. 94.
- 190.
Sarıöz (2012), p. 167.
- 191.
The possibility to initiate the lawsuit before the courts of the plaintiff’s place of residence is considered to be less burdensome for the plaintiff compared to the defendant’s place of residence (see Özel 2012, p. 31).
- 192.
Çelikel and Erdem (2020), pp. 577–578.
- 193.
- 194.
Doğan (2020), p. 66.
- 195.
- 196.
Çelikel and Erdem (2020), p. 570; Kuru (2001), p. 486. See also Turkish Court of Appeal 4th Civil Chamber decision dated 24.04.1967 and numbered 4033/3760, whereby it was held that the jurisdiction rule in tort claims (under Art. 21 of the former Civil Procedural Code) does not confer an exclusive jurisdiction, but rather it constitutes a secondary rule, and therefore, it does not lift the jurisdiction of the courts of the place of the defendant’s residence. Turkish Court of Appeal 20th Civil Chamber has settled precedents where it held that the special jurisdiction rule in tort claims does not abrogate the general rule of jurisdiction, as it does not constitute an exclusive rule of jurisdiction, and that the plaintiffs are entitled to choose in between the alternative jurisdictions; see decision numbered 2016/3672E. 2016/5923K. and dated 30.05.2016, the decision numbered 2016/3857E. 2016/6766K. and dated 13.06.2016, the decision numbered 2015/9603E. 2015/9990K. and dated 22.10.2015, the decision numbered 2015/3153E. 2015/10737K. and dated 05.11.2015. It should be noted that the mentioned decisions concern domestic disputes, rather than international ones with a foreign element, but these rules are also applicable in international disputes with the reference of Article 40 of PIPC (Çelikel and Erdem 2020, p. 570).
- 197.
Tekinalp (2013), p. 557.
- 198.
Eroğlu (2008b), p. 262.
- 199.
Anker-Sorensen (2014), p. 22.
- 200.
Turkish Court of Appeal, 11th Civil Chamber decision numbered 2016/551 K. 2016/1281 and dated 10.2.2016.
- 201.
Under Turkish law, full dominance is defined as direct or indirect ownership of %100 of the shares or the voting rights of a company (Art. 203 of TCC).
- 202.
Okutan Nilsson (2011), p. 96.
- 203.
Exclusive jurisdiction concerns whether Turkish courts are vested with exclusive jurisdiction in terms of private international law, which may be understood from a teleological interpretation of the relevant provision concerning jurisdiction (Doğan 2020, p. 79). Turkish Court of Appeal too has expressed in its judgments that exclusive jurisdiction may be understood from the purpose and wording of the relevant provision and the characteristics of disputes with a foreign element (20th Civil Chamber, 2018/5596E. 2018/7557K. and dated 26.11.2018, 18th Civil Chamber, 2013/19774E. 2014/6261K. and dated 07.04.2014).
- 204.
Accordingly, it is not possible to agree on a choice of jurisdiction for disputes that fall outside the scope of obligation relations, such as, for instance, family law related issues, inheritance law, rights in rem. Under Turkish law, obligation relations arise in contract, tort, unjust enrichment and negotiorum gestio. See Çelikel and Erdem (2020), p. 639; Doğan (2020), p. 78.
- 205.
- 206.
- 207.
Çelikel and Erdem (2020), p. 652; Doğan (2020), pp. 85–86. Turkish Court of Appeal also held that a court that acquires jurisdiction by way of a valid agreement, it becomes vested with an exclusive jurisdiction (General Assembly of Civil Chambers, numbered 1998/12-287E. 1998/325K. and dated 06.05.1998). Having said that, as per the exception regulated under Article 47/2 of PIPC, it is not possible to abrogate the jurisdiction of the courts authorized under Articles 44, 45 and 46 of PIPC in disputes concerning employment contracts and relationship, consumer contracts and insurance contracts, which are referred to as contracts with social elements (see Doğan 2020, p. 80).
- 208.
- 209.
Turkish Court of Appeal General Assembly of Civil Chambers decision numbered 1998/12-287E. 1998/325K. dated 06.05.1998.
- 210.
Demir Gökyayla (2011), p. 64.
- 211.
Nomer (2015), p. 484.
- 212.
Doğan (2020), p. 81.
- 213.
Demir Gökyayla (2011), pp. 53–54.
- 214.
Demir Gökyayla (2011), p. 56. Demir Gökyayla also refers to the implications of the availability of a fair trial under Article 6 of the UNDHR, which protects the right to a fair trial, and states that any objective and reasonable suspicion that the courts of the chosen jurisdiction might not provide an independent and impartial trial should justify the right to initiate the relevant case before Turkish courts (Demir Gökyayla 2011, p. 58). It is, in fact, challenging to prove with concrete evidence that a country’s courts will not be able to provide fair trial. Therefore, it should be sufficient to put forward objective and reasonable suspicion on this issue, in a way that would create an opinion on the judge (Demir Gökyayla 2011, pp. 67–68).
- 215.
The main aim of this provision is to protect the weak party in relationships between real persons and merchants or legal entities (the weak party being the real persons); see Kılıçoğlu (2012), p. 190.
- 216.
Aşit (2017), pp. 480–481.
- 217.
Meeran (1999), p. 162.
- 218.
Ekşi (1994), p. 71.
- 219.
Ekşi (1994), p. 74.
- 220.
Nomer (2015), p. 489.
- 221.
It might be worth noting the situation of legal aid and conditional fee agreements for lawyers under Turkish law. In fact, as per Article 163 of the Lawyers Act in Turkey, lawyers’ agreements should refer to a monetary amount or value in return for the legal service provided by the lawyer. Turkish Court of Appeal in its General Assembly of Joint Chambers’ decision (numbered 2017/6E. 2018/9K. and dated 05.10.2018) defines the lawyers’ agreement as “a synallagmatic agreement executed by and between the lawyer and the client, whereby the lawyer undertakes to provide legal service and the client, in principle, undertakes to make the payment of the fee in return for the legal service”. The decision also states, in light of the relevant provisions of the Lawyers Act, that a lawyers’ agreement should include a certain monetary value as lawyer’s fee, as this is a mandatory element thereof. Furthermore, as per Article 164 of the Lawyers Act, it is not possible to determine a legal fee below the minimum fees set every year by the Turkish Bar Association. In the event that a legal service is given without legal fee, the issue will be notified to the bar association board and a legal fee will be determined between the amount of 10–20% of the value of the claim on the date of the finalization of the relevant court order or, in case the claim’s value cannot be put in monetary terms, the legal fee will be determined according to the minimum fee tariff set by the Turkish Bar Association. Therefore, Turkish law does not allow for conditional fee agreements for lawyers. On the other hand, legal aid is regulated under Turkish law. As per Article 176 of the Lawyers Act, legal aid concerns the provision of legal services to those who cannot afford lawyers’ fees, as well as other legal costs and expenses. As per Article 334 of CPC, individuals who cannot wholly or partially afford the legal costs and expenses, without significantly risking theirs and their family’s living, are entitled to request legal aid on the condition that their claims are not clearly groundless. Foreigners are also entitled to benefit from legal aid, subject to the condition of reciprocity. Although legal aid is regulated and as a benefit for those who satisfy the sought conditions, there are also criticisms on its well-functioning in practice. In the opinion of Elveriş/Kutucu/Yaşar, the appointment of lawyers in legal aid cases is not subject to transparent and objective terms, and the bar association’s monitoring on the lawyers’ services remain unsatisfactory as the bar association has no authority to effectively monitor performance or to apply disciplinary sanctions on lawyers. The insufficient budget allocated for legal aid is also considered as a problem in legal aid system in Turkey. See Elveriş et al. (2005), pp. 48–49, 51.
- 222.
Eroğlu (2008a), p. 104.
- 223.
Eroğlu (2008a), p. 119.
- 224.
Nomer (2015), p. 119.
- 225.
Şanlı et al. (2018), p. 369.
- 226.
Nomer (2015), p. 490.
- 227.
Turkish Court of Appeal 2nd Civil Chamber, E. 37, K. 1922, 06.04.1945.
- 228.
Şanlı et al. (2018), p. 373.
- 229.
Weber and Baisch (2016), p. 683.
- 230.
- 231.
Nwapi (2014), p. 36.
- 232.
Nwapi (2014), p. 29.
- 233.
Çelikel and Erdem (2020), p. 563.
- 234.
- 235.
- 236.
Carey (2016), p. 466.
- 237.
Webb (2013), p. 155.
- 238.
De Jonge (2011), p. 110.
- 239.
Zerk (2006), pp. 120–121.
- 240.
Enneking (2009), pp. 917–918.
- 241.
Kaeb and Scheffer (2013), pp. 854–855.
- 242.
Enneking (2009), p. 916.
- 243.
Roorda and Ryngaert (2016), p. 803.
- 244.
Huber and Bach (2011), p. 71.
- 245.
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II): OJ L 199/40 (31.07.2007). Rome II is applicable to the disputes concerning damages that were occurred as of January 11, 2009, when its substantive provisions have become applicable in EU member states’ courts. The aim of Rome II was to harmonize the conflicts of law provisions in different member states concerning non-contractual obligations in civil and commercial matters, which is declared as an autonomous concept considering that there may be different legal interpretations by the member states (para. 11 of the Preamble). Having said that, the meaning of ‘non-contractual obligations’ for the purposes of Rome II is set out as “(…) tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo”. To this end, consensual obligations (i.e. voluntary undertakings) are considered as contractual, while non-consensual obligations are deemed to form non-contractual obligations within the meaning under Rome II (See Scott 2009, p. 66). From this aspect, it is clear that FDL claims that are claims addressed by involuntary creditors (tort victims) against parent companies of MNCs would be within the scope of Rome II.
- 246.
Tarman (2008), p. 198.
- 247.
The rule of lex loci delicti commissi is also considered to be rather incidental and difficult to determine in most cases, which supports the shift towards the rule of lex loci damni (Öztekin Gelgel 2006, p. 96).
- 248.
Çelikel and Erdem (2020), p. 467.
- 249.
Enneking (2012), p. 214.
- 250.
Öztekin Gelgel (2006), p. 100.
- 251.
Van Den Eeckhout (2017), p. 51.
- 252.
Kessedjian (2017), p. 149.
- 253.
Kessedjian (2017), p. 150.
- 254.
Huber and Bach (2011), p. 70.
- 255.
- 256.
- 257.
Graziano (2009), p. 118.
- 258.
Graziano (2009), p. 114, 131.
- 259.
See also Enneking, who states that in FDL cases it is unlikely for the parties to reach an agreement on applicable law especially when causes such as the level of protection of the victims and the level of damages vary under the law applicable to the case; Enneking (2012), p. 215.
- 260.
Under Turkish law it is generally not recognised that legal entities might have a ‘habitual residence’, as this concept is deemed to refer to real persons only. It is, however, pointed out that should the concept be accepted also for legal entities, then the place of de facto management, where the administrative operations are carried out, should be considered as the ‘habitual residence’ of a legal entity. See Arslan (2012), p. 143.
- 261.
Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations, Explanatory Memorandum, Brussels, 22.7.2003 COM(2003) 427 final 2003/0168 (COD), https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0427:FIN:EN:PDF.
- 262.
Öztekin Gelgel (2006), p. 105.
- 263.
- 264.
Fentiman (2009), pp. 98–99.
- 265.
Fentiman (2009), p. 109.
- 266.
Enneking (2012), p. 215.
- 267.
- 268.
Thomale and Hübner (2017), p. 391.
- 269.
Mansel (2018), p. 457.
- 270.
Palombo (2019), p. 480.
- 271.
van Dam (2015), p. 489; Öztekin Gelgel (2006), p. 248. As per this definition, some examples for overriding mandatory provisions are regulations that concern foreign trade, import-export, foreign exchange, competition, as well as those that concern workers’ health and safety, social security, union freedom and protection of cultural assets (Öztekin Gelgel 2006, p. 249).
- 272.
Yılmaz (2016), p. 3133.
- 273.
Öztekin Gelgel (2006), p. 248.
- 274.
Renault v. Maxicar, Case C-38/98 (11 May 2000), [2000] ECR I-02973; Enneking (2008), p. 306.
- 275.
Tarman (2008), p. 217.
- 276.
Preamble para. 34 of Rome II.
- 277.
Enneking (2008), p. 305.
- 278.
Huber and Bach (2011), p. 68.
- 279.
Preamble para. 19 of Rome II.
- 280.
Moreover, the parties’ right to choose the applicable law as per Article 14 of Rome II is reserved, thus the parties will be able to choose the applicable law by way of an agreement entered into after the occurrence of the event giving rise to damage (Art. 14/1(a)). The option to enter into an agreement on choice of applicable law after the occurrence of the event giving rise to damage is granted only for commercial parties and therefore, it will not apply in FDL cases. The exception of the more closely connected law shall also apply in cases where the relevant connection is clear from the circumstances (Öztekin Gelgel 2006, p. 167).
- 281.
Öztekin Gelgel (2006), p. 170.
- 282.
Bogdan (2009), p. 222.
- 283.
Palombo (2020) p. 65.
- 284.
- 285.
- 286.
Enneking (2009), p. 930.
- 287.
Enneking (2012), p. 216. Enneking also stipulates that the environmental damage rule is based on the fact that the tortfeasor in these cases (e.g. the parent company in home country) obtains an economic benefit from the activities of the subsidiary that lead to environmental damage; Enneking (2012), p. 216.
- 288.
Explanatory Memorandum on Rome II, p. 19.
- 289.
Preamble para. 24 of Rome II.
- 290.
Bogdan (2009), p. 224.
- 291.
Öztekin Gelgel (2006), pp. 162–163.
- 292.
Öztekin Gelgel (2006), p. 163.
- 293.
Öztekin Gelgel (2006), p. 163.
- 294.
Öztekin Gelgel (2006), p. 168.
- 295.
Mansel (2018), p. 461.
- 296.
Enneking (2012), p. 217.
- 297.
Enneking (2012), p. 217.
- 298.
Öztekin Gelgel (2006), p. 158.
- 299.
Bogdan (2009), p. 229.
- 300.
Bogdan (2009), p. 230.
- 301.
Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun, No. 5718, OJ dated 12.12.2007 and numbered 26728.
- 302.
The general rule on applicable law shall apply to torts that do not fall within scope of the cases mentioned under Articles 35-38; see Tiryakioğlu (2010), p. 213.
- 303.
By regulating lex loci delicti commissi as the general rule, PIPC departs from the provisions of Rome II, which adopts the general rule of lex loci damni in tort claims (Çelikel and Erdem 2020, p. 462).
- 304.
- 305.
- 306.
Tekinalp (2009), p. 430.
- 307.
Tekinalp (2009), p. 432.
- 308.
Tiryakioğlu (2010), p. 214.
- 309.
Tekinalp (2009), p. 432.
- 310.
Tekinalp (2009), p. 436. It is worth noting that Turkish Court of Appeal has adopted a view conflicting with this approach. In a case concerning a car accident that took place in Turkey, where the plaintiff resided in Germany who was on vacation in Turkey, the Court of Appeal decided that despite the rule under Article 34/1 of PIPC, the damage should have been detected in Germany. The Court of Appeal, in this decision, acknowledged the rule under Article 34/1 of PIPC, which points out to the assessment of damage under Turkish law and before Turkish courts, but has then ruled that the appreciated damage should reflect the real damage incurred which would have been possible to be determined under the circumstances in Germany. See Turkish Court of Appeal, General Assembly of Civil Chambers decision numbered 2014/703 E., 2016/497 K. and dated 06.04.2016.
- 311.
Şanlı et al. (2018), pp. 310–311.
- 312.
Nomer (2015), p. 356.
- 313.
Sarıöz (2012), p. 166.
- 314.
Sarıöz (2012), p. 167.
- 315.
Yılmaz (2016), p. 3126.
- 316.
- 317.
Nomer (2015), p. 356.
- 318.
There is an opinion in Turkish legal doctrine that in respect of environmental pollution incidents caused by sea vessels or air vessels, the law of the place where the tortious act is committed shall apply—unless there is a multinational convention on this matter. Nomer (2015), p. 358.
- 319.
- 320.
The Turkish corresponding term to ‘renvoi’ is discussed in legal doctrine, which is divided in between the terms ‘atıf’ or ‘yollama’. Despite these discussions, renvoi is recognized as the application of the conflict of laws principles of foreign law, which is applicable as per the conflict of laws principles of lex fori (Mesci, Barış, Milletlerarası Özel Hukukta Atıf (Renvoi) (Renvoi in Private International Law, Master’s Thesis, January 2014, pp. 3–4).
- 321.
Şanlı et al. (2018), p. 309.
- 322.
Tarman (2010), p. 7, 9.
- 323.
Nomer (2015), p. 361. Çelikel/Erdem compares Article 34/5 of PIPC with Article 14/1 of Rome II, emphasizing that PIPC does not recognize implicit choice of law in tort claims; see Çelikel and Erdem (2020), p. 465. Tiryakioğlu also emphasizes that the provision regulating the choice of applicable law in tort claims has a narrower scope than the one concerning contractual relations (Art. 24/1 PIPC); Tiryakioğlu (2010), p. 214.
- 324.
Tarman (2010), p. 11.
- 325.
This aspect of Turkish law is different from the implied agreement recognised under Rome II (i.e. “demonstrated with reasonable certainty by the circumstances of the case”), which will be assessed further in this chapter.
- 326.
Doğan (2020), p. 440.
- 327.
Doğan (2020), p. 440.
- 328.
Tarman (2010), pp. 13–14.
- 329.
- 330.
Doğan (2020), p. 439.
- 331.
- 332.
Yılmaz (2016), p. 3120.
- 333.
Şanlı et al. (2018), p. 312.
- 334.
Nomer (2015), p. 360.
- 335.
- 336.
- 337.
- 338.
Çelikel and Erdem (2020), p. 141.
- 339.
Doğan (2020), p. 256.
- 340.
Turkish Court of Appeal General Assembly Joint Chambers’ Decision, numbered 2010/1E. 2012/1K, dated 10.02.2012, published on the OJ dated 20.09.2012 and numbered 28417.
- 341.
The relevant Joint Chambers’ decision determined the scope of public policy in Turkish domestic law as the following: “Incompliance with fundamental values of Turkish law, general Turkish manners and morals, fundamental understanding of justice on which Turkish laws are based, general politics on which Turkish laws are based, fundamental rights and freedoms stipulated in the Constitution, rules that are based upon the common principle valid in international arena and on the principle of good faith in civil law, moral principles that are jointly adopted by civilized societies and legal principles that express the understanding of justice, level of civilization of the public, political and economic regime and human rights and liberties” (Turkish Court of Appeal General Assembly Joint Chambers’ Decision, numbered 2010/1E. 2012/1K, dated 10.02.2012, published on the OJ dated 20.09.2012 and numbered 28417). It is important to note that the mere difference in the regulations of a foreign law and Turkish law does not, per se, constitute a violation of Turkish public policy; in order to have such a violation, the application of foreign law provisions should fall against Turkish law’s fundamental values (Doğan 2020, p. 260). These fundamental values cover the provisions of the Turkish Constitution, as well as certain fundamental principles such as the principle of good faith (Çelikel and Erdem 2020, p. 154; Doğan 2020, p. 262).
- 342.
Yöney (2018), p. 187.
- 343.
Sarıöz Büyükalp (2018), p. 75.
- 344.
- 345.
Çelikel and Erdem (2020), p. 147. See also decision of Turkish Court of Appeal 2nd Civil Chamber numbered 2011/10335E. 2012/4239K. and dated 29.02.2012, and decision of Turkish Court of Appeal 2nd Civil Chamber numbered 2016/15771E. 2017/1737K. and dated 09.02.2017, where the public policy concept was discussed in detail.
- 346.
Tekinalp (2009), p. 49.
- 347.
Doğan (2020), p. 276; Nomer (2015), p. 183; Yılmaz (2016), p. 3130. On this point, it is also important to consider the position of UNDHR as an international treaty that is ratified and enforced in Turkey. Sarıöz Büyükalp discusses whether the provisions of UNDHR should be considered as part of domestic law or as mandatory overriding rules of foreign law in terms of conflict of laws. The scholar concludes that the UNDHR is neither and it shall be applicable not alongside the provisions of PIPC, but prior to those, as a legal system above the domestic law that regulates fundamental rights and freedoms. See Sarıöz Büyükalp (2018), pp. 73–74.
- 348.
- 349.
Yılmaz (2016), p. 3130.
- 350.
- 351.
Çelikel and Erdem (2020), p. 156; Doğan (2020), p. 277. Overriding mandatory rules of lex causae will not affect the application of the relevant foreign law, considering that it is lex causae that will apply to the relevant case with all its provisions, including the overriding mandatory rules. Overriding mandatory rules of lex fori and of a third country’s law would, on the other hand, intervene in the application of lex causae (see Yöney 2018, p. 191).
- 352.
Doğan (2020), p. 279.
- 353.
Takavut (2018), p. 29.
- 354.
- 355.
Takavut (2018), p. 27.
- 356.
The alternative of addressing direct claims against the tortfeasor’s insurance has been introduced in Turkish law with the enactment of PIPC in 2007. The reasoning of the article states that this provision was introduced in line with the improvements under international conventions and newly enacted codes on private international law.
- 357.
Çelikel and Erdem (2020), p. 465.
- 358.
Ekşi (2015), p. 45.
- 359.
Tiryakioğlu (2010), p. 215. Tiryakioğlu also states that this provision would especially be effective in cases where the law applicable to tort does not provide any ground for direct application to the insurer, while the law applicable to insurance agreement does; in such a case, the law applicable to the insurance agreement shall apply taking priority over the law applicable to tort. See Tiryakioğlu (2010), p. 215.
- 360.
Ekşi (2015), p. 313, fn. 503.
- 361.
In Çakır Çelebi’s opinion, by the provisions of Article 195/1 and 195/5, the legislator has aimed to provide protection to the vulnerable subsidiaries located in Turkey, rather than their parents, which might as well be located abroad (Çakır Çelebi 2018, p. 30).
- 362.
Tekinalp (2013), p. 556.
- 363.
Okutan Nilsson (2011), p. 95.
- 364.
Tekinalp (2013), p. 556.
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References
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5.1.1 Online Sources
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Kara, P. (2023). A Comparative Analysis of FDL Under Private International Law. In: Tort Liability in Multinational Corporate Groups. Ius Gentium: Comparative Perspectives on Law and Justice, vol 107. Springer, Cham. https://doi.org/10.1007/978-3-031-29336-8_5
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