DEFINITION AND RESOURCES
International trade is defined as the exchange of goods and services between natural and legal persons with workplaces in different countries. As there is a foreign element in international commercial law, it is subject to both national and international law.
LEGISLATION AND CONTENT
Lawsuits may be brought in one of the countries in which the dispute between the parties is linked. The parties may even authorize a third country’s jurisdiction to resolve the dispute. The determination of the jurisdiction of the competent jurisdiction in such conventions involving international elements concerns the law of the States .
The basic law of our Turkish legal system in the State Private Law is Law No. 5718 on International Private and Procedural Law. In this law, the following issues are mainly regulated;
- Determination of the law to be applied in transactions and relations related to private law (including international trade conventions),
- Determination of the international competence of the Turkish courts,
- Recognition and enforcement of foreign court and arbitral awards.
The scope of Law No. 5718;
“ARTICLE 1 – (1) The law to be applied in the transactions and relations related to private law with the element of foreignness, international authority of Turkish courts, recognition and enforcement of foreign decisions are regulated by this Law.”is expressed as
In the case to be brought before the Turkish court regarding disputes arising from international trade, the judge should first determine which law to apply. However, the law to be applied should not be contrary to the Turkish Public Order
This situation in Article 5 of Law No. 5718 It is indicated;
“ ARTICLE 5 – (1) Where the provision of the competent foreign law, which applies to a particular case, is clearly contrary to the Turkish public order, this provision shall not apply; where deemed necessary, Turkish law shall apply.”
Article 24/1 of the International Private Law and Procedural Law Act states that the contractual obligations are subject to the law of the parties explicitly chosen. The choice of law, which can be understood without hesitation from the provisions of the contract or the conditions of the case, shall also apply. The parties have the authority to determine that the law of their choice applies to only part of the contract
In the case that the parties have not made a legal choice, pursuant to Article 24/4 of the International Private and Procedural Law;
“In the case that the parties have not made a legal choice, the contractual relationship shall be governed by the law most closely related to that agreement. This law, the characteristic performance debtor, the habitual residence law at the time of the establishment of the contract, commercial or professional activities established in accordance with the commercial performance of the workplace debtor, if there is more than one workplace law of the characteristic performance debtor, the workplace law in the closest relationship with the said contract. acceptable. However, if there is a law more closely related to the contract under all conditions, the contract shall be governed by this law.”
Foreign court judgments must be granted by the competent Turkish court in order to render enforcement of the final judgment given in Turkey related to litigation. After the enforcement decision is taken, the foreign drugs can be executed like the ones given by the Turkish courts. (Article 50 of the Law on International Private Law and Procedural Law)
There are some international conventions related to the sale of international goods, in which many states are parties to and which are binding on the parties. These contracts; It is designed to adopt uniform rules to be applied to the conventions and to take into account different social, economic and legal systems, to remove legal barriers to international trade and to develop international trade.The United Nations Convention on Contracts for the International Sale of Goods, adopted at the conclusion of the conference of 11 April 1980 in Vienna under the auspices of the United Nations; An agreement has also been recognized by Turkey. This agreement is the basic legislation to be applied for the sale of international goods.
Section 1 of Part 1 of this Agreement relating to Area of Application and General Provisions;
“ This agreement shall apply to the contract of sale of goods between the parties whose workplaces are located in different states, if these states are from the Contracting States or if international private law rules refer to the law of a Contracting State .”
The application area of the treaty was determined.
It is not necessary to sign a contract in foreign trade transactions. Whether or not the contract is concluded is a matter to be decided between the seller and the buyer. It is sufficient for the parties to agree between them. As a matter of fact, in Article 11 of the United Nations Convention on Contracts for the International Sale of Goods;
“ The establishment or proof of the sale contract does not have to be made in writing nor is it subject to any other form of provision. The contract can be proved by any procedure including witness.” It is stated that it is not necessary to make a written agreement in order to count the commercial agreement between the parties. However, for the benefit of the parties, it is useful to specify the terms of the agreement in terms of the arrangement of the contract in writing and any future disputes
From the 14th article of the agreement, the subject of the establishment of the contract has been processed, and the relations between the parties related to the purchase and sale have been regulated under Article 35 and subsequent proceedings .
Treaty on the Uniform Law on the Establishment of International Contracts for the Sale of Goods (1 July 1964) or the Treaty on the Uniform Law on the Sale of Goods on 1 July 1964 (1964, The Hague It is one of the conventions introducing certain provisions that bind the parties to trade and hence the legal persons conducting international commercial affairs .
ALTERNATIVE RESOLUTION IN INTERNATIONAL COMMERCIAL DISPUTES
Alternative solutions in international commercial disputes;
- Short Trial and Short Jury Application
Arbitration: International Arbitration is the most widely used alternative solution. The Parties may decide to settle the dispute that may arise through international arbitration, in order to first add an arbitration clause to the commercial agreement or to conclude a separate arbitration agreement.
Arbitration; the resolution of the dispute by one or more arbitral tribunals other than the national courts, at the discretion of the parties and subject to a written agreement. The most important factor in the parties’ choice of arbitration is to resolve the dispute as quickly as possible.
Negotiation: Negotiation is a voluntary procedure and, despite its legal consequences, has very few procedural rules, unlike arbitration. Negotiation takes place when the parties decide to resolve the dispute themselves. It is not compulsory to have a lawyer in negotiations but it is useful to have.
Mediation: The parties receive assistance from a neutral third party to reach an agreement. Unlike arbitration to which the arbitrator’s decision is binding, the mediating parties cannot make a binding decision, but only help to settle the dispute between the parties.
Arbitrator-Expert: The arbitrator-expert solves the problem that arises solely on a specific technical matter concerning the legal dispute between the parties. The decision of the arbitrator-expert is not binding on the parties.
Short Trial and Short Jury Practice: In the short trial, an impartial advisor is selected to assist the parties throughout the dispute resolution process. Short Jury Practice is a method used in the USA and it is a short trial method with a jury .
International Chamber of Commerce (ICC); in order to eliminate disputes, disputes and legal disputes in international commercial affairs, it introduced some rules regarding trading transactions and put these regulations into force for the first time in 1936 under the name of OT INCOTERMS .
United Nations International Trade Commission;
developing agreements to balance international trade law; It facilitates world trade by preparing model laws, rules and legal regulations. Created by the General Assembly in 1966, this 60-country structure brings together representatives of the world’s geographical regions and key economic and legal structures . For years, UNCITRAL has been the UN’s central institution in international trade law. The United Nations Department of International Trade Law-Legal Affairs serves as the secretariat of UNCITRAL.
world Trade organisation (WTO): The World Trade Organization is the legal and institutional body of the multilateral trade system. The WTO provides a legal framework on how governments can make domestic trade laws and regulations. It is a platform in which trade relations between countries are developed through collective negotiations and negotiations.