EXTENDED SUMMARY

The historical development of labour law has led to the emergence of an independent branch of law. This evolution arose because the principles of freedom of will and equality of contractors in civil law often overlooked the social and economic realities present in the employment relationship, which in turn led to the exploitation of labour. Unlike other types of contracts, employment contracts are characterized by a dependency relationship; the employee and employer do not operate from equal positions. As a result, special rules concerning labour law have been established at both the national and international levels. Turkey has been a leading country in sending workers abroad since the early 1960s. In recent years, unlike the labour migration of the 1960s and 1980s, many Turkish employers have begun to send a significant number of workers to foreign companies they have established or with which they have partnered. Consequently, the issue of labour contracts containing foreign elements has been increasingly discussed in judicial decisions. This is particularly significant given that Turkish workers are often sent to developing countries, where the labour claims in these nations differ considerably from those in Turkish law, complicating the issue further. An examination of the decisions made until 2020 shows that the 9th Civil Chamber of the Court of Cassation emphasized the mandatory nature of laboyr law, stating that the law chosen by the parties cannot restrict the rights of workers as stipulated in Turkish law. However, since the end of 2020, a shift in the Court of Cassation’s case law has altered its stance on choice of law in employment contracts with foreign elements, intensifying these discussions. On November 5, 2024, the Constitutional Court reviewed whether the first and second paragraphs of Article 27 of the Law on Private International Law and Procedural Law, which establishes a special binding rule for employment contracts, were unconstitutional. The court found the first paragraph of Article 27 unconstitutional and consequently annuled it. The decision was based on two main grounds: first, that in cases of choice of law, the provision of Article 27/4 regarding the more closely related law could not be applied; and second, that no provisions exist to ensure that the worker is adequately informed about the foreign law, violating the state’s positive obligations. However, we believe there are valid criticisms of the grounds for the Constitutional Court’s decision. Article 27 of the Law on Private International Law and Procedural Law is an integral provision. While the first paragraph could have been framed differently, the paragraphs show a unity of application. Additionally, Articles 5 and 6 of the same law contain significant provisions on public order and rules that are directly applicable regarding legal arrangements that contradict the fundamental values of Turkish law. The Supreme Court could have clarified these issues through its judgments and established important case law. Furthermore, as previously argued, we agree with the doctrinal perspective that foreign service contracts should be subject to the control of general terms and conditions. The employer should not be able to rely on a choice of law clause in a way that allows for the application of Turkish law during the contract’s duration, only to favor themselves at the time of termination. Accepting the contrary would undermine the principle of honesty, a fundamental tenet of private law. We believe the Court of Cassation could have developed important case law on crucial issues such as public order, directly applicable rules, and the control of general terms and conditions in labour law, representing a missed opportunity. The second justification for the Constitutional Court’s decision is the assertion that foreign law is insufficiently known, which is viewed as a violation of the state’s positive obligation as outlined in Article 49 of the Constitution. We disagree with this justification. Accepting a lack of knowledge regarding foreign law as a violation of the state’s positive obligation implies that Turkish law should apply in every case with a foreign element before Turkish courts. However, as repeatedly noted, the Supreme Court could have developed significant jurisprudence based on public order, directly applicable rules, and the control of general terms and conditions.

In conclusion, we argue that the Constitutional Court has indeed issued an annulment decision regarding an important problem for the workers working abroad and that Article 27/1 of the The Law on Private International Law and Procedural Law could be regulated differently. In terms of Turkish law, a regulation of Article 27 of the The Law on Private International Law and Procedural Law as specified in the Rome I Regulation would provide an equitable solution. In other words, the phrase ‘without prejudice to the minimum protection that the employee shall have pursuant to the mandatory provisions of the law of the habitual place of work’ in Article 27/1 should be rearranged to include the closely related law in paragraph 4, and likewise, the first paragraph should be added to the phrase ‘this law may be applied instead of the provisions of the second and third paragraphs’ in Article 27/4. In other words, if the judge determines that there is a law that is more closely related to the employment contract according to all the circumstances of the case, it should be accepted that the judge may apply the closely related law even if the parties have made a choice of law. We believe that the inclusion of the European Union Directive No. 2019/1152, which also addresses the employer’s obligation to provide information, in the Labour Law No. 4857 may provide adequate and comprehensive solution.