(The International Jurisdiction of Turkish Courts in Disputes Arising from Individual Employment Contracts with a Foreign Element and Controversial Issues)

In disputes arising from individual employment contracts with a foreign element, the international jurisdiction of Turkish courts is determined either under the provisions of international jurisdiction or through international jurisdiction agreements concluded between the parties. The special jurisdiction rule applicable in such disputes is set forth in Article 44 of the Turkish Private International and Procedural Law Act (MÖHUK), titled “Employment Contracts and Employment Relationships.” According to this provision, in lawsuits brought against the employee, the court at the place in Turkey where the employee usually performs their work shall have exclusive jurisdiction. In contrast, for lawsuits brought by the employee against the employer, Turkish courts at the place of habitual work, the employer’s domicile, the employee’s domicile, or the employee’s habitual residence are also competent. This distinction between claims initiated by the employee and those initiated by the employer aims to provide broader access to justice for the employee as the weaker party and thereby ensure their protection. The aim of protecting the weaker party — in this context, the employee — also extends to the area of jurisdiction agreements. Jurisdiction agreements granting competence to foreign courts are regulated under Article 47 of MÖHUK. While paragraph 1 allows for jurisdiction agreements in foreign-element contractual obligations in general, paragraph 2 restricts such agreements in the context of weaker-party contracts, including employment contracts. Specifically, it provides that the jurisdiction of the courts determined under Articles 44, 45, and 46 cannot be derogated from by such agreements. The wording of this provision has given rise to divergent interpretations in the legal doctrine. This study aims to assess the determination and scope of international jurisdiction of Turkish courts under Article 44 of MÖHUK in disputes arising from individual employment contracts with a foreign element, as well as to examine the impact of the limitation in Article 47(2) on the jurisdiction granted by Article 44. Furthermore, it addresses the legal consequences of Article 47(2) in the context of recognition and enforcement proceedings under Article 54(b) of MÖHUK, in the light of the principle of employee protection.