Haksız Fiilere Uygulanacak Hukukun Tespitinde Mozaik Yaklaşımı

Abstract

One of the controversial subjects which must be evaluated in conflict of laws is applicable law on torts. Turkish conflict of laws approach regards torts as non-contractual sources of obligation which is regulated between Article 34 and Article 38 in Turkish Code International Private and Civil Procedure. Thus, it can be referred that Turkish school of thought evaluates torts, as a assemble of legal institutions those cannot be identified as contractual or unjust enrichment. Furthermore, the Code, regulates applicable law on non-contractual obligations in two ways. First, Article 34 serves a general rule that can be applicable if the Code does not presuppose otherwise. Secondly, the provisions between Article 35 and Article 38, are considered as specific rules which regulates applicable law on specific torts such as infringement of the personality rights, product liability, unfair competition and acts restricting free competition. Moreover, in pursuant to comparative legal systems such as EU and Swiss law, Turkish conflict of law rules also give prominence to place of result on torts. Such rules can be exemplified as place of damage, the habitual residence of the person who sustained damage, affected marketplace or place of business of the damaged party. Nevertheless, in contrast to Regulation on the Applicable of Non-Contractual Obligations, Turkish law does not regulate how to determine lex cause in case of multiple places of damage. Some of the Turkish scholars, asserts the principle of the law which has the most significant connection shall be determined regarding the problem of multiple places of damage. This approach however does not consider the needs and events which created the concept of law which has the most significant relation. The mosaic approach is legal theory which was developed to determine applicable law on cross-border torts. In this master thesis, the position of the Turkish law regarding to cross border torts will be evaluated. After that, applicability of the mosaic approach in Turkish law regarding to the torts which created damages in multiple countries will be explained.