In recent years, the increase of cultural, political, commercial, and economic interactions between countries has raised the importance of contracts with foreign elements. Among these contracts, employment contracts have a special place. Since the parties in employment contracts do not have equal conditions, and the employee is in a weaker position compared to the employer, the regulations in this field have particular importance in terms of private international law.
The issues of the applicable law and the competent court in disputes arising from employment contracts containing foreign elements are regulated in Articles 27 and 44 of the International Private and Procedural Law No. 5718 (IPPL). Therefore, in employment contracts with foreign elements, both the determination of the law applicable to the parties and the identification of the court where disputes will be resolved are fundamental matters that must be considered in the light of the provisions of IPPL.
Applicable Law
In the context of an employment contract, a foreign element exists when the employee or the employer is foreign, when the employer’s business center is in a foreign country, when the employee usually performs the work in a foreign country, or when the employment relationship is closely connected with a foreign country.
In such a case, regarding both the determination of the applicable law and the competent court, some regulations in favor of the employee have been included, based on the idea that the employee is in a weaker economic position, does not have equal conditions in negotiating the terms of the contract, and therefore needs legal protection.
The determination of the law to be applied in disputes arising from employment contracts containing foreign elements varies depending on whether the parties have chosen the law in the contract. In this regard, it can be examined under two separate headings: when the parties have chosen the applicable law in employment contracts with foreign elements, and when the applicable law in such contracts has not been determined by the parties.
If the parties have chosen the law, according to the first paragraph of Article 27 of IPPL:
“Employment contracts are subject to the law chosen by the parties in the contract, provided that the minimum protection granted by the mandatory provisions of the law of the employee’s usual workplace is reserved.”
The parties’ right to choose the law applicable to disputes arising from an employment contract involving foreign elements shall only be exercisable and valid if the chosen law provides the minimum protection afforded to the employee under the mandatory provisions of the law of the employee’s habitual place of work. If the parties agree on a law that does not meet this condition in the employment contract, the mandatory provisions of the law of the employee’s habitual place of work shall apply.
If the parties have not chosen the applicable law, in accordance with the second, third, and fourth paragraphs of Article 27 of the IPPL;
– If the parties have not chosen the applicable law, the law of the place where the employee habitually performs his/her work shall apply to the employment contract. If the employee temporarily performs his/her work in another country, that place shall not be considered the habitual place of work.
– If the employee does not perform his/her work in a specific country on a regular basis but continuously performs his/her work in more than one country, the employment contract shall be governed by the law of the country where the employer’s main place of business is located.
– However, if there is a law more closely related to the employment contract, except for the provisions of the law of the place where the work is performed that must be applied at the time the work is performed, this law may be applied to the contract instead of the provisions of the first, second, and third paragraphs.
However, it should be noted that, pursuant to Article 5 of the IPPL, foreign law applicable to a dispute shall not be applied if it is clearly contrary to Turkish public policy, and Turkish law shall apply when deemed necessary. Nevertheless, the existence of a violation of public policy must be assessed separately for each specific dispute.
Authorized Court
Employees who are in a weak position vis-à-vis their employers are granted the right to file lawsuits against their employers in more than one competent court. This regulation reflects the legislator’s intention to protect employees.
According to Article 44 of the IPPL, the courts with jurisdiction are the court where the employee’s usual place of work is located, the court where the employer is domiciled, the court where the employee is domiciled, and the Turkish courts where the employer’s usual residence is located. If at least one of the courts listed above indicates Turkish courts, the case may be heard in Turkish courts, and in such a case, the international jurisdiction of Turkish courts applies.
In cases where the employer files a lawsuit against the employee arising from a dispute related to the employment contract or employment relationship, the competent court is more strictly defined. Pursuant to Article 44 of the IPPL, only the court where the employee’s usual place of work is located in Turkey has jurisdiction in such cases.
Authorization Agreement
According to Article 47/2 of the IPPL, the jurisdiction of the courts provided for in Articles 44, 45, and 46 of the IPPL cannot be waived by agreement between the parties. Therefore, in cases where Turkish courts have jurisdiction under these provisions, a jurisdiction agreement entered into by the parties does not eliminate the jurisdiction of Turkish courts.
In other words, in disputes arising from employment contracts involving foreign elements, even if the employer or employee raises an objection on the grounds that Turkish courts lack jurisdiction based on the jurisdiction agreement, such an objection will not be accepted. Thus, the jurisdiction of Turkish courts is guaranteed in accordance with the principle of protecting employees.
Latest Developments
With the 10th Judicial Package (Law No. 7550) that came into effect in June 2025 in Turkey, Article 27 of the IPPL was revised following the Constitutional Court’s decision to annul it. The new regulation strengthens the protection of employees in determining the law applicable to employment contracts and provides more guarantees to employees than before.
This regulation emphasizes that even if the parties have chosen a law, the mandatory provisions of the law of the employee’s habitual workplace that provide minimum protection remain valid. In addition,
considering the specific circumstances, it is also possible to apply the law that is most closely connected to the employment contract.
Conclusion
In private international law, the main principle in disputes arising from employment contracts with foreign elements is the protection of the employee. In this context, special regulations in favor of the employee are provided for determining the competent court and the applicable law; while the employee is given the right to bring a case before more than one court, the competent court for cases brought by the employer is determined in a more limited way. The mandatory provisions of the IPPL and the protection of public order provide a safeguard against foreign law choices that may be against the employee.
As a result, with the increase of international employment relations and the rise in the employment of foreign workers, the provisions of the IPPL provide an important legal framework that offers protection in favor of the employee.