With the growth of commercial activities, trade has increasingly moved beyond national borders, taking on a global dimension. This shift has introduced new challenges in resolving disputes of an international nature. When a dispute involves foreign elements, the question of which country’s laws should apply is addressed through the principles of conflict of laws. However, in international trade, complications arise because different countries’ legal systems may prescribe varying rules for similar issues. The first consideration in determining the applicable law is whether an international convention exists to which Türkiye is a party. To address these issues, Türkiye has joined international agreements developed by global organizations to facilitate the resolution of cross-border commercial disputes.
To ensure uniformity in international trade The United Nations Convention on Contracts for the International Sale of Goods (CISG) has been developed in purchasing transactions and has been ratified by 95 member states. The multilateral treaty (CISG) was ratified by Türkiye in 2010 and started to be implemented on August 1, 2011. There have been many decisions on this issue before Turkish courts. Nevertheless, when we look at the approach of Turkish courts, it is observed that there are many decisions with controversial contents.
Article 1 of the agreement outlines the scope of application and applicability of the CISG in two ways: direct and indirect. According to Article 1(1)(a), two conditions must be met for the convention to apply directly. First, the parties to the contract must be from different states; second, these states must be members of the CISG. Additionally, it is essential to check if any state party has made a reservation that would prevent the CISG from being applied.
To determine if the CISG is applicable to a dispute, the contract must qualify both in terms of subject matter and location. While the CISG governs contracts for the sale of goods, certain types of purchase transactions are excluded from its scope:
-Purchasing goods for personal or family needs or household needs,
-Sales made through auction,
-Sales made pursuant to force execution or other law,
-Securities, bills of exchange and money,
-Sale of ships, boats, air cushioned vehicles or aircraft,
-Sale of electricity.
When the implementation of the CISG by the Turkish courts is considered, it is seen that although the agreement has been in force in our country since 2011, we find out that its scope of application is very narrow and controversial applications are made. There are differences between the CISG and the Turkish legal system in terms of impediments to performance and defects and this is one of the reasons why CISG, which has been in force for more than ten years, has such a narrow place of applications. While the Turkish legal system does not uniformly define impediments to performance, the CISG does not differentiate in terms of impediments to performance. This situation arises from the fact that Turkish law has adopted the continental European legal system, while the CISG has adopted the Anglo-Saxon legal system. Similarly, in terms of fault, the Turkish legal system is based on fault liability, where the debtor can be released from liability if he proves that he is faultless, whereas in the CISG, which adopts the Anglo-Saxon legal system, it is not crucial for the debtor to prove that he is faultless in contractual breaches. There are also differences between the CISG and the Turkish legal system in terms of the rights of the buyer in case of performance obstacles. In terms of defect, both the CISG and the Turkish legal system impose an obligation on the buyer to inspect the goods within a reasonable period. However, while Article 39/2 of the CISG imposes a two-year upper limit for the notification of hidden defects in any case, Article 223/2 of the TCO regulates that hidden defects must be notified immediately. (Ş. Esra Kiraz, 2023)
The existence of an international agreement directly influences a country’s domestic law. As noted, Turkey is a party to the CISG. Due to its strategic geographical location, active import-export activities, and role as a transit hub, Turkey frequently encounters foreign-based commercial disputes. This context makes it essential for Turkish courts to be proficient in applying and interpreting the CISG. However, some recent high court rulings have been unexpected. Recent decisions by the Istanbul Regional Court of Justice and the Court of Cassation have determined that the CISG does not apply to automobile sales due to a translation error. This misapplication arose from interpreting the term “hovercraft”—defined as “a vehicle that moves just above the surface of land or water on a cushion of air produced by engines beneath it”—as “air-cushioned vehicle.” How Turkish courts will apply the CISG in the future remains an important question, particularly given the impact of Turkey’s robust international trade environment.
