The Role of Expert Witness in Obtaining Information on the Content of Foreign Law in Private International Law Cases

Abstract

In private international law disputes, Turkish courts are obliged to apply ex officio the conflict of laws rules in the Code on Private International Law and Procedural Law no.5718 (CPIL) and other Codes and the foreign law determined in accordance with these rules (Art.2(1) of CPIL). Turkish courts can resort to various means, especially the assistance of the parties, in order to obtain information on the content of foreign law. In Turkish law, it is expressly prohibited to resort to an expert in legal matters pursuant to Article 266 of the Code of Civil Procedure no. 6100 and Article 3 of the Expertise Law no. 6754. In the face of the acceptance of foreign law as a “law” in Turkish private international law system, the question of whether it is possible to resort to an expert witness, which is one of the means frequently used by Turkish courts to obtain the content of foreign law, has arisen. In this study, firstly, as a result of the analysis of Turkish doctrine and court practice, it was concluded that obtaining information about the content of foreign law does not fall within the scope of the prohibition of resorting to an expert witness in legal matters. Then, in addition to the qualifications sought in the Codes, the other qualificaitons of expert witness, who is been resorted to obtain information on foreign law, is examined in the light of decisions of Turkish Court of Cassation. Finally, the limits and scope of the expert examination regarding the determination and obtaining of the content of foreign law are discussed. In this context, the conditions that the report of expert witness cannot be related to Turkish legislation and in violation of Art. 2(1) of CPIL and the report cannot include legal assessment, which are stipulated by the Court, are examined in detail.