Within the Scope of Right to Fair Trial the Principle of “Forum Necessitatis” and Its Effect on Turkish International Jurisdiction Rules

Abstract

As a human right, the right of access to court is within the scope of the right to a fair trial and limited by the decisions of the European Court of Human Rights. In private law disputes involving foreign element, the negative conflict of international jurisdiction rules of the state’s results in the plaintiff's inability to find a court to open her/his case. Also ın the cases lack of jurisdiction agreement, the plaintiff whose right of access to the court is violated, can only access a court with the initiation of the principle of forum necessitatis. In order to have a court involving international jurisdiction by the application of the principle of forum necessitatis, it must be impossible to file the case in another state and there must be a reasonable link between the state applying the principle of the forum necessitatis and the dispute. The broad interpretation of the exceptional principle of forum necessitatis will cause the states to apply exorbitant jurisdiction rules. This situation may prejudice the defendant's right to defence as well as preventing the recognition and enforcement of the decisions given by the courts having exorbitant jurisdiction. It is crucial to determine the boundaries of the principle of forum necessitatis in order to avoid experiencing mentioned negativities. In this study, the decisions of the European Court of Human Rights applying the forum necessitatis principle will be examined. Also the provisions of the European Union regulations and the law of some countries which regulate the principle of forum necessitatis will be mentioned. Finally, by explaining the judicial decisions on the subject in Turkish Law, it will be tried to determine whether there is a reflection of this principle on Turkish international jurisdiction rules.