Constitutionalisation of conflict of laws in employment contracts: insights from the Turkish Constitutional Court’s annulment of Article 27(1)

Abstract

This study examines the background leading to the Constitutional Court’s annulment of Article 27(1) of the Turkish PILA, including the grounds for declaring the provision unconstitutional. Following the evaluation of the legislative response, the study examines the applicable law in cases involving recruitment abroad through branches or subsidiaries, group companies, offshore entities, and ships registered under flags of convenience. The study further extends its constitutionalisation analysis beyond Article 27, incorporating the author’s commentary on the optimal formulation of conflict of law rules, considering recent developments in cross-border employment and the Constitutional Court’s findings in the annulment of Article 27(1). This study highlights that border changes and occupations complicate the determination of state sovereignty over territories and hinder the accurate identification of the applicable national law. Furthermore, the study explores complex extraterritorial environments, such as Antarctica, the high seas, and outer space, which further complicate this determination, and raise important questions about the future of conflict of laws in employment contracts. Within this framework, it analyses whether foreign fighters, illegally recruited workers, migrant children forced to work, and personnel recruited by humanitarian or asylum organizations can be considered employees, and how these issues intersect with the constitutionalisation of choice of law rules in employment relationships. The study concludes that effective protection of employees can only be achieved if employment laws across all countries reach acceptable and consistent standards.