Uluslararası Elektronik Fon Transferine Uygulanacak Hukuk

This monograph, entitled “The Law Applicable to International Electronic Funds Transfer” (EFT), is the first monograph in Turkish law examining the conflict of laws aspects of international EFTs. It is based on the Ph.D. thesis of the author which was prepared at the University of Ankara, the Institute of Social Sciences, Department of Private Law (Private International Law), and which was unanimously accepted by a jury consisting of Prof. Dr. Arif Kocaman (University of Ankara), Prof. Dr. Bilgin Tiryakioğlu (University of Bilkent), Prof. Dr. Gülin Güngör (University of Ankara), Prof. Dr. Bilge Tanrıbilir (University of Gazi) and Assoc. Prof. Dr. Rifat Erten (University of Ankara) in a public viva on 15.12.2014.
EFT is one of the most common ways of making international payments through banking channels. It is a chain transaction which consists of a series of successive operations aiming to realise one single economic purpose, and which can accordingly be approached from different perspectives under the segmented approach and the unitary approach. Since an international EFT involves parties (particularly intermediary banks) from different countries, foreign currency exchanges, multiple legal systems and time-zones, choice of law issues naturally arise from the transfer in cases where the transfer is not completed, or it is completed erroneously or delayed because of a reason occurring at one of the segments of the transfer chain. In that case, the first issue to determine is the law applicable to EFT, which poses a number of difficulties because of the complicated nature of the transaction, the lack of internationally agreed choice of law rules on the issue, and also the lack of thorough academic research to be of guidance.
The monograph undertakes a comprehensive and comparative in-depth analysis on the law applicable to international EFT by considering the initiatives of the United Nations Commission on International Trade Law, the Hague Conference on Private International Law, and the International Chamber of Commerce in this area, the legal documents and acts dealing with the subject, and the arguments in the literature and in courts’ practice in different jurisdictions including Turkey, Switzerland, Germany, Italy, France, Austria, the United Kingdom, the European Union, the United States of America, Canada, Japan and South Africa. The monograph consists of two chapters. The first chapter addresses the technical and substantive legal aspects of international EFTs in general. The second chapter discusses the applicable law issues including characterisation, determination of the governing law, and effects of public policy and mandatory rules, by taking account of different possibilities under the unitary and segmented approaches. The issues are examined under Turkish Law in a separate section in each chapter, following a comparative analysis of different jurisdictions.
The monograph aims to make a significant contribution to private international law with its originality and substantive insights. It also aims to be of assistance particularly to judges and legal practitioners, dealing with aspects of these complicated transactions, by increasing the awareness as regards the choice of law aspects of international EFTs and by offering workable solutions to problems faced in the area. It is hoped that the monograph will encourage and provide guidance for future work in this area which up to now has been largely neglected by academics in private international law and in comparative law.