NEWSLETTER-2020-metin

350 NEWSLETTER 2020 main work place in this clause is the place of the headquarters of the employer 2 . However, pursuant to paragraph four of the same article, in consideration of all of the circumstances, if there is a law more tightly related to the contract, that particular law shall govern. It is understood from the above statedArticle 27 of the AIPPL that the parties are free to choose the applicable law, but if the applicable law chosen by the parties offers less protection to the employee in comparison to the law of the employee’s habitual work place, then the law of the habitual work place that grants more protection to employee shall be applied. Due to the lack of equal negotiation power between employers and employees, and since the applicable law chosen by employers may be imposed on employees, the legislator has chosen to regulate this article. If the chosen law grants more protection to the employee than the habitual work place law, the chosen law shall be applied with all of its provisions without any legal limitations 3 . In determining which law is more beneficial to the employee, specific provisions of each law applicable to the dispute are compared, rather than comparing the provisions of both laws, in general 4 . When determining the habitual work place, employment contract shall be observed in general, and the state, where the employee domi- nantly conducts his/her job by considering the quantity, quality and duration of the work, matters most and, thus, the habitual work place is accepted as “the work place where the material and dominant part of the work takes place.” 5 Turkish employees who are employed for overseas projects are generally employees recruited specifically for such projects and for the duration of such projects. For the employees recruited for a specific project abroad, an inference can be made that the habitual work place of such employees is the foreign state, hence the provisions of Turkish law shall not be applied to them. However, as explained below, the Turkish Court of Cassation treats this matter 2 Tarman, Zeynep Derya: Yabancılık Unsuru Taşıyan İş Sözleşmelerine Uygula- nacak Hukuk, AUHFD, 59 (3) 2010: 521-550, p.537. 3 Nomer , Ergin: Devletler Hususi Hukuku, 22. Bası, Beta, 2017, p. 345. 4 Nomer, p. 345. 5 Sarıöz Büyükalp, A. İpek: Mutad İşyeri Kavramı ve MÖHUK m.27/3’ün Uygulanması Sorunu, Hacettepe HFD, 8(2) 2018, 195 – 248, p.206. <https://der- gipark.org.tr/tr/download/article-file/659223> (Access date: 23.08.2020)