1. Country Finder
1.1 Please set out the various regimes applicable to
recognising and enforcing judgments in your jurisdiction
and the names of the countries to which such special
regimes apply.
2. General Regime
2.1 Absent any applicable special regime, what is the
legal framework under which a foreign judgment would
be recognised and enforced in your jurisdiction?
The main legislation that regulates the enforcement and
recognition of foreign judgments is the Code on the Private
International and Procedural Law numbered 5718 (“PIL”).
There are further legislations concerning specific areas.
2.2 What constitutes a ‘judgment’ capable of
recognition and enforcement in your jurisdiction?
A judgment is a decision of the foreign court relating to civil
matters and is final in accordance with the laws of that country.
No further right to appeal must be available for the case in
the foreign courts.
2.3 What requirements (in form and substance) must
a foreign judgment satisfy in order to be recognised and
enforceable in your jurisdiction?
The enforcement and recognition of the foreign judgment and
arbitral award could be done by the competent court if:
a) The subject of the foreign judgment is binding and final
according to the law of the country where the decision was
rendered.
b) The subject matter of the judgment is out of the scope of
the Turkish courts’ exclusive jurisdiction.
c) The decision does not contradict the Turkish public order.
As a general rule, the courts examine whether the above
preconditions are met ex officio.
2.4 What (if any) connection to the jurisdiction is
required for your courts to accept jurisdiction for
recognition and enforcement of a foreign judgment?
A connection to the Turkish courts is not required for the Turkish
courts to accept jurisdiction of a foreign judgment. Therefore,
according to Turkish procedural law rules, a party who applies to
the court should have an interest to obtain such decision.
Accordingly, even though a connection is not needed, the
party that would obtain the recognition and enforcement of the
foreign judgment should have an interest on the recognition or
need to enforce the foreign judgment within the competence of
the Turkish courts.
2.5 Is there a difference between recognition and
enforcement of judgments? If so, what are the legal
effects of recognition and enforcement respectively?
In the recognition of foreign judgments, a mutual agreement
between the two concerned countries is not required. Whereas,
with the enforcement of a foreign judgment, there must be an
agreement, a legal provision, or a de facto application between
Turkey and the concerned foreign country.
The routes for obtaining judicial recognition and enforcement
are very similar. The recognition of a foreign judgment does
not enable it to be enforced in the Turkish courts. It is merely
an acknowledgment that it has the same power as a final judgment
of the local courts and provides conclusive evidence and
decision. Once an enforcement of a foreign judgment decision has been
obtained before the Turkish courts; it can be executed.
2.6 Briefly explain the procedure for recognising and
enforcing a foreign judgment in your jurisdiction.
It is possible for a foreign judgment to be recognised and
enforced as long as the requirements of PIL are satisfied.
Any real person or legal entity that has a right to enforce a
legal action can file a request for the recognition and/or enforcement
of the foreign judgment before the Turkish courts.
A petition is filed at the court and should include the following:
(a) the full names of all the parties, addresses and details of
their legal representatives (if any);
(b) the name of the court which gave the decision along with
the date, number and the summary of the judgment; and
(c) (even if only) part of a foreign judgment is to be enforced,
that particular part must then be stated.
The enforcement petition must include the below which
must be apostilled or certified by the Turkish Consulate in the
country concerned:
(a) an approved judgment of the foreign court or the certified
copy of the approved judgment along with the authorised
translation of the judgment; and
(b) a letter confirming that it is a final judgment of the foreign
court along with the authorised translation of it.
The petition must be served to the defendant along with the
date of the hearing.
The claimant must make an application to the court at the
domicile place of the defendant. If the defendant is a legal
entity, the case should be filed at the registration place of the
headquarters of the legal entity. If the defendant does not have a
residence address in Turkey, the proceeding can be commenced
in any district court in Istanbul, Ankara or Izmir.
Furthermore, a foreign claimant shall be obliged to submit
a warranty before the court for obtaining a recognition and/or
enforcement judgment. This amount is determined by the court
and may be subject to exemptions due to a mutual agreement
between Turkey and the concerned country.
If the specific regimes are applicable for the enforcement of
foreign judgments, these rules must be followed.
2.7 On what grounds can recognition/enforcement of a
judgment be challenged? When can such a challenge be
made?
The defendant may challenge a foreign judgment on the basis
that:
■ the foreign judgment is rendered by the court as unrelated
to the matter in dispute;
■ the foreign judgment has already been wholly or partially
executed; or
■ there is a ground preventing the enforcement of the
foreign judgment.
When a foreign judgment is before the Turkish court for the
recognition and/or enforcement, the Turkish court may only
review whether the necessary conditions of recognition and/
or enforcement of a foreign judgment have been satisfied. In
other words, it is not possible for the Turkish court to review
the substance of the foreign judgment; to examine whether or
not the foreign judgment has been given in accordance with the
applicable jurisdiction.
A case will need to be brought to the court’s attention within
the time limit permitted by the country giving the judgment.
The defendant can appeal the decision on the basis that the time
limit has elapsed.
2.8 What, if any, is the relevant legal framework
applicable to recognising and enforcing foreign
judgments relating to specific subject matters?
In some instances, not all foreign judgments are required to be executed in the Turkish courts. For example, those relating to divorce proceedings, annulment of marriage or denial of a child by the parent only require recognition by the Turkish courts to
have a legal effect under Turkish law. In some instances, for a judgment or an official document to have a legal effect, they must satisfy the requirements of recognition and enforcement in the Turkish courts. This is applicable to
any foreign judgment relating to the adoption of a child. If a judgment has been given by an international court such as the International Court of Justice under PIL, these judgments cannot be recognised or enforced in the Turkish courts.
2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties?
(a) As a condition for bringing all kinds of proceedings whether regarding a foreign judgment or not before the Turkish courts; there should not be a previous binding judgment between the parties on the same issue.
(b) A foreign judgment cannot be recognised or enforced if there is a local pending proceeding between the parties on the same issue.
2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties?
PIL does not regulate the enforcement of foreign judgments when there is a conflicting local law or prior judgment of the same issue. However, the existence of a prior judgment or conflicting local law may be a motif for the court on the recognition and/or enforcement of foreign judgments on the basis of public order.
2.11 What is your court’s approach to recognition and
enforcement of a foreign judgment that purports to
apply the law of your country?
One of the preconditions of the recognition and/or enforcement of a foreign judgment is that the subject matter of the judgment is out of the scope of the Turkish courts’ exclusive jurisdiction. Therefore, if the subject matter of the foreign judgment purports the application of Turkish law; the Turkish court would not give a recognition and/or enforcement decision on the judgment.
2.12 Are there any differences in the rules and
procedure of recognition and enforcement between
the various states/regions/provinces in your country?
Please explain. The law relating to enforcement and recognition of foreign judgments does not vary between different regions in Turkey.
2.13 What is the relevant limitation period to recognise and enforce a foreign judgment?
There is no specific limitation period for the enforcement of foreign judgments under Turkish legislation. However, according to Article 8 of PIL, the limitation period should be subjected to the applicable law of the legal transaction and/or relation.
3 Special Enforcement Regimes Applicable
to Judgments from Certain Countries
3.1 With reference to each of the specific regimes
set out in question 1.1, what requirements (in form
and substance) must the judgment satisfy in order to
be recognised and enforceable under the respective
regime?
1. Under Article 31(3) of CMR, a judgment of a contracting
country will be recognised by the other Contracting States
as soon as the formalities in that country concerned have
been complied with.
2. When a judgment has become enforceable under the
law applied by the court of the State, the judgment can
be enforced in the Turkish courts once the requirements
under PIL have been satisfied as provided under Article 12
of the Convention.
3. This Convention will apply to the recognising and
enforcing of an arbitral award made in the territory of a
State other than Turkey where the recognition and enforcement
of such award is sought.
4. Article 19 of The Hague Convention provides that an
order for costs and expenses can be rendered enforceable
without a hearing in accordance with the Turkish legislation
of which enforcement is sought. This is subject to a
subsequent appeal by the losing party.
5. The Washington Convention applies to arbitral awards
issued by the International Centre for Settlement of
Investment Disputes (“ICSID”) for disputes relating to
an investment between a signatory State and a national of
another signatory State.
3.2 With reference to each of the specific regimes set
out in question 1.1, does the regime specify a difference
between recognition and enforcement? If so, what is the
difference between the legal effect of recognition and
enforcement?
The New York Convention states that once a foreign judgment
has been recognised, it should have the same effect of a local
court judgment. Whereas, the enforcement of a foreign judgment
permits it to be executed in the Turkish courts.
3.3 With reference to each of the specific regimes
set out in question 1.1, briefly explain the procedure for
recognising and enforcing a foreign judgment.
When a judgment is enforceable in a country giving the
decision, it can also be enforceable in a State Party to the
Convention as long as the formalities described in part two
have been complied with. It must relate to proceedings out
of carriage as provided under the Convention. CMR does not permit the merits of the case to be reopened in the country where a judgment is being enforced. The judgments applicable under this convention are judgments
after trial, judgment by default and settlements confirmed by an order of the court.
2. Pursuant to the provisions of the Convention, once the
judgment has been enforced in the State giving the decision,
such judgment will be enforceable in the Turkish courts as long as it satisfies the requirements under the domestic law.
3. For a foreign judgment to be recognised and enforced the party applying must supply:
(a) a duly authenticated original award or a duly certified copy; and
(b) an original agreement or a duly certified copy.
If the award or agreement is not in Turkish, the party
applying for recognition or enforcement of the award
needs to produce a Turkish translation of these documents
and this must be certified by an official translator or a diplomatic or consular agent.
4. An order for costs and expenses will be enforceable
without a hearing in any other Contracting State; the
competent authority in Turkey will examine:
(a) the law of the country in which the judgment is being
rendered (the copy of the judgment must be authentic);
(b) if the decision has the force of res judicata; and
(c) the translation is provided, which is certified as correct
by a diplomatic officer or a consular agent.
5. Each of the Contracting States will recognise an award
rendered pursuant to the Convention as binding and
enforceable within its territories as if it was a final judgment
of a court in that State. The party seeking recognition
or enforcement of the award needs to provide a copy
of the award certified by the Secretary-General.
For the Washington Convention, no exequatur will
be necessary and, therefore, enforcement proceedings
according to the procedural law applicable to the member
state where the enforcement is made could commence
automatically.
3.4 With reference to each of the specific regimes set
out in question 1.1, on what grounds can recognition/
enforcement of a judgment be challenged under the
special regime? When can such a challenge be made?
1. Enforcement of a judgment under CMR may be challenged
on the basis that it relates to interim judgments or
award of damages or cost orders made against a plaintiff
who has failed in his action.
2. Enforcement of a judgment under this Convention may be
challenged on the grounds that:
(a) it is provisionally enforceable;
(b) it relates to award of damages; or
(c) it is a cost order made against a plaintiff who fails in
his action in the State giving the original judgment.
The merits of the case relating to this Convention cannot
be reviewed by the Turkish courts.
3. Recognition and enforcement of foreign arbitral awards
under the Convention may be challenged on the grounds
that:
(a) the agreement is not valid;
(b) a proper notice of arbitral proceedings was not given
to the party against whom the award is invoked;
(c) it falls outside of the arbitration agreement;
(d) the arbitral procedure is not in accordance with the
agreement of the parties or was not in accordance with
the law of the country where the arbitration took place;
(e) the award is not yet binding on the parties, or has been
set aside or suspended; or
(f ) the subject matter of the difference is not capable of
settlement by arbitration under Turkish law.
4. An order will be challenged under this Convention if it
does not relate to orders for costs and expenses.
5. An award can be challenged if the requirements are not
fulfilled.
4 Enforcement
4.1 Once a foreign judgment is recognised and
enforced, what are the general methods of enforcement
available to a judgment creditor?
There are two main enforcement methods in Turkey: execution
proceedings; and bankruptcy proceedings.
An ordinary execution proceeding may be commenced
against the debtors in Turkey. In order to do so, a payment
order shall be prepared and served on the debtor via the Bailiff
Office. Once the payment orders are served, the debtor is entitled
to object to the payment order within seven days as of the
service of the same. If the debtor fails to object to the payment
order within the allowed period of time, the payment order shall
become final and binding and any asset of the debtor including
the bank accounts, movables and real estates may be seized
and sold through auction. If the debtor raises objection to the
payment order, the substantive proceedings shall be commenced
for the cancellation of objections which is likely to take approximately
12 months of litigation.
Bankruptcy proceedings only apply to merchants in relation
to their unpaid and due debts. The process is initiated by the
creditor making a demand to the Bailiff Office in the debtor’s
principal place of business as registered at the trade registry.
Once the demand is made, a payment order will be served on
the debtor. If the debtor pays the debt within seven days of
receiving the payment order the bankruptcy proceedings will
be finalised.
5 Other Matters
5.1 Have there been any noteworthy recent (in the
last 12 months) legal developments in your jurisdiction
relevant to the recognition and enforcement of foreign
judgments? Please provide a brief description.
There have not been any recent legal developments regarding
the recognition and enforcement of foreign judgments. The
relevant legislation, PIL, has been applied for some time now.
This is important for international relations and the recognition
of foreign judgments in Turkey.
We are at a period where a lot of disputes or matters between
parties have an international element. Therefore, PIL is important
and is a modern legislation which is not in need of urgent
reform.
The development in this area is usually dependent on the
subject matter of the case. If there is a total disregard of Turkish
law in the country concerned, it would be typical for the Turkish
courts to reject such foreign judgment.
5.2 Are there any particular tips you would give, or
critical issues that you would flag, to clients seeking
to recognise and enforce a foreign judgment in your
jurisdiction?
The timescale should be taken into consideration. It is not a
quick process and different timescales might be applicable for
the enforcement and appeal stages. The enforcement procedure
might take around eight to 12 months and the appeal procedure
is likely to take a further six to eight months.
The procedure should be followed carefully as a right to
appeal may be available to the party in default in the country
giving the decision.
There is no specific treatment to different countries under
Turkish law. For example, it does not matter whether the
foreign judgment was given in the English courts or the courts
of Panama.
As long as the preconditions and requirements under Turkish
law are fully satisfied, the foreign judgment would be recognised
and enforced by the Turkish courts.
Due to the variety of regimes available as discussed above, it
might be essential that clients who wish to enforce foreign judgments
in Turkey consider if any of the regimes would be applicable
to determine the procedural route to be taken to enforce
a judgment.
Selçuk Esenyel
Managing Partner