Ulgener
- Gül Alpay
In order for foreign court or arbitral awards (together referred to as the “foreign judgment”) to be valid in Turkey, a recognition and enforcement action must be filed. This article aims to provide the legal framework, procedures, and challenges associated with the recognition and enforcement actions in the Turkish jurisdiction.
Conditions for Recognition and Enforcement
The conditions for recognition and enforcement proceedings are divided into two as "prerequisites" and "substantive conditions". According to Article 50 of the Law No. 5718 on Private International Law and Procedural Law (IPPL), the prerequisites for a recognition or enforcement foreign judgment are as follows:
- The existence of a judgment issued by a foreign court or arbitrator.
- The foreign judgment must be related to civil proceedings.
- The foreign judgment must be finalized.
The substantive conditions required for the recognition and enforcement request to be accepted are regulated under Article 58 of the LPCL. These are;
- The existence of reciprocity between Turkey and the country where the foreign judgment was rendered (This condition is not sought in recognition actions).
- The foreign judgment must have been rendered in a matter that does not fall within the exclusive jurisdiction of Turkish courts, or, provided that the defendant objects, the foreign judgment must not have been rendered by a court of a state that recognizes jurisdiction over the subject matter of the case or the parties, even though it has no real relationship with the parties.
- The foreign judgment must not be contrary to public order.
- The foreign judgment must be made in compliance with the defendant's rights of defence.
Documents Required for Recognition and Enforcement
The following documents are required for the lawsuits to be filed for the recognition and enforcement of foreign judgments;
- The original copy of the judgment issued by the foreign court or arbitrator. (wet signed, sealed).
- A certificate or document showing that the foreign judgment has been finalized (wet signed, sealed).
- Apostille Commentary.
- Notarized Turkish translation of the judgment by a sworn translator.
Court Fees in Recognition and Enforcement Proceedings
The lawsuits to be filed for the enforcement of the foreign judgments are subject to a fee in accordance with the relevant tariff. In disputes that are related to a certain value, a proportional fee is charged (1/4 of 68.31 per thousand of the amount of the claim). In cases that are not related to a certain value, a fixed fee is charged (fixed fee for 2023 is TRY 595.00).
Preventing the Debtor from Evading Property During the Proceedings
It is possible to request the court to impose a precautionary seizure on the debtor's assets in order to prevent the debtor from evading property during the procedures. The precautionary seizure request can be filed before the Recognition and Enforcement case is launched or with an additional submission while the case is being launched or even during the pendency of it.
As a rule, the creditor requesting a precautionary seizure is obliged to deposit collateral in order to cover the debtor's loss in the event that this seizure is unfair. In practice, the amount of collateral is usually determined as ten percent of the claim amount; however in some cases, the court may determine a higher amount. The collateral can be submitted to the court in the form of a bank letter of guarantee issued by a Turkish bank or it can be deposited in cash into a bank account to be opened in the name of the court.
If the conditions specified in the law are present in the case, the court establishes a precautionary seizure on the assets of the debtor until the case is concluded. Depending on the outcome of the case, the creditor can retrieve the debt through executing the procedures of confiscation on debtor’s assets and the liquidation proceedings.
Duration of Recognition and Enforcement Proceedings
It may take approximately one year for the Court of First Instance to grant a decision. In case of appeal, the appellate review may take approximately 1 year to 1.5 years for the The Court of First Instance’s recognition and enforcement decision to become final.
Conclusion
The recognition and enforcement of foreign court or arbitral awards in Turkey entail a well-defined legal framework with specific conditions and procedures. Parties seeking to validate foreign judgments within the Turkish jurisdiction should ensure that they meet the prerequisites and substantive conditions stipulated by the law. Seeking legal assistance can be invaluable in navigating these processes, ultimately safeguarding the interests of the parties involved.