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Turkey: The Recognition and Enforcement of Foreign Judgments
Turkey has entered into bilateral treaties with Albania, Algeria, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, China, Croatia, Egypt, Georgia, Iran, Iraq, Italy, Kazakhstan, Kuwait, Kyrgyzstan, Lithuania, Macedonia, Moldova, Mongolia, Oman, Poland, Republic of Turkish Northern Cyprus, Romania, Slovakia, Tajikistan, Tunisia, Turkmenistan, Ukraine and Uzbekistan for the reciprocal recognition and enforcement of foreign judgments and judicial assistance in respect of commercial and civil matters.
Beyond these treaties, Turkish courts recognise and enforce the judgments of many countries, such as Germany, the United Kingdom and the United States, on the basis of de facto reciprocity between these countries and Turkey. Please note that the evaluation of de facto reciprocity is conducted on a state-by-state basis for the United States.
There are two ways to give an effect to a foreign court decision in Turkey:
a- the recognition of a foreign judgment and,
b- the recognition and enforcement of a foreign judgment, pursuant to International Private and Civil Procedure Law No. 5718 (the Code No.5718).
recognition of a foreign court ruling means that court ruling can not be enforced in Turkey compulsorily; but provides the acknowledgement of the same of having the power of a final judgment. In other words, if the foreign judgment is only recognized by the Turkish courts, the mentioned ruling, according to Article 58 of the Code;
- may be taken into account as a definite and final judgment in another case brought before the Turkish courts and that case may be dismissed with prejudice; or
- may be taken into account as a conclusive evidence in another case brought before the Turkish Courts; or
- may give right to the related person to have the respective authority in Turkey make an administrative act.
In order for such decision to have an effect to be executed in Turkey, it must be held to be enforced in addition to being recognized by the Turkish Courts. In this respect, Article 50 of the Code No.5718 states that a judgment in a civil case, which has been given by a foreign court and has become finalized according to the law of the country where the respective court is located, can only be enforced, if the competent Turkish Court rules for the recognition and enforcement of the said foreign court ruling. For the recognition and enforcement of a foreign court judgment in Turkey, the following conditions must be fulfilled collectively:
1. There should be (a) a reciprocity agreement between Turkey and the country in which the decision is rendered or (b) a legal provision or “de facto” application which allows the enforcement of the decisions rendered by the Turkish Courts.
2. The decision of the foreign court should be “final” in accordance with the laws applied in the country in which the court is competent. For the purposes of this clause; “final” means there is not any legal remedy which may be pursued against such decision of the court such as appeal, application to upper court etc.
3. The decision of the foreign court should not be rendered in relation with a matter which is within the exclusive competence of the Turkish courts.
4. The decision of the foreign court should not be against the Turkish public order. The essential matter here is that it is not required for the content of such decision to be in compliance with the Turkish public order. Merely, the consequences that may arise as a result of the enforcement of such decision in Turkey should not constitute a contradiction with the Turkish public order.
5. The court should have enabled the other party to use its right to defend itself before the court.
In addition to the matters determined in article 50 of the PIL, it has been opined that not only judgments rendered by civil courts but also the decisions rendered by the administrative courts are enforceable, provided that they are in relation to civil law matters.
The enforcement of interim injunctions is not regulated under the PIL. With reference to article 50 of the PIL, in Turkey there is a view that interim decisions will only be enforceable provided that the dispute is finally resolved by the foreign court with these interim decisions. However, there is also the opinion that, in practice, the interim injunctions are not enforceable under Turkish law since they are not final decisions.
Article 50 of the PIL further sets forth that foreign judgments that are rendered by criminal courts with regard to personal rights are enforceable as well.
How can defendants challenge the foreign judgment?
Pursuant to articles 54 and 55 of the PIL the defendant may challenge the foreign judgment by alleging that:
• there is no contractual or de facto reciprocity;
• the judgment is on an issue subject to the exclusive jurisdiction of the courts;
• the foreign judgment is rendered by a court unrelated to the matter in dispute and the parties;
• the judgment violates Turkish public order;
• the foreign court did not respect the right of defence of the party against whom the judgment is requested to be enforced in Turkey;
• the foreign judgment is not final under the laws of the foreign country;
• there is a ground preventing the enforcement of the foreign judgment (eg, a reason for the restitution of the judgment (see the explanation under question 18); or
• the foreign judgment has been already wholly or partially executed.
Please note that when the foreign judgment is brought before the Turkish courts by demanding the recognition and enforcement of the same, the court will review whether the conditions above are fulfilled or not. Under Turkish law, defendants cannot raise merits-based defences. Pursuant to article 55 of the PIL the defendant is limited to narrow grounds for challenging a foreign judgment. Hence, once the Turkish courts come to the conclusion that the conditions mentioned above are collectively fulfilled, then the Courts must hold for the recognition and enforcement of such foreign judgment.
Attorneys of Duman Law & Consultancy are fluent in English and we provide effective legal services for Recognition And Enforcement of Foreign Judgments at international level.
Please Contact Us for further information and legal support.