Every country has its own sovereignty thus the court decisions of each state are only binding within their boundaries. Only the Turkish Court decisions have binding power in Turkey. Foreign court decision can only be enforceable in Turkey after they are granted an enforcement by a competent Turkish court.
Foreign court decision can only be enforceable if the decision is enforced by a Turkish court decision. Foreign judgements for which a judgement of enforcement has been given shall be executed as if they were judgements given by Turkish courts. They will have the same effect as if they are given by Turkish Courts
Foreign court decrees on civil lawsuits shall be subject to the recognition and enforcement decision of the competent Turkish court in order to have a binding power in Turkey. Foreign court decision has to be recognized or enforced by a Turkish Court. This application is a litigatory process. Upon the application Turkish judge will only review the foreign court decisions on the basis of which recognition and enforcement conditions are met regarding Turkish Private Law regulations. Turkish Judge cannot review the merit of the case.
There are three types of court decisions; decretive decisions, constitute decisions performance decisions.
Decretive decisions and Constitute decisions does not need an enforcement. Therefor these decisions are subject to the Recognition in order to have an effect in Turkey. For example, divorce decisions are constitute decisions therefor they are subject to recognition.
On the other hand, performance decisions require an action by a state such as; enforcement procedures, injunction, attachment etc.
Enforcement also has recognition effect for the accepted foreign court decisions. Therefor it saves time and costs from filing two lawsuits for the applicant.
Foreign court decisions need to be assessed whether they are subject to recognition or enforcement in order to save time and costs which the client may loose both if assessment is wrongfully done and falsely action have taken.
Table of Contents
ToggleEnforcement of Foreign Court Decisions in Turkey
For a foreign court decision to have binding power in Turkey, it has to meet certain conditions. These conditions are mentioned in article 54,58 Turkish Private International Law provisions. Conditions for enforcement provisions set forth in the TPIL are also binding for the recognition applications.
- General Conditions
- Capacity to file a recognition or enforcement case has to be fulfilled. The requestor of recognition or enforcement decision has to have a legal interest.
The petition should also contain the following:
- The names, surnames, and addresses of the parties and their legal representatives,
- The court of the state that has rendered the decree subject to the enforcement and the name of the court, the date and number of the decree, and a summary of the judgment,
- If partial enforcement is sought, an indication as to which part of the decree is the subject of the request,
- The original copy of the foreign court decree certified by the foreign state authorities and certified translation,
- A document or written statement from the authorities of the state which officially confirms that the court decree is final and a certified translation.
General conditions determines whether the competent Turkish court should accept the recognition or enforcement petition or not.
- Main Conditions
- Upon principle of reciprocity, foreign court decision may only be granted recognition and enforcement if only Turkish court decision can also be recognized and enforced in foreign state. Reciprocity may exist by international convention, bilateral treaty or de facto application (practice). Reciprocity is only a condition for enforcement. For the recognition, since it has no enforceable effect, reciprocity is not a condition.
- Foreign court judgement must not overrule exclusive jurisdiction of Turkish court. Exclusive jurisdiction means the dispute arising out of relevent matter must be resolved by Turkish Court.
- Foreign court decision must not given by the court of state granting itself exorbitant jurisdiction on the condition that the defendant raises an objection to that effect.
- The foreign court decision should not be manifestly/clearly contrary to public policy. Public policy of Turkey has no description as a regulation. Turkish judge shall determine whether the foreign court decree is contrary to public policy or not. Turkish Court of Appeal draws the limits of public policy; fundamantel principles of Turkish law, human rights and general ethics and constitutional law principles of Turkey, the main principles classified as irrevocable and undeniable values in Turkish law. If the foreign court decision violated public policy of Turkey then it is not going to be recognized and enforced in Turkey.
- Foreign court decision which is requested to be recognized or enforced should not be a decision that breaches the right of defence of the other party. If the person against whom enforcement or recognition is requested has been duly summoned pursuant to the law of foreign State or the defendant have not been represented before the foreign court either personally or by a representative then the right of defence considered to be breached.
- The foreign court judgement should not have been partially or wholly fulfilled. If the foreign court decree have been fulfilled by the counter party then there is no legal interest for the enforcement or recognition.
Jurisdiction and Competency of Court
Competent court is mentioned in Article 51 of TPIL. Civil court of first instance has the competency on enforcement decisions.
Jurisdiction of the court is in the place of habitual residence of the person against whom enforcement is requested if he/she does have a domicile in Turkey, or from one of the courts in Istanbul, Ankara, or Izmir if he/she does not have a domicile or habitual residence in Turkey.
Article 51
The Courts of First Instance shall have jurisdiction over enforcement decisions.
These decisions shall be requested from the court at the place of habitual residence of the person against whom enforcement is requested if he/she does have a domicile in Turkey, or from one of the courts in Istanbul, Ankara, or Izmir if he/she does not have a domicile or habitual residence in Turkey.
Recognition of Foreign Court Decisions in Turkey
Recognition of Foreign Court Judgments
Every country has its own sovereignty, thus the court decisions of each state are only binding within their boundaries. Only the Turkish court decisions have binding power in Turkey.
Foreign court decrees on civil lawsuits shall be subject to the recognition and enforcement decision of the competent Turkish court in order to have a binding power in Turkey. Foreign court decision has to be recognized or enforced by a Turkish Court. This application is a litigatory process. Upon the application Turkish judge will only review the foreign court decisions on the basis of which recognition and enforcement conditions are met regarding Turkish Private Law regulations. Turkish Judge cannot review the merit of the case.
There are three types of court decisions; decretive decisions, constitute decisions performance decisions.
Decretive decisions and Constitute decisions does not need an enforcement. Therefor these decisions are subject to the Recognition in order to have an effect in Turkey. For example, divorce decisions are constitute decisions therefor they are subject to recognition.
On the other hand, performance decisions require an action by a state such as; enforcement procedures, injunction, attachment etc.
Enforcement also has recognition effect for the accepted foreign court decisions. Therefor it saves time and costs from filing two lawsuits for the applicant.
Foreign court decisions need to be assessed whether they are subject to recognition or enforcement in order to save time and costs which the client may loose both if assessment is wrongfully done and falsely action have taken.
