Enforcement of Foreign Judgments 2024 in Turkey - Part 1

Treaties

Is your country party to any bilateral or multilateral treaties for the reciprocal recognition and enforcement of foreign judgments? What is the country’s approach to entering into these treaties, and what, if any, amendments or reservations has your country made to such treaties?

Except for multilateral treaties on family law, Turkey is not a signatory to multilateral treaties for the reciprocal recognition and enforcement of foreign judgments. However, Turkey is a party to conventions such as the Convention on the Contract for the International Carriage of Goods by Road 1956 and the Convention concerning International Carriage by Rail 1985, which contain provisions for the recognition and enforcement of foreign judgments, but only for disputes concerning the application of the aforementioned conventions.

Turkey has also entered into bilateral treaties with Albania, Algeria, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, China, Croatia, Georgia, Iran, Iraq, Italy, Kazakhstan, Kyrgyzstan, Lithuania, Macedonia, Moldova, Mongolia, Oman, Poland, Northern Cyprus, Romania, Slovakia, Syria, 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.

In addition, Turkish courts recognise and enforce the judgments of many countries, such as Germany, the United Kingdom and the United States, based on de facto reciprocity between these countries and Turkey. The evaluation of de facto reciprocity is conducted on a state-by-state basis for the United States.

Is there uniformity in the law on the enforcement of foreign judgments among different jurisdictions within the country?

There is uniformity in the law on the enforcement of foreign judgments within Turkey.

What are the sources of law regarding the enforcement of foreign judgments?

The Act on Private International Law and International Procedural Law No. 5718, dated 27 November 2007, is the main legislation that regulates the recognition and enforcement of foreign judgments.

Under Article 90 of the Turkish Constitution, international agreements duly put into effect bear the force of law. Therefore, relevant international agreements also constitute a source of law regarding the enforcement of foreign judgments.

Precedents of the Supreme Court are also important. However, in principle, the precedents of the Supreme Court are not binding in Turkish law apart from decisions on the unification of conflicting judgments.

To the extent the enforcing country is a signatory of the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, will the court require strict compliance with its provisions before recognising a foreign judgment?

Turkey is not a signatory to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971.

What is the limitation period for enforcement of a foreign judgment? When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the foreign jurisdiction?

Under Turkish law, there is no specific limitation period for the enforcement of a foreign judgment. However, Article 8 of the Act on Private International Law and International Procedural Law (PIL) regulates the statute of limitations for legal transactions and relationships that carry foreign elements. According to this article, the statute of limitations is subject to the law applicable to the legal transaction or relationship.

The Supreme Court, in its various decisions, has stated that limitation periods are not related to public policy and provisions of foreign law should apply to this issue (Fourth Chamber of the Supreme Court (Merit No. 2003/10163, Decision No. 2004/1408) and 11th Chamber of the Supreme Court (Merit No. 1998/383, Decision No. 1998/3945)). Also, as to the precedents of the Supreme Court, if a foreign judgment is recognised but not yet enforced, the statute of limitations specific to the merits (subject matter) of that judgment regulated by related Turkish provisions will be applied to that judgment as if it were a judgment rendered by a domestic court.

Which remedies ordered by a foreign court are enforceable in your jurisdiction?

Under article 50 of PIL, foreign judgments regarding civil law matters are enforceable as long as they are final under the laws of the foreign country.

In addition to the matters determined in article 50 of PIL, it has been opined that not only judgments rendered by civil courts but also decisions rendered by administrative courts are enforceable, provided that they concern civil law matters.

The enforcement of interim injunctions is not regulated under PIL. Concerning article 50 of PIL, there is a view in Turkey that interim decisions will only be enforceable if the dispute has been finally resolved by the foreign court that issued these interim decisions. However, there is also the opinion that, in practice, interim injunctions are not enforceable under Turkish law since they are not final decisions.

Article 50 of PIL further sets forth that foreign judgments that are rendered by criminal courts regarding personal rights or monetary compensation are also enforceable.

Must cases seeking enforcement of foreign judgments be brought in a particular court?

Cases seeking enforcement of foreign judgments must be brought in a particular court. Article 51 of PIL regulates the competent courts for enforcement of foreign judgments. According to this article, the civil courts of first instance are competent for the enforcement of foreign judgments. Nevertheless, there is no unity in practice, because some civil courts of first instance reject the applications owing to lack of jurisdiction and send the file to the relevant commercial, intellectual property or labour courts.

Paragraph 2, Article 51 of PIL also regulates the jurisdiction of the courts. Under this provision, a case regarding enforcement of a foreign judgment must be filed before the court where the party against which the enforcement is sought, is domiciled. If there is no domicile address for this party, then the case can be filed before the court at this party’s place of residence. If neither of these exists, the case can be filed before one of the courts in Ankara, Istanbul or İzmir.

To what extent is the process for obtaining judicial recognition of a foreign judgment separate from the process for enforcement?

The process for obtaining judicial recognition for a foreign judgment is almost the same as the process for enforcement. However, contractual or de facto reciprocity is not required for the recognition of a foreign judgment.

Can a defendant raise merits-based defences to liability or to the scope of the award entered in the foreign jurisdiction, or is the defendant limited to more narrow grounds for challenging a foreign judgment?

Under Turkish law, defendants cannot raise merits-based defences. Under article 55 of the Act on Private International Law and International Procedural Law (PIL), the defendant is limited to narrow grounds for challenging a foreign judgment.

Under articles 54 and 55 of 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 Turkish courts;
• the judgment was rendered by a court unrelated to the matter in dispute and the parties;
• the judgment explicitly violates Turkish public policy;
• the foreign court did not respect the right of defence of the party against which enforcement is sought, in Turkey;
• the judgment is not final under the laws of the foreign country;
• a ground exists that would prevent enforcement of the judgment (e.g., a reason for restitution of the judgment); or
• the judgment has been already wholly or partially executed.

May a party obtain injunctive relief to prevent foreign judgment enforcement proceedings in your jurisdiction?

No. A party cannot obtain injunctive relief to prevent foreign judgment enforcement proceedings. The decisions that can be given by the enforcing court are regulated under Article 56 of PIL, according to which the court can either accept or dismiss the enforcement of the foreign judgment. In this regard, the court cannot grant injunctive relief to prevent foreign judgment enforcement proceedings.

What are the basic mandatory requirements for recognition of a foreign judgment?

The requirements for recognition of a foreign judgment are regulated under articles 54 to 58 of the Act on Private International Law and International Procedural Law (PIL) and can be summarised as follows:

• the foreign court must have respected the right of defence of the party against which enforcement is sought in Turkey;
• the foreign judgment must be final under the laws of the foreign country;
• the foreign judgment should not be on an issue subject to the exclusive jurisdiction of the Turkish courts; and
• the foreign judgment must comply with Turkish public policy.

If these conditions are met, the court will decide for the recognition of a foreign judgment.

May other non-mandatory factors for recognition of a foreign judgment be considered and, if so, what factors?

There are no non-mandatory factors. The factors for recognition of a foreign judgment are explicitly regulated in articles 54 to 58 of PIL.

Is there a requirement that the judicial proceedings where the judgment was entered correspond to due process in your jurisdiction and, if so, how is that requirement evaluated?

There is no explicit regulation, as the judicial proceedings where the judgment was entered shall correspond to due process in Turkish jurisdiction. However, foreign judgments that violate Turkish public policy cannot be recognised or enforced. Since provisions similar to the due process of law are explicitly stated by the Turkish Constitution – that each person is equal before the law and shall be judged by impartial and independent courts – judgments that do not comply with these provisions may not be recognised owing to their explicit violation of public policy.

Will the enforcing court examine whether the court where the judgment was entered had personal jurisdiction over the defendant and, if so, how is that requirement met?

Turkish law does not recognise the concept of personal jurisdiction, and therefore the enforcing court will not conduct such an examination.

Will the enforcing court examine whether the court where the judgment was entered had subject matter jurisdiction over the controversy and, if so, how is that requirement met?

According to article 54 of the Act on Private International Law and International Procedural Law (PIL), upon the objection of the defendant, the Turkish court will examine the jurisdiction of the foreign court over the controversy. The court, upon the objection of the defendant, will examine whether the judgment was granted by the court of a country that considered itself competent although it had no actual relation with either the matter in dispute or the parties.

Therefore, the Turkish court shall not ex officio examine the subject-matter jurisdiction of the foreign court, except upon the objection of the defendant. If the foreign court has no actual relation with either the matter in dispute or the parties, the foreign judgment cannot be enforced.

According to the same article, the court will ex officio examine whether the judgment was rendered on an issue that falls under the exclusive jurisdiction of Turkish courts.

Must the defendant have been technically or formally served with notice of the original action in the foreign jurisdiction, or is actual notice sufficient? How much notice is usually considered sufficient?

Under Article 54 of PIL, the defendant must be properly served with the original action in the foreign jurisdiction. Also, there is an opinion that all procedures made during the action should be duly served since this is part of a fair trial.

Therefore, the notice of the original action should also be formally served.

Will the court consider the relative inconvenience of the foreign jurisdiction to the defendant as a basis for declining to enforce a foreign judgment?

The court will not conduct a fairness examination of the foreign judgment. The court’s examination will be limited to the enforcement requirements determined in articles 54 and 55 of PIL (prohibition of révision au fond ). However, the intervention of the court will come into question if the judgment explicitly violates Turkish public policy. The foreign judgment must comply with Turkish public policy.

Will the court examine the foreign judgment for allegations of fraud upon the defendant or the court?

The vitiation of a foreign judgment by fraud is not regulated under the Act on Private International Law and International Procedural Law (PIL).

However, under the judgment of the Second Chamber of the Supreme Court dated 15 November 1984 (Merit No. 1984/9293 and Decision No. 1984/9484), the reasons for ‘restitution of the judgment’ constitute a breach of public policy.

The reasons for the ‘restitution of the judgment’ are regulated under the Turkish Procedural Code. Accordingly, if the judgment is affected by the fraudulent acts of the winning party, this constitutes a reason for restitution of judgment. In this regard, it can be concluded that the court will ex officio examine the foreign judgment in terms of fraud.

Will the court examine the foreign judgment for consistency with the enforcing jurisdiction’s public policy and substantive laws?

In principle, the court will not examine the foreign judgment for consistency with substantive laws. However, the foreign judgment rendered should not be on an issue that is subject to the exclusive jurisdiction of the Turkish courts, such ascases arising from rights in rem in immovable property and cases arising from consumer or insurance agreements.

Concerning public policy, Turkish courts will ex officio examine whether enforcement of foreign judgment explicitly violates Turkish public policy. The foreign judgment cannot be enforced if it explicitly violates Turkish public policy.

The Supreme Court’s decision on the unification of conflicting judgments dated 10 February 2012 and numbered 2010/1 E, 2012/1 K asserts that the lack of reasoning of the foreign judgment does not constitute a breach of Turkish public policy per se, and therefore would not preclude the enforcement of the foreign judgment.

What will the court do if the foreign judgment sought to be enforced is in conflict with another final and conclusive judgment involving the same parties or parties in privity?

Enforcement of conflicting decisions is not regulated under PIL. However, there is a scholarly opinion that if the foreign judgment conflicts with another final and conclusive judgment, the foreign judgment cannot be enforced by the Turkish court. Concerning conflicting decisions, the parties and the subject matter of the foreign judgment must be the same as those in the final and conclusive judgment. The final and conclusive judgment can be either the Turkish court’s judgment or another foreign judgment that has already been recognised or enforced by the Turkish court.

Will a court apply the principles of agency or alter ego to enforce a judgment against a party other than the named judgment debtor?

No. The Turkish court cannot enforce a judgment against a party other than the named judgment debtor. As a general principle, the judgments are binding only on the parties to the dispute.

First published by GTDT in 30.08.2023.

To read the rest of this article series, please click on Enforcement of Foreign Judgments 2024 in Turkey - Part 2