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Foreign Court Decisions in Turkey: Recognition and Enforcement
Recognition and Enforcement of Foreign Court Decisions in Turkey
According to international trade and international law, it is accepted that parties are free to make contracts and determine the law to be applied.
States holds court decisions as indicators of judicial sovereignty and independence. Accordingly, in Turkish Law, the jurisdiction of Turkish Courts is considered exclusive and definitive. Enforcement and Bankruptcy Law is under the state’s enforcement power. Since it concerns the public order, interference of another state on this issue is not accepted in Turkish Law as in many countries. For this reason, Turkish courts can’t enforce a decision of a foreign country’s court or a foreign country’s administrative decision.
International Private Law and Civil Procedural Law No: 5718 (“Law”) regulates legal relations with foreign elements in this scope. In cases involving territoriality and public order, the Law determines if the Turkish courts are strictly authorised even if the parties are free to choose the applicable law or even if the parties have already chosen a foreign country’s law. For this reason, it is of great importance for foreign companies to carefully examine the Law and consider it while concluding an international contract.
The Law foresees undermentioned requirements to enforce a foreign country’s decision if a foreign country and a debtor who has assets in Turkey have decided an applicable law which is other than Turkish Law:
- Treaty of Reciprocity is made between Turkey and the country of jurisdiction.
- The court decision is made on a matter, not in the Turkish courts’ exclusive jurisdiction.
- The court decision is not made by a country’s court, which is not related to the subject or the parties, and the debtor has an objection.
- The court’s decision is not to be contrary to the public order.
- The decision is in accordance with the defence rights of the defendant.
For foreigners to levy an execution to collect their debt in Turkey according to a foreign country’s decision, Turkish courts should recognise and enforce the decision.
Foreign companies also have the right to claim their debts to be collected with respect to Turkish Law. Turkish courts determine the jurisdiction according to the place of business rather than the nationality of the debtor. Turkish Law considers Turkish courts are exclusively authorised when the place of business of the company or place of performance is in Turkey.
If the debtor is a company whose establishment place or place of business in Turkey, the creditor shall commence execution proceedings and seek enforcement from Turkish Courts.
Foreign persons should consider the following matters while commencing execution proceedings:
Is there a contract with the debtor, and if the contract is in Turkish? Also, is there a clause stating that execution proceedings shall be made in a specific country? According to Turkish Law, especially in international debts, parties of the contract may choose the applicable law.
Therefore, they shall be liable to the applicable law.
- The creditor should prove documents have fulfilled its obligation stated in the contract.
- The creditor has the right of choice regarding the currency of the debt.
- Considering the document proves the debt, bill of exchange type documents listed in Bankruptcy and Enforcement law entitles the creditor impoundment of the debtor’s assets immediately in the case that creditor deposits %15 of the debt an assurance.
- Since the time and order is very significant in the impoundment of the debtor’s assets, it is critical to start the execution proceedings when the debt is delayed.
Article Keywords: Foreign Court Decisions, Court Decisions, Court Decisions in Turkey, Foreign Court Decisions in Turkey, Recognition and Enforcement, Foreign Court Decisions in Turkey: Recognition and Enforcement, International Trade, International Law.
Article For Further Reading: Information Note on Enforcement of EU Countries’ Court Judgements in the Republic of Turkey.