Recognition and Enforcement of Foreign Titles in Turquie

Türkiye has very strict and well-regulated personal data protection legislations. Therefore, it is not always possible to obtain many information about the debtor without involving the court or the enforcement office. Meanwhile, before issuing any court & enforcement proceedings against the debtor, if we have the Turkish ID no of the debtor, there are some certain checks which may be possible to do at courthouses: It can be attempted to see if they are a party to any ongoing court proceedings or debt collection proceedings and if they are, the Turkish lawyers are entitled to review those related files due to their statutory powers. So it is always a good practice to check and see if it can be learned that whether they are a party to any proceedings (closed files can also be checked) and then review the files should this be necessary.

When the recognition & enforcement proceedings are issued, there is a rule called “revision ban” which needs to be adhered to by the Turkish courts. This means that; whether the procedural rules or substantive rules applied by the foreign court were correctly determined or correctly applied falls outside the scope of recognition and enforcement proceedings. Therefore, the Turkish court handling the recognition and enforcement case will not review the merits of the foreign court decision. This will mean that the court will not be able to conduct any more investigation on the judgment debtor, their assets or their financial position.

In case the court proceedings are not issued for a recognition & enforcement process but directly for the collection of the debt, then the courts will be able to summon the bank statements of the debtor, check their land registry or vehicle registry records to see if they have any assets under their name, check his employment and social security position to see his incomes, etc.

There is also a process called “enforcement proceedings”, which is basically the debt collection process, either after the court proceedings or directly, without involving the court. In case of such proceedings, the enforcement office will also be able to check the items listed above less obtaining the bank statements. In relation to the bank accounts, they can only ask the banks if they have an account and the balance to pay the debt, if they do, the enforcement office can ask the bank to transfer the money to the enforcement office so that this amount can be deducted from the total debt amount.

Therefore, although no research on the debtor’s financials can be made by the recognition and enforcement court, after their decision becomes final, an enforcement case can be filled for the collection of the said debt and the enforcement office will be able to do all this research explained above.

The Turkish legal system allows us to file for the recognition & enforcement at the same time and does not ask for the foreign court order to be recognized before. However, it should be noted that the foreign judgment to be recognized & enforced must be a decision finalized in that foreign jurisdiction.

Article 50 of International Private and Procedural Law No. 5718 (IPPL) – “Enforcement of court decrees rendered by foreign courts in the course of civil lawsuits in Turkey which are final pursuant to the law of that foreign state shall be subject to the enforcement decision of the competent Turkish court.”

Therefore, the following are required while making an application for recognition & enforcement, according to Article 53 of the International Private and Procedural Law No. 5718:

• a.     The original copy of the judgment certified by the authorities of the foreign state or an exemplar of the decree certified by that organ of jurisdiction and a certified translation thereof,
• b.     A document or written statement from the authorities of the state which officially confirms that the judgment is final and a certified translation thereof.

It should be noted that, under Turkish legal system, there is not any difference between the recognition process of an EU judgment or a non-EU judgment.

I would like to state that; the foreign court decisions cannot be deemed as recognized or enforced automatically in Turkey. To reach this conclusion, the Applicant who desires this result, should file for an enforcement proceeding (a court action) as regulated under the Articles 50-63 of the International Private and Procedural Law No. 5718.

The conditions of enforcement of a finalized foreign court order are regulated under the Article 54 of the said Law:

Article 54 of IPPL - “(1) The competent court shall render enforcement subject to the following conditions:

a) Existence of an agreement, on a reciprocal basis between the Republic of Turkey and the state where the court decision is given or a de facto practice or a provision of law enabling the authorization of the execution of final decisions given by a Turkish court in that state,

b) The judgment must have been given on matters not falling within the exclusive jurisdiction of the Turkish courts or, in condition of being contested by the defendant, the judgment must not have been given by a state court which has accepted himself competent even if there is not a real relation between the court and the subject or the parties of the lawsuit,

c) The court decree shall not openly be contrary to public order,

d) The person against whom enforcement is requested was not duly summoned pursuant to the laws of that foreign state or to the court that has given the judgment, or was not represented before that court, or the court decree was not pronounced in his/her absence or by a default judgment in a manner contrary to these laws, and the person has not objected to the exequatur based on the foregoing grounds before the Turkish court.”

Therefore, the only effect the jurisdiction & location of the foreign court which made the judgment is the reciprocal basis that both states (that state and Turkey) should have. In case of lack of a bilateral agreement between those states, the courts usually make a research and write writs to those countries to see their approach in practice as the law allows.

The reciprocity condition is crucial in practice and must be examined by the court ex officio during enforcement proceedings. When evaluating reciprocity, the primary consideration should be whether a treaty or international agreement exists under which the enforcement of foreign judgments is accepted. If Turkey and the state where the judgment was issued are parties to such a treaty or agreement, this confirms the existence of contractual reciprocity between the two countries. If no such treaty or agreement exists, enforcement is still possible if de jure or de facto reciprocity is present.

In case there is nothing to be enforced and it is just a pure court order in relation to a determination of a situation (like a divorce decision, without having any secondary financial results), then it is possible to file solely for the recognition of the said decision.

Article 58 of IPPL - “(1) A foreign court decree may serve as a definitive evidence or final judgment, provided that the court decides that the foreign court decree fulfills the conditions of enforcement. Subparagraph (a) of Article 54 shall not apply to recognition.

(2) The same article shall apply to the recognition of undisputed court decrees.

(3) The same procedure shall apply in concluding an administrative transaction based on a foreign court decree.”

If this is the case, such recognition process will not require a reciprocal basis to exist between that state where the judgment has been made and Turkey.

Please see above. Under Turkish legal system, there is not any difference between the recognition process of an EU judgment or a non-EU judgment.

About the recognition & enforcement process; as per Article 52 of IPPL, anyone who has legal interest in enforcement of a decree can request so. Enforcement shall be requested by a petition. Copies of the petition in the number of opposing parties shall be attached. The petition shall contain the following:

a) The names, surnames, and addresses of the parties and their legal representatives, if any,

b) 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,

c) If partial enforcement is sought, an indication as to which part of the decree is the subject of the request.

The petition for the request for enforcement shall be served upon the opposing party and shall contain the date of the hearing. Recognition and enforcement of undisputed court decrees are also subject to the same provision.

The opposing party may only raise objection by claiming that the enforcement conditions under the provisions of this chapter are not present or that the foreign court decree was partially or wholly executed or a reason hindering the enforcement has arisen. This is because of revision ban as the merits of the case which was held in a foreign jurisdiction cannot be examined again by the Turkish court.

The court may decide for full or partial enforcement of the foreign court decree or may dismiss the request. This decision shall be written on the foreign court decision and signed and sealed by the judge.

Foreign court decrees for which enforcement is rendered shall be executed as court decrees rendered by the Turkish courts. Court decrees regarding dismissal or acceptance of the enforcement request may be appealed pursuant to the general provisions of the Civil Procedure Law. The appeal suspends the execution.

Please see above. Under Turkish legal system, there is not any difference between the recognition process of an EU judgment/a non-EU judgment/foreign judgment.

For undisputed claims, the recognition and enforcement process of a foreign judgment typically takes between 6 months and 1 year. For disputed claims, it generally takes between 1.5 to 2 years for a decision to be made by the first instance court. If the case is appealed, the appeal process usually lasts an additional 1 to 2 years.

The filing of the lawsuit for the enforcement of foreign monetary judgments is subject to the payment of the court fee equal to 1.7% of the value of the judgment. The court fee for the enforcement of non-monetary foreign judgments, however, is approximately 140 EUR as a fixed fee (changes every year). The claimant has to make an advance payment to the court's cashier for the legal costs and expenses in the amount of approximately 500 EUR – changes from case to case.

As explained above, the opposing party may only raise objection by claiming that the enforcement conditions under the provisions of this chapter are not present or that the foreign court decree was partially or wholly executed or a reason hindering the enforcement has arisen. This is because of revision ban as the merits of the case which was held in a foreign jurisdiction cannot be examined again by the Turkish court.

There is not any specific time limit for the recognition & enforcement process under Turkish law but it is safe to say that the general limitation period applies which is 10 years from the finalization of the foreign judgment.

Under Turkish law, the principle of “losing party pays the costs of the winning party” applies. Therefore, all court-related costs (not the costs paid in the other country or administrative costs such as obtaining a copy of the judgment or having it translated, etc) will be decided to be paid by the Defendant (in case of a successful claim, the losing party). The Claimant (in case of a successful claim, the winning party) does not need to submit a costs schedule or make another application to court for the costs as these will be included in the judgment. It should be noted that these costs are the litigation costs and attorney fees, which is not the contractual attorney fees which the parties agree on with their representatives, this is something additional. It is 17.900 TRY for now (changes every year) for non-monetary claims and it is calculated according to the value of the case for monetary claims. These are not collectable until the recognition & enforcement decision becomes final.

As advised above, the finalization of the recognition and enforcement decision should be waited to be executed. This means that in case one of the parties appeals the decision, the result of the appeal should be awaited.

Once the finalized recognition & enforcement decision has been obtained, the enforcement proceedings (collection process explained under Answer 1) can be initiated. In this collection process, the Execution & Enforcement Office will open a new file based on the finalized court decision and will be able to see what assets the debtor have and will have the power to seize these in case of no payment.

Once the new file before the execution office has been opened, a new notification will be sent to the debtor and 7 days will be given for them to pay or raise any procedural objections they may have. Please note that no objections merits-related can be raised within these proceedings as this relies on a finalized court order. In case of no payment within the 7 days given, then the Creditor may apply to the execution office for all the financial checks to be done and all relevant writs to be written.

The recognition and enforcement of a foreign court decision in Turkey means that this decision becomes valid and enforceable within the Turkish legal system. A recognition decision ensures the legal validity of the foreign court decision within the Turkish legal system. An enforcement decision allows for the execution of this decision.

A recognized and enforced foreign court decision gives the creditor the authority to initiate bankruptcy proceedings in Turkey. This decision provides the necessary legal basis for the creditor to start the bankruptcy process within the scope of Turkish enforcement and bankruptcy law. A recognized and enforced decision is subject to the ranking among other creditors in the bankruptcy estate. The creditor, based on this decision, can be included in the registration and ranking list of the bankruptcy estate.

The enforcement of the recognition and enforcement decision allows for seizure actions on the debtor's assets, like the collection process. In this case, the debtor's assets to be included in the bankruptcy estate are determined and liquidated according to the recognized and enforced decision.

As per Article 60 of IPPL, final and executable or binding upon the parties foreign arbitral awards may be subject to enforcement. The enforcement of a foreign arbitral award shall be requested by a petition from the Court of First Instance mutually designated by the parties in writing. In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person's place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution.

As per Article 62 of IPPL, the court shall dismiss the enforcement request of a foreign arbitral award, if;

a) An arbitration agreement is not executed or arbitration clause does not exist in the main agreement,

b) The arbitral award is contrary to public morality or public order,

c) It is not possible to settle the dispute subject to the arbitral award by way of arbitration under Turkish law,

ç) One of the parties has not been duly represented before the arbitrators and has not expressly accepted the acts concluded thereafter,

d) The party against whom the enforcement of the arbitral award is requested has not been duly notified of the appointment of arbitrators or has been deprived of his/her right to make claim and defense,

e) The arbitration agreement or clause is invalid pursuant to the governing law designated by the parties, or in the absence thereof, pursuant to the law of the place where the arbitral award is rendered,

f) The appointment of the arbitrators or the procedure applied by the arbitrators violates the agreement of the parties, or in the absence thereof, the law of state where the arbitral award is rendered,

g) The arbitral award has been rendered on an issue that is not included in the arbitration agreement or arbitration clause or exceeds the limits of the agreement or the clause (only the exceeding part),

h) The arbitral award is not final, enforceable, or binding under the governing law or the governing procedure or the law of state where it was rendered or it is annulled by the competent authority in the place where the award is rendered.

In case of the lack of the any of the above, the court decides on the enforcement of the foreign arbitral award. The enforcement court will consider the first three conditions ex-officio but the rest should be raised by the Defendant during the proceedings.