The globalizing world leads to the spread of commercial and individual relations to wide geographies and the expansion of the network of relations. Expanding relations require the different legal systems of various states to come into contact with each other. So much so that when a company registered in Turkey does business with a European company, it can choose the competent court and law from outside of Turkey and the dispute can be resolved by foreign courts. Or, in case of a dispute, a lawsuit can be filed directly outside of Türkiye. In order for such decisions to be implemented in Turkey, foreign court decisions must be recognized and enforced. In this article, we will first examine the legal basis and conditions of recognition and enforcement of foreign court decisions, then touch on the procedure and then answer frequently asked questions.
Legal Basis for Recognition and Enforcement of Foreign Court Decisions
Each sovereign state makes its own judgment. The natural consequence of this sovereignty is the direct implementation of the decisions of the courts of that state. For this reason, decisions made in a foreign country cannot be implemented unless they are recognized in the country of a sovereign state. Recognition and enforcement of foreign court decisions in Turkey are regulated in the Law on Private International Law and Procedural Law. The relevant law includes the procedures and principles for both the personal rights included in criminal decisions and the recognition and enforcement of civil trial decisions.
Conditions for Recognition and Enforcement of Foreign Court Decisions
In Article 50 of the Law on Private International Law and Procedural Law, it is regulated that the execution of judgments issued by foreign courts and finalized according to the laws of that state in Turkey depends on the decision of enforcement by the competent Turkish court. Accordingly, the institution giving the decision must be a court, the decision must be finalized by the laws of the country and the enforcement decision must be given by the competent Turkish court. For the recognition and enforcement of foreign court decisions, all of these general conditions must be met. General terms and special conditions are detailed below.
General conditions
1) The institution making the decision must be a court
The first condition for the recognition and enforcement of foreign court decisions is that the institution giving this decision is a court. Courts are institutions that are public institutions according to the laws of the state that made the decision and have the right to judge in that state. Therefore, the decision of a private institution cannot be subject to recognition and enforcement in Turkey in accordance with these provisions of MÖHUK.
2) The decision must be final
Another requirement for the recognition and enforcement of foreign court decisions is that the court decision is final. A decision that is not final will not be recognized in Turkey and no action can be taken in Turkey based on that decision. The finality of the decision will be determined by the laws of the state that made the decision. The Turkish judge will examine whether the decision is final according to the laws of the country that made the decision, and if he/she concludes that the decision is final, he/she will rule on recognition and enforcement.
“Since the final judgment will have its effect and result from the moment the foreign court decision becomes final in that country, the parties will be divorced on that date. In this respect, since the outcome of the recognition and enforcement case will affect this case, it was necessary to wait for the recognition and enforcement decision to be finalized...Recognition and Enforcement of Foreign Court Decisions in Turkey Supreme Court Decision - 2nd CC., E. 2019/931 K. 2019/1288 T. 18.2.2019
3) A decision of recognition and/or enforcement must have been received from the competent Turkish courts
Another general condition required for recognition and enforcement is a decision in this regard from the competent court. Namely, the decision obtained from a foreign court cannot be directly enforced in Turkey and this decision must be approved by authorized Turkish judges. This situation is a natural consequence of judicial independence and sovereignty in Turkey.
Special conditions
In addition to the general conditions, special conditions are also required for the recognition and enforcement of foreign court decisions. A Supreme Court decision on the recognition and enforcement of foreign court decisions summarizes this issue as follows:
Articles 50-59 of law No. 5718 regulate the institutions of recognition and enforcement. Accordingly, the acceptance of a foreign court decision as final evidence or final judgment is dependent on the court's determination that the foreign court decision meets the conditions for enforcement, and the decisions issued by foreign courts regarding civil cases and finalized according to the laws of that state. The execution of judgments in Turkey depends on the enforcement decision given by the competent Turkish court. Accordingly, there must be reciprocity between the state where the foreign judgment was given and Turkey, the decision must be related to an issue that is not within the exclusive jurisdiction of the Turkish courts, and the decision given in accordance with the defendant's defense rights must not be contrary to Turkish public order.Recognition and Enforcement of Foreign Court Decisions in Turkey Supreme Court Decision - 11th CC., E. 2022/4561 K. 2022/6225 T. 26.9.2022
On the other hand, according to the relevant article of the law, the request for enforcement of foreign court decisions is accepted if the following conditions are met:
1) Principle of reciprocity
In order for a foreign court decision to be enforced in Turkey, there must be an agreement based on reciprocity between the Republic of Turkey and the state where the decision was issued, or a provision of law or actual practice that enables the enforcement of decisions issued by Turkish courts in that state. The principle of reciprocity is not required for the recognition of foreign court decisions.
2) Authority must not be exceeded
The judgment must not have been given in a matter falling within the exclusive jurisdiction of Turkish courts. Moreover, it is also necessary for the judgment, in the event of the defendant's objection, not to have been given by a state court granting authority to itself in a matter where there is no actual relationship with the subject matter of the case or the parties.
3) The provision is not contrary to public order
One of the basic principles of Turkish law is that contracts, decisions, and other regulations should not be contrary to morality and public order. A decision contrary to public order, as accepted in Turkish life and culture, will be legally invalid. For example, if euthanasia is legal in a country, and a decision related to euthanasia is sought to be enforced in Turkey, it will be considered against public order and cannot be recognized and enforced.
4) No violation of the right to a fair trial
According to the laws of the place where the foreign court decision was given, if the person against whom enforcement is requested has not been properly summoned, represented, or if the decision has been given in absentia or in violation of the laws of the foreign country, the enforcement of the decision depends on the absence of objections. The person against whom enforcement is requested can object to the recognition and enforcement of the decision, and if the objection is considered valid, the decision cannot be applied in Turkey.
Do the parties need to be Turkish for the enforcement of foreign court decisions?
Recognition and enforcement of foreign court decisions do not require the parties or at least one of the parties to be Turkish. This is because foreigners may have a legal interest in seeking the enforcement of a specific decision in Turkey. For example, if one of the individuals is residing in Turkey or owns property in Turkey, debt collection in Turkey can be requested. In such cases, there is a legal interest in seeking the recognition and enforcement of the decision, even if the parties are foreigners.
In order to decide on the recognition or enforcement of a foreign court judgment, the party to the judgment does not need to be a Turkish citizen. Even if the parties are not Turkish, they may request the enforcement or recognition of the foreign judgment, provided that they have legal interests.Recognition and Enforcement of Foreign Court Decisions in Turkey Supreme Court Decision - 2nd CC., E. 2008/19620 K. 2010/1034 T. 20.1.2010
Recognition and Enforcement of Foreign Court Decisions and the Competent Court in Turkey
The competent court for the recognition and enforcement of foreign court decisions is the First Instance Civil Courts in Turkey. Depending on the subject matter, these may include family courts, commercial courts, or general first instance civil courts. In Court of Cassation decision, the following summary was provided:
According to Article 51/1 of Law No. 5718 on International Private Law and Procedural Law, it is stated that the competent court for the enforcement of foreign court decisions is the first instance court, but there is no distinction between civil or commercial courts. To determine whether the term includes the commercial court, one must also refer to the legal provisions regarding the jurisdiction of commercial courts. According to Article 5/2 of the Turkish Code of Civil Procedure, if there is a commercial court, cases falling within the jurisdiction of the civil court but considered commercial under Article 4 will be heard in the commercial court under special provisions. In the present case, since the parties are traders, and the decision sought to be enforced concerns their commercial enterprise, the case is considered a commercial dispute, and therefore, commercial court of first instance is competent.Recognition and Enforcement of Foreign Court Decisions in Turkey Supreme Court Decision - 15th CC., E. 2015/5244 K. 2015/6250 T. 8.12.2015
The competent court for the enforcement proceedings is the court where the person against whom enforcement is sought resides in Turkey, or if there is no place of residence or living place in Turkey, one of the courts in Ankara, Istanbul, or Izmir.
Procedure for the Recognition and Enforcement of Foreign Court Decisions
Foreign court decisions that meet the specific and general requirements mentioned above can be subject to enforcement. For this purpose, the application must include the officially certified original or a copy approved by the competent authority of the country of origin, along with its translation. Additionally, a document indicating the finality of the decision must be attached. The hearing date and the annexes to the petition are notified to the opposing party. The opposing party may object, claiming that the enforcement conditions are not met or that the foreign court decision has been partially or entirely fulfilled, or there is an impediment to its enforcement. The court may decide to partially or fully enforce the decision or reject the application. Foreign decisions granted enforcement are executed in Turkey like decisions made by Turkish courts. The appeal of decisions on the acceptance or rejection of the enforcement request is similar to other lawsuits filed in Turkey. The appeal suspends the execution of the decision, and the enforcement remains halted until the recognition and enforcement decision becomes final.
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Frequently Asked Questions
Conclusion
The recognition and enforcement of foreign court decisions is a highly technical matter. Due to the complexity of aspects such as the finalization of foreign judgments, obtaining certified copies, and translations, it is recommended to handle the process with a lawyer in Turkey. Otherwise, the process may be prolonged, and especially in debt cases, situations like the debtor disposing of assets may jeopardize acquired rights. To prevent this, seeking assistance from an experienced attorney can be a straightforward solution.
For any questions or legal assistance regarding this matter, you may contact us at info@paldimoglu.av.tr.