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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Republic of Turkey.
2. Date of entry into force of the New York Convention
30 Sept. 1992.
(Source: Law No. 3731 concerning approval of the New York Convention, published in the Turkish Official Gazette, 25 Sept. 1991, No. 21002; Turkish Cabinet Decision No. 91/2151 concerning the New York Convention, published in the Turkish Official Gazette, dated 25 Sept. 1991, No. 21002, Art. 12.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity
Yes.
(b) commercial relationships
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No. There are no cases where the New York Convention has been applied to an award made in Turkey. The Turkish Supreme Court has held that the application of international arbitration rules does not make an award rendered in Turkey a foreign award.
(Source: Turkish Supreme Court Decision, 15th Circuit, 6 Nov. 1998, No. 3507/4108.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
The Turkish International Private and Civil Procedural Law (No. 5718, 27 Nov. 2007) (hereinafter ‘Turkish IPL’) governs the recognition and enforcement of foreign awards. Before Turkey became a party to the New York Convention, this law used to be the only source of law applicable to the recognition and enforcement of such awards. After Turkey ratified the New York Convention, the Turkish IPL applied to the enforcement of foreign awards that do not fall within the scope of the New York Convention.
One should note that when the articles of the Turkish IPL governing enforcement of foreign awards were drafted, the New York Convention was taken into account. However, while Art. V(1) of the New York Convention stipulates that “enforcement may be refused”, Art. 62 of the Turkish IPL stipulates that where a ground for refusing enforcement exists, the judge shall refuse such enforcement. In practice, Turkish courts often refer to the relevant provisions of both the New York Convention and the Turkish IPL.
(Source: Turkish IPL, Art. 62)
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There are no specific legal provisions fixing a limitation period applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards. There is, however, a time limit for bringing proceedings to enforce judgments. This time limit may be applied to the enforcement of a foreign award.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The limitation period for bringing proceedings to enforce judgments is 10 years. This period runs from the date on which the judgment was served on the party seeking enforcement.
(Source: Turkish Enforcement and Bankruptcy Law, (‘TEBL’), No. 2004, 19 June 1932, Art. 39; Baki Kuru, Civil Procedure Law, 6th ed., Istanbul 2001, vol. III, p. 3160.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Civil courts have jurisdiction over the recognition and enforcement of foreign awards.
In places where a commercial court exists, this court will have jurisdiction.
(Source: Turkish IPL, Art. 60.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The parties are free to enter into an agreement specifying which Turkish court has jurisdiction. If there is no such agreement, the court where the defendant is domiciled has jurisdiction. If the defendant is not domiciled in Turkey, the court where the defendant is habitually resident has jurisdiction. If the defendant does not have a domicile or habitual residence in Turkey, the court where the defendant’s assets are situated has jurisdiction. If the defendant does not have any assets in Turkey either, then Turkish courts will not have jurisdiction to enforce the award.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
A decision granting or denying recognition and enforcement can be obtained only through inter partes proceedings. The defendant has to be duly served and notified of proceedings concerning enforcement.
(Source: Turkish IPL, Art. 55.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes, the first decision granting or denying recognition and enforcement is subject to appeal.
(Source: Turkish IPL, Art. 57.)
(b) How many levels of appeal or recourse are available against this decision?
There is one level of appeal in Turkey, at which the Turkish Supreme Court reviews the decision of the first instance court. Appeals are made pursuant to the general provisions of the Civil Procedure Law.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
An appeal against a first instance decision on the enforcement of a foreign arbitral award suspends execution. The judgment can only be enforced after the court’s decision becomes final.
(Source: Turkish IPL, Art. 57, para. 2.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The documents required are the arbitration agreement or clause (original or duly certified copy) and the final, executable or binding award (original or duly certified copy).
(Source: New York Convention, Art. IV; Turkish IPL, Art. 61.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
Only the arbitration clause has to be submitted to the court; it is not necessary to provide the entire contract.
(Source: Turkish IPL, Art. 61.)
(c) Are originals or duly certified copies required?
An original or a certified copy of the arbitration agreement or clause and an original or a certified copy of the award have to be submitted to the court.
(d) How many originals or duly certified copies are required?
One copy of the agreement is required for the court and one copy for the defendant. If there is more than one defendant, a copy for each defendant must be filed.
(e) Does the authority or court keep the originals that are filed?
Generally, the courts archive all the documents submitted. However, the original award may be requested and replaced with a certified copy after the litigation finishes.
(Source: Baki Kuru, Civil Procedure Law, 6th ed., Istanbul 2001, vol. II, p. 1923.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
All documents submitted to the court have to be translated.
(Source: Turkish IPL, Art. 61, Turkish Code of Civil Procedure, No. 6100, 12 Jan. 2011, Art. 223.)
(b) If yes, into what language?
Turkish.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The translation has to be made by a sworn translator and certified by a public notary. Turkish consulates abroad are also authorized to certify translations.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The entire award and a duly certified translation thereof have to be submitted to the court. However, the contract containing the arbitration clause does not need to be filed in full: a translation of the relevant arbitration clause is all that is required.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
If proceedings to set aside the award have started in the country where the award was made, Turkish courts will suspend the proceedings in Turkey until the decision on setting aside becomes final. Under Turkish law, this decision constitutes a preliminary issue in relation to the main issue of enforcement. Turkish IPL, Art. 62(h) provides that the court shall dismiss the enforcement request of a foreign arbitral award if it is not final, enforceable or binding under the governing law or the law of the place where it was rendered or annulled. To date, there have been no reported cases on the application of Art. V(1)(e) of the New York Convention.
(Source: Turkish IPL, Art. 62(h).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
There are no other grounds for Turkish courts to stay legal proceedings for recognition and enforcement.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The granting of a stay of legal proceedings for recognition and enforcement is neither conditional nor dependent upon the provision of security. Should Turkish courts decide to stay such proceedings, they will do so without ordering the provision of security.
G. Confidentiality
15. (a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Only the parties to the enforcement litigation are allowed to have a copy of the documents filed with the court. Thus, the documents filed in legal proceedings for recognition and enforcement do not form part of the public record. In practice, however, such documents may be examined by lawyers not representing either party. If the documents require special confidentially because of their sensitivity, the court may be asked to declare that the proceedings should not form part of the public record.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Under general principles of litigation in Turkey, all proceedings are open to the public. However, the court may be asked to declare that the proceedings are not to be open to the public. In practice, enforcement decisions are made upon a review of the parties’ statements and the documents filed, and hearings in enforcement disputes are extremely short. Thus, the details of the award or dispute are not discussed during the hearings. However, as a minimum, the names of the parties will be listed in the hearing room.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Some of the decisions of the Turkish Supreme Court are published. However, the names of the parties are not published; they are referred to only by their initials. There is no recognized procedure for avoiding the publication of confidential information.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Only awards that are final can be enforced in Turkey. Partial awards can be enforced in Turkey as long as they are not interim. Where a tribunal makes an interim award, the Turkish courts can be asked to issue a new interim injunction to give effect to the interim award. However, the interim award cannot bind the Turkish courts.
(Source: Turkish IPL, Arts. 50 and 60.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Foreign judgments subject to enforcement are executed like judgments rendered by Turkish courts.
Under Turkish law, awards ordering specific performance can be enforced.
(Source: Turkish IPL Art. 57; TEBL Art. 24; Baki Kuru, Civil Procedure Law, 6th ed., Istanbul 2001, Vol. III, p. 1407.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Partial enforcement of an award is possible under Turkish law. The party who is seeking the enforcement of the award may ask the Turkish court to enforce a particular part of the award rather than the entire award. Turkish courts may grant or dismiss the request for partial enforcement.
(Source: Turkish IPL, Arts. 52 and 56.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
There are no Turkish court decisions examining whether or not an award that has been set aside in the country where it was made can be enforced. The Turkish version of the New York Convention reads ‘may be refused’ and not ‘shall be refused’. Some academics suggest that if the grounds for setting aside the award are based purely on considerations of local law, such an award should nevertheless be enforced in Turkey.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Under the Turkish Law on Fees, where the court is to consider the merits of the case and where there is a monetary claim, a court filing fee (6.831%) is payable on a pro rata basis. One fourth of the filing fee is payable in advance by the applicant, and the remaining is payable by the losing party once the decision is rendered.
In other cases, a nominal fixed fee (35.90 TRY) is payable to the court.
According to the New York Convention, there should be no examination of the merits during the enforcement proceedings and as such, only the nominal fixed fee should be payable as per the Turkish Law on Fees. However, Turkish courts have differing practices as to the type of the filing fee payable to the court to initiate proceedings for the enforcement of foreign arbitral awards. At the time of filing, the court clerk calculates the fees on a fixed fee basis, however some courts also ask the applicant to deposit the difference between the nominal fixed fee and pro rata fee. There are also inconsistent decisions of the Turkish Supreme Court as to whether a nominal fixed fee or pro rata fee should apply for enforcement proceedings.
Foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court are required to provide security for which the amount shall be determined by the court to cover the expenses of the legal proceedings and the loss or damages of the other party. However, the Turkish IPL states that the court may exempt the foreign party from providing security on a reciprocity basis or in case a bilateral agreement between Turkey and the foreign creditor’s country.
(Source: Turkish law on Fees No. 492, Arts. 3, 16 and 28; Tariff No. 1, Sect. III; Turkish IPL, Art. 48.)
Country Rapporteur: Bennar AydoÄŸdu