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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
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 September 1992.
(Sources: 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:
(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. Thus, Art. 62, on grounds for rejecting enforcement of a foreign award, is almost identical to Art. V(1) of the New York Convention. 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)
(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.
(Sources: 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.)
(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)?
Normally, an appeal against a decision of a court of first instance does not prevent execution of the judgment. However, an appeal against a first instance decision on enforcement of a foreign award is an exception to this principle: the judgment can be enforced only after the court's decision becomes final. In other words, the appeal suspends the execution of the judgment.
(Source: Turkish IPL, Art. 57, para. 2.)
E. Evidence required
(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 arbitration award.
(Sources: 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 file the whole agreement.
(Source: Turkish IPL, Art. 61.)
(c) Are originals or duly certified copies required?
An original or a certified copy of the agreement and the original 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.)
(a) Is it necessary to provide a translation of the documents supplied?
All documents submitted to the court have to be translated.
(Source: Turkish Code of Civil Procedure, No. 6100, 12 Jan. 2011, Art. 223)
(b) If yes, into what language?
(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 whole 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
(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. To date, there have been no reported cases on the application of Art. V(1)(e) of the New York Convention.
(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.
(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.
(Sources: Turkish IPL, Art. 56; 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 whole award. In this case, the Turkish court would declare that only that part of the award is enforceable.
Furthermore, Turkish courts may refuse to enforce part of an award and declare the rest of the award enforceable. In such cases, the court would separate the enforceable part of the award and reject enforcement of the rest of the award. If such separation is not possible and a single amount is awarded for all claims, the court may refuse enforcement of the award as a whole.
(Sources: Turkish IPL, Art. 52; Ziya Akinci, International Arbitration, 2d ed., Ankara 2007, para. 1009.)
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.)?
The Turkish law on court fees of 2 July 1964 provides for two kinds of fees when bringing a case to court: filing fees and application fees.
The filing fee for enforcement of a foreign award is TRY 17.15 (approx. USD 9 at current exchange rate) and an additional fee of 0.54% of the total amount of the award is payable when the judgment on enforcement is obtained.
Application fees are either a fixed fee or a percentage of the amount claimed by the party initiating the action. Art. 3 of the Turkish law on court fees provides that the nature of an arbitral award should be taken into account to determine the fee payable for its enforcement and that this rule also applies to the enforcement of foreign arbitral awards. Art. 16 provides that where the fee is based on the amount in dispute, Tariff No. 1 will be applicable, i.e. 5.94% of the amount in dispute.
Whether the enforcement of foreign arbitral awards should be subject to a fixed fee or a percentage fee is an important issue in Turkey, because the percentage fee is 5.94% of the amount awarded, whereas fixed fees are usually very insignificant amounts. According to a Turkish Supreme Court decision of 4 July 2012, a claimant bringing a case relating recognition and enforcement of a foreign award in Turkey should pay a percentage fee at the beginning of the proceedings. The case related to debt collection; for which it was held that a fixed fee was contrary to Turkish law. The percentage fee should be calculated by applying the percentage mentioned in Tariff No. 1, Section 3, to the amount of the award sought to be enforced on the date that the enforcement action was initiated. If the claimant is successful, it should obtain from the Turkish enforcing court a decision ordering the respondent to reimburse it for the full percentage fee, as well as legal fees, which can be awarded by the Turkish courts to the prevailing party.