Foreign court judgments are not directly enforceable in Turkey. According to Art. 50 of Private International Law and Procedure Act numbered 5718 (the “Act”), a final judgment rendered by a foreign civil court can only be enforced in Turkey if a competent Turkish court decides that it is enforceable. Therefore, those holding a foreign court judgment to be enforced in Turkey need to go through a court proceeding to make that court judgment enforceable. As a result of this procedure, if successful, a competent Turkish court will render an enforcement judgment (“exequatur”) with the result of giving enforceability to the foreign court judgment. This article summarizes the conditions for enforcement of a foreign judgment under Turkish Law.
Finality of Judgement
The Act requires the judgment, enforcement of which is sought in Turkey to be final. A foreign court judgment that has not yet been finalized cannot be enforced in Turkey. The issue of whether the judgment has been finalized is determined as per the laws of the country where the judgment was rendered. It is important to note that whether the laws of the country where the judgment was rendered allow court judgments to be executed without being finalized does not make any difference here. Connected with this requirement, according to the Art. 53 of the Act, an official document or certificate confirming the final nature of the judgment enforcement of which is sought must be submitted with the petition initializing the enforcement proceeding.
Reciprocity
According to the Art. 54(1) of the Act, there should be either an agreement, on a reciprocal basis between the Republic of Turkey and the state where the court decision is given (“contractual reciprocity”) or a de facto practice (“de facto reciprocity”) or a provision of law enabling the authorization of the execution of final decisions given by a Turkish court in that state (“legal reciprocity” or “de jure reciprocity)”.
The reciprocity condition, one of the enforcement conditions specified in Article 50 and Article 54 of Law No. 5718 on International Private and Civil Procedural Law (“the IPCPL”), plays a vital role in practice, which must be examined ex officio by the court in the enforcement proceedings. Pursuant to Article 54/a of the IPCPL, enforcement of a foreign court judgment is dependent on “an agreement on reciprocity between the Republic of Turkey and the state where the judgment was issued or the existence of de jure or a de facto practice that enables enforcement of the judgments given by Turkish courts in that state”.
In evaluation of the reciprocity, the first aspect to be considered should be whether there is a treaty or international agreement under which enforcement of foreign judgments is accepted. If Turkey and the state where the judgment in question was granted, are parties to such a treaty or international agreement, this would prove the existence of contractual reciprocity between those two countries. If such a treaty or agreement does not exist, enforcement would still be possible in case of the existence of de jure or de facto reciprocity.
In order for the de jure reciprocity to exist, the enforcement conditions in the law of the country where the judgment was granted and the enforcement conditions regulated in Article 50 of the IPCPL and the following, should be at least equivalent. There will be no de jure reciprocity between Turkey and the states that have legislation that includes provisions that provide for stricter conditions for the enforcement of Turkish Judgments compared to the enforcement conditions for foreign judgments in the IPCPL. In evaluating whether there is de jure reciprocity or not, it would be more appropriate to make a general evaluation rather than requiring the existence of the same enforcement conditions in the laws of both countries.
We would like to mention on the prohibition of examination of merits (revision) at this stage. Contrary to Turkish law, if foreign law adopts the revision system, it is very difficult for de jure reciprocity to exist. Because under Turkish enforcement law, it is forbidden to examine the merits of the case, other than for the purposes of evaluation of whether the conditions in Articles 50 and 54 of the IPCPL are fulfilled. Reopening the merits of the foreign judgments and review of the accuracy of the same are not allowed under Turkish Law .
In summary, an important issue in considering whether there is de jure reciprocity is the existence of provisions that allow the enforcement of foreign court judgments in the laws of the state where the enforcement of the judgment is sought. In this vein, equivalence between enforcement conditions is essential. Differences between the legislation of respective states that do not significantly complicate the enforcement of foreign court judgments do not constitute an impediment regarding de jure reciprocity.
Even if contractual or de jure reciprocity exists, if the judgments of Turkish courts are not enforced de facto by the state where the judgment is granted, the reciprocity is not considered to exist. This would be called a negative de facto practice, and the Turkish Court of Cassation held in its judgments that there is no reciprocity in such cases. On the other hand, to be able to hold that negative de facto practice exists, it should be proved that the courts of the state where the enforcement of the judgment was sought, must have rejected the enforcement of the Turkish court judgment; despite meeting all the conditions of enforcement under the laws of such jurisdiction. If the rejection of the enforcement of the Turkish court judgment is based on valid reasons according to the law of the foreign state, it cannot be concluded that there is no reciprocity on the grounds of negative actual practice. The de facto practice is always important in determining reciprocity. However, it should be kept in mind that the positive de facto practice is always easier to prove.
In order for positive de facto reciprocity to exist, a similar Turkish court judgment must be enforceable in the state where the foreign judgment is issued. Despite an agreement or legal arrangement that establishes reciprocity, the fact that any judgment of Turkish courts has not been enforced yet in practice, because of a lack of request regarding this issue in the relevant state, may not be considered a mere reason for denial of an enforcement lawsuit. At this point, the issue of which date should be taken as a basis has particular importance in order to decide whether there is de facto reciprocity. This issue is controversial in Turkish literature. According to one opinion, the date of the enforcement judgment should be taken as a basis, while another opinion suggests that the filing date of the lawsuit should be.
Another important issue in considering de facto reciprocity relates to the scope of de facto reciprocity. In other words, the question is as to whether there should be a different evaluation based on the subject matter of the lawsuit resulting in the judgment. For example, assuming that de facto reciprocity exists in family law judgments, will this reciprocity also be applicable to foreign judgments relating to a commercial matter? There is no consensus in the literature on this issue. An opinion suggests that de facto reciprocity should exist for judgments on the same subject, while another opinion defends that enforcement of any judgment granted by the court in such foreign jurisdiction (regardless of what its subject matter is) should be sufficient to establish reciprocity, as the philosophy underlying the condition of reciprocity requires.
For the purposes of evaluating reciprocity (de jure and de facto), it does not matter whether Turkey recognizes such a specific state whose courts granted the judgment; in contrast to the evaluation of political reciprocity, where the parties to a specific treaty must recognize each other.
If there is no contractual, de jure , or de facto reciprocity between Turkey and the relevant foreign state, the request for enforcement will be rejected.
The question as to whether there is reciprocity between two states is one of the hardest issues in practice because there is no "central information source" to determine reciprocity.
On the other hand, the judge has to examine ex officio and clarify whether the reciprocity exists. It is a very common practice for the Courts to consult with the official authorities about reciprocity matters. However, this method does not always work efficiently in practice and may even lead to inaccurate results. In addition to that, the existence of reciprocity can change over time and the Court of Cassation rules that in each case new research is required to be conducted.
To sum up, it is necessary to examine in detail whether the reciprocity condition is met for the enforcement of foreign court judgments in Turkey. We believe that this examination should not be limited to the legislation and practices in Turkey in order to reach an accurate conclusion.
Exclusive Jurisdiction of Turkish Courts
A further condition (negative) for the enforcement of a foreign court judgment in Turkey is that the judgment being sought to be enforced must not be on matters falling within the exclusive jurisdiction of Turkish courts. According to the High Court of Appeal, exclusive jurisdiction rules are for ensuring that the actions regarding issues regulated with these jurisdiction rules are only tried by Turkish courts (YHGK 04.03.2015, E. 2013/18-1628, K.2015/984). The underlying principle here is preservation of Turkish public order. In this vein, actions regarding real properties in Turkey, bankruptcy proceedings, labour disputes are considered within Turkish courts’ exclusive jurisdiction. It must be noted, however, these are not exhaustive. The Act does not explicitly state which actions fall within exclusive jurisdiction of Turkish courts. Therefore, the competent court will need to consider the underlying principle of jurisdiction rules and to determine whether the foreign court judgment is on a matter within the exclusive jurisdiction of Turkish Courts.
Excessive Jurisdiction of the Foreign Court
Another possible issue that may stand in the way of enforcing foreign court judgments is excessive jurisdiction—if the judgment has been rendered by a court that has deemed itself competent even if there is not a real relation between the court and the subject or the parties of the lawsuit However, in order for this to prevent enforcement decision, the counterparty must have raised its objection on this ground in the main proceedings.
Turkish Public Order
A foreign court judgment cannot be enforced in Turkey if such a judgment explicitly contradicts the public order of the Republic of Turkey. In general, in order for this to constitute a legitimate ground for resisting enforcement of foreign court judgment, the judgment must be contrary to the fundamental rights and freedoms, fundamental principles of international law, due process of law or the right to be heard. However, as the concept of public order is a fluid one, it is not possible to set out exactly what would be contrary to it. This is mitigated by the fact that Art. 54(1)(c) of the Act stipulates explicit contrariness to public order. In other words, not every conflict with Turkish public order would suffice to prevent the enforcement of a foreign judgment. It needs to be an explicit one.
With respect to the issue of public order, it was uncertain whether the fact that the foreign court judgment is without reasoning would contradict with public order of Turkey and different branches of the High Court of Appeals rendered inconsistent decisions regarding this issue. Afterward, it was settled by a decision of the High Court of Appeals’ General Assembly on the Unification of Judgement holding that mere absence of reasoning, per se, does not prevent enforcement of foreign court judgments (YİBGK 10.02.2012, E. 2010/1, K. 2012/1).
Violation of Right to be Heard
If the defendant’s right to be heard was violated, the defendant may resist the enforcement. If the defendant was not duly summoned pursuant to the laws of the state where the judgment was rendered or was not represented before that court, or the court decree was not pronounced in his/her absence or nonappearance in a manner contrary to the relevant laws of such foreign state, then the defendant may resist enforcement of that judgment in Turkey. However, the defendant must raise its objections in this matter before the court handling the enforcement proceedings. The courts are not allowed to consider these factors ex officio.
Satisfaction of the Judgement or Impediment for Enforcement
Finally, the defendant may resist enforcement on the grounds that the judgment has been entirely or partially executed previously or an impediment has occurred preventing its execution. For instance, if the defendant against whom enforcement is to be sought no longer exists (e.g., has been wound up), then, in principle, it will not be possible to execute the foreign court judgment.
Competent Court
The enforcement proceedings should be initiated before a civil court (in Turkish: asliye mahkemesi)". There are different branches of civil courts. In order to prevent delays, the competent court must be determined at the outset. In this vein, if the judgment enforcement which is sought relates to a commercial dealing between the parties, then commercial courts are competent to hear the case.
After designating what branch of civil courts is competent, the geographic jurisdiction should also be determined. As a principle courts of the place where the defendant’s residence has jurisdiction to hear the enforcement lawsuit. If the defendant does not have a residence in Turkey, then the case needs to be brought where the defendant is based. In case none of these is applicable, then the case may be brought in Ankara, Istanbul, or Izmir.
In conclusion, the enforcement of foreign court judgments in Turkey is a meticulous process that requires careful attention to a series of legal criteria. It is not a direct process and necessitates the verification of a foreign court judgment by a competent Turkish court through the mechanism of an exequatur. The key considerations include the finality of the judgment, its compatibility with the concept of reciprocity, the exclusive jurisdiction of Turkish courts, the absence of excessive jurisdiction from the foreign court, compliance with Turkish public order, and the respect for defendants' rights. Moreover, the judgment must not be previously enforced or face an impediment to its execution. The enforcement proceedings should ideally be initiated in a civil court where the defendant is based or has a residence. In the absence of such a place, the proceedings can be initiated in Ankara, Istanbul, or Izmir.
Given the intricacies of this process, it is vital for holders of foreign court judgments to seek expert legal advice before initiating the enforcement proceedings in Turkey. The legal landscape in this area remains complex, with potential for evolving jurisprudence and legislative changes, which underscores the importance of obtaining specialized legal guidance.