Recognition and Enforcement of Foreign Court Judgments
The legislative, executive and judicial activities carried out by states on their territories are indicative of their sovereignty. States exercise their sovereign rights while respecting the sovereignty of other states. In this respect, a judgment made within the scope of judicial activities of a foreign state must be recognized or enforced by the courts of a state in order for the judgment to be effective on the said state’s territory.
What are recognition and enforcement?
Recognition is the decision of approval of the finality on the territory of another country of a foreign court judgment rendered in the domain of private law.
Enforcement renders a foreign final court judgment executable on the territory of another country.
What are the conditions for enforcement?
The conditions required for the enforcement decision of the competent Turkish court are listed in the Article 54 of the International Private and Procedural Law No. 5718 (“IPPL”) as follows:
- Existence of a reciprocal agreement between the Republic of Turkey and the country where the ruling was made, or a de facto practice or a provision of law enabling the execution of final judgments given by a Turkish court in that country,
- Turkey is a signatory to various reciprocal agreements. However, reciprocity established by an international agreement is not a prerequisite for foreign court decisions. De facto reciprocity is also sufficient. The de facto reciprocity was accepted by court rulings in some Western European countries, such as Germany, the Netherlands, England and Switzerland.
- Provided that the matter resolved upon by the judgment does not fall within the exclusive jurisdiction of the Turkish courts or that it has been contested by the defendant, the judgment must not have been given by a state court which has deemed itself competent even though there is no real relation between the court and the subject-matter of the dispute or the parties.
- Claims concerning rights in rem over an immovable property, claims raised pursuant to the Enforcement and Bankruptcy Law, registration of intellectual property rights or industrial design in Turkey, claims concerning the removal or cancellation of the registration, and similar claims are considered within the scope of the exclusive competence of Turkish courts.
- The judgment shall not be explicitly contrary to public order.
- For a foreign judgment to be explicitly contrary to public order in Turkey, it must violate the fundamental values of the Turkish legal system. The determination of such a violation is at the discretion of the judge. Examples of noncompliance to public order include violation of the right to be heard, judgments without justification, judgments against the general public moral, and judgments violating foreign capital legislation, customs legislation or tax legislation.
- The person against whom enforcement is requested should not have been unduly summoned to the court that has given the judgment pursuant to the laws of that foreign state, or not represented before that court, or the judgment not rendered in his/her absence or by default in a manner contrary to these laws, and the person should not have objected to the enforcement request based on the foregoing before the Turkish courts.
- Violation of the right to be heard and the principle of equality of arms shall prevent the enforcement or recognition of the decision as a result of the absence of these and the objection made on such grounds before the Turkish courts.
What are the conditions for recognition?
The only difference between recognition and enforcement is that pursuant to Article 58/1 of IPPL, unlike the enforcement process, there is no contractual, statutory or de facto reciprocity requirement for the recognition process.
How are the competent courts that have jurisdiction over recognition and enforcement decisions determined?
According to Article 51/1 of IPPL, the civil courts of first instance are competent for the enforcement of foreign judgments. Pursuant to Article 51/2 of IPPL, the competent court, which has jurisdiction over the matter, is the court where the party against which enforcement is sought has his/her domicile. If there is no domicile address of this person in Turkey, his/her place of residence, and if none of these exist, the courts of İstanbul, Ankara or İzmir shall have jurisdiction over enforcement of foreign judgments.
How are recognition and enforcement decision rendered?
The competent court for enforcement and recognition claims raised before the civil courts of first instance has no discretion to examine the merits of the decision. Pursuant to IPPL, assessment of the duly made applications for recognition and enforcement of all foreign court judgments by Turkish courts shall be limited to the form and procedure and the existence of requisite conditions for enforcement. The court that assesses the enforcement request cannot examine the due application of law and procedural provisions to the merits of the case. The judge, who does not have any discretionary power, is obliged to rule for enforcement or recognition if the conditions required by law are met.
In this regard, according to the Court of Cassation’s jurisprudential unification decision with case numbered 2010/1 and decision numbered 2012/1, dated 10.10.2012: “The judge has no authority to review and evaluate the foreign judgment’s accuracy. Within the framework of this prohibition, the enforcement judge cannot examine or evaluate any justification in a judgment. The existence or lack of justification in the judgment is inconsequential in determining whether the judgment constitutes a violation of the public order. It is clear and indisputable that the principles laid down in Article 141 of the Constitution with regard to rules of procedure shall apply exclusively to the Turkish courts. The verdicts of foreign court judgments that are in violation of the public order may not be enforced. The mere lack of justification of final foreign court judgments shall not prevent their enforcement, and this shall not constitute violation of the public order as per Article 54/c of International Private and Procedural Law No. 5718.“
Who may request recognition and enforcement? What are the rules of procedure?
Pursuant to Article 52 of IPPL, anyone who has legal interest in enforcement of a foreign judgment may request so. This request shall be made by petition and the petition shall contain a sample case summary approved by the court that has rendered the judgment and an approved translation of the judgment.
Recognition and enforcement are subject to simple trial procedure. In the application of this procedure, the Turkish judge shall not be able to rule a decision of enforcement without holding hearing. The defendant may only claim that the conditions for enforcement are not established under the IPPL.
According to the cautio judicatum solvi principle, the foreign party who files or joins a case before the Turkish courts shall deposit a payment the amount of which shall be determined by the court, in order to secure the costs of trial, execution and damages. However, the court may exempt the foreigner from this payment in case of reciprocity.
Enforcement and recognition renders foreign court judgments applicable and enforceable as any other Turkish court decision. Even though recognition and enforcement are regulated under IPPL, bilateral and international agreements signed with the relevant country should also be taken into consideration.