Enforcement and Recognition of Foreign Arbitral Awards in Turkey

Author: Mr. Gökhan Cindemir , Phd Candidate , Senior Partner Lawyer cindemir@cindemir.av.tr

This article is aimed at explaining current provision and practice of enforcement and Recognition of Foreign Arbitral Awards in Turkey. New York Convention and Turkish Private Law and Procedure Act (Called MÖHUK in Turkey, International Private Law and Procedure Act) related to enforcement of foreign arbitral awards are the main provisions governing terms of subject concerned. It is also noteworthy to mention that according to Turkish Constitution, international treaties have direct effect in Turkish Law based on article 90. Article concerned states that:

“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act No. 5170) In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

As can be understood from the provision above, in case of a contradiction between provisions of national legislation and international treaty, provisions of international agreements shall prevail. In consideration of enforcement of foreign arbitration awards under Turkish Law, provisions of New York Convention have priority in relation to implementation of foreign awards rather than Turkish National Legislation. Thus, if New York Convention’s provisions contradict with Turkish Legislation, New York Convention shall be taken into account as a law which has priority effect. Previously, prior to New York Convention’s entry into force Turkish International Private Law had played so much important role for foreign awards. (The New York Convention came into force in Turkey on 30^th September 1992)

Therefore, enforcement of foreign arbitral awards will be governed by New York Convention as a priority rather than Turkish International Private Law. And in that regard, Article 3 of the New York Convention provides that “each contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles.”

Determination of Competent Court and Jurisdiction of the court for Law Suits in the field of enforcement of foreign arbitral awards

Enforcement of Foreign Arbitral Awards

“Article 60- (1) Final and executable or binding upon the parties foreign arbitral awards may be subject to enforcement.

(2) The enforcement of a foreign arbitral award shall be requested by a petition from the Court of First Instance mutually designated by the parties in writing. In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person’s place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution. “

According to article 60/2 International Private Law of Turkey, component court is Asliye Hukuk Mahkemesi (First Instance Court). Additionally, the court must consider this fact as ex officio under Article 1 of Turkish Civil Procedure Law. In case, lawsuit is filed in the court which does not fall into context of this provision, then the court must reject the lawsuit based on the provision concerned.

The court is only obliged to detect the criteria’s of arbitral award’s enforcement. Accordingly, the subject of these types of lawsuits cannot be regarded as “commercial cases” in doctrine. Unless the case is not totally dealing with copyright and maritime law.

As can be seen from the article 60/2, jurisdiction of the court will be determined based on the presence of an agreement related to the jurisdiction of the court. And “In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person’s place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution.

Court Fees Under the Terms of Enforcement of Foreign Arbitral Awards in Turkey

The court charges comprise four type of levies4: application charge, charge for sittings(charged from the party caused the adjournment of the sittings)  , charge for decision and also for copies of decision and appeal charges . The charges for judgment and writ can be assessed either in fixed terms-as lump sum for non-monetary disputes , or based on certain rates calculated over the nominal value of the dispute.

In arbitral award enforcement cases, court fee will be 0.68,32 of disputed amount. In other words, claim for 1000 Turkish Lira will be subjected to 6,83 lira will be the court fee of the case. It is also important to note that, there will be also extra court fees which will be requested from the court as mentioned above such as application charge, postal and expert (if it is requested) expenses.

Cautio Judicatum Solvi- Security Payment

Article 48 of Turkish International Private Law Act;

(1) Foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court shall be required to provide a security whose amount shall be determined by the court to cover the expenses of the legal procedures and proceedings as well as losses or damages of the other party.

(2) The court may exempt the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis

As can be understood from the provision mentioned above, foreigners who are seeking to enforce arbitral awards in favor of them are subjected to remit security payment to Turkish Court in case of lack of reciprocity.

 In case that judicial assistance agreement or relevant convention’s ratifications lacks between Turkey and third countries, there is a security deposit obligation (Cautio Judicatum Solvi) for foreign legal entities or real persons who intends to initiate a lawsuit or enforcement procedure in Turkey. (Article 97 of the Turkish Code of Civil Procedure and Article 48 of the Code of Private International Law and International Civil Procedure). There is no certain provision laying down the percentage of amount related to deposit, however in practice courts determines {f9a4109733f652cca990be40627a5936cf15dfa4522608af15afeea4fcfc29a9}15 of disputed amount as a security deposit.
A Judicial Assistance Agreement Exists between Turkey and the Countries Mentioned Below
Germany, N. Cyprus, Albania, Kuwait, Austria, Lithuania, Azerbaijan, Hungary Bulgaria, Macedonia, Czech Republic, Algeria ,Moldova, China, Mongolia, Morocco, Uzbekistan, Georgia, Poland, India, Romania, Croatia, Tajikistan, Iraq, Tunisia, Jordan, Yugoslavia, United Kingdom, Ukraine, Switzerland, Italy,Kazakhstan.
There are also countries exempt from security deposit due to reciprocity principle in Turkish Private State Law Act. These countries do not apply any security deposit to Turkish citizens and legal entities in case of debt recovery proceeding, accordingly Turkey does not seek any security deposit obligation for mentioned below countries: Russia, Egypt, Chile, Finland, Peru, Libya, Syria.

Also it needed to be born in mind that member states of De Hague Convention on Civil Procedure is also entitled to reciprocity.

Remittance of Security deposit can be provided with several ways such as remittance of the amount to Turkish central bank account in foreign currency, guarantee letter from a bank, pledge on a real state, guarantee letter approved by a Turkish notary and bill of exchange. In the end of case or enforcement procedure, security deposit must be refund to creditor by the court. Real reason behind security deposit is to protect Turkish debtor for possible damages by foreign entities during procedure.

The Law Applying to the Procedure of Arbitral Award Enforcement Cases in Turkey

“Petition and Review Procedure

Article 61-

(1) A party requesting enforcement of a foreign award shall attach the copies of the following documents depending on the number of the other parties:

1. a) The original or duly certified copy of the arbitration agreement or arbitration clause,
2. b) The original or duly certified copy of the final and executable or binding upon the parties arbitral award,
3. c) Translations and duly certified copies of the documents listed in (a) and (b), above.

(2) The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards. “

As it is indicated in first paragraph of a, b, c section of article 61, and relevant documents must be submitted to the court along with the lawsuit petition. In the enforcement procedure, preparation of the case sources requires written documents. It is noteworthy to mention that the court is also obliged to review oral proceedings. Therefore, judicial case procedure consists of written proceedings (submission of petitions, response petitions) and oral proceedings (hearings, interrogation)

Lawsuit petition is required for filing a case at Turkish Courts. The petition must contain following information to be approved by the court for the continuation of the case.

1. A) Name of the Court
2. B) First and Surnames of Applicants/ and Defendants and addresses
3. C) ID number of Applicant (If applicant is a Turkish citizen)
4. D) The name and address of the attorney at law
5. E) Disputed amount and subject of the case
6. F) Summary of cases with numbered paragraph
7. G) Evidences and other proof methods
8. H) Legal Reasons

İ) Demand from the court

1. J) Signature of applicant

It is important to bear in mind that the interest stemming from debt must be explicitly mentioned in the lawsuit petition.

Under Article 325 of the Turkish Code of Civil Procedure, all documents submitted to the court have to be translated. According to the Turkish of Civil Procedure the translation has to be made by a sworn translator and certified by a public notary. Turkish Consulate abroad are also authorized to certify translations. [1]

1. Submission of Lawsuit Petition

Two original copy of lawsuit petition must be submitted to the court. One of the copy must be preserved in the case file and the other must be submitted to the defendant.

The applicant must remit the court fee and postal cost along with the lawsuit petition.

The case can be filed anytime, even during judicial vacation it is possible to take a lawsuit action.

1. The law which applies to the procedure

“The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards. “.

In second paragraph of the article, procedure that the court must follow is stipulated. It is important to note that Articles 55, 56 and 57 of Turkish Civil Procedure Code does not exist anymore due to new code which is entered into force in 2011. According to New Turkish Civil Procedure Code numbered 6100, relevant provisions are stipulated under the articles between 316 – 322.

Under these provisions, procedure which applies to foreign arbitral award enforcement is determined as “simple proceeding”.  Simple court proceeding method in litigation is limited only with two petition exchange period among the applicant and the respondent instead of 4. It is noteworthy to stress the Constitution Court’s Decision on this matter. Bakırköy 13. İş Mahkemesi (13^th Tribunal of Labor First Instance Court) decided not to consider the 3^rd and 4^th replies of the parties due to the feature of simple court proceeding method. Upon the decision of first instance court, applicant applied to Turkish Constitution Court based on violation of right of his fair trial due to disregard of replication. Constitution Court’s Decision numbered 2011/125 Esas , Karar 2012/46 date on 22.3.2012 gave a judgment by refusing the applicant claim. Accordingly, the court decided that “simple proceeding” method which applies to the cases cannot be regarded as violation of right of fair trial due to the fact that method’s purpose is to speed up the judicial process.

Prof. Şanlı stated that in Turkish Law, the prohibition of reviewing the merits in recognition is unanimously accepted. In Turkish law there is a prohibition of reviewing the merits”. [2]

Additionally Prof Nomer also stated that “as well as recognition of the foreign court decisions, the foreign substantive correctness of the arbitral awards cannot be reviewed. The principle to prohibit “revision au fond also applies to enforcement of the arbitral award. The exception of that principle occurs when there is a contradiction to public order in the arbitrator award as well as recognizing enforcement of foreign court decision. [3]

As can be understood from these statements, revision au fond principle constitutes as an important factor in enforcement of foreign awards in Turkey.

Grounds for Dismissal of Enforcement of Foreign Arbitral Award

 “Article 62-

(1) The court shall dismiss the enforcement request of a foreign arbitral award, if,

1. a) An arbitration agreement is not executed or arbitration clause does not exist in the main agreement,
2. b) The arbitral award is contrary to public morality or public order,
3. c) It is not possible to settle the dispute subject to the arbitral award by way of arbitration under Turkish law,

ç) One of the parties has not been duly represented before the arbitrators and has not expressly accepted the acts concluded thereafter,

1. d) The party against whom the enforcement of the arbitral award is requested has not been duly notified of the appointment of arbitrators or has been deprived of his/her right to make claim and defense,
2. e) The arbitration agreement or clause is invalid pursuant to the governing law designated by the parties, or in the absence thereof, pursuant to the law of the place where the arbitral award is rendered,
3. f) The appointment of the arbitrators or the procedure applied by the arbitrators violates the agreement of the parties, or in the absence thereof, the law of state where the arbitral award is rendered,
4. g) The arbitral award has been rendered on an issue that is not included in the arbitration agreement or arbitration clause or exceeds the limits of the agreement or the clause (only the exceeding part),
5. h) The arbitral award is not final, enforceable, or binding under the governing law or the governing procedure or the law of state where it was rendered or it is annulled by the competent authority in the place where the award is rendered.

(2) The burden of proof regarding issues addressed in the paragraphs (ç), (d), (e), (f), (g), and (h) above, lies on the party against whom enforcement is requested. “

As can be seen in article 62 of Turkish International Private Law, grounds for dismissal for enforcement of the awards is stipulated. This provision is one of the most crucial part for foreign award enforcement.

If the Turkish Courts rejects the enforcement of the foreign award, this award cannot be enforced in Turkey any longer. Recognition of such an award cannot be asked for either since recognition and enforcement of awards are subject to the same conditions and rules. This having been noted, in the case where a foreign award is not enforceable in Turkey, there may still be some remedies available under Turkish Law. The Claimant may ask the Turkish Courts to decide on the merits of the dispute. In such circumstances, the Claimant may rely on Article on 1.1 of the New York Convention which provides that the arbitration agreement became inoperative and therefore subject to the jurisdiction of the national court. [4]

Reciprocity matter must be taken into account for enforcement in case that award is given by a tribunal which is not member state of New York Convention. In that case, it is important to note that most of the countries of the world has ratified the convention. On the other hand, Turkey has also ratified judicial assistance treaties with some specific countries. These treaties not only encompass reciprocity matter with states concerned and also enforcement procedure which shall be applied to arbitral awards are stipulated in these mutual treaties. Austria (Articles 20-21) , Poland (Articles 19-24), Algeria (Articles 20-27) ,Iraq (79-85), Azerbaijan (19-24), China (21-26), Georgia (19-24), Albania (19-24) Kazakhstan (Articles 21-26) , Mongolia (Articles 19-24) Lithuania (Articles  19-23) have mutual agreement covering procedure of arbitral award enforcement with Turkey.

1. Violation of Public Order

In consideration of this article’s purpose, it is aimed to be touched on subjects of foreign award enforcement roughly. On the other hand, violation of public order subject is a broad concept to be explained due to Turkey’s rich precedent related to this subject.

As in other legal systems, public policy is considered as an undefined area of Turkish law. A great number of legal context in foreign awards can be found to be against Turkish public policy and, as such, would preclude successful enforcement of a foreign arbitration award. The most significant example for present purposes is that of completion of service of proceedings to the defendant party.

Pursuant to Article V (2) (a) of the New York Convention, the Turkish Courts may refuse to recognize or enforce a foreign award if the recognition or enforcement of the award would be contrary to Turkish Public Policy. Article V provides that the application for enforcement may be refused on the ground that the “recognition or enforcement of the award would be contrary to the public policy of the country where recognition and enforcement is sought.” This basis of rejection has generated the most discussion and litigation, and often overlaps with other grounds such article V(1)(b) (due process, Article V(1)(d) (improper procedure or composition of tribunal), and Article V(2)(a)(non-arbitrability.) [5]

Foreign Award Enforcement Judgment and Its Effects

A final judgment cannot be retried. The plaintiff cannot sue again on the same claim. This is called res judicata effect of a judgment. Exceptionally, however, the losing party may demand the reopening of the proceedings under C.C.Pr ( Yargılamanın İadesi) . [6]

Appeal

A party wishing to appeal must file a petition of appeal within fifteen days after service of the judgment. The members of the chamber and the rapporteur examine the file.

Summary

New York Convention has a main role in foreign award enforcement in Turkey. Its principles and provisions must be taken into account by a Turkish Judge elementarily. Accordingly, all internal legislation of Turkey related to foreign award enforcement must be convenient to the provisions of the convention basis on the direct effect of international agreements in Turkey under Turkish Constitution. Therefore, this situation gives predictability regarding enforcement of an award for foreign parties.

[1] Arbitration Law of Turkey : Practice and Procedure , Author : Ziya Akinci , page 74, Paragraph 4

[2] Şanlı, C. Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları , 3rd ed. Beta, Istanbul 2005 P. 181.

[3] See Normer, P. 422

[4] Ziya akinci – 178 , 179

[5] Ziya Akınci

[6] Tuğrul Ansay & Don Wallace JR, 6th Ed, Wolters Kluwer Law and Business ,Pages 228 – 229