Jurisdiction is a mechanism that exists as an extension of the sovereignty of each state. Each state adjudicates its own set of legal principles.1 To apply the awards made by the court of another state to be implemented in another state, awards must be reviewed by the domestic law of the state requesting implementation; in other words, it must be approved by the domestic law of the state in which they are requested to be implemented.2
In order for a court award in a foreign country to be accepted as res judicata or conclusive evidence, either ‘'enforcement'' or ‘'recognition'' must be litigated. These disputes are mentioned in Articles 54 and 58 of Act No. 5718 International Private Law and International Procedural Law (PIL). In this article, the matter and conditions of enforcement and recognition dispute are discussed.
Enforcement dispute is filed for the purpose of foreign court awards, which contain an enforceable judgment as the quality of res judicata on Turkish Courts. On the other hand, Recognition dispute is filed for the purpose of foreign court awards which do not contain enforceable judgment as the quality of res judicata on Turkish Courts.
A. Conditions of Enforcement Dispute
Under the article 54 of PIL, conditions for enforcement are listed in numerus clausus. As it is indicated in Article 55/2 of PIL, the opposing party may only object to enforcement by claiming that those conditions are not fulfilled. As listed in PIL, there are 4 conditions for enforcement:
- The Condition of Reciprocity
Under the subparagraph (a) in article 54 of PIL, ‘'reciprocity'' condition is provided. According to this, the existence of a treaty based on the principle of reciprocity between the Republic of Turkey and the country in which the judgement was issued or of a statutory provision or de facto procedure that enables judgments issues by Turkish court to be domestically enforced in that country.
- The Condition of Jurisdiction
Under the subparagraph (b) in Article 54 of PIL, ‘'jurisdiction'' condition is provided. For a foreign court award to be enforceable in Turkey, the award must not be about a dispute that falls within the jurisdiction of Turkish courts. The jurisdiction of Turkish Courts is mentioned PIL and other laws. For example, in the article 12 of Turkish Civil Procedure Code indicates that the court at the place of an immovable property shall have a mandatory jurisdiction over actions for real rights or ownership of real rights, and for possession of immovable property or seizure right.
The jurisdiction of the foreign court should not be exorbitant. Exorbitant jurisdiction aims to prevent foreign court awards that obtained by taking advantage of jurisdictional rules that would put the defendant in a difficult situation. If defendant standing trial that is not connected to the subject matter of the case and the parties, the defendant may encounter a situation where it is difficult to pursue the case. Since it would be unrealistic to expect an objective result from a proceeding in which such circumstances are a factor, it is possible raising an objection to enforcement on the ground of exorbitant jurisdiction.
- The Condition of Not Being Contrary to Public
Order
Under the subparagraph (c) in Article 54 of PIL, the condition of ‘'not being contrary to public order'' is pointed out.
As it is explicitly indicated that the foreign court award must not be contrary to the Turkish public order. Since public order changes according to time and place, it is not possible to determine its content in a complete and precise manner. Therefore, discretion is given to the judge in determining the violation of public order.
- The Condition That the Right to Defense Has Not Been
Violated
Under the subparagraph (ç) in Article 54 of PIL, the condition that the right to defense has not been violated is stressed. According to this:
It is accepted that if the enforcee not having been duly notified to attend at the adjudging court or not having been represented at the court pursuant to lex loci or else judgment having been issued in default or in their absence contrariety to such law his/her defense rights are deemed to have been violated and therefore the Turkish courts may refuse enforcement. In addition, such person not having objected before the Turkish court against the application for domestic enforcement based on one of the conditions for enforcement.
B. Conditions of Recognition Dispute
We have already stated that Recognition dispute is filed for the purpose of foreign court awards which do not contain enforceable judgment as the quality of res judicata on Turkish Courts. Article 58 of PIL states necessary conditions for a foreign court award to constitute res judicata or conclusive evidence as a result of recognition. Accordingly, although it is stated that the conditions for enforcement set forth in Article 54 of PIL shall also be sought for recognition. However, in the continuation of Article 58, the condition of reciprocity is exempted for recognition. Regarding this, the conditions for the enforcement or recognition of a foreign court award are same in Turkey. The only difference is that the condition of reciprocity will not be sought for recognition.
C. Prohibition of Revision
Whether the procedural or substantive rules applied by the foreign court have been correctly determined or correctly applied is outside the scope of the recognition and enforcement dispute. Therefore, the Turkish court has jurisdiction over recognition and enforcement dispute will not examine the merits of the foreign court award. However, if the award in question is contrary to the fundamental and indispensable values of the Turkish legal order, the enforcement or recognition of the foreign court award may be refused due to the contradiction to the public order referred to in subparagraph (c) of Article 54 of PIL.
In a award given by the General Assembly of the Court of Cassation Unification of Jurisprudence in 2012, it has been revealed that the prohibition of revision is also accepted in Turkish law.3
References:
- AKINCI, Z: ‘Milletlerarası Özel Hukuk', Vedat Kitapçılık, İstanbul 2020, s. 200-223.
- ŞANLI, C: ‘Milletlerarası Özel Hukuk', Beta Basım Yayım, İstanbul 2022.
- EKŞİ, N: ‘Yabancı Mahkeme Kararlarının Tanınması ve Tenfizi' İstanbul, 2013
- ÖNAL, A: ‘Tanıma ve Tenfiz Kararlarının Hukuki Niteliği' Public and Private International Law Bulletin Dergisi, s. 576-610.
- BERKİ, O.F.: ‘Devletler Hususi Hukuku', C. II, 4. Bası, Ankara, 1961, s. 353.
- 5718 Sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun
- Y. İBGK, E.2010/1, K. 2012/1, T. 10.02.2012 tarihli kararı.
Footnotes
1. ÖNAL, A: ‘Tanıma ve Tenfiz Kararlarının Hukuki Niteliği' , Public and Private International Law Bulettin dergisi, s.576-610.
2. BERKİ, O.F. ‘Devletler Hususi Hukuku', C.II, 4. Bası, Ankara, 1961, s.353
3. Y. İBGK, E.2010/1, K. 2012/1, T. 10.02.2012 (Kazancı İçtihat Programları, http://www.kazanci.com, Erişim Tarihi: 26.10.2016). “The judge of enforcement case has no jurisdiction to examine and evaluate the correctness of the foreign award in terms of substantive law. Within the framework of this prohibition, it is also not possible for the judge of enforcement case to examine and evaluate the reason that is present in the award.”
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