Arslan Law Firm

Recognition and Enforcement Law is an area of law that should be applied for court decisions ,which are made and finalized by foreign courts, to be binding and / or enforceable in our country. Recognition and enforcement of decisions, which made by another state court, is provided within the scope of the Law on International Private Law and Procedural Law (“MÖHUK”), international treaties to which we are a party and relevant regulations. Accordingly, with the recognition of a decision made by a foreign court, this decision will be accepted as the definite judgement in our country. On the other hand, a decision made by a foreign court becomes enforceable in our country, with enforcement. For example, as a result of a divorce decision issued by German courts, your marital status will only be determined as divorced within the borders of Germany. So the recognition and enforcement of the said decision before Turkish courts must be requested. Otherwise, even the divorce was decided by the German Court in your state, in Turkey’s borders marital status will still be married. 

In order to apply to recognition and enforcement processes, the decision made by a foreign court must be related to private law, must be a final decision, should not be against public order, must have been made on a matter that does not include the exclusive competence of the Turkish courts. In addition, in terms of enforcement, there must be a reciprocity agreement between the foreign country where the decision was made and our country, or a legal provision that enables the enforcement of the judgments issued by the Turkish courts in that state.  For example, if enforcement of the decision ,which made by Syrian Courts on pecuniary and non-pecuniary damages, is requested by applying Turkish courts with recourse to enforcement, the court first existence of an agreement based on reciprocity between Syria and Turkey. If  not Syria in the law given from Turkish court order of execution for the question of the existence of a law article that makes it possible a warrant is written to the General Directorate of International Law  and Foreign Relations of the Ministry of Justice and a provision is made according to the response from the institution. So that, Although there is no agreement based on reciprocity between Turkey and Syria, Syria’s Code of Civil Procedure Article 306 and 308 of the decision by the Turkish courts in accordance with the recognition and enforcement of Syria, has been made possible. In fact, it can be said that there is a legal provision in this case. However, there is a different situation here. Even though there is a contract or a legal possibility, if the foreign country does not actually enforce the Turkish court decisions, reciprocity will not be realized. Reciprocity is effective despite negative reciprocity based on actual practice, agreement or law. Therefore, while investigating whether the recognition and enforcement of a foreign court decision is possible, it is necessary to investigate not only whether there is a reciprocity contract or a law article, but also whether there is a negatively actual practice. As Arslan Law Firm, we closely follow all the procedures and principles that arise from the legislation and the Supreme Court case law for the process before applying to the court and the process after applying to the court in the recognition and enforcement of any foreign court decision and we ensure that the trial process is terminated immediately in accordance with the law.

 Another important issue in recognition and enforcement is to determine whether Turkish courts have exclusive authority in the enforcement of a decision made by foreign courts. Exclusive (definite) authority jurisdiction rules are the rules that are put in order to ensure that the case is heard only in Turkish courts and its fundamental ground is the public order. Public order should be perceive as the whole of the rules arising from the public and private law that the parties have to abide by and which the parties cannot freely dispose of.  For example, if a foreign court’s guardianship decision has been demanded for recognition and enforcement before Turkish courts; regarding guardianship, it is accepted that the authority in articles 411 and 412 of the Turkish Civil Code is final and related to public order. However, every jurisdiction rule regarding the final and public order is not an exclusive authority in terms of international law. In terms of domestic law, although the principles of public order and strict authority have been adopted in the guardianship, the aim here is to protect those who are deprived of managing and protecting themselves and their assets, and those who are deprived of managing and protecting themselves and their assets. These provisions have no concern with  the sovereignty and sovereign rights of the state. Therefore, on the assumption that other conditions exist, the recognition and enforcement of the guardianship decision given by the foreign court by the Turkish courts is possible despite the definite authorization regulation in the Civil Code. In this respect, while evaluating recognition and enforcement requests, exclusive authorization should also be examined in detail. Because the subject matter of each court decision differs in terms of incident.

 On the other hand, another issue that should be taken into consideration while the recognition and enforcement cases are being substituted is the filing of the lawsuits in the competent and authorized court. These issues formed on International Private Law and Procedural Law (MÖHUK)  Article 51 clearly stated is the recognition and enforcement requests against him enforcement requested person’s residence in Turkey, residence or habitual residence is not available in Turkey, Ankara, Istanbul or Izmir should be requested from the First Instance Courts. However, the point that should be considered here is the relationship duty between the Civil Courts of First Instance and the Commercial Courts of First Instance. For this reason, it is decided whether the court in charge is the Civil Court of First Instance or the Commercial Court of First Instance, based on the basis of the court decision requested for enforcement. For example, in terms of a claim arising from a current account agreement between the parties, the court that will evaluate the enforcement request in terms of the provision given as a result of this lawsuit is the Commercial Court of First Instance because it is one of the absolute commercial cases listed in article 4/1-a of the Turkish Commercial Code. In cases that are substituted with the request for enforcement and recognition, the decisions of foreign courts are ruled only by evaluating whether they meet the requirements for recognition and enforcement without any examination on the merits. Therefore, the content of the decision that is recognized and enforced as a result of recognition and enforcement cases will not change, as otherwise decisions will be against the law and procedure.