A comprehensive practical guide to the recognition and enforcement of foreign court judgments in Türkiye, covering the difference between recognition and enforcement, the framework of Articles 50 to 59 of the Turkish PILA, the reciprocity requirement and its non-application to recognition, exclusive jurisdiction, public policy, the right of defence, the prohibition of review, the registration of divorce judgments and the distinction from foreign arbitral awards.
A judgment rendered by a foreign court does not of itself produce effect in Türkiye. A divorce judgment given in Germany, a judgment for a debt rendered in England, or a custody arrangement established in Switzerland is, in order to be valid in Türkiye, the subject of a separate legal process. By virtue of the principle of the sovereignty of states, the judgment of the judicial organ of one state may produce effect in another country only on the conditions provided for by the legal order of that other state. In Turkish law this process operates through two basic mechanisms known as recognition and enforcement, and is regulated in Articles 50 to 59 of the Act on Private International Law and Procedural Law No. 5718. This article comprehensively examines the recognition and enforcement of foreign court judgments in Türkiye, the difference between the two institutions, the conditions sought, the procedure and the matters requiring attention in practice.
1. The Concepts of Recognition and Enforcement and the Difference between Them
The production of effect by foreign court judgments in Türkiye is achieved through two different mechanisms according to the nature of the judgment. Recognition is the acceptance of a foreign court judgment in Türkiye as res judicata and as conclusive evidence; it ensures that the legal situation contained in the judgment is deemed valid in the Turkish legal order. Enforcement, on the other hand, is the rendering of a foreign court judgment executable in Türkiye; it makes possible not merely the recognition of the judgment but also its being carried out by way of compulsory execution. The practical consequence of this distinction is as follows; enforcement is required for a judgment containing an order, that is, one condemning a party to do, give or pay something, to be executed in Türkiye. By contrast, recognition suffices for judgments that merely establish a legal situation or that constitute, alter or terminate a legal relationship. For example, whereas recognition suffices as a rule for a divorce judgment to produce effect in Türkiye, enforcement is required for the collection of a maintenance or compensation claim connected with the divorce. The most important technical difference between the two institutions arises, as will be addressed below, in the reciprocity requirement.
2. The PILA Framework and Scope of Application
The recognition and enforcement of foreign court judgments is regulated in Articles 50 to 59 of Law No. 5718. These provisions determine how foreign judgments acquire validity in the Turkish judicial system and the conditions to which they are subject. The approach adopted by Turkish law is not a system wholly closed to foreign court judgments, but a system that accepts these judgments under certain legal safeguards. In this way both the security of international legal relations is ensured and the fundamental principles of the Turkish legal order are protected. For the provisions of the PILA to be applicable, it is first examined whether there is an international treaty regulating the matter between Türkiye and the relevant state; where there is such a treaty, its provisions apply in priority. Since there is no general treaty to which Türkiye is a party on the recognition of foreign court judgments, the provisions of the PILA apply directly as against most countries. Judicial assistance agreements concluded with certain states may, however, contain special provisions facilitating recognition and enforcement.
3. Preliminary Conditions and the Finality of the Judgment
For a foreign court judgment to be recognised or enforced, certain preliminary conditions must first be satisfied. The first is that the judgment has been rendered by a foreign court, that is, by an organ exercising the judicial power of a state. The second is that the judgment relates to civil matters; with the exception of the parts of the operative provisions of criminal court judgments concerning personal rights, as a rule judgments arising from private law disputes are subject to recognition and enforcement. Exceptionally, administrative decisions relating to adoption and maintenance may also be made the subject of recognition or enforcement. The third and most critical preliminary condition is that the judgment has become final according to the law of the country in which it was rendered. An enforcement judgment may not be given for judgments that have not become final, that is, in respect of which the avenues of appeal or objection are still open or which are still pending. Finality means formal finality according to the procedural law of the state in which the judgment was rendered. For this reason, in an application for recognition or enforcement, the submission of an annotation or document showing that the judgment has become final is mandatory.
4. The Competent Court
Applications for recognition and enforcement are heard in the courts of first instance under Article 51 of the PILA. As a rule the competent court is the civil court of first instance. In practice, however, it is debated whether the specialised courts are competent according to the subject of the foreign judgment. In the recognition and enforcement of foreign judgments relating to family law, particularly divorce and custody judgments, it is accepted that the family courts are competent. In the recognition and enforcement of judgments relating to commercial relationships, recent decisions of the Court of Cassation show a tendency to the effect that the commercial courts of first instance may be competent. As regards the court having territorial jurisdiction, the rule is the court of the place of residence in Türkiye of the person against whom enforcement is sought; where there is no place of residence, the court of the place where the person is staying, and failing that the court of the place where the property subject to execution is located, has jurisdiction. Although the action for recognition and enforcement is as a rule in the nature of a non-contentious judicial matter, it may also acquire a contentious appearance where the other party is able to raise its objections. The correct determination of the competent court is the most important assessment to be made at the outset of the process.
5. The Reciprocity Requirement and Its Non-Application to Recognition
The most contested condition sought for enforcement is reciprocity. Under the first paragraph of Article 54 of the PILA, there must be, between the Republic of Türkiye and the state in which the judgment was rendered, an agreement based on reciprocity, or a provision of law or de facto practice in that state making possible the enforcement of judgments given by Turkish courts. Reciprocity may be established in three ways; the existence of an agreement between the two states on this matter, the legislation of the relevant state affording the possibility of the enforcement of Turkish judgments, or Turkish judgments being de facto enforced in that state. The existence of any one of these conditions suffices. By contrast, there is a very important exception as regards recognition. Although Article 58 of the PILA refers, for recognition, to the conditions for enforcement, it expressly excludes the reciprocity requirement. That is, reciprocity is not sought for a foreign court judgment to be recognised in Türkiye; whereas there are five conditions for enforcement, four conditions other than reciprocity are sought for recognition. This distinction is of great practical importance particularly in judgments where recognition suffices, such as divorce; even the divorce judgment of a country with which there is no reciprocity may be recognised in Türkiye.
6. Violation of Exclusive Jurisdiction
An important obstacle to enforcement and recognition is that the foreign court has rendered a judgment on a matter falling within the exclusive jurisdiction of the Turkish courts. Under Article 54 of the PILA, where the judgment has been rendered on a matter falling within the exclusive jurisdiction of the Turkish courts, enforcement of the foreign judgment is not possible. Exclusive jurisdiction refers to cases in which certain disputes may be heard only in the Turkish courts. The most typical example of this is actions concerning rights in rem in immovable property located in Türkiye; since such disputes fall within the exclusive jurisdiction of the Turkish courts, a foreign court's judgment concerning the ownership of an immovable in Türkiye may not be enforced in Türkiye. Exclusive jurisdiction is an institution that cannot be set aside by the will of the parties and is closely connected with public policy. The Turkish court investigates a violation of exclusive jurisdiction of its own motion in the enforcement examination, that is, without the need for the parties to raise it. This condition serves to protect certain core areas of Turkish judicial sovereignty.
7. Contrariety to Public Policy
The ground most frequently raised for the refusal of recognition and enforcement is that the foreign judgment is manifestly contrary to Turkish public policy. Article 54 of the PILA lays down as a condition that the judgment is not found to be manifestly contrary to public policy. Public policy expresses the fundamental values of Turkish law, its indispensable principles and the core of its conception of justice. However, there is a critical limit in the application of this condition; the public policy review does not mean the re-examination of the substance of the foreign judgment. The Turkish judge may not review whether the foreign judgment is correct in terms of substantive law, or whether the evidence has been correctly assessed. The review is limited solely to whether the effect that the judgment will produce in Türkiye is manifestly contrary to the fundamental principles of public policy. For example, contrariety to public policy may arise where the right of defence has been wholly disregarded, where the parties have not been heard, or where the result is incompatible with the fundamental conception of justice of Turkish law. By contrast, the mere fact that foreign law has adopted a solution different from Turkish law does not of itself constitute contrariety to public policy. The Court of Cassation consistently emphasises that the public policy exception must be interpreted narrowly.
8. Violation of the Right of Defence
Another important ground leading to the refusal of recognition and enforcement is that the right of defence has been violated in the foreign proceedings. Under Article 54 of the PILA, the person against whom enforcement is sought not having been duly summoned before the foreign court, not having been represented before that court, or a judgment having been rendered in that person's absence contrary to those laws, and that person objecting to the enforcement application on this ground, is a ground for the refusal of enforcement. This condition is directed at the protection of the right to a fair trial and the right to be heard. Where the action was not duly served on the defendant in the foreign court, where the defendant was deprived of the possibility of defending itself, or where a judgment was rendered in its absence without the necessary safeguards being provided, that judgment may not be enforced in Türkiye. An important point is that this ground is taken into account not of the court's own motion but only upon the objection of the person concerned. That is, unlike public policy and exclusive jurisdiction, a violation of the right of defence depends on the party against whom enforcement is sought raising it. This provision makes the provision of procedural safeguards in the foreign proceedings a precondition of enforcement.
9. The Prohibition of Review and Examination of the Court's Own Motion
One of the most fundamental principles of the law of recognition and enforcement is the prohibition of review. According to this principle, the Turkish court may not conduct a fresh trial on the substance of the foreign judgment; it may not review the correctness of the substantive or legal assessments in the foreign judgment. The task of the Turkish judge is not to decide whether the foreign judgment is correct, but to review whether the conditions for recognition and enforcement provided for in the PILA are satisfied in the concrete case. That is, the judge may not enter into the substance of the case; may not re-assess the evidence, question the correctness of the law applied, or debate afresh whether the result is fair. This principle forms the basis of the trust placed in international judicial decisions and of interstate legal cooperation. Otherwise every enforcement application would mean the re-hearing of the foreign action in Türkiye, and the institution of recognition and enforcement would be rendered ineffective. That said, the Turkish court investigates of its own motion those of the enforcement conditions that are of a public nature, such as exclusive jurisdiction and public policy; conditions such as a violation of the right of defence are examined only upon the objection of the person concerned. This balance between the prohibition of review and examination of the court's own motion forms the essence of the process.
10. Procedure and Required Documents
The action for recognition and enforcement is brought before the competent court by a statement of claim. Under Article 53 of the PILA, certain documents must be annexed to the statement of claim. These are; the original of the foreign court judgment duly authenticated by the authorities of that country or an authenticated copy thereof, together with an authenticated translation thereof, and a writing or document showing that the judgment has become final, duly authenticated by the authorities of that country, together with an authenticated translation thereof. The due authentication of the documents and, where necessary, their bearing an apostille annotation is critical to the sound conduct of the process. Actions for recognition and enforcement are subject to the simple procedure of trial; this procedure ensures that the trial is conducted more swiftly and more simply than the written procedure. At the hearing the judge ascertains that the documents are complete and that service was duly effected, then assesses the conditions in the PILA point by point. The other party may raise its objections; however, those objections may relate only to the absence of the conditions for enforcement, and may not relate to the substance of the foreign judgment. Deficiencies in the documents and errors in translation are the principal cause of the delay of actions in practice.
11. The Difference between the Consequences of Recognition and of Enforcement
The consequences produced by recognition and enforcement decisions differ from one another. When an enforcement decision is given, the foreign court judgment becomes executable in Türkiye like a judgment of a Turkish court; the creditor may, by taking that judgment to the enforcement offices, collect its receivable by way of compulsory execution. A recognition decision, on the other hand, does not render the foreign judgment executable, but deems it valid in the Turkish legal order as res judicata and as conclusive evidence. For example, the recognition of a divorce judgment ensures that the parties are deemed divorced in Türkiye too and that this situation is entered in the civil registry; moreover, no enforcement is required because a divorce judgment does not contain an order requiring compulsory execution. By contrast, enforcement is required for the collection in Türkiye of a maintenance or compensation claim ordered in the same divorce judgment. It is possible for a judgment to contain operative provisions amenable both to recognition and to enforcement; in that case the party concerned may seek only recognition or enforcement according to its need. The choice of the correct route, since it determines both whether the reciprocity requirement will be sought and the outcome of the process, is the most important strategic assessment to be made before the application.
12. Divorce Judgments and Registration in the Civil Registry
Divorce judgments rendered by foreign courts are the field most frequently encountered in recognition and enforcement practice. As a rule, recognition suffices for a foreign divorce judgment to produce effect in Türkiye and to be entered in the civil registry; reciprocity is not sought. That said, the regulation introduced by Article 27/A of the Civil Registry Services Law has made it possible, where certain conditions exist, for foreign divorce judgments to be entered directly in the civil registry by the administrative route without the need for a court judgment. Under this regulation, divorce judgments rendered by the judicial or administrative authorities of a foreign country may, on conditions such as the parties applying together in person or through their representatives and the judgment having duly become final, be registered before the foreign representations or the civil registry directorates. This administrative route is much faster and more practical than the classic recognition action; however, it may be used only where the conditions sought are fully satisfied. Where the conditions are not satisfied or one of the parties objects, the route of the classic recognition action remains open. This special regime concerning the family has, in practice, provided an important convenience in terms of preventing hardship and expediting processes.
13. The Specialised Court Debate in Commercial Judgments
In the recognition and enforcement of foreign court judgments arising from commercial relationships, the determination of the competent court is of particular importance. The traditional approach was to the effect that the competent court in all recognition and enforcement applications was the civil court of first instance. However, recent decisions of the Court of Cassation reveal a tendency to the effect that the specialised courts may be competent according to the nature of the dispute. Accordingly, it is debated that in the enforcement of a foreign court judgment arising from a commercial relationship the commercial court of first instance, and in a judgment relating to labour law the labour court, may be competent. This debate is important from a practical point of view; for an action brought before a court lacking competence leads to a serious loss of time owing to the decision of lack of competence and the sending of the file to the competent court. In the face of this uncertainty, the correct determination of the nature of the dispute and the observance of the current case law of the Court of Cassation before making an enforcement application are of great importance. As regards foreign judgments falling within the field of the specialised courts, the assessment of a court that is an expert in the matter produces more accurate results both in terms of procedural economy and in terms of the quality of the decision.
14. Distinction from Foreign Arbitral Awards
The recognition and enforcement of foreign court judgments and the enforcement of foreign arbitral awards are subject to separate legal regimes, and this distinction must not be confused. The mechanism addressed in this article concerns judgments rendered by foreign courts, which are the judicial organs of a state. Foreign arbitral awards, that is, those rendered by way of arbitration, by an arbitrator or arbitral tribunal, are subject to a different procedure. The enforcement of foreign arbitral awards is carried out according to the special procedure regulated in the 1958 New York Convention, to which Türkiye is a party, and in Articles 60 and following of the PILA. In this regime the conditions for enforcement and the grounds for refusal are determined not by the provisions of the PILA concerning court judgments but by the relevant article of the New York Convention; the grounds for refusal are limited in number and of a narrowly interpreted nature. In practice, the confusion of these two routes may lead to actions brought on the wrong legal basis and to losses of rights. The correct determination of whether a dispute has been resolved before a state court or in arbitration is the first and most important step determining the enforcement regime to be applied. For this reason, when the execution of a foreign judgment in Türkiye is contemplated, the nature of the judgment must be correctly determined from the outset.
15. Conclusion and Practical Recommendations
The recognition and enforcement of foreign court judgments in Türkiye is a system that strikes a balance between the security of international legal relations and the protection of the fundamental principles of the Turkish legal order. The prominent practical considerations in this field are as follows. First, the correct choice between recognition and enforcement must be made according to whether the judgment requires execution or merely the establishment of a legal situation; this choice also determines whether the reciprocity requirement will be sought. It is mandatory that the judgment has become final according to the law of the country in which it was rendered and that the document of finality has been duly obtained. The authenticated originals of the documents, their translations and, where necessary, apostille annotations must be prepared without omission. The correct determination of the competent court according to the nature of the dispute must be observed with the current case law, particularly in judgments relating to commercial and labour law. In divorce judgments, it must be assessed whether the administrative registration route afforded by the Civil Registry Services Law is suitable. It must not be forgotten that foreign arbitral awards are subject to a different regime, and the correct legal basis must be chosen. A correct legal assessment made at the outset of the process both prevents loss of time and ensures that the recognition and enforcement application concludes successfully.
The recognition and enforcement of foreign court judgments is closely connected with the other layers of international trade and family law. Our analysis of choice of law and jurisdiction agreements in international commercial contracts, our article on bank letters of guarantee and the URDG 758 rules, which addresses the cross-border operation of bank undertakings, and our article on pursuing maintenance claims abroad address the matters to which enforcement is connected.
For advisory services on the recognition and enforcement of foreign court judgments in Türkiye, the registration of divorce judgments, enforcement actions relating to commercial and family law, and the enforcement of foreign arbitral awards, you may contact us at info@guzeloglu.legal.