One of the requirements that everyone has witnessed soon in today’s conditions is that every country’s desire to stay within the borders of the countries and only establish their own order remains unrequited, and now every country is trying to influence each other and create a common ground in this direction.
One of them is to ensure that the court decisions made by each country by using its exclusive powers, in other words, by using its sovereign rights, can be applied and executed in foreign countries. Besides being a citizen formally, the need for justice does not come from the bond of citizenship, it is a basic requirement for every individual living in the world.
Therefore, when the companies and people try to obtain their legal rights, they do not want to be restricted in Region or Countries’ Border. The citizens request a more clear justice system and a verdict which could be applicable in the all countries. The justice process could be long or short term for each country, but when you got your rights at least in a country’s justice system, you should be able to speak your claim out in any country and it should be able to obtain. Otherwise, the citizens become restricted with the countries’ border to get their rights and the unfair implementation could become spread.
RECOGNITION-EXECUTION institution was built in our legal system for prevention of loss of rights, acceptance of foreign courts and arbitration centers in Turkey and compensation of damages from the tort in line with the decisions of foreign courts.
A court decision rendered by a foreign court can have a final effect in Turkey in two different ways: One of these; foreign court decisions in Turkey can have the effect of conclusive evidence. For this situation, this decision must be ‘recognized’ by the Turkish Courts. The other one is; In Turkey, the foreign court decision can have the force of res judicata. For this, the relevant decision must be ‘enforced’ by the Turkish Courts.
Recognition of a decision rendered by foreign court in Turkey does not have executive effect although enforcement of a decision rendered by a foreign court has executive effect in Turkey. It means that to execute a foreign court decision in Turkey, in other words to claim a right in Republic of Turkey according to a foreing court decision, enforcement decision for that foreign court decision must be rendered by Turkish courts.
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WHAT ARE THE CONDITIONS OF RECOGNITION AND ENFORCEMENT CASES?
- There must be a judgement rendered by the courts of a foreign country. Recognition and enforcement action can be filed for arbitral awards if it meets the conditions other than being a court decision. Other than these, no other decision can be recognized and enforced.
- The decision must be in scope of civil cases such as civil or commercial etc. Recognition of divorce decisions is one of the most frequently applied subjects. Disputes arising from commercial relations between companies or individuals are also included in this scope.
- The foreign court decision must be finalized according to the laws of the country of the court which made the decision . For this situation, there must be a letter or document from the foreign court that made the decision, showing that the decision has been finalized and duly approved by the authorities of that country.
- Decisions rendered by foreign courts should not be within the exclusive competence of Turkish courts.
- The decision rendered by foreign courts should not be against public order.
Furthermore, for enforcement of foreign court judgement in Turkey there should be reciprocity between Turkey and country of the court which made the decision, that they will mutually recognize each other’s court decisions or that country must have arrangements that allow the enforcement of that decision in Turkey in its laws. In this way, the reciprocity requirement is only mandatory in the case of enforcement and there is no such requirement in the recognition decision. The existence of “reciprocity” condition has not been sought in order to make the recognition decision.
Another important issue in the Recognition-Enforcement cases is whether the right of defense of the person against whom a decision has been taken in foreign court decisions is protected or not and whether the person against whom the decision has been decided exercise his right to defense effectively. The right to defense must be exercised. Otherwise, the right to defense in Turkish Law is one of the rights protected at a high level and it is necessary to take this situation into consideration in foreign court decisions.
IN WHICH COURT RECOGNITION AND ENFORCEMENT CASE CAN BE OPEN?
In the recognition and enforcement cases civil courts of first instance are the competent courts. However, Commercial Courts of First Instance are responsible for the Recognition and Enforcement of commercial cases. Family Courts are responsible for the recognition and enforcement of divorce cases.
There are different possibilities about the court of competent jurisdiction in the recognition and enforcement. If the person to be sued for recognition and enforcement has domicile in Turkey then the case must ve filed at the court of that person’s domicile. However, if that person does not have a domicile in Turkey then the recognition and enforcement case can be filed at İstanbul, Ankara or İzmir courts.
In Turkey, mostly divorce cases have been the subject of recognition and enforcement proceedings. You can view our article on this subject by clicking here.
WHAT ARE THE DOCUMENTS FOR RECOGNITION AND ENFORCEMENT CASES THAT OPENED FOR IMPLEMENTATION OF FOREIGN COURT JUDGEMENTS IN TURKEY?
In the recognition and enforcement cases, a procedural review is carried out within the scope of the HMK, without entering into the merits by the court, and the existence of the conditions determined as restricted in the procedural sense is sought.
When applying to the court, presenting the documents in full has a big importance. For the recognition and enforcement cases that should be opened for implementation of foreign court decisions in Turkey, the lawsuit must be filed with the following documents in the presence of the above conditions.
Required Documents;
- The original document of the foreign court decision and its translation into Turkish by a sworn translator and certified by a notary public.
- A final annotation that shows the decision is finalized or an informative document on this issue.
- Apostille annotation for the foreign court decision that will be subject to recognition and enforcement.
- Photocopy of Passport and Identity Card
- If you are to be represented by a lawyer, a power of attorney issued in accordance with recognition and enforcement.
HOW TO GIVE A POWER OF ATTORNEY TO A LAWYER FOR RECOGNITION ENFORCEMENT CASES?
In order to provide that the process is followed by a lawyer in the recognition and enforcement cases, power of attorney should be given to a lawyer in Turkey. If the person who will give the power of attorney is abroad and has the opportunity to go to the Turkish Consulate, then it is very easy to give a power of attorney. If the person makes an appointment with the relevant consulate, a power of attorney can be given by being there at the time of the appointment.
If the person who will give the power of attorney can’t speak Turkish, a Sworn Translator must also be present. If this issue is reported to the relevant consulate, the consular officers will assist at the Sworn Translator point.
If the person does not have the opportunity to give a power of attorney from the Turkish Consulate, he/she is required to get a power of attorney from the place that has the authority to give a power of attorney in the country of residence. In addition, the Apostille annotation must be included in this power of attorney. After these procedures are completed, the power of attorney given in a foreign language must be translated by a Sworn Translator and approved by the Notary.
If the country where the power of attorney is issued is not one of the countries where the Apostille annotation is applied, in this case the documents must be translated by a Sworn Translator after they are approved by the Consulate and notarized.
As can be seen, a power of attorney through the Turkish Consulate is a much easier and more practical way, and we recommend our clients to give a power of attorney through the Turkish Consulate or Embassy.
In the case of recognition and enforcement, the power of attorney to be given to the lawyer must comprise the authority to open and pursue recognition and enforcement cases.
In this regard, reaching us for detailed information, the decision in question in Turkey we worked together at the point of making the necessary processes for the applicability, lawyers are acting according to your needs with experts in the field. If you contact us, your transactions will start as soon as possible. You can easily reach us here.
In this regard, you can reach us for detailed information and we can act according to your needs about implementation of the foreign decisions in Turkey with lawyers that are experts in their fields. If you contact us, your transactions will start as soon as possible. You can easily reach us here.
Required Documents For Recognition and Enforcement;
- The original document of the foreign court decision and its translation into Turkish by a sworn translator and certified by a notary public.
- A final annotation that shows the decision is finalized or an informative document on this issue.
- Apostille annotation for the foreign court decision that will be subject to recognition and enforcement.
- Photocopy of Passport and Identity Card
- If you are to be represented by a lawyer, a power of attorney issued in accordance with recognition and enforcement.