As a civil based law country (continental European Law) in Turkey, enforcement of foreign judgments are entitled to specific provision in International Private Act (MOHUK). It is noteworthy to mention that Turkey is not part of European Union and accordingly Brussels Convention and other relevant legislation which deal with judgement enforcement does not have any effect in Turkish Law.
The Conditions of Exequatur (Enforcement ) Article 38 of MOHUK (Turkish International Private Law Act)
The court of competent jurisdiction shall render the exequatur under the following conditions:
- a) The presence of an agreement, which rests on the principle of reciprocity, between the Turkish Republic and the State where the judgment has been rendered, or a provision of law or an application de facto enabling the execution in that state of judgments rendered by the Turkish courts,
- b) The judgment shall have been rendered on a subject, which does not come under the exclusive jurisdiction of the Turkish courts,
- c) The judgment shall not have been expressly contrary to the public policy,
- d) Pursuant to the laws of that place, the person against whom execution is requested shall have not been duly cited to the court that rendered the judgment or represented before that court, or a judgment by default shall have been rendered as contrary to these laws and this person shall have not objected to the Turkish court against the request for execution through basing on one of the matters above,
- e) The law, which is authorized in accordance with the Turkish rules of conflict of laws,shall have not been applied in the foreign judgment concerning the civil status of the Turcs and the defendant, who is a Turkish citizen, shall have not objected in this respect against the execution.
In consideration of these information, what is the final situation with US court decrees in Turkey?
As can be seen above, the first condition is presence of a mutual agreement with the country whose judgements will be enforced in Turkey. There is no specific agreement between USA and Turkey related to this issue. Accordingly, other conditions will come to an issue such as reciprocity.
Mostly, it is very difficult to prove reciprocity between USA in regards of legislation due to common law structure of the USA law (except State of Lousiana which has uniquely continental law background) . In this regard, generally Turkish Courts reject USA decrees based on the fact that there is no proof of a reciprocity between USA and Turkey. Please also note that, according to Turkish High Court decisions state that the first time enforcement of a foreign court decision does not constitute an obstacle for enforcement.
Considering all these facts, in general we can say that USA decisions against Turkish defendants are not enforceable in Turkey. There is one exception for this general precedent.
One of a Turkish High Court decision related to enforcement matter states that in general it can be said that there is no reciprocity between USA and Turkey, on the other hand, every state of USA has different practice to enforce Turkish Decisions in its jurisdiction. For instance, one of Turkish High Court decision states that, Turkish first instance Courts must consider the law of USA’s specific state which judgement is given, and reciprocity must be determined based on that state’s attitude to Turkish judgements. Thus, if i Turkish Courts decisions are enforceable in the jurisdiction of judgement given state then first instance court must have accepted the enforceability of judgment.
Let me to exemplify it with an example, in case that Turkish Court decrees are accepted to be enforced in state of Florida, and if it can be proved by the applicant then US decree must be enforceable in Turkey based on reciprocity principle. Accordingly, proof of reciprocity in certain state of USA related to Turkish Decrees are priority to start a enforcement procedure in Turkey.
Lastly, there is also one more obstacle regarding Turkish Law for US applicants under “caution judicatum solvi” of Turkey. There is no any specific agreement between Turkey and United States stating that Turkish citizens must not pay any additional deposit fee to open a case in USA as foreigner. In that regard, based on reciprocity Turkish Courts seek for security deposit (generally 15 percent of disputed amount) from US applicants to start a case in Turkey.
Therefore, there are two obstacles which US citizens or US legal entities can confront with :
- Reciprocity of Enforcement of US Judgements
- Security Deposit Requirement for filing a case based on lack of agreement between Turkey and USA which regulates exemption of security deposit for Turkish Citizens in case of filing a case in USA.
Accordingly, there are two critical points that US applicant must prove in Turkish Courts to enforce US Court decision. Firstly, applicant must prove that the judgement which is given from relevant state accepts also Turkish Courts Decrees in its jurisdiction. This can be proved by court decree examples obtained from local state courts stating Turkish Court’s decision is enforced. And also if there is specific law in that state which stating liberal provision for enforcement of Foreign Court Decree.
Secondly, in case that applicant is not willing to remit security deposit to Turkish Court as 15 percent of disputed amount for filing a suit, then US applicant must also prove that Turkish Citizens are not subject to this requirement in their state.
As can be understood from this article, enforcement of US decisions in Turkey requires legal struggle which can be only achieved by US attorney and Turkish Attorney cooperation by submitting evidences proving reciprocity between the court practices.