Under Turkish law, an interim measure is a form of provisional legal protection designed to safeguard the parties’ rights without awaiting the outcome of the proceedings on the merits, in situations where delay would entail a risk. In disputes that are arbitrable, an application for interim measure before state courts gives rise to an obligation to commence arbitral proceedings as a complementary procedural step. In disputes without a foreign element where the seat of arbitration is designated as Türkiye, this obligation arises under the Turkish Code of Civil Procedure No. 6100 (“CCP”); in disputes involving a foreign element, it is governed by the International Arbitration Law no. 4686 (“IAL”). In recent years, this mechanism has been invoked with increasing frequency, particularly in relation to claims concerning the fate of bank guarantees connected to the dispute on the merits. This trend can also be observed in practice.
This article examines the interaction between applications for interim measures and the arbitral proceedings, the legal bases of the obligation to commence arbitral proceedings as a complementary measure, the procedure and time limits applicable to the initiation of proceedings on the merits, and the practical difficulties encountered in practice. Thus, the relationship between interim measures and arbitration proceedings will be discussed on this issue, which is becoming increasingly important in practice.
I. Interim Measures under Turkish Law
An interim measure is a form of provisional legal protection designed to preserve the enforceability of the judgment to be rendered at the conclusion of the proceedings, by guarding against the risk that the subject matter of the dispute may undergo undesirable changes during the period preceding the final judgment.[1] In this context, interim measures are ordered in order to avert risks such as the potential non-enforceability of the judgment on the merits arising from the length of judicial proceedings;[2] to secure the claimant’s eventual recovery of the disputed property or right;[3] to prevent irreparable or hardly reparable harm or to avert the aggravation of existing damage.[4]
The need for provisional legal protection does not cease to exist in disputes that can be subject to arbitration. On the contrary, in connection with arbitral proceedings, there often remains a continuing need, most frequently on the part of the claimant, but in certain cases also on the part of the respondent, to safeguard the right that would be obtained should that party prevail in the arbitration. Indeed, while both the IAL and the CCP confer upon arbitrators or arbitral tribunals the authority to order interim measures, the parties are nevertheless afforded, in certain circumstances, the possibility of seeking interim measures before state courts. This supports the effectiveness of arbitral proceedings, while on the other hand demonstrating that the role of state courts in the field of provisional legal protection continues. The continuing role of courts is of particular importance, as interim measures ordered by an arbitral tribunal frequently do not possess the same coercive effect or practical weight as interim measures granted by state courts.
II. The Obligation to Commence Proceedings on the Merits as a Complementary Measure
A. General Principles and Legal Basis
The obligation to commence proceedings on the merits, referred to as the “measure-completing act” or the “complementary procedural step”, highlights the close and intrinsic relationship between an interim measure and the proceedings on the merits.[5] As emphasised in the reasoning of legislator regarding Article 397 of the CCP, an interim measure establishes only a provisional legal situation; in order to prevent this provisional situation from turning into a permanent instrument of pressure on the opposing party, it is of crucial importance that the claim underlying the interim measure be transformed into proceedings on the merits within a short period of time.[6] In this way, the provisional legal protection afforded by the interim measure is balanced by steering the dispute towards a final resolution within a reasonable time, thereby preserving a fair balance between the parties’ competing interests.[7] For this reason, both the CCP and the IAL prescribe period of prescription for the commencement of proceedings on the merits as a complementary procedural step to an interim measure. As will be examined in detail below, failure to comply with these results in the interim measure becoming null and void ipso iure.
An application for an interim measure may be made either while proceedings on the merits are already pending before a court or an arbitrator/arbitral tribunal, or prior to the commencement of such proceedings. This article focuses on applications for interim measures filed before the initiation of proceedings on the merits, and on the ensuing obligation to commence arbitral proceedings as a complementary procedural step.
Pursuant to Article 414(3) of the CCP, where a valid arbitration agreement exists, state courts may grant interim measures if: (i) the arbitrator or emergency arbitrator cannot grant a provisional legal protection measure in a timely or effective manner; (ii) the application concerns an interim measure which, by its very nature, cannot be ordered by an arbitrator such as a request for precautionary attachment; or (iii) the parties have expressly authorised the court in writing, or have obtained permission in this respect from the arbitrator or arbitral tribunal.[8] Similarly, Article 6 of the IAL provides that an application for interim measure may be made to either the courts or the arbitrator/arbitral tribunal prior to the commencement of arbitral proceedings.
Pursuant to Article 414(4) of the CCP and Article 6(5) of the IAL, an interim measure shall lapse ipso iure once the arbitral award becomes enforceable, or where the claim is dismissed by a decision of the arbitrator or arbitral tribunal.
B. Commencement of Proceedings on the Merits in Arbitration
Proceedings on the merits, as the complementary measure to an interim measure, may be initiated either in the form of arbitral proceedings or before state courts. It is self-evident that, for the proceedings on the merits to be commenced in arbitration, the parties must be bound by a valid arbitration agreement providing that their dispute is to be resolved through arbitration.
In certain cases, instruments ancillary to the main contract, such as bank guarantees issued in the course of the performance of the contract, may contain a different forum selection clause (choice of forum). Such clauses become relevant only in limited circumstances, notably where the dispute relates directly to the validity or legal character of the ancillary instrument itself. For instance, if issues such as the invalidity, scope, or abusive calling of a bank guarantee give rise to an autonomous dispute pertaining specifically to the guarantee, the forum selection clause contained therein may assume significance. In practice, however, disputes most often arise from the underlying contractual relationship itself; in such cases, these clauses will not alter the nature of the complementary measure, or, in other words, the forum in which the proceedings on the merits must be commenced.
Another possible alternative for the proceedings on the merits is investment arbitration. This alternative rarely happen in practice.[9] This is because in order for this alternative to occur, several cumulative conditions must be met: (i) the opposing party must be a State or a State entity; (ii) an international agreement granting foreign investors access to international arbitration must exist between the relevant State and the Republic of Türkiye;[10] and (iii) the circumstances must be such as to necessitate an application for interim measures before Turkish courts.[11] This alternative may become relevant where the contract concluded between the investor and the State entity designates the courts of the host State as the competent forum for the resolution of disputes. This is because under Turkish law, the proceedings on the merits as a complementary measure may only be initiated before Turkish courts and domestic or international arbitration. As an investor in whose favour an interim measure has been granted by Turkish courts cannot initiate the complementary proceedings before a foreign State court, such situations may give rise to the possibility of the investor commencing an investment arbitration against the host State as the complementary measure.
C. Time Limits for the Commencement of Proceedings on the Merits
The question of by when proceedings on the merits must be commenced constitutes one of the most significant issues in relation to the completion of an interim measure in practice. From the perspective of the CCP, Article 426(2) provides that, where a party has obtained an interim measure from a state court prior to the commencement of arbitral proceedings, that party must initiate arbitration within two weeks. Failing this, the interim measure shall lapse ipso iure.
Under the IAL, where an interim measure is sought from a state court before the commencement of arbitral proceedings, Article 10(A) requires that arbitral proceedings be commenced within thirty days from the date of the court’s interim measure decision; otherwise, the interim measure shall likewise lapse ipso iure. The same provision states that arbitral proceedings shall be deemed to have been commenced “on the date on which an application is made to the civil court of first instance for the appointment of arbitrators, or to the person, institution or organisation which, pursuant to the parties’ agreement, is to appoint the arbitrators, and, if under the agreement the appointment of arbitrators is vested in both parties, the date on which the claimant appoints its arbitrator and notifies the other party to appoint its arbitrator; and, if the arbitration agreement specifies the names and surnames of the arbitrator or of the arbitrators constituting the arbitral tribunal, the date on which the request for the resolution of the dispute by arbitration is received by the other party.”
Where an interim measure has been obtained from a state court, the party in whose favour the measure has been granted must, in accordance with Article 397(1) of the CCP, submit documentation evidencing the commencement of arbitral proceedings within the two-week period prescribed by the CCP or the thirty-day period prescribed by the IAL, as applicable to the enforcement officer responsible for executing the interim measure, ensure that such documentation is placed on the interim measure file, and obtain a certificate to that effect.[12]
If the obligation under Article 397 of the CCP is not fulfilled in a timely manner, namely, if proceedings on the merits have been commenced within the prescribed period but the procedural steps required by the provision have not been duly completed, the interim measure shall lapse ipso iure.[13] Upon the lapse of the interim measure, the party concerned must request the enforcement officer who executed the measure to carry out the necessary steps for its de facto removal, and, pursuant to Article 397(3) of the CCP, the fact that the interim measure has lapsed shall be notified to the relevant authorities.[14]
In cases falling within the scope of Article 1(3) of the IAL, where the seat of arbitration is designated outside Türkiye, it is provided that only Articles 5 and 6 of the IAL shall apply. This gives rise to uncertainty as to whether the thirty-day time limit set forth in Article 10(A) is applicable in such circumstances. In practice, certain courts have issued decisions referring to Article 397 of the CCP for the purposes of the complementary procedural step required following an interim measure. For this reason, it is advisable, insofar as possible, to commence the proceedings on the merits within the two-week period prescribed under Article 397 of the CCP. Given the very nature of interim measures, the risk that the measure may lapse, even as a result of an erroneous decision, is generally an outcome that parties seek to avoid.
On the other hand, it should be noted that the lapse of an interim measure as a result of the proceedings on the merits having been commenced after the expiry of the prescribed periods has no bearing on the admissibility of the proceedings on the merits themselves. In other words, the claim will not be dismissed solely on this ground.[15]
D. The Content of the Proceedings on the Merits and Proof of Their Commencement
The proceedings on the merits to be initiated as a complementary measure are, by their very nature, those in which the substantive right forming the basis of the interim measure is asserted and in which a final resolution of the dispute is sought. In the context of arbitration, this takes the form of an application for arbitration submitted before an arbitrator or an arbitral institution.
For the complementary procedural step to be deemed validly fulfilled, the parties to the arbitral proceedings must be identical to the parties involved in the interim measure proceedings.[16] Moreover, since the interim measure secures a specific substantive law claim, the same claim must constitute the subject matter of the proceedings on the merits.[17] Accordingly, whatever matter formed the basis of the request for an interim measure must likewise form the basis of the proceedings on the merits to be commenced as the complementary measure. For this reason, the claims advanced in the proceedings on the merits should be carefully formulated.
The question of how to document the commencement of the main proceedings to the court under Article 397 of the CCP is a matter of practical importance. It is common practice to submit the request for arbitration to the court together with an acknowledgement of receipt or registration confirmation obtained from the arbitral institution or where the application is made by email, the relevant correspondence and confirmations. That said, correspondence that merely express an intention to commence arbitration, or that defer the initiation of arbitral proceedings to a future date, should not be considered sufficient to fulfil the obligation to initiate proceedings as a complementary measure. In this respect, given that different arbitral institutions (as well as ad hoc arbitration) may adopt differing practices, it is not possible to identify a single, uniform method. What matters is adopting an approach that evidences the commencement of the proceedings in the most concrete manner possible. Where possible, it would be a prudent course of action to demonstrate the initiation of proceedings through multiple means, such as email correspondence, a written confirmation from the arbitral institution, records of physical submission, or acknowledgements of receipt.
III. Conclusion
Where the mechanism of interim measures intersects with arbitral proceedings, the obligation to commence proceedings on the merits as a complementary measure assumes particular significance. In disputes that can be subjected to arbitration, state courts continue to meet the need for provisional legal protection while, at the same time, recognising the superior role of arbitration in the resolution of the dispute on the merits. Maintaining this balance requires the coordinated and harmonious application of the provisions of the CCP and the IAL.
The timely and procedurally proper initiation of arbitral proceedings as a complementary measure is critical not only for the continued validity of the interim measure, but also for the effectiveness of the arbitral process itself. It ensures that the provisional situation created by the interim measure is transformed, without undue delay, into a final determination of the dispute on the merits, thereby preserving a fair balance between the parties’ interests. At the same time, given the forfeiture nature of the relevant time limits, it is essential that the practical difficulties identified above, particularly those relating to the applicable deadlines, be resolved so as to avoid the risk of loss of rights. In light of the existing uncertainties and divergences in practice, it would be prudent to carry out the complementary procedural step by adopting a cautious approach that takes into account the most restrictive possible interpretation, both as regards compliance with the applicable time limits and the evidencing of the commencement of proceedings.
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[1] Hakan Pekcanıtez et al. Pekcanıtez Usul – Medenî Usûl Hukuku, Vol. V, 16th Edition, On İki Levha Yayıncılık, 2025, (“Pekcanıtez Usul”), p. 4318.
[2] Id., p. 4319.
[3] Baki Kuru, Medeni Usul Hukuku El Kitabı, Vol. II, Yetkin Yayınları, 2020, (“Medeni Usul El Kitabı”), p. 1263.
[4] İlhan E. Postacıoğlu, Sümer Altay, Medeni Usul Hukuku Dersleri, Updated, Extended 8th Edition, Vedat Kitapçılık, 2020, p. 962.
[5] Av. Dr. Tahsin Hatipoğlu, İhtiyati Tedbir Yargılaması, 1st Edition, On İki Levha Yayıncılık, 2025, (“İhtiyati Tedbir Yargılaması”), p. 630.
[6] Reasoning of legislator regarding CPP art. 397.
[7] İhtiyati Tedbir Yargılaması, p. 630.
[8] Pekcanıtez Usul, p. 4703.
[9] Although exceptional, we have acted as counsels in an investment arbitration case initiated as proceedings on the merits that will complement the interim measure in at least one example. Therefore, it is possible to talk about the existence of such an option concretely.
[10] E.g., Agreement between the Republic of Turkey and Turkmenistan concerning the Reciprocal Promotion and Protection of Investments dated 02.05.1992, published in the Official Gazette dated 15.01.1995 numbered 22172, art. 7.
[11] E.g., obtaining an interim measure regarding a letter of guarantee issued by banks located in Türkiye.
[12] Ziya Akıncı, Milletlerarası Tahkim, Updated and Extended 6th Edition, Vedat Kitapçılık, 2021, p. 238.
[13] Pekcanıtez Usul, p. 4407.
[14] Id.
[15] Medeni Usul El Kitabı, p. 1289.
[16] İhtiyati Tedbir Yargılaması, p. 631; İstanbul Regional Court of Justice 3rd Civil Chamber, Case No. 2022/205, Decision No. 2022/244, dated 03.02.2022.
[17] İhtiyati Tedbir Yargılaması, p. 632; İstanbul Regional Court of Justice 12th Civil Chamber, Case No. 2019/1448, Decision No. 2019/1218, dated 03.10.2019.
