Enforcement of Foreign Arbitral Awards in Türkiye

Prevailing in an international arbitration is often the result of a demanding and, at times, protracted process. Yet, success in the arbitral proceedings alone does not guarantee recovery. Where the award debtor is domiciled in Türkiye or holds assets within its territory, the foreign arbitral award must first be recognized and enforced by the Turkish courts. Only upon such enforcement can the award have the same legal effect as a domestic court judgment and produce binding consequences under Turkish law.

The enforcement of foreign arbitral awards in Türkiye, while governed by clear statutory provisions, often involves strict procedural requirements and contentious practical issues that may significantly affect the outcome of the proceedings.

  I.      Enforcement Procedure in General

The enforcement of foreign arbitral awards in Türkiye is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) (ratified in 1992) and the International Private and Procedural Law no. 5718 dated 27 November 2007 (“IPPL”). The New York Convention provides the overarching international framework, while the IPPL contains specific procedural rules to be applied by Turkish courts. Together, they define the conditions for enforcement and confine judicial review to procedural and formal grounds. Accordingly, arbitral awards arising from commercial disputes and rendered in a New York Convention member state are enforced in Türkiye under these combined provisions.

Under Article 60 of the IPPL, the local competence of the Turkish courts is determined as follows:

• The application for enforcement of a foreign arbitral award must be filed with the court of first instance at the place of domicile or at the usual place of residence of the person against whom enforcement is requested.
• If this person is neither domiciled in, nor a resident of Türkiye, the application must be filed with the court of first instance where the assets subject to enforcement are located.

The proceedings for the enforcement of arbitral awards are conducted in an adversarial manner and typically involve a simplified exchange of petitions between the plaintiff and the defendant during the written phase, although parties may submit additional documents or arguments in practice, which can lead to 2-3 hearings before the court’s decision. At the conclusion of the proceedings, the court may either dismiss or uphold the enforcement request. If upheld, the foreign arbitral award becomes legally binding and enforceable in Türkiye. Conversely, a dismissal results in the award being unenforceable in Türkiye, with implications including res judicata status and the effects of conclusive evidence.

The court’s review is strictly limited by Article V of the New York Convention and the relevant provisions of the IPPL. Turkish courts are expressly prohibited from conducting a revision au fond, a re-examination of the merits of the dispute. Instead, they verify compliance with procedural requirements, the validity of the arbitration agreement, and whether any of the enumerated grounds for refusal (such as violation of public policy or lack of proper notice) apply.

The initial application for enforcement must be filed with the local first-instance court (Asliye Hukuk Mahkemeleri). The decision may then be appealed to the Regional Court of Appeal (Bölge Adliye Mahkemesi), and subsequently to the Court of Cassation (Yargıtay). This three-tier process mirrors the standard structure of civil litigation in Türkiye. Importantly, an enforcement decision does not become final and cannot be used to initiate execution proceedings until all appeal processes are concluded.

In conclusion, the enforcement procedure in Türkiye is court-driven, formal, and multi-tiered. While the scope of judicial review is narrow, the process can be time-consuming due to the mandatory two-tiered appeal stages.

 II.      Cautio Judicatum Solvi Requirements

Under Turkish procedural law, a foreign plaintiff may be required to provide security for litigation costs before initiating legal proceedings. Security for costs, known as cautio judicatum solvi, is a procedural safeguard designed to protect defendants from the risk of non-recovery of litigation costs. In enforcement proceedings initiated by foreign parties in Türkiye, this requirement can represent a significant preliminary consideration. Pursuant to Article 48 of the IPPL, it is also compulsory for a foreign plaintiff to deposit security when initiating the application for enforcement of a foreign arbitral award.

Cautio judicatum solvi is a procedural precondition; the judge assesses the need for security ex officio. The court gives the plaintiff an adequate period for the deposit of the designated security, and failure to do so results in dismissal of the case on procedural grounds due to the absence of a legal action condition.

Turkish law does not prescribe a fixed amount or specific form for cautio judicatum solvi. Judges have discretion to determine the amount and form of the security pursuant to the Code of Civil Procedure. The courts usually require a security bond ranging from 10% to 15% of the monetary value of the award to be enforced in practice.

However, Article 48 paragraph 2 of the IPPL sets forth an exemption from the security deposit obligation for foreigners. Pursuant to this paragraph, the court exempts the plaintiff from the security deposit requirement on the basis of reciprocity.

Reciprocity may be based on an international treaty, statutory provisions, or de facto practice:^[1]

1. Treaty-based reciprocity, where Türkiye and the foreign state are parties to a bilateral or multilateral treaty waiving such requirements. For instance, Türkiye concluded bilateral judicial assistance treaties with numerous states, many of which include provisions on exemption from cautio judicatum solvi, and is also a contracting state to the Hague Convention on Civil Procedure, which provides exemption from security payment.
2. Statutory reciprocity, where the foreign state’s domestic legislation grants similar exemptions to Turkish plaintiffs.
3. De facto reciprocity, where, even without a formal treaty or statute, the foreign state is known to apply the exemption in practice to Turkish plaintiffs.

Identifying and evidencing a reciprocity exemption at the outset of the enforcement proceedings is crucial to avoid delays or the risk of dismissal.

III.      Court Fees

Another practical consideration in enforcement is the calculation of court fees, as fee disputes can cause delays and additional litigation. For the enforcement of arbitral awards in Türkiye, the plaintiff must pay a certain amount of court fees for the legal action. The calculation method for these fees, whether on a fixed or proportional basis, has been a matter of considerable debate, with significant practical consequences.

Historically, there has been debate over whether court fees for the enforcement of arbitral awards should be calculated on a fixed fee basis or on a proportional basis. The different chambers of the Court of Cassation were previously split on this matter. Certain chambers adopted a proportional fee approach, calculating the fee as a percentage of the award’s monetary value.[2] Others applied a fixed fee approach, treating enforcement as a procedural application rather than a substantive dispute.[3]

However, in 2019, the General Assembly of the Civil Chambers of the Court of Cassation ruled that a fixed fee, rather than proportional fees, should be charged for the enforcement of foreign arbitral awards.[4] Following this decision, the majority of the chambers of the Court of Cassation have adopted the fixed fee approach^[5] endorsed by the General Assembly of the Court of Cassation.^[6]

Nevertheless, in practice, occasional deviations occur where some first instance courts still attempt to apply proportional fees, requiring parties to challenge such determinations on appeal. While the prevailing judicial view supports fixed fees for the enforcement of foreign arbitral awards, the possibility of encountering courts that apply proportional fees remains. Maintaining awareness of the varying practices among first-instance courts in this matter, together with thoroughly prepared submissions in an enforcement lawsuit and the diligent conduct of proceedings before the competent court, can contribute to achieving a favourable outcome in terms of the application of the fixed fee.

IV.     Interim Attachment

In many enforcement scenarios, the creditor’s primary concern is the risk that the debtor may dissipate assets before the enforcement decision becomes final. Turkish law provides a protective measure known as ihtiyati haciz (interim attachment), which allows a creditor to secure the debtor’s assets before or during enforcement proceedings. While this mechanism can be crucial in preserving the award’s practical value, its availability in the context of unfinalised enforcement of foreign arbitral awards remains a contested legal issue.

Interim attachment is regulated by the Turkish Enforcement and Bankruptcy Law (No. 2004) (“EBL”). Article 257/1 of the EBL allows a creditor to request interim attachment for “due and payable receivables”. The procedure can be initiated either before or alongside an enforcement application for a foreign arbitral award.

Pursuant to Article 258/1 of EBL, a request for interim attachment should be reviewed based on concrete reasoning and evidence. While a claim does not need to be proven conclusively, there is a need to prove its plausibility. This means presenting evidence enabling the creditors to demonstrate the prima facie validity of their claim under Turkish Law.

However, there is no unified view among Turkish scholars and the jurisprudence of the courts on whether interim attachments under Article 257/1 of the EBL can be requested for the arbitral awards whose enforcement is not yet finalized, although the most recent jurisprudence is in favor of granting interim attachments in such cases.

One viewpoint holds that a receivable cannot be considered as “due and payable” unless the enforcement is finalized.^[7] Conversely, an opposing viewpoint argues that it would be more equitable to allow for interim attachment under Article 257/1 of EBL before the award’s enforcement is finalized.^[8]

The Court of Cassation lacks a consistent jurisprudence on the issue, with different chambers issuing divergent decisions. For instance, the 15^th Civil Chamber of the Court of Cassation held that since the enforcement of the decision rendered by the foreign court had not been finalised, the receivable could not be considered due and payable.[9] On the contrary, the 6^th Civil Chamber adopted a differing viewpoint in its decision, stating that:[10]

The purpose of the enforcement decision is to procure the execution of the decisions rendered in foreign countries and finalized under their laws. Accordingly, it is not necessary to search for the finalized enforcement decision, to decide on an interim attachment concerning a receivable ascertained by a decision of a foreign court or an arbitral tribunal. This is because the interim attachment only confiscates the assets and rights of the debtor temporarily.

This decision implies that there are no barriers to granting interim attachments for awards where enforcement has not been finalized, as the attachment itself does not execute the award. Additionally, the 11^th and 19^th Civil Chambers have issued decisions that align with this perspective,^[11] and more recent decisions of lower courts also favor granting an interim attachment for an arbitral decision where the enforcement proceedings are not finalized.^[12]

V.      Conclusion

The recognition and enforcement of foreign arbitral awards in Türkiye is governed by a clear and well-structured framework, primarily set out in the New York Convention and the IPPL. Nevertheless, practical experience shows that certain procedural issues may be approached differently by courts at various levels, especially by local or regional courts in different judicial districts.

Despite these variations, the Court of Cassation plays a central role in harmonising divergent lower-court practices. Through its decisions, the Court of Cassation provides guiding principles that help align lower-court practice, resolve conflicting interpretations among its different chambers, and promote legal certainty for both domestic and foreign parties. In conclusion, although occasional procedural differences may arise, Turkish enforcement practice is steadily evolving towards more uniform and predictable outcomes. With experience and well-informed guidance, it is in most cases possible to navigate and overcome the challenges described above.

[1] See Turkish Court of Cassation, 12^th Civil Chamber, Case No. 2014/28848, Decision No. 2015/4079, dated 26.02.2015; Turkish Court of Cassation, 12^th Civil Chamber, Case No. 2012/16820, Decision No. 2012/23886, dated 09.07.2012.

[2] Turkish Court of Cassation, 15^th Civil Chamber, Case No. 2016/935, Decision No. 2016/1312, dated 01.03.2016.

[3] Turkish Court of Cassation, 11^th Civil Chamber, Case No. 2015/2117, Decision No. 2015/8206, dated 12.06.2015.

[4] General Assembly of the Civil Chambers of the Turkish Court of Cassation, Case No. 2017/930, Decision No. 2019/812, dated 27.06.2019.

[5] Turkish Court of Cassation, 11^th Civil Chamber, Case No. 2022/946, Decision No. 2023/4365, dated 11.07.2023; Turkish Court of Cassation, 19^th Civil Chamber, Case No. 2019/2663, Decision No. 2019/5237, dated 20.11.2019.

[6] In Turkish law, decisions issued by a chamber of the Court of Cassation are technically not binding on other chambers of the Court of Cassation or on lower courts, except for the decisions on the unification of conflicting judgments issued by the Grand General Assembly of the Court of Cassation. However, in practice, especially the decisions of the Court of Cassation are considered authoritative and are generally followed by lower courts.

[7] Cemal Şanlı, Emre Esen, İnci Ataman-Figanmeşe, Milletlerarası Özel Hukuk, Vedat Bookstore, 2016, pp. 486-492.

[8] Zeynep Derya Tarman, “Yabancı Mahkeme ve Hakem Kararlarının Türkiye’de Tenfizinde Karşılaşılan Sorunlara İlişkin Bazı Tespitler”, Public and Private International Law Bulletin, 2017, pp. 815-817.

[9] Turkish Court of Cassation, 15^th Civil Chamber, Case No. 2014/7100, Decision No. 2015/365, dated 26.01.2015.

[10] Turkish Court of Cassation, 6^th Civil Chamber, Case No. 2014/3906, Decision No. 2014/4941, dated 14.04.2014.

[11] Turkish Court of Cassation, 19^th Civil Chamber, Case No. 2004/9775, Decision No. 2004/13391, dated 30.12.2004; Turkish Court of Cassation, 19^th Civil Chamber, Case No. 2009/7952, Decision No. 2009/9703, dated 21.10.2009; Turkish Court of Cassation, 11^th Civil Chamber, Case No. 2004/4309, Decision No. 2005/4022, dated 21.04.2005.

[12] See, İstanbul 14^th Regional Court of Justice, Case No. 2019/2410, Decision No. 2020/158, dated 12.02.2020; İstanbul 14^th Regional Court of Justice, Case No. 2023/1005, Decision No. 2023/1015, dated 08.06.2023; İstanbul 12^th Regional Court of Justice, Case No. 2021/1247, Decision No. 2021/1225, dated 01.09.2021; İstanbul 12^th Regional Court of Justice, Case No. 2023/269, Decision No. 2023/252, dated 28.02.2023. See also Cemre Tüysüz, “Tenfiz Edilmemiş Yabancı Hakem Kararları Açısından İlamsız İcra Takiplerine ve İhtiyati Hacze İlişkin Bazı Meseleler”, Public and Private International Law Bulletin, 2021, p. 717.