In principle, a court order rendered in one country has its legal effects and consequences only within the same country. For a foreign court decision to create legal effects and consequences, in Turkey, this decision needs to be legally recognized and/or enforced by Turkish courts. Regulations regarding the recognition and enforcement of foreign court decisions are stipulated between Articles 50 and 59 of the International Private and Civil Procedure Code (“IPCPC”), numbered 5718, which establishes the legal conditions for the recognition and enforcement of foreign court decisions.
IP rights, as a rule, are protected under the laws of the country in which they are protected and are limited to that country; thus, these can be claimed against third parties under these circumstances. For this reason, the recognition and enforcement of foreign court decisions on issues, such as registration, cancellation, invalidity of IP rights, as well as determination and prevention of infringement of IP rights, are not possible. For instance, since a foreign court decision on the cancellation or infringement of a trademark concerns the rights on the trademark registered in that country, the cancellation of a local trademark registration, in France, will not have the same effect of cancellation of the local registration, in Turkey, for the same trademark. Similarly, an act creating trademark infringement, in France, will not also be accepted as an infringing act in terms of the present uses in Turkey. These issues fall exclusively within the exclusive jurisdiction of Turkish courts, and require examination on the merits of the case by Turkish courts.
While “Recognition” can be defined as the fact that foreign court decisions regarding finalized civil cases have the same effect of final judgment and power of evidence in Turkey without changing its content; “Enforcement,” on the other hand, ensures that the foreign court decisions regarding finalized civil cases may be executed in Turkey without changing its content, as if the decision was rendered by the Turkish courts, in addition to having the same effect of a final judgment and power of evidence.
However, foreign court orders for the payment of compensation, if based on a trademark infringement and unfair competition claims, may be subject to enforcement request in terms of the judgment for payment of compensation. Enforcement, at this point, ensures that the compensation awarded by the foreign court against the real persons or legal entities having assets in Turkey will be executed in Turkey, as if it is a final judgment awarded by a Turkish court.
Authorized and Competent Court
It is accepted that all cases concerning IP rights should be filed before specialized IP Courts. In that case, the authorized courts in the enforcement of foreign court decisions regarding IP rights are the IP Courts, in terms of the cases, are filed in Istanbul, Ankara and Izmir but, in other provinces that do not have specialized IP Courts, the civil courts of first instance will deal with such cases acting in their capacities as IP Courts.
The requirements are regulated in Article 54 of the IPCPC where, basically, four conditions must be fulfilled for a foreign court decision to be enforced.
1. There should be reciprocity between Turkey and the country wherein the decision subject to enforcement request has been rendered:
In order for a foreign court decision to be enforced in Turkey, there should be an agreement on reciprocity, or de facto practice regarding reciprocity between Turkey and the country wherein the decision has been rendered, a provision that allows the enforcement of the decision of the Turkish court, or an actual practice in that country to this end.
2. The decision should not fall under the exclusive jurisdiction of Turkish courts:
The subject of the foreign court decision should not fall under the exclusive jurisdiction of Turkish courts. The enforcement and execution of the decisions rendered on subject matters within the exclusive jurisdiction of Turkish courts is not possible. Due to the nature of IP rights, all issues, such as registration, cancellation, invalidity, and cancellation of these rights, are within the exclusive jurisdiction of Turkish courts, and are not capable of enforcement.
In the same direction, the foreign court decisions rendered on the determination and prevention of IP right infringements are not also capable of enforcement in Turkey. In order to accept the infringement of an IP right, such right should be registered in Turkey, and the infringement claims require an examination on the merits of the case by Turkish courts, and fall under the exclusive jurisdiction of Turkish courts.
3. The decision should not be against the public order:
If the foreign court decision creates a clear contradiction with the public order, it is not capable of enforcement in Turkey. The meaning of this regulation is that the enforcement and execution of the foreign court decision in Turkey should not have results that are clearly against the public order.
4. Right of defense should have been given to the defendant:
In principle, the right of defense of the person against whom the enforcement of the decision is requested (defendant) should be provided, while the decision is rendered according to the laws of this country. It does not affect the enforceability of the decision by itself if the defendant has not been duly summoned or represented before that court, or the decision has been rendered in the defendant’s absence, contrary to the laws of the country in which the decision was made. However, if the defendant files an objection before the Turkish court against the request for enforcement based on one of the above-mentioned issues and proves its case, the decision cannot be enforced in Turkey.
The Procedure in Enforcement Cases
According to Article 53 of the IPCPC, the enforcement petition must include i) the original or a copy of the foreign court decision that has been duly approved by the authorities of that country and a certified translation of the decision, and ii) the document certified by the authorities of that country showing that the decision has been finalized, as well as its certified translation. In summary, it should be understood from this provision that the notarized and apostilled versions of the approved foreign court decision and the finalization certificate should be submitted together with their certified translations.
Pursuant to Article 55 of the IPCPC, the request for enforcement is examined and concluded according to the simple judgment procedure. A simple judgment procedure is regulated under Article 316 et al. of the Code of Civil Procedure and, unlike the written judgment procedure, the exchange of petitions stage is completed, together with the submission of the plaint petition and the response petition. The aim here is to conclude the case more quickly and practically because, in these cases, the Turkish court will not make a detailed examination as to the concrete incidents; it will only examine whether the foreign court decision, which is requested to be enforced, is capable of enforcement in terms of procedural requirements.
Prohibition of Revision
In enforcement cases, Turkish courts do not have the authority to examine and evaluate the accuracy of the procedure applied in the foreign court decision, or the material and legal determinations contained in the decision. Turkish courts may only examine whether the foreign court decision meets enforcement requirements in enforcement cases.
For this reason, it is not possible and appropriate for claims regarding the fact that the material event and the legal findings that are the subject of the foreign court decision have been incorrectly evaluated by the foreign court, nor are the demands that they should be re-examined by Turkish court (such as the IP right infringement and unfair competition claims and reduction of the compensation amount requests, etc.) to be accepted in enforcement proceedings.
The Impact of the Enforcement Decision
In presence of the conditions sought by the IPCPC, it is possible to enforce a foreign court decision partially or entirely. If a foreign court decision is enforced, this decision will be treated as if it is a Turkish court decision, and it will have the same consequences as a Turkish court decision. In the case of enforcement of a foreign court decision related to the payment of compensation arisen from IP rights, the decision may be executed in Turkey.