1 Must an award take any particular form?
Article 14(A) of the International Arbitration Law (IAL) provides that an award must include:
• the names, surnames, titles and addresses of the parties, their representatives and lawyers;
• the legal grounds on which the award is based and, if there is a claim for compensa-tion, the amount of compensation;
• the place of arbitration and the date of the award;
• the name, signature and a dissenting opinion, if any, of the arbitral tribunal; and
• a notice informing the parties that an action to set aside the award could be filed.
The above also applies in terms of domestic awards that are regulated under Article 436(1) of the Civil Procedural Law (CPL). Article 436(1) also requires the award to include the rights and obligations attributed to the parties and the costs of arbitration.
Applicable procedural law for recourse against an award (other than applications for setting aside)
Applicable legislation governing recourse against an award
2 Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?
Article 14(B) of the IAL and Article 437 of the CPL regulate the correction, interpreta-tion and clarification of an award.
According to Article 14(B) of the IAL, each party can apply to the arbitral tribunal for correction of the errors of fact or calculation or for interpretation of an award partially or in full, within 30 days of the service of the award (two weeks for domestic arbitration). The tribunal has 30 days to correct or interpret the award as of the date of the request (one month for domestic arbitration). The tribunal can also make the corrections ex officio within 30 days of the date of the award (two weeks for domestic arbitration).
Each party is also entitled to request a supplementary arbitral award for the matters raised during the proceedings but that were not decided within 30 days (one month for domestic arbitration) of the service of the award. The tribunal has 60 days (one month for domestic arbitration) to issue the supplementary arbitral award if it deems the request rightful. For domestic arbitration, the arbitral tribunal can extend this period once, by a month.
There is not any way of revising or retracting the award. The only recourse that the parties can initiate is to file an action to set aside the award.
3 May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?
Appealing an award is not possible under Turkish law as the courts are not allowed to
review the merits of the case; therefore, setting aside an award is the only recourse available
under Turkish law for both international and domestic arbitration (IAL, Article 15(A);
CPL, Article 439(1))
Applicable procedural law for setting aside of arbitral awards
4 Is there a time limit for applying for the setting aside of an arbitral award?
The time limit for instigating a setting-aside action is regulated under Article 15(A)(4) of
the IAL and Article 439(4) of the CPL.
The setting-aside action must be filed within 30 days of the service date (one month for domestic arbitration). If there is an application for correction, interpretation or supplementation of the award, this period starts running from the service of the correction, interpretation or supplementation of the arbitral award.
5 What kind of arbitral decision can be set aside in your jurisdiction? What are the criteria to distinguish between arbitral awards and procedural orders in your jurisdiction? Can courts set aside partial or interim awards?
Regional appellate courts can set aside final and partial awards under Turkish law but
not procedural orders. Although Turkish law does not clearly define arbitral awards and
procedural orders, the main differentiation is that arbitral awards are related to the merits
of the case, whereas procedural orders are not.
6 Which court has jurisdiction over an application for the setting aside of an
arbitral award? Is there a specific court or chamber in place with specific sets
of rules applicable to international arbitral awards?
The court that has the jurisdiction to hear the setting-aside proceeding is the regional appellate court at the respondent’s domicile, habitual residence or place of business (IAL, Article 15(A); CPL, Article 439(1)). If the respondent does not have any of these in Turkey, the Istanbul Regional Appellate Court has jurisdiction (IAL, Article 3).
Although it is highly recommended and proposed by scholars, there is currently no
specific court or chamber in place with specific sets of rules applicable to international arbitral awards.
7 What documentation is required when applying for the setting aside of an
arbitral award?
The IAL does not foresee a specific form of application for the setting aside of an arbitral
award. In contrast, the party applying for domestic arbitration must include the mandatory
elements of a plaint petition as listed in Article 119 of the CPL.
In domestic arbitration, the application must contain, among other things, the subject
matter of the claim, a summary of material facts, legal grounds and prayers for relief. The
courts do not require an original or duly certified copy of the arbitral award. The applicant
must submit copies of the briefs and exhibits with copies for each defendant.
Translation of required documentation
8 If the required documentation is drafted in a language other than the official
language of your jurisdiction, is it necessary to submit a translation with the
application for the setting aside of an arbitral award? If yes, in what form must
the translation be?
A Turkish translation certified by a sworn translator must be submitted (CPL, Article 223).
Turkish courts generally request a full translation.
Other practical requirements
9 What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
According to Article 15(1) of the IAL, setting-aside actions must be heard as a primary
and urgent matter.
The procedure of the setting-aside action is governed by the CPL. The defendant has
two weeks to file its response petition as of the service of the plaint petition. It is possible
to request an extension for two weeks. A Turkish translation of the documents must be
submitted.
Whether the application fee is fixed or proportionate varies depending on the court;
however, most courts apply a fixed application fee.
Form of the setting-aside proceedings
10 What are the different steps of the proceedings?
Setting-aside actions are subject to the simplified procedure, meaning that each party will
submit one brief, plaint petition and defence petition (CPL, Article 316(1)(f)); however, the parties can make further submissions.
Although the courts prefer holding a hearing, it has the discretion not to do so.
11 May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction? Do setting-aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting-aside proceedings, what are the different steps of the proceedings, and what are the criteria to be met?
It is not possible to successfully complete the recognition or enforcement proceedings
when there is a pending setting-aside action. In other words, setting-aside actions have
suspensive effect. Only if one of the following three conditions is met can a recognition,
enforcement or execution proceeding be successful (International Private and Procedural
Law (IPPL), Article 62; IAL, Article 15(A)); otherwise, it would be rejected:
• the setting-aside proceeding is rejected, and the decision has been finalised;
• the setting-aside proceeding is not filed within the time limit; or
• the parties waived their right to file setting-aside proceedings (waiver is only possible
if both parties are not residents in Turkey).
For domestic arbitration, setting-aside proceedings do not have suspensive effect; however,
the respondent can request a stay of execution in return for security that would suffice to
cover the amount of the receivable in the award (CPL, Article 439(4)).
Article 439 of CPL does not specify the competent court to render a stay of execution
decision. Although some are of the view that the regional appellate courts must have
jurisdiction over an application to stay the execution of an award, most scholars opine that
the enforcement courts are competent, in accordance with Article 36 of the Execution
and Bankruptcy Law (EBL).
12 What are the grounds on which an arbitral award may be set aside?
The grounds for setting aside arbitral awards of domestic and international arbitration
are identical as both are adopted from the UNCITRAL Model Law on International
Commercial Arbitration (CPL, Article 439; IAL, Article 15).
Accordingly, the parties can assert that:
• a party to the arbitration agreement did not have the capacity to agree on arbitration,
or the arbitration agreement is invalid;
• the composition of the arbitral tribunal was not in compliance with the parties’ agreement
or with the IAL;
• the final award was not rendered within the required period;
• the arbitrator or the arbitral tribunal unlawfully decided their competence or
incompetence;
• the arbitrator or the arbitral tribunal decided beyond the scope of the arbitration
agreement or did not decide on the entire claim or decided beyond their competence;
• the arbitral proceedings were not in compliance with the parties’ agreements, or with
the IAL if there is no agreement, and the non-compliance affected the substance of
the award; and
• the parties were not treated equally.
The court can examine ex officio whether the dispute subject to the arbitration is arbitrable
and whether the award violates public policy.
13 When assessing the grounds for setting aside, may the judge conduct a full
review and reconsider factual or legal findings from the arbitral tribunal in
the award? Is the judge bound by the tribunal’s findings? If not, what degree of
deference will the judge give to the tribunal’s findings?
The courts can only examine setting-aside applications based on limited grounds, such as
the violation of public policy and other grounds specified in Article 15 of the IAL.
14 Is it possible for an applicant in setting-aside proceedings to be considered
to have waived its right to invoke a particular ground for setting aside? Under
what conditions?
The parties can waive the right to file setting-aside proceedings in full or in part or to
invoke particular grounds for setting aside. The waiver must be explicit and made by a
party whose domicile or usual place of residence is outside Turkey. The waiver does not
have to be in the arbitration agreement; it can be made later (IAL, Article 15(A)).
Decision on the setting-aside application
15 What is the effect of the decision on the setting-aside application in your
jurisdiction? What challenges or appeals are available?
The regional appellate court’s decision on the setting-aside application can be appealed
before the Court of Cassation within two weeks of the service of the reasoned decision
(IAL, Article 15(A); CPL, Article 439).
Effects of decisions rendered in other jurisdictions
16 Will courts take into consideration decisions rendered in relation to the same
arbitral award in other jurisdictions or give effect to them?
The courts will consider the court decisions of other jurisdictions before rendering a
recognition or enforcement decision. For example, if the award has been set aside by the
competent court of the country in which it was made, the enforcement or recognition
request in Turkey must be rejected (IPPL, Article 62(1)(h)).
Applicable procedural law for recognition and enforcement of arbitral awards
Applicable legislation for recognition and enforcement
17 What is the applicable procedural law for recognition and enforcement of
an arbitral award in your jurisdiction? Is your jurisdiction party to treaties
facilitating recognition and enforcement of arbitral awards?
While domestic arbitral awards are directly enforceable under the CPL, arbitral awards
within the scope of the IAL (where the seat is in Turkey and the matter has a foreign
element) are enforced by obtaining a certificate of enforceability from the competent civil
court of first instance. The certificate must be obtained on finalisation of the decision
rejecting the setting aside of the award; if there is no application to set aside the award,
on expiry of the time limit to file the application; or if the parties have waived the right to
file setting-aside proceedings.
Foreign arbitral awards (i.e., those rendered in a seat outside Turkey) must be
recognised and enforced to have legal effect. Recognition and enforcement of foreign
arbitral awards are primarily governed by the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Where the
Convention is silent or not applicable, the IPPL, which contains rules that are similar to
those in the Convention, applies.
Turkey is a party to the New York Convention, the European Convention on
International Commercial Arbitration and the 1965 Convention on the Settlement of
Investment Disputes between States and Nationals of Other States.
18 Is the state a party to the 1958 New York Convention? If yes, what is the date
of entry into force of the Convention? Was there any reservation made under
Article I(3) of the Convention?
Turkey is a party to the 1958 New York Convention, which entered into force
on 25 September 1992. Turkey has made both reciprocity and commercial
relationship reservations.
19 Is there a time limit for applying for the recognition and enforcement of an
arbitral award?
The IPPL, the IAL or other relevant laws do not contain any specific time limit for
applying for the recognition and enforcement of an arbitral award. However, there is a
general time limit of 10 years for enforcement of judgments under the EBL; therefore, it
is advisable to initiate the proceedings for the recognition and enforcement of a foreign
arbitral award within 10 years of the finalisation of the arbitral award.
20 Which court has jurisdiction over an application for recognition and
enforcement of an arbitral award? Is there a specific court or chamber in
place with specific sets of rules applicable to international arbitral awards?
The civil or commercial court of first instance located where the parties agreed or, in the
absence of an agreement, where the defendant permanently or temporarily resides has
jurisdiction over an application for recognition and enforcement of an arbitral award. If
the defendant does not reside in Turkey, the competent court is where the defendant’s
assets that could be the subject of attachment are located (IPPL, Article 60). There is no
specific court or chamber with specific sets of rules applicable to foreign arbitral awards.
Whether to file the action to the competent civil or commercial court must be decided
based on the subject matter of the underlying dispute.
21 What are the requirements for the court to have jurisdiction over an
application for recognition and enforcement and for the application to
be admissible? Must the applicant identify assets within the jurisdiction
of the court that will be the subject of enforcement for the purpose of
recognition proceedings?
The civil or commercial court of first instance located where the parties agreed or, in the
absence of an agreement, where the defendant permanently or temporarily resides has
jurisdiction over an application for recognition and enforcement of an arbitral award. If
the defendant does not reside in Turkey, the competent court is where the defendant’s
assets that could be the subject of attachment are located (IPPL, Article 60).
In terms of the admissibility of the application, the arbitral award must be final,
enforceable and binding. The general procedural rules under the CPL must also be
followed when filing the action for recognition and enforcement of an arbitral award.
Whether to file the action to the competent civil or commercial court must be decided
based on the subject matter of the underlying dispute.
If the jurisdiction of the court is established over the assets, the applicant must prove
that the assets are located in the jurisdiction of the court.
Form of the recognition proceedings
22 Are the recognition proceedings in your jurisdiction adversarial or ex parte?
What are the different steps of the proceedings?
The proceedings for recognition and enforcement of arbitral awards are adversarial. As
the proceedings are subject to a simplified procedure, the written phase is completed by
exchanging plaint and response petitions; however, in practice, the parties could make
further submissions. The court then sets the hearing date, and the oral phase will start.
Form of application and required documentation
23 What documentation is required to obtain recognition?
Along with the application for recognition and enforcement of an arbitral award, the
applicant must submit:
1 the original or a duly certified copy of the arbitration agreement;
2 the original or a duly certified copy of the arbitral award; and
3 the certified translations of the documents in points (1) and (2).
The applicant must prepare a copy for the court and a copy for each defendant (IPPL,
Article 61).
24 If the required documentation is drafted in a language other than the official
language of your jurisdiction, is it necessary to submit a translation with an
application to obtain recognition? If yes, in what form must the translation be?
Article 61 of the IPPL requires the submission of certified translations of the arbitration
agreement and the arbitral award. The translations should be certified by a sworn translator.
Turkish courts generally request full translations.
25 What are the other practical requirements relating to recognition and
enforcement? Are there any limitations on the language and length of the
submissions and of the documentation filed by the parties?
As the CPL governs the procedure of the proceedings, on service of the plaint petition,
the defendant has two weeks to file its responses, with an opportunity to request a twoweek
extension (CPL, Article 317). Whether the application fee is fixed or proportionate
varies depending on the court; however, most courts apply a fixed application fee.
26 Do courts recognise and enforce partial or interim awards?
Although partial awards can be recognised by Turkish courts, this does not apply to
interim awards in most cases as they are not deemed final and binding.
27 What are the grounds on which an arbitral award may be refused recognition?
Are the grounds applied by the courts different from the ones provided under
Article V of the New York Convention?
Article V of the New York Convention is directly applicable to the recognition and enforcement
of foreign arbitral awards. Regarding cases where the IPPL applies, the grounds for
refusal listed under Article 62 of the IPPL are very similar to those in Article V of the
New York Convention.
Among the grounds for refusal, Turkish courts give particular importance to public
policy, the standards and scope of which are set by court precedents. The concept of
public policy has changed over time, embracing a trend towards an enforcementfriendly
approach.
28 When assessing the grounds for refusing recognition, may the recognition
judge conduct a full review and reconsider factual or legal findings from the
arbitral tribunal in the award? Is the judge bound by the tribunal’s findings? If
not, what degree of deference will the judge give to the tribunal’s findings?
The courts do not have the power to conduct a full review. They may only review a case
based on limited grounds, such as violating public policy and other grounds specified in Article 62 of the IPPL and Article V of the New York Convention.
Waiver of grounds for refusing recognition
29 Is it possible for a party to be considered to have waived its right to invoke a
particular ground for refusing recognition of an arbitral award?
The parties or courts have no discretion in limiting, extending or varying the grounds for
recognising and enforcing arbitral awards; however, although there is no provision, it is
accepted that the parties can waive their rights to
Effect of a decision recognising an arbitral award
30 What is the effect of a decision recognising an arbitral award in
your jurisdiction?
Recognition and enforcement are separate mechanisms under Turkish law. Although
the scope of enforcement covers recognition, recognition of an award can also be
sought separately.
While recognition would give the award the effect of res judicata or final evidence,
enforcement would enable the execution of the award.
Decisions refusing to recognise an arbitral award
31 What challenges are available against a decision refusing recognition in
your jurisdiction?
The first instance court’s decision on the recognition and enforcement of an arbitral award
is subject to appeal before the competent regional appellate court, and the regional appellate
court’s decision can be appealed before the Court of Cassation. These appeals have a
suspensive effect. There are no remedies available to third parties.
Recognition or enforcement proceedings pending annulment proceedings
32 What are the effects of annulment proceedings at the seat of the arbitration
on recognition or enforcement proceedings in your jurisdiction?
As provided under Article VI of the New York Convention, the court can adjourn the
recognition and enforcement proceedings pending the outcome of annulment proceedings
at the seat of the arbitration. The party seeking adjournment of the proceedings must
establish on a prima facie basis that the award is likely to be annulled, and its adjournment request is not merely to delay the recognition and enforcement of the award. As cases
requiring the application of Article VI of the New York Convention are not common in
practice, there is no published case law specific to this matter.
33 If the courts adjourn the recognition or enforcement proceedings pending
annulment proceedings, will the defendant to the recognition or enforcement
proceedings be ordered to post security?
Under Article VI of the New York Convention, Turkish courts have the discretion to
order security on the applicant’s request to preserve its chances for the successful execution
of an award; however, there is no published case law specific to this matter.
Based on the general practice of Turkish courts, the court can grant provisional
attachment to secure the successful enforcement of the award; therefore, the party
seeking enforcement may (separately or from the court hearing the enforcement action)
ask for an interim attachment if the court adjourns the enforcement action pending
annulment proceedings.
Recognition or enforcement of an award set aside at the seat
34 Is it possible to obtain the recognition and enforcement of an award that has
been fully or partly set aside at the seat of the arbitration? If an arbitral award
is set aside after the decision recognising the award has been issued, what
challenges are available?
Within the context of the New York Convention, recognition and enforcement of an
award that has been fully or partly set aside are at the court’s discretion; however, Turkish
courts would generally refuse to recognise or enforce an arbitral award that has been fully
set aside at the seat, especially where the award is annulled based on grounds other than
public policy or arbitrability.
On the other hand, according to the IPPL, the court should refuse the recognition
and enforcement of an award that has been fully or partly set aside at the seat of arbitration
(IPPL, Article 62(1)).
If the arbitral award is set aside at the seat of the arbitration after a Turkish court’s
decision recognising or enforcing the award, an annulment action could be filed in accordance
with Article V(1)(e) of the New York Convention.
Service
Service in your jurisdiction
35 What is the procedure for service of extrajudicial and judicial documents to a
defendant in your jurisdiction? If the extrajudicial and judicial documents are
drafted in a language other than the official language of your jurisdiction, is
it necessary to serve these documents together with a translation? When is a
document considered to be served to the opposite party?
If the defendant and court are domiciled in Turkey, service must be made to the last
known residence address of the defendant by post (Notification Law, Article 10). The service date is the date of delivery. If the addressee has a registered email address, the court
may serve the documents electronically. In this case, the deemed service date is the end of
the fifth day following the delivery date (Notification Law, Article 7/a).
The applicable rules differ if the court requesting the service is located in a different
country. Turkey is a party to the 1965 Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service
Convention) and the 1954 Convention on Civil Procedure, although the application of
the latter is rare owing to the specific nature of the Hague Service Convention. If the
court is located in a country that is a party to these conventions and no bilateral treaty
exists, the Turkish authorities will apply the Hague Service Convention.
If the official language of the documents is not Turkish, the documents must be
served with a Turkish translation.
Service out of your jurisdiction
36 What is the procedure for service of extrajudicial and judicial documents
to a defendant outside your jurisdiction? Is it necessary to serve these
documents together with a translation in the language of this jurisdiction?
Is your jurisdiction a party to the 1965 Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters (the
Hague Service Convention)? Is your jurisdiction a party to other treaties on
the same subject matter? When is a document considered to be served to the
opposite party?
Turkey is a party to the Hague Service Convention. Accordingly, if the defendant is
located in a country that is a party to the Convention and there is no bilateral treaty
between Turkey and the relevant country, service should be made according to the provisions
of the Convention. If the Hague Service Convention does not apply and there is no
bilateral treaty, then Article 25 of the Notification Act applies.
The documents must be served with a translation into the language of the jurisdiction.
The service date is when the documents are delivered to the opposite party.
Turkey is also a party to the 1954 Convention on Civil Procedure, which includes
provisions on the service of extrajudicial and judicial documents abroad; however, as most
of the contracting states of the 1954 Convention are also a party to the Hague Service
Convention, the application of the Hague Service Convention prevails for the service of
extrajudicial and judicial documents to a defendant outside the jurisdiction.
37 Are there any databases or publicly available registers allowing the
identification of an award debtor’s assets within your jurisdiction? Are there
any databases or publicly available registers providing information on award
debtors’ interests in other companies?
The award creditor can use public databases to identify the award debtor’s assets.
For example:
• general information about companies can be found in the public trade registry records;
• ownership details for identified land and real estate can be accessed in the Turkish
land registry, provided that the applicant can show a legitimate interest to see the
details of those records; and
• trademark and patent ownerships can be accessed in the public records of the Turkish Patent and Trademark Office.
A limited number of trade registries provide a publicly available database enabling access
to information regarding a person’s shareholding, board membership or directorship
in companies. There is no publicly available database providing information on award
debtors’ interests in other companies.
In addition, before initiating the attachment proceedings through an enforcement file,
the award creditor can conduct an asset search through the National Judiciary Informatics
System (UYAP), which produces information on the debtor’s assets, rights and receivables
(EBL, Article 78).
Information available through judicial proceedings
38 Are there any proceedings allowing for the disclosure of information about an
award debtor within your jurisdiction?
The award creditor can apply to the bailiff ’s office to send a payment order with the judgment
to the award debtor. The bailiff ’s office will send a payment order to the debtor and
request the payment of the debt and disclosure of assets (by indicating their value) within
seven days of the service date; however, since the bailiff ’s offices can search the debtor’s
assets using their systems, the disclosure of assets is not commonly used to identify assets.
Nevertheless, the award debtor’s failure to disclose its assets might result in 10 days’
imprisonment (EBL, Article 337); however, imprisonment is rarely imposed, and even if
it is, the debtor will be released from imprisonment once the assets are disclosed.
Enforcement proceedings
Attachable property
39 What kinds of assets can be attached within your jurisdiction?
Any of a debtor’s movable and immovable assets, rights and receivables with economic
value can be attached, although there are exceptions. There are safeguards to ensure
that the debtors have sufficient means to survive and continue their economic existence.
Accordingly, goods required for the debtor to continue its business and a certain
percentage of the debtor’s salary cannot be attached.
In January 2022, an amendment was made to the Law on the Central Bank of the
Republic of Turkey (CBRT) granting immunity against any attachment, interim injunction
or provisional attachment to the assets of a foreign central bank held by the Turkish
Central Bank (CBRT, Article 40).
Availability of interim measures
40 Are interim measures against assets available in your jurisdiction? Is it
possible to apply for interim measures under an arbitral award before
requesting recognition? Under what conditions?
Yes, it is possible to obtain a provisional attachment order or a preliminary injunction
decision before or during the arbitration proceedings where the seat is in Turkey (IAL,
Article 6). The requirements to obtain a provisional attachment order are specified in
Article 257 of the EBL, whereas the requirements for obtaining a preliminary injunction
decision are stated in Article 389 of the CPL.
Although applying for interim measures under a foreign arbitral award before
requesting recognition is controversial, and there are conflicting precedents, the recent
precedents favour those applications. Further, most scholars acknowledge that interim
measures can be applied before or during enforcement proceedings.
Procedure for interim measures
41 What is the procedure to apply interim measures against assets in
your jurisdiction?
A party seeking enforcement may obtain a provisional attachment order pursuant to
Article 257 et seq. of the EBL. The provisional attachment proceedings must be conducted
before the competent court at the award debtor’s residence in Turkey.
To obtain a provisional attachment order, the creditor must establish prima facie that
the receivables are matured and unsecured; however, it is also possible to obtain a provisional
attachment for unmatured receivables in some circumstances. The creditor must
show a clear and present danger that the debtor will lack sufficient assets. In this regard,
the applicant is expected to show that:
• the debtor has no domicile in Turkey; and
• the counterparty is preparing or engaging in bad faith manoeuvres intending to frustrate
enforcement of the arbitral award.
The court has the discretion to grant a provisional attachment subject to a deposit. Although
the courts have wide discretion in determining the amount, usually 15 to 20 per cent of
the awarded compensation is required as a deposit. To protect the interests of the award
creditor, Turkish courts regularly grant provisional attachment applications that are filed
after an award is rendered but when setting-aside or enforcement proceedings are pending.
For the enforcement of the provisional attachment, the applicant must apply to the
competent execution office within 10 days of the decision date; otherwise, the provisional
attachment decision is void.
According to Article 389 et seq. of the CPL, the creditor may apply for a preliminary
injunction decision from the competent court located at the award debtor’s residence
in Turkey.
The award creditor must show prima facie that it would be difficult or impossible
to satisfy the right owing to the change that may occur in the current situation in the
matter of dispute or that a disadvantage or serious damage will arise in the absence of
the decision.
If the court grants the preliminary injunction decision, the applicant must deposit the
amount determined by the court and request from the bailiff ’s office the execution of the
decision within one week of the date of the decision.
The provisional attachment order and the preliminary injunction decision will be
valid until the final award is enforceable or the tribunal rejects the claim (IAL, Article 6).
Interim measures against immovable property
42 What is the procedure for interim measures against immovable property
within your jurisdiction?
There are no specific provisions for interim measures against immovable property; therefore,
the provisions of the EBL for obtaining a provisional attachment order and the
provisions of the CPL for obtaining a preliminary injunction decision apply.
Interim measures against movable property
43 What is the procedure for interim measures against movable property within
your jurisdiction?
There are no specific provisions for interim measures against movable property; therefore,
the provisions of the EBL for obtaining a provisional attachment order and the provisions
of the CPL for obtaining a preliminary injunction decision apply.
Interim measures against intangible property
44 What is the procedure for interim measures against intangible property within
your jurisdiction?
There are no specific provisions for interim measures against intangible property; therefore,
the provisions of the EBL for obtaining a provisional attachment order and the
provisions of the CPL for obtaining a preliminary injunction decision apply.
Attachment proceedings
45 What is the procedure to attach assets in your jurisdiction? Who are the
stakeholders in the process?
The arbitral award must be enforceable to start the attachment proceedings. For instance,
for foreign arbitral awards, the enforcement proceedings must be completed, and for the
arbitrations seated in Turkey with a foreign element, the enforceability certificate must
be obtained. Since domestic arbitral awards are directly enforceable, no further action
is required.
Initially, the award creditor must apply to the bailiff ’s office requesting it to issue the
payment order and notify it of the judgment to the award debtor. The award debtor has
seven days to pay, starting from the service date.
The award creditor can start the attachment proceedings if no payment is made
within seven days. In any case, the creditor can initiate the attachment proceedings within
one year, starting from the service date of the payment order (EBL, Article 78).
The bailiff ’s office can attach the immovables, movables (subject to the compulsory
registry) and bank accounts electronically if the relevant systems are compatible with the
bailiff ’s office system.
Attachment proceedings differ depending on the nature of the assets and may be
conducted ex parte.
The main stakeholders are the bailiffs’ offices and the enforcement courts.
Attachment against immovable property
46 What is the procedure for enforcement measures against immovable property
within your jurisdiction?
The award creditor can request the attachment of the immovable property after seven days
have passed and, in any case, within one year, starting from the service date of the payment
order. On the determination of the immovable property through the asset search, the
award creditor can also request the attachment of the property through UYAP. Since the
bailiff ’s office and the land registry systems are compatible, the attachment is registered
to the records instantly. This registration restricts the award debtor’s disposal right on the
immovables.
The award creditor must request the compulsory sale of the immovable property
within one year of the attachment date; otherwise, the attachment will be removed (EBL,
Article 106).
Attachment against movable property
47 What is the procedure for enforcement measures against movable property
within your jurisdiction?
Movable property can be attached through seizure (EBL, Article 102). The applicant
requests the bailiff ’s office to attach specific objects covering the amount of the receivable;
however, specific movables listed in Article 82 of EBL (i.e., movables necessary for family
members) are not subject to attachment.
The bailiff ’s office can attach the movables required to be registered (i.e., motor
vehicles). Since the bailiff ’s office and the motor vehicle registry systems are compatible,
the attachment is instantly recorded.
It is possible to bring claims against third parties. Accordingly, an award creditor can
compile a list of natural or legal persons whom the award creditor believes are third parties
with debt against the award debtor. The bailiff ’s office will send a notice of attachment to
all those on the list, asking them to pay their debts to the bailiff ’s office to be sent to theaward creditor.
The bailiff ’s office will inform the third-party debtors that if they do not
pay their debts to the award creditor and instead pay the award debtor, they will be liable
to make the same payments to the bailiff ’s office (EBL, Article 89).
If the award debtor is a party to other court or enforcement proceedings as a creditor,
these cases can also be detected through the asset search, and the award debtor’s receivables
arising from these case files can be attached.
The award creditor can request the compulsory sale of the movable within one year
of the attachment date; otherwise, the attachment will be removed automatically (EBL,
Article 106).
Attachment against intangible property
48 What is the procedure for enforcement measures against intangible property
within your jurisdiction?
Pursuant to Article 148 of the Industrial Property Code No. 6769 (the IP Code), IP
rights can be attached. Neither the EBL nor the IP Code set specific procedures for the
attachment of IP rights, and since they are not classed as movables or immovables, there
are different views on which procedure should be applied.
Nevertheless, the attachment would be effected by sending an electronic writ to the
records of the Turkish Patent and Trademark Office, and the sale of the IP rights must be
requested within one year. The attachment registered on the registry records restricts the
award debtor’s disposal right on the IP rights.
Attachments against sums deposited in bank accounts or other assets held
by banks
49 Are there specific rules applicable to the attachment of assets held by banks?
Is it possible to attach in your jurisdiction sums deposited in bank accounts
opened in a branch or subsidiary of a foreign bank located in your jurisdiction
or abroad? Is it possible to attach in your jurisdiction the bank accounts
opened in a branch or subsidiary of a domestic bank located abroad?
The principle is to count assets held by banks as movable property, and general rules about
the attachment of movables apply to those assets in general; however, currencies, bonds
and other commercial papers obtained by way of seizure will be attached directly by the
officers and will not be left to the debtor or a third party in any circumstance.
Provided that all the banks operating in Turkey, whether as branches or subsidiaries,
must establish a Turkish legal entity, the creditors’ accounts in those banks could be subject
to attachment, irrespective of the bank’s origin. It is not possible to attach bank accounts
located outside Turkey’s jurisdiction.
The attachment of bank accounts is carried out by sending a writ electronically to the
relevant banks since their systems are compatible with the bailiff ’s office system (EBL,
Article 89).
Piercing the corporate veil and alter ego
50 May a creditor of an award rendered against a private debtor attach assets
held by another person on the grounds of piercing the corporate veil or
alter ego? What are the criteria, and how may a party demonstrate that they
are met?
Piercing the corporate veil is an exceptional measure under Turkish law. The corporate
veil will be pierced only if the corporate structure has been used to evade mandatory
legal obligations or the enforcement of existing and legitimate third-party rights. This
standard generally relates to fraud or other misconduct calculated to avoid or conceal
liability through the use of a company structure.
Recognition and enforcement against foreign states
Applicable law
51 Are there any rules in your jurisdiction that specifically govern recognition and
enforcement of arbitral awards against foreign states?
There are no specific rules that govern the recognition and enforcement of arbitral awards
against foreign states; therefore, Turkish courts apply the general rules on recognition and
enforcement by taking into account the general sovereign immunity principles.
Service of documents to a foreign state
52 What is the procedure for service of extrajudicial and judicial documents
to a foreign state? Should they be served through diplomatic channels? Is
it necessary to serve extrajudicial and judicial documents together with
a translation in the language of the foreign state? When is a document
considered to be served to a foreign state?
Service related to acta jure gestionis can be made to diplomatic representatives of the
foreign state through diplomatic channels (IPPL, Article 49/2); however, if a specific
multilateral or bilateral treaty exists between states, this method must be used instead of
the general rule.
Immunity from jurisdiction
53 May a foreign state invoke sovereign immunity (immunity from jurisdiction) to
object to the recognition or enforcement of arbitral awards?
Foreign states cannot invoke sovereign immunity in disputes arising from private law
relations (IPPL, Article 49(1)).
Availability of interim measures
54 May award creditors apply interim measures against assets owned by a
sovereign state?
The availability of interim measures against foreign states depends on whether the states
acted with acta jure imperii or acta jure gestionis in the underlying dispute. Foreign states
cannot claim immunity from jurisdiction in legal disputes arising from private law relations
(IPPL, Article 49(1)). General rules regarding interim measures apply.
Immunity from enforcement
55 Are assets belonging to a foreign state immune from enforcement in your
jurisdiction? Which classes of assets belonging to states are immune from
enforcement as a matter of principle? Are there exceptions to immunity? How
can it be proven whether an asset is immune from enforcement? Provide
practical examples of assets belonging to states that were successfully
attached in your jurisdiction.
Courts must distinguish between assets used for commercial and sovereign purposes.
All assets may be subject to attachment except those used for sovereign purposes. For
example, assets used for diplomatic and military purposes are protected by state immunity.
Without prejudice to international treaties, in the execution proceeding of a judgment
initiated against a foreign state, forced execution may be carried out on the assets
belonging to the debtor state (EBL, Article 32(2)). It is not possible to initiate an execution
proceeding without a judgment against a foreign state (EBL, Article 42(2)); therefore,
assets belonging to a foreign state and used for commercial purposes are not immune
from enforcement if an execution proceeding with a judgment is initiated.
All assets belonging to Turkey are immune from attachment as a matter of principle
(EBL, Article 82). All kinds of property directly assigned to public services and used for
financial benefit can be considered state property, except those disposed of in accordance
with private law provisions.
Waiver of immunity from enforcement
56 Is it possible for a foreign state to waive immunity from enforcement in your
jurisdiction? What are the requirements of waiver?
A foreign state can waive immunity from enforcement in Turkey, but there should be an
agreement between the parties to waive immunity. Under Turkish law, the agreement to
arbitrate is generally understood as a waiver of immunity for the purposes of the arbitration
proceedings. A waiver of immunity resulting from an arbitration agreement will not extend
to the execution proceedings; a separate waiver is required for execution proceedings.
Piercing the corporate veil and alter ego
57 Is it possible for a creditor of an award rendered against a foreign state
to attach the assets held by an alter ego of the foreign state within your
jurisdiction? What are the criteria, and how may a party demonstrate that they
are met? Provide practical examples of assets held by alter egos that were
successfully attached by a state’s creditor in your jurisdictions.
Piercing the corporate veil is an exceptional measure under Turkish law. The corporate
veil will be pierced only if the corporate structure has been used to evade mandatory
legal obligations or the enforcement of existing and legitimate third-party rights. This
standard generally relates to fraud or other misconduct calculated to avoid or conceal
liability through the use of a company structure.
In principle, it is not possible to attach the assets held by an alter ego of a foreign
state unless the above criteria are sustained; however, in recent years, there has been a case
in which the assets of an alter ego of a foreign state were attached by the award creditor
through the bailiff ’s office. This practice of the bailiff ’s office is atypical and does not
reflect the general approach to this controversial matter. The outcome of this case pending
before the regional appellate court is important in assessing the Turkish approach.
Sanctions
58 May property belonging to persons subject to national or international
sanctions be attached? Under what conditions? Is there a specific procedure?
Turkish law does not have a clear rule preventing the attachment of property belonging
to persons subject to national or international sanctions. The EBL lists the properties that
cannot be attached (EBL, Articles 82, 83, 83(b) and 83(c)), and properties of sanctioned
persons are not listed therein; however, the scope and details of the sanction decision are
important, especially when the assets are being liquidated, as the applicable procedures
may differ.
First published by Global Arbitration Review in Jun 08, 2023.