The New York Convention, which our country later joined by accession, contains two main criteria regarding which decisions are considered foreign arbitral awards. Accordingly, if an arbitral award is rendered in a country other than the one where enforcement is sought, this decision is considered a foreign arbitral award. As seen, it is sufficient and valid for an arbitral award to be considered a foreign arbitral award if it is rendered in a country other than the one where enforcement is sought. Additionally, it is necessary for the arbitral award not to be considered national by the law of the country where recognition and enforcement are sought. It should be noted that an important point in this regard is that the country where the foreign arbitral award is rendered must be one of the parties to the New York Convention. If the country where the foreign arbitral award is rendered is not a party to the said convention, then in this case, the provisions of the Law on International Private Law and Procedure will come into play regarding the recognition and enforcement of the decision.
How to Recognize and Enforce Foreign Court Decisions?
An application for recognition and enforcement of a foreign arbitral award is made by the party seeking recognition and enforcement to the competent court by submitting a petition. As a rule, the competent court is the Civil Court of First Instance, and the jurisdictional court is the court where the decision is enforceable. However, it should be known that since the petition is subject to the lex fori, i.e., the law of the place, regarding procedural law rules in our country, it must contain the minimum requirements for a petition according to the Code of Civil Procedure. For detailed information on this matter and to apply for the recognition and enforcement of foreign arbitral awards, it is recommended to contact Salt & Partners Law Firm lawyers.
What Documents are Required for the Recognition and Enforcement of Foreign Arbitral Decisions?
The documents required for the recognition and enforcement of foreign arbitral awards are determined in accordance with Article 61 of the Law on International Private Law and Procedure (LIP) and Article 4 of the 1958 New York Convention;
The original or properly certified copy of the arbitration agreement or clause,
The original or properly certified copy of the foreign arbitral award that has been legally finalized and enforceable or binding on the parties,
Translations of the above-mentioned documents by a sworn translator and properly certified copies are required.
According to Article 4 of the New York Convention, the following documents must be attached to the petition:
A properly authenticated original of the arbitral award or a copy thereof,
The original of the arbitration agreement upon which the award is based, or a properly authenticated copy thereof,
If the arbitral award or the agreement upon which it is based is not made in an official language of that country, a translation of these documents into the official language of that country made by a sworn translator is required.
Legal Basis for the Recognition and Enforcement of Foreign Arbitral Decisions
There are two different regulations that constitute the legal basis for the recognition and enforcement of foreign arbitral awards in Turkey. One of these regulations is the relevant articles of Law No. 5718 on International Private Law and Procedure, which provide provisions regarding recognition and enforcement. The other is the New York Convention of June 10, 1958, which is an international treaty to which Turkey is also a party.
How Much is the Application Fee for the Recognition and Enforcement of Foreign Arbitral Decisions?
As a general rule, in the application for the enforcement of foreign arbitral awards, the applicant must pay a filing fee and, in cases subject to proportional fees, 1/4 of 68.31% of the proportional decision and judgment fee must be charged, and it is accepted that the fee will be charged in this way in practice.
Can Recognition and Enforcement of a Foreign Court Decision Based on a Commercial Dispute be Requested in the Commercial Court of First Instance?
No regulation has been made regarding this issue in the Turkish Commercial Code (TCC) and the Law on International Private Law and Procedure (LIP). Although it is a controversial issue in legal doctrine, the Court of Cassation accepts that the Commercial Court of First Instance has jurisdiction in the enforcement of a foreign court decision based on a commercial dispute. The competent court for the recognition and enforcement of foreign arbitral awards is the court agreed upon in writing by the parties. If there is no such agreement between the parties, the court of the defendant's domicile in Turkey, if there is no domicile, the court of the defendant's residence, and if there is no residence, then the court of the place where the defendant's assets subject to execution are located. If the defendant does not have any assets subject to execution in Turkey, Turkish courts will be incompetent regarding the recognition and enforcement of foreign arbitral awards.
Competent and Authorized Court for Recognition and Enforcement of Foreign Court Decisions
The competent court for the recognition and enforcement of foreign arbitral awards is the Civil Court of First Instance, as provided by Article 60 of the Law on International Private Law and Procedure. Since the rules concerning jurisdiction are public order rules, they can be invoked at any stage of the proceedings. A case filed in a court lacking jurisdiction is automatically dismissed by the court.
