Recognition and enforcement procedure of foreign arbitral awards is mainly regulated under Act on Private International and Procedural Law (“Act No. 5718”) and Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) which was ratified by Turkey on 02.07.1992 and came into force on 30.09.1992.
Turkey made two reservations permitted under the New York Convention: (i) the reciprocity reservation; and (ii) the commercial nature of disputes.
In line with the first reservation, Turkey will only recognize and enforce arbitral awards that are made in other contracting states of the New York Convention. Secondly, the award must be related to a commercial dispute or must be of a commercial nature to be subjected to the New York Convention.
The New York Convention and the Act No. 5718 do not have significant differences regarding recognition and enforcement in the procedure to be applied.
In case the foreign arbitral award falls within the scope of the New York Convention, Turkish courts shall apply the provisions of the New York Convention with regards to recognition and enforcement.
Recognition and Enforcement Procedure under the New York Convention
In Turkey, an enforcement and recognition application in accordance with the New York Convention shall be made to Turkish courts of first instance.
The following minimum documents shall be submitted to the court when enforcement proceedings are issued:
- The original or notarized copy of the arbitration agreement
- The original or notarized copy of the signed award. If the award is not appealed then written confirmation from the arbitrator/arbitral tribunal that the award is final or that it has not been appealed, if the award is appealed, the finalized version of the arbitration award.
As per the New York Convention, these documents shall be submitted in the official language of the state in which the recognition and enforcement is requested.
The recognition and enforcement proceedings before the Turkish court are purely “procedural”; meaning that the court does not delve into the merits of the award itself.
On the other hand, the recognition and enforcement of a foreign arbitral award may be rejected upon the request of the party against whom the award is invoked, in case it proves the existence of the situations listed below before the Turkish court:
a. The invalidity of the arbitration agreement, or that the parties to the agreement did not possess the capacity to sign the agreement;
b. Lack of notice where the party against whom the award is invoked was not given proper notice regarding the proceedings, including the appointment of the arbitrator, and violations of due process (i.e a party being unable to present its case before the tribunal);
c. The lack of jurisdiction of the tribunal that includes cases where the tribunal deals with a difference not contemplated by, or not falling within, the terms of the submission to arbitration;
d. Irregularities in the composition of the arbitral authority or the arbitral procedure, as it was not made in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place;
e. The award is not yet binding on the parties, as it may have been set aside or suspended.
In case the party against whom the award is invoked does not object to the recognition and enforcement request lodged by the other party or cannot prove the existence of the above situations, the application for the recognition and enforcement shall not be rejected.
As per the New York Convention, recognition and enforcement of the award may also be rejected if the court where recognition and enforcement is sought finds that;
a. The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
b. The recognition or enforcement of the award would be contrary to the public policy of that country.
Last Update: 13 January 2021
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