International law is an important tool for resolving conflicts of interest and disputes between states. For this reason, there are some international transactions in the field of private law. Recognition and enforcement are important concepts that determine how foreign court decisions will be accepted within the national legal system. In this article, functioning and interrelationship of the concepts of recognition and enforcement under Turkish law will be examined below.

1. Concepts of Recognition and Enforcement

a. What is Recognition?

Recognition is the acceptance of a judgment rendered by a court of a foreign country as valid in the legal order of another country. Recognition does not touch the merits of the decision and merely means accepting the validity of the decision (judgment). In other words, recognition allows a foreign court judgment, for example in matters such as divorce or custody, to have a legal effect in the Turkish legal system, but it cannot enforce the execution of the judgment.

For example, if a Turkish citizen obtains a judgment abroad, the consequences of that judgment will be valid if it is recognized in Turkey. However, this recognition does not mean that the judgment will be executed on its own.

b. What is Enforcement?

Enforcement means that a foreign court judgment can be enforced by local courts. Enforcement does not include a review of the content of the judgment, it only checks whether the foreign court’s judgment is in compliance with the Turkish legal order. The court in charge of enforcement is the civil court. The competent court is the court of the person’s place of residence in Turkey. (Art.51 of the international private law and procedural law) anyone who has a legal interest in requesting enforcement can make a request. (Art.52/1 of the international private law and procedural law) Since the wording of the law says “anyone who has a legal interest”, a person who is not a party to the judgment rendered in a foreign court but has a legal interest in the recognition of the judgment may also request recognition and enforcement. Recognition and enforcement requests are decided according to the written (fast) procedure. The simple procedure is a fast-track procedure applied for cases and matters that need to be concluded quickly, require a shorter examination and can be concluded with an easier examination. From this, we can infer that the aim is to conclude the proceedings in recognition and enforcement cases as soon as possible.

 As an example of enforcement is the requirement of enforcement in Turkey for the enforcement of a foreign court’s payment order against a creditor. The judgment rendered by the foreign court can be enforced by the Turkish courts, enabling the creditor to obtain his/her rights within the borders of Turkey.  

In case the enforcement request is withdrawn, legal action can be taken for this. However, according to the statement in Article 362 (ç) of the Civil Procedure code that non-contentious court decisions cannot be appealed, we can conclude that the appeal path for recognition and enforcement requests is closed.    

The documents that must be included in the petition for enforcement are the original or certified copy of the judgment of the foreign court, a document showing that the judgment has become final, and the translation of the document.

The law stipulates prerequisites and substantive conditions for enforcement.

Prerequisites:

1. There must be a judgment rendered by a foreign court.

2. The judgment must be related to civil cases and the judgment must be finalized according to the laws of that country.

Substantive conditions; (Article 54 of the Law on international private law and procedural law)

1. There is an agreement based on reciprocity between the Republic of Turkey and the country where the judgment was rendered, or there is a provision of law or practice of law in that state enabling the enforcement of judgments rendered by Turkish courts.

2. The judgment must be given on a matter that is not within the exclusive jurisdiction of Turkish courts, or, provided that the defendant objects, the judgment must not have been given by a state court that has jurisdiction over the subject matter of the case or the parties, even though it has no real relationship with them.

3. The provision must not be clearly contrary to public order.

4. The person against whom enforcement is sought has not been duly summoned to the court that rendered the judgment or has not been represented in that court, or the judgment has been rendered in his/her absence or in the absence of the person against whom enforcement is sought, in accordance with the laws of that place, and such person has not objected to the Turkish court against the request for enforcement based on one of the above-mentioned issues.

2. What is the relationship between recognition and enforcement?

Although recognition and enforcement may seem to be synonymous concepts, they actually refer to two different legal transactions. Recognition refers to the mere acceptance and recognition of a foreign court decision, while enforcement refers to the process of making the decision enforceable. The relationship between recognition and enforcement can be summarized as follows:

1. Recognition requires fewer conditions than enforcement and the recognition of foreign court judgments has been made easier.

2. Recognition is a requirement for enforcement.

3. In recognition, the effect of the final judgment in recognition occurs at the moment the judgment becomes final in the country where it was rendered. However, enforcement produces its results when the enforcement decision becomes final.

4. Recognition does not require any enforcement action to be taken.

3. What are the Other Grounds That Prevents Recognition and Enforcement?

The fact that the subject matter of the foreign court judgment has been partially or completely fulfilled is an obstacle to the recognition and enforcement of this foreign judgment.  In addition, legal reasons that prevent the execution of this decision may prevent recognition and enforcement.

Recognition and enforcement proceedings frequently comes up, especially in family law, commercial law and receivables. For example, if a Turkish citizen is divorced abroad and the judgment is recognized in Turkey, this person is considered divorced under Turkish law. However, if the alimony decision issued abroad for the same person is not enforced in Turkey, the creditor cannot claim the alimony payment in Turkey.

Another example is the enforcement of a court decision rendered in a lawsuit filed abroad regarding an employment contract. If the foreign court’s decision harms the rights of the employee or employer in Turkey, the Turkish court may not enforce this decision.        

Conclusion:    

Recognition and enforcement are two very important concepts in private international law. While recognition recognizes the legal validity of the court’s decision, enforcement makes it possible to enforce the decision. In Turkish law, both procedures are subject to certain procedures and conditions, so they play a major role in resolving international disputes. These are important processes for both individuals and legal entities to protect their rights abroad.

Article written by Yalcin & Toygar Law Office.