April 2006
RECOGNITON AND EXECUTION OF FOREIGN COURT’S DECREES
Commerce has been developing and bearing more importance
in our age by means of the effect of globalization. Being
indispensable for the economy and development of the countries
, the problem concerning international trade is of great
importance.
Recognition and execution of foreign court’s decrees
is one of the most interested matters in commerce for the
investors in our country. First of all, what is meant by
execution must be explained. Recognition is one of the qualities
of judicial decrees as a result of having absolute power,
enable the substantial executions to be effective and activate
the power of state. In order the executional power of judicial
decrees to be effective abroad, a case called as recognition
is absolutely needed and by means of this case, it can be
directly executed. In the same way international arbitrational
decrees that solve international disputes don’t have
the executional power both in their internal courts they
were issued and abroad. Just as the foreign court’s
decrees such kind of decrees should be confirmed and recognized
by another case, to be executed in the concerning country.
As to the recognition, it is recognizing actual executional
power of a foreign court’s decree in Turkey. That means
without realization of substantial executive transaction
only accepting the executional power of the said decree.
If it bears the aim of actual execution to be accomplished
then that foreign courts decree must be executed. Without
actual execution just accepting the actual executional power
of foreign court’s decrees will help in such situations.
In a case being tried in Turkey, having the ability of final
sentence objection depending upon a foreign court’s
decree or depending upon it is conclusive evidence and applying
to the authorities for an administrative transaction to be
carried by means of a foreign court’s decree.
Recognition has many resemblances to the conditions of execution.
First of all, a foreign court’s decree must belong
to a matter not concerning the exclusive authorization of
Turkish Courts. For example, Turkish Court’s authorization
concerning real estates in Turkey is absolute. For this reason,
recognition of foreign court’s decree concerning real
estates in Turkey is out of question. A foreign court’s
decree mustn’t be clearly against the public order.
Another requirement is that a foreign court’s decree
should be sentential according to the legal procedural conditions
of the country it was issued. Besides a foreign court’s
decree should apply the authorized law concerning the personal
states of Turkish citizens according to Turkish Law of International
disputes. However in the decrees of recognition, a stipulation
of reciprocity isn’t necessary that has been mentioned
in MÖHUK (International Private Procedural Law) Article
38. In case there doesn’t exist an agreement on the
basis of reciprocity between Turkey and the country then
the decree of execution isn’t applied. However it is
not valid for the decrees of recognition. Decrees of recognition
can be determined from the point of the states where there’s
no reciprocity stipulation between. Additionally, in recognition,
the stipulation of compliance with the right of defense isn’t
a requisite.
The procedure of recognition varies as to what objection
of the foreign court’s decrees is to be recognized.
In case of an objection against a final sentence, it will
be taken into consideration by the Turkish Court handling
the case and the court will examine the foreign court’s
decree whether it includes the stipulation of recognition
as a contingual exceptional right. In this situation another
case of recognition is not needed. The court itself is to
solve the dispute. In order an administrative transaction
to be carried out the party who claims, should apply the
Turkish Courts for the recognition of the said decree. This
case can be tried as a determination of evidence.
On account of dismiss of a foreign court’s decree to
be recognized in Turkey, the said decree cannot be taken
into consideration as an actual execution or evidence. However
such a situation won’t prevent the foreign court’s
decree to be accepted as discreditional evidence.
As you have observed, recognition of foreign court’s
decree has many resemblances to the generally applied system
of international law. Consequently, it enables uniform application
between Turkish Laws and other foreign systems of law from
the point of decrees and by this way increase the reliance
to the courts.
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