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Act on International Private and Procedure Law (Act No. 5718)
Stephan Wilske and Ismael Esin, Act on Private International and Procedural Law (Act No. 5718), A contribution by the ITA Board of Reporters,
The Turkish International Private and Procedural Law (Act No. 5718) enacted on 27 November 2007 was entered into force on 12 December 2007.
The intention of this law is to establish a system in compliance with the international agreements to which Turkey is a party and in accordance with the Turkish national legislation.
This new law entails a first part on private international law (general provisions, rules of conflict of laws), a second part on international procedural law (international jurisdiction of the Turkish courts, enforcement and recognition of decisions of foreign courts and arbitral awards), and a third part concerning final provisions.
Part I. International Private Law
Chapter I. General Provisions
Scope
Article 1-
(1) This Act regulates the law applicable to private law transactions and relations that contain a foreign element, the international jurisdiction of the Turkish courts, and the recognition and enforcement of foreign judgments.
(2) Provisions of international conventions to which the Republic of Turkey is a signatory are reserved.
Application of Foreign Law
Article 2-
(1) The judge shall apply the rules of the Turkish conflict of laws and the governing foreign law which is applicable in accordance with the said rules ex officio. The judge may seek assistance of the parties for the determination of the content of the governing foreign law.
(2) If the applicable foreign law provisions cannot be ascertained despite all efforts, Turkish law shall be applied.
(3) If the provisions of the applicable foreign conflict of laws refer to another foreign law, this referral will only be taken into consideration in conflicts related to law of persons and property law. The substantive provisions of this foreign law thereof shall be applied.
(4) In cases where there is a possibility of choosing the applicable law, unless otherwise agreed by the parties the substantive provisions of the chosen law shall be applied.
(5) If the country whose law shall govern has two or more regional units and these units have different legal systems, the regional law to be applied shall be determined based on the law of that country. In case there is an absence of a determining provision, the regional law which is the most closely related to the conflict shall apply.
Variable Disputes
Article 3-
(1) In cases where the applicable law is to be determined by nationality, domicile, or habitual residence, the nationality, domicile, or habitual residence on the filing date of the lawsuit shall be taken as the basis for determining the applicable law unless otherwise stipulated.
The Turkish International Private and Procedural Law (Act No. 5718) enacted on 27 November 2007 was entered into force on 12 December 2007.
The intention of this law is to establish a system in compliance with the international agreements to which Turkey is a party and in accordance with the Turkish national legislation.
This new law entails a first part on private international law (general provisions, rules of conflict of laws), a second part on international procedural law (international jurisdiction of the Turkish courts, enforcement and recognition of decisions of foreign courts and arbitral awards), and a third part concerning final provisions.
Part I. International Private Law
Chapter I. General Provisions
Scope
Article 1-
(1) This Act regulates the law applicable to private law transactions and relations that contain a foreign element, the international jurisdiction of the Turkish courts, and the recognition and enforcement of foreign judgments.
(2) Provisions of international conventions to which the Republic of Turkey is a signatory are reserved.
Application of Foreign Law
Article 2-
(1) The judge shall apply the rules of the Turkish conflict of laws and the governing foreign law which is applicable in accordance with the said rules ex officio. The judge may seek assistance of the parties for the determination of the content of the governing foreign law.
(2) If the applicable foreign law provisions cannot be ascertained despite all efforts, Turkish law shall be applied.
(3) If the provisions of the applicable foreign conflict of laws refer to another foreign law, this referral will only be taken into consideration in conflicts related to law of persons and property law. The substantive provisions of this foreign law thereof shall be applied.
(4) In cases where there is a possibility of choosing the applicable law, unless otherwise agreed by the parties the substantive provisions of the chosen law shall be applied.
(5) If the country whose law shall govern has two or more regional units and these units have different legal systems, the regional law to be applied shall be determined based on the law of that country. In case there is an absence of a determining provision, the regional law which is the most closely related to the conflict shall apply.
Variable Disputes
Article 3-
(1) In cases where the applicable law is to be determined by nationality, domicile, or habitual residence, the nationality, domicile, or habitual residence on the filing date of the lawsuit shall be taken as the basis for determining the applicable law unless otherwise stipulated.
Applicable Law Based on Nationality
Article 4-
(1) If the applicable law is designated pursuant to nationality under this Act, unless otherwise provided in this Act, the following laws shall apply:
a) With respect to a stateless person, the law of the place of his/her domicile, in the absence thereof, place of his/her habitual residence, and in the absence thereof, the country where he/she is residing on the date of the lawsuit,
b) With respect to a person of multiple citizenship where he/she is also a Turkish citizen, the Turkish law,
c) With respect to a person of multiple citizenship where he/she is not a Turkish citizen, the law of the country with which he/she is most closely connected.
Violation of Public Order
Article 5-
(1) If the provision of the foreign law to be applied in a certain case is openly contrary to the public order of Turkey, the said provision shall not apply. Where it is deemed necessary, Turkish law shall apply.
Directly Applied Provisions of Turkish Law
Article 6-
(1) Where the competent foreign law is applied, in cases where the provisions of Turkish law are directly applied in terms of scope of application and purpose of regulation, the mentioned provision shall apply.
Form of Legal Transactions
Article 7-
(1) Legal transactions can be carried out pursuant to the form being in conformity with the provisions prescribed by substantive law in accordance with the laws of the place of their execution or by the law applicable to the substance of the said legal transaction.
Statute of Limitations
Article 8-
(1) Statute of limitations shall be subject to the law applicable to the substance of the legal transaction and legal relationship.
Chapter II. Rules of Conflict of Laws
Capacity
Article 9-
(1) The legal capacity of a person shall be subject to his/her national law
(2) A person lacking legal capacity pursuant to his/her national law shall be bound by the transaction he/she has concluded if he/she is legally capable under the law of the country where he/she has concluded the transaction. Transactions pertaining to family law and law of succession as well as “in rem” rights on immovable property located in foreign countries are excluded from the scope of this provision.
(3) Change of citizenship shall not change the adult status a person acquired under his/her national law.
(4) The legal capacities of legal entities or units of persons or assets are governed by the law of the jurisdiction where their administrative head-offices are located according to their statutes. However, where the de facto central office is located in Turkey, Turkish law may apply.
(5) The legal capacity of legal entities lacking statute and the group of persons and goods lacking legal entity shall be governed by the law in their “de facto” administrative headquarters.
Article 4-
(1) If the applicable law is designated pursuant to nationality under this Act, unless otherwise provided in this Act, the following laws shall apply:
a) With respect to a stateless person, the law of the place of his/her domicile, in the absence thereof, place of his/her habitual residence, and in the absence thereof, the country where he/she is residing on the date of the lawsuit,
b) With respect to a person of multiple citizenship where he/she is also a Turkish citizen, the Turkish law,
c) With respect to a person of multiple citizenship where he/she is not a Turkish citizen, the law of the country with which he/she is most closely connected.
Violation of Public Order
Article 5-
(1) If the provision of the foreign law to be applied in a certain case is openly contrary to the public order of Turkey, the said provision shall not apply. Where it is deemed necessary, Turkish law shall apply.
Directly Applied Provisions of Turkish Law
Article 6-
(1) Where the competent foreign law is applied, in cases where the provisions of Turkish law are directly applied in terms of scope of application and purpose of regulation, the mentioned provision shall apply.
Form of Legal Transactions
Article 7-
(1) Legal transactions can be carried out pursuant to the form being in conformity with the provisions prescribed by substantive law in accordance with the laws of the place of their execution or by the law applicable to the substance of the said legal transaction.
Statute of Limitations
Article 8-
(1) Statute of limitations shall be subject to the law applicable to the substance of the legal transaction and legal relationship.
Chapter II. Rules of Conflict of Laws
Capacity
Article 9-
(1) The legal capacity of a person shall be subject to his/her national law
(2) A person lacking legal capacity pursuant to his/her national law shall be bound by the transaction he/she has concluded if he/she is legally capable under the law of the country where he/she has concluded the transaction. Transactions pertaining to family law and law of succession as well as “in rem” rights on immovable property located in foreign countries are excluded from the scope of this provision.
(3) Change of citizenship shall not change the adult status a person acquired under his/her national law.
(4) The legal capacities of legal entities or units of persons or assets are governed by the law of the jurisdiction where their administrative head-offices are located according to their statutes. However, where the de facto central office is located in Turkey, Turkish law may apply.
(5) The legal capacity of legal entities lacking statute and the group of persons and goods lacking legal entity shall be governed by the law in their “de facto” administrative headquarters.
Guardianship, Restriction of Civil Rights and Curatorship
Article 10-
(1) The legal grounds underlying decisions issuing or revoking guardianship or restriction shall be governed by the national law of the person who is the subject of the said decision.
(2) In cases where it is not possible to issue a decision regarding guardianship or restriction pursuant to the national law of the foreign person, such a decision may be rendered pursuant to Turkish law, provided that the habitual residence of such foreign person is in Turkey. In cases when the said person is in Turkey by necessity, Turkish law shall apply.
(3) All issues regarding guardianship, or restriction except the legal grounds for issuing or revoking guardianship or restriction decisions, shall be governed by Turkish law.
Declaration of absence or death
Article 11-
(1) The decision regarding the declaration of absence or death shall be subject to the national law of that person. If the assets of a person that cannot be declared absent or dead pursuant to the national law of that person are located in Turkey, or his/her spouse or one of his/her heirs is a Turkish citizen, the decision as to declaring the person absent or dead shall be rendered pursuant to Turkish law.
Engagement
Article 12-
(1) The legal capacity to become engaged and the conditions thereof shall be governed by the respective national laws of the parties which are in force at the moment of engagement.
(2) The provisions and consequences of the engagement shall be governed by the common national law or by Turkish law if the parties are of different nationalities.
Marriage and General Provisions
Article 13-
(1) The legal capacity to marry and the conditions thereof shall be governed by the respective national laws of the parties at the time of the marriage.
(2) The form of marriage shall be governed by the law of the country where the marriage is officiated.
(3) The general provisions of marriage shall be governed by the common national law of the spouses. If the spouses are of different nationalities, the law of their common habitual residence shall apply and in the absence of a common habitual residence, Turkish law shall apply.
Divorce and Judicial Separation
Article 14-
(1) The grounds and provisions for divorce and judicial separation shall be governed by the common national law of the spouses. If the spouses have different nationalities, the law of the place of their common habitual residence, in case of absence of such residence, Turkish law shall apply.
(2) The provisions of paragraph one shall apply to demands for alimony between divorced spouses. This provision shall also be valid in cases of judicial separation and nullity of marriage.
(3) Custody and problems thereof as regards divorce shall be subject to the provisions of paragraph one.
(4) Turkish law shall apply to demands for interim measures.
Matrimonial Property
Article 15-
(1) Spouses may clearly designate either the law of their habitual residence or national law at the time of marriage to govern their matrimonial property. Where no such choice has been made, the common national law of the spouses at the time of marriage, or in the absence of common law, the law of their habitual residence at the time of marriage shall apply or in the absence thereof, the Turkish law shall apply.
(2) In case of division of property, for the immovables national law of the country they are located in shall apply. country
(3) If the spouses acquire a new common nationality upon marriage, the laws of their new nationality may govern, provided that the rights of third parties are reserved.
Establishment of Parentage
Article 16-
(1) The establishment of parentage is subject to the national law of the child at the time of birth, if not established then to the law of his habitual residence. If the parentage cannot be established pursuant to these laws, the national law of the mother or father at the time of birth of child, and if it is not established then the law of common habitual residence of parents and if it is still not established the law of place of birth of child shall govern the establishment of parentage.
(2) Annulment is subject to law which has governed the establishment of parentage.
Provisions of Parentage
Article 17-
(1) Provisions of parentage are subject to law that establishes parentage. If there is a common national law of the father, mother and child, that law shall govern if not, common habitual residence law shall govern the provisions of parentage.
Adoption Article 18-
(1) The relevant national law of each of the parties at the time of adoption shall govern the legal capacity and conditions of adoption.
(2) The national laws of the spouses shall be jointly applicable to adoption with respect to the consent to the adoption of the other spouse.
(3) The adoption itself shall be governed by the national law of the adoptive parent, and in case of a joint adoption, by the law governing the general provisions of the marriage.
Alimony
Article 19-
(1) The habitual residence law of the payee shall govern the alimony.
Inheritance
Article 20-
(1) The national law of the deceased shall govern inheritance. Turkish law shall apply to immovable property located in Turkey.
(2) Provisions relating to the reasons of opening, acquisition and distribution of inheritance shall be governed by the law of the country where the country is located.
(3) The Country shall inherit estates situated in Turkey that do not have any inheritors.
(4) The form of a testamentary disposition is subject to the provision of Article 7. A testamentary disposition executed in compliance with the national law of the deceased shall also be valid.
(5) The legal competency to execute a testamentary disposition is governed by the national law of the executing person at the time of execution.
Article 10-
(1) The legal grounds underlying decisions issuing or revoking guardianship or restriction shall be governed by the national law of the person who is the subject of the said decision.
(2) In cases where it is not possible to issue a decision regarding guardianship or restriction pursuant to the national law of the foreign person, such a decision may be rendered pursuant to Turkish law, provided that the habitual residence of such foreign person is in Turkey. In cases when the said person is in Turkey by necessity, Turkish law shall apply.
(3) All issues regarding guardianship, or restriction except the legal grounds for issuing or revoking guardianship or restriction decisions, shall be governed by Turkish law.
Declaration of absence or death
Article 11-
(1) The decision regarding the declaration of absence or death shall be subject to the national law of that person. If the assets of a person that cannot be declared absent or dead pursuant to the national law of that person are located in Turkey, or his/her spouse or one of his/her heirs is a Turkish citizen, the decision as to declaring the person absent or dead shall be rendered pursuant to Turkish law.
Engagement
Article 12-
(1) The legal capacity to become engaged and the conditions thereof shall be governed by the respective national laws of the parties which are in force at the moment of engagement.
(2) The provisions and consequences of the engagement shall be governed by the common national law or by Turkish law if the parties are of different nationalities.
Marriage and General Provisions
Article 13-
(1) The legal capacity to marry and the conditions thereof shall be governed by the respective national laws of the parties at the time of the marriage.
(2) The form of marriage shall be governed by the law of the country where the marriage is officiated.
(3) The general provisions of marriage shall be governed by the common national law of the spouses. If the spouses are of different nationalities, the law of their common habitual residence shall apply and in the absence of a common habitual residence, Turkish law shall apply.
Divorce and Judicial Separation
Article 14-
(1) The grounds and provisions for divorce and judicial separation shall be governed by the common national law of the spouses. If the spouses have different nationalities, the law of the place of their common habitual residence, in case of absence of such residence, Turkish law shall apply.
(2) The provisions of paragraph one shall apply to demands for alimony between divorced spouses. This provision shall also be valid in cases of judicial separation and nullity of marriage.
(3) Custody and problems thereof as regards divorce shall be subject to the provisions of paragraph one.
(4) Turkish law shall apply to demands for interim measures.
Matrimonial Property
Article 15-
(1) Spouses may clearly designate either the law of their habitual residence or national law at the time of marriage to govern their matrimonial property. Where no such choice has been made, the common national law of the spouses at the time of marriage, or in the absence of common law, the law of their habitual residence at the time of marriage shall apply or in the absence thereof, the Turkish law shall apply.
(2) In case of division of property, for the immovables national law of the country they are located in shall apply. country
(3) If the spouses acquire a new common nationality upon marriage, the laws of their new nationality may govern, provided that the rights of third parties are reserved.
Establishment of Parentage
Article 16-
(1) The establishment of parentage is subject to the national law of the child at the time of birth, if not established then to the law of his habitual residence. If the parentage cannot be established pursuant to these laws, the national law of the mother or father at the time of birth of child, and if it is not established then the law of common habitual residence of parents and if it is still not established the law of place of birth of child shall govern the establishment of parentage.
(2) Annulment is subject to law which has governed the establishment of parentage.
Provisions of Parentage
Article 17-
(1) Provisions of parentage are subject to law that establishes parentage. If there is a common national law of the father, mother and child, that law shall govern if not, common habitual residence law shall govern the provisions of parentage.
Adoption Article 18-
(1) The relevant national law of each of the parties at the time of adoption shall govern the legal capacity and conditions of adoption.
(2) The national laws of the spouses shall be jointly applicable to adoption with respect to the consent to the adoption of the other spouse.
(3) The adoption itself shall be governed by the national law of the adoptive parent, and in case of a joint adoption, by the law governing the general provisions of the marriage.
Alimony
Article 19-
(1) The habitual residence law of the payee shall govern the alimony.
Inheritance
Article 20-
(1) The national law of the deceased shall govern inheritance. Turkish law shall apply to immovable property located in Turkey.
(2) Provisions relating to the reasons of opening, acquisition and distribution of inheritance shall be governed by the law of the country where the country is located.
(3) The Country shall inherit estates situated in Turkey that do not have any inheritors.
(4) The form of a testamentary disposition is subject to the provision of Article 7. A testamentary disposition executed in compliance with the national law of the deceased shall also be valid.
(5) The legal competency to execute a testamentary disposition is governed by the national law of the executing person at the time of execution.
Rights in Rem
Article 21-
(1) The law of the place where the property is located at the moment of transaction shall govern the ownership and other rights in rem on movable and immovable property.
(2) Rights in rem on goods that are en route shall be governed by the law of the country of their destination.
(3) In cases of change of location, un-acquired rights in rem shall be governed by the law of the country where the goods were most recently located.
(4) The form of legal transactions concerning rights in rem on immovable property shall be governed by the law of the country where the immovable property is located.
Transport Vehicles
Article 22-
(1) The rights in rem on the air, sea and railway transport vehicles are subject to the law of the country of origin.
(2) The country of origin of the air and sea transport vehicles is the place where the rights in rem on these vehicles are registered; if there is not such a registration place for sea transport vehicles it is the port of commission and for the railway transport vehicles it is the place of license.
The Applicable Law for Intellectual Property Rights
Article 23-
(1) The rights of intellectual property are subject to the law of country according to whose law their protection is demanded.
(2) The parties may decide that the court's law shall be applied about the resulting claims after the violation of an intellectual property right.
The Applicable Law for Contractual Obligation Relations
Article 24-
(1) The law explicitly designated by the parties shall govern the contractual obligation relations. The designation which can be concluded without hesitation based on the provisions of the contract or is understood from the state of affairs is also valid.
(2) The parties may decide that the designated law shall be applied totally or partially to the contract. (3) The designation of the applicable law can any time be realized and amended by the parties. The designation of law after the conclusion of a contract shall be retrospectively effective on the condition that the rights of third parties are reserved.
(4) If the parties have not explicitly designated any law, the relation arising from the contract shall be governed by the most closely related law to the contract. This law is accepted to be the law of the habitual residence (at the moment of the conclusion of contract) of the debtor of the characteristic performance; the law of the workplace or (in absence of a workplace) the law of the residence of the abovementioned debtor in case the contract is concluded as a result of commercial and professional activities; in case that the debtor has multiple workplaces, the law of the workplace which is the most closely related to the contract. Nevertheless, considering the country of all affairs if there is a law more closely related to the contract, that particular law shall govern.
Contracts Relating to Immovables
Article 25-
(1) The contracts relating to immovables or to their utilization are subject to the law of country where they are located.
Consumer Contracts
Article 26-
(1) The consumer contracts lacking a professional or commercial aim but concluded in order to acquire goods, service or credit are subject to the law designated by the parties provided that the minimum protection which the consumer will have as per statutory provisions of law of his/her habitual residence are reserved.
(2) In case the parties have not designated a law, the law of the habitual residence of the consumer shall apply. In order for this law to be applied;
a) The contract should be concluded upon a specially sent invitation or an announcement, and the required legal acts should be performed by the consumer in the abovementioned country in order for a contract to be established, or
b) The other party or its representative should receive the consumer's orders in the abovementioned country, or
c) In case the relationship is a sales contract, the seller should organize a trip in order to persuade the consumer to purchase and the consumer should travel to another country and give his/her order therein.
(3) The law of the habitual residence of the consumer shall apply to the consumer contracts concluded under the conditions specified in paragraph 2.
(4) This article, excluding package tours, shall not apply to transport contracts and to the contracts in which it is required to provide the service to the consumer in a country different than the location of his/her habitual residence.
Contracts of Employment
Article 27-
(1) The employment contracts are subject to law which is designated by parties as long as the provisions which foresee the minimal protection due to statutory provisions of his/her habitual workplace law are reserved.
(2) In cases where the parties have not designated a law, the law of the habitual workplace of the employee shall govern the employment contract. In case the employee is temporarily working abroad, this workplace will not be deemed as the habitual workplace.
(3) In cases where the employee is working constantly in several countries without working habitually in one country, the employment contract is subject to law of country where the main workplace of the employer is located.
(4) In consideration of all circumstances if there is a law more closely related to the contract, instead of the provisions in second and third clauses, that particular law shall apply.
Contracts Regarding Intellectual Property Rights
Article 28-
(1) Contracts regarding intellectual property rights are subject to law which is designated by parties. (2) If parties have not designated a law, then, the relation resulting from the contract is subject to law of workplace of the party alienating the intellectual right or its utilization at the time of conclusion of contract and if such work place does not exist, the law of habitual residence shall apply. In consideration of all circumstances if there is a law more closely related to the contract, that particular law shall apply.
(3) The contracts between the employee and the employer regarding the intellectual rights on what the employee has created while he/she is working and within the concept of his/her work is subject to the law of employment contract.
Article 21-
(1) The law of the place where the property is located at the moment of transaction shall govern the ownership and other rights in rem on movable and immovable property.
(2) Rights in rem on goods that are en route shall be governed by the law of the country of their destination.
(3) In cases of change of location, un-acquired rights in rem shall be governed by the law of the country where the goods were most recently located.
(4) The form of legal transactions concerning rights in rem on immovable property shall be governed by the law of the country where the immovable property is located.
Transport Vehicles
Article 22-
(1) The rights in rem on the air, sea and railway transport vehicles are subject to the law of the country of origin.
(2) The country of origin of the air and sea transport vehicles is the place where the rights in rem on these vehicles are registered; if there is not such a registration place for sea transport vehicles it is the port of commission and for the railway transport vehicles it is the place of license.
The Applicable Law for Intellectual Property Rights
Article 23-
(1) The rights of intellectual property are subject to the law of country according to whose law their protection is demanded.
(2) The parties may decide that the court's law shall be applied about the resulting claims after the violation of an intellectual property right.
The Applicable Law for Contractual Obligation Relations
Article 24-
(1) The law explicitly designated by the parties shall govern the contractual obligation relations. The designation which can be concluded without hesitation based on the provisions of the contract or is understood from the state of affairs is also valid.
(2) The parties may decide that the designated law shall be applied totally or partially to the contract. (3) The designation of the applicable law can any time be realized and amended by the parties. The designation of law after the conclusion of a contract shall be retrospectively effective on the condition that the rights of third parties are reserved.
(4) If the parties have not explicitly designated any law, the relation arising from the contract shall be governed by the most closely related law to the contract. This law is accepted to be the law of the habitual residence (at the moment of the conclusion of contract) of the debtor of the characteristic performance; the law of the workplace or (in absence of a workplace) the law of the residence of the abovementioned debtor in case the contract is concluded as a result of commercial and professional activities; in case that the debtor has multiple workplaces, the law of the workplace which is the most closely related to the contract. Nevertheless, considering the country of all affairs if there is a law more closely related to the contract, that particular law shall govern.
Contracts Relating to Immovables
Article 25-
(1) The contracts relating to immovables or to their utilization are subject to the law of country where they are located.
Consumer Contracts
Article 26-
(1) The consumer contracts lacking a professional or commercial aim but concluded in order to acquire goods, service or credit are subject to the law designated by the parties provided that the minimum protection which the consumer will have as per statutory provisions of law of his/her habitual residence are reserved.
(2) In case the parties have not designated a law, the law of the habitual residence of the consumer shall apply. In order for this law to be applied;
a) The contract should be concluded upon a specially sent invitation or an announcement, and the required legal acts should be performed by the consumer in the abovementioned country in order for a contract to be established, or
b) The other party or its representative should receive the consumer's orders in the abovementioned country, or
c) In case the relationship is a sales contract, the seller should organize a trip in order to persuade the consumer to purchase and the consumer should travel to another country and give his/her order therein.
(3) The law of the habitual residence of the consumer shall apply to the consumer contracts concluded under the conditions specified in paragraph 2.
(4) This article, excluding package tours, shall not apply to transport contracts and to the contracts in which it is required to provide the service to the consumer in a country different than the location of his/her habitual residence.
Contracts of Employment
Article 27-
(1) The employment contracts are subject to law which is designated by parties as long as the provisions which foresee the minimal protection due to statutory provisions of his/her habitual workplace law are reserved.
(2) In cases where the parties have not designated a law, the law of the habitual workplace of the employee shall govern the employment contract. In case the employee is temporarily working abroad, this workplace will not be deemed as the habitual workplace.
(3) In cases where the employee is working constantly in several countries without working habitually in one country, the employment contract is subject to law of country where the main workplace of the employer is located.
(4) In consideration of all circumstances if there is a law more closely related to the contract, instead of the provisions in second and third clauses, that particular law shall apply.
Contracts Regarding Intellectual Property Rights
Article 28-
(1) Contracts regarding intellectual property rights are subject to law which is designated by parties. (2) If parties have not designated a law, then, the relation resulting from the contract is subject to law of workplace of the party alienating the intellectual right or its utilization at the time of conclusion of contract and if such work place does not exist, the law of habitual residence shall apply. In consideration of all circumstances if there is a law more closely related to the contract, that particular law shall apply.
(3) The contracts between the employee and the employer regarding the intellectual rights on what the employee has created while he/she is working and within the concept of his/her work is subject to the law of employment contract.
Contracts Regarding Transportation of Goods
Article 29-
(1) The contracts regarding transportation of goods are subject to the law which is designated by parties.
(2) In cases where the parties have not designated a law; if the country where the main workplace of the transporter, at the time of conclusion of the contract, is the same place with where the loading and discharge is realized or where the sender's main work place is, it's accepted that this law is the most closely related law to the contract and thus shall apply. One-time charter contracts and other contracts whose main subject is carriage are subject to this provision.
(3) In consideration of all circumstances if there is a law more closely related to the contract, instead of the provisions in second and third clauses, that particular law shall apply.
Representative Authority
Article 30-
(1) The representative authority which arises from the legal relation between representative and the party being represented is subject to the law which governs the relation between the parties.
(2) The conditions required to put the party being represented under commitment against third parties for an act committed by the representative are subject to the law of the representative's workplace. In cases where the representative does not have a workplace or where third parties are unaware of such workplace or where the representative authority is used beyond the workplace, the representative authority is subject to law of the country where the authority is de facto exercised. The relation between the parties in case of representative without authority is also subject to this provision.
(3) If there is an employment relation between the representative and the party being represented and if the representative does not have a workplace, the representative authority shall be governed by the law of the country where the workplace of the party being represented is located.
Directly Applied Rules
Article 31-
(1) While applying the law that the contractual relationship is subject to, the effect of the directly applied provisions of a third country's law may be recognized on condition that they are closely related to the contract. The aim, nature, content and effects of these provisions shall be taken into account in deciding whether to recognize and whether to apply them.
The Presence and Substantial Validity of the Contractual Relationship
Article 32-
(1) The presence and substantial validity of a contractual relationship or one of its provisions is subject to the law of the contract which shall be applied in case the contract is valid.
(2) If it is concluded by considering all the circumstances that it would not be just to recognize the act of one of the parties and subject it to the applicable law, the law of the country of the habitual residence of the party who claims absence of consent to the declaration of intent shall apply.
The Form of Execution and Measures
Article 33-
(1) The acts and transactions undertaken during execution and measures related to the protection of properties are subject to the law of the country where these acts and transactions are realized.
Torts
Article 34-
(1) Obligations arising from torts shall be governed by the law of the country where the tortuous act is committed.
(2) In the event the place the tortuous act is committed is not the place where the damage has occurred, the law of the country where the damage has occurred shall apply.
(3) If another country is more closely connected with the obligation arising from a tortuous act, the law of the said country shall apply.
(4) If the law applying to the tortuous act or to the insurance contract makes it possible, the damaged party can directly assert his/her claim towards the insurer of the liable party.
(5) After the occurrence of the tortuous act, parties can explicitly designate the applicable law.
Liability for Violation of Personality Rights
Article 35-
(1) The claims resulting from the violation of personality rights via media such as press, radio, television or via internet and other mass communications, according to the preference of the damaged party, shall be subjected to;
a) The law of the habitual residence of the damaged party in the event that the party who caused the damage was in a position to know that the damage would occur in that country,
b) The law of country where the workplace or the habitual residence of the party who caused the damage is located, or
c) The law of country where the damage occurred in the event that the damaging party was in a position to know that the damage would occur in that country.
(2) In case of violation of personality rights, the right of reply, in periodicals, is subject to the law of country where the imprint is made or the program is broadcasted.
(3) Paragraph one of the articles shall apply to the claims resulting from the violation of personality by processing personal data or limiting the right of information on personal data.
Non-Contractual Responsibility of The Manufacturer
Article 36-
(1) In accordance with the designation of the damaged party, the responsibility resulting from damages which is caused by the products is subject to the law of the country of the habitual residence or workplace of the damaging party or to the law of the country where the product is acquired. In order for the law of the country of the place of acquisition to be apply, it is necessary that the damaging party is not able to prove that the product is exported to that country against his/her will.
Unfair competition
Article 37-
(1) The demands resulting from unfair competition are subject to law of the country whose market is directly affected by unfair competition.
(2) If, as a result of unfair competition, the interests exclusively related to the enterprise of the damaged party are violated, the law of the country where the workplace of the mentioned enterprise is located shall apply.
Prevention of Competition
Article 38-
(1) The demands resulting from prevention of competition are subject to the law of the country whose market is directly affected by the prevention.
(2) In cases where the foreign law applies to prevention of competition in Turkey, compensation exceeding the compensation which would be given if Turkish law applied in the mentioned case cannot be ruled.
Unjust Enrichment
Article 39-
(1) The demands resulting from unjust enrichment are subject to the law which applies to the existing transactions or which allegedly exist. Otherwise, the law of the place where unjust enrichment has occurred shall apply.
(2) The parties, after unjust enrichment has occurred, can openly designate the law that will apply.
Part II. International Procedural Law
Chapter I. International Jurisdiction of Turkish Courts
International Jurisdiction
Article 40-
(1) International jurisdiction of Turkish courts shall be determined by domestic jurisdiction rules. Lawsuits Concerning the Personal Status of Turkish Citizens
Article 41-
(1) . If lawsuits concerning the personal status of Turkish citizens are not or cannot be filed with foreign courts, the competent court in Turkey based on the relevant place shall handle the case. In case of absence of such competent court, the place where the person in question is a resident shall be a determinant. If the person in question is not a resident in Turkey, the case shall be handled by the court of last domicile and in absence thereof, it shall be filed with the courts of Istanbul, Ankara or Izmir.
Lawsuits Concerning Personal Status of Foreigners
Article 42-
(1) Decisions as to guardianship, curatorship, restriction, declaration of absence and death concerning foreign persons who do not have domicile in Turkey shall be determined by the court where the person concerned is a resident in Turkey, or if he/she is not resident, by the court where his/her assets are located.
Article 29-
(1) The contracts regarding transportation of goods are subject to the law which is designated by parties.
(2) In cases where the parties have not designated a law; if the country where the main workplace of the transporter, at the time of conclusion of the contract, is the same place with where the loading and discharge is realized or where the sender's main work place is, it's accepted that this law is the most closely related law to the contract and thus shall apply. One-time charter contracts and other contracts whose main subject is carriage are subject to this provision.
(3) In consideration of all circumstances if there is a law more closely related to the contract, instead of the provisions in second and third clauses, that particular law shall apply.
Representative Authority
Article 30-
(1) The representative authority which arises from the legal relation between representative and the party being represented is subject to the law which governs the relation between the parties.
(2) The conditions required to put the party being represented under commitment against third parties for an act committed by the representative are subject to the law of the representative's workplace. In cases where the representative does not have a workplace or where third parties are unaware of such workplace or where the representative authority is used beyond the workplace, the representative authority is subject to law of the country where the authority is de facto exercised. The relation between the parties in case of representative without authority is also subject to this provision.
(3) If there is an employment relation between the representative and the party being represented and if the representative does not have a workplace, the representative authority shall be governed by the law of the country where the workplace of the party being represented is located.
Directly Applied Rules
Article 31-
(1) While applying the law that the contractual relationship is subject to, the effect of the directly applied provisions of a third country's law may be recognized on condition that they are closely related to the contract. The aim, nature, content and effects of these provisions shall be taken into account in deciding whether to recognize and whether to apply them.
The Presence and Substantial Validity of the Contractual Relationship
Article 32-
(1) The presence and substantial validity of a contractual relationship or one of its provisions is subject to the law of the contract which shall be applied in case the contract is valid.
(2) If it is concluded by considering all the circumstances that it would not be just to recognize the act of one of the parties and subject it to the applicable law, the law of the country of the habitual residence of the party who claims absence of consent to the declaration of intent shall apply.
The Form of Execution and Measures
Article 33-
(1) The acts and transactions undertaken during execution and measures related to the protection of properties are subject to the law of the country where these acts and transactions are realized.
Torts
Article 34-
(1) Obligations arising from torts shall be governed by the law of the country where the tortuous act is committed.
(2) In the event the place the tortuous act is committed is not the place where the damage has occurred, the law of the country where the damage has occurred shall apply.
(3) If another country is more closely connected with the obligation arising from a tortuous act, the law of the said country shall apply.
(4) If the law applying to the tortuous act or to the insurance contract makes it possible, the damaged party can directly assert his/her claim towards the insurer of the liable party.
(5) After the occurrence of the tortuous act, parties can explicitly designate the applicable law.
Liability for Violation of Personality Rights
Article 35-
(1) The claims resulting from the violation of personality rights via media such as press, radio, television or via internet and other mass communications, according to the preference of the damaged party, shall be subjected to;
a) The law of the habitual residence of the damaged party in the event that the party who caused the damage was in a position to know that the damage would occur in that country,
b) The law of country where the workplace or the habitual residence of the party who caused the damage is located, or
c) The law of country where the damage occurred in the event that the damaging party was in a position to know that the damage would occur in that country.
(2) In case of violation of personality rights, the right of reply, in periodicals, is subject to the law of country where the imprint is made or the program is broadcasted.
(3) Paragraph one of the articles shall apply to the claims resulting from the violation of personality by processing personal data or limiting the right of information on personal data.
Non-Contractual Responsibility of The Manufacturer
Article 36-
(1) In accordance with the designation of the damaged party, the responsibility resulting from damages which is caused by the products is subject to the law of the country of the habitual residence or workplace of the damaging party or to the law of the country where the product is acquired. In order for the law of the country of the place of acquisition to be apply, it is necessary that the damaging party is not able to prove that the product is exported to that country against his/her will.
Unfair competition
Article 37-
(1) The demands resulting from unfair competition are subject to law of the country whose market is directly affected by unfair competition.
(2) If, as a result of unfair competition, the interests exclusively related to the enterprise of the damaged party are violated, the law of the country where the workplace of the mentioned enterprise is located shall apply.
Prevention of Competition
Article 38-
(1) The demands resulting from prevention of competition are subject to the law of the country whose market is directly affected by the prevention.
(2) In cases where the foreign law applies to prevention of competition in Turkey, compensation exceeding the compensation which would be given if Turkish law applied in the mentioned case cannot be ruled.
Unjust Enrichment
Article 39-
(1) The demands resulting from unjust enrichment are subject to the law which applies to the existing transactions or which allegedly exist. Otherwise, the law of the place where unjust enrichment has occurred shall apply.
(2) The parties, after unjust enrichment has occurred, can openly designate the law that will apply.
Part II. International Procedural Law
Chapter I. International Jurisdiction of Turkish Courts
International Jurisdiction
Article 40-
(1) International jurisdiction of Turkish courts shall be determined by domestic jurisdiction rules. Lawsuits Concerning the Personal Status of Turkish Citizens
Article 41-
(1) . If lawsuits concerning the personal status of Turkish citizens are not or cannot be filed with foreign courts, the competent court in Turkey based on the relevant place shall handle the case. In case of absence of such competent court, the place where the person in question is a resident shall be a determinant. If the person in question is not a resident in Turkey, the case shall be handled by the court of last domicile and in absence thereof, it shall be filed with the courts of Istanbul, Ankara or Izmir.
Lawsuits Concerning Personal Status of Foreigners
Article 42-
(1) Decisions as to guardianship, curatorship, restriction, declaration of absence and death concerning foreign persons who do not have domicile in Turkey shall be determined by the court where the person concerned is a resident in Turkey, or if he/she is not resident, by the court where his/her assets are located.
Lawsuits related to Inheritance
Article 43-
(1) Lawsuits related to inheritance shall be heard by the court where the deceased had his/her last domicile in Turkey, but if his/her last domicile was not in Turkey, by the court of the place where his/her estate is located.
Lawsuits Related to Employment Contracts and Employment Relations
Article 44- (1)
Regarding the conflicts caused by an individual employment agreement or employment relationship the court of the place where the employee habitually performs his/her work in Turkey is competent. In lawsuits filed by the employee, the Turkish courts in places of the domicile of the employer or the domicile or habitual residence of the employee are competent as well.
Lawsuits Related to Consumer Contracts
Article 45-
(1) Regarding the conflicts arising from the consumer contracts specified in article 26, according to the preference of the consumer, the Turkish courts in places where the consumer's domicile or habitual residence or the counterparty's workplace, domicile or habitual residence is located are competent.
(2) Regarding the conflicts arising from the consumer contracts concluded in accordance with the first paragraph, the competent court is the court of the place where the consumer's habitual residence is located.
Lawsuits related to Insurance Contracts
Article 46-
(1) Regarding the conflicts arising from insurance contracts the court of the place where the actual workplace of the insurer or the branch office or agency that concluded the insurance contract is located in Turkey is competent. Nevertheless, the competent court of jurisdiction in lawsuits filed against the insurance holder or the beneficiary is the court of the place of their domicile or habitual residence in Turkey.
Agreement on Authorization and Limitations
Article 47-
(1) Except in cases where the jurisdiction of a court is determined according to exclusive jurisdiction of specific court principles, the parties may agree on jurisdiction of a court of foreign country in a dispute that contains a foreign element and arises from obligatory relations. The agreement shall be invalid unless it is proven by written evidence. The competent Turkish court shall have jurisdiction only if the foreign court decides that it has no jurisdiction or if a plea as to jurisdiction is not presented in Turkish courts.
(2) The competency of courts specified in articles 44, 45, 46 shall not be removed by the parties' agreement.
Security Payment
Article 48-
(1) Foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court shall be required to provide a security, the amount of which shall be determined by the court to cover the expenses of the legal procedures and proceedings as well as losses or damages of the other party.
(2) The court may exempt the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis.
Cases Where a Foreign Country cannot Claim Exemption from Jurisdiction
Article 49-
(1) A foreign country shall not be granted exemption from jurisdiction in legal disputes arising from private law relations.
(2) In such disputes, notifications may be served to diplomatic representatives of the foreign countries.
Chapter II. Enforcement and Recognition of Decisions of Foreign Courts and Arbitral Awards Enforcement of Court decisions
Article 50-
(1) Enforcement of court decisions rendered by foreign courts in the course of civil lawsuits in Turkey which are final pursuant to the law of that foreign country shall be subject to the enforcement decision of the competent Turkish court.
(2) Enforcement decision may also be requested with regard to judgments on personal rights stipulated in the court decisions of foreign criminal courts.
Jurisdiction and Competency
Article 51-
(1) The Courts of First Instance (3) shall have jurisdiction over enforcement decisions.
(2) These decisions shall be requested from the court at the place of domicile of the person against whom enforcement is requested, in case of absence thereof it shall be requested from the court located where the person in question is a resident and in absence there of it shall be requested from one of the courts in Istanbul, Ankara, or Izmir.
Request for Enforcement of Court Decisions
Article 52-
(1) Anyone who has legal interest in enforcement of a decision can make a request to that end. Enforcement shall be requested by a petition. Copies of the petition in the number of opposing parties shall be attached. The petition shall contain the following:
a) The names, surnames, and addresses of the parties and their legal representatives, if any,
b) The court of the country that has rendered the decision subject to the enforcement and the name of the court, the date and number of the decision, and a summary of the judgment,
c) If partial enforcement is sought, an indication as to which part of the decision is the subject of the request.
Documents to Be Attached to the Petition
Article 53-
(1) The following documents shall be attached to the petition:
a) The original copy of the court decision certified by the authorities of the foreign country or an exemplar of the decision certified by that organ of jurisdiction and a certified translation thereof,
b) A document or written statement from the authorities of the country which officially confirms that the court decision is final and a certified translation thereof.
Conditions of Enforcement
Article 54-
(1) The competent court shall render enforcement subject to the following conditions:
a) Existence of an agreement, on a reciprocal basis between the Republic of Turkey and the country where the court decision is given or a de facto practice or a provision of law enabling the authorization of the execution of final decisions given by a Turkish court in that country, The judgment of the lawsuit or does not have any relevance to mat not fall within the exclusive jurisdiction of the Turkish court not given by a country court which is competent even if it does not have ter of the l s or,awsuit an objection is raised by on condition that the decision in questio a real rel the defendant ationship with parties ., n does
c) The court decision not being openly contrary to public order,
ç) The person against whom enforcement is requested not having been duly summoned pursuant to the laws of that foreign country or to the court that has given the judgment, or not having been represented before that court, or the court decision having been pronounced in his/her absence or by a default judgment in a manner contrary to these laws, and the person not having objected to the enforcement decision based on the above-mentioned grounds before the Turkish court,
Notification and Objection
Article 55-
(1) The petition for the request for enforcement shall be served upon the opposing party and shall contain the date of the hearing. Recognition and enforcement of undisputed court decisions are also subject to the same provision. For recognition of undisputed court decisions, the provision of notification shall not be applied. The request is to be reviewed and resolved by the court in accordance with the provisions of simple trial procedure.
(2) The opposing party can only raise objection by claiming that the enforcement conditions under the provisions of this chapter are not present or that the foreign court decision was partially or wholly executed or a reason hindering the enforcement has arisen.
Court Decision
Article 56-
(1) The court may decide for full or partial enforcement of the foreign court decision or may dismiss the request. This decision shall be written on the foreign court decision and signed and sealed by the judge.
Execution and Appeal
Article 57-
(1) Foreign court decisions for which enforcement is rendered shall be executed as court decisions rendered by the Turkish courts.
(2) Appeal of Court decisions regarding dismissal or acceptance of the enforcement request is subject to the general provisions of the Civil Procedure Law. The appeal shall suspend the execution.
Recognition
Article 58-
(1) A foreign court decision serving as a definitive evidence or final judgment shall depend on decision of the court as to the fact that the foreign court decision fulfills the conditions of enforcement. Clause (a) of paragraph one of Article 54 shall not apply to recognition.
(2) The same article shall apply to the recognition of undisputed court decisions.
(3) The same procedure shall apply in concluding an administrative transaction based on a foreign court decision.
Final Judgment and Definitive Evidence Effect
Article 59-
(1) A foreign court decision shall serve as a definitive evidence or final judgment as of the time the foreign court judgment becomes definitive.
Enforcement of Foreign Arbitral Awards
Article 60-
Final and executable or foreign arbitral awards binding upon the parties can be enforced.
(1) The enforcement of a foreign arbitral award shall be requested by a petition from the Court of First Instance mutually designated by the parties in writing. In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person's place of residence, and in the absence thereof, the court at the location of the property that may be subject to execution.
Petition and Review Procedure
Article 61-
(1) The party requesting enforcement of a foreign award shall attach the copies of the following documents depending on the number of the other parties:
a) The original or duly certified copy of the arbitration agreement or arbitration clause,
b) The original or duly certified copy of the arbitral award that is final and executable or binding upon the parties,
c) Translations and duly certified copies of the documents listed in clauses (a) and (b). (2) The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards.
Grounds for Dismissal
Article 62-
(1) The court shall dismiss the enforcement request of a foreign arbitral award, if,
a) An arbitration agreement is not executed or arbitration clause is not included in the main agreement,
b) The arbitral award is contrary to public morality or public order, c) It is not possible to settle the dispute subject to the arbitral award by way of arbitration under Turkish law,
ç) One of the parties has not been duly represented before the arbitrators and has not expressly accepted the acts concluded thereafter,
d) The party against whom the enforcement of the arbitral award is requested has not been duly notified of the appointment of arbitrators or has been deprived of his/her right to make claim and defense,
e) The arbitration agreement or clause is invalid pursuant to the governing law designated by the parties, or in the absence thereof, pursuant to the law of the place where the arbitral award is rendered,
f) The appointment of the arbitrators or the procedure applied by the arbitrators violates the agreement of the parties, or in the absence thereof, the law of the country where the arbitral award is rendered,
g) The arbitral award has been rendered on an issue that is not included in the arbitration agreement or arbitration clause or exceeds the limits of the agreement or the clause (only the exceeding part),
h) The arbitral award is not final, enforceable, or binding under the governing law or the governing procedure or the law of the country where it is rendered or it is annulled by the competent authority in the place where the award is rendered.
(2) The burden of proof regarding issues addressed in clauses (ç), (d), (e), (f), (g), and (h) of paragraph one lies with the party against whom enforcement is requested. The Recognition of the
Decisions of Foreign Arbitrator
Article 63-
(1) The recognition of the decisions of foreign arbitrator is also subject to the provisions related to their enforcement.
Part III. Final Provisions Repealed Provisions
Article 64-
(1) The Act on International Private and Procedure Law No. 2675 and dated 20/5/1982,
(2) Paragraph two of article 886 of the Turkish Commercial Code No. 6762 and dated 29/6/1956,
(3) Article 88 of the Law on Intellectual Property Rights No. 5846 and dated 5/12/1951 are repealed.
Validity
Article 65-
(1) This Act shall come into force on the date of its publication.
Execution
Article 66-
(1) The Cabinet of Ministers shall execute this Act.
Article 43-
(1) Lawsuits related to inheritance shall be heard by the court where the deceased had his/her last domicile in Turkey, but if his/her last domicile was not in Turkey, by the court of the place where his/her estate is located.
Lawsuits Related to Employment Contracts and Employment Relations
Article 44- (1)
Regarding the conflicts caused by an individual employment agreement or employment relationship the court of the place where the employee habitually performs his/her work in Turkey is competent. In lawsuits filed by the employee, the Turkish courts in places of the domicile of the employer or the domicile or habitual residence of the employee are competent as well.
Lawsuits Related to Consumer Contracts
Article 45-
(1) Regarding the conflicts arising from the consumer contracts specified in article 26, according to the preference of the consumer, the Turkish courts in places where the consumer's domicile or habitual residence or the counterparty's workplace, domicile or habitual residence is located are competent.
(2) Regarding the conflicts arising from the consumer contracts concluded in accordance with the first paragraph, the competent court is the court of the place where the consumer's habitual residence is located.
Lawsuits related to Insurance Contracts
Article 46-
(1) Regarding the conflicts arising from insurance contracts the court of the place where the actual workplace of the insurer or the branch office or agency that concluded the insurance contract is located in Turkey is competent. Nevertheless, the competent court of jurisdiction in lawsuits filed against the insurance holder or the beneficiary is the court of the place of their domicile or habitual residence in Turkey.
Agreement on Authorization and Limitations
Article 47-
(1) Except in cases where the jurisdiction of a court is determined according to exclusive jurisdiction of specific court principles, the parties may agree on jurisdiction of a court of foreign country in a dispute that contains a foreign element and arises from obligatory relations. The agreement shall be invalid unless it is proven by written evidence. The competent Turkish court shall have jurisdiction only if the foreign court decides that it has no jurisdiction or if a plea as to jurisdiction is not presented in Turkish courts.
(2) The competency of courts specified in articles 44, 45, 46 shall not be removed by the parties' agreement.
Security Payment
Article 48-
(1) Foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court shall be required to provide a security, the amount of which shall be determined by the court to cover the expenses of the legal procedures and proceedings as well as losses or damages of the other party.
(2) The court may exempt the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis.
Cases Where a Foreign Country cannot Claim Exemption from Jurisdiction
Article 49-
(1) A foreign country shall not be granted exemption from jurisdiction in legal disputes arising from private law relations.
(2) In such disputes, notifications may be served to diplomatic representatives of the foreign countries.
Chapter II. Enforcement and Recognition of Decisions of Foreign Courts and Arbitral Awards Enforcement of Court decisions
Article 50-
(1) Enforcement of court decisions rendered by foreign courts in the course of civil lawsuits in Turkey which are final pursuant to the law of that foreign country shall be subject to the enforcement decision of the competent Turkish court.
(2) Enforcement decision may also be requested with regard to judgments on personal rights stipulated in the court decisions of foreign criminal courts.
Jurisdiction and Competency
Article 51-
(1) The Courts of First Instance (3) shall have jurisdiction over enforcement decisions.
(2) These decisions shall be requested from the court at the place of domicile of the person against whom enforcement is requested, in case of absence thereof it shall be requested from the court located where the person in question is a resident and in absence there of it shall be requested from one of the courts in Istanbul, Ankara, or Izmir.
Request for Enforcement of Court Decisions
Article 52-
(1) Anyone who has legal interest in enforcement of a decision can make a request to that end. Enforcement shall be requested by a petition. Copies of the petition in the number of opposing parties shall be attached. The petition shall contain the following:
a) The names, surnames, and addresses of the parties and their legal representatives, if any,
b) The court of the country that has rendered the decision subject to the enforcement and the name of the court, the date and number of the decision, and a summary of the judgment,
c) If partial enforcement is sought, an indication as to which part of the decision is the subject of the request.
Documents to Be Attached to the Petition
Article 53-
(1) The following documents shall be attached to the petition:
a) The original copy of the court decision certified by the authorities of the foreign country or an exemplar of the decision certified by that organ of jurisdiction and a certified translation thereof,
b) A document or written statement from the authorities of the country which officially confirms that the court decision is final and a certified translation thereof.
Conditions of Enforcement
Article 54-
(1) The competent court shall render enforcement subject to the following conditions:
a) Existence of an agreement, on a reciprocal basis between the Republic of Turkey and the country where the court decision is given or a de facto practice or a provision of law enabling the authorization of the execution of final decisions given by a Turkish court in that country, The judgment of the lawsuit or does not have any relevance to mat not fall within the exclusive jurisdiction of the Turkish court not given by a country court which is competent even if it does not have ter of the l s or,awsuit an objection is raised by on condition that the decision in questio a real rel the defendant ationship with parties ., n does
c) The court decision not being openly contrary to public order,
ç) The person against whom enforcement is requested not having been duly summoned pursuant to the laws of that foreign country or to the court that has given the judgment, or not having been represented before that court, or the court decision having been pronounced in his/her absence or by a default judgment in a manner contrary to these laws, and the person not having objected to the enforcement decision based on the above-mentioned grounds before the Turkish court,
Notification and Objection
Article 55-
(1) The petition for the request for enforcement shall be served upon the opposing party and shall contain the date of the hearing. Recognition and enforcement of undisputed court decisions are also subject to the same provision. For recognition of undisputed court decisions, the provision of notification shall not be applied. The request is to be reviewed and resolved by the court in accordance with the provisions of simple trial procedure.
(2) The opposing party can only raise objection by claiming that the enforcement conditions under the provisions of this chapter are not present or that the foreign court decision was partially or wholly executed or a reason hindering the enforcement has arisen.
Court Decision
Article 56-
(1) The court may decide for full or partial enforcement of the foreign court decision or may dismiss the request. This decision shall be written on the foreign court decision and signed and sealed by the judge.
Execution and Appeal
Article 57-
(1) Foreign court decisions for which enforcement is rendered shall be executed as court decisions rendered by the Turkish courts.
(2) Appeal of Court decisions regarding dismissal or acceptance of the enforcement request is subject to the general provisions of the Civil Procedure Law. The appeal shall suspend the execution.
Recognition
Article 58-
(1) A foreign court decision serving as a definitive evidence or final judgment shall depend on decision of the court as to the fact that the foreign court decision fulfills the conditions of enforcement. Clause (a) of paragraph one of Article 54 shall not apply to recognition.
(2) The same article shall apply to the recognition of undisputed court decisions.
(3) The same procedure shall apply in concluding an administrative transaction based on a foreign court decision.
Final Judgment and Definitive Evidence Effect
Article 59-
(1) A foreign court decision shall serve as a definitive evidence or final judgment as of the time the foreign court judgment becomes definitive.
Enforcement of Foreign Arbitral Awards
Article 60-
Final and executable or foreign arbitral awards binding upon the parties can be enforced.
(1) The enforcement of a foreign arbitral award shall be requested by a petition from the Court of First Instance mutually designated by the parties in writing. In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person's place of residence, and in the absence thereof, the court at the location of the property that may be subject to execution.
Petition and Review Procedure
Article 61-
(1) The party requesting enforcement of a foreign award shall attach the copies of the following documents depending on the number of the other parties:
a) The original or duly certified copy of the arbitration agreement or arbitration clause,
b) The original or duly certified copy of the arbitral award that is final and executable or binding upon the parties,
c) Translations and duly certified copies of the documents listed in clauses (a) and (b). (2) The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards.
Grounds for Dismissal
Article 62-
(1) The court shall dismiss the enforcement request of a foreign arbitral award, if,
a) An arbitration agreement is not executed or arbitration clause is not included in the main agreement,
b) The arbitral award is contrary to public morality or public order, c) It is not possible to settle the dispute subject to the arbitral award by way of arbitration under Turkish law,
ç) One of the parties has not been duly represented before the arbitrators and has not expressly accepted the acts concluded thereafter,
d) The party against whom the enforcement of the arbitral award is requested has not been duly notified of the appointment of arbitrators or has been deprived of his/her right to make claim and defense,
e) The arbitration agreement or clause is invalid pursuant to the governing law designated by the parties, or in the absence thereof, pursuant to the law of the place where the arbitral award is rendered,
f) The appointment of the arbitrators or the procedure applied by the arbitrators violates the agreement of the parties, or in the absence thereof, the law of the country where the arbitral award is rendered,
g) The arbitral award has been rendered on an issue that is not included in the arbitration agreement or arbitration clause or exceeds the limits of the agreement or the clause (only the exceeding part),
h) The arbitral award is not final, enforceable, or binding under the governing law or the governing procedure or the law of the country where it is rendered or it is annulled by the competent authority in the place where the award is rendered.
(2) The burden of proof regarding issues addressed in clauses (ç), (d), (e), (f), (g), and (h) of paragraph one lies with the party against whom enforcement is requested. The Recognition of the
Decisions of Foreign Arbitrator
Article 63-
(1) The recognition of the decisions of foreign arbitrator is also subject to the provisions related to their enforcement.
Part III. Final Provisions Repealed Provisions
Article 64-
(1) The Act on International Private and Procedure Law No. 2675 and dated 20/5/1982,
(2) Paragraph two of article 886 of the Turkish Commercial Code No. 6762 and dated 29/6/1956,
(3) Article 88 of the Law on Intellectual Property Rights No. 5846 and dated 5/12/1951 are repealed.
Validity
Article 65-
(1) This Act shall come into force on the date of its publication.
Execution
Article 66-
(1) The Cabinet of Ministers shall execute this Act.
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