Obtaining Recognition or Enforcement of a Foreign Award
Foreign arbitral awards may be enforced in Turkey either in accordance with the Convention or under the “Act on Private International Law and Procedural Law,” No:5718 of 27 November 2007 (APIL).
According to a viewpoint, a party seeking recognition or enforcement of a foreign arbitral award may rely on any of these. The Convention “shall apply to recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such award are sought” (Art.I). Therefore, arbitral awards rendered in countries that are party to the Convention are normally enforced in Turkey, as lex specialis, in accordance with this Convention (provided that there is reciprocity and the matter is commercial). Nevertheless, the party seeking enforcement of a foreign arbitral award may choose the APIL system for enforcement for a foreign arbitral award.
According to another opinion in the Turkish doctrine, arbitral awards made in countries that are parties to the Convention should be enforced in Turkey exclusively that are parties to the Convention should be forced in Turkey exclusively as prescribed by the Convention but not by APIL even though the contents of these two texts are generally similar. In other words, only arbitral awards made in countries that are not parties to the Convention can be recognized and enforced in Turkey under APIL.
Articles 60-63 of APIL have been adopted from the Convention with some amendments. The important difference between the Convention and APIL concerns the determination of the “foreign element” of an award. As stated above in 1.3.2, “this Convention shall apply to recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such award are sought” (Article I). The Convention accepts “the principle of territoriality”. In Turkish law, the determination of the “foreign” nature of an award has been left to the discretion of the courts and doctrine. In summary, the foreign nature of an arbitral award should be determined in accordance with (i) the principle of territoriality; (ii) the nationality of the parties; (iii) the national procedural law applied to the arbitration; or (iv) a combination of the territoriality principle with national procedural law under which the arbitration was carried out.
Under APIL, enforcement of a foreign arbitral award has two prerequisites. First, there must be “reciprocity”. Second, the award must be final and binding on the parties (Article 60 (1) ).
Other formal requirements laid down by APIL are as follows:
- The party seeking enforcement of the award must apply to a court through a petition for an “enforcement order”. The court that has jurisdiction in this matter is the court determined by the parties. If such agreement has not been made, the forum is the court of the domicile of the party against whom the enforcement is sought (Article 60 (2)).
- The party seeking enforcement is required to produce to the court:
(İ) the original arbitration agreement or clause or a duly certified copy thereof;
(ii)the duly authenticated original award or a duly certified copy thereof, and
(iii)the duly authenticated Turkish translations of these documents must be added to the request (Article 61).
Enforcement of a foreign arbitral award is denied ex officio in the case of
- The non-existence of an arbitration agreement or of an agreement that contains an arbitration clause (APIL Article 62/1-a;
- An award being contrary to public policy or good morals (Article 62/1-b); or
- An award that is on a subject matter which is not capable of settlement by arbitration in Turkish law (Article 62/1-c).
There are also grounds that may be raised by the person against whom the award is to be enforced. The award may be denied enforcement if the party resisting enforcement proves:
- That he has not duly represented before the arbitral tribunal and has not later expressly accepted the procedural acts made in the course of arbitration proceedings (APIL Article 62/1-ç);
- That he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case (APIL Article 62/1-d).
- The arbitration agreement was not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made (APIL Article 62/1-e);
- That the composition of the arbitral tribunal or the arbitral procedure the arbitrators applied was not in accordance with the agreement of the parties, or if there was no such agreement, not in accordance with the law of the country where the arbitral award was made (APIL Article 72/1f);
- That the award deals with (i) a dispute not contemplated by or not falling within the terms of the submission to arbitration or, (ii) it contains decisions on matters beyond the scope of the submission to arbitration;
- That the award has not yet become binding or enforceable on parties under the law to which the parties subjected it or under the law of which the award was made.