Enforcement Of Foreign Judgements In Turkey – Series No. 2
Enforcement of Russian Judgements
As we explained in our previous insight regarding enforcement of foreign judgements in Turkey (which you may access by clicking here), in order for a foreign judgement to be enforced in Turkey a judgement to that effect needs to be acquired from a Turkish court. Apparently, the same rules and procedure, that is to say, those set out under Private International Law and Procedure Act numbered 5718 (the “Act”), apply for court judgements rendered by Russian courts. Briefly these conditions are as follows:
a) The judgement must be final
b) The issue decided is not a matter falling in exclusive jurisdiction of Turkish courts
c) The foreign court had jurisdiction over the issue
d) The decision is not clearly against Turkish public order
e) Proper notification is made and the counterparty’s right to be heard is not violated.
However, in this insight, we aim to address particularities based on our real-life experience that may become relevant regarding enforcement proceedings brought in Turkey while enforcing a Russian court decision. Therefore, this paper is not going to discuss matters which do not potentially raise any specific issues in terms of enforcement of Russian court judgements.
Potential Terminological Confusion
The very first issue that may arise is the potential terminological confusion relating as to Russian Arbitrazh Court’s nature. While these courts are commercial courts in Russian Federation’s legal system it is not unusual that the name of the court is translated from Russian to Turkish as “arbitration court”. Accordingly, this may confuse Turkish judges when they see the word “arbitration” in a case brought for enforcement of a foreign court judgement. Therefore, it must be ensured that Turkish translations of the court judgement and other relevant documents use the expression “commercial court” when referring to an arbitrazh court, which would best give the real meaning as per our interpretation and experience. As enforcement of arbitration awards and foreign judgements are subject to different procedures, a possible translation mistake would be detrimental for the sake of enforcing the foreign judgement.
Finality of the Judgement
In order to acquire an enforcement decision for a foreign judgement, the judgement for which the enforcement is sought must be a final one. If the parties still have the opportunity to file appeals against the foreign judgement, such judgement will not be enforceable until the judgement is finalized.
Whether a foreign court judgement has been finalised is determined pursuant to the laws of the relevant country where the judgement is granted. In addition to that, the Act also requires a written statement to be affixed on the judgement by the relevant court confirming that is a final one. For Russian court decisions, this would be the stamp affixed on the top left corner of the first page. Again, care must be exercised on translation of this stamp so that it clearly reflects that the judgement is a final one.
Reciprocity is also an issue warranting explanation in terms of enforcement of Russian court judgements. There is not any bilateral agreement between Russia and Turkey regarding enforcement of foreign judgements. Therefore, the issue is whether there exists legal or defacto reciprocity between the Russian Federation and Turkish Republic. According to section 244, subparagraph 1 of the Russian Federation Arbitrazh Procedure Act, an arbitrazh court may refuse enforcement on the following cases;
a) If the court judgement has not been finalised,
b) If the hearing date or venue has not been properly and legally notified to the party against whom the judgement has been acquired or such party was deprived of the opportunity to present its case,
c) If the matter tried is subject to Russian Federation courts’ exclusive jurisdiction,
d) If there is a case filed between the same parties and for the same subject matter before a Russian court prior to the one for which enforcement is sought,
e) If the statute of limitation for the relevant decision has elapsed and the objection relating to such statute of limitation has not been rejected by the arbitrazh court, or
f) If the enforcement of judgement would be against Russian public policy.
Therefore, as is seen, Russian law does not introduce more stringent rules, than those of Turkish Republic, with respect to enforcement of foreign judgements. Accordingly, it must be concluded that there is legal reciprocity between Russian Federation regarding enforcement of court judgements rendered on commercial matters. We would like to note that, in the case that we recently handled, Ministry of Justice’s (“Ministry”) response to the court on the issue of reciprocity was reliant on a letter received from Moscow Embassy in 2009 stating that there is no reciprocity between Russian Federation and Republic of Turkey. The basis of this conclusion was stated as Russian Federation Civil Procedure Act section 409, although the issue of enforcement of foreign judgements is regulated under Russian Federation Arbitrazh Procedure Act section 244 and subsequent provisions. Furthermore, it is also evident that there are court decisions rendered in Turkey enforcing Russian judgements, which were rendered after 2009. The court handling our recent case, by taking these into consideration, held that there is legal reciprocity between Turkish Republic and Russian Federation.
Service of Process and Right to be Heard
Under Russian law, the court does not send each and every court document relating to the case. Pursuant to the Russian Federation Arbitrazh Procedure Act s. 121, the court will only conduct the first service of documents informing the other party that the proceedings have been initiated. Afterwards, it is the parties’ responsibility to avail themselves of the documents/notifications by using appropriate methods. If a party fails to satisfy this responsibility, it will bear the detrimental consequences that may arise therefrom. Since this is a procedural rule of Russian Law, satisfaction of the Russian procedural law suffices and the difference between the procedures of the countries, does not create an enforcement barrier in Turkey. However, in the enforcement proceedings before Turkish courts, thorough explanations should be made since this method of service of process is foreign to Turkish law.
Apart from those issues which may vary from one case to other (e.g. violation of right to be heard, subject matter contradicting Turkish public policy), Russian court decisions rendered on commercial disputes are, as a general principle, enforceable in Turkey. While enforcement of a foreign judgement in Turkey is subject to simple procedure under Turkish Law, filing and pursuing enforcement proceedings require special attention and comprehensive analysis of the party seeking enforcement of the procedural law of the country where the foreign judgement is rendered.
Ömer KESİKLİ, LLM | Kesikli Law Firm
Rüştü Mert KAŞKA, LLM | Kesikli Law Firm