Litigation and enforcement in Turkey: overview

A Q&A guide to dispute resolution law in Turkey.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

This Q&A is part of the multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.

Ayşe Hergüner Bilgen, Hamdi Tolga Danışman and Şule Uluç, Hergüner Bilgen Özeke Attorney Partnership
Contents

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to settle large commercial disputes?

Litigation in state courts is the main dispute resolution method to resolve large commercial disputes. The principal legislation regulating civil litigation comprises primarily the:

  • Civil Procedural Code (No. 6100) that entered into force on 1 October 2011 (CPC).

  • Turkish Code of Obligations (No. 6098) that entered into force on 1 July 2012 (TCO).

  • Turkish Commercial Code (No. 6102) that entered into force on 1 July 2012 (TCC).

The Turkish legal system is broadly inquisitorial. Each claim must be proved with sufficient and convincing evidence. Under the CPC, monetary claims above a certain threshold (TL2,500) must be proven by deeds.

 

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?

Under the TCO, the general limitation period for bringing a claim is ten years unless a different limitation period is specified by law. This period starts on the due date of the obligation or on the date when the claimant becomes aware of the relevant obligation.

A five-year limitation period applies in relation to the following matters (TCO):

  • Lease payment claims.

  • Claims for interest on principal.

  • Contribution payments.

  • Accommodation and dining costs in hotels, motels, and so on.

  • Claims arising from craft works and retail sales.

  • Claims between shareholders of a company.

  • Claims of shareholders against a company.

  • Claims between shareholders or the company and its managers, directors, representatives and auditors.

  • Disputes arising from commission, agency and brokerage contracts.

  • Disputes arising from work contracts, except for claims arising from malperformance or non-performance of the contractor due to his gross negligence.

  • Claims regarding wages.

Tort claims are subject to a two-year limitation period starting from the moment when the relevant party becomes aware of the damage, the tortious act and the offender. In any event, a claim is barred after ten years from the date of the breach/tortuous act.

 

Court structure

3. What is the structure of the court where large commercial disputes are usually brought? Are certain types of dispute allocated to particular divisions of this court?

The first instance civil courts comprise:

  • Civil Courts Of First Instance.

  • Civil Peace Courts.

The civil courts of first instance comprise a number of specialised courts, such as:

  • Commercial Courts.

  • Labour Courts.

  • Courts Of Intellectual And Industrial Property Rights.

  • Maritime Courts.

  • Land Register Courts.

  • Consumer Courts.

  • Courts of Enforcement.

  • Bankruptcy Courts.

  • Family Courts.

Specialised courts do not exist in every city in Turkey. In cities where no such courts exist, all disputes are settled in the Civil Courts of First Instance.

Currently the Court of Appeals is the only civil appellate body. The CPC provides for Appellate Regional Courts but these are not yet operational (see Question 20).

The Court of Appeals' decisions are not binding on the local courts; rather they have a guiding effect. However, rulings of the Joint Chamber of the Court of Appeals, the highest court of appeal, are binding on the local courts.

The answers to the following questions relate to procedures that apply in first instance civil courts.

 

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/ requirements

To conduct cases in courts, lawyers must hold an advocacy licence (Turkish Advocacy Code (No. 1136), dated 19 March 1969 (TAC)). To obtain an advocacy licence, the following requirements must be met:

  • Turkish citizenship.

  • Graduation from a Turkish law school (or the equivalent, in the event of graduation from a law school in a foreign country).

  • Completion of the legal internship.

  • Residence in the region of the bar association being applied to.

  • Absence of any obstacles as stated in the TAC.

Foreign lawyers

Foreign lawyers cannot conduct cases in Turkish courts.

 

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?

There are essentially four types of legal fee structures that can be used, namely:

  • Contingency fees.

  • Fixed/capped fees.

  • Hourly rates.

  • Blended arrangement.

The TAC sets a fixed legal fee structure under which the minimum fee tariff that the Union of the Turkish Bar Associations determines annually is taken as a reference. While the lawyers often charge higher fees, the unsuccessful party only needs to reimburse the successful party for its legal fees according to this tariff.

Currently, the maximum limit for the legal fees is approximately 25% of the claim amount (Article 164, TAC).

 
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

Litigation is funded by the claimant. If the claim is successful, the claimant's costs are reimbursed by the defendant at the end of the proceedings (see Question 22). Under the CPC, the sum to be versed by each party must be indicated in the verdict. Third party funding is also possible.

Insurance

Legal aid insurance is available under the Turkish legal system. However, commercial disputes are not covered by this type of insurance according to the General Conditions of Legal Protection Insurance issued by The Undersecretariat of Treasury. The local insurance companies provide legal aid insurance for certain types of disputes.

 

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?

Proceedings are principally public (CPC). Proceedings may be kept confidential, whether on demand or ex officio on the grounds of public morality or public security.

Registered attorneys can review both public and confidential court files (Articles 35 and 46, TAC). To take a copy of documents from a case file, a power of attorney given by a party to the case is required. Parties, their attorneys, intervening parties and related individuals can examine the court files only under the surveillance of the court clerk. For the examination of confidential court files, prior approval of the judge is required.

 

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?

The concept of pre-action conduct does not exist in Turkey.

 

Main stages

9. What are the main stages of typical court proceedings?

The following are the main stages of typical court proceedings:

  • Exchange of petitions.

  • Preliminary investigation.

  • Court hearing.

  • Court investigation.

  • Court decision.

  • Appeal (if any).

Total or partial settlement of the case is also possible by mutual agreement of the parties before or during proceedings. A settlement agreement of the parties recorded in the minutes by the court terminates the litigation process and is binding and enforceable as a court judgment.

Starting proceedings

The starting date of the proceedings is the registration date of the statement of claim. The statement of claim must contain the following information (CPC):

  • The name of the competent court.

  • Names and addresses of the parties.

  • Turkish ID number of the claimant (passport number for foreign claimants).

  • Names and addresses of the attorneys, if any.

  • The subject matter of the dispute.

  • Material facts which constitute the basis of the claim.

  • Evidence, if any.

  • Legal grounds.

  • Relief sought.

  • Signature of the claimant or his attorney.

Notice to the defendant and defence

Following the submission of the statement of claim to the court, the court serves it on the defendant with a notice that a defence must be submitted within two weeks. The defendant can request an extension of the deadline for up to one month. A statement of defence must contain the same information required for a statement of claim (see above, Starting proceedings). Additionally, any preliminary objections must be included in the statement of defence. Preliminary objections are not taken into consideration if they are presented at a later time.

Subsequent stages

The claimant must submit a rebuttal within two weeks starting from the service of the statement of defence. The defendant, similarly, submits a rejoinder within two weeks starting from the service of the rebuttal, thereby concluding the exchange of petitions stage.

The next stage is the preliminary investigation, whereby the court:

  • Determines the issues in dispute.

  • Evaluates the submitted evidence (see Question 16).

  • Requests further evidence if deemed necessary.

  • Grants to the parties an opportunity to settle the case.

At the next stage (investigation stage), the court investigates whether the claims of both parties correspond to the material facts and evidence. Once the court declares that all the required evidence is in the court file, the process is finalised and the decision is rendered.

For information on appeals, see Question 20.

 

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what grounds must such a claim be brought? What is the applicable procedure?

A case cannot be dismissed before a full trial, subject to the following:

  • If the claim has been time-barred the claimant will lose its right to file the case.

  • If the court lacks jurisdiction and neither party requests the court which has declared the lack of jurisdiction to transfer the file to a competent court, the case will be deemed as not filed at all.

  • Certain party behaviour (for example, waiver, and acknowledgement of the claim or settlement) may end the case before a full trial.

Additionally, if a party, duly invited to a hearing, does not attend the hearing, and the attending party declares that it will no longer follow the proceedings, the case will be removed from the court's schedule. In such circumstances, the claimant can re-file the case on payment of court fees. This action is called renovation. Unless the claimant renews its claim, the case will be deemed as not filed at all.

 
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?

A defendant can request the court to order the claimant to provide security for its litigation costs in the following circumstances:

  • The claimant is a foreign person.

  • The claimant is in a financial difficulty.

According to the International Private and Procedural Law (No. 5718) dated 27 November 2007 (IPPL), if a foreign person executes proceedings or participates in them, a guarantee must be determined by the court to cover damages of the other party and proceeding expenses. However, the party will be exempted from this requirement if:

  • There is any international multilateral agreement signed by both Turkey and the country of the party's origin.

  • There is a bilateral agreement between Turkey and the country of the party's origin or reciprocity.

  • Turkish citizens are exempted from providing security by the country of the party's origin.

 
12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

An interim injunction may be granted if there is a risk that a change in the present status will make the protection of a right very difficult or impossible, and/or, that serious damage is likely to occur due to any delay in taking action.

The claimant must submit satisfactory evidence proving the existence of the above mentioned conditions and the legal grounds on which the claim is based.

The party applying for an interim injunction must provide a security deposit in order to pay for any damage sustained by the other party or third parties if the request for preliminary injunction is found to be unjust.

Prior notice/same-day

Where the applicant's rights must be protected without any delay, the judge may grant an interim injunction without prior notice to the defendant. An interim injunction may also be granted on the same day if urgency is proven. However, judges have the tendency to examine requests in detail, to notify the defendant, and to hold a hearing before granting an interim injunction.

Mandatory injunctions

Mandatory injunctions are also available.

Rights of appeal

A party against whom an interim order has been granted without its testimony can object within one week as of the service of the order. In addition, a party may object to an interim order within one week as of its implementation, on the grounds of either:

  • The absence of pre-conditions for an interim decision.

  • The court lacked competence.

  • Security deposit was not provided.

Third parties can object to interim orders if their interests have been significantly jeopardised within one week as of the date of becoming aware of the order.

 
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

Availability and grounds

An interim attachment order may be granted in relation to pecuniary debts (due and undue), provided that they are not secured by a pledge. A creditor must submit satisfactory evidence to prove the due debt. An interim attachment for undue debts can be requested only when:

  • The debtor has no fixed residence.

  • The debtor prepares to abscond and/or conceal its assets with a view to avoiding its obligations towards the creditor.

  • The debtor absconds or acts in a manner that breaches the creditor's rights.

Prior notice/same-day

Depending on the circumstances of the case, the court may order an interim attachment with or without prior notice to the defendant. The debtor is not notified if the court considers that the notification would hinder the purpose of the interim attachment. The urgency of the matter should be proven by sufficient evidence for same-day orders.

Main proceedings

Under the TCC, in the event of a substantive proceeding concerning maritime debts taking place in another country, an interim attachment can be granted prior to the definitive judgment.

Preferential right or lien

Interim attachment does not create a lien or a preferential right.

Damages as a result

The party who makes a motion for a preliminary attachment is liable for damages sustained by the other party or third parties, in case its request is determined to be unjust.

Security

If the debt is based on a court order, security is not required. However, if the debt arises from a document without the force of a court order, the court determines whether or not the claimant should provide security.

 
14. Are any other interim remedies commonly available and obtained?

No other interim remedy is commonly available under the Turkish legal system.

 

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can they also be punitive?

Under the TCO, different types of remedies are available on a request of the claimant. Available remedies include:

  • Pecuniary damages (most common).

  • Non-pecuniary damages.

  • Announcement of the verdict in newspapers.

  • Rescission of a contract.

  • Performance of a contract.

  • Cancellation of a transaction.

  • Invalidation of a registered right.

In principle, damages are compensatory and cannot be punitive.

 

Evidence

Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

The full disclosure principle is not applicable in Turkey. A party only submits the documents that are in its possession and that it considers important to prove its claims, and notifies the court of evidence to be requested from other parties/institutions. The law does not specify the types of document that should be disclosed. Hence, non-disclosure of documents is not penalised. Nevertheless, the court may order submission of supplementary documents for clarification purposes.

The parties must provide all evidence at the preliminary investigation stage, within the period prescribed by the court (see Question 9). In principle, submission of evidence is not permitted after the preliminary investigation stage, unless it is impossible to obtain the evidence in due time or in case of an excusable unawareness of the evidence.

 

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

The TAC prohibits a lawyer to disclose documents and information obtained in the course of professional activity. This principle cannot be breached, even under a court order. The law and doctrine are silent as to in-house counsel.

The without prejudice principle also applies; therefore, no admission or information obtained during settlement negotiations can be used as evidence.

Other non-disclosure situations

The parties must refrain from disclosing trade secrets.

 

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

The CPC requires factual witnesses to give oral evidence. Although not practically applicable, the judge also has the right to send a witness a written questionnaire that must be responded to in writing.

Right to cross-examine

Witnesses can be cross-examined at the disclosure stage, but the parties or their attorneys can direct their questions only to the judge for him to direct those questions to the witness.

 

Third party experts

19. What are the rules in relation to third party experts?

Appointment procedure

Either at the parties' request or ex officio, the court can appoint a third party expert from the annual list prepared by the regional judicial commission in cases that require non-judicial, specific knowledge and technical examination. Third party experts cannot be appointed to give opinions on legal matters. The parties are not allowed to appoint an expert, although they can submit private expert reports as supplementary evidence.

Role of experts

Expert reports are deemed as discretionary evidence. Appointing third party experts is not mandatory and expert reports are not binding.

The expert has the duty to:

  • Assist at the court hearing he has been duly notified of.

  • Take oath.

  • Provide his remarks.

  • Submit his report.

An expert must prepare a report within the strictly defined scope as determined by the court. The report is of an objective character and must be impartial.

Right of reply

Parties have the right to object to an expert report within two weeks of the notification of that report, and can request:

  • Completion of the report, should there be outstanding issues.

  • Clarification of any ambiguous issues.

  • An appointment of a new expert.

The court may:

  • Ask for an additional report by presenting new questions.

  • Invite the expert to a hearing for oral explanation.

  • Appoint a new expert for a new examination.

It is possible to cross-examine expert witnesses and expert witnesses must assist the court at the court hearing if they are requested to do so.

Fees

The court determines, ex officio, the party who will pay the expert's fees. The expert's fee is based upon the annual tariff declared by the Ministry of Justice. The fees include remuneration and examination, transportation, accommodation and other costs. If such amount is not paid in due time, the Treasury pays the fees without prejudice to its right to seek recourse.

 

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

Any party who has a legal interest can apply to the Court of Appeals for re-investigation of a first instance court decision.

The monetary value of the subject matter of the underlying dispute must be:

  • At least TL1,820.

  • If hearing is requested, TL18,560.

The Court of Appeals' decisions can be challenged under the following circumstances. This is referred to as the revision of the decision.

See Question 3 in relation to the Appellate Regional Courts that are envisaged under the CPC.

Grounds for appeal

A decision can be appealed before the Court of Appeals based on the following grounds:

  • Incorrect application of the law or contract between the parties.

  • Non-compliance with the preliminary conditions to file a case.

  • Dismissal of evidence on which any party relies to prove its case.

  • Procedural errors or deficiencies that affect the decision.

The Court of Appeals' decision can be appealed on the following grounds:

  • The appellant's timely objections have not been taken into consideration.

  • The decision is contrary to the law or contains contradictory statements.

  • Forgery of the evidence that forms the basis of the case.

The Court of Appeals assesses the compliance of the decision of the lower court with procedural rules and the law. The Court of Appeals does not reconsider the factual aspects or the merits of the case.

Following its assessment, the Court of Appeals may:

  • Overrule the decision of lower court.

  • Dismiss the appeal and confirm the decision of the lower court.

  • Partially approve the lower court decision subject to certain changes and corrections.

After the appeal process, the possibility of further action is very limited. A party can challenge final court decisions and apply for a new trial only in exceptional circumstances that are exhaustively set out under the CPC.

Time limit

A first instance decision must be appealed within the following period from the date of service (CPC):

  • 15 days, for the Court of First Instance decisions.

  • 8 days, for the Court of Peace decisions.

However, if a specific statutory time limit is set out, it will override the above. For example, the time limit to appeal labour law cases is eight days from the service (Labour Courts Code).

Until the Appellate Regional Courts are established, the provisions of the former CPC regarding the appeal process apply.

 

Class actions

21. Are there any mechanisms available for collective redress or class actions?

While multi-party litigation was previously allowed under Turkish law, the CPC has introduced the "collective action", which is probably the closest concept to a class action in Turkey. Under the CPC, associations or all other legal entities can file a case on behalf of their members or persons that they represent in order to:

  • Determine the rights of those concerned.

  • Prevent a violation of future rights of those concerned.

  • Remedy a status that is not in compliance with the law.

In a general sense, a collective action does not employ an opt-in mechanism. In certain circumstances (such as consumer law disputes), the claim is brought on the opt-out basis.

There is no specific provision regarding the funding of collective actions.

 

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?

The unsuccessful party must pay the successful party's costs at the end of the trial. If there is more than one unsuccessful party, the court may, ex officio, apportion the costs, or declare them jointly responsible.

Litigation costs include the following, among others:

  • Hearing fees.

  • Notification fees.

  • Expert and witnesses' fees.

  • Fees, charges, taxes and expenses regarding the documents obtained from governmental authorities.

  • Accommodation and transportation fees, daily allowances, and expenses determined by the court and incurred by the parties who attend the court proceedings, even if they are represented by attorneys.

  • Attorney fees (see Question 5).

  • Other expenses incurred during the court proceedings.

 
23. Is interest awarded on costs? If yes, how is it calculated?

Legal interest as determined by the Central Bank of Republic of Turkey is awarded on costs.

 

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?

If a party does not comply with the court order, the claimant can apply to the Enforcement Office to enforce the court order.

The defendant must take the necessary steps to comply with the court order within seven days of being served the order. If the defendant fails to do so, the claimant can apply for the attachment of defendant's assets (see Question 13).

 

Cross-border litigation

25. Do local courts respect the choice of governing law in a contract? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

The choice of law of the parties to a dispute arising out of a contractual relationship involving a foreign element must be respected (Article 24, IPPL). The choice of law must be clear and explicit. If the court cannot determine the applicable law despite research, Turkish law may apply.

Contracts related to real estate are governed by the law of the country where property is situated. Due to the underlying objective of the Turkish law to protect the weaker party, courts may disregard the choice of law in employment, consumer, insurance and lease contracts. In some cases local courts may apply Turkish law to the contract despite the choice of foreign law if the application of foreign law is explicitly incompatible with public order.

 
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?

Parties can freely choose jurisdiction in disputes with a foreign element that arise from a private law relationship. There are some requirements for local courts to respect the choice of jurisdiction.

In cases where Turkish courts have exclusive jurisdiction (for example, employment law, insurance law and consumer law disputes), the choice of jurisdiction is not allowed. The Turkish courts may also assume jurisdiction if:

  • The competent foreign court decides that it is incompetent for some reason.

  • The respondent fails to object to the jurisdiction of the Turkish court.

 
27. If a foreign party obtains permission from its local courts to serve proceedings on a party in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your jurisdiction party to any international agreements affecting this process?

Turkey is party to the:

  • HCCH Convention of Civil Procedure 1954.

  • HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention).

Service of process in Turkey is therefore regulated by these Conventions.

Under the 1954 Convention, each contracting state designates a central authority that shall receive service of process requests emanating from other contracting states. Turkey has designated the General Directorate of Civil Affairs of the Ministry of Justice in Ankara as its central authority.

Service from a foreign jurisdiction to a party in Turkey will be issued by the Public Prosecutor via the Post Office Department. In case Turkish translation of the service is not provided, service will be issued if the addressee explicitly accepts the service.

 
28. What is the procedure to take evidence from a witness in your jurisdiction for use in proceedings in another jurisdiction? Is your jurisdiction party to an international convention on this issue?

Turkey is a party to the:

  • HCCH Convention of Civil Procedure 1954.

  • HCCH Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 (Hague Evidence Convention).

The Hague Evidence Convention allows for collection of evidence in Turkey by local courts and authorities in aid of foreign legal proceedings, pending or future, before a court of another contracting state. In the presence of a bilateral agreement between Turkey and the foreign country in question, the provisions of that agreement take precedence.

If the request comes from a country that is not party to the Hague Evidence Convention, nor has concluded a bilateral treaty with Turkey, the principle of reciprocity applies and the procedure to take evidence from the witness is governed by the international legal assistance rules.

 

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?

Final foreign judgements can be enforced in Turkey in accordance with the terms of multilateral or bilateral treaties or, in the absence of those, under the IPPL. Turkey is also party to the:

  • HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971.

  • Washington Convention on the Settlement of Investment Disputes (1965).

For the execution of a foreign judgment in Turkey, an enforcement decision rendered by a competent Turkish court is required. A foreign judgment must fulfil certain requirements for a Turkish court to render an enforcement decision without a review of its merits (Article 50, IPPL). Under Article 54 of the IPPL, a judgment rendered by a foreign court will be enforced by the Turkish courts if the following conditions are satisfied:

  • There must be de facto or de jure reciprocity between Turkey and the relevant country.

  • The subject matter of the judgment must not fall under the exclusive jurisdiction of Turkish courts.

  • The judgment must not be clearly contrary to Turkish public policy.

  • The judgment must have become final and binding with no recourse to appeal or similar review proceedings under the laws of the relevant foreign country.

  • Due process must have been observed. The right of defence of the party against whom the enforcement is sought must be respected by the foreign judgment. As such, the party against whom the enforcement is sought must have been duly served or made fully aware of the proceedings, and given the full opportunity to defend itself.

The public policy rule, in particular, is quite vague and difficult to define. Turkish courts tend to interpret foreign judgments by considering the possible legal, economic and social implications of their enforcement in Turkey. Both the legal grounds and the factual grounds of the foreign judgment are of significance. While Turkish courts cannot re-evaluate the legal and factual grounds, they seek a clear connection between the foreign judgment and the facts upon which such judgment is based.

Turkey is a contracting party to bilateral agreements with many countries including but not limited to Italy, Romania, Tunisia, China, Macedonia, Egypt, and Poland. These agreements set out certain provisions regulating enforcement of judgments based on the principle of reciprocity.

Judgments rendered in the US and in UK are enforceable in Turkey on the basis of de facto reciprocity between Turkey and these countries. Due to differences in state laws in the US, enforcement of a US judgment depends on the subject matter of the dispute and the state where the judgment was issued.

 

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Is ADR used more in certain industries? What proportion of large commercial disputes is settled through ADR?

The main ADR method in Turkish jurisdiction is arbitration. All other methods of ADR (such as mediation, conciliation, mini-trial, referee and expert determination) are rare. Domestic arbitration is governed by the CPC, while International Arbitration Law (No. 4686) dated 21 June 2001 governs arbitrations:

  • In Turkey but involving a foreign element.

  • Outside of Turkey, if the parties have subjected the arbitration to The International Arbitration Act under the contract.

International arbitration is predominantly chosen in construction, energy and infrastructure disputes.

Disputes with respect to rights in rem in immovable property and disputes which concern matters of public order (for example, tax disputes) are not arbitrable.

The Code of Mediation in Legal Disputes (No. 6325) dated 07 June 2012 introduced mediation, available for the resolution of private law conflicts, including those having a foreign element. In mediation, contracting parties voluntarily consult an impartial mediator to help them resolve their dispute, subject to procedures and principles accepted by both parties. The mediator's role is to encourage an amicable settlement by facilitating communication between the parties.

 
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can courts compel the use of ADR?

ADR does not form part of court procedures and applies only if the parties voluntarily agree to settle a dispute through ADR methods. The courts do, however, encourage parties to resolve their disputes through settlement.

 
32. How is evidence given in ADR? Can documents produced or admissions made during (or for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR confidential?

Both in local and international arbitrations, the parties are free to choose the procedural rules in relation to evidence, unless such rules are contrary to the mandatory provisions of the CPC or the International Arbitration Law, respectively.

Both in local and international arbitrations, the parties can seek the assistance of the Turkish courts with the collection of evidence on the approval of the arbitral tribunal.

The CPC and the International Arbitration Law include no specific provision about confidentiality. Therefore, the parties can freely provide for confidentiality. In civil proceedings, provisions related to confidentiality under the CPC apply.

 
33. How are costs dealt with in ADR?

Under the CPC, unless the parties agree otherwise, arbitrator fees will be determined by the arbitrator(s) and the parties taking into consideration the amount in dispute, the nature of the dispute, and the length of the arbitration proceedings. Unless the parties agree otherwise, arbitration expenses will be borne by the party against whom the award has been rendered. If both parties are found to be partially right, the expenses are proportionally borne by both parties.

In addition, the arbitrator or arbitral tribunal may request an advance payment of arbitration expenses to be equally paid by the parties unless the parties agree otherwise. Accordingly, if such payment is not made within one month, the arbitrator(s) can terminate the proceedings.

 
34. What are the main bodies that offer ADR services in your jurisdiction?

The most prominent bodies that offer arbitration services are the:

  • Turkish Union of Chambers and Commodity Exchanges Court of Arbitration, which provides arbitration services in commercial disputes (info@tobb.org.tr).

  • Istanbul Chamber of Commerce Arbitration Institution, which provides arbitration services in commercial disputes (ito@ito.org.tr).

 

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come into force?

Turkey is contributing to the UNCITRAL Online Dispute Resolution (ODR) project via Bilgi University Institute of Technology and Information.

The Law on Mediation in Civil Disputes came into force recently (see Question 30).

 

Online resources

W www.mevzuat.gov.tr

Description. Official and up-to-date website of the General Directorate of Legislation Development and Publication. The International Arbitration Code of Turkey and International Private and Procedural Law of Turkey can be obtained. Only Turkish versions are available.

W http://www.istanbulbarosu.org.tr

Description. Official and up-to-date website of the Istanbul Bar Association.

W http://www.resmigazete.gov.tr

Description. The Official Gazette of the Republic of Turkey. Legislation in Turkish can be obtained (including the Code of Obligations and the Civil Procedural Code).



Contributor profiles

Ayşe Hergüner Bilgen, Partner, Head of the Litigation Practice

Hergüner Bilgen Özeke Attorney Partnership

T +90 212 310 18 00
F +90 212 310 18 99
E abilgen@herguner.av.tr
W www.herguner.av.tr

Professional qualifications. Turkey

Areas of practice. Commercial, criminal and administrative disputes including, among others, post-privatisation issues, execution and bankruptcy proceedings, post-transactional issues, consumer, labour and tax disputes.

Hamdi Tolga Danışman, Partner, Real Estate Practice and Litigation Practice

Hergüner Bilgen Özeke Attorney Partnership

T +90 212 310 18 00
F +90 212 310 18 99
E tdanisman@herguner.av.tr
W www.herguner.av.tr

Professional qualifications. Turkey

Areas of practice. Commercial and criminal disputes; investment and consumer claims.

Recent transactions

  • Major real estate deals in Turkey, advising international investors.
  • Advised and represented several multinational companies in connection with cases arising from commercial and criminal disputes, investment and consumer claims.

Şule Uluç, Associate

Hergüner Bilgen Özeke Attorney Partnership

T +90 212 310 18 00
F +90 212 310 18 99
E suluc@herguner.av.tr
W www.herguner.av.tr

Professional qualifications. Turkey

Areas of practice. Commercial and labour law disputes; international and commercial arbitration.


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