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 global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.
Main dispute resolution methods
The main and most commonly used method for resolving large commercial disputes in Turkey is litigation.
The Civil Procedural Code No. 6100 (CPC) (which replaced the Code of Civil Procedure No. 1086 (CCP) on 1 October 2011) is the primary legislation governing civil disputes. In addition the following legislation is also relevant to more specific civil disputes:
Turkish Commercial Code.
Code of Labour Courts.
Enforcement and Bankruptcy Code.
International Arbitration Code.
According to the CPC, the determination of the facts and collection of evidence is the responsibility of the parties to a dispute. The courts are responsible for managing and structuring the progress of a dispute and therefore will:
Determine the order of evidence.
Request additional evidence if required.
Direct additional questions to witnesses and/or experts.
Alternative dispute resolution (such as arbitration and mediation) is also available in Turkey. The main legislation governing international arbitration is the International Arbitration Code No. 4686, which is essentially based on the UNCITRAL Model Law. Domestic arbitration is governed by the CPC. The main legislation governing mediation is the Mediation in Civil Disputes Code No. 6325. Both arbitration and mediation are also governed by the Istanbul Arbitration Centre Arbitration and Mediation Rules, which came into force on 26 October 2015.
The general limitation period is ten years, which applies where the law does not provide a specific limitation period (Code of Obligations).
However, the statute of limitation is five years for some claims, such as claims relating to the following:
Professional negligence claims.
Commission and brokerage agreements (except commercial brokerage).
Dispute between a company or its shareholders (arising out of a shareholders' agreement) and its managers.
Against personal representatives.
Accommodation fees in hotels.
Catering costs in restaurants and similar places.
Minor artwork and small-scale retail sales.
Works contracts, except claims that arise out of improper performance or non-performance due to a contractor's gross misconduct.
The statute of limitation for tort claims is two years from the date on which the claimant becomes aware of the tortious act, damage and the person committing it, (as long as it is discovered within ten years). In cases where a tortious act also gives rise to a crime the limitation period for the relevant crime will be taken into account.
The (civil) peace courts and civil courts of first instance are the main courts of first instance. There are other specialised courts such as:
Courts for intellectual and industrial property rights.
Land registry courts.
The enforcement courts also handle cases in connection with enforcement proceedings.
With regard to the appeals process, the Civil Procedural Code No. 6100 (CPC) introduced the following three-tier court system:
First instance courts.
Regional appellate courts.
Court of appeal.
The regional appellate courts were established on 20 July 2016 and started to operate in several cities, such as İstanbul, Ankara, İzmir, Antalya, Erzurum, Gaziantep and Samsun. For decisions rendered before 20 July 2016, the former two-tier system will continue to be applied until these decisions are finalised.
The answers to the following questions relate to procedures that apply in the first instance courts.
Rights of audience
Rights of audience/requirements
Only Turkish nationals who have graduated from a law school and who are also members of the Turkish Bar Association can represent clients in Turkish courts (Advocacy Code). In addition, a party can represent itself in court proceedings including court hearings. An authorised representative of a legal entity can represent the legal entity.
Foreign lawyers cannot represent their clients before the Turkish courts and execution offices (Advocacy Code).
Fees and funding
The Turkish Bar Association (TBA) determines and publishes the minimum rates every year. Currently the maximum limit for legal fees is 25% of the claimed amount.
Legal fee structures can include hourly rates and task-based billing if agreed by the parties. Contingency fees are not permitted under Turkish Law. However, conditional fees can be agreed on, provided that the agreed fee for the lawyer is not lower than the rates specified in the TBA's minimum fee tariff.
Litigation is funded by the claimant. Third-party litigation funding is not common. The claimant whose case is accepted by the court is reimbursed by the defendant for official costs (such as notification and expert fees) at the end of the proceedings. Also, if a defendant is successful at trial, the official costs will be reimbursed by the claimant.
Legal protection insurance is available under Turkish law. However, according to the general conditions prepared by the Treasury, commercial disputes are not covered by this insurance.
In principle, court proceedings are open to the public. In exceptional cases, the court can order hearings to be held in private for public morality and/or public security reasons.
Parties and their lawyers can examine the court files and make copies of the documents filed. In addition, lawyers admitted to the Turkish Bar Association can examine court files but cannot make copies.
The two types of procedures for civil proceedings are the written procedure and the simple procedure.The written procedure is the main procedure, where the usual cycle of submissions (such as claim, response, rebuttal and rejoinder) can be filed by the parties. In the simple procedure (a simplified version of the written procedure) , only the claim and response petitions can be filed by the parties and no further exchange of petitions can be carried out. Commercial disputes are subject to the written procedure and the simple procedure can be used for disputes such as labour disputes.
The main stages of the civil proceedings are as follows:
Exchange of petitions.
Appeal (if required).
There are no prescribed time limits for the main stages. However, there are time limits for certain actions such as responding to petitions and so on (which must be done within two weeks). In addition, parties must submit objections to an expert report or appeal a final decision within two weeks.
Parties have the right to a fair trial. Therefore, parties can apply to the Constitution Court to request compensation on the basis that their fair trial right was breached by the Turkish courts due to a long litigation process.
A court claim is commenced when the claimant submits its claim petition to the competent court. The date of the court case is deemed the date on which the claim petition is registered in the court file. The claim petition must contain certain elements such as the:
Name of the competent court.
Names and addresses of the parties.
Turkish ID number of the claimant and passport numbers of non-Turkish claimants.
Names and addresses of the attorneys, if any.
Subject matter of the claim and claim amount.
Summary of the material facts.
Explanatory notes in relation to evidence, if any.
Precise explanation of the claim.
Signature of the claimant, or his attorney.
Notice to the defendant and defence
Once the claim petition is submitted to the court, the court will issue the opening minutes and serve the petition on the defendant. Following service, the defendant has two weeks to submit its response petition to the court. The defendant can request an extension of up to one month if following the written procedure and up to two weeks if following the simple procedure.
The response petition must comprise the same elements that are required for the claim petition. If the defendant has any preliminary objections (such as jurisdiction) it must include these objections in its response petition.
In the written procedure, the parties can file the following:
However, in the simple procedure, only claim and response petitions can be filed by the parties.
After the exchange of petitions, the subsequent stages are as follows:
Preliminary investigation stage where the court:
determines the disputed matters of the case;
evaluates the preliminary objections of the parties;
takes necessary actions for the collection and submission of evidence; and
invites parties to settle.
Examination stage where the court investigates whether the claims raised by both parties correspond with the material facts and evidence during this stage. The court can:
conduct on-site examinations; and
appoint experts (if required).
Issue of the decision, which is made after hearing the final statements of the parties in the oral proceedings stage.
Appeal, if requested by one of the parties.
The defendant can apply to the court for an order for the claimant to provide security for the litigation costs provided that:
The claimant is a Turkish citizen who does not have his habitual residence in Turkey.
The defendant can provide evidence of the claimant's financial difficulty (such as insolvency or restructuring proceedings).
In addition, foreign claimants can provide security for costs and damages, unless there is a contractual, de facto or legal reciprocity, which enables Turkish claimants to file lawsuits in the state of which the foreign claimant is a national, without providing security.
Availability and grounds
The court can grant an interim injunction if either:
It would be significantly difficult and/or impossible for the claimant to enforce its rights in the future due to any change in the present status.
Severe damage and/or inconvenience are likely to occur due to the delay.
To apply for an interim injunction the claimant must file a petition at court, which states the type of claim and the grounds relied on. It must also provide satisfactory evidence to prove that its claim is based on just grounds. The judge can order the claimant to provide security in an amount the court considers proper to account for the damage that may be caused to the defendant.
The court can grant an interim injunction without giving prior notice to the defendant or holding a trial, if the claimant's rights must be protected without any delay.
The court can grant an interim injunction on the same day, provided the claimant proves that its claim is based on just grounds and provides evidence of the urgency of this matter. However, for large commercial disputes, the judges generally prefer to examine the case file in detail, to notify the defendant of the request and hold a hearing to hear their defence.
An interim injunction can be granted, to compel a party to do something (mandatory injunctions) and to stop it from doing something (prohibitory injunctions).
Right to vary or discharge order and appeals
If a party attends the hearing on the injunction, he has one week from the execution date to object to the:
Conditions of a preliminary injunction.
Guarantee deposited to the court.
If the injunction is ordered without a hearing, the parties must object within one week of the service of the injunction order. Third parties whose interests are explicitly violated can also object to the conditions of the preliminary injunction or to the guarantee deposited to the court within the same time frame. Decisions rendered after the examination of the objection can also be appealed. The appeal is examined primarily, however, it does not suspend the execution of the injunction. Decisions rendered following the appeal examination are final.
Availability and grounds
An interim attachment order can be granted for due and/or non-due debts, which are not secured by a pledge. If the debt is due and payable, the claimant must prove that there is a due debt by submitting the relevant documents (such as invoices and written statements of the debtor).
To obtain a precautionary attachment order for undue debts, the creditor must prove that the debtor either:
Does not have a certain residence.
Is preparing to conceal and transfer its assets or flee the jurisdiction.
In practice, the courts will grant an interim attachment order if the debt is evidenced by a negotiable instrument such as checks or promissory notes.
The court can award an interim attachment order without prior notice to the defendant. The claimant must prove the urgency of the matter and submit evidence in support. In practice, same-day orders are not very common.
An interim attachment order can be granted in support of a substantive proceeding in another country.
Preferential right or lien
The interim attachment order does not create a lien or preferential right.
Damages as a result
The claimant is liable for damages suffered by the defendant arising out of the interim attachment order (which was applied against the defendant and found to be unjust).
The court must determine the security to be deposited unless there is a court order or a document (with the same authority of a court order) ordering this. The amount and form of the security are at the court's discretion. In practice, the courts usually ask for a deposit of 15% of the amount in dispute and bank guarantee letters are accepted.
The most common remedy at the full trial stage is an award of pecuniary damages. Damages cannot be punitive. Other remedies are available at the party's request, such as:
Announcement of the verdict in newspapers.
Rescission of a contract.
Performance of a contract.
Cancellation of a transaction.
Invalidation of a registered right.
A party must disclose all evidence that it intends to rely on. A party is not required to disclose all relevant documents in its possession, therefore, it must only provide documents that it deems appropriate.
Parties must act in good faith and state the truth (Article 29, Civil Procedural Code No. 6100). However, this duty of good faith will not ensure that parties disclose all documents in their possession, as the law does not provide a sanction for non-compliance.
In principle, the parties should submit their evidence during the exchange of petitions stage. In the preliminary examination hearing, the court will usually order the parties to submit the evidence listed in the petition or at least provide information on the collection of evidence that is not in their possession within two weeks. If this is not provided, the party will be deemed to have renounced the right to rely on the evidence.
Lawyers are prohibited from disclosing any information obtained during performance of their duties (Advocacy Code). This can be waived with the client's consent but the lawyer can use his right of exemption to refuse to do so.
The law and case law are silent as to whether this privilege extends to in-house counsel. However, the Turkish Competition Authority has previously ruled that it must review in-house counsel correspondence on the basis that there is an employment relationship between in-house counsel and a company.
In addition, without prejudice privilege is applicable and any admission made during settlement negotiations cannot be used as evidence.
Other non-disclosure situations
The party can refuse to disclose the requested evidence if it contains a trade secret.
Examination of witnesses
Witnesses of fact give oral evidence under Turkish law. The court can ask the witness for written evidence, if it considers it appropriate.
Right to cross-examine
The parties' lawyers can ask direct questions to the witnesses of fact. However, the parties cannot directly address questions to witnesses but can pose questions to the judge. The judge can direct questions to the witnesses if he deems appropriate.
Third party experts
The courts can appoint experts if special and technical knowledge is required to solve the disputes. The experts can be appointed either on the parties' request or by the court ex officio. In both cases, the appointment is made by the court and the expert is chosen from the list published by the judicial commission.
Role of experts
The main obligations of experts are to:
Attend the examination hearing.
Take oath before the judge.
Prepare and submit their report on technical issues on time.
Experts give opinions on facts determined by the courts and must not be appointed to give opinions on legal matters. In addition, the parties must obtain private expert reports.
Right of reply
The parties can submit their statements and objections regarding the expert examination report within two weeks of the notification of the report. If the court finds the report insufficient, it can:
Ask for explanation.
Pose new questions.
Order an additional expert examination.
The Ministry of Justice publishes a tariff of the expert fees every year. The fees include investigation, examination, transportation, accommodation and other relevant expenses.
The appellant can apply to the regional appellate courts. However, only the decisions concerning a movable or a debt amounting to at least TRY1,500 are capable of appeal.
Regional appellate courts can reverse the decisions of the first instance courts and can also render a new decision regarding the resolution of the dispute.
The Court of Appeals (which functions as the organ of unification and development of jurisprudence) is the final instance of the appeal process.
Grounds for appeal
The grounds of appeal for the regional appellate courts are:
Incorrect application of the law or agreement between the parties.
No preliminary conditions of trial.
Unlawful dismissal of any evidence.
Procedural errors affecting the decision.
The time limit for filing an appeal before the regional appellate courts is two weeks following the service of the decision rendered by the courts of first instance. The time limit for filing an appeal before the Court of Appeal is one month following the service of the decision.
The official litigation costs and the official representation fees are imposed on the unsuccessful party after trial. Litigation costs are the actual expenses deposited by the claimant to the court before and during the proceedings, and include the following:
Decision and judgment charges.
Notification and postage fees.
Filing and documentation fees.
Expert and witness fees.
Fees and expenses regarding the documents obtained from governmental authorities.
The official attorney fee which is determined in line with the minimum Tariff of the Turkish Bar Association.
The court will not consider any pre-trial offers to settle when awarding costs and the court cannot manage, limit or otherwise control costs during the proceedings. However, the court must conduct the proceedings within a reasonable time and to avoid unnecessary costs (Article 30, Civil Procedural Code No. 6100).
Enforcement of a local judgment
The parties can choose the governing law that applies to their contract. However, contracts that relate to real estate or their use are governed by the law of the country where the real estate is situated. In addition, Turkish law can be applied (partly or entirely) when the application of the foreign law is explicitly incompatible with the Turkish public order. In some cases the court can broadly interpret the Turkish public order and apply the Turkish law instead of the governing law chosen by the parties.
In principle, contracting parties choose the jurisdiction to govern their contract, unless the subject matter is within the exclusive jurisdiction of the Turkish courts (such as disputes relating to employment, insurance and consumer contracts) or the matter is explicitly incompatible with the Turkish public order.
Turkish courts will generally hear the case in Turkey if the jurisdiction clause in the contract is unclear.
Turkey is a party to the HCCH Convention on Civil Procedure 1954 and the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965. Therefore, service of a foreign proceeding in Turkey can be made in accordance with the Conventions.
If a bilateral agreement has been concluded between Turkey and the foreign country in question, the provisions of that agreement will govern the service.
Turkey is a party to the HCCH Convention on Civil Procedure 1954 and HCCH Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970. Therefore, the process of taking evidence from a witness in Turkey to be used in another jurisdiction is subject to the rules set out in these Conventions.
If a bilateral agreement has been concluded between Turkey and the foreign country, the terms of the agreement will be applicable. If there is no such agreement and the foreign country has not adopted the above Conventions, the Turkish courts will consider if there is reciprocity between the two states. If reciprocity is established, the procedure of taking evidence is governed by the international legal assistance rules.
Enforcement of a foreign judgment
The following requirements must be met to enforce a foreign judgment in the local courts:
There must be a contractual or de facto reciprocity.
The decision must be final, binding and enforceable under the laws of the foreign country.
The decision must not concern a matter that is subject to the exclusive jurisdiction of the Turkish courts.
The decision must not breach the Turkish public order.
The counter party's right of defence must be respected and complied with.
Turkey concluded bilateral treaties with several countries for enforcing a foreign judgment, such as Albania, Algeria, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, China, Croatia, Egypt, Georgia, Iran, Iraq, Italy, Kazakhstan, Kuwait, Kyrgyzstan, Lithuania, Macedonia, Moldova, Mongolia, Oman, Poland, Republic of Turkish Northern Cyprus, Romania, Slovakia, Tajikistan, Tunisia, Turkmenistan, Ukraine and Uzbekistan.
In addition, on the basis of the de facto reciprocity principle, Turkish courts can also enforce the foreign judgment of several countries including Germany, the UK and the US. However, as law and practice differs in each US state, the ability to enforce a US judgment depends on the subject matter of the dispute and the state where the judgment was issued.
Alternative dispute resolution
The main ADR method used in Turkey is arbitration (both local arbitration governed by the Civil Procedural Code No. 6100 and international arbitration governed by the International Arbitration Code (IAC)). The IAC states that arbitration must be:
Used for the resolution of disputes arising out of contracts containing a foreign element, which are held in Turkey.
Used for other arbitration proceedings outside or within Turkey, if and when chosen by the parties or the arbitrators.
Other than arbitration, mediation is also one of the ADR methods used in Turkey. The Mediation in Civil Disputes Code No. 6325 came into force on 22 June 2013.
Compared to arbitration, the use of mediation is quite limited but the government encourages its use to decrease the courts' workload. In that respect, there is a draft code for mandatory mediation of employment disputes.
Arbitration is used more in certain industries such as construction, energy and infrastructure.
Arbitration does not form part of court proceedings. However, if the parties agree to resolve a dispute through arbitration in a commercial agreement, the dispute arising out of that agreement can only be resolved through arbitration.
During court proceedings, the court must ask the parties' intention relating to settlement, which can be regarded as a simple form of ADR.
In local arbitration, parties can choose the procedural rules in relation to evidence, provided that the rules are consistent with the mandatory provisions of the Civil Procedural Code No. 6100 (CPC). The provisions of the CPC relating to the collection and use of evidence in litigation also apply to evidence given in ADR.
In international arbitration, parties can also choose the rules in relation to evidence, provided that the rules are consistent with the mandatory provisions of the International Arbitration Code (IAC).
Parties can seek the assistance of the Turkish courts to collect evidence in both local and international arbitration. The CPC and the IAC do not contain specific provisions dealing with confidentiality. If confidentiality is an issue, parties can choose arbitration rules that expressly provide for confidentiality.
Unless otherwise agreed, arbitrators' fees in local arbitrations are determined by the arbitral tribunal or by the arbitrators, taking into account the amount in dispute and the nature and duration of arbitral proceedings. If there is no agreement or provision in the arbitration agreement, or reference to institutional arbitral rules, the Ministry of Justice tariff applies. Local arbitral awards specify the costs of proceedings. In principle, the unsuccessful party bears the costs. If both parties partially succeed, costs are borne by both parties accordingly.
In international arbitration, the parties can also determine the arbitrators' fees by reference to recognised international rules or institutional arbitration rules.
Proposals for reform
According to the legislation that is pending enactment, employees involved in re-employment claims or claims for the collection for the collection of debts arising out of employment agreements, must attempt mediation before commencing litigation before the courts. The authors consider that this is likely to increase the use of mediation as an alternative dispute resolution, as the practitioners and parties become more familiar and apprised of the process.
The Official Gazette of Turkey
Description. This is the website of the Official Gazette of Turkey.
General Directorate of Legislation Development and Publication
Description. This is the website of the General Directorate of Legislation Development and Publication. This website is official and potentially up to date.
Pelin Baysal, Partner
Gün + Partners
Professional qualifications. Turkey, Lawyer
LLM, Law Faculty, Ruprecht-Karls University, 2005, Heidelberg, Germany; LLB., Law Faculty, Ankara University, Turkey, 2001
Areas of practice. Dispute resolution; construction; real estate, insurance and reinsurance; corporate; M&A; finance.
Advising and representing a global bank in various lawsuits filed by or against the client.
Representing and advising a multinational company in a court case filed against its shareholders and previous manager.
Advising and representing a Turkish affiliate of a global company and its parent at court, with respect to the termination of their relationship with their former exclusive distributor.
Advising a medical device company with regard to their ongoing litigation regarding their distribution network in Turkey.
Representing a propeller system manufacturer in a series of compensation claims.
Languages. Turkish, English, German
Reinsurance Market: Outside Influence, Spring Issue of Global Reinsurance Magazine, 2016, (co-author).
Global Legal Insights, International Arbitration 1st Edition, Turkey chapter, 2015 (co-author).
Dispute Resolution: Collection of Evidence, the IFLR Dispute Resolution Guide, International Financial Law Review, 2015 (co-author).
Istanbul - Rising Star of International Arbitration, Corporate Disputes Magazine, 2015, (co-author).
Beril Yayla Sapan, Senior associate
Gün + Partners
Professional qualifications.Turkey, Lawyer; LLM, Economy Law, Galatasaray University, 2012; LLB, Bilkent University Faculty of Law, 2008
Areas of practice. Dispute resolution; employment; white collar crimes.
Representing a client in the insurance sector for its dispute with its partners in Turkey, representation before the courts for several compensation actions, forgery cases, requesting the invalidation of general assembly resolutions.
Representing a client in the media sector for unfair competition and fraud litigation.
Representing a client in the medical devices sector in a compensation action with respect to termination of their relationship with their former exclusive distributor.
Representing a client in the agricultural sector for several product liability cases.
Representing a client in the energy sector for the collection of its debt.
Languages. Turkish, English
Global Legal Insights, International Arbitration 1st Edition, Turkey chapter, 2015, (Co-author).
Arbitration in Focus, The Oath, 2015, (Co-author).
Litigation & Dispute Resolution, ICLG, 2015, (Co-author).
Specialized or general-jurisdiction courts for enforcing foreign judgments and arbitral awards? International Law Office, 2015, (Co-author).
The legal outlook for 2016 in Turkey, The Oath, 2016, (Author).