Turkish Supreme Court’s jurisprudence tends towards a narrow interpretation of public policy. Majority of the admitted public policy defense were constructed on the following arguments: violation against the equal treatment of the parties and their right to be heard; judgments against morals; and awards that violate international public policy.
By Abdülkadir
Güzeloğlu & Fatma Esra
Güzeloğlu
9 June 2016
There are two main
instruments which govern the enforcement of international arbitral awards in
Turkey. These are International Private and Procedure Law (“IPPL”) and
New York Convention; whereby the former applies only if the origin of the award
is a non-contracting State to New York Convention or the dispute is of a
non-commercial nature. However, there are no significant discrepancies
between Article 5 of the New York Convention and the relevant provisions of
IPPL concerning the grounds for refusing the enforcement of an international
arbitral award. That said, while the New York Convention grants national
courts the discretion to enforce an award despite the existence of grounds for
refusal, IPPL stipulates that the competent court shall reject the enforcement
in the presence of any grounds specified therein.
The
party initiating the enforcement proceedings must provide: the original or a
duly certified copy of the arbitration agreement and the original or a duly
certified copy of the arbitral award which has duly become final and executable
or is binding upon the parties. If these documents are in a language
other than Turkish, it is also required to provide their official
translations.
The
Supreme Court’s jurisprudence tends towards a narrow interpretation of public
policy, though that was not the case in the past. The majority of the
claims that have been previously admitted in relation to public policy defence
were constructed on the following arguments: violation against the equal
treatment of the parties and their right to be heard; judgments against morals;
and awards that violate international public policy.
Under
Turkish law, enforcement of arbitral awards is subject to simplified
proceedings which, compared to written proceedings, take a relatively shorter
period, whereby there shall be no joinder and rejoinder petition stages;
together with implementation of other time-saving rules of procedure.
However, on average, enforcement procedures still take two to three years
together with the appeal process.
For further
information on international arbitration and Turkish arbitration practice, please contact us at info@guzeloglu.legal.
This article first appeared in
the second Edition of Global Legal Insights–International Arbitration;
published by Global Legal Group Ltd, London.