Enforcement of Foreign Court Judgments in Türkiye: Impact of Service Method

The terms and conditions for the recognition and enforcement of foreign court judgments in Türkiye are governed by Act No. 5718 on International Private and Procedural Law (“IPPL”). To enforce a foreign court judgment in Türkiye, an enforcement lawsuit must be filed in Turkish courts. In principle, Turkish courts do not review the substance of the case in such lawsuits; they only examine whether the conditions for enforcement are met. These conditions are as follows:

• Subject of enforcement request must be a final foreign civil court judgment;
• Conventional, legal (de jure) or de facto reciprocity must exist between the Republic of Türkiye and the state of the foreign court;
• Subject of the judgment must not fall under the scope of the exclusive jurisdiction of the Turkish court. Alternatively, provided that the defendant raises a jurisdiction challenge, the judgment must not have been issued by a foreign court lacking a real connection to the dispute or the parties;
• The judgment must not be against Turkish public policy; and
• If raised by the defendant before the Turkish court, the defendant must have been properly summoned by or represented in the foreign court that issued the judgment, or the judgment must not have been issued in their absence in violation of the law.

Condition (v), specified in Article 54, refers to the importance of proper service of process. Failure to duly and properly serve case documents requiring the defendant’s action, such as submission of defence, counterclaim, objection or appeal may result in Turkish court rejecting the enforcement request.

While failure to serve the case documents is an undisputed ground for refusal of enforcement, in certain cases, the method of service is also crucial while assessing whether the right to defence and a fair trial of the defendant is duly respected.

Enforcement Risk: Service via Post

In different jurisdictions, various methods such as personal service, service by mail, post, registered mail, service by hand through either party etc. are used for service of the proceeding on the parties. In the Turkish judicial system, however, case documents are typically served by court clerks through Turkish official postal authority (PTT) or the national electronic notification system (UETS).

When judicial documents are served from abroad, the process involves diplomatic channels via embassies or consulates and official postal authorities. Valid service of a judicial document from overseas requires a diplomatic method in Turkish law.

Türkiye, on the other hand, is a signatory to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (“Hague Convention”) which establishes a facilitated diplomatic method between the contracting states. Article 10 of the Hague Convention provides that the state where the recipient of a court document is residing at shall accept the direct service through post, service by judicial officers or the interested persons (e.g. parties) through judicial officers, officials or other competent persons of the recipient state.

However, Türkiye has declared a reservation to Article 10. According to this reservation, any case document must be served via diplomatic method through the Ministry of Justice.

As a result, service methods exercised by the foreign courts may face scrutiny in Turkish enforcement lawsuits, especially in jurisdictions permitting service through private (ordinary) post or courier. For instance, in various decisions, the Turkish Court of Appeal (Yargıtay) has rejected enforcement requests for judgments issued by German[1] and U.S.[2] courts where service was carried out via ordinary post. The Court of Appeal has ruled that if a foreign judgment becomes final after being served via post, subsequent service through diplomatic channels cannot remedy the defect if the defendant’s right to appeal has been lapsed[3].

In light of the above, to ensure enforceability in Türkiye, foreign courts must serve documents using diplomatic methods in accordance with the Hague Convention.

Once local attorneys are appointed to represent the parties before the foreign court, service upon these attorneys under domestic civil procedure law shall be deemed sufficient. Additionally, if the defendant actively participates in the foreign proceedings, defends their case, and exhausts all available legal remedies, enforcement in Türkiye may still proceed despite procedural service deficiencies.

Service upon the Process Agent

Another point of discussion is the validity of service upon process agents. A process agent, commonly used in international financial transactions, is a person or entity designated to accept service of notices, proceedings, or documents on behalf of a third party. Process agents are often appointed to facilitate notification regime and streamline communication in international transactions and potential disputes.

Turkish law does not explicitly address whether service upon a process agent satisfies proper service requirements in enforcement lawsuits. Case law on this point is quite limited. In a 2014 decision[4], the Court of Appeal implied that service upon process agent could be deemed valid, provided that the process agent is duly authorised to receive court documents. The Court also noted that Turkish law includes the similar mechanisms, such as the liaison offices for entities that do not have a subsidiary or branch in Türkiye.

In late 2021, the Istanbul Regional Court of Appeal (Bölge Adliye Mahkemesi) addressed the validity of service on a process agent in a foreign jurisdiction[5]. It allowed enforcement of an English court decision where the proceedings were served upon a process agent in London. The Court held that service of process on the defendant’s process agent was valid and did not infringe on the defendant’s right to defence. In July 2023, the Court of Appeal upheld this decision[6].

Although case law is limited, the Court of Appeal has, in the few existing decisions, acknowledged that service of process on a duly authorised process agent does not raise enforcement issues in Türkiye.

Conclusion

Understanding potential enforcement risks in advance of foreign proceedings is crucial for any claimant ultimately seeking to enforce judgment in Türkiye.

Due to Türkiye’s reservation to Article 10 of the Hague Convention, enforcement of the foreign court decision may be challenged based on the service method, even if the domestic law of the foreign court permits such service. Service of proceeding through any method other than the service through authorised channels of the states may result in the dismissal of the enforcement request.

If an enforcement request is dismissed due to improper service, the lack of proper service may be irreversible because of the res judicata effect. This can create a deadlock where the claimant cannot restart the process to rectify the service deficiency.

[1] 11^th Civil Chamber, 2020/1533 E. 2020/5095 K., 17.11.2020; 2015/13931 E. 2016/1211 K., 10.02.2016; 201

[2] 11^th Civil Chamber, 2019/2768 E. 2020/876 K., 03.02.2020; 2016/13566 E. 2018/4748 K., 25.06.2018

[3] 11^th Civil Chamber, 2014/6112 E. 2015/4077 K., 24.03.2015

[4] 11^th Civil Chamber, 2013/12537 E. 2014/14482 K., 25.09.2014

[5] Istanbul Regional Court of Appeal 12^th Civil Chamber, 2019/820 E. 2021/1739 K., 25.11.2021

[6] 11^th Civil Chamber, 2022/1024 E. 2023/4355 K., 11.07.2023