Interim measures in Turkey

1. Applicable law

1.1.1 Turkey is a civil law jurisdiction. The pillars of Turkish private law are the Civil Code, the Commercial Code, the Private International Law Code and the Civil Procedure Code. 

1.1.2 Turkish law recognises the concept of precedents to an extent: the decisions of the joint chambers of the High Court of Appeals are binding on the chambers of the High Court and the lower courts, pursuant to the Code of the High Court. 

1.1.3 The Turkish Civil Procedure Code (CPC) mainly regulates interim measures regarding civil claims, but there are other sources of law setting out rules on interim measures which apply in particular cases. Parties are therefore always recommended to consider what special or additional provisions may apply to their case on the basis of the subject matter of the claim. A few examples of the types of interim measures regulated by legislation other than the CPC are as follows:

  • in the case of interim measures relating to matters of enforcement (e.g. attachment orders), the provisions of the Enforcement and Bankruptcy Law (EBL) apply;
  • interim measures for certain family law issues are governed by the Turkish Civil Code;
  • where interim measures concern intellectual property law, the Turkish Code of Intellectual and Artistic Works may apply;
  • the Turkish Code of Mining also contains special provisions on interim measures; as do certain provisions in the Turkish Commercial Code (such as Articles 61, 128, 235, 976 and 978).

1.1.4 The Turkish Code on Private International Law (CPIL) is also relevant. Article 14 of the CPIL designates Turkish Law as the applicable law for interim measures with respect to matters relating to divorce and the separation of couples. However, legal doctrine suggests that the scope of this provision has a much wider application, and actually extends beyond family law to all kinds of interim measures. 1 Celikel/Erdem, Milletarası Özel Hukuk (10th Edition, 2010), p 459.

1.1.5 At the time of writing, Turkey has not signed the Lugano Convention. The provisions of this convention do not apply to actions pending before the Turkish Courts. 

2. Jurisdiction

2.1 International and geographical jurisdiction – the venue

2.1.1 A party to legal proceedings may file a request for an interim measure with any court that has jurisdiction over the main legal proceedings. However, once proceedings have commenced, a request for an interim measure can only be filed with the same court that is handling the main proceedings. 2 Pekcanitez/Atalay/Özekes, Medeni Usul Hukuku (13th Edition, 2013), p 879; Pekcanitez/Atalay/Sungurtekin Özkan/Özekes, Icra ve Iflas Hukuku (10th Edition, 2012), p 507.

2.1.2 The jurisdiction of the Turkish courts in cases having a foreign element is defined by the CPIL which provides that the domestic jurisdiction rules shall also apply to the cases with a foreign element (i.e. international cases). 

2.2 The effect of jurisdiction clauses

2.2.1 Whether or not the Turkish Courts have jurisdiction to hear a case for interim measures is not affected by a jurisdiction clause, a position evidenced by a number of High Court cases. 3 Celikel/Erdem, Milletarası Özel Hukuk (10th Edition, 2010), pp 547ff; Nomer/Sanli, Devletler Hususi Hukuku (18th Edition, 2010), p 435; High Court, Joint Chamber, 29.11.1995, case no 11870/1053; High Court, 11th Chamber, 12.02.1988, case no 593/752. Therefore, a jurisdiction clause in a contract will not determine where an application for an interim measure should be heard.

2.3 Subject-matter jurisdiction 

2.3.1 Jurisdiction over the main legal proceedings is determined by the subject matter of the relevant dispute. The courts of first instance for civil matters are divided into courts of general competence (General Courts) and courts of private competence (Private Courts). Private Courts have not been established in every city. Where there are no Private Courts, General Courts have jurisdiction to decide claims that normally fall under the jurisdiction of Private Courts.

General Courts

2.3.2 There are two types of General Courts in Turkey. The first is the Civil Court of Peace, which is responsible for legal disputes which are relatively quick and easy to resolve. An example of such a dispute is an action to protect movable and/or immoveable assets pursuant to Article 4(1)(c) of the CPC. 

2.3.3 The second type of General Court is the Civil Court of General Jurisdiction. This court has jurisdiction to hear all kinds of private law disputes, including family law or employment law disputes (provided that a Private Court is not specified by any source of law as having jurisdiction). If a Private Court is so specified but is not available in the same city, the Civil Court of General Jurisdiction will have jurisdiction. 

Private Courts

2.3.4 There are several types of Private Courts in Turkey. These courts are the Commercial Court, the Land Registry Court, the Employment Court, the Enforcement Court, the Consumer Court, the Intellectual and the Industrial Court and the Family Court. As set out above, these courts are not located in every city. The Commercial Court has a general mandate to resolve any commercial disputes.

2.4 Choice of venue if more than one court has jurisdiction 

2.4.1 It is possible that more than one court could have jurisdiction over the same matter. In such cases, choosing the court before which to seek an interim measure should be carefully considered, bearing the following considerations in mind:

  • the average duration of proceedings in the court;
  • the place where the defendant is resident (in order to avoid potential lengthy challenges to jurisdiction); and
  • how often the court deals with legal issues of an international nature.

3. Types of Interim Measures and their Criteria

3.1 Three Categories

3.1.1 In Turkey, interim measures are divided into three categories depending on their purpose: preventive measures, regulatory measures and performance measures.

Preventive measures

3.1.2 This type of measure maintains the status quo and offers a safeguard for future enforcement of the applicant’s claim. Changes to the existing circumstances that might undermine the enforceability of a judgment are prevented by freezing the existing position or state of affairs. Turkish Law further divides these types of preventive measures into (i) interim measures to secure monetary claims; and (ii) interim measures to secure non-monetary claims. 

3.1.3 An order for the seizure of assets pursuant to Articles 257 et seq. of the EBL (‘attachment order’) is considered the most popular preventive measure, preventing the disposal or alteration of assets by the debtor. This order is only used to ensure future enforcement of monetary claims.

3.1.4 In the case of non-monetary claims, provisional protective measures may be available under Articles 389 et seq. of the CPC, e.g. a prohibition on encumbering and/or alienating, disposing of or assigning relevant assets as well as other restraining orders.

Regulatory measures

3.1.5 This type of measure does not maintain the status quo but orders the modus vivendi in an on-going legal relationship. The relationship between parties is regulated until the matter of substance has been resolved.

Performance measures

3.1.6 This type of measure involves the fulfilment of an obligation brought before the court before the main dispute has been resolved.

3.1.7 Performance measures can be categorised as either:

  1. negative performance measures to omit to do something or not to prevent certain actions; or
  2. positive performance measures to fulfil an obligation to carry out an action.

3.2 Interim measures to secure monetary claims

3.2.1 The interim measure available to secure monetary claims is an attachment order over the assets of the debtor. This interim measure is governed by the EBL. 

The criteria for attachment orders

3.2.2 According to Article 257 of the EBL, it is not possible to obtain an attachment order over assets secured by a mortgage or a pledge. As long as the assets are unencumbered, a creditor may apply for the attachment of its debtor’s assets if the underlying debt is due and payable.

3.2.3 In the case of undue debts, an attachment order can only be granted if the following conditions are satisfied, pursuant to Article 257 of the EBL:

  • the debtor has no fixed domicile; or
  • in order to evade his obligations, the debtor is preparing to conceal or move his assets or is currently moving or has already moved such assets; or
  • in order to evade his obligations, the debtor is acting in bad faith in a manner which could prejudice the creditor’s claim. 

3.2.4 In addition to these grounds, the EBL provides for the grant of attachment orders if one of the following conditions has been met:

  • approval of a konkordato (which is an exceptional form of restructuring debt approved by a court decision) is rejected or the term of a konkordato is abolished or an existing konkordato is terminated; 4 EBL, arts 301, 290 and 308. or
  • an action cancelling a disposal is going to be brought before the court or has already been brought pursuant to Article 281 of the EBL. 

3.2.5 In order to obtain an attachment order, the creditor is obliged to present prima facie evidence that there is a legitimate claim, that the grounds set out at paragraph 3.2.3 (in the case of undue debts) are satisfied and that there are assets capable of attachment. 5 EBL, art 258. The court is free to decide whether or not to hear the parties before granting an attachment order.

3.2.6 If an attachment order is granted, the applicant will have a priority right on the debtor’s attached assets. In other words, if an attachment order is granted, third party creditors will be precluded from satisfying their debts against the assets subject to the attachment order. 

3.3 Interim measures for non-monetary claims

3.3.1 For non-monetary claims, the court may also grant an interim measure to avoid imminent damage and preserve the situation until the case is ultimately decided. 

3.3.2 The content of interim measures for non-monetary claims may vary. Article 391 of the CPC provides for a non-exhaustive list of such measures, including measures to safeguard disputed rights or goods; handing over goods to a third party; or carrying out or refraining from carrying out certain actions. Pursuant to Article 391 of the CPC, the court has a wide discretion to order any interim measures it deems necessary or suitable. 

The impact of an improper interim measure application

3.3.3 In practice, applicants commonly make requests for attachment orders in relation to non-monetary claims, but attachment orders are only available to secure monetary claims. Applications for attachment orders for non-monetary claims are therefore improper requests for interim measures which will be rejected by the court. 6 Turkish Court of Appeal, 21st Chamber, 19.01.2012, case no 1008/511; Turkish Court of Appeal, 23rd Chamber, 11.06.2012, case no 2963, 4071; Turkish Supreme Court, 4th Chamber, 08.02.2012, case no 867, 1672.

The criteria for interim orders

3.3.4 In order for the court to issue an interim measure the applicant must demonstrate the following:

  1. the existence of a convincing underlying substantive claim;
  2. the necessity for granting the interim measure; and 
  3. compliance with the principle of proportionality.

3.3.5 Where the rights of the applicant are in imminent danger, the court may grant interim measures without hearing the respondent. 7 CPC, art 390.

The existence of a substantive claim

3.3.6 Primarily, an applicant must must demonstrate that it has a convincing case in terms of the merits of its underlying claim, i.e. that that it is very likely for such party to succeed in the main proceedings. This is because the court will grant an interim measure in order to safeguard that claim.

The need for an interim measure

3.3.7 An applicant must prove in sufficient detail that the interim measure is necessary. Pursuant to Article 389 of the CPC, an interim measure is deemed necessary when, without the interim measure:

  • acquiring the asset becomes considerably difficult;
  • acquiring the asset becomes totally impossible;
  • an inconvenience or a serious harm arises or may arise to the applicant until the final judgment is issued.

3.4 Preventive taking of evidence

3.4.1 Preventive taking of evidence is also available as an interim measure pursuant to Article 400 et seq. of the CPC. The preventive taking of evidence is permitted if:

  • legal grounds exist for the taking of preventive evidence;
  • the evidence may otherwise be lost; or
  • adducing evidence may become considerably more difficult. 

3.4.2 In addition to the court that has jurisdiction to hear the application for an interim measure (by virtue of having jurisdiction over the main dispute), the Civil Court of Peace at the place where the evidence is located or where the witness resides also has jurisdiction to rule on applications for the preventive taking of evidence. 

3.4.3 If there is any risk of imminent harm to the applicant, the interim measure allowing the preventive taking of evidence may be implemented without notifying the respondent. 8 CPC, art 445.

4. Procedural and Evidential Requirements for Interim Measures

4.1 Procedural requirements

Form of request

4.1.1 A request for an interim measure must be submitted in writing or electronically with an authorised electronic signature 9 CPC, art 445. pursuant to Article 445 of the CPC.

Content of the request

4.1.2 The applicant must specify within its application the reasons for requesting an interim measure and the type of interim measure requested. In addition, the application must specify and provide for the evidence which credibly demonstrates an underlying right. In light of the principles of maiore ad minus and proportionality, if the court can order a lesser measure that sufficiently secures the applicant’s claim then it should do so.

Enclosures to the request

4.1.3 All supporting evidence must be attached to the application. The applicant will not be allowed to submit any further evidence after filing the application.

4.2 Implementation of the procedure

4.2.1 Pursuant to Article 316 of the CPC, interim measures are subject to the same procedures as apply to summary proceedings (which are accelerated proceedings). The respondent has two weeks following receipt of the applicant’s petition to file a written statement of defence in response to the requested interim measure. The court can extend this period upon the respondent’s request. If the respondent does not file a statement of defence, or the respondent does not appear at the hearing, the proceedings will continue in the respondent’s absence.

4.2.2 The court may summon the parties to a hearing or it may decide on whether to issue the interim measure without a hearing. The summoned parties do not have to appear physically before the court; alternative hearing methods are allowed, such as video conferencing. 10 CPC, arts. 322 and 149.

4.3 Evidential requirements

Types of evidence 

4.3.1 Any type of evidence can be brought before the court; the CPC imposes no restrictions in this regard. 

Standard of proof 

4.3.2 The criteria for granting interim measures do not have to be proven beyond reasonable doubt. For the purposes of the grant of an interim measure, credibly demonstrating that the requirements are met is sufficient. A simple allegation is not enough. Any decision of the court must be based on sound reasons after examining all the evidence. The court may reach the decision that the claims of the applicant are likely to be true, without resolving the main substantive matters. The evidence brought before the court is therefore vital. 

5.1 Right to present counter-arguments and evidence

5.1.1 A respondent may present its counter arguments and evidence in reply in a written statement of defence, and subsequently at the hearing (should there be one). In its defence, the respondent is expected to provide the facts which substantiate any challenge to the credibility of the arguments brought by the applicant. Under Article 319 of the CPC, a respondent is restricted from providing additional evidence after it has filed its written statement of defence. Therefore, if the court decides to summon the parties to a hearing, the respondent is not allowed to present any additional counter-arguments or evidence which were not already included in its defence.

5.2 Principle of proportionality

5.2.1 Any interim measure must comply with the principle of proportionality, in accordance with the Turkish Constitution. According to this principle the respondent’s rights must not be prejudiced any more than is absolutely necessary. The content and scope of the order is determined on the basis of this principle and applications requesting disproportionate measures will be rejected by the court. According to Turkish legal doctrine, the court must maintain a balance between the interests of the applicant and the potential damage the interim measure may cause to the respondent. 11 Pekcanitez/Atalay/Özekes, Medeni Usul Hukuku (13th Edition, 2013), p 886, p 869.

5.3 Security 

Interim measures for non-monetary claims

5.3.1 Pursuant to Article 392 of the CPC, an applicant has to give security to cover potential damages the respondent and other third parties may suffer, should it later turn out that the interim measure was not justified. In principle, this security is mandatory - there is no need for the respondent to make a request in this regard. However, the court may exempt the applicant from providing security (provided that the court indicates the grounds for not demanding security in its decision) if the applicant’s claim relies on convincing evidence or a necessity arising due to particular circumstances. Additionally, a person who benefits from legal aid does not have to provide security.

5.3.2 The security is returned to the applicant if the respondent does not demand compensation within one month after the judgment becomes final, or upon the automatic release of the interim order (which shall occur if the principal claims of the claimant are rejected by the court).

Interim measures for monetary claims

5.3.3 Pursuant to Article 259 of the EBL, the applicant seeking an attachment order for a monetary claim also has to provide security to cover potential damage to the respondent and other third parties. However, such security is not necessary if the applicant is receiving legal aid. If the application for an interim measure relies on a judgment that has become final, then the applicant does not have to provide security.

5.4 Damages for unjustified interim measures

5.4.1 If an interim measure turns out to be unjustified, the respondent may lodge a claim for compensation against the applicant.

Interim measures for non-monetary claims

5.4.2 Pursuant to Article 399 of the CPC, the court that is competent to examine the underlying main proceedings also has jurisdiction to hear any related compensation claim. Generally, if the application was not justified (if it was unfair, by mere operation of the law or unsuccessful on the basis of and/or following an objection by the respondent) a compensation claim will be successful and the applicant will be required to pay damages to the respondent or a third party. The respondent must file its claim for compensation within one year of the date the judgment on the underlying main proceedings becomes final and binding, or within one year of the interim measure being lifted.

Interim measures for monetary claims

5.4.3 The respondent’s compensation claim with respect to an interim measure may be filed either with the court which ordered the interim measure (pursuant to Article 259 of the EBL) or any other court that has competence according to the rules set out above. The EBL does not contain a specific limitation period for such claims. However, case law suggests that a one year limitation period applies, in line with the provisions regarding interim measures for non-monetary claims. 12 Pekcanitez/Atalay/Sungurtekin Özkan/Özekes, Icra ve Iflas Hukuku (10th Edition, 2012), p 522.

6. Timing of Interim Measures

6.1 Duration of the interim measure procedure

6.1.1 As stated above, requests for interim measures are handled by way of summary proceedings. This procedure is much simpler than ordinary proceedings, which ensures a quicker resolution to the claim. Once the applicant has made the request, the respondent must file a statement in response within two weeks of the delivery of that request. However, the court may extend this deadline upon request. The court may summon the parties to a hearing, if necessary. Generally, the court issues a final judgment on the interim measure after a maximum of three hearings. The period between each hearing should not exceed one month.

6.1.2 If the application is particularly urgent and the claim itself is clear, the courts are likely to grant the interim measure without hearing the parties. For instance, this is commonplace in the case of requests for attachment orders; in such cases, the courts grant attachment orders within one or two days. However, the procedure for obtaining an interim measure for non-monetary claims generally takes considerably longer; interim measures for non-monetary claims are often ordered only after the court has examined the counter arguments of the respondent. In addition, there are various case management requirements which may affect the length of time required by the court to issue an interim order, as may the workload of the relevant court at the time.

6.2 Validity of an interim order 

Interim measures for monetary claims

6.2.1 Once an attachment order is issued, the applicant has ten days to initiate enforcement proceedings. 13 EBL, art. 267. Otherwise, the attachment order is lifted automatically. Once assets are seized pursuant to the order, the enforcement office shall, if the seizure took place in their absence, serve the applicant, the respondent and any third parties whose rights have been affected, with a lien minute within three days of such seizure. 

6.2.2 The applicant must file its underlying substantive claim, or initiate attachment or bankruptcy proceedings, within seven days of enforcement of the attachment order. Alternatively, if the attachment order was enforced in the applicant’s absence, the underlying claim (or bankruptcy proceedings) should be filed within seven days of the delivery of the lien minute. Otherwise, the attachment order is lifted automatically by operation of law. 14  EBL, art. 264.

Interim measures for non-monetary claims

6.2.3 The applicant has one week from the date the interim measure is granted to initiate enforcement of the interim measure. 15 CPC, art 393.  Otherwise, the interim measure will be lifted automatically by operation of law. After enforcement of the granted interim measure, the enforcement officer will serve a lien minute on the applicant, respondent and any third parties whose rights have been affected.

6.2.4 If an interim measure is granted before the main legal proceedings have been initiated, the applicant must file its main claim with the court within two weeks of enforcement of the interim measure order. Otherwise, the interim measure is lifted automatically by operation of law. 16 CPC, art 397.

7. Costs

7.1 Court costs and compensation for professional representation

7.1.1 The legal costs associated with interim measures consist of court fees, court expenses and attorney fees.

Court Fees

7.1.2 Court fees are regulated by the Act on Fees (AF) and are calculated annually on the basis of a set tariff provided by the AF. Where the AF does not provide for fixed fees, or where the matter in dispute is of a pecuniary nature, fees are calculated by reference to the value of the matter in dispute. By way of example, the issue fee for the courts, which is a fixed fee, varies from one court to another. The court fees for initiating interim measure applications vary between TRY 25 to TRY 85 (approximately EUR 3 to EUR 10). 17 In accordance with exchange rates in August 2020.  There is also a hearing fee for any hearing or hearings which are postponed due to the parties’ actions. If an interim measure is requested in a statement which commences legal proceedings for the underlying substantive claim, these fees will not be payable twice. In order to start or continue legal proceedings court fees must be paid on time.

Court Expenses

7.1.3 Court expenses comprise all expenses which are necessary to bring the litigation proceedings, e.g. the cost of official papers, translations, postage and notification, witnesses, experts etc. (but excluding court fees and attorney fees). Necessary expenses incurred by the prevailing party (such as the daily salary, accommodation and travel expenses for the days on which the party is summoned to court) are also part of court expenses. 18 CPC, art 323.

Attorney Fees

7.1.4 Attorney fees agreed between the successful party and its respective attorney(s) are not considered part of the legal costs. Instead, attorney fees considered as part of the legal costs are calculated in accordance with the Minimum Attorneyship Fee Tariff, as announced by the Presidency of the Union of Turkish Bar Associations. From 2020, the fee tariff for legal assistance regarding interim measures is TL 755 (approximately EUR 85) for proceedings without a hearing and TL 935 (approximately EUR 105) for proceedings with a hearing, provided that the interim measure is not filed in a pending action. The court has discretion in relation to the attorney fees – it can decrease them, or it can as much as triple those amounts.

7.2 Advance on costs

7.2.1 Pursuant to Article 120 of the CPC, the applicant has to pay the court fees, together with the amount which is announced in the Legal Cost Tariff released by the Ministry of Justice, at the time of commencing legal proceedings. Legal proceedings do not start before this advance has been paid. If the court discovers during the proceedings that the advance has not been settled, the court will grant the applicant a period of two weeks to pay the outstanding amount. If the amount is not paid, the claim will be dismissed by the court. Foreigners who commence proceedings in the Turkish Courts have to deposit a security covering the legal costs, of an amount to be decided by the court. However, it should be noted that the court may exempt the party from depositing a security in accordance with the principle of reciprocity (see paragraph 9.2.1). 

7.2.2 An applicant entitled to legal aid is not required to pay an advance on costs. Foreigners are also eligible for legal aid; however, they must first prove that Turkish citizens are also eligible for legal aid in their respective countries.

7.3 Decision on costs and cost shifting 

7.3.1 In principle, the unsuccessful party bears the legal costs of the case, consisting of court fees, court expenses and attorney fees, which are calculated and determined by the court on the basis of the relevant tariff. 19 See paragraphs 7.1.1 and 7.2.1 above. The successful party does not need to request the recovery of the legal costs from the unsuccessful party in this regard. The court decides ex officio.

7.3.2 In the event that the applicant only succeeds in part, the legal costs are split between the parties accordingly.

8. Remedies Against Interim Measures

8.1 Complaint against ex parte decision 

8.1.1 Where a court of first instance grants interim relief without hearing the respondent, the respondent may file a complaint against that decision with the same court. The interim measure remains in place until the court decides on the complaint.

8.2 Modification and revocation

8.2.1 If the underlying circumstances change, an interim measure may be modified or revoked upon the request of the respondent or any third parties involved. 20 CPC, art 396. The court does not determine whether granting an interim measure was justified - it only examines whether the underlying circumstances have changed. The court may modify or revoke the interim measure without summoning the parties to a hearing. In principle, the request must be filed with the court which ordered the interim measure.

8.2.2 Although the EBL does not include a provision similar to Article 396 of the CPC (which regulates the modification or revocation of an interim measure for non-monetary claims) in practice the respondent may also be permitted to submit such a request with respect to an interim measure for a monetary claim if there is a change of circumstances. 

8.3 Security given by the respondent

8.3.1 As an alternative to modifying or revoking an interim measure, a court may order that the respondent provides security in place of another interim measure. 21 EBL, arts 395 and 266. The court may modify or revoke the interim measure and/or the security provided upon request. The security could be, for example, a mortgage, a pledge or a suretyship. The court granting the interim order has jurisdiction to deal with such a request. However, the EBL includes an exception for attachment orders, which states that the enforcement court has jurisdiction in this regard once attachment or bankruptcy proceedings are commenced.

8.4 Appellate remedies

High Courts under the new system

8.4.1 The CPC provides for two courts of appeal: the Regional Court of Justice and the High Court. Appeals against final judgments and preliminary injunctions regarding interim measures of the courts of first instance should be brought before the Regional Court of Justice, which is vested with full powers to review cases on questions of law and fact. An appeal may be made to the Regional Court if the amount at stake exceeds TL 5,390 (approximately EUR 615). 22 In accordance with exchange rates in August 2020. In principle, an appeal must be filed with the Regional Court of Justice within two weeks. This period starts on the date of the notification of the decision. 23 CPC, art 345. However, the period within which to file an appeal may change where special provisions of other codes apply.

8.4.2 At the uppermost level is the High Court, which is located in Ankara. The High Court only reviews cases on questions of law. However, an appeal is not admissible for claims below TL 72,070 (approximately EUR 8,100) and judgments with respect to interim measures. 24 CPC, art 362. This provision regulates all the judgments of the Regional Courts of Justice which are not appealable. Therefore, any judgments of the Regional Courts with regard to interim measures are final and binding. 

9. Enforcement of an Interim Measure

9.1 Enforcement of interim measures issued by national courts

9.1.1 A judgment of any competent Turkish Court is recognised and enforceable throughout Turkey. Interim measures for non-monetary claims are enforced in accordance with Article 393 of the CPC. Enforcement starts with the applicant sending an application by post to the execution office in the area of jurisdiction of the court which rendered the judgment, or where the relevant assets or the rights of the respondent are located. Alternatively, the court may appoint a justices’ chief executive for the enforcement of the interim measure. A person failing to comply with an order for enforcement of an interim measure, upon submission of a complaint by the related party, may be subject to a disciplinary prison sentence of up to six (6) months. 25 CPC, art 398.

9.1.2 Interim measures for monetary claims are enforced in accordance with Article 261 of the EBL. In these cases, applications must also be made to the execution office, located within the area of jurisdiction of the court that rendered the judgment.

9.2 Enforcement of interim measures issued by foreign courts

9.2.1 The recognition and enforcement of the decisions of foreign courts are governed by Articles 50 et seq. of the CPIL. The enforcement of decisions by foreign courts is governed by the principle of reciprocity. Therefore, there must be a treaty between Turkey and the country where the foreign court is located to make the decisions of the Turkish Courts enforceable in that country (and vice versa).

9.2.2 In order to enforce a judgment of a foreign court in Turkey, the decision must be final and binding. A decision regarding an interim measure does not solve the underlying legal dispute, with the effect that such a decision is not enforceable in Turkey. 26 Nomer/Sanli, Devletler Hususi Hukuku (18th Edition, 2010), p 477. To get around this issue, parties can obtain an interim measure from a Turkish Court, which is competent for the underlying claim. 27 Celikel/Erdem, Milletlerarasi Özel Hukuk (10th Edition, 2010), p 547.

10. Interim Measures in International Commercial Arbitration

10.1 Interim measures by state courts

10.1.1 A party may submit a petition to the court for an interim measure prior to the filing of an action or pending an action before an arbitral tribunal. Such a submission is not contrary to the constitution of the arbitral tribunal. 28 Ibid.

10.2 Interim measures by arbitral tribunal with seat in Turkey

10.2.1 The International Arbitration Code (IAC) regulates arbitral tribunals which have a seat in Turkey and deal with legal disputes containing a foreign element. 29 A foreign element is considered to exist in the following (non-exhaustive) instances: - the registered offices, residence or the domicile of the parties of an arbitration agreement are in different jurisdictions; - foreign capital has been brought into Turkey by at least one of the parties to the actual agreement (in relation to which an arbitration agreement has been made) or it is necessary to conclude security or guarantee agreements as security for foreign capital to be utilised for the implementation of such an agreement; or - goods or capital shall be transferred between different jurisdictions pursuant to the contract (under which an arbitration agreement has been made). An arbitral tribunal may grant an interim measure for a monetary or non-monetary claim at the request of a party, if the parties have not agreed to the contrary. 30 IAC, art 6. However, interim measures granted by arbitral tribunals cannot be directly enforced by execution offices in Turkey. If a party does not comply with the tribunal’s order, the other party may request enforcement from the competent court.

10.3 Interim measures by arbitral tribunal with seat abroad

10.3.1 Enforcement and recognition of the awards of foreign arbitral tribunals are governed by the New York Convention and the CPIL. Under the New York Convention and the CPIL, an award must be final and binding in order to be enforceable. The exact formal character of an interim order from a foreign arbitral tribunal is not yet certain. A more secure option for the party who seeks to obtain an interim order in such a case would be to apply to the competent Turkish Court.

Portrait of Arcan Kemahlı
Arcan Kemahlı
Counsel
Istanbul
Portrait of Döne Yalçın
Döne Yalçın
Managing Partner Turkey
Istanbul