As is known, in order to give a res judicata effect ("binding effect of already judged matter") to a foreign arbitral award within the territory of Turkey, the courts must authorize its enforcement. During enforcement proceedings, the court will examine whether or not there exist an obstacle for the enforcement of the foreign arbitral award and accordingly the enforcement shall be granted or rejected. In some cases, the grounds for the refusal of enforcement may only affect a part of the arbitral award. At this point, the question of the possibility of partial enforcement of the subjects ruled in the arbitral award is of importance.
The grounds of dismissal in the enforcement of foreign arbitral awards are regulated under Article 62 of the International Private and Civil Procedure Law numbered 5718 (the "IPCPL") and in the New York Convention dated 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention").
Article V/1-(c) of the New York Convention shall be applied with regard to the requests of partial enforcement in the enforcement proceedings realized in accordance with the New York Convention. Pursuant to the said Article, in case the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced.
Article 62/(g) of the IPCPL provides that in cases where the arbitral award pertains to a subject which is not included in the arbitral agreement or clause or where the arbitral award passes beyond the limits of the arbitral clause, the court of enforcement shall dismiss that part of the request of enforcement of the foreign arbitral award.
Based on the above-mentioned Article, the Turkish Court of Cassation ruled that the partial enforcement of the foreign arbitral award is possible in a case where there are three separate agreements between the parties of an arbitration procedure and two of them have an arbitration clause:
"In that case, the question of possibility of partial enforcement of arbitral awards arises. As a rule, there is no legal obstacle to partial enforcement of arbitral awards. Hence, in the decision of our chamber dated 3.6.2002 and numbered 9357/4209, it is decided that in case the arbitral award is made based on a matter not included in the arbitration agreement or clause or goes beyond the scope of the arbitration agreement or clause, the court may reject the enforcement (concerning this part of the award) and therefore, the partial enforcement is possible." (Decision of the 19th civil Chamber of the Court of Cassation dated 18.12.2003 and numbered 2003/7270 E., 2003/1288 K.)
The decision referred to above has been adopted by the Court of Cassation pursuant to the International Private and Civil Procedure Law numbered 2675, which was in force prior to IPCPL. However, the content of the Article 45/(h)1, which has been referred to corresponds to the content of Article 62(g) of the IPCPL. Consequently, the decision above may be taken into consideration in the application of the IPCPL as well. In addition to the said decision, there are other decisions where the Court of Cassation ruled that the partial enforcement was admissible2.
In addition to foreign arbitral awards, there are precedents decisions of the court of Cassation with regard to partial recognition of foreign court judgments. For instance, the Court of Cassation gives decisions on the partial recognition of judgments, which entrust the custody of minor children to both parents, where it rules on the enforcement of the part of foreign court judgment pertaining to divorce of spouses and rejects the part pertaining to entrusting the custody of minor children to both parents3.
Partial Enforcement and Prohibition of Révision au Fond
The enforcement judge shall take into consideration the prohibition of révision au fond (prohibition of examination of merits of the case) while giving partial enforcement decisions. It should be emphasized that the partial enforcement shall not involve the examination of merits of the case. In the event that the examination of merits is required in order to grant a partial enforcement, the request of partial enforcement shall be rejected.
Accordingly, the part of the arbitral award subject to request of enforcement shall be separable from the arbitral award. For instance, there is no obstacle for the partial enforcement of pecuniary debts4
In case there are grounds for refusal of enforcement concerning some parts of the arbitral award, the request of partial enforcement shall be accepted. In this way, a favorable solution for the parties, which choose to resolve their disputes by means of arbitration, in accordance with their contribution of time and their expenses would be obtained. The precedent decisions of the Court of Cassation indicate that the partial enforcement is possible. However, the principle of prohibition of révision au fond, which is one of the basic principles with regard to enforcement proceedings, shall be respected. In this regard, the separability of the part of the arbitral award giving rise to a ground of refusal is of great importance.
1.While reference is made to Article 45/4 by mistake, the content of the article referred to indicates that the correct reference should have been made to Article 45/(h).
2.Decision of the 19th Civil Chamber of the Court of Cassation dated 3.6.2002 and numbered 2001/9357 E. and 2002/4209 K. may be given as example in the relevant matter.
3.Please see the Decision of the 2nd Civil Court of the Court of Cassation dated 27.12.2004 and numbered 2004/13947 E. and 2004/15854 K.; the Decision of the 2nd Civil Court of the Court of Cassation dated 12.6.2006 and numbered 2006/2773 E. and 2006/9267 K.
4.EKŞİ, Nuray, Yargıtay Kararları Işığında ICC Hakem Kararlarının Türkiye'de Tanınması ve Tenfizi. Source: http://www.ankarabarosu.org.tr/siteler/ankarabarosu/tekmakale/2009-1/5.pdf.