According to Article 297(2) of the Turkish Code of Civil Procedure;
"The ruling on each of the claims and the rights granted and obligations imposed on the parties shall be stated in the dispositive section of the [court] decision in a sequence and clearly in a way to prevent any doubts or hesitation without repeating any statements included in the legal reasoning."
In short, dispositive sections of court decisions should be 'stand-alone'.
The Turkish Court of Appeals has ruled in various decisions that the above provision of the Turkish Code of Civil Procedure is mandatory and, thus, dispositive sections that are not stand-alone and giving rise to hesitation are in breach of the law.
For example, the Turkish Court of Appeals in a decision dated 03.10.2011 overruled a court of first instance decision holding that the court's order regarding the payment of interest does not state its beginning date in the dispositive section contrary to Article 297, and thus, may give rise to hesitation during the execution.
The Turkish Court of Appeals also held in a decision dated 14.05.2012 that a court decision cannot refer to petitions, expert reports or any other documents in the dispositive section and that all the rights granted and obligations imposed on the parties should be clearly declared.
At the execution of court decisions, the execution offices also only consider the dispositive sections of the decisions and execute only the rulings in such sections. If the dispositive section is not stand-alone and refers to the other sections of the decision, the execution officers refuse to interpret the ruling in the dispositive sections based on such referrals.
Same principle applies to the enforcement of foreign arbitral awards in Turkey. The Turkish courts and executive offices only consider the dispositive sections of the arbitral awards and refuse enforcement if such sections are not stand-alone.
Mechanisms such as 'interpretation of the award' as in Article 35(2) of the 2012 ICC Rules may be utilized to correct arbitral awards without stand-alone dispositive sections after-the-fact.
However, such mechanisms may be time consuming for the parties eager to enforce arbitral awards. Therefore, instead of after-the-fact fixes, parties are advised to consider this issue during the proceedings themselves.
Footnotes
1 Turkish Court of Appeals decision dated 03.10.2011 with decision number 2011/12945 and case number 2010/3833.
2 Turkish Court of Appeals decision dated 14.05.2012 with decision number 2012/13068 and case number 2012/9196.
Originally published on ILO, 2013.
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