Considering the Article 389 of the Code of Civil Procedure and
the decisions of the Court of Appeal (Yargıtay), it can be
concluded that, in order for a court to grant a preliminary
injunction relief decision under Turkish Laws, there must be a
possibility which makes it materially difficult or impossible to
acquire a certain right due to the changes in current conditions or
there must be concern for the occurrence of an inconvenient
situation or possibility for significant damage due to the absence
of such preliminary injunction.
In that respect, in order to obtain a preliminary injunction to
prevent encashment of the performance bond, following conditions
must be met;
i. Preliminary injunction relief should be
compelling for the protection of the disputed rights or goods,
ii. There must be a danger of loss of right for
the requesting party, if such measure is not taken or it is
iii. Prove with conclusive evidence that
encashment of performance bond constitutes abuse of right.
In the event that above stated conditions occur collectively,
court may grant a preliminary injunction.
Procedure of Preliminary Injunction
a) Authorized Court:
Preliminary injunction may be requested prior to or after filing
a lawsuit on the merits of the case. Article 390 of the Civil
Procedure Code states that if the preliminary injunction is
requested after filing the lawsuit, the authorized court shall be
the court in which the lawsuit was filed. If the preliminary
injunction relief is requested prior to the filing of the lawsuit,
the authorized court shall be the court where the preliminary
injunction relief is more likely to be granted at smaller expense
and relatively quicker or the court which is authorized to hear the
lawsuit on the merits of the case.
b) Obligation to Make a Security Deposit Payment:
Another issue that should be addressed with regard to
preliminary injunction requests is the obligation of the requesting
party to make a security deposit payment, amount of which is to be
determined by the relevant court, to compensate the possible
damages to be incurred by the other party and third parties as a
result of such preliminary injunction relief decision. Although
such amount is not specified under the relevant legislation, in
practice, approximately 15% of the dispute value is requested as
c) Obligation to File Lawsuit on the Merits Upon Preliminary
The most important issue with regard to a preliminary injunction
relief request is the obligation to file the lawsuit on the merits
of the case within two weeks after obtaining such preliminary
injunction. In accordance with the Article 397 of the Code of Civil
Procedure, in case a lawsuit is not filed within two weeks after
obtaining the preliminary injunction relief, such decision shall be
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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