Table of Contents

  1. General
  2. Litigation Funding
  3. Initiating a Lawsuit
  4. Pre-trial Proceedings
  5. Discovery
  6. Injunctive Relief
  7. Trials and Hearings
  8. Settlement
  9. Damages and Judgment
  10. Appeal
  11. Costs
  12. Alternative Dispute Resolution (ADR)
  13. Arbitration

1 General

1.1 General Characteristics of the Legal System

Litigation in Turkey has both Inquisitorial and Adversarial Attributes

Turkey is a civil law jurisdiction, jurisdictions which are commonly said to follow an "inquisitorial model" - as opposed to common law jurisdictions, which are said to follow the "adversarial model". We, ASC Law, believe, however, it is more precise to say - at least when it comes to non-criminal matters - Turkey's legal system has significant attributes of both.

For example, the parties can be, and usually are, represented by counsel, and are responsible for gathering and presenting the evidence supporting their claims. Parties are also free to challenge, with their own evidence and by legal argument, the legal and factual basis of their adversaries' claims.

At the same time, Turkish judges have the power, ex officio, to collect evidence "to clarify" the matters before them. Code of Civ. Proc. (No. 6100), Art. 31. Similarly, these same judges often appoint experts to address - in written reports - both issues related to the applicable law and factual issues, when special or technical knowledge is involved. Id. at Art. 266. That said, even then, the parties are free to respond to any evidence so gathered and challenge the expert reports, using reports prepared by their own experts.

No "Discovery" in Turkey

One of the biggest differences between Turkey and, say, the common law UK and US legal systems, is the absence of what is known in the US as "discovery". Turkish litigators spend no time, outside of court, sparing with each other about such things as the adequacy of another party's response to discovery, e.g., the bitter "advocacy" one sees at U.S. depositions. Instead, requests, if any, for evidence from adverse parties are made through the courts.

No "Trials" in Turkey

Another significant difference is the absence of an all-encompassing - and live, often before a jury - "trial" near the end of any given proceeding. The Turkish equivalent of a trial is a series of "hearings" before the court, at which evidence and legal argument are presented over a period of time, using, for the most part, written pleadings. Evidence is almost exclusively documentary, with testimonial evidence rare. Finally, there are no jury trials in Turkey, with judges the sole triers of fact and law.

1.2 Court System

Turkey has a three-tier court system, namely:

  • Courts of First Instance, the trial courts;
  • Regional Courts of Appeal, the intermediate appellate courts; and
  • Court of Cassation, the appellate court of last resort.

Courts of First Instance are organised by subject matter, including civil, commercial, consumer, criminal, family, intellectual property and probate courts.

Turkey also has administrative courts, with their own appellate courts, which handle matters involving the acts of governmental administrative authorities.

1.3 Court Filings and Proceedings

Turkish court proceedings are for the most part open to the public. Exceptions include proceedings involving issues of national security or when it is determined the interests of parties may be unfairly affected. Taking video and photographs, as well as making audio recordings, is prohibited.

Court filings are only accessible to licensed Turkish lawyers. Although all lawyers can examine court filings, only those having power of attorney in any given matter (i.e., party counsel, can obtain copies of filings.

1.4 Legal Representation in Court

All persons, including foreigners, can represent themselves before Turkish courts; legal representation is not mandatory. Only lawyers can represent a party, however, and these lawyers must be Turkish citizens, licensed, and registered with a Turkish bar association.

Foreign lawyers are, accordingly, prohibited from representing parties before Turkish courts. They may attend proceedings as observers, and participate as experts (e.g., on foreign law) or as fact witnesses (e.g., when they have personal knowledge of relevant facts).

2 Litigation Funding

2.1 Third-Party Litigation Funding

Third-party litigation funding is not specifically addressed, one way or the other, in Turkish law. While it is thus not explicitly prohibited under Turkish law, due to the lack of certainty surrounding the subject, among other reasons, third-party funding is almost non-existent in Turkey.

2.2 Contingency Fees

Contingency fees are not permitted in Turkey, as Turkish lawyers are legally obliged to charge their clients, the minimum amount of which is set forth in published Attorney Fee Tariff Schedules. Attorneyship Law (No. 1136), Art. 164/4.

Contingency fee-like fee arrangements, better described as the provision of a "success fee" - the amount of which must be tied to the damages at issue in proceedings - are allowed in Turkey, provided the right to such fees is set forth in a written engagement agreement. Regardless, total attorney fees, including any success fee, cannot exceed 25% of the case value.

3 Initiating a Lawsuit

3.1 Rules on Pre-action Conduct

Generally speaking, there is no mandatory pre-filing conduct required by Turkish law, such as serving a demand letter or attempting settlement.

In certain matters, however, pre-filing mandatory mediation is required, including those involving issues arising under the Labour Law, all commercial disputes in which monetary claims are alleged, and certain consumer disputes.

3.2 Statutes of Limitations

In Turkey, the limitation period is ten years, unless the law provides otherwise. Important examples of shorter periods include:

  • For damage claim arising under construction agreements and leases, as well as those related to salaries and pensions, the limitation period is five years;
  • The limitation period is two years for tort claims; and
  • The limitation period is two years for unjust enrichment claims.

Unless otherwise provided in the law, limitation periods being to run as of the date of the harm for which relief is sought. Thus, with regard to claims related to the non-performance of contractual obligations, the period begins to run as of the date the performance in question was to have been made.

3.3 Jurisdictional Requirements for a Defendant

The primary requirement for defendants to be subject to suit in Turkey, in the absence of an agreement between the parties to the contrary, is that they be domiciled in Turkey. Exceptions to this requirement include, among others, certain contractual claims, where the contract was, or is to be, performed in Turkey. Somewhat similar are tort claims where the harm for which compensation is sought was suffered in Turkey. Code of International Private and Procedural Law (No. 5718); Code of Civ. Proc. (No. 6100). 

Something of an exception to the domicile requirement exists for in rem (i.e., "against a thing") proceedings involving real estate located in Turkey and for probate matters involving the distribution of assets located in Turkey, as to which Turkish courts have exclusive jurisdiction. In these case, Turkish courts have the power to make determinations impacting the rights of defendants not domiciled in Turkey, provided they have been properly served.

3.4 Initial Complaint

To initiate a lawsuit in Turkey, plaintiffs submit an initial petition, known as a "complaint" in the USA, to the relevant court. The initial petition is to include:

  • The parties' names and addresses;
  • The name and address of the plaintiff's attorney;
  • The relief sought;
  • A detailed description of the relevant facts, and supporting evidence (often with documentary evidence attached); and
  • A precise articulation, including the legal basis, of the claims.

As a rule, plaintiffs are permitted to - without court approval, and whether or not the defendants have filed a response to the initial petition - submit a second initial petition, in which they are free to include additional claims as well as to modify their previous claims, including modifying the facts and evidence described therein.

After the submission of an initial petition or, as the case may be, the permitted second initial petition, plaintiffs are, generally speaking, not permitted to further amend their claims, in whole or in part, without the agreement of the adverse parties.

3.5 Rules of Service

Domestic Service

The courts, rather than the plaintiffs, serve the initial petition, which is made on defendants domiciled in Turkey by certified mail. The same is true with regard to all subsequent court filings by the parties, that is their service is the courts' responsibility. See Notification Act (No. 7201).

Significantly, Turkish citizens and entities are required to register their addresses with the government and, if they move, to immediately register their new addresses. The consequences of, say, a failure to register a new address can be serious. For example, if a party who is being sued has failed to do so, service at the old address will be considered proper, with relief for such a failure rarely given. 

International Service

With regard to service on a foreign party, when the party is domiciled in a country which is a signatory of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - to which Turkey is a signatory, one of nearly 80 such signatories - the provisions of the Convention apply. Briefly, service pursuant to the Convention on the foreign party is the responsibility of the state in which the foreign party is domiciled. Turkish courts will send a request for service directly to a central authority designated, pursuant to the Convention, by the country in question, which will then arrange service pursuant to its domestic law (typically through a local court).

When the Convention does not apply - for instance, the country in which the party to be served is not a signatory of the Convention - service of process is made through Turkish embassies and consulates, as provided for in the Turkish Notification Act.

3.6 Failure to Respond

If a defendant fails to respond to a properly served initial petition, rather than this resulting in a default, it is presumed the defendant denies all allegations contained in the petition. The defendant, however, will not be permitted to present defences or other facts or legal arguments falling outside the limits of this presumed denial.

3.7 Representative or Collective Actions

Class actions are not permitted in Turkey. Presently, Turkey still subscribes to the principle that, before parties can be held accountable by, or benefit from, a judgment of a court, those parties have to be involved (i.e., be served and actively participate) in the proceedings.

That said, limited "mass actions" are provided for in the Code of Civil Procedure (No. 6100), enabling "representative" legal actions by entities or associations who bring such actions on behalf of their membership, including labour unions and certain associations representing the rights of consumers.

4 Pre-trial Proceedings

4.1 Interim Applications/Motions

In addition to the responses immediately following, requests for certain interim relief (i.e., injunctions) are discussed at some length in the response to Question 6, "Injunctive Relief", below. Otherwise, during the series of hearings that follow the filing of the initial petition, and prior to the court issuing its final judgment, there are a wide variety of what are fairly described as applications and motions made by both the parties and the court.

Thus, for example, parties normally make numerous requests, through the court, concerning evidence, such as requesting additional evidence be presented by opposing parties. Similarly, courts will appoint experts to weigh in on certain factual and legal issues and, either ex officio or at the request of a party, order additional evidence be presented. Several of these requests are discussed in more detail in response to Question 5, "Discovery", below.

4.2 Early Judgment Applications

There are no early judgement mechanisms, such as motions for summary adjudication or judgment, provided for in Turkish law.

4.3 Dispositive Motions

As noted above, no early judgment mechanisms are provided for in Turkey. That said, courts do consider certain preliminary matters, which are sometimes dispositive, prior to moving on to examine the merits of the cases before them. Thus, courts, ex officio, will consider their competency and jurisdiction to hear the case, whether the parties have the capacity to sue, or be sued, and whether the parties asserting claims have a legal "interest" at stake, that is, whether it has sustained or are likely to sustain an injury for which the court can grant relief. Code of Civ. Proc. (No. 6100), Art. 140.

If any of these requirements are not met, the matter or, as the case may be, the party, will be dismissed "on procedural grounds", although often while providing an opportunity for the deficiencies to be corrected.

4.4 Requirements for Interested Parties to Join a Lawsuit

The Turkish legal system provides for "interested" persons or entities to join an ongoing lawsuit, as follows:

  • "Compulsory joinder", when more than one person or entity has joint ownership of a right or a debt which cannot be divided, and this right or debt is at issue in the lawsuit, this person or entity must be joined to the case. Code of Civ. Proc. (No. 6100), Arts. 59-60; and
  • "Voluntary joinder", when, for example, any of the parties, and an interested non-party party, have a common right or debt, or the right or a debt has arisen through a common action taken by the interested parties, the interest non-party has the right to apply for voluntary joinder. at Arts. 57-58.

4.5 Applications for Security for Defendant's Costs

Plaintiffs are rarely required to provide security for a defendant's costs. There are three occasions, however, when a plaintiff is likely to be so required:

  • When the plaintiff is a Turkish citizen, but is not domiciled in Turkey;
  • When the plaintiff is insolvent, in bankruptcy or has applied for "concordat", a procedure providing protection from creditors; or
  • When a foreign person or entity initiates a lawsuit, joins a lawsuit or initiates execution procedures in Turkey.

Code of Civ. Proc. (No. 6100), Art. 84; Code of International Private and Procedural Law (No. 5718), Art. 48.

4.6 Costs of Interim Applications/Motions

Generally speaking, the costs of the interim applications/motions described in the responses above, and in Question 6 below - when there are any costs associated with them at all - are the responsibility of the applicant (i.e., the moving party).

4.7 Application/Motion Timeframe

There are no explicit provisions in Turkish law providing a timeframe within which the applications/motions discussed above are to be addressed by the court. Our, ASC Law's, experience, however, is that they are addressed, despite extremely heavy caseloads, within reasonable period of time.

5 Discovery

5.1 Discovery and Civil Cases

In Turkey, "discovery", as it is known in the US, is not available. Instead, the gathering of evidence to be presented in court proceedings, whether documentary or testimonial, is for the most part left to the parties. Code of Civ. Proc. (No. 6100), Art. 194.

That said, a party may request the judge to order another party to produce relevant evidence in that party's possession, including both documents and witnesses. In addition, judges have the power, ex officio, to "clarify" the matters before them, giving them the right to request parties produce additional evidence as well as question them about their theories of liability and supporting evidence. Id. at Art. 31.

Similarly, these judges have the power, also ex officio, to appoint experts to consider certain issues of fact and law, after which the experts are to set forth their findings and/or opinions in written reports. Id. at Art. 266. Turkish judges can also conduct on-site inspections, when relevant (id. at Art. 288) and are free to question party witnesses during their testimony before the court (id. at Art. 261).

5.2 Discovery and Third Parties

Under Turkish law, the parties themselves have not right to obtain relevant evidence in the possession of third parties. A court, however, upon request or ex officio, can order non-parties to provide documentation it believes is necessary for the proper resolution of the matter before it. Code of Civ. Proc., Art. 221.

5.3 Discovery in this Jurisdiction

As noted above, there is no "discovery" in Turkey, as it is known in the US. Somewhat similarly, there are no rules, detailed or otherwise, concerning the disclosure of documents, or other information, by the parties. As already mentioned, the gathering of evidence to be presented in court proceedings, whether documentary or testimonial, is largely left to the parties.

5.4 Alternatives to Discovery Mechanisms

Briefly, as discussed in more detail above, the gathering of evidence to be presented in court proceedings, whether documentary or testimonial, is for the most part the parties' responsibility.

In this regard, parties have the right to request evidence from the other parties. At the same time, Turkish judges have the right to request, or otherwise obtain additional evidence, from both parties and non-parties, in order to "clarify" issues in the matters before them.

This approach to gathering evidence has "teeth" given judges may, at the time they make their final decisions, take a failure by a party to produce requested evidence into account when considering the sufficiency of the evidence these parties have presented in support of their claims or defences.

5.5 Legal Privilege

The Turkish legal system recognises, and strictly enforces, an attorney-client privilege between lawyers and their clients. Thus, lawyers are not allowed, and cannot be forced, to disclose privileged information obtained within the scope of an engagement, including attorney-client communications and work product generated by the lawyers as part of their representation. Attorneyship Law (No. 1136), Art. 36.

In-house counsel, however, have no such protection. Their relationship with their employer is seen, under the law, as an employee-employer relationship, not an attorney-client one. Thus, for example, communications between in-house counsel and their employer, and what would otherwise be protected as work product, are not treated as privileged and confidential.

5.6 Rules Disallowing Disclosure of a Document

In addition to attorney-client privilege limitation on document disclosure, some of the significant limitations on the disclosure of documents include the following:

  • Financial institutions, such as banks, are obliged to keep all customer information and related documents confidential (Banking Law (No. 5411, Art. 73), except when, for example, requests to review such are made by authorized governmental authorities ( at Art. 73/3);
  • Records and information obtained, and/or created, about patients during the provision of healthcare services are also to be kept confidential. Regulation on Provision of Processing and Privacy of Personal Health Data, Art. 5; and
  • Independent auditors and financial consultants are obliged to keep their clients' commercial information confidential. Accountants and Certified Financial Advisory Law (No. 3568), Art. 43.

6 Injunctive Relief

6.1 Circumstances of Injunctive Relief

It is possible for a party to request certain interim protective measures from Turkish courts, primarily aimed at maintaining the "status quo" for the protection of a party's rights before and during the final disposition of a matter. These measures include:

  • Injunctions on certain activities of a party, g., the dissipation of assets to which another party may look for the satisfaction of any monetary judgment it may obtain;
  • Interim attachment orders, providing for the attachment of a party's assets, such as bank accounts; and
  • "Determinations of evidence", e., the "recording" of evidence that might otherwise be lost.

To obtain such interim relief, however, several strict requirements must be met by the party seeking such relief. These include:

  • Proof of a prima facie case on the merits, e., the existence of a right susceptible of protection;
  • Proof of "Urgency", g., the existence of an "imminent danger" of irreparable harm being suffered and/or likely to be suffered;
  • Proof of "Necessity", e., that the interim relief sought would prevent and/or reduce the threatened harm; and
  • Proof of "Proportionality", e., that the balance - of the burdens each party would suffer if the requested relief were put in place, or not - favours the party seeking the relief.

Code of Civ. Proc., Art. 389 et seq.

6.2 Arrangements for Obtaining Urgent Injunctive Relief

There is no explicit timeframe within which Turkish courts are to rule on injunctive relief requests. As a general matter, however, courts are obligated to respect the parties' right to have their matters resolved within a "reasonable time" while acting "in accordance with procedural economy". Code of Civ. Proc. (No. 6100), Art. 30.

In this regard, our, ASC Law's, experience is that courts take applications for injunctive relief quite seriously and, despite heavy caseloads, make their rulings within a reasonable period of time.

6.3 Availability of Injunctive Relief on an Ex Parte Basis

Injunctive relief, as is the case with other requests for interim relief, can be sought, and provided for, by the court on an ex parte basis.

If the requested relief is granted, notice of the decision is provided to the counterparty. If that party objects, a further hearing will be scheduled to consider whether the injunction should be extended, or otherwise modified - or, indeed, lifted in its entirety. Id. at Art. 389 et seq.

6.4 Liability for Damages for the Applicant

An applicant for injunctive relief can be held liable for any damages suffered by the party against whom the injunction relief was directed, if it is later determined the injunction was unjust and the party against whom it was imposed suffered damages.

In order to protect the rights of the party against whom injunctive relief is being sought, the court may require the applicant to post security. A requirement to post security may be imposed whether the proceedings are held ex parte or after notice. Id. at Art. 392.

6.5 Respondent's Worldwide Assets and Injunctive Relief

Turkish courts are not allowed to grant injunctive relief against the "worldwide" (i.e., non-Turkish) assets of a party, since decisions regarding the seizure of a party's assets are considered domestic matters.

6.6 Third Parties and Injunctive Relief

Injunctive relief may only be obtained against a person or entity that is a party to the lawsuit - that is, it cannot be obtained against a third party. That said, of course, the implementation of injunctive relief may involve third parties, such as banks instructed to freeze a party's bank accounts.

6.7 Consequences of a Respondent's Non-compliance

If parties subject to an injunction or, indeed, any ordered interim measure, fail to comply with, or violate, the terms of the injunction, they face, at least theoretically, in addition to criminal fines, between one to six months imprisonment. Id. at Art. 398.

7 Trials and Hearings

7.1 Trial Proceedings

In the Turkish legal system, there is no "trial" as it is known in common law jurisdictions. Instead, there are a series of hearings held through the issuance of a final judgment.

During this series of hearings, evidence and legal argument is presented, primarily, by way of written submissions. Similarly, although witnesses, both factual and expert, can be called to a hearing to give live testimony, or be cross-examined, such testimony is rare in Turkish litigation.

7.2 Case Management Hearings

In Turkey, there is no "case management hearing" as such, although courts will usually, with input from the parties, chart out, early on, how they would like the proceedings that follow to play out.

7.3 Jury Trials in Civil Cases

There are no jury trials in Turkey, with courts acting as the sole triers of fact and law.

7.4 Rules that Govern Admission of Evidence

In Turkey, there are no "Rules of Evidence", as are found in, for example, the US. Generally, the parties are to submit the evidence they believe is relevant and supports their claims and defences, with the only explicit restriction being that the evidence has not been obtained unlawfully. Courts make the final determination on the authenticity of the documents presented by the parties, and the relevance of all submitted evidence, whether documentary or testimonial.

As mentioned earlier, witnesses are, for the most part, to have personal knowledge of the matters about which they testify, but are often permitted to go beyond that, particularly when testifying about non-contested facts or about general background. Although speculation is to be avoided, the courts are free to consider such, when they find it helpful for their decision making.

7.5 Expert Testimony

In the Turkish legal system, expert testimony is widely used, primarily experts appointed by the courts on their own motion. If the court, or the parties, believe an expert report is contradictory or needs to be clarified, the experts may be ordered to supplement their reports and/or invited to a hearing for questioning by the parties and the court. 

7.6 Extent to Which Hearings Are Open to the Public

As discussed above, in response to Question 1.3, "Court Filings and Proceedings", Turkish court proceedings are for the most part open to the public. Exceptions include proceedings involving issues of national security or when it is determined the interests of parties may be unfairly affected. Taking video and photographs, as well as making audio recordings, are prohibited in all proceedings.

7.7 Level of Intervention by a Judge

As noted above, in response to Question 1.1, "General Characteristics of the Legal System", the Turkish legal system is best described, at least when it comes to non-criminal matters, as having both "inquisitorial" and "adversarial" attributes. Overall, it is probably fair to say - although difficult to quantify, and open to debate - that Turkish judges are more involved in the proceedings than those in common law jurisdictions. 

More particularly, Turkish judges "referee" party requests for additional evidence from other parties or third parties. Turkish judges also have the responsibility to "clarify" matters before them, which allows them, ex officio, to question the parties, and their evidence. Code of Civ. Proc., Art. 31. Similarly, Turkish judges have the power, ex officio, to appoint experts to review certain issues, both factual and legal. Id. at Art. 266. Moreover, Turkish judges can also conduct on-site inspections, when appropriate (id. at Art. 288) and are free to question party witnesses (id. at Art. 261).

In addition, judges make all determinations about the authenticity of all documents presented as evidence, while determining the relevance of all evidence presented. In all respects, Turkish judges are the exclusive triers of all issues of fact and law arising in the proceedings before them, including having the responsibility for making the final judgment.

7.8 General Timeframes for Proceedings

Litigation of disputes in Turkey, after the filing of the initial petition, which initiates the proceedings, through the court issuing a final judgment, occurs over a period of time through a series of hearings before the court.

8 Settlement

8.1 Court Approval

Generally speaking, court approval of settlements is not required, as the parties are free to settle lawsuits as they see fit. Exceptions, however, fall under the rubric of "public order", a term that is difficult to define but which includes, as a quintessential example, matters involving family law, such child support, parental visitation and paternity.

8.2 Settlement of Lawsuits and Confidentiality

The parties may agree the contents of settlement agreements, including those negotiated during mediation, are to remain confidential.

8.3 Enforcement of Settlement Agreements

Settlement agreements are enforceable, or not, as provided for under Turkish private law, like all other agreements.

9 Damages and Judgment

9.1 Awards Available to the Successful Litigant

Relief available to successful Turkish litigants can include:

  • Monetary awards, for damage suffered, with interest;
  • Declaratory relief;
  • Specific performance;
  • Contract adaptation;
  • Attorney fees; and
  • Court and legal costs.

9.2 Rules Regarding Damages

There is no Turkish law limiting the maximum damages a party may be awarded, provided the party awarded damages has provided sufficient evidence its damages were proximately caused by the adverse party, while also providing adequate evidence supporting the damage amount claimed.

Certain "moral" damages are recoverable, such as for pain and suffering and loss of consortium. Code of Obligations (No. 6098), Arts. 56 and 58. 

Under Turkish law, punitive damages are not allowed.

9.3 Pre- and Post-Judgment Interest

A party may recover "pre-judgment" interest on the amount of an award, for the time period between the date the damages were suffered (e.g., the due date for monetary obligations or the date of the injury in actions sounding in tort) and the date of the judgment. A party may also be awarded "post-judgment" interest on the amount of an award, for the time between the date of the judgment and its satisfaction. There are no statutory limits on the amount of either pre- or post-judgment interest. Id. at Arts. 88 and 120.

Regarding damages awarded for breach of contract claims, the interest rate is either the rate provided for in the contract or, if none is provided, the "commercial" interest rate, presently 16.75% per annum.

For all other interest calculations on damage awards, the "legal" interest rate is applied, presently 9% per annum.

9.4 Enforcement Mechanisms of a Domestic Judgment

In the Turkish legal system, when the losing party, the "judgment debtor", fails to satisfy a judgment voluntarily, the only option available to the prevailing party, the "judgment creditor", is to initiate formal enforcement proceedings. "Self-help", such as the judgment creditor personally taking possession of assets of the judgment debtor, is strictly prohibited.

All enforcement efforts must be done under the auspices of a government Enforcement Office, which will utilize, as required, a variety of collection methods. These include the garnishment of wages, seizure of bank accounts and personal property, and initiation of foreclose proceedings against real property.

9.5 Enforcement of a Judgment from a Foreign Country

Enforcement of a foreign judgment requires the recognition and enforcement of the judgment by Turkish courts. That recognition, and any subsequent enforcement, however, is not automatic, and depends on the existence of "reciprocity", i.e., either: (i) the existence of a treaty between Turkey and the country whose judgment is sought to be enforced, which provides for such reciprocal enforcement; or (ii) proof that the country in question allows the enforcement of Turkish judgments, i.e., reciprocity of enforcement is the reality.

Even when "reciprocity" exists, the enforcement of a foreign judgement also requires that the judgment:

  • Be made by an official foreign court;
  • Involves the resolution of a "legal dispute"; and
  • Has become binding on the parties.

Code of International Private and Procedural Law (No. 5718), Art. 50.

Once recognized, the foreign judgment treated as res judicata, i.e., as if "decided" in Turkey.

10 Appeal

10.1 Levels of Appeal or Review to a Litigation

As set forth in response to Question 1.2, "the Court System", above, Turkey has a three-level court system. Appeals of decision by the Courts of First Instance can be made to the Regional Courts of Appeal, with any appeal of the decisions of this appellate court made to the Court of Cassation, the highest appellate court in Turkey.

10.2 Rules Concerning Appeals of Judgments

If the conditions provided for in the Turkish Code of Civil Procedure are met, appeal is possible by one, or more, of the parties to a judgment of the Courts of First Instance. 

Appeals to the Regional Courts of Appeal

Decisions that can be appealed from Courts of First Instance to the Regional Courts of Appeal include, among others:

  • Final judgments, where the amount at issue exceeds TRY5,880;
  • Refusals of requests for injunctive relief; and
  • Provisional attachment orders.

Code of Civ. Proc. (No. 6100), Art. 341.

Appeals to the Court of Cassation

Appeals of final decisions of one of the Regional Court of Appeals to the Court of Cassation are permitted where, most importantly, the amount at issue in the decision of the intermediate appellate court exceeds T78,630.  Id. at Arts. 361-362. 

10.3 Procedure for Taking an Appeal

Appeals to the Regional Courts of Appeal, as well as to the Court of Cassation, must be lodged by the appellant within two weeks of the date of service of the decision being appealed.

10.4 Issues Considered by the Appeal Court at an Appeal

Regional Courts of Appeal

If a party appeals a decision of a Court of First Instance, all aspects of the trial court's decision can be reviewed - i.e., both legal and factual. Thus, for example, the Regional Courts of Appeal may re-evaluate evidence, including hearing again from witnesses. However, its review is limited to the claims and defences already raised by the parties before the Court of First Instance, provided issues related to them have been identified in the appellant's petition of appeal. In other words, the Regional Courts of Appeal have the authority to review all matters concerning the handling of the case by the Court of First Instance.

Court of Cassation

Review by the Court of Cassation of decisions of the Regional Courts of Appeal is less broad, and is limited to considering whether the law has been properly applied by the lower courts (i.e., the legal issues challenged in the appellant's petition of appeal). 

10.5 Court-Imposed Conditions on Granting an Appeal

The conditions of appeal to both the Regional Courts of Appeal and the Court of Cassation are those explicitly set forth in the Code of Civil Procedure. Neither the Courts of First Instance, nor the Regional Courts of Appeal and Court of Cassation, can impose additional conditions.

In other words, the right to appeal is granted by the law, not by the courts, and if the appellants have satisfied the conditions found in the Code of Civil Procedure, they have the right to have their appeal considered.

10.6 Powers of the Appellate Court after an Appeal Hearing

Powers of the Regional Courts of Appeal

The Regional Courts of Appeal may decide to:

  • Reject the appeal, and uphold the lower court's decision on the grounds the decision was correct as a matter of fact and law;
  • Accept the appeal, and reverse the decision of the Court of First Instance on the ground the trial court's decision was incorrect as a matter of either fact of law; or
  • Accept the appeal and reassess the case file and issue a new decision, as if a Court of First Instance.

Code of Civ. Proc. (No. 6100), Art. 341 et seq.

Powers of the Court of Cassation

The Court of Cassation may either uphold or reverse the decision of the Regional Courts of Appeal. If the appealed decision is reversed, the Court of Cassation will send the case file back to the Regional Court of Appeal for reconsideration in light of its decision.

11 Costs

11.1 Responsibility for Paying the Costs of Litigation

In Turkey, the costs of litigation, including both court fees and legal costs, are to be awarded to the "prevailing" party. Code of Civ. Proc. (No. 6100), Art. 332. Judges, however, have the discretion to allocate these costs between the parties, when, for example, the parties have prevailed on some issues but not on others. Ibid.

11.2 Factors Considered when Awarding Costs

The primary factor in play when courts consider their award of costs is which party "prevailed". When the judgment is a mixed bag - such as when a plaintiff is not awarded all of the relief requested, e.g., the amount awarded is less than what was sought - the courts have the power to allocate the costs of litigation between the parties, while considering the relative success of the parties with regard to their claims and defences.

11.3 Interest Awarded on Costs

No interest accrues on the litigation cost incurred by the parties during the court proceedings. If such costs are included as part of the judgment, however, interest will accrue on that amount, until the judgment is satisfied, at the legal rate of 9% per annum.

12 Alternative Dispute Resolution (ADR)

12.1 Views of ADR within the Country

Historically, Alternative Dispute Resolution ("ADR") has not been particularly popular in Turkey, given among other things the relatively low cost of litigation in its local courts. More recently, however, as these local courts have become increasing burdened with large caseloads, and the concomitant decrease in the attention these courts can give to any particular matter before them, Turkish litigants have increasingly turned to ADR.

At the same time, also in response to the local courts increasing caseload, more ADR alternatives have been made available, such as new arbitration options - e.g., the Istanbul Arbitration Centre, or ISTAC, which opened for business in 2016 - and mediation, an option greatly enhanced by the 2012 passage of the Law on Mediation in Civil Disputes (No. 6325).

12.2 ADR within the Legal System

Arbitration Options

Several domestic arbitration options have been available in Turkey for quite some time, albeit they are not particularly busy. A meaningful positive development in this regard was the well-publicised inauguration, in 2016, of the Istanbul Arbitration Centre ("ISTAC"). ISTAC has proven to be quite popular, and over time is becoming more so. Even the existing arbitral fora have seen an uptick in the number of matters being brought before them.

More difficult to quantify, but nevertheless real, is that more and more Turkish and foreign entities have been insisting that arbitration be used to resolve disputes arising between them and their counterparties, presumably in at least a partial reaction to concerns about the local court alternative.

Mediation Options:

Discussions starting in the early 2010s - about making the mediation of disputes more widely available - led to the passage of the Law on Mediation in Civil Disputes mentioned above. Subsequently, the use of voluntary mediation of disputes dramatically increased, and have only increased further now mandatory mediation is required for certain types of disputes. Response to Question 3.1, "Rules on Pre-action Conduct", above (matters involving issues arising under the Labour Law, all commercial disputes in which monetary claims are alleged, and certain consumer disputes). 

12.3 ADR Institutions

Arbitration

There are many competent organisations that offer and promote arbitration services in Turkey, the primary ones being the:

  • Istanbul Arbitration Centre, aka ISTAC;
  • Turkish Union of Chambers and Commodity Exchanges; and
  • Istanbul and Izmir Chambers of Commerce.

Mediation

Over the past decade, there has been a growing consensus in Turkey about the efficacy of mediation. During this time, many associations have been established to promote this form of ADR, including the:

  • Istanbul Mediation Association;
  • Alternative Dispute Resolution Center of the Ankara Bar Association;
  • Istanbul Mediation Volunteers Association; and
  • Arbitration/Mediation Center of the Istanbul Chamber of Commerce.

13 Arbitration

13.1 Laws Regarding the Conduct of Arbitration

The conduct of international arbitration in Turkey is governed by the International Arbitration Act (No. 4686) and the International Private and Procedural Law (No. 5718). The conduct of domestic arbitration is governed by the Code of Civil Procedure (No. 6100).

13.2 Subject Matters Not Referred to Arbitration

Generally speaking, disputes involving serious interests beyond those of the parties to the disputes are deemed not suitable for arbitration.

Important examples of such disputes are family law-related disputes, such as disputes regarding child custody and paternity, and disputes related to certain ownership rights in real estate located in Turkey.

13.3 Circumstances to Challenge an Arbitral Award

Domestic arbitral awards may be challenged by the parties on the grounds the arbitral award was not rendered in accordance with the law. Code of Civ. Proc. (No. 6100), Art. 439.

Regarding foreign arbitral awards, parties are able to challenge them (i.e., seek their "set aside") pursuant to the International Arbitration Act (No. 4686), Article 15 or, as the case may be, the International Private and Procedural Law (No. 5718), Articles 60 and 63. Important grounds include:

  • Incapacity of one of the parties;
  • Invalidity of the arbitration agreement;
  • Breach of due process, g., the "right to be heard";
  • Award exceeding the jurisdiction of the arbitral tribunal;
  • Dispute not being arbitrable; or
  • Breach of public policy.

13.4 Procedure for Enforcing Domestic and Foreign Arbitration

Arbitration Act (No. 4686) and the International Private and Procedural Law (No. 5718) are the legislative references. Domestic arbitral awards are enforced in the same manner as judgments of the Turkish courts. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.