UncategorizedMAIN DISPUTE RESOLUTION METHODS IN TURKEY

April 30, 2018by Ezgi Aydemir0

 

  1. What are the main dispute resolution methods used in your jurisdiction to resolve large commercial disputes?

 

The main and most commonly used method for resolving large commercial disputes in Turkey is litigation.

COURT LITIGATION

Limitation periods

  1. What limitation periods apply to bringing a claim and what triggers a limitation period?

The general limitation period is ten years, which applies where the law does not provide a specific limitation period (Code of Obligations). However, the statute of limitation is from two to five years for some claims.

Rights of audience

  1. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? Can foreign lawyers conduct cases in these courts?

Only Turkish nationals who have graduated from a law school and who are also members of the Turkish Bar Association can represent clients in the Turkish courts (Advocacy Code). In addition, a party can represent itself in court proceedings, including court hearings. An authorised representative of a legal entity can represent the legal entity.

 

Foreign lawyers cannot represent their clients before the Turkish courts and execution offices (Advocacy Code).

Main stages

  1. What are the main stages of typical court proceedings?

The main stages of civil proceedings are as follows:

  • Exchange of petitions.
  • Preliminary proceedings.
  • Examination phase.
  • Oral proceedings.
  • Appeal (if required).

Starting proceedings

A court claim is commenced when the claimant submits its claim petition to the competent court. The date of the court case is deemed the date on which the claim petition is registered in the court file.

Notice to the defendant and defence

Once the claim petition is submitted to the court, the court will issue the opening minutes and serve the petition on the defendant. Following service, the defendant has two weeks to submit its response petition to the court.

 

  1. Can a defendant apply for an order for the claimant to provide security for its costs?

The defendant can apply to the court for an order for the claimant to provide security for the litigation costs, provided that either:

  • The claimant is a Turkish citizen who does not have his or her habitual residence in Turkey.
  • The defendant can provide evidence of the claimant’s financial difficulties (such as insolvency or restructuring proceedings).

 

In addition, foreign claimants must provide security for costs and damages, unless there is a contractual, de facto or legal reciprocity that enables Turkish claimants to file lawsuits without providing security in the state of which the foreign claimant is a national.

Evidence – Disclosure

  1. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

A party must disclose all evidence that it intends to rely on. A party is not required to disclose all relevant documents in its possession, but must only provide documents that it deems appropriate.

In principle, the parties must submit their evidence during the exchange of petitions stage. In the preliminary examination hearing, the court will usually order the parties to submit the evidence listed in the petition or at least provide information on the collection of evidence that is not in their possession within two weeks. If a party fails to comply with this order, he or she will be deemed to have renounced his or her right to rely on the evidence.

Examination of witnesses

  1. Do witnesses of fact give oral evidence or do they just submit written evidence?

Witnesses of fact give oral evidence under Turkish law. The court can ask a witness for written evidence, if it considers it appropriate.

Third party experts

  1. What are the rules in relation to third party experts?

The courts can appoint experts if special and technical knowledge is required to solve the disputes. The experts can be appointed either on the parties’ request or by the court ex officio. In both cases, the appointment is made by the court and the expert is chosen from the list published by the Judicial Commission.

Right of reply

The parties can submit their statements and objections regarding the expert examination report within two weeks of the notification of the report. If the court finds the report insufficient, it can:

  • Ask for explanations.
  • Pose new questions.
  • Order an additional expert examination.

Fees

The Ministry of Justice publishes a tariff of expert fees every year. The judge can increase or decrease the fees published in the tariff if he or she deems it necessary. The fees include investigation, examination, transportation, accommodation and other relevant expenses.

  1. Costs

 

Litigation costs are the actual expenses deposited by the claimant to the court before and during the proceedings, and include the following:

  • Hearing costs.
  • Decision and judgment charges.
  • Notification and postage fees.
  • Filing and documentation fees.
  • Expert and witness fees.
  • Fees and expenses relating to the documents obtained from governmental authorities.
  • The official attorney fee that is determined in line with the minimum tariff of the Turkish Bar Association.

The court will not consider any pre-trial offers to settle when awarding costs and the court cannot manage, limit or otherwise control costs during the proceedings. However, the court must conduct the proceedings within a reasonable time and to avoid unnecessary costs (Article 30, Civil Procedural Code No. 6100).

 

  1. Is interest awarded on costs? If yes, how is it calculated?

The legal interest rate, which is currently 9%, is awarded on litigation costs. The legal interest is calculated as of the date of the court decision.

Enforcement of a local judgment

  1. What are the procedures to enforce a local judgment in the local courts?

The claimant can enforce a local judgment by making an application to the bailiff’s office. The defendant must comply with the enforcement order within seven days of the notification.

The claimant can apply for the attachment of any assets that the defendant may have.

Enforcement of a foreign judgment

  1. What are the procedures to enforce a foreign judgment in the local courts?

The following requirements must be met to enforce a foreign judgment in the local courts:

  • There must be a contractual or de facto reciprocity on enforcement of foreign judgments between Turkey and the country where the foreign judgment was rendered.
  • The decision must be final, binding and enforceable under the laws of the foreign country.
  • The decision must not concern a matter that is subject to the exclusive jurisdiction of the Turkish courts.
  • The decision must not breach the Turkish public order.
  • The counter party’s right of defence must be respected and complied with.

 

Turkey has concluded bilateral treaties with several countries for the enforcement of foreign judgments, such as Albania, Algeria, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, China, Croatia, Egypt, Georgia, Iran, Iraq, Italy, Kazakhstan, Kuwait, Kyrgyzstan, Lithuania, Macedonia, Moldova, Mongolia, Oman, Poland, Republic of Turkish Northern Cyprus, Romania, Slovakia, Tajikistan, Tunisia, Turkmenistan, Ukraine and Uzbekistan.

In addition, on the basis of the de facto reciprocity principle, the Turkish courts can enforce judgments rendered in several countries including Germany, the UK and the US. However, as law and practice differs in each US state, the ability to enforce a US judgment depends on the subject matter of the dispute and the state where the judgment was issued.

 

Please contact our team if you need any assistance with Turkish law and disputes or if you wish to obtain further information.

 

Ezgi Aydemir

Leave a Reply

Your email address will not be published. Required fields are marked *

Follow London Legal International

Building 3- SUITE: 123
North London Business Park,
London, N11 1GN