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Legal ReviewRECOGNITON AND EXECUTION OF FOREIGN COURT’S DECREES

February 24, 20150

Commerce has been developing and bearing more importance in our age by means of the effect of globalization. Being indispensable for the economy and development of the countries , the problem concerning international trade is of great importance.
Recognition and execution of foreign court’s decrees is one of the most interested matters in commerce for the investors in our country. First of all, what is meant by execution must be explained. Recognition is one of the qualities of judicial decrees as a result of having absolute power, enable the substantial executions to be effective and activate the power of state. In order the executional power of judicial decrees to be effective abroad, a case called as recognition is absolutely needed and by means of this case, it can be directly executed. In the same way international arbitrational decrees that solve international disputes don’t have the executional power both in their internal courts they were issued and abroad. Just as the foreign court’s decrees such kind of decrees should be confirmed and recognized by another case, to be executed in the concerning country.
As to the recognition, it is recognizing actual executional power of a foreign court’s decree in Turkey. That means without realization of substantial executive transaction only accepting the executional power of the said decree. If it bears the aim of actual execution to be accomplished then that foreign courts decree must be executed. Without actual execution just accepting the actual executional power of foreign court’s decrees will help in such situations. In a case being tried in Turkey, having the ability of final sentence objection depending upon a foreign court’s decree or depending upon it is conclusive evidence and applying to the authorities for an administrative transaction to be carried by means of a foreign court’s decree.
Recognition has many resemblances to the conditions of execution. First of all, a foreign court’s decree must belong to a matter not concerning the exclusive authorization of Turkish Courts. For example, Turkish Court’s authorization concerning real estates in Turkey is absolute. For this reason, recognition of foreign court’s decree concerning real estates in Turkey is out of question. A foreign court’s decree mustn’t be clearly against the public order. Another requirement is that a foreign court’s decree should be sentential according to the legal procedural conditions of the country it was issued. Besides a foreign court’s decree should apply the authorized law concerning the personal states of Turkish citizens according to Turkish Law of International disputes. However in the decrees of recognition, a stipulation of reciprocity isn’t necessary that has been mentioned in MÖHUK (International Private Procedural Law) Article 38. In case there doesn’t exist an agreement on the basis of reciprocity between Turkey and the country then the decree of execution isn’t applied. However it is not valid for the decrees of recognition. Decrees of recognition can be determined from the point of the states where there’s no reciprocity stipulation between. Additionally, in recognition, the stipulation of compliance with the right of defense isn’t a requisite.
The procedure of recognition varies as to what objection of the foreign court’s decrees is to be recognized. In case of an objection against a final sentence, it will be taken into consideration by the Turkish Court handling the case and the court will examine the foreign court’s decree whether it includes the stipulation of recognition as a contingual exceptional right. In this situation another case of recognition is not needed. The court itself is to solve the dispute. In order an administrative transaction to be carried out the party who claims, should apply the Turkish Courts for the recognition of the said decree. This case can be tried as a determination of evidence.
On account of dismiss of a foreign court’s decree to be recognized in Turkey, the said decree cannot be taken into consideration as an actual execution or evidence. However such a situation won’t prevent the foreign court’s decree to be accepted as discreditional evidence.
As you have observed, recognition of foreign court’s decree has many resemblances to the generally applied system of international law. Consequently, it enables uniform application between Turkish Laws and other foreign systems of law from the point of decrees and by this way increase the reliance to the courts.

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