News & Events

Irish ‘boxer’ acquitted in epic brawl case – Sabah Daily News

https://www.dailysabah.com/investigations/2017/07/13/irish-boxer-acquitted-in-epic-brawl-case

Irish ‘boxer’ acquitted in epic brawl case

DAILY SABAH
ISTANBUL

A Kuwaiti-Irish national, whose brawl with Turkish shopkeepers in Istanbul two years ago went viral after it was captured on camera, was acquitted of assault charges in a trial Wednesday.

Heavy-set Mohammed Fadel Dobbous taking out a legion of shopkeepers one by one in scenes that inspired a beat’em up game, did not attend the trial at an Istanbul court while only one of the men who was assaulted appeared before the court. Şenol Palan, the shopkeeper who broke Dobbous’s arm by hitting him with a stick, was given a suspended jail term of three years and six months.

The Irish man was trying to grab a bottle of water from a refrigerator in Palan’s shop in Istanbul’s Aksaray district when he accidentally knocked down all the bottles in the refrigerator with his muscular arm. What follows – as captured by the security camera footage – is Palan grabbing a stick and jumping on Dobbous. The tourist, who was on the street by the time the shopkeeper came at him, suddenly found himself surrounded by other shopkeepers in the area. Using his amateur boxing skills, Dobbous knocked out the men coming at him with sticks and even a chair, not flinching despite repeated blows. Şenol Palan and others have claimed Dobbous argued with him when he refused to sell him alcohol and deliberately knocked down the bottles. The Irish national had filed a complaint against the shopkeepers for his broken arm.

The court ruled that Dobbous acted in self-defense and Palan was guilty of “deliberate injury.” Judges also suspended a requested fine for Özbey and Mohammad Raie, another assailant of the Irish tourist, ruling that their kicking and punching of Dobbous “did not cause any damage.”

Dobbous, who was represented by his lawyers in yesterday’s hearing, had told the court in the first hearing that the brawl happened “because of a water bottle.”

“I don’t remember what happened next. I was trying to save my life,” he said. “When the bottles fell, the man in the shop tried to hit me with a stick. I grabbed it and threw it away. I was confused. Then, others came at me. I don’t remember their faces. One man tried to stab me in the back,” he claimed. Dobbous also said he “would be done” if he fell when the assailants hit him repeatedly.

Dobbous became an overnight sensation after the video of the almost comical beating emerged. He even received free holiday offers from Turkish tourism companies while several shops started offering “free water for Irish tourists” following the incident. A trade association whose members include shopkeepers in Aksaray has called on its members to be more tolerant and resort to legal means if they have a problem with tourists. The association then handed out leaflets to shops in Aksaray, urging them to improve their manners with tourists.

Turkish game developers even created a game called “Irish Boxer” following the incident. In the game, a character in the likeness of Dobbous starts with the “boxer” standing next to a refrigerator full of water bottles and proceeds with the character beating up angry shopkeepers wielding clubs, chairs and several other objects.

Irish-Kuwaiti tourist acquitted in street brawl case in Turkey – Hurriyet Daily News

http://www.hurriyetdailynews.com/irish-kuwaiti-tourist-acquitted-in-street-brawl-case-in-turkey.aspx?pageID=238&nid=115430

An Irish-Kuwaiti tourist, who made headlines in August 2015 when video footage of his brawl with shopkeepers in Istanbul went viral online, was acquitted in the case by a Turkish court on July 12.

The Istanbul court acquitted Irish-Kuwaiti tourist Mohammed Fadel Dobbous, a former boxer, saying the case was a legitimate incident of self-defense so the suspect should not be punished.

The court sentenced one of the suspects who attacked Dobbous, Şenol Palan, to 3.5 years in jail on charges of “deliberate injury.”

The court also handed monetary fines to two other suspects, whose sentences were postponed.

In the incident captured on camera, Dobbous can be seen going to a corner store in Istanbul’s Aksaray neighborhood to get a bottle of water before accidentally toppling all the bottles in a refrigerator. The owner of the shop immediately confronts Dobbous, brandishing a stick and threatening him. Around 15 shopkeepers then can be seen coming to the shop owner’s support to confront Dobbous.

However, the tourist can then be seen taken on the army of Turkish shopkeepers one by one, expertly parrying blows as the attackers hurl stools and sticks at him.

After footage of the incident emerged, it was revealed that the Dobbous had in fact once been a professional boxer.

July/12/2017

irish_3

ICSID Decisions given in favor of Turkmenistan is enforced by Cindemir Law Office in Turkey.

Turkish Companies were sentenced to compensation at the International Arbitral Tribunal by Republic of Turkmenistan.

Turkmenistan’s Ministry of Justice resorted to the Turkish judicial system through Cindemir Law Office in order for Republic of Turkmenistan to collect the compensations that are contingent with the World Bank’s arbitration (ICSID), against the Turkish Companies. In the statement of the law office’s representative Lawyer Gökhan Cindemir said;

“Turkish Companies were sentenced to compensation at the International Arbitral Tribunal by Republic of Turkmenistan.”
Turkish Companies were sentenced to pay compensation to Republic of Turkmenistan by International Arbitral Tribunal. Headquarters located in Washington, “The International Centre for Settlement of Investment Disputes Arbitration Court” shortly known as “ICSID”, rejected all claims against Republic of Turkmenistan by Turkish companies and sentenced Kılıç İnşaat A.Ş. to pay a compensation of 1,078.215,00 American Dollars.

Within the frame of ten different contracts pursuant to Mutual Promotion and Protection of Investments Treaty, which is signed between Republic of Turkey and Republic of Turkmenistan in 2009, Kılıç İnşaat resorted to referring to arbitration of the World Bank against Republic of Turkmenistan with the claims of harmful activities towards the construction of the facilities, delaying the payments in this context, imposing unfair penalties, commencing judicial process unannounced and without the defendant party’s attendance. After claiming for 275.124.575 American Dollars, the lawsuit was rejected by three arbitrators by a large majority and Turkish company was sentenced to pay compensation.

In another trial, plaintiff İçKale Ltd. Şti.’s claims against Republic of Turkmenistan were rejected and aforementioned company was sentenced to pay a compensation of 1,747,521 American Dollars.

“Arbitration Board Rejected Appeal”
Appeal request by Kılıç İnşaat A.Ş. against the aforementioned sentence submitted in January 13 2014 was rejected by the arbitration board in July 14 2015 and confirmed the compensation of Republic of Turkmenistan.

“Republic of Turkmenistan began the initiatives to collect their dues”
It was found out that through their lawyers in Turkey, Republic of Turkmenistan initiated the necessary legal actions against the companies that were sentenced by the arbitration in order to collect their dues.
Arbitral rulings by the ICSID in the relevant countries in accordance with “Contract of Settling the Investment Disputes between Founding Countries of the International Centre for Settlement of Investment Disputes (ICSID) and Citizens of Other Countries”, of which Turkey is known to be a party of and is signed on 24.6.1987, are considered as a local court ruling and can be directly subjected to enforcement.

“Other International Arbitration Boards Also Decided that Turkish Companies acted under Unjust Manners”
UNCITRAL, Affiliated to United Nations, other arbitral rulings in accordance with the arbitration rules put into effect by “United Nations Council of International Trade Law” also sentenced Turkish companies to remit compensation to Republic of Turkmenistan. Within this scope, 11 Turkish claimants of the pending case (Erhas and others) and businessman Faruk Bozbey were sentenced to compensation as well.

Criminal complained against Mr. Eleftherios Sinadinos

Attorney Gokhan Cindemir filed criminal complained against Mr. Eleftherios Sinadinos by submitting application to Public Prosecutor of Istanbul for the words he mentioned in a debate on the EU-Turkey summit on 9th March 2016 (prosecution registration numbered 2016/37324, dated 11,03,2016). ,Synadinos, a member of Greece’s Golden Dawn party, told the Strasbourg-based European parliament that “as it has been expressed in scientific literature, the Turks are dirty and barbaric.” “Turks are like wild dogs when they play, but when they have to fight against their enemies, they run away,” he added. “The only effective way to deal with the Turks is with decisive and resolute attitudes.” ( https://www.youtube.com/watch?v=DsIgRj8N5nM )

Under Turkish Penal Code, Article 122 explicitly penalizes the conducts based on racial, lingual discrimination with motivation of hatred and in addition Article 301 of Penal code penalizes the act of a person who publicly denigrates Turkish Nation. Unlike article 122, Article 301 Paragraph (4) is subjected approval of Turkish Justice Ministry to be proceeded. Accordingly, we are in the stage of waiting for approval decision of Turkish Justice Ministry to initiate prosecution for the crime which was committed explicitly in Strasbourg, France. Turkish Authorities may also request from European Parliament to give a statement regarding racist speech of Mr. Synadinos. It is believed that painful memories and unforgettable experiences of Europe stemming from WW2 will lead the Parliament for cooperation with Turkish Authorities in order to prevent further breaches of article 165 of the rules of procedure representing a breach of the values of the EU.

Under Turkish Penal Code, alleged crime is also committed in territory of Turkey by means of press and broadcast. In our complaint, alleged crimes attributed to Mr. Synadinos mentioned as the following:

Article 122

-(1) Any person who makes discrimination between individuals because of their racial, lingual, religious, sexual, political, philosophical belief or opinion, or for being supporters of different sects and therefore;
a) Prevents sale, transfer of movable or immovable property, or performance of a service, or
benefiting from a service, or bounds employment or unemployment ofa person to above listed reasons,
b) Refuses to deliver nutriments or to render a public service,
c) Prevents a person to perform an ordinary economic activity, is sentenced to imprisonment from six months to one year or imposed punitive fine.

Article 301
Denigrating the Turkish Nation, the State of the Turkish Republic, the Institutions and Organs of the State
1. A person who publicly denigrates Turkish Nation, the State of the Republic of Turkey, the Grand National Assembly of Turkey, the Government of the Republic of Turkey or the judicial bodies of the State, shall be sentenced a penalty of imprisonment for a term of six months and two years.
2. A person who publicly denigrates the military or security structures shall be punishable according to the first paragraph.
3. Expressions of thought intended to criticize shall not constitute a crime.
4. The prosecution under this article shall be subject to the approval of the Minister of Justice.

Office Lens 20160311-153039 Office Lens 20160311-153101

Compensation of Damages for Foreign Victims due to Terror under Turkish Law

Within the scope of the Law No. 5233 on the Compensation of Damages Resulting from Terrorism and the Fight against Terrorism, the damages of our citizens who are victims of terrorism are compensated. Under Law No. 6353 and Law No. 6495, employment rights in the public services and salaries are provided for our citizens (including foreigners) who are victims of terrorism. Procedures for the allocation of salaries and the compensation of damages are conducted by the Governors’ Offices and by the Organization of Social Security. Procedures for employment are conducted by the Ministry of Family and Social Policies and by the State Personnel Administration.

Training was provided by the Department of Veterans and Relatives of Martyrs for the personnel assigned at the Provincial Directorates of the Ministry of Family and Social Policies for the relatives of martyrs, veterans and citizens who are victims of terrorism on 24-28 February 2014.

It must be boren in mind that there are exceptions regarding the scope of the law.

This law does not apply to:
a) The damages compensated by the state by way of awarding land or houses or in any other
way.
b) The damages compensated due to a court decision or in accordance with Articles 30-31 of
the Code no 4353, Concerning The Service of Finance Proxy Head Law Counselor and Cases
l Public Directorate, Prosecution of GovernmentTrials Procedures and Changes on Central and Town Staff,
c) The damages compensated in accordance with the final judgment of the ECHR taken in line with Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms for violation of the articles of the convention or its additional protocols or the damages paid in accordance with the provisions of the Convention by way of friendly settlement.
d) The damages which occurred due to reasons other than terrorism, such as economic and social reasons, and the damages which occurred due to displacement of persons on their own
will.
e) The damages occurred due to deliberate acts of the persons themselves.
f) The damages suffered by persons on account of their act of aiding and abetting in terror incidents or due to crimes falling under Articles 1, 3 and 4 of the Anti Terror Law provided
that they have been convicted of such crimes
Under article 7, damages which must be compensate is stated as below:

 The damages to be compensated by this Law through peaceful settlement are as follows:

a) All damages given to the animals, trees, – products and other movable and immovable properties.
b) Damages resulting from injury, physical disability and death and the expenses made for medical treatment and funerals.
c) Material damages due to the reason that people could not reach their assets because of the activities carried out under the fight against terrorism.

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Prosecutor demanded acquittal of our client ” Irish Tourist” based on the defence of Cindemir Law Office

http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nID=93465&NewsCatID=509

A Turkish prosecutor has demanded the acquittal of an Irish-Kuwaiti tourist who made headlines in August 2015 when video footage of his brawl with Turkish shopkeepers in Istanbul went viral.

The indictment, which was prepared by Istanbul Chief Public Prosecutor Mehmet Sami Çağlayan, said Irish-Kuwaiti tourist and complainant-suspect Mohammed Fadel Dobbous legally defended himself in accordance with the 25th Article of Turkish criminal law over self-defense and compulsory situation in his brawl with Turkish shopkeepers in Istanbul’s Aksaray neighborhood.

Çağlayan also demanded jail terms for three shopkeeper suspects, Şenol Palan, Mohammed Raie and Şerafettin Özbey, ranging from five to seven years over charges of aggravated malicious wounding. In addition, the prosecutor also demanded a three-to-nine-year sentence for Fadel Dobbous but left the decision to the court, highlighting that his actions were in line with self-defense and thus demanded an acquittal.

The case will be brought to the criminal court of general jurisdiction if the indictment is accepted.

During the incident, Fadel Dobbous went to a local market in Aksaray to get a bottle of water before accidentally toppling all the bottles in a refrigerator after opening the door. The owner of the shop immediately intervened, brandishing a stick and threatening the tourist. Around 15 shopkeepers then came to the shop owner’s support carrying different tools, ranging from sticks to stools.

However, the Irish tourist beat up the army of Turkish shopkeepers one by one, parrying blows as they hurled stools and sticks at him. It later came to light that the Irish tourist had in fact been a professional boxer.

“They just picked the wrong man,” he told private broadcaster Show TV on Aug. 26, 2015, after the incident.
The video of the incident had become a trending topic on Twitter, with most users declaring Fadel Dobbous a hero.

He was also likened to a number of fictional figures, including a Spartan facing 300 Persians, the Hulk, Jackie Chan and Neo from the Matrix.

January/05/2016

Our press statement regarding Keshia Handa

Cindemir Law Office, Istanbul, Turkey, 29.11.2015 – Those who caused the death of Phscholofist Keshia Handa are found halfly negligent due to their wrongful act stemming from lack of taking sufficient precautions in order to prevent possible injury ended with unfortunate death of victim Keshia Handa.

Under investigation file, Istanbul prosecutor claimed that hotel owner and the manager of Büyük Londra Hotel situated in Taksim commited killing by conscious negligence.

Deceased’s parents are repeated their reliance on Turkish Justice despite the fact that their daughter is also found 50 percent negligent based on lack of adequate care. They believe upon our Law Office’s objection to expert report, Turkish Justice will focus on “subjective liability criteria of misconducts” for Keshia who grew up with high standarts of living in developed country.

Cindemir Law Office ,
Adress : Al Mazaya İstanbul Ritim Residences
Cevizli Mahallesi, Zuhal Caddesi no: 44 , b blok daire 18,
Maltepe , İstanbul, Turkey Zip : 34846
Phone : 00902165506775

Irish Tourist ‘s attorney Gokhan Cindemir ‘s press statement.

Introduction to Jurisdiction of Divorce in Turkey

Introduction to Jurisdiction of Divorce in Turkey under Turkish Divorce Law

The competent court related to the foreign elements involved divorce cases are the courts which have jurisdiction over concerning alimony, guardianship, liquation and compensation. Accordingly, a foreign decree encompassing orders of alimony, guardianship, compensation and liquation may refer to Turkish Courts’ competence as an international jurisdiction arising from articles 40 and 41 of international private law. Articles concerned also refers to Article 168 of Turkish Civil Code. According to the provision, competent court for divorce is the court of the place where one of spouses resides or the place both spouses resides together last 6 months prior to the divorce case. Therefore, generally speaking, Turkish Law does not prohibit foreign court’s divorce jurisdiction based on location principle which is indicated in the provision mentioned above.

The other possibility is in case of judgement given by foreign court containing elements related to alimony, guardianship, compensation which are against “Turkish Public Order”, that judgement will not be enforced by Turkish Government. In that situation, solely judgement’s recognition can be carried out by Turkish Court, not enforcement. For instance if foreign court decided that guardianship of common child must be given to one of the spouse but child’s psychology is disregarded while giving the judgment, in that case Turkish Courts only recognize the decision and rejects enforcement of the decision based on violation of Turkish Public Order. In that situation, both spouses must open a new case again in Turkey to fix guardianship status in accordance with Turkish Law. As can be seen that, Turkish Law envisages that issues which can be against Turkish Public Order must be reviewed again under Turkish Jurisdiction. Turkish Public Order criteria related to Divorce Cases are explained with more details below:

Boundaries of Jurisdiction in Divorce Under Turkish Law

It is noteworthy to mention that below criteria cannot be found in Turkish Legislation. These principles became precedent by high court decisions

Child Support Maintenance

A foreign court may give a judgement regarding child support, this judgement solely does not constitute a problem for Turkish Public Order. On the other hand, if a foreign court did not consider the income of the spouse who will pay the alimony, Turkish Court may find it as a violation of Turkish Public Order. Accordingly, rocketing amounts of child maintenance will not be enforced by Turkish Court and that issue must be reviewed under Turkish Jurisdiction with an independent case.

Alimony

From the perspective of consideration of spouse’s income, the same criteria related to “Turkish Public Order” mentioned under title of Child Support also exists for Alimony.

Guardianship

In case that a foreign court will give a judgement concerning guardianship without taking consideration of child’s benefits. For instance, if foreign law gives guardianship Rex Officio to the mother or to the father without examining the needs of the child, Turkish Court will reject enforcement of the judgement based on “Turkish Public Order” Especially if guardianship is decided based on discriminative purposes such as ethnicity, religion, ages or sexuality would be found against “Turkish Public Order”. There are also high court decisions which support this point of view. In case that foreign court does not touch on guardianship issue in its judgement, then there would be no violation of “Turkish Public Order.

Compensation

In case of enforcement of foreign divorce decree in Turkey, Turkish Courts will not examine justness of conviction of compensation. Thus, Turkish Court will not review the reasons related to compensation issue. However, if amount of the compensation given by foreign court significantly causes over exploitation of one of the spouses, Turkish courts would reject enforcement of that decision. Accordingly, compensation determined by foreign court must not cause poverty on one party and at the same time enrichment on another party.

Immovable Assets

It is very important to note that Turkish Courts will not reject enforcement of a foreign divorce decree given by foreign court if the decision does not refer any real estate property in Turkey (Turkish Civil Procedural Law). Main principle of Turkish Law related to real estate property situating in Turkey is defined as “exclusive competence”. Therefore, in case foreign court gives an order related to the real estate property in Turkey, that part of foreign decision cannot not be regarded as enforceable. Thus, a new case must be filed in Turkish Courts related to real estate property for liquation of common assets stemming from family relationship. “Disputes involving real property is to be suited in the court of place where it located” (CC. Pr.Art. 13)

In that case as mentioned already, Turkish Law and related high court decision refers to the necessity of opening an another case in Turkish court of real estate property which has jurisdiction. If the divorce case is filed in Turkey, Turkish Courts would be able to give a decision related to real estate property located in Turkey. However under reciprocity principle, Turkish Court would also avoid to give a judgement concerning the real estate property located in other country

Lastly, it is important to state that, assets stemming from inheritance are regarded as private personal belonging under Turkish Law which means that in case of litiquation of the assets, property acquired by inheritance are totally belonging to the heir.

Asset division/liquidation of the matrimonial property regime

Under Turkish Law, the spouses may regulate their property relations before or after their marriage by means of a contract “marriage settlement”. They may choose one of the contractual systems which are of three kinds as, property separation (mal ayriligi), common property system (mal ortakligi) and partionary property separation system (paylasmali mal ayriligi) The legal property system is called as “system of fusion of the acquired property” (Civil Code Art. 218.241) which basically depends on the participation of the property and income acquired during the marriage. This property may be called as “marital” or “community property”, in other words matrimonial property systems.

Accordingly, Turkish Law also recognizes matrimonial property system as one of the selection of contractual marriage. In that regard, decision given by foreign court related to liquidation based on matrimonial property system will not constitute any problem regarding enforcement of the judgement in Turkey. And under Turkish Law, competent court which has jurisdiction for liquidation is the court which also have jurisdiction for divorce. In other words, the court which has jurisdiction for divorce must decide on liquidation of assets also. (Article 168 of Turkish Civil Code). As a response to your question, there is no separation between jurisdiction to liquidation of assets and jurisdiction of divorce.

Jurisdiction of Divorce under Turkish Divorce Law

Divorce suits may be brought in the place of court of the plaintiffs domicile or the cohabitated domicile of the spouses used within the last 6 months (CC.Pr. Art 9/3)

As can be seen above, there is no any provision prohibiting divorce case against Turkish Citizen in foreign country. Unlike some strict countries, jurisdiction principle is not based on nationality principle, it is based on location principle.

turkish divorceGökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFS intercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

 

Enforcement and Recognition of Foreign Arbitral Awards in Turkey

This article is aimed at explaining current provision and practice of enforcement and Recognition of Foreign Arbitral Awards in Turkey. New York Convention and Turkish Private Law and Procedure Act (Called MÖHUK in Turkey, International Private Law and Procedure Act) related to enforcement of foreign arbitral awards are the main provisions governing terms of subject concerned. It is also noteworthy to mention that according to Turkish Constitution, international treaties have direct effect in Turkish Law based on article 90. Article concerned states that:

“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act No. 5170) In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

As can be understood from the provision above, in case of a contradiction between provisions of national legislation and international treaty, provisions of international agreements shall prevail. In consideration of enforcement of foreign arbitration awards under Turkish Law, provisions of New York Convention have priority in relation to implementation of foreign awards rather than Turkish National Legislation. Thus, if New York Convention’s provisions contradict with Turkish Legislation, New York Convention shall be taken into account as a law which has priority effect. Previously, prior to New York Convention’s entry into force Turkish International Private Law had played so much important role for foreign awards. (The New York Convention came into force in Turkey on 30th September 1992)

Therefore, enforcement of foreign arbitral awards will be governed by New York Convention as a priority rather than Turkish International Private Law. And in that regard, Article 3 of the New York Convention provides that “each contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles.”

Determination of Competent Court and Jurisdiction of the court for Law Suits in the field of enforcement of foreign arbitral awards

Enforcement of Foreign Arbitral Awards

Article 60- (1) Final and executable or binding upon the parties foreign arbitral awards may be subject to enforcement.

(2) The enforcement of a foreign arbitral award shall be requested by a petition from the Court of First Instance mutually designated by the parties in writing. In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person’s place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution.

According to article 60/2 International Private Law of Turkey, component court is Asliye Hukuk Mahkemesi (First Instance Court). Additionally, the court must consider this fact as ex officio under Article 1 of Turkish Civil Procedure Law. In case, lawsuit is filed in the court which does not fall into context of this provision, then the court must reject the lawsuit based on the provision concerned.

The court is only obliged to detect the criteria’s of arbitral award’s enforcement. Accordingly, the subject of these types of lawsuits cannot be regarded as “commercial cases” in doctrine. Unless the case is not totally dealing with copyright and maritime law.

As can be seen from the article 60/2, jurisdiction of the court will be determined based on the presence of an agreement related to the jurisdiction of the court. And “In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person’s place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution.

Court Fees Under the Terms of Enforcement of Foreign Arbitral Awards in Turkey

The court charges comprise four type of levies4: application charge, charge for sittings(charged from the party caused the adjournment of the sittings)  , charge for decision and also for copies of decision and appeal charges . The charges for judgment and writ can be assessed either in fixed terms-as lump sum for non-monetary disputes , or based on certain rates calculated over the nominal value of the dispute.

In arbitral award enforcement cases, court fee will be %0.68,32 of disputed amount. In other words, claim for 1000 Turkish Lira will be subjected to 6,83 lira will be the court fee of the case. It is also important to note that, there will be also extra court fees which will be requested from the court as mentioned above such as application charge, postal and expert (if it is requested) expenses.

Cautio Judicatum Solvi- Security Payment

Article 48 of Turkish International Private Law Act;

(1) Foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court shall be required to provide a security whose amount shall be determined by the court to cover the expenses of the legal procedures and proceedings as well as losses or damages of the other party.

(2) The court may exempt the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis

As can be understood from the provision mentioned above, foreigners who are seeking to enforce arbitral awards in favor of them are subjected to remit security payment to Turkish Court in case of lack of reciprocity.

 In case that judicial assistance agreement or relevant convention’s ratifications lacks between Turkey and third countries, there is a security deposit obligation (Cautio Judicatum Solvi) for foreign legal entities or real persons who intends to initiate a lawsuit or enforcement procedure in Turkey. (Article 97 of the Turkish Code of Civil Procedure and Article 48 of the Code of Private International Law and International Civil Procedure). There is no certain provision laying down the percentage of amount related to deposit, however in practice courts determines %15 of disputed amount as a security deposit.
A Judicial Assistance Agreement Exists between Turkey and the Countries Mentioned Below
Germany, N. Cyprus, Albania, Kuwait, Austria, Lithuania, Azerbaijan, Hungary Bulgaria, Macedonia, Czech Republic, Algeria ,Moldova, China, Mongolia, Morocco, Uzbekistan, Georgia, Poland, India, Romania, Croatia, Tajikistan, Iraq, Tunisia, Jordan, Yugoslavia, United Kingdom, Ukraine, Switzerland, Italy,Kazakhstan.
There are also countries exempt from security deposit due to reciprocity principle in Turkish Private State Law Act. These countries do not apply any security deposit to Turkish citizens and legal entities in case of debt recovery proceeding, accordingly Turkey does not seek any security deposit obligation for mentioned below countries: Russia, Egypt, Chile, Finland, Peru, Libya, Syria.

Also it needed to be born in mind that member states of De Hague Convention on Civil Procedure is also entitled to reciprocity.

Remittance of Security deposit can be provided with several ways such as remittance of the amount to Turkish central bank account in foreign currency, guarantee letter from a bank, pledge on a real state, guarantee letter approved by a Turkish notary and bill of exchange. In the end of case or enforcement procedure, security deposit must be refund to creditor by the court. Real reason behind security deposit is to protect Turkish debtor for possible damages by foreign entities during procedure.

The Law Applying to the Procedure of Arbitral Award Enforcement Cases in Turkey

“Petition and Review Procedure

Article 61-

(1) A party requesting enforcement of a foreign award shall attach the copies of the following documents depending on the number of the other parties:

  1. a) The original or duly certified copy of the arbitration agreement or arbitration clause,
  2. b) The original or duly certified copy of the final and executable or binding upon the parties arbitral award,
  3. c) Translations and duly certified copies of the documents listed in (a) and (b), above.

(2) The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards. “

As it is indicated in first paragraph of a, b, c section of article 61, and relevant documents must be submitted to the court along with the lawsuit petition. In the enforcement procedure, preparation of the case sources requires written documents. It is noteworthy to mention that the court is also obliged to review oral proceedings. Therefore, judicial case procedure consists of written proceedings (submission of petitions, response petitions) and oral proceedings (hearings, interrogation)

Lawsuit petition is required for filing a case at Turkish Courts. The petition must contain following information to be approved by the court for the continuation of the case.

  1. A) Name of the Court
  2. B) First and Surnames of Applicants/ and Defendants and addresses
  3. C) ID number of Applicant (If applicant is a Turkish citizen)
  4. D) The name and address of the attorney at law
  5. E) Disputed amount and subject of the case
  6. F) Summary of cases with numbered paragraph
  7. G) Evidences and other proof methods
  8. H) Legal Reasons

İ) Demand from the court

  1. J) Signature of applicant

It is important to bear in mind that the interest stemming from debt must be explicitly mentioned in the lawsuit petition.

Under Article 325 of the Turkish Code of Civil Procedure, all documents submitted to the court have to be translated. According to the Turkish of Civil Procedure the translation has to be made by a sworn translator and certified by a public notary. Turkish Consulate abroad are also authorized to certify translations. [1]

  1. Submission of Lawsuit Petition

Two original copy of lawsuit petition must be submitted to the court. One of the copy must be preserved in the case file and the other must be submitted to the defendant.

The applicant must remit the court fee and postal cost along with the lawsuit petition.

The case can be filed anytime, even during judicial vacation it is possible to take a lawsuit action.

  1. The law which applies to the procedure

“The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards. “.

In second paragraph of the article, procedure that the court must follow is stipulated. It is important to note that Articles 55, 56 and 57 of Turkish Civil Procedure Code does not exist anymore due to new code which is entered into force in 2011. According to New Turkish Civil Procedure Code numbered 6100, relevant provisions are stipulated under the articles between 316 – 322.

Under these provisions, procedure which applies to foreign arbitral award enforcement is determined as “simple proceeding”.  Simple court proceeding method in litigation is limited only with two petition exchange period among the applicant and the respondent instead of 4. It is noteworthy to stress the Constitution Court’s Decision on this matter. Bakırköy 13. İş Mahkemesi (13th Tribunal of Labor First Instance Court) decided not to consider the 3rd and 4th replies of the parties due to the feature of simple court proceeding method. Upon the decision of first instance court, applicant applied to Turkish Constitution Court based on violation of right of his fair trial due to disregard of replication. Constitution Court’s Decision numbered 2011/125 Esas , Karar 2012/46 date on 22.3.2012 gave a judgment by refusing the applicant claim. Accordingly, the court decided that “simple proceeding” method which applies to the cases cannot be regarded as violation of right of fair trial due to the fact that method’s purpose is to speed up the judicial process.

Prof. Şanlı stated that in Turkish Law, the prohibition of reviewing the merits in recognition is unanimously accepted. In Turkish law there is a prohibition of reviewing the merits”. [2]

Additionally Prof Nomer also stated that “as well as recognition of the foreign court decisions, the foreign substantive correctness of the arbitral awards cannot be reviewed. The principle to prohibit “revision au fond also applies to enforcement of the arbitral award. The exception of that principle occurs when there is a contradiction to public order in the arbitrator award as well as recognizing enforcement of foreign court decision. [3]

As can be understood from these statements, revision au fond principle constitutes as an important factor in enforcement of foreign awards in Turkey.

Grounds for Dismissal of Enforcement of Foreign Arbitral Award

 “Article 62-

(1) The court shall dismiss the enforcement request of a foreign arbitral award, if,

  1. a) An arbitration agreement is not executed or arbitration clause does not exist in the main agreement,
  2. b) The arbitral award is contrary to public morality or public order,
  3. c) It is not possible to settle the dispute subject to the arbitral award by way of arbitration under Turkish law,

ç) One of the parties has not been duly represented before the arbitrators and has not expressly accepted the acts concluded thereafter,

  1. d) The party against whom the enforcement of the arbitral award is requested has not been duly notified of the appointment of arbitrators or has been deprived of his/her right to make claim and defense,
  2. e) The arbitration agreement or clause is invalid pursuant to the governing law designated by the parties, or in the absence thereof, pursuant to the law of the place where the arbitral award is rendered,
  3. f) The appointment of the arbitrators or the procedure applied by the arbitrators violates the agreement of the parties, or in the absence thereof, the law of state where the arbitral award is rendered,
  4. g) The arbitral award has been rendered on an issue that is not included in the arbitration agreement or arbitration clause or exceeds the limits of the agreement or the clause (only the exceeding part),
  5. h) The arbitral award is not final, enforceable, or binding under the governing law or the governing procedure or the law of state where it was rendered or it is annulled by the competent authority in the place where the award is rendered.

(2) The burden of proof regarding issues addressed in the paragraphs (ç), (d), (e), (f), (g), and (h) above, lies on the party against whom enforcement is requested. “

As can be seen in article 62 of Turkish International Private Law, grounds for dismissal for enforcement of the awards is stipulated. This provision is one of the most crucial part for foreign award enforcement.

If the Turkish Courts rejects the enforcement of the foreign award, this award cannot be enforced in Turkey any longer. Recognition of such an award cannot be asked for either since recognition and enforcement of awards are subject to the same conditions and rules. This having been noted, in the case where a foreign award is not enforceable in Turkey, there may still be some remedies available under Turkish Law. The Claimant may ask the Turkish Courts to decide on the merits of the dispute. In such circumstances, the Claimant may rely on Article on 1.1 of the New York Convention which provides that the arbitration agreement became inoperative and therefore subject to the jurisdiction of the national court. [4]

Reciprocity matter must be taken into account for enforcement in case that award is given by a tribunal which is not member state of New York Convention. In that case, it is important to note that most of the countries of the world has ratified the convention. On the other hand, Turkey has also ratified judicial assistance treaties with some specific countries. These treaties not only encompass reciprocity matter with states concerned and also enforcement procedure which shall be applied to arbitral awards are stipulated in these mutual treaties. Austria (Articles 20-21) , Poland (Articles 19-24), Algeria (Articles 20-27) ,Iraq (79-85), Azerbaijan (19-24), China (21-26), Georgia (19-24), Albania (19-24) Kazakhstan (Articles 21-26) , Mongolia (Articles 19-24) Lithuania (Articles  19-23) have mutual agreement covering procedure of arbitral award enforcement with Turkey.

  1. Violation of Public Order

In consideration of this article’s purpose, it is aimed to be touched on subjects of foreign award enforcement roughly. On the other hand, violation of public order subject is a broad concept to be explained due to Turkey’s rich precedent related to this subject.

As in other legal systems, public policy is considered as an undefined area of Turkish law. A great number of legal context in foreign awards can be found to be against Turkish public policy and, as such, would preclude successful enforcement of a foreign arbitration award. The most significant example for present purposes is that of completion of service of proceedings to the defendant party.

Pursuant to Article V (2) (a) of the New York Convention, the Turkish Courts may refuse to recognize or enforce a foreign award if the recognition or enforcement of the award would be contrary to Turkish Public Policy. Article V provides that the application for enforcement may be refused on the ground that the “recognition or enforcement of the award would be contrary to the public policy of the country where recognition and enforcement is sought.” This basis of rejection has generated the most discussion and litigation, and often overlaps with other grounds such article V(1)(b) (due process, Article V(1)(d) (improper procedure or composition of tribunal), and Article V(2)(a)(non-arbitrability.) [5]

Foreign Award Enforcement Judgment and Its Effects

A final judgment cannot be retried. The plaintiff cannot sue again on the same claim. This is called res judicata effect of a judgment. Exceptionally, however, the losing party may demand the reopening of the proceedings under C.C.Pr ( Yargılamanın İadesi) . [6]

Appeal

A party wishing to appeal must file a petition of appeal within fifteen days after service of the judgment. The members of the chamber and the rapporteur examine the file.

 

Summary

New York Convention has a main role in foreign award enforcement in Turkey. Its principles and provisions must be taken into account by a Turkish Judge elementarily. Accordingly, all internal legislation of Turkey related to foreign award enforcement must be convenient to the provisions of the convention basis on the direct effect of international agreements in Turkey under Turkish Constitution. Therefore, this situation gives predictability regarding enforcement of an award for foreign parties.

Av. Gökhan Cindemir

He graduated from Anatolian High School of Karadeniz Eregli, after his graduation he studied in Belgium with AFS intercultural exchange program. He obtained his law licence degree from Marmara University of Law Faculty. During his university education, he participated in Philip C. Jessup International Law Moot Court Competition on behalf of the Marmara University. After his admission to Istanbul Bar Association in 2009, he obtained master degree (LL.M) from Gent University / Belgium in the field of European and Comparative law. His master research was about Freedom of Establishment In Relation With Turkey and EEC in the frame of Ankara Agreement.He is specialized in International Private Law, European Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister, CIArb Associate (ACIArb).

[1] Arbitration Law of Turkey : Practice and Procedure , Author : Ziya Akinci , page 74, Paragraph 4

[2] Şanlı, C. Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları , 3rd ed. Beta, Istanbul 2005 P. 181.

[3] See Normer, P. 422

[4] Ziya akinci – 178 , 179

[5] Ziya Akınci

[6] Tuğrul Ansay & Don Wallace JR, 6th Ed, Wolters Kluwer Law and Business ,Pages 228 – 229