The need or the necessity for a foreign arbitral award to be executed in Turkey may arise for several reasons. To enable the execution, the enforcement of the arbitral award must be requested before the Turkish courts. The decision rendered by a Turkish court regarding the enforcement of a foreign arbitral award can be challenged by the dissatisfied parties. 

As a reflection of the principle of lex fori processualis, the judicial control of the decisions of the Turkish courts has to be undertaken under the governance of Turkish law. The Turkish Code on Private International Law and International Civil Procedure no.5718 (CPIL) has foreseen legal control by the Court of Cassation as the sole remedy to decisions regarding the enforcement of foreign arbitral awards (Art.57.2, 61.2). However, after the Appeal Courts in Turkey came into operation in 2016, the legal control mechanism in Turkish law has turned into a two-tiered control mechanism. Enforcement decisions thereafter became subject to the control of the Court of Appeal at the first level. At the second level, the Court of Appeal’s decisions about enforcement requests became subject to the control of the Court of Cassation. Considering the enforcement proceeding itself is also a control serving the execution of the arbitral awards in Turkey, it can be said that the foreign arbitral awards are subject to three tiers of control.

The decisions of the enforcement court or the Court of Appeal can only be challenged if the entire amount decided in the arbitral award exceeds certain monetary limits. Otherwise, the decision made is final. Furthermore, before or during enforcement proceedings, or after the enforcement decision has been rendered, the Turkish court may have ruled an interim injunction or provisional attachment to secure the consequences of the enforcement case. Such decisions are also subject to appeal. However, the rulings of the Court of Appeal thereon are final. Therefore, an application to the Court of Cassation is impossible. 

In the presence of the required grounds, a request for a retrial can be made following the finalization of the decision on the enforcement of a foreign arbitral award. As an extraordinary remedy, a retrial is regulated by the Turkish Code on Civil Procedure (CCP) both in general (Art 374ff) and for arbitration proceedings specifically (Art 443). Article 443 of the CCP is designated for domestic arbitration proceedings, which are subject to the CCP, and enables the recurrence of arbitration proceedings before the arbitrators. Therefore, Article 443 does not apply to the enforcement of foreign arbitral awards. It is clear that the Turkish courts cannot rule for a repeat of foreign arbitration proceedings. Thus, only the recommencement of the enforcement proceedings under the general provisions is possible, not a repeat of the arbitration proceedings.

At the appeal instance, the enforcement court’s decision is controlled in terms of compliance with procedural and substantive law. This control also covers whether the material facts have been duly determined or evaluated by the court of enforcement. In the end, the Court of Appeal can render a new decision on the merits of the request for enforcement as if it replaces the court of enforcement.

The authority of the Court of Appeal in reviewing and deciding on the merits of the case is applicable only for enforcement cases. The court is not entitled to re-examine or decide on the merits of the arbitration proceedings. The rejection of the principle of revision au fond applies not only to enforcement proceedings but also to their judicial control.

Principally, control of the appeal instance is limited by the grounds specified in the request for appeal. However, whether the appealed decision violates the public order is to be considered ex officio. Therefore, the existence of both the mandatory requirements for a claim to be determined by the Turkish courts and the enforcement conditions which are to be considered ex officio by the enforcement court, namely, arbitrability and public order, are reviewed ex officio at the appeal instance.

At the cassation instance, the Court of Cassation is not entitled to control the decision by determining or evaluating the material facts but can only focus on whether the decision complies with procedural and substantive law. The Court of Cassation can neither decide on the merits of the enforcement procedure nor review the foreign arbitration procedure.

Challenging a court decision has in principle no effect on the execution of that decision. That is the general rule adopted in the Turkish CCP (Art.350.1, 367.1). In contrast, this is not the situation when enforcing foreign arbitral awards. As long as all the remedies provided have not been exhausted, the execution of the foreign arbitral award will be suspended. The Turkish CPIL states that the application to the Court of Cassation suspends the execution of a foreign arbitral award (Art.57.2, 61.2). Although the application to the Court of Appeal and its impact on the execution are not mentioned in CPIL, the same applies upon appeal. Accepting otherwise renders meaningless the CPIL provision stipulating that an application to the Court of Cassation suspends award execution.

Thus, a foreign arbitral award can be executed only if all the remedies have been exhausted, namely if the enforcement decision becomes final after the control proceedings have been completed or the application period has expired. In this case, the foreign arbitral award will be executed like a verdict rendered by the Turkish courts.

Since challenging the decision on enforcement suspends the execution of the foreign arbitral award, the need for security still exists until the foreign award becomes executable. Therefore, any interim injunction or provisional attachment securing the consequences of the enforcement case should be in effect until the enforcement decision becomes final.

The requirement of proportional court fees concerning arbitration proceedings was abolished in 2016. Since the enforcement of foreign arbitral awards should be considered as a part of arbitration proceedings, only a fixed fee became chargeable in enforcement proceedings and also for applications to the Court of Appeal or the Court of Cassation concerning enforcement requests.

Applying to a higher court cannot be considered as filing a lawsuit. Therefore, the applicant is not obliged to provide security under CPIL Art.48 or CCP Art 84 by reason of being foreign or having habitual residence abroad.