I. Introduction: The Interplay of Private Autonomy and Enforcement Sovereignty
International trade and investment rely on contractual freedom — the freedom to select the applicable law and the forum for dispute resolution. Yet when disputes reach the enforcement stage, that autonomy faces the state’s monopoly on coercive execution (imperium).
Enforcement proceedings (icra takibi) are by nature procedural and territorial. They are executed by state organs empowered to compel performance. Hence, the interaction between private autonomy (through contract clauses) and public enforcement power raises a fundamental tension:
How far can parties’ contractual autonomy (via jurisdiction and choice of law clauses) limit or direct enforcement proceedings in a foreign or domestic forum?
Turkish law, in line with civil law traditions, maintains that enforcement is governed by the law of the forum (lex fori). Nevertheless, choice of law and jurisdiction provisions may still affect recognition of foreign judgments, defenses raised during enforcement, and interpretation of the underlying obligation.
This article explores these intersections in detail.
II. Conceptual Foundations
A. Jurisdiction Clauses
A jurisdiction clause (also known as a forum selection clause) identifies the court(s) that shall have authority to adjudicate disputes arising from a contractual relationship. Under Turkish law, jurisdiction clauses are recognized in Article 17 and 18 of the Code of Civil Procedure (HMK) and Article 47 of the Law on International Private and Procedural Law (MÖHUK).
A valid jurisdiction agreement must:
- Be in writing or evidenced in writing;
- Be mutual and explicit;
- Relate to commercial matters (jurisdiction clauses are invalid in certain non-commercial areas such as family law, consumer law, or labor law).
B. Choice of Law Provisions
The choice of law clause allows parties to designate which national legal system shall govern their contractual rights and obligations.
According to Article 24 of MÖHUK, contractual obligations are primarily governed by the law chosen by the parties. Absent such a clause, the applicable law is determined based on the closest connection principle — often the law of the habitual residence or main business of the party performing the characteristic obligation.
III. The Enforcement Stage: Independence and Boundaries
A. Enforcement as a Procedural Mechanism
Enforcement proceedings (icra takibi) are distinct from substantive litigation. Their purpose is not to determine liability but to execute a pre-existing right recognized by a judgment, arbitral award, or document. Therefore, enforcement is subject to strict territorial and procedural sovereignty.
The Enforcement and Bankruptcy Law (İİK) applies to all enforcement proceedings in Turkey. Pursuant to Article 1 of the İİK, the execution of judgments, monetary claims, or obligations to deliver property must comply with Turkish procedural rules, regardless of the substantive law governing the contract.
B. Lex Fori Principle in Enforcement
The prevailing doctrine — endorsed by Yargıtay and legal scholars such as Prof. Nomer and Prof. Ekşi — affirms that:
“The law of the forum (lex fori) governs the form, procedure, and effects of enforcement.”
Hence, jurisdiction clauses and choice of law provisions do not alter the mandatory procedural framework of enforcement offices (icra daireleri).
IV. Jurisdiction Clauses and Enforcement Proceedings
A. Distinguishing Adjudication Jurisdiction from Enforcement Jurisdiction
A critical doctrinal distinction must be drawn between:
- Jurisdiction for adjudication (yargılama yetkisi) — where disputes are heard and resolved; and
- Jurisdiction for enforcement (icra yetkisi) — where judgments are executed.
A jurisdiction clause may restrict where parties can file lawsuits, but cannot prevent enforcement in another country, unless enforcement itself is explicitly contractually restricted (which is rare and typically invalid).
B. Turkish Case Law: Yargıtay’s Consistent Position
Yargıtay (Court of Cassation) has repeatedly ruled that jurisdiction clauses do not preclude enforcement proceedings in Turkey when the debtor’s assets are located in Turkey.
In Yargıtay 19. HD., 2015/2761 E., 2016/5827 K., the Court stated:
“The existence of a foreign jurisdiction clause cannot deprive Turkish enforcement offices of their competence to enforce monetary obligations against assets situated in Turkey.”
This principle flows from public order: enforcement powers belong exclusively to the state where assets exist.
Yargıtay 11. HD., 2012/11825 E., 2013/3417 K. further clarified that:
“A jurisdiction clause is binding for substantive disputes but irrelevant for execution, which is governed solely by lex fori.”
Thus, contractual autonomy stops at the enforcement threshold.
C. Exceptions: When Jurisdiction Clauses Matter in Enforcement
There are, however, scenarios where the jurisdiction clause has indirect effects:
- Recognition of Foreign Judgments:
If a foreign judgment is based on a court that violated a valid jurisdiction clause, recognition in Turkey may be refused under Article 54/a of MÖHUK (lack of jurisdiction). - Defensive Objections in Enforcement:
A debtor may object that the claim is non-enforceable because it arose from proceedings contrary to a jurisdiction clause. Turkish courts may then evaluate whether the underlying adjudication respected the agreed jurisdiction. - Arbitration Clauses:
If a contract includes an arbitration clause, the existence of arbitration proceedings may suspend or bar enforcement attempts in ordinary courts, under Article 5 of the New York Convention and HMK Article 413 et seq.
V. Choice of Law Clauses in Enforcement Proceedings
A. Substantive Effect Only
Choice of law provisions determine the substantive validity and content of the claim but not the enforcement procedure.
As noted in Yargıtay 15. HD., 2018/3064 E., 2019/4312 K.:
“Enforcement of foreign-law-based obligations in Turkey does not entail applying the foreign law to procedural matters. Enforcement follows the İİK regardless of the chosen substantive law.”
Thus, while the debt itself may be defined under English law, its execution — seizure, attachment, auction — is governed by Turkish procedural rules.
B. Limits of Autonomy: Public Policy and Mandatory Provisions
Even when parties choose a foreign law, enforcement cannot contradict Turkish public policy (kamu düzeni) or mandatory norms (emredici hükümler).
Examples include:
- Interest rate caps (Law No. 3095);
- Currency controls;
- Consumer protection statutes;
- Labor or tenancy regulations.
In Yargıtay 13. HD., 2016/22456 E., 2018/7159 K., enforcement of a loan agreement governed by Swiss law was partially rejected because contractual interest exceeded Turkish legal limits — violating public policy.
VI. Recognition and Enforcement of Foreign Judgments
A. Legal Framework under MÖHUK
Articles 50–59 of MÖHUK regulate recognition and enforcement of foreign judgments. Recognition may be denied if:
- The foreign court lacked jurisdiction (Article 54/a);
- The decision violates Turkish public policy (Article 54/b);
- The defendant was not duly summoned or represented (Article 54/c);
- The decision is not final or enforceable in the state of origin (Article 54/d).
B. Jurisdiction Clauses and Recognition
A foreign judgment rendered in breach of a valid jurisdiction clause may be denied enforcement.
Example: A French court decides a dispute despite an exclusive London jurisdiction clause. Upon seeking enforcement in Turkey, the debtor objects under Article 54/a.
Yargıtay 11. HD., 2017/3125 E., 2018/5479 K. supported this view, emphasizing that:
“A foreign judgment issued by a court contrary to a valid forum agreement is considered rendered without jurisdiction for the purposes of enforcement in Turkey.”
C. Choice of Law Clauses and Recognition
The chosen law governs the substantive contract. Turkish courts reviewing recognition do not re-apply substantive law but examine whether the application of the chosen law violates Turkish public policy.
For instance, if a foreign court applied a law that allows punitive damages (not recognized under Turkish law), enforcement may be denied under Article 54/b MÖHUK.
VII. Arbitration Awards and the New York Convention
A. Turkey’s International Obligations
Turkey is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, effective since 1992.
Accordingly, Turkish courts enforce foreign arbitral awards unless grounds for refusal exist under Article V of the Convention.
B. Jurisdiction and Choice of Law in Arbitration
An arbitration clause supersedes jurisdiction clauses and is the ultimate expression of party autonomy. Under HMK Article 413, Turkish courts must decline jurisdiction when a valid arbitration agreement exists.
However, during enforcement, the courts review:
- Validity of the arbitration agreement;
- Due process compliance;
- Public policy compatibility.
Choice of law provisions in arbitration affect the substantive decision, but enforcement remains procedural under Turkish law.
C. Case Illustration
In Yargıtay 15. HD., 2015/1790 E., 2016/1841 K., the court enforced a Swiss arbitral award despite the debtor’s argument that Turkish law should apply. The court held that:
“The application of the chosen foreign law in arbitration does not offend Turkish public order unless the outcome contradicts fundamental moral or economic principles.”
VIII. Theoretical and Comparative Perspectives
A. Civil Law Tradition
In civil law jurisdictions like Germany, France, and Turkey, enforcement is seen as an extension of sovereign authority, not private autonomy. Consequently, jurisdiction and choice of law clauses cannot restrict enforcement organs of another state.
B. Common Law Contrast
In common law systems, forum selection clauses are more rigidly enforced. U.S. and U.K. courts may dismiss enforcement proceedings on forum non conveniens grounds when jurisdiction was contractually excluded.
However, once judgment exists, enforcement is again governed by the law of the enforcing state, echoing the Turkish model.
C. International Instruments
The Hague Convention on Choice of Court Agreements (2005) codifies the recognition of exclusive jurisdiction clauses internationally.
Turkey has not ratified it but often applies analogous reasoning through MÖHUK Article 47 and comity principles.
IX. Drafting Recommendations for International Contracts
1. Combine Jurisdiction and Choice of Law Clearly
A model clause should read:
“This Contract shall be governed by and construed in accordance with the laws of England and Wales. Any dispute arising out of or in connection with this Contract shall be submitted to the exclusive jurisdiction of the courts of London.”
2. Add an Enforcement Facilitation Clause
To prevent jurisdictional obstacles:
“Notwithstanding the foregoing, either party may seek enforcement of any judgment or award in any jurisdiction where assets are located.”
3. Specify Arbitration if Appropriate
“All disputes shall be finally resolved by arbitration under the ICC Rules, seated in Geneva, conducted in English.”
This approach maximizes international enforceability under the New York Convention.
4. Address Public Policy Risks
Include a compliance clause acknowledging Turkish mandatory norms:
“Nothing in this Agreement shall be construed to contravene mandatory provisions of the applicable law at the place of enforcement.”
X. Practical Implications for Turkish Practitioners
A. When Enforcing a Foreign Judgment
- Verify that the foreign court respected any jurisdiction clause.
- Ensure reciprocity and finality requirements.
- Review public policy implications.
B. When Drafting Contracts
- Clarify jurisdiction and governing law simultaneously.
- Anticipate enforcement by including permissive enforcement language.
- Avoid foreign law provisions contrary to Turkish public order.
C. When Defending Against Enforcement
- Raise objections under MÖHUK Article 54 (lack of jurisdiction, public policy violation).
- Emphasize arbitration exclusivity if applicable.
- File a timely objection to enforcement (icra itirazı) citing clause violations.
XI. Conclusion
Jurisdiction clauses and choice of law provisions remain cornerstones of transnational contracting. Yet, when disputes reach enforcement, state sovereignty reasserts itself. Under Turkish law:
- Jurisdiction clauses cannot prevent enforcement proceedings against assets located in Turkey.
- Choice of law provisions affect the substantive debt but not the enforcement mechanics.
- Public policy serves as a safety valve, allowing Turkish courts to reject foreign norms incompatible with domestic order.
- Arbitral awards enjoy broader enforceability under international conventions.
For practitioners, the key takeaway is dual:
- Draft with enforcement in mind — anticipate where assets are and how judgments will be recognized;
- During enforcement, separate procedural sovereignty from contractual autonomy to avoid misplaced objections.
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