1. Introduction
In international commerce, monetary obligations are frequently expressed in foreign currencies such as the euro (EUR), United States dollar (USD), or British pound (GBP). When disputes arise, particularly over unpaid debts or performance failures, creditors may seek security measures to protect their interests before or during litigation.
Under Turkish law, one of the most powerful pre-trial remedies available to creditors is the provisional attachment (in Turkish, “ihtiyati haciz”). This mechanism enables the creditor to secure a debtor’s assets temporarily until the substantive dispute is resolved, thereby preventing asset dissipation or concealment.
However, when the underlying claim is denominated in a foreign currency, specific procedural and substantive issues emerge:
- How should the foreign currency amount be evaluated in Turkish lira (TRY) for attachment purposes?
- Which court has jurisdiction?
- What evidentiary standard applies?
- How do exchange-rate fluctuations affect the measure?
This article provides a comprehensive analysis of the provisional attachment procedure in Turkey as applied to foreign currency claims, with references to the Turkish Enforcement and Bankruptcy Law (İcra ve İflas Kanunu – İİK), Turkish Code of Civil Procedure (HMK), and relevant Court of Cassation (Yargıtay) jurisprudence.
2. Legal Basis of Provisional Attachment
2.1. Statutory Framework
The legal foundation for provisional attachment is found in Articles 257 to 268 of the Enforcement and Bankruptcy Law (İİK).
According to Article 257(1):
“A creditor holding a claim due for payment, whether based on a bill of exchange or other grounds, may request the court to grant a provisional attachment if there is concern that collection of the debt would be rendered difficult or impossible.”
For foreign currency claims, this provision applies equally, provided that the debt is certain and due (muaccel).
2.2. Purpose of Provisional Attachment
The primary function of provisional attachment is preventive, not punitive. It does not satisfy the claim but rather preserves the debtor’s property to ensure eventual enforcement. The measure is particularly critical in cases involving non-resident debtors, cross-border transactions, or foreign bank accounts, where asset flight risk is high.
2.3. Jurisdiction and Competence
The competent court for a provisional attachment request is:
- The court where the debtor’s domicile is located; or
- The court where the property subject to attachment exists (İİK Art. 258).
If the claim involves foreign currency, and the creditor is a foreign company or individual, the jurisdiction is determined according to Article 10 of the Turkish Code of Private International Law (MÖHUK), combined with İİK 258.
3. Requirements for Granting a Provisional Attachment
3.1. Existence of a Monetary Claim
The claim must be monetary or convertible into money. In the case of foreign currency, this condition is satisfied, as the debt inherently represents a monetary value.
Yargıtay consistently holds that:
“Foreign currency receivables are monetary claims within the meaning of İİK Article 257.”
(Yargıtay 19. HD, 2019/2472 E., 2019/5031 K.)
3.2. Certainty and Maturity of the Claim
The claim must be definite (certain) and due (muaccel). A contingent or future claim cannot justify attachment. However, even if the amount is not precisely determined, as long as the existence of the debt is probable, courts may still grant the measure.
For foreign currency claims arising from international contracts, the maturity date is determined according to the governing law of the contract or Article 89 of the Turkish Code of Obligations (TBK).
3.3. Grounds for Risk
The creditor must demonstrate a risk that the collection will be hindered. This includes:
- The debtor transferring assets abroad;
- Concealing property;
- Dissipating funds;
- Being non-resident or planning to leave Turkey permanently.
For foreign currency claims, courts are particularly sensitive to capital outflows and offshore transfers, which may justify granting the attachment without delay.
3.4. Prima Facie Evidence
The creditor need not prove the claim conclusively but must show prima facie evidence (yaklaşık ispat).
Invoices, contracts, SWIFT confirmations, and correspondence often suffice.
For instance, Yargıtay has ruled that unpaid foreign currency invoices supported by shipment documents and bank confirmations are adequate to establish “probable existence of debt.”
(Yargıtay 11. HD, 2018/2610 E., 2018/4205 K.)
4. Provisional Attachment for Foreign Currency Claims
4.1. Evaluation of Foreign Currency
A unique question arises regarding how the foreign currency value is expressed in the provisional attachment order.
Under Turkish law, the claim may remain denominated in the original foreign currency; however, for procedural purposes, the court calculates the Turkish lira equivalent according to the Central Bank’s effective exchange rate on the date of decision.
This conversion allows the bailiff’s office (icra müdürlüğü) to quantify the attachment amount accurately and to determine the required security deposit (teminat).
4.2. Exchange Rate Risk and Adjustment
In subsequent enforcement, exchange rate fluctuations are inevitable.
Pursuant to Article 99 of the Enforcement and Bankruptcy Law and Article 83 of the Code of Obligations, payment can be demanded either in:
- The original foreign currency; or
- Its Turkish lira equivalent at the payment date exchange rate.
Thus, provisional attachment acts as a dynamic safeguard that adjusts to exchange-rate movements between the time of the order and actual enforcement.
4.3. Currency Clauses in Contracts
Commercial contracts commonly contain currency clauses stipulating payment in a specific foreign currency. Turkish law recognizes these clauses as valid under Article 99 TBK.
However, the Turkish Central Bank Decree No. 32 and its amendments limit foreign currency usage in certain domestic transactions. Still, for international sales, loans, maritime, or service agreements, foreign currency obligations are fully enforceable and can form the basis for attachment.
4.4. Partial Conversion or Multi-Currency Claims
In some cases, the claim consists of multiple currencies (e.g., USD and EUR). Courts calculate each amount separately, convert to Turkish lira equivalents for procedural clarity, and reflect the distinction in the attachment order.
5. Procedure for Obtaining a Provisional Attachment
5.1. Filing the Petition
The creditor or its attorney files a petition (dilekçe) before the competent Commercial Court of First Instance (Asliye Ticaret Mahkemesi). The petition must specify:
- The nature of the claim (foreign currency receivable);
- The contract or invoice forming the basis;
- The amount in foreign currency;
- The debtor’s domicile or location of assets; and
- The grounds for urgency and risk.
5.2. Ex Parte Nature of the Decision
Courts may issue the attachment ex parte (karşı taraf dinlenmeden) if delay could defeat the purpose. This is particularly common where the debtor is foreign or where asset flight risk is significant.
5.3. Security Requirement
According to Article 259 İİK, the court may require the applicant to provide security (usually 15% of the claim).
However, Yargıtay precedents establish that if the creditor holds a foreign arbitral award or authenticated foreign invoice, security may be reduced or waived:
“Where the claim is supported by strong documentary evidence, the court may exempt the applicant from providing security.”
(Yargıtay 19. HD, 2016/7421 E., 2017/2864 K.)
5.4. Execution of the Attachment
Once granted, the decision is transmitted to the enforcement office. The bailiff proceeds to seize the debtor’s assets—bank accounts, receivables, movable or immovable properties—up to the determined amount.
In the case of foreign currency debts, the attachment record specifies the TRY equivalent for clarity.
5.5. Notification and Objection
The debtor may file an objection (itiraz) within seven days of notification, under Article 265 İİK.
Common objections include:
- The claim is not due;
- The currency conversion was incorrect;
- No risk exists; or
- The debt is already paid.
6. Relationship with International Jurisdiction and Enforcement
6.1. Foreign Creditors and Jurisdiction
Foreign creditors may seek provisional attachment in Turkey if the debtor or the debtor’s property is located within Turkish territory.
This is consistent with Article 3(2) MÖHUK, which allows Turkish courts to assume jurisdiction for protective measures concerning assets situated in Turkey.
6.2. Arbitral and Foreign Judgments
If the claim is based on a foreign arbitral award or foreign judgment, provisional attachment may be sought even before recognition (exequatur), provided that the award appears authentic and enforceable abroad.
Yargıtay has upheld provisional attachments in such scenarios, emphasizing the preventive nature of the measure.
“Recognition is not a prerequisite for provisional attachment where the foreign award is prima facie valid.”
(Yargıtay 11. HD, 2017/3145 E., 2018/5028 K.)
6.3. Cross-Border Asset Tracing
In practice, Turkish courts cooperate with foreign authorities under bilateral treaties or Hague Conventions to trace and freeze assets located abroad. However, the execution of the attachment order is territorially limited to assets within Turkey.
7. Termination and Liability
7.1. Revocation
The attachment automatically lapses if:
- The creditor fails to initiate the main action or enforcement proceeding within seven days; or
- The court subsequently rejects the claim.
7.2. Compensation for Wrongful Attachment
If the provisional attachment was obtained unlawfully or without justification, the debtor may sue for damages under Article 259(3) İİK and Article 49 TBK.
For example, if the foreign currency claim was fictitious or exaggerated, and the debtor suffered reputational or financial loss, the creditor may be held liable.
7.3. Lifting the Attachment
Once the debtor deposits the full foreign currency amount (or its TRY equivalent) with the enforcement office, the attachment can be lifted. Alternatively, a bank guarantee letter equivalent to the debt amount may suffice.
8. Practical Considerations for Creditors
8.1. Evidentiary Strategy
Foreign creditors should prepare comprehensive documentation:
- Contract in original language and notarized Turkish translation;
- Invoices, bills of lading, and SWIFT payment records;
- Proof of shipment or service completion;
- Correspondence acknowledging debt.
8.2. Selecting the Proper Forum
When the underlying contract contains a jurisdiction or arbitration clause, the creditor must ensure that the Turkish court retains competence for provisional relief. Turkish courts recognize “supportive jurisdiction” for interim measures even if the main dispute will be resolved abroad.
8.3. Exchange Rate Management
To mitigate losses from currency volatility, creditors often request the attachment to be recorded in both foreign currency and TRY equivalent, ensuring adaptability during enforcement.
8.4. Banking Attachments
For foreign currency claims, attaching foreign currency-denominated bank accounts (USD/EUR) is particularly effective. Turkish banks must comply with court orders and block accounts up to the specified amount, regardless of currency type.
9. Case Law Highlights (Yargıtay Jurisprudence)
9.1. Yargıtay 11th Civil Chamber, 2020/3812 E., 2021/2745 K.
The Court upheld a provisional attachment order for a USD-denominated debt arising from an international supply contract. The debtor had begun transferring assets abroad. The Court ruled that risk was evident and that exchange rate calculation based on the Central Bank’s effective rate was proper.
9.2. Yargıtay 19th Civil Chamber, 2018/5123 E., 2019/6245 K.
The Court clarified that even if the creditor’s claim is based on invoices not yet judicially verified, the presence of shipment documents and partial payment proves approximate certainty sufficient for attachment.
9.3. Yargıtay 11th Civil Chamber, 2015/6722 E., 2016/7460 K.
The Court emphasized that foreign currency receivables are subject to attachment without conversion, provided the enforcement record notes both the currency and the TRY equivalent for execution clarity.
10. Comparative Perspective
Comparing Turkish law with international standards reveals that provisional attachment for foreign currency debts aligns with principles found in:
- Swiss Debt Enforcement and Bankruptcy Act (SchKG),
- German ZPO §916 ff, and
- EU Regulation 655/2014 (European Account Preservation Order).
However, Turkey’s system is more creditor-friendly, particularly given its allowance for ex parte attachments and broad judicial discretion when risk is apparent.
11. Tax and Financial Implications
When assets are attached in foreign currency, the enforcement office must maintain separate accounting for foreign currency balances. Conversion occurs only upon liquidation or distribution.
Furthermore, court fees and security deposits are calculated in Turkish lira equivalents, reducing administrative complexity for both domestic and foreign parties.
12. Interaction with Bankruptcy Proceedings
A foreign currency creditor who has already secured a provisional attachment enjoys priority rights during subsequent bankruptcy distribution (sıra cetveli).
If the debtor is declared bankrupt, the attached assets form part of the bankruptcy estate but remain earmarked for the attaching creditor, subject to rank and statutory deductions.
13. Conclusion
Provisional attachment (ihtiyati haciz) remains a powerful safeguard for creditors in Turkey, particularly in international commerce involving foreign currency debts.
Its strategic use can prevent dissipation of assets, secure recovery prospects, and reinforce the creditor’s bargaining position in settlement negotiations.
While procedural nuances—such as currency conversion, security requirements, and risk demonstration—demand meticulous preparation, Turkish courts generally maintain a pragmatic and protective stance toward legitimate foreign creditors.
For practitioners, key recommendations include:
- Drafting contracts with clear currency clauses and jurisdiction provisions;
- Maintaining robust documentary trails;
- Acting swiftly to prevent asset concealment;
- Seeking provisional attachment at the earliest stage to secure recovery before litigation concludes.
Ultimately, the intersection of foreign currency obligations and provisional attachment law demonstrates Turkey’s evolving balance between creditor protection and procedural fairness—an essential element in sustaining confidence in its commercial legal framework.
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