Enforcement of Foreign Arbitral Awards in Turkey: A Comprehensive Guide for Maritime Practitioners

In the global shipping industry, over 90% of disputes are resolved through Maritime Arbitration, predominantly in London under the LMAA (London Maritime Arbitrators Association) terms. However, winning an arbitration award is only half the battle. For a foreign creditor, the ultimate goal is the enforcement of that award against the debtor’s assets, which often involves arresting a vessel in Turkish waters.

This article provides an in-depth analysis of the legal framework, procedural requirements, and judicial trends regarding the recognition and enforcement of foreign Maritime Arbitration awards in Turkey.

1. The Legal Framework: The New York Convention and MÖHUK

Turkey is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This convention is the “gold standard” and takes precedence over domestic laws.

Domestically, the process is governed by the International Private and Civil Procedure Law (Law No. 5718 – MÖHUK). Under these regimes, Turkish courts do not re-examine the merits of the case (révision au fond); instead, they conduct a procedural check to ensure the award meets the necessary legal standards.

2. The Relationship Between Maritime Arbitration and Ship Arrest

A common strategy for foreign creditors is to use a foreign arbitral award as a basis for a ship arrest in Turkey.

• Precautionary Attachment: Even if an arbitration is ongoing in London or Singapore, a creditor can apply to Turkish courts for a precautionary attachment order to secure the claim.
• The Enforcement Order: Once the final award is rendered, the creditor must file a “Tenfiz” (Enforcement) lawsuit in Turkey to convert that award into a domestic judgment, which allows for the final sale of the arrested vessel.

3. Procedural Requirements for Enforcement

To initiate the enforcement of a Maritime Arbitration award, the claimant must submit the following to the Turkish Civil Court of Commerce:

1. The Original Award: Or a duly certified copy, authenticated by the relevant authorities (Apostille).
2. The Arbitration Agreement: The original or a certified copy of the charterparty or bill of lading containing the arbitration clause.
3. Official Translations: All documents must be translated into Turkish by a sworn translator and notarized.

4. Grounds for Refusal: The Defensive Side

Turkish courts can only refuse the enforcement of a Maritime Arbitration award on limited grounds, as exhausted in Article V of the New York Convention:

• Invalidity of the Arbitration Agreement: If the parties lacked the capacity to enter the agreement.
• Violation of Due Process: If the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or the proceedings.
• Scope of Authority: If the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration.
• Public Policy (The Most Debated Ground): Turkish courts may refuse enforcement if the award is contrary to “Turkish Public Policy.” However, modern Turkish judicial practice interprets this very narrowly, ensuring that simple errors of law do not block enforcement.

5. Specialized Maritime Jurisdiction

Enforcement lawsuits involving maritime disputes should ideally be heard by the Maritime Specialized Courts (İstanbul Deniz İhtisas Mahkemeleri). These courts possess the technical expertise to understand the nuances of Charterparty disputes, General Average claims, and Bill of Lading complexities, leading to more predictable and faster outcomes compared to general commercial courts.

6. Security for Costs (Cautio Judicatum Solvi)

A significant detail for foreign claimants is the requirement to provide security for costs. Under Turkish law, foreign entities filing a lawsuit (including enforcement) must provide a guarantee to the court. However, due to the principle of reciprocity and various bilateral treaties, many foreign claimants (especially those from EU member states or countries party to the Hague Convention) are exempt from this requirement.

7. Timeframes and Appeals

• First Instance: An enforcement trial typically takes between 6 to 12 months, depending on the complexity of the service of process.
• Appeal: The court’s decision can be appealed to the Regional Court of Appeal (BAM) and subsequently to the Court of Cassation (Yargıtay). Crucially, filing an appeal against an enforcement judgment suspends the execution of the award under Turkish law, unless a specific guarantee is provided.

8. Practical Tips for Foreign Creditors

1. Check for an Apostille: Ensure all foreign documents are apostilled immediately to avoid delays.
2. Service of Process: Ensure that the underlying Maritime Arbitration was served correctly to the Turkish debtor’s registered address; otherwise, “breach of due process” will be the first defense used to block enforcement.
3. Interim Relief: Always seek a precautionary attachment (ship arrest) at the start of the process to ensure the asset does not leave Turkish jurisdiction before the enforcement is finalized.

Conclusion

Turkey provides a robust and “arbitration-friendly” environment for the enforcement of foreign maritime awards. The Turkish judiciary’s commitment to the New York Convention ensures that Maritime Arbitration remains an effective dispute resolution mechanism for those trading in Turkish waters. For any foreign creditor, the key to success lies in meticulous procedural preparation and choosing the right specialized forum to navigate the local legal landscape.