The issue of enforcement of 'interim' remedies in Turkiye

Efe Kınıkoğlu
Senior Partner, EKSP Law Firm, Istanbul

Ebrar Turan
Senior Associate, EKSP Law Firm, Istanbul

Interim remedies, such as preliminary injunctions and preliminary attachments, are measures designed to temporarily protect the rights of a party that may suffer harm before a legal proceeding is finalized. While courts have not yet issued their final decisions, risks may arise that would make it difficult or impossible for one of the parties to effectively enforce their rights. These measures are established to prevent potential risks that may arise during  a litigation process and to ensure that the final decision can be effectively enforced. Interim remedies do not definitively resolve a case; they serve merely as a measure providing temporary protection. From a procedural law perspective, they are considered “provisional orders,” and their primary function is to preserve the status quo and prevent the right in dispute from being harmed until the conclusion of the case.

Interim remedies are more than just procedural tools; they also serve as a safeguard for the legal security of cross-border capital market instruments in the modern business world. Where assets can be transferred at digital speeds and the effectiveness of interim remedies directly impacts the economic outcome, the international recognition of such remedies stand as one of the most important instruments for protecting cross-border assets across different jurisdictions. 

Due to the principle of state sovereignty and the exclusivity of judicial authority, a foreign court judgment does not automatically become enforceable within the borders of Türkiye. For a foreign court decision to produce legal effects under Turkish law, the process of recognition or enforcement must be completed in accordance with the Law on Private International Law and Procedural Law (“the Law No. 5718”). During this process, Turkish courts review whether the foreign decision is compatible with Turkish law and public policy rules.

In practice, Turkish courts adopt a highly cautious and restrictive approach toward interim remedies issued by foreign courts, particularly regarding whether such remedies are consistent with Turkish public policy. This stance complicates the ability of creditors in international commercial disputes to access assets located in Türkiye in a swift and effective manner, thereby creating significant risks of loss of rights.

Recognition and enforcement in Turkish law

The enforceability of foreign court decisions in Türkiye is contingent upon the meeting cumulative requirements set forth in the Law No. 5718 pursuant to the principle of lex fori. In accordance with Article 50 of the Law No. 5718, the first and most fundamental prerequisite for a request for enforcement is that the decision be a final and binding court judgment that definitively resolves the dispute. As a rule, interim remedies of a provisional nature or non-final judgments fall outside this scope. In line with the prohibition of reviewing the merits of the case, Turkish courts do not examine whether the foreign judgment is correct under substantive law; they merely verify whether the statutory conditions for enforcement are met. Consequently, the legal assessment of a foreign court is not scrutinized, and the review is limited to whether the judgment in question can be enforced in Türkiye.

Although referred to as “enforcement proceedings” in practice, recognition and enforcement are classified as “non-contentious judicial matters.” The table below summarizes the conditions established under the Law No. 5718 that highlight the structural obstacles to interim remedies:

The Law No 548

The “finality” barrier

According to the settled case law of the Turkish Supreme Court, it is not possible to enforce provisional orders issued by foreign courts in Türkiye. The Supreme Court is of the opinion that such decisions are, by their very nature, temporary and subject to modification; therefore, they do not possess the quality of a “final and binding judgment” as required under Article 50 of the Law No. 5718.

The practical consequence of this approach is that a foreign interim remedy cannot serve as a basis for direct execution proceedings in Türkiye. In other words, if the foreign decision is of provisional nature, it cannot acquire inherent enforceability before Turkish judicial authorities. Judicial authorities may even require the applicant to bring a certificate of finality to prove that the foreign court decision is definitive.

The use of foreign interim remedies as evidence 

Although the possibility of direct enforcement is not available, it should not be inferred that a foreign court order is entirely ineffective under Turkish law. A foreign court’s provisional order may be used as prima facie evidence in a new application for an interim remedy filed before Turkish courts. Through this method, a local interim remedy may be granted based on the legal grounds set forth in the foreign court judgment.

In accordance with the principle of lex fori, the Turkish courts shall examine this application pursuant to Turkish procedural law; however, the prior assessment conducted by the foreign court may facilitate the formation of the judge's opinion. Particularly regarding the requirement of “prima facie evidence”, the reasoning within the foreign judgment may constitute strong evidence. This, in turn, enables the judge to grant a provisional order without extensively delving into the merits of the dispute or conducting a detailed examination.

In conclusion, although a foreign interim remedy is ineligible for direct enforcement, it can be transformed into an enforceable local court order by serving as the foundation for a fresh application before Turkish courts. Consequently, this approach offers a practical and effective alternative route, particularly within the scope of cross-border debt recovery and asset protection strategies.

Legal practices in the EU and the United States 

Although the criterion of finality is not unique to Turkish law, there are diverse approaches to the enforcement of interim remedies within international legal systems. Within the European Union, under the Brussels I bis Regulation¹, interim remedies issued in one Member State are directly recognized and enforceable in others without the need for any enforcement procedure. However, within this framework, the requirement of a “reasonable link” between the jurisdiction where the measure is sought and the underlying dispute constitutes a significant barrier, particularly when attempting to reach assets located in non-EU jurisdictions.

In United States law, the principle of comity remains the decisive factor due to the absence of a federal enforcement statute. While courts in the states of New York and California do not directly enforce foreign interim remedies, Delaware state courts adopt a more flexible approach toward foreign orders in commercial and corporate disputes. This leniency is exercised to maintain global commercial trust and to uphold Delaware’s position as a leading jurisdiction for international business litigation.

These disparities between the direct enforcement regime in the EU and the recognition and enforcement models in the USA, and Türkiye, demonstrate how vital the choice of forum and law is in the resolution of international disputes.

Evaluation and conclusion

Turkish law continues to adhere to a strict and narrow interpretation of the “finality” criterion regarding interim remedies issued by foreign courts. This rigid approach results in a misalignment with the requirements of modern commercial life and judicial efficiency, so long as Türkiye remains outside the EU legal framework.

Consequently, unless the current jurisprudential regime of the Supreme Court undergoes a fundamental shift, it remains legally impossible for a foreign provisional order to be directly enforced within Türkiye.

There is no doubt that Türkiye needs a legal framework similar to the Brussels I bis Regulation, which would enable the “direct recognition” of foreign court decisions in order to align with global commercial dynamics. Until then, taking a cautious approach by adopting meticulously drafted governing laws and tailor-made forum provisions would no doubt, continue to prove to be the ideal strategy in every significant contract to be signed with a Turkish counterparty.

Notes

1  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters