Courts As Key Architects in the Recognition and Enforcement of Foreign Judgments with aFocus on the Turkish Experience

Abstract

ABSTRACT
This study examines the Court of Cassation’s landmark decisions on the recognition and enforcement of foreign judgments, which have collectively shaped the development of Turkish private international law. In selecting the rulings analysed in this study, special attention is given to their significant impact on doctrine, their role in prompting complaints to the Constitutional Court, or European Court of Human Rights, and their influence on Parliament to undertake reforms in private international law. The first section of this study begins with decisions on the entitlement to initiate enforcement proceedings, where the Court of Cassation initially required identity of parties in both the foreign and enforcement proceedings, despite the absence of such a requirement in the 1982 Private International Law and Procedural Law Act (PILA). This interpretation ultimately led to the inclusion of an explicit provision in the 2007 PILA. It then examines decisions where foreign joint custody judgments were deemed contrary to public order. These decisions sparked debate among academics and practitioners, which influenced the Court of Cassation’s perspective and ultimately led to the acceptance of the enforcement of foreign joint custody judgments. The third section highlights the Court’s introduction of a new and controversial ground for refusal of enforcement based on the plaintiff’s bad faith. This reasoning is not among the statutory grounds listed in the 2007 Act. The study also explores the Court’s inconsistent approach to enforcing unreasoned foreign judgments, particularly those issued by German courts under the Mahnverfahren procedure. Although the study may appear to focus primarily on a single country, it incorporates comparative analysis of private international law, and the cited rulings of the Court of Cassation offer valuable insights into four issues that have been insufficiently addressed in the legal literature.