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

2025-08-08T08:35:54+01:00

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.

Duty of care of public authorities in England, liability by omission, and Article 2 of the Human Rights Act

2025-07-10T10:47:12+01:00

The negligence of public officials, who make omissions, can lead to liability under English law under tortious principles. The courts in England have been reluctant to hold public authorities liable for breach of a duty of care and this includes the police, local Councils and hospital trusts. They are generally not liable on the grounds of omission, for breach of a duty of care and causation has, until now, has been narrowly interpreted by the courts. The duty of care has to satisfy an onerous test when there is an omission by the police and in Michael v Chief Constable of South Wales Police[2012] EWCA Civ 981 the Court of Appeal denied liability where there was prima facie negligence for a breach of duty towards a pre identified victim. The differentiation between the recognized victim and the stranger who is injured or suffers a fatality needs to be distinguished both in negligence, and under Article 2, Right to Life, in order to establish the extent of liability of public bodies. The question in this paper is whether the breach of a duty of care by public authorities is construed with more deference by the courts, and if the judges are more likely to construe liability under Article 2 of the Human Rights Act, when there is death has been caused by the negligence of the state.

The Denning Law Journal

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

Duty of care of public authorities in England, liability by omission, and Article 2 of the Human Rights Act