1 Litigation – Preliminaries
1.1 What type of legal system does your jurisdiction have? Are there any rules that govern civil procedure in your jurisdiction?
Turkey is a civil law jurisdiction. The legal system is based on codified domestic laws. Thus, written codes and statutes are the primary sources of judicial power; jurisprudence is not a main driver yet has significant importance in practice.
The Turkish Code of Civil Procedure (also referred to as “Law Nr 6100” or “HMK”) is the main legislative source with regard to civil procedure. It stipulates the numerous procedural rules applied to all litigation being held by civil courts, details of which are examined in question 1.2 below. It also particularly deals with domestic arbitrations which do not contain a foreign element.
Provisions of the second part, starting with article 40, of the Turkish Code on International Private and Procedural Law (also referred to as “Law Nr 5718” or “MÖHUK”) also apply.
There are different regulations applied to international arbitration and domestic arbitration in Turkey. Proceedings for international arbitration and domestic arbitration are subject to different procedures.
The Turkish Code of International Arbitration (also referred to as “Law Nr 4686” or “MTK”) set forth the procedural rules applied to international arbitrations.
There are also substantive law-related procedural rules stipulated by several codes, such as the Turkish Civil Code (also referred to as “Law Nr 4721” or “TMK”), Turkish Commercial Code (also referred to as “Law Nr 6102” or “TTK”), Turkish Code of Enforcement and Bankruptcy (also referred to as “Law Nr 2004” or “IIK”) and Turkish Expropriation Code (also referred to as “Law Nr 2942”).
Furthermore, there are specific procedural rules stipulated in the Labour Courts Code (also referred to as “Law Nr 7036” or “İşK”), Cadastral Code, Code on the Establishment, Duties and Trial Procedures of Family Courts, Code of Consumer Protection, and the Code of Intellectual and Artistic Works, by which specialists’ courts were established.
Secondary legislation and decisions of Court of Cassation are also deemed as sources of civil procedural law in Turkey.
1.2 How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are there any specialist courts?
The Turkish civil court system has three main layers:
- First instance courts: Consist of General Courts and Specialists Courts.
- General Courts are the Civil Courts of Peace, Civil Courts of First Instance and Commercial Courts of First Instance.
- Specialists Courts are established by special codes (please refer to question 1.1 above) and have competence to hear disputes arising from specific matters or disputes between specific parties. The Turkish Specialist Courts comprise Labour Courts, Family Courts, Consumer Courts, Intellectual Property Rights Courts, Cadastre Courts and Enforcement Courts.
- District courts of appeal: Serve as the first step appellate court for the decisions of first instance civil and criminal courts.
- Turkish court of cassation: Serves as the final resort of appeal in both civil and criminal cases and consists of Civil and Criminal Chambers.
1.3 What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe (please include a brief description of any expedited trial procedures)?
There are two types of proceedings, namely: written proceedings; and simplified proceedings.
Written proceedings consist of the following stages:
- Commencing the case and exchange of written submissions: There are two rounds of exchanging statements. Parties are allowed to extend and alter their claims and defences in the second round of exchanging statements.
- Preliminary hearing: The court hears the arguments on procedural requirements and first objections of the parties. It encourages parties to settle the dispute by resorting to the mediation process. If the procedural requirements are fulfilled and the parties wish to continue the proceedings, the court closes the preliminary hearing, sets a new hearing date and starts the evidentiary stage.
- Evidentiary stage: The court collects the evidence that parties rely on for their statements. The court orders third parties or authorities for production of documents or any other evidence in their possession, hears and questions witnesses, appoints experts, conducts site visits and takes any and all necessary measures to collect all possible evidence.
- Oral closing submissions: After the evidentiary stage is over, the court grants the parties the opportunity to make their final statements regarding the case.
- Issuance of judgment: The judgment is issued in the final hearing. Usually the court reads out the short judgment on the merits of the case in the final hearing. Within one month of the final hearing, the court prepares the long and justified judgment and serves it on the parties.
Simplified proceedings consist of the following stages:
- Filing and exchange of statement of claim and statement of defence: Compared to written proceedings, the exchange of statements is limited. It is only the statement of claim and statement of defence that can be submitted by the parties.
- Preliminary hearing and evidentiary stage: These are usually conducted together and concluded in a shorter period than in written proceedings.
- Issuance of judgment: After the evidence is collected, the court takes the oral closing statements of the parties and reveals the decision. No additional time is given to the parties to make further statements.
1.4 What is your jurisdiction’s local judiciary’s approach to exclusive jurisdiction clauses?
As a general rule, parties can agree on exclusive jurisdiction. A dispute between the parties can only be brought before the appointed jurisdiction.
In cases where the parties cannot freely agree, i.e. in case of mandatory jurisdiction, parties cannot make a jurisdiction agreement.
In order for the jurisdiction agreement to be valid, it must be made in writing, the legal relationship originating from the dispute must be specific or specifiable, and the agreed court or courts must be stated therein.
It should be noted that no jurisdiction agreement can be made regarding district courts of appeal.
1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there any rules on costs budgeting?
The procedural costs include:
- Application fee.
- Service and postal fees.
- Stationery and miscellaneous expenses.
- Expenses for issuance of interim decisions, notifications, warnings, and power of attorney.
- Site-visit expenses.
- Fees for witnesses and court experts.
- Fees, taxes, and miscellaneous expenses for obtaining documents from official authorities.
- Legal fees based on the minimum fee tariff of the Ministry of Justice.
- Other costs arising during the proceedings such as cost of translation, cost of taking evidence, etc.
The general principles on who bears the cost are as follows:
- The claimant bears the costs at first.
- The costs are usually charged to the losing party if not stated otherwise in law.
- If the decision is partial, the costs are borne by each party in accordance with their proportion of success in the case.
- If there is more than one losing party participating in the proceedings, the court may hold them jointly or severally liable.
1.6 Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible?
Legal fee agreements are permissible in Turkey. The agreed fee amount cannot be lower than the minimum fee tariff revealed by the Turkish Bar Association.
It can also be agreed to pay legal fees in proportion to the total value of the dispute. The contingency fee cannot exceed 25% of the claim in dispute.
For people who cannot afford to hire an attorney for his/her action, if they are able to prove that they are financially limited, Bar Associations provide legal service pro bono. This service is limited to real persons for a limited nature of matters.
1.7 Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?
In general, claims on receivables can be assigned by the parties to third parties. Such an assignment is deemed valid under Turkish law.
If the subject of the case is transferred by the defendant after the filing of the case, the plaintiff may use one of the following options:
- continue the proceeding against the transferee party; or
- transform the case to an action for damages against the transferee party.
In the event that the subject of the case is transferred by the plaintiff after the filing of the case and the proceeding is finalised against the plaintiff, the transferor and transferee shall be severally liable for litigation costs and expenses.
A non-party is not allowed to be involved in financing the proceedings.
1.8 Can a party obtain security for/a guarantee over its legal costs?
The plaintiff must provide security for the defendant’s costs in the following situations:
- if the plaintiff has no residential address or registered office in Turkey;
- if the plaintiff is insolvent, has been declared bankrupt, is involved in ongoing restructuring proceedings, such as a concordat or composition, or if it is certified that the plaintiff has unpaid debts; and
- if new conditions and circumstances occur during the proceeding, wherein the court shall render the payment of a deposit to be provided by the plaintiff.
2 Before Commencing Proceedings
2.1 Is there any particular formality with which you must comply before you initiate proceedings?
In the following cases, it is mandatory to appoint a mediator before initiating an action:
- Employment claims concerning a sum of receivable and compensation claims and reinstatement actions.
- Consumer disputes over the value of TRY 10,390.
- Commercial claims and compensation claims.
A mandatory mediation requirement for family law disputes is on the government’s agenda.
2.2 What limitation periods apply to different classes of claim for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as a substantive or procedural law issue?
The general rule is that all claims expire after 10 years unless otherwise particularly provided by Turkish law.
The following claims expire after five years: lease payments; accommodation fees; food and beverage fees; claims arising from partnership agreements; claims in connection with commission; agency contracts; and professional services.
The prescription period for tort actions is two years starting from the date one becomes aware of such act, within the 10-year capped time limit. The same prescription period is applied to claims regarding unjust enrichment.
3 Commencing Proceedings
3.1 How are civil proceedings commenced (issued and served) in your jurisdiction? What various means of service are there? What is the deemed date of service? How is service effected outside your jurisdiction? Is there a preferred method of service of foreign proceedings in your jurisdiction?
Proceedings are deemed to be commenced on the date the statement of claim is submitted to the court. The court serves the statement on the parties concerned.
There are two types of service: the conventional way, by post; and electronically by email.
In the electronic service procedure, the deemed date of service is the delivery of electronic service, which is deemed to be made at the end of the fifth day following the date on which it reaches the addressee’s registered email address.
If a party is represented by an attorney, service is made to the attorney. In Turkish service practice, attorneys are obliged to obtain a registered email address (KEP is the Turkish abbreviation, standing for “Kayitli E-posta Adresi”) and all kinds of service are made through such email to attorneys.
In the conventional method of service, delivery is made to the addressee or to third parties relevant to the addressee.
In some cases, where the service cannot be made to the addressee in person, service can be made by posting it on the door, delivering it to local governor’s office of the relevant neighbourhood or by publication in a local gazette.
Service to be made abroad is sent by the Turkish Ministry of Foreign Affairs to the Turkish foreign representatives in the foreign country where the addressee is residing. Turkish foreign representatives request for conclusion of the service from the competent authority in the respective country of the recipient.
3.2 Are any pre-action interim remedies available in your jurisdiction? How do you apply for them? What are the main criteria for obtaining these?
A court may order interim measures where there is strong evidence of significant difficulty or impossibility in acquiring a right, or in case of a possible irreparable imminent harm.
A request for an interim remedy must be made from any chamber of the competent courts if the main motion is not yet filed. After the filing of a case, interim remedies can only be requested from the particular court handling the case.
The main criterion to meet for a court to issue an interim measure is that there must be strong evidence of an imminent threat to the subject of the matter in dispute.
3.3 What are the main elements of the claimant’s pleadings?
The statement of claim contains:
- Name of the court.
- Names and addresses of the plaintiff and defendant.
- Turkish ID number of the plaintiff.
- Name and address of the representative of the plaintiff.
- A statement of the value in dispute.
- Allegations of fact.
- Evidence submitted for each allegation of fact.
- Statement of legal grounds.
- Precisely stated claim.
- Signature of the plaintiff or representative.
3.4 Can the pleadings be amended? If so, are there any restrictions?
In written proceedings, the parties can freely extend or amend their claims or defences in the second round of exchanging statements. After the exchange of statements stage ends, the claim or defence cannot be extended or amended. In case of an amendment request that can be used only once during the proceeding with the express consent of the other party, the claim and defence can be extended or amended.
In simplified proceedings, claims and defences can be extended and amended only with the express consent of the other party.
3.5 Can the pleadings be withdrawn? If so, at what stage and are there any consequences?
After the pleading is submitted, it can only be withdrawn if the other party gives its clear consent on the withdrawal.
The consequence is that the action is deemed as if it is not initiated.
4 Defending a Claim
4.1 What are the main elements of a statement of defence? Can the defendant bring a counterclaim(s) or defence of set-off?
The main elements of a statement of defence are mainly the same as those stated at question 3.3.
There are two main conditions to filing a counterclaim:
- The principal case must still be pending at the time of filing the counterclaim.
- There must be a link or set-off relation between the claim in the counteraction and claim in the principal action.
A counteraction can be initiated by the defendant before the same court holding the principal action.
The counterclaim can be filed with a statement of defence, or with a separate petition within the period of response to the merits of the case.
4.2 What is the time limit within which the statement of defence has to be served?
The deadline for submitting the statement of defence is two weeks starting from the delivery of the statement of claim by the defendant.
However, in cases where it is very difficult or impossible to prepare the statement of defence within this time period, an additional period not exceeding one month may be granted.
The decision regarding the request for a time extension is immediately notified to the parties.
4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party?
A defendant can notify a third party of the dispute until the end of the evidentiary stage in a proceeding if the defendant is of the opinion that the defendant may recourse to such third party.
The notified third party may also notify other parties to the dispute.
4.4 What happens if the defendant does not defend the claim?
A defendant who does not submit the statement of defence in due time is deemed to have denied the claims.
If the defendant does not attend the hearings, the proceeding continues without the defendant’s presence, and the defendant may not raise any objection to any procedural actions made in his/her absence lacking any reasonable excuse.
4.5 Can the defendant dispute the court’s jurisdiction?
In proceedings with mandatory jurisdiction, the court ex officio investigates whether or not it has mandatory jurisdiction over the case up until the end of the proceeding. Parties can always challenge the jurisdiction of the court in proceedings with mandatory jurisdiction.
In proceedings without mandatory jurisdiction, the defendant must challenge the jurisdiction of the court in the statement of defence. The challenging party must show the competent court with jurisdiction over the case. If there is more than one court with jurisdiction over the case, one of them must be selected by the challenging party. Otherwise, the court ignores the challenge on the court’s jurisdiction.
In proceedings without mandatory jurisdiction, if the defendant does not make an objection to the court’s jurisdiction in due time and in accordance with procedure, the court in which the case is pending becomes competent.
5 Joinder & Consolidation
5.1 Is there a mechanism in your civil justice system whereby a third party can be joined into ongoing proceedings in appropriate circumstances? If so, what are those circumstances?
A third party who lays claim to the subject matter of the proceeding can commence an action to the parties of the proceeding before the same court where the principal action is pending, until the judgment is issued by the court (mandatory joinder).
A third party may take part in the proceeding as an individual intervener up until the end of the evidentiary stage, in order to assist the party he/she selects (voluntary joinder).
For notification of a third party, please refer to question 4.3.
5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances?
Actions initiated before civil courts of the same level and capacity within the same jurisdiction may be consolidated at each stage of the proceeding upon request of the parties or ex officio, at the court where the first action is pending, if they are closely connected to each other.
The decision of consolidation is made by the court where the second case is pending, and this decision is binding over the other court.
5.3 Do you have split trials/bifurcation of proceedings?
The court may decide to split proceedings that are jointly commenced or are consolidated afterwards at any stage of the proceeding, upon the request of the parties or ex officio. Where proceedings are split, the court continues to hold all split proceedings.
6 Duties & Powers of the Courts
6.1 Is there any particular case allocation system before the civil courts in your jurisdiction? How are cases allocated?
Registration offices at courthouses allocate cases randomly, taking the caseload of each court into consideration. Thus, the aim is that cases are allocated equally to the courts.
6.2 Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?
Courts have sole discretion over the management of the case. All private persons, legal entities and public authorities must follow orders issued by the court during the proceedings.
Parties can use their rights to invite witnesses, ask the court to summon official documents and other evidence, and to appoint court experts. The general rule is that the applicant pays the expenses. In some cases, the court can use the deposited expenses to execute the request of a party.
6.3 What sanctions are the courts in your jurisdiction empowered to impose on a party that disobeys the court’s orders or directions?
Courts give caution to a party who disturbs the order of the hearing and prevent him/her from behaving in a way that disturbs the action, if necessary, excluding the disobedient person from the hearing.
Despite a court warning, if a person continues to behave disobediently and to disturb the order of the hearing, the court may impose a temporary disciplinary custody period of up to four days. It should be noted that this sanction cannot be imposed on lawyers.
If the person’s actions and statements before the court constitute a felony or criminal action, the court must notify the District Attorney’s Office or directly arrest the person. If the disobedient person is an attorney, courts cannot use these powers.
If any person does not comply with a court’s order, summons or interim measures, the court imposes a disciplinary monetary fine.
6.4 Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, at what stage and in what circumstances?
A Turkish court does not have the power to strike out a part of the statement of a case. A statement of claim must be treated in its integrity and court decisions are made for all matters cited in a statement of claim or counterclaim.
In the case that a statement of claim or statement of defence does not contain the mandatory elements, the court grants the parties one week to rectify the absence of those elements. If these deficiencies are not overcome, the submissions of the parties are deemed to not have been made in the first place.
In order to complete or clarify a deficiency or uncertainty in the expert report, the court may request additional reports by asking new queries or requesting the expert to make an oral statement at the hearing.
6.5 Can the civil courts in your jurisdiction enter summary judgment?
In some circumstances, civil courts may enter summary judgment. Entering a summary judgment without setting a hearing date must be explicitly stipulated by the law. Interim measures and interim injunctions are examples of such case; courts examine and review the case file and enter summary judgment.
In some cases, the law grants the judge the discretion to decide to enter summary judgment. In cases where this discretion is granted, the judge can freely decide not to set a hearing date and issue the judgment by examining the case; in practice, the most common example of this is the court in charge of bailiff’s office proceedings.
6.6 Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? If so, in what circumstances?
Courts have the power to stay the proceeding until the issuance of a judgment of another proceeding, or until the determination of an administrative authority, in the case that the issuance of the judgment is bound to the judgment of another proceeding or administrative authority.
7 Disclosure
7.1 What are the basic rules of disclosure in civil proceedings in your jurisdiction? Is it possible to obtain disclosure pre-action? Are there any classes of documents that do not require disclosure? Are there any special rules concerning the disclosure of electronic documents or acceptable practices for conducting e-disclosure, such as predictive coding?
Disclosures are not governed in particular, and parties are obliged to submit an evidence list along with their submissions up until the preliminary hearing or within the time period set by the court.
During proceedings, parties may request the court for the production of evidence held by the opposing party, third party or by authorities.
There are no special rules under Turkish law regarding electronic evidence, such as CDs or e-documents signed electronically. In practice, attorneys submit their evidence through the electronic court portal (“UYAP”) and to the court’s clerk in physical form.
7.2 What are the rules on privilege in civil proceedings in your jurisdiction?
Being a close family member or serving in a profession under a duty of confidentiality create privilege in civil procedures. Parties or third parties may refrain from giving testimony, producing evidence such as documents, papers, etc., preparing an expert report and bearing a site visit against family members, clients or patients.
7.3 What are the rules in your jurisdiction with respect to disclosure by third parties?
Third parties are obliged to comply with court orders regarding production of evidence. This obligation includes producing the specified document, which is deemed evidence by the court, being a witness before the court and allowing a site visit to be conducted on his/her property. All documents must be provided to the court upon an order to do so unless there is valid excuse to avoid such submission.
7.4 What is the court’s role in disclosure in civil proceedings in your jurisdiction?
Only the court has the discretion to summon a party as a witness or to order a third party to produce evidence to the court.
If the evidence cannot be produced before the courts, courts take all necessary action to obtain the evidence and examine it. Sometimes, courts give this duty to a panel of experts, who visit the third party and examine the evidence where it is located.
7.5 Are there any restrictions on the use of documents obtained by disclosure in your jurisdiction?
When one of the parties submits an original document in its possession to the court, the party may request the return of such document. In this case, the court may decide not to return the original copy to the submitting party and instead keep it under lock.
8 Evidence
8.1 What are the basic rules of evidence in your jurisdiction?
Parties, along with their statements, must list all evidence plainly. The evidence list must be attached to the statement of claim and statement of defence. Parties also provide information regarding other evidence in the possession of third parties or authorities. After the proceeding is commenced by the plaintiff, the court prepares preliminary procedural minutes and grants parties two weeks to make final statements regarding their evidence list. After this period ends, parties cannot produce new evidence.
A party who fails to submit evidence upon a valid notification of the court will be deemed to have waived their right to submit such evidence.
8.2 What types of evidence are admissible, and which ones are not? What about expert evidence in particular?
In civil proceedings, evidence is collected and examined by courts freely. Although some of the evidence is specified under Turkish law, anything can be regarded as evidence by the courts. In other words, everything that can be a means of proof is deemed evidence, as it is possible to produce and examine other evidence not specified under law.
That being said, Turkish civil procedure law stipulates the following types of evidence:
- Documents and papers.
- Promissory oaths.
- Witnesses
- Expert reports.
- Site visits.
- Expert opinions.
In disputes over the value of TRY 4,880, witnesses cannot be heard by the court. Plaintiffs are obliged to duly produce promissory notes, documents or written contracts.
8.3 Are there any particular rules regarding the calling of witnesses of fact, and the making of witness statements or depositions?
The court sends an invitation to the witnesses before the hearing. Witnesses are heard by the court during the hearing, and attorneys of the parties participating in the hearing can direct questions to witnesses.
In some cases, the court may order that the witness be heard at the scene of the incident, if necessary. If witness cannot attend the court for testimony, there must be a valid reason, and this excuse should be documented.
If there is more than one witness to be heard, they are heard by the court separately. Those who have not yet been heard cannot enter the courtroom while other witnesses are being heard. Witnesses are confronted when necessary. The witness cannot use written notes while being heard.
After the witness gives testimony, the court may direct additional questions to them.
The testimonies and statements of the witnesses are recorded in the hearing minutes and read out in front of the witnesses, who sign their statements within such minutes.
Parties are also free to submit expert reports prepared by their own experts. However, courts usually ignore these reports and appoint registered experts for expert reports.
8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Are there any particular rules regarding concurrent expert evidence? Does the expert owe his/her duties to the client or to the court?
In cases where the judgment of the proceeding requires technical knowledge, the court decides to take the vote and opinion of an expert upon the request of one of the parties or ex officio.
The courts may appoint one expert or a panel of experts according to the complexity of the case. Experts must be registered in the list of experts kept by the justice commission in that jurisdiction. After being appointed, experts usually attend the site visit with the judge before preparing their report. If a site visit is not applicable, the case file is directly delivered to the experts. The court orders the experts to answer specific questions regarding the dispute or to make a scientific or actuarial calculation. The courts set a time period for preparation of the expert reports, which experts should follow.
Experts should be unbiased, and their duty is to the courts. They should not direct questions to the parties or have any contact with them during the preparation of their report.
Once prepared, the expert report is submitted to the court, which then serves the report on the parties. Parties should submit their statements and objections to the expert report with two weeks starting from the service date.
In very limited circumstances, the courts may summon experts to hear them as witnesses, if necessary.
9 Judgments & Orders
9.1 What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances?
The classification of judgments is based on the function of such decision.
Interim decisions
Decisions regarding the rejection of the defendant’s objection of the court’s competence or pendency objection are classified as interim decisions.
Final decisions
A court renders a final decision on the claim and concludes the dispute in terms of procedure or merits. The final decision may be in the form of acceptance, rejection or partial acceptance or rejection of the claim. For example, decisions regarding the acceptance, rejection or partial acceptance of a claim filed by a creditor and decisions on lack of competence or jurisdiction are classified as final decisions.
Final decisions are of different natures, depending on to what they pertain. A decision can be constitutional, such as reviving an inactive company, or declaratory, to determine a right or a legal relationship between the parties, such as a contract. This list is not exhaustive.
9.2 What powers do your local courts have to make rulings on damages/interests/costs of the litigation?
Turkish courts cannot render punitive damages. Courts are bound to the claims submitted and cannot exceed such claims. Courts have the right to determine the amount of damages suffered by the parties, and thus can adjust the amount of compensation and render partial compensation.
Interest must be requested explicitly by the claimant. Otherwise, courts do not have sole discretion to render an interest payment to the claimant ex officio.
For explanations regarding costs, please refer to question 1.5.
9.3 How can a domestic/foreign judgment be recognised and enforced?
The recognition and enforcement of a foreign judgment depends on the country in which the judgment was made.
For recognition and enforcement of a foreign judgment, the below conditions must be met:
- It must be issued by a court of a foreign state.
- It must be final – that is, it cannot be appealed.
- It must concern a dispute arising from a private law issue.
- It must be in line with, and not explicitly contrary to, public order.
- It must be rendered in accordance with the defence rights of the defendant.
In addition to the conditions stated above, there must be a reciprocity agreement between the countries concerned.
When all conditions are met, recognition and enforcement can be requested from the competent Turkish court.
9.4 What are the rules of appeal against a judgment of a civil court of your jurisdiction?
In general, final decisions of civil courts of first instance can be appealed before districts courts of appeal. The threshold amount of a dispute for appeal before district courts of appeal is TRY 5,880. However, final decisions regarding spiritual damages can be appealed before district courts of appeal regardless of the amount of the dispute.
As a general rule, final decisions of civil courts of first instance must be appealed within two weeks of the service date of the final judgment, unless a shorter time period is stipulated in special laws.
The legal grounds of appeal before district courts of appeal must be shown in the petition. Thus, the court of appeal conducts its work limited to the grounds stated in the appeal petition. Any infringements of public order are also taken into account by district courts of appeal, even if such an infringement is not mentioned in the appeal petition.
The threshold amount in a dispute for appeal before the court of cassation is TRY 78,630. The threshold for appeal application with a hearing before the court of cassation is TRY 117,960. Final decisions and court decisions upon a request of revocation of an arbitral award can be appealed before the court of cassation.
The legal grounds of appeal before the court of cassation must be shown in the petition. As opposed to the district courts of appeal, the court of cassation is not bound to investigate the case limited to the legal grounds stated in the appellant’s petition. The court of cassation may revoke the lower court’s decision, with different reasoning.
As a general rule, final decisions of district courts of appeal must be appealed within two weeks of the service date of their final judgment, unless a shorter time period is stipulated in special laws.
10 Settlement
10.1 Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process?
In some types of dispute, there is a mandatory mediation process (please see question 2.1). Parties are obliged to turn to the mediation procedure before initiating a lawsuit before the competent court. In practice, the plaintiff completes the mediation form and submits it along with the statements of claim to the Mediation Centre at the relevant courthouse. Considering the fact that this mediation process is mandatory in these disputes, the court does not have a role to encourage the parties to mediation.
In disputes where the mandatory mediation process is not applicable, during the preliminary hearing, prior to the submission of evidence, the judge encourages the parties to settle or to end the dispute by mediation in an amicable way. However, in litigation practice in Turkey, if parties are standing before the court in the preliminary hearing, they usually do not consider carrying the dispute to the mediation process.
In the criminal litigation process, for some felonies, the parties are encouraged to settle prior to commencement of the proceedings.
11 Alternative Dispute Resolution
11.1 What methods of alternative dispute resolution are available and frequently used in your jurisdiction? Arbitration/Mediation/Expert Determination/Tribunals (or other specialist courts)/Ombudsman? (Please provide a brief overview of each available method.)
In Turkey, arbitration and mediation are the main methods of alternative dispute resolution (“ADR”).
An Ombudsman is also available in Turkey, although it is not considered a method of ADR. Ombudsman services are available for matters concerning public services delivered by government authorities/institutions.
11.2 What are the laws or rules governing the different methods of alternative dispute resolution?
The HMK sets out the main rules governing domestic arbitration. In international arbitration, where a minimum of one of the parties resides outside of Turkey, the MTK, enacted in line with the UNCITRAL Model Law of 1985 and the Swiss Federal Act on Private International Law, along with the MÖHUK, Geneva Convention on International Arbitration of 1961, New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, ICSID rules and other bilateral agreements between Turkey and other states are the laws which set out rules governing such arbitration.
Regarding mediation, the Code on Mediation in Civil Disputes stipulates the main governing rules regarding the mediation process as a method of ADR (please also see question 10.1 above).
11.3 Are there any areas of law in your jurisdiction that cannot use Arbitration/Mediation/Expert Determination/Tribunals/Ombudsman as a means of alternative dispute resolution?
Arbitration and mediation process are not applicable to disputes regarding rights in rem on immovable properties located in Turkey, disputes regarding payments of employees and disputes regarding public law.
Family law-related matters cannot be subject to arbitration.
11.4 Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? For example, will a court – pre or post the constitution of an arbitral tribunal – issue interim or provisional measures of protection (i.e. holding orders pending the final outcome) in support of arbitration proceedings, force parties to arbitrate when they have so agreed, or order parties to mediate or seek expert determination? Is there anything that is particular to your jurisdiction in this context?
In Turkey, courts incentivise parties to mediate and to come to an amicable solution prior to the proceedings. Other than this, the courts have no duty to provide assistance to parties. Courts are bound by the requests of the parties. In the case that a dispute is brought before the court despite the arbitration clause existing between the parties, the defendant must challenge the jurisdiction of the court and refer the dispute to arbitration; otherwise, the court will become competent. If the defendant objects to the court’s competence and jurisdiction over the dispute due to the arbitration agreement between the parties, the court renders a final decision stating that the dispute must be brought to a panel of arbitrators.
During arbitration proceedings, interim measures are rendered by the panel of arbitrators. In case the arbitrators refuse an interim measure requested by a party, the relevant party may ask the competent court to render interim measures.
11.5 How binding are the available methods of alternative dispute resolution in nature? For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement agreements reached at mediation need to be sanctioned by the court? Is there anything that is particular to your jurisdiction in this context?
Arbitration awards are binding and enforceable in Turkey. Arbitral awards cannot be appealed. Parties can only request district courts of appeal in the same jurisdiction to annul the arbitral award. Commencing an annulment action to set aside the arbitral award can only be on exceptional grounds, and it does not halt the execution of the arbitral award.
In the event that the parties reach an agreement after the mediation process, enforceability of the agreement can be requested from the peace court of first instance in the same jurisdiction where the mediation takes place, in the case where the mediation is held before initiating the action in civil courts. Parties may also resort to the mediation process during the proceeding.
When parties reach an agreement and solve the dispute in an amicable way through the mediation process, the parties then cannot bring any claims concerning the same matter in dispute afterwards.
11.6 What are the major alternative dispute resolution institutions in your jurisdiction?
The Istanbul Chamber of Commerce Arbitration Institution and Mediation Centre (“ITOTAM”) and Istanbul Arbitration Centre (“ISTAC”) are the main ADR institutions in Turkey.
Author: Att. Uğur Karacabey