Enforcement measures

Repossession following lease termination

Outline the basic repossession procedures following lease termination. How may the lessee lawfully impede the owner’s rights to exercise default remedies?

Turkey recognises the right of the lessor to use self-help for repossession on lease termination as provided for in the Cape Town Convention. This has been applied in a small number of cases where the former lessee did not try to physically prevent or legally challenge the repossession process. Use of self-help is not recommended where the former lessee tries to prevent or legally challenges the repossession. For this reason, it is advisable to seek a court order for repossession. It is also possible for the former lessee to obtain a precautionary injunction by claiming that the lease has not been terminated. However, these are theoretical conjectures, as Turkish courts currently have no experience of the Cape Town Convention, nor is there any precedent.

Enforcement of security

Outline the basic measures to enforce a security interest. How may the owner lawfully impede the mortgagee’s right to enforce?

Turkey recognises the right of the mortgagee to use self-help for repossession on default, as provided for in the Cape Town Convention. Use of self-help is not recommended where the owner tries to prevent or legally challenges the repossession. For this reason, it is advisable to seek a court order for repossession. It is also possible for the owner to obtain a precautionary injunction by claiming that there is no default. However, these are theoretical conjectures, as Turkish courts currently have no experience of the Cape Town Convention, nor is there any precedent.  

It is also possible to start a mortgage enforcement action, which will lead to the sale of the aircraft by public auction. The debtor has a right to raise objections to this action. Depending on the mortgage agreement and documentation of the default, the objection may be set aside by summary judgment.

Priority liens and rights

Which liens and rights will have priority over aircraft ownership or an aircraft security interest? If an aircraft can be taken, seized or detained, is any form of compensation available to an owner or mortgagee?

Aircraft manufacturers and repairers have the right to demand the registration of a statutory mortgage on the aircraft for their receivables. This mortgage will take priority over all other consensual mortgages. The demand must be made within three months of completion of the construction or repairs, otherwise it becomes extinct.

The government has priority only for the motor vehicle tax that is payable for the aircraft. This is usually negligible, as the amount will not exceed a few thousand US dollars.

Aircraft can be requisitioned only for general mobilisation in a state of war, in which case the owner will be compensated.

No other liens or rights will have priority over registered consensual mortgages.

 

Enforcement of foreign judgments and arbitral awards

How are judgments of foreign courts enforced? Is your jurisdiction party to the 1958 New York Convention?

The enforcement of foreign court judgments requires a recognition and enforcement decision by a Turkish court. The purpose of a recognition and enforcement action is not to retry the merits of the case, but only to determine whether the foreign court decision fulfils the requirements for enforcement in Turkey.

One of the important requirements for recognition and enforcement is the existence of a de facto or contractual reciprocity between Turkey and the country that issued the decision in regard to recognising and enforcing each others’ court decisions. Reciprocity exists between the United Kingdom and Turkey. It is unclear whether reciprocity exists between the state of New York and Turkey. As such, there are instances of New York court judgments being denied recognition and enforcement.

Turkey is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. A foreign arbitral award will also require a recognition and enforcement decision from a Turkish court. An arbitral award issued in a country that is a party to the 1958 New York Convention will be enforceable in Turkey, provided that other conditions for enforcement are met.

Another important requirement for the recognition and enforcement of both court decisions and arbitral awards is that the claim has been duly and properly served on the defendant, and the defendant has been given adequate opportunity to defend itself against the claim. It is not necessary to prove that defendants have defended themselves. The decision may be given in absentia if they have been invited.