Introduction

The International Arbitration Law (IAL) tackles interim measures in international arbitration. Consistent with the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, Article 6 of the IAL states that applications to a court for a preliminary injunction or attachment before or during arbitration proceedings should not breach the arbitration agreement between the parties. Accordingly, the parties can apply to a local court for a preliminary injunction or attachment before or during arbitration proceedings. Under the IAL, the Turkish court's preliminary injunction or preliminary attachment is applicable until:

  • the arbitral award can be executed in Turkey (ie, after a set aside lawsuit or enforcement lawsuit, depending on the venue of arbitration); or
  • the arbitral tribunal rejects the lawsuit.

The IAL handles this issue. However, neither the IAL nor the International Private and Procedure Law, which governs the enforcement of foreign arbitral awards, tackle whether a party can request a preliminary attachment from the court before the filing or during an enforcement lawsuit to enforce a foreign arbitral award. This raises doubts about whether the party seeking the enforcement of a foreign arbitral award can make such a request.

Decision

In a 2015 decision, the 15th Chamber of the Court of Appeals held(1) that courts cannot grant a preliminary attachment on the ground of a foreign court judgment, unless this judgment had been enforced in Turkey.(2) The reasoning behind the 15th Chamber's decision is that foreign court judgments and foreign arbitral awards can be executed in Turkey only if and when they are enforced in Turkey. However, a dissenting opinion in this decision stated that courts can grant a preliminary injunction before an enforcement decision has been finalised.

The dissenting opinion had also been confirmed by the courts and other chambers of the Court of Appeals. For example, unlike the 15th Chamber of the Court of Appeals, the Akhisar 1st Civil Court of First Instance affirmed in a decision that:

"Enforcement of foreign court judgement or arbitral award is not a condition for granting a preliminary attachment in relation to a receivable which has already been confirmed in the decision of a foreign court or arbitral tribunal. This decision cannot be executed before the enforcement decision is finalized, but a preliminary attachment can be requested on the ground of this decision as the debtor's assets and rights can be attached only temporarily through this preliminary attachment decision."(3)

This local court's decision is consistent with the jurisprudence of the 6th, 11th and 19th chambers of the Court of Appeals.(4) For instance, the 11th Chamber of the Court of Appeals stated in a decision that:

"The purpose of the enforcement decision is to enable execution of the decisions which were rendered outside of Turkey in relation to civil lawsuits and have become final under the laws of that state. Accordingly, there is no need to seek the enforcement of the relevant foreign decision in order to grant a preliminary attachment in relation to a receivable which has already been confirmed in the decision of a foreign court or arbitral tribunal. (…) In addition, as it is possible to grant a preliminary attachment before or during arbitration proceedings as stated in Article 6 of the International Arbitration Law, it is possible to grant a preliminary attachment after the decision."(5)

Comment

Considering the above, the chambers of the Court of Appeals have not adopted a uniform approach towards granting a preliminary attachment before filing or during an enforcement lawsuit. However, more chambers of the Court of Appeals(6) are inclined to accept that interim measures can be granted before or during enforcement proceedings. That said, it is advisable to keep in mind which chamber will hear the enforcement lawsuit before requesting a preliminary attachment.

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For further information on this topic please contact Cihan Mercan at Kolcuoglu Demirkan Koçakli Attorneys at Law by telephone (+90 212 355 9900) or email (cmercan@kolcuoglu.av.tr). The Kolcuoglu Demirkan Koçakli Attorneys at Law website can be accessed at www.kolcuoglu.av.tr.

Endnotes

(1) The 15th Chamber of the Court of Appeals' decision dated January 26 2015 (2014/7100 E and 2015/365 K).

(2) This decision concerns a foreign court judgment. However, the principle enshrined therein is applicable to foreign arbitral awards.

(3) The Akhisar 1st Civil Court of First Instance's decision dated October 15 2014 (2014/106 D).

(4) See, for example, the 6th Chamber of the Court of Appeals' decision dated April 14 2014 (2014/3906 E and 2014/4941 K); the 11th Chamber of the Court of Appeals' decision dated April 6 2009 (2009/1287 E and 2009/4176 K); and the 19th Chamber of the Court of Appeals' decision dated March 23 2015 (2015/1656 E and 2014/4049 K).

(5) The 11th Chamber of the Court of Appeals' decision dated April 21 2005 (2004/4309 E and 2005/4022 K).

(6) Ziya Akinci, Milletlerarasi Tahkim (International Arbitration), Istanbul, 2016, p 396.