International Private Law In Turkey – Application For Provisional Measures And Provisional Attachment

  1. A) PROVISIONAL MEASURES AND PROVISIONAL ATTACHMENT AS TEMPORARY LEGAL PROTECTION

Interim measures and interim attachments are means of temporary legal protection. Interim measures are regulated in Articles 389-399 of the Code of Civil Procedure. Interim attachments, on the other hand, are regulated in Articles 257-268 of the Enforcement and Bankruptcy Code.

A provisional remedy may be granted in cases where there is concern that obtaining the right may become significantly difficult or completely impossible due to a change in the current situation, or that a delay may result in harm or serious damage. A court order is required for a provisional remedy. As a general rule, provisional remedies may be granted for matters other than money.

A provisional attachment is a temporary legal protection that secures the outcome of an existing or future claim for monetary debt by seizing the debtor’s assets with a court order.

Although provisional measures and provisional attachments are similar, they are legally distinct institutions. Both can be obtained by a court decision within the scope of the general courts’ jurisdiction, even in the absence of approximate proof, before or after the lawsuit. The fundamental differences are as follows:

– The subject of provisional measures is generally non-monetary assets. In provisional attachment, the subject is solely monetary claims.

– A provisional remedy decision can only relate to the subject matter of the case. A provisional attachment decision, however, can relate to any asset of the debtor outside the subject matter of the case.

– A provisional remedy can only be finalized through litigation. After a provisional attachment decision, the creditor can file a lawsuit or initiate enforcement proceedings.

– Unless otherwise specified, the effect of a provisional measure continues until the final decision becomes final. In the case of provisional attachment, if the creditor is found to be unjustified in the main decision, the provisional attachment automatically becomes void.

  1. B) PROVISIONAL MEASURES AND ATTACHMENT IN INTERNATIONAL PRIVATE LAW RELATIONSHIPS

No special jurisdiction rule has been introduced in the MÖHUK regarding the international jurisdiction of Turkish courts in relation to requests for provisional measures and provisional attachment. Therefore, the international jurisdiction of Turkish courts will be determined in accordance with the rules of jurisdiction set forth in Article 50 of the Enforcement and Bankruptcy Code (İİK) and Article 390 of the Code of Civil Procedure (HMK), as referred to in Article 40 of the International Private and Civil Procedure Law (MÖHUK).

In Turkish international procedural law, there is no doubt, both in doctrine and in practice, that Turkish courts may issue provisional attachment orders in disputes involving foreign elements, even if such disputes are heard in a foreign court located abroad.

The legal situation arising from a jurisdiction clause stipulating jurisdiction outside Turkey in a private law contract between the parties is of particular relevance to our subject matter. For example, a jurisdiction clause stating that “German law shall apply and the courts of Frankfurt shall have jurisdiction.”

The jurisdiction of the court designated by the jurisdiction agreement is exclusive under Article 47 of the MÖHUK. Even if the jurisdiction of a foreign court is exclusive, the jurisdiction of Turkish courts continues in matters falling under enforcement law due to the nature of enforcement law. In matters falling under enforcement law, regardless of whether they involve a foreign element, Turkish courts have exclusive jurisdiction over all cases, even if the case is heard in a foreign court and the jurisdiction of that court is determined by a jurisdiction agreement.

Indeed, in the decision of the 11th Civil Chamber of the Supreme Court mentioned below, the local court’s decision that Turkish courts did not have the authority to issue a provisional attachment order because the Frankfurt courts were authorized by the jurisdiction agreement between the parties was overturned, and it was ruled that the jurisdiction of Turkish courts could not be removed by the jurisdiction agreement in matters of issuing a provisional attachment order.

Supreme Court of Appeals, 11th Civil Chamber, Case No. 2013/8103, Decision No. 2013/11770, Date: 05/06/2013

“The request concerns provisional attachment, and the court has decided to reject the request on the grounds of lack of jurisdiction, stating that the Frankfurt am Main Courts have jurisdiction and that the T.B. is valid, as agreed in the credit agreement between the bank requesting provisional attachment and the counterparty, who is deemed to be a merchant under the credit agreement. The jurisdiction rule established under Article 17 of the Turkish Code of Civil Procedure No. 6100 is an exclusive jurisdiction rule and not an absolute jurisdiction rule that the court may consider on its own initiative. Moreover, Article 14 of the credit agreement does not stipulate that only the Frankfurt am Main Courts have jurisdiction, but rather that other courts also have jurisdiction. Furthermore, the agreement to apply foreign law to a dispute cannot be a reason for rejecting the request for provisional attachment. In such a case, the judge may request the assistance of the parties in determining the content of the applicable foreign law in accordance with Article 2 of the Turkish Code of Private International Law No. 5718. Therefore, without considering the aforementioned matters, the court erroneously accepted that the jurisdiction rule specified in the jurisdiction agreement agreed upon by the parties was a definitive jurisdiction rule, and without any objection, it decided to reject the request on the grounds of lack of jurisdiction. For this reason, it was necessary to overturn the decision in favor of the party requesting provisional attachment.”

For the reasons explained above, even if a foreign court has jurisdiction, Turkish courts may still issue decisions regarding provisional legal protection, and such remedies may be sought in Turkey.

Year: 2025

Application: International Private Law In Turkey – Application For Provisional Measures And Provisional Attachment

Lawyers: Mehmet Said Sarıbaş & Bilal Akbaba

E-mail: info@saribasakbaba.av.tr

Website: saribasakbaba.av.tr