TURKEY Trends and Developments Contributed by: Mehmet Karlı, Selim Can Bilgin, Tolga Bayrak and Gülnur Ceylan, Kabine Law Office
The courts narrowing the public policy shield Public policy has long been the broadest ground for resisting enforcement in Türkiye. Recent case law points towards Turkish courts becoming more disci - plined in its application. Turkish courts are treating public policy as a genuinely exceptional, last-resort safety shield, not a general licence to reopen arbitral findings. A useful illustration is found in a 2025 decision con - cerning the enforcement of a Paris-seated ICC award. The respondent sought to resist enforcement by rely - ing on Turkish criminal proceedings involving two individuals connected to the evidence before the tri - bunal: an expert who had been convicted of forging the report submitted in the arbitration, and a witness who had separately admitted giving false testimony. The Court of Cassation upheld enforcement, affirming the regional appellate court’s decision. Its reasoning is more significant than the outcome itself. The Court noted that the tribunal’s award did not depend solely on the expert report but was also supported by inde - pendent technical assessments from two other con - sultancies. More importantly, it also emphasised that the same forgery and perjury allegations had already been raised, argued and rejected both before the arbi - tral tribunal and before the Paris Court of Appeal in the annulment proceedings. On that basis, the Court of Cassation held there was no public policy violation within the meaning of the New York Convention or Law No. 5718 on Private International Law and Procedural Law. Allowing a later domestic conviction to reopen an issue that had already been tested twice by both the tribunal and the supervising court would have turned Turkish public policy review into an appellate review. The Court of Cassation therefore confirmed that pub - lic policy review cannot be used as a vehicle for a de novo examination of matters already addressed by the arbitral tribunal. A similar approach can be seen in a shareholders’ dispute involving a port company. The Court held that a criminal acquittal could not be relied on to contra - dict the tribunal’s contractual findings. Together, the decisions reinforce the distinction between criminal liability and contractual liability. Unless the connection is legally direct and substantively compelling, public policy review will not operate as a bridge between the
is formally addressed to public institutions rather than private parties, many Turkish projects, especially in construction, energy and infrastructure, involve com - plex ownership, financing or regulatory structures. A counterparty that appears private on paper may have a state-owned shareholder, benefit from a state guarantee, require regulatory approval, or sit within a wider project structure involving a public-sector entity. For that reason, the application of the Circular should not be assessed by looking only at the iden - tity of the contracting party named on the first page of the agreement. In practice, diligence on the coun - terparty’s ownership, financing and project structure may be necessary to determine whether the OIC-AC preference is likely to become relevant in negotiations. It is worth being precise about the procedural conse - quences of bringing a dispute before the OIC-AC. The institution does not operate separate rulebooks for commercial and investment arbitration. The Arbitra - tion Rules 2026, effective from 1 January 2026, pro - vide a single procedural framework for both. Article 2 expressly applies to disputes that are “commercial, investment, or otherwise”, so a private contractual dispute and a treaty-based claim against a host state are both governed, at least initially, by the same core rules on tribunal constitution, evidence and awards. The main distinction is transparency. Annex II, added in the 2026 revision, introduces Rules on Transpar - ency that substantially reflect the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbi - tration: certain basic information about the dispute is made public, hearings are public by default, and non- disputing treaty parties or interested third parties may seek permission to make submissions. By contrast, commercial arbitrations remain subject to the default rule of confidentiality under Article 45.2, unless the parties agree in writing to depart from it. For foreign investors, the key takeaway is not that OIC-AC clauses are unavoidable, but that they are likely to appear more frequently in Türkiye-facing transactions with a state-linked element. The issue is therefore best addressed early, as part of the parties’ broader dispute resolution strategy.
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