TURKEY Trends and Developments Contributed by: Mehmet Karlı, Selim Can Bilgin, Tolga Bayrak and Gülnur Ceylan, Kabine Law Office
criminal process and the enforcement of an arbitral award. This is not a sudden change of direction so much as the development of an existing line of authority. The doctrinal basis was already present in the Court of Cassation’s established case law, which defines pub - lic policy by reference to Türkiye’s fundamental con - stitutional and legal values, rather than by reference to whether the foreign decision is correctly reasoned. What recent decisions add is consistency. They apply that narrower understanding of public policy across different factual contexts, rather than standing as iso - lated pro-enforcement decisions. That consistency is important for Türkiye’s reputation as an arbitration- friendly jurisdiction and a reliable venue for the rec - ognition and enforcement of foreign arbitral awards. A February 2026 ruling shows the same discipline applied at a different procedural stage: the certifica - tion of a Türkiye-seated tribunal’s award as enforce - able, rather than the exequatur proceeding for the enforcement of a foreign arbitral award. Under Law No. 4686 on International Arbitration, the court’s role in enforceability certificate proceedings depends on the procedural history. If the time limit for bringing an application to set aside the award has expired, or the parties have waived that right, the certifying court must review public policy and arbitrability itself. If, however, set-aside proceedings have been brought and finally rejected, that review has already taken place and need not be repeated. Applying that frame - work, the Istanbul Regional Court of Appeal declined to revisit public policy objections at the certification stage. The respondent relied on a later error admis - sion by the arbitral institution’s secretariat and on a pending retrial application seeking to reopen the set- aside case. The court held that neither was enough. The decision rejecting the set-aside application had become final following review by the Court of Cassa - tion, and the mere pendency of a retrial application did not suspend enforcement. The underlying point is consistent with the broader case law: public policy is reviewed at the stage assigned by law, not revisited at every later procedural step. None of this means that the public policy exception has lost its force. Turkish courts continue to rely on
it where enforcement would genuinely compromise the public order. What is less likely to succeed is a public policy objection that, in substance, amounts to a merits appeal. The courts are closing the door on reserved objections A related trend focuses on timing instead of substance. Turkish courts are increasingly treating a party’s failure to raise objections during the arbitration as a waiver, emphasising that such objections should be raised at the appropriate stage of the proceedings rather than being held back as a tactical weapon for use at the set-aside or enforcement stage. This approach appears in different factual settings, including challenges to arbitrator independence, objections based on lack of authority to sign the arbi - tration agreement, and attempts to deny arbitration after previously arguing in favour of it before a state court. Across these cases, Turkish courts have looked closely at when the objection was raised. Objections brought only after an unfavourable result are increas - ingly treated as opportunistic, rather than as safe - guards of due process. The practical point is that objections concerning tri - bunal composition, authority to conclude the arbi - tration agreement or jurisdictional scope should be addressed during the arbitration itself. If counsel iden - tifies a real concern and waits, the objection may no longer be available when enforcement or set-aside proceedings begin. Provisional attachment ahead of enforcement For a creditor holding a foreign award, enforcement success may come too late if the debtor’s assets are no longer available by the time the process is com - plete. Recent appellate decisions have made this risk considerably more manageable. Turkish courts have confirmed that a foreign arbitral award may support a provisional attachment order over assets in Türkiye, rejecting the argument that a debt is not yet due and payable until formal exequa - tur proceedings conclude. The reasoning rests on the distinction between protective measures and enforce - ment measures. Provisional attachment is treated as
1038 CHAMBERS.COM
Powered by FlippingBook