THE AUTHOR:
Erdem Küçüker, Attorney-at-law registered at the Istanbul Bar Association.
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (“ICSID Convention” or “Convention”) is perhaps most notable for the ease with which ICSID (International Centre for Settlement of Investment Disputes) arbitral awards’ can be enforced. Pursuant to Article 54(1) of the Convention, each contracting state shall recognize the binding effect of and enforce the pecuniary obligations in the awards rendered under the Convention, as if the award were a national court judgment.
As for the Turkish court practice regarding Article 54 of the Convention, the Court of Cassation seemingly issued a decision on the matter for the first time in 2021. In early 2025, the Court of Appeal released a further precedent in another case. Although the cassation decision is still pending, the appeal judgment nevertheless provides valuable guidance on the enforcement procedure as per Article 54(2) of the Convention. This blog article discusses these two decisions and comments on the procedural regime applicable to the enforcement of ICSID awards in Türkiye.
Legal Regulation
Section 6 in Chapter IV of the Convention, titled “Recognition and Enforcement of the Award”, consists of Articles 53-55 and addresses the recognition and enforcement of ICSID awards.
Article 53(1) of the Convention (i) provides that, in terms of post-award remedies, the parties can only request the remedies available under the Convention (i.e., the interpretation, rectification, supplementation, revision or annulment of the award), (ii) recognizes the binding nature of the awards for the parties, and (iii) states that the parties shall comply with the award unless its enforcement is stayed (i.e., as per Articles 50(2) (interpretation of the award), 51(4) (revision of the award) or 52(5) (annulment of the award) of the Convention).
Article 54(1) of the Convention further extends the binding character of ICSID awards to the contracting states. It provides that each contracting state shall recognize and enforce pecuniary obligations in the award, in the same way as its domestic court decisions.
Article 54(2) of the Convention sheds light on the simplified procedure for the recognition and enforcement of the awards, wherein it provides that a party seeking recognition/enforcement shall furnish a copy of the arbitral award which is certified by the ICSID Secretary-General, to the competent court/authority of the contracting state where recognition/enforcement is sought.
Finally, Article 54(3) of the Convention leaves the regime for the execution of the award to the law of the state in which the execution is sought.
Now turning to Türkiye, the Convention entered into force on 2 April 1989. The state (reportedly, in 2017) made the following notification as per Article 54(2) of the Convention:
“The commercial court of first instance (“asliye ticaret mahkemesi”) belonging to the subject place, as designated in the written agreement between the parties, and in case of absence of such agreement, the commercial court of first instance having the jurisdiction over the place of the losing party’s domicile, if not, residence, or, in the absence of both, over the place of the subject property of the claim, or in places where a commercial court of first instance does not exist, the civil court of first instance (“asliye hukuk mahkemesi”) of the subject place”.
With such notification, Türkiye named the first instance commercial/civil courts (asliye ticaret/hukuk mahkemesi) located at the place (i) specified in the parties’ written agreement, (ii) of the debtor’s domicile/residence, (iii) or of the subject property of claim as the competent courts to deal with the recognition/enforcement requests. That said, the state did not deal with the specifics of the enforcement procedure through legislation. This will further be discussed below in the commentary.
Turkish Court Decisions Related to the Matter
Court of Cassation, 2021 Precedent in İçkale v. Turkmenistan
The Turkish Court of Cassation, seemingly for the first time in history, dealt with the enforcement of an ICSID award, in İçkale v. Turkmenistan, No ARB/10/24, (12th Civil Chamber, Court of Cassation, No. E. 2021/875, K. 2021/4586, 28 April 2021, findable here).
In that case, in March 2016, the arbitral tribunal dismissed the case on merits and awarded costs to the host state. The latter intended to enforce the costs award against the investor by directly filing an execution action for court decisions (ilamlı takip), through the debt collection offices in Türkiye. The debt collection office accepted the host state’s request and proceeded with the execution procedure. The investor filed a complaint against such action, arguing that the ICSID award could not directly be executed, without a review by the competent court, as indicated in Article 54(2) of the Convention. The complaint was refused by the first instance court. The investor’s first appeal was dismissed by the court of appeal.
Upon further (and final) round of appeal, the Court of Cassation sided with the investor. It held that (i) Türkiye, at that time (as indicated in the expert report dated 2017 that is relied on by the court), did not nominate any authority as per Article 54(2) of the Convention and (ii) the host state could not directly file an execution action through debt collection offices, without following the procedure under Article 54(2) of the Convention. The Court therefore overturned the decisions of the first instance court and the court of appeal.
Court of Appeal, 2025 Precedent in Attila Doğan v. Oman
A few years after the precedent above, another host state intended to enforce a costs award in Türkiye.
In the case of Attila Doğan v. Oman, No. ARB/16/7, the arbitral tribunal, in February 2021, dismissed the case on merits and awarded costs to the host state. The investor sought the annulment of the award and also requested a stay of the enforcement. The enforcement was provisionally stayed until the decision of the ad hoc committee (as per Article 52(5) of the Convention). After its constitution, in December 2021, the ad hoc committee decided to continue the stay of the enforcement, subject to the investor’s depositing of security. The investor did not deposit the security within the time ordered, and the stay of the enforcement was automatically lifted. The proceedings continued in the ensuing period, and in September 2024, ICSID took note of the discontinuance of the annulment proceedings.
In January 2023, the host state filed court proceedings before the commercial court of Ankara and requested that an enforceability certificate be given to the ICSID award, in order to proceed with the debt collection. The investor resisted such a request.
In September 2023, the first instance court decided on the matter. Referring to the ICSID Convention and the New York Convention (1958), it held that the filing of annulment proceedings alone does not stop the enforcement of the award. The court stated that as the investor did not deposit security, the ad hoc committee’s decision on the stay of the enforcement was automatically lifted and the award can be enforced even if it is not final. Noting the claimant’s submission of the certified arbitral award, the court concluded that the award is binding. The court thus accepted the host state’s request and issued the enforceability certificate (11th Commercial Court of Ankara, No. E. 2023/56, K. 2023/587, 21 September 2023, findable here). Notably, the court also stated that the host state’s request is in conformity with the enforcement conditions for foreign arbitral awards as regulated under the Turkish Private International Law Act (2007) (“TPILA”).
Upon appeal, the Court of Appeal upheld the first instance court decision, wherein it mentioned that:
- The ICSID Convention shall apply in the present case;
- The award is enforceable unless there is a stay of enforcement decision; and
- The first instance court’s reasoning and findings are correct (27th Civil Chamber, Ankara Court of Appeal, No. E. 2024/697, K. 2025/166, 12 February 2025, findable here).
From the public database of the judiciary, it appears that the court decision has not been finalized, which means that a cassation appeal has been filed and is still pending.
Commentary
Often times, the parties of an ICSID arbitration voluntarily comply with the award or reach post-award settlements (ICSID Background Paper, Compliance with and Enforcement of ICSID Awards, June 2024). But there are also cases where the award-creditors need to pursue enforcement actions.
The 2021 precedent has been the first of its kind, and it mentioned that ICSID awards cannot be directly made subject to debt collection proceedings. Yet the Court of Cassation did not state what kind of procedure (in the context of Article 54(2) of the Convention) should be exhausted in order to proceed with the enforcement.
Now with the 2025 precedent, the picture has become clearer. The Turkish judiciary now seems to accept that, in the context of Article 54(2) of the Convention, an enforceability certificate for an ICSID award can be given to the applicant. The competent court for issuing such a certificate is the first instance court. Furthermore, the Turkish judiciary recognized Article 53 of the Convention, wherein it accepted that the annulment proceedings alone do not affect the enforceability of the award, unless there is a stay of the enforcement decision. The court also considered the scope of review under Article 54(2) of the Convention as it (impliedly) accepted that the court’s enforceability review is limited to Articles 53-54 of the ICSID Convention. This decision (although not yet final) seems to provide valuable guidance to award-creditors seeking to enforce ICSID awards in Türkiye.
On a final note, Türkiye did not enact a specific legislation to regulate the enforcement of ICSID awards. Although not frequently used, a brief regulation dealing with the enforcement regime would be helpful for the parties, their counsel and the courts. The legislation in Germany (Gesetz zu dem Übereinkommen vom 18. März 1965 zur Beilegung von Investitionsstreitigkeiten zwischen Staaten und Angehörigen anderer Staaten) (InvStreitÜbkG)) or in the UK (Arbitration (International Investment Disputes) Act 1966) could be taken as an example.
In the lack of a special regulation, (i) the ICSID Convention, (ii) Türkiye’s notification as per Article 54(2) of the Convention, and (iii) the relevant articles of the TPILA regarding the recognition/enforcement of foreign arbitral awards (mutatis mutandis) are applicable to the matter. Considering these regulations and the Court of Appeal’s decision in 2025, the procedure appears as follows:
- Competent Court: The applicant should file court proceedings before the commercial court of first instance (asliye ticaret mahkemesi) (see Türkiye’s notification of 2017).
- Belonging to the subject place as designated in the written agreement between the parties;
- In the absence of such an agreement, before the court having jurisdiction over the domicile of the losing party; if not available, before the court having jurisdiction over the residence of the losing party; if neither domicile nor residence applies, before the court having jurisdiction over the location of the subject property of the claim;
- In places where a commercial court of first instance does not exist, before the civil court of first instance (asliye hukuk mahkemesi) of the subject place.
- Scope of the Court Review: The court should only review:
- Whether the applicant duly furnished the copy of the arbitral award certified by the ICSID Secretary-General (Article 54 of the Convention); and
- Whether the enforcement of the award is stayed or the award is vacated.
- Procedure:
- The court proceedings are subject to the simplified procedure (basit yargılama); wherein the claimant’s statement of claim should be notified to the respondent, and the latter shall be given leave to submit a response within two weeks, following which the written phase should be ended. The court should then schedule a hearing and render its decision (Articles 55(1) and 61(2) of the TPILA, applicable mutatis mutandis).
- The parties can file a first appeal before the Court of Appeal; and a final appeal before the Court of Cassation (Articles 57(2) and 61(2) of the TPILA, applicable mutatis mutandis).
- The filing of an appeal will automatically stop the execution (Articles 57(2) and 61(2) of the TPILA, applicable mutatis mutandis).
- Fixed court fees and fixed minimum attorney fees shall apply.
ABOUT THE AUTHOR
Erdem Küçüker is an attorney-at-law registered at the Istanbul Bar Association (Türkiye). He graduated from Istanbul University in 2021. He specializes in commercial arbitration, arbitration-related litigation and commercial litigation. He also acts as secretary to arbitral tribunals.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
