THE AUTHOR:
Erdem Küçüker, Attorney-at-law registered at the Istanbul Bar Association.
Turkish courts previously ruled that, for the enforcement of foreign arbitral awards, the award need not be final, and the claimant need not submit a document proving its finality. Notwithstanding this, in two recent cases, the courts rejected claimants’ request for the enforcement of the award stating that they failed to submit a certificate documenting the finality of the arbitral award (kesinleşme şerhi).
This blog post, after addressing the relevant legislation and legal concept, explains the previous and recent decisions and comments on the binding and final character of arbitral awards in the context of the enforcement of foreign arbitral awards in Türkiye.
Relevant Legislation and Legal Concept
Articles 60-63 of the Turkish Private International Law Act (2007) (“TPILA”) deal with the provisions of the enforcement of foreign arbitral awards. Article 60 of TPILA provides that to be declared enforceable, the award should either be (i) final and enforceable, or (ii) be binding on the parties. Article 61(1)(b) of the TPILA further regulates that the claimant should submit the original or the copy of the arbitral award which should either be final and enforceable or be binding on the parties. Thus, the claimant’s submission of a binding award shall be sufficient. Finally, Article 62(1)(h) of the TPILA states that if the award (i) is not final, not enforceable or not binding on the parties, or (ii) is set aside, the court shall reject the request for enforcement.
In addition, Türkiye is a party to the New York Convention (1958) (“NYC”). As per Article 1(2) of the TPILA, the NYC has prevalence over the provisions of the TPILA in terms of enforcement of foreign arbitral awards. Article IV(1)(a) of the NYC provides that the claimant should submit the duly authenticated original or the duly certified copy of the arbitral award (without requiring the award to be final or binding). Furthermore, Article V(1)(e) of the NYC regulates that if the opposing party against whom the enforcement is sought proves that the award has not become binding on the parties, has been set aside or has been suspended, the court may reject the enforcement request.
For the context, the New York Convention does not define the term “binding”. In practice, it is accepted that a binding award is an award to which there is no possibility of appeal on merits. In determining the binding character of an award, parties’ agreement (e.g., by explicit agreement in the arbitration clause or reference to the arbitration rules/laws) constitutes a key component.
Whereas for the final character of an award, the New York Convention mentions that the award should not be set aside by the judicial authority of the seat of arbitration.
Court Decisions
Previous Practice: Binding Character of the Award Considered Sufficient
In accordance with the provisions cited above, the Court of Cassation previously affirmed a lower court’s decision, which held that the lack of the finality certificate does not prevent the enforcement of the award (11th Civil Chamber, Court of Cassation, No: E. 2007/5491, K. 2008/14080, 16 December 2008).
Moreover, the Civil Chambers Assembly of the Court of Cassation decided that, according to Article V(1)(e) of the NYC, the award needs to be binding (but not final) (No: E. 1999/467, K. 1999/489, 9 June 1999). Another chamber of the Court further confirmed this finding in another judgment (11th Civil Chamber, Court of Cassation, No: E. 2017/3469, K. 2019/4259, 11 June 2019). In addition, when establishing the binding character of the arbitral award, both courts relied on the wording in the arbitration agreement and the arbitration rules, which state that the award shall be binding on the parties.
In terms of finality of the award, the Court decided that it is for the respondent to prove that the award is not final, as per Article V(1)(e) of the NYC. In this respect, the Court affirmed a lower court’s decision, which held that the burden of proving that the award is set aside lies with the party against which the enforcement is sought (11th Civil Chamber, Court of Cassation, No: E. 2022/6833, K. 2024/5664, 8 July 2024; 11th Civil Chamber, Court of Cassation, No: E. 2020/7475, K. 2022/2843, 5 April 2022).
Recent Approach: Finality Certificate Mandated
Unlike the jurisprudence above, there are also a few decisions in which the courts required finality certifications.
In one such case, the lower court rejected the claimant’s enforcement request, stating that the claimant did not submit the finality certificate for the arbitral award. The claimant did not file a first appeal before the Court of Appeal, and its second appeal before the Court of Cassation is dismissed since it failed to file the first appeal (6th Civil Chamber, Court of Cassation, No: E. 2024/1419, K. 2025/2213, 27 May 2025). Another chamber of the Court, also recently, rendered a decision affirming the lower courts’ decision rejecting the enforcement request, since the claimant did not submit (inter alia) the final or binding copy of the award (11th Civil Chamber, Court of Cassation, No: E. 2024/809, K. 2024/8873, 10 December 2024). Although the decision does not explicitly mention it, the author understands that the Court required the claimant to submit a finality certificate.
Commentary
TPILA and NYC list (i) the non-binding character and (ii) the setting aside of the award as grounds for refusal of enforcement. That said, the claimant seeking enforcement is not obliged to submit a certificate to prove that the award is final and binding, and the party defending the enforcement bears the burden of proof for establishing that the award is not binding or it is set aside. Therefore, the previous jurisprudence cited above interprets the TPILA and NYC correctly, whereas the recent court decisions requiring claimants to submit a certificate of finality do not comply with the applicable provisions.
In any case, to ensure a successful outcome in the enforcement proceedings, the author suggests that parties asking for the enforcement of a foreign arbitral award undertake the burden of proof for the binding and final character of the award, to the extent possible. The following can be considered in establishing the binding and final character of an arbitral award.
- For the proof of binding character, parties can refer to wordings in arbitration agreements or arbitration rules, which state that the award is binding on the parties. In addition, a letter establishing the binding character of the award can be obtained from the arbitral institution (see, e.g., decision of 11th Civil Chamber, Court of Cassation, No: E. 2017/3469, K. 2019/4259, 11 June 2019).
- For the proof of final character, if a setting aside motion is rejected, a party will have no difficulty proving that the award is not set aside. In cases where no setting aside motion is filed, a party might obtain a written statement from the authorities at the seat of arbitration providing that no setting aside motion is filed and the time limit for doing so has passed. To the best of the author’s knowledge, in arbitrations seated in Switzerland, the Swiss Federal Tribunal issues such a written statement (see e.g., decision of 43rd Civil Chamber, Istanbul Court of Appeal, No: E. 2020/291, K. 2021/528, 22 April 2021).
ABOUT THE AUTHOR
Erdem Küçüker is an attorney-at-law registered at the Istanbul Bar Association (Türkiye). He specializes in commercial arbitration, arbitration-related litigation, and commercial litigation. Being registered with the Global Tribunal Secretary Platform, Erdem 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.
