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NEWS LETTER 2 0 1 0
22
Recognition and Enforcement of Arbitral Awards and
Foreign Judgments
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Recognition and enforcement of arbitral awards
The prevailing party in an international commercial arbitration
expects the award to be realized without delay. The purpose of arbitration,
unlike mediation and most other methods of alternative dispute resolution
methods, is to arrive at a binding decision on the dispute. The ultimate
sanction for non-performance of an award is being forced to execution as
a result of enforcement proceedings in a national court.
The New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 1958 (hereinafter referred to as ‘New York
Convention’ and/or ‘Convention’), which is applied in 144 countries on all
continents, provides for the enforcement of foreign arbitral awards. Turkey
is a party to the New York Convention.
The main legislation on the enforcement of arbitral awards in Turkey
is International Private and Procedure Law No.5718 dated December 12,
2007 (hereinafter referred to as ‘IPPL’) and the New York Convention
which was ratified by Turkey on July 2, 1992, and which entered into force
on September 30, 1992.
In respect of enforcement of foreign arbitral awards in Turkey,
provisions of the IPPL are applicable only if the award is decided by a
non-contracting (signatory) State to the New York Convention.
Under the New York Convention
Under the New York Convention, a foreign award is to be recognized
and enforced in any signatory state unless the defendant proves the
existence of the specific grounds set forth in Article V of the Convention,
i.e.
:
1. The parties to the arbitration agreement did not have the capacity to
contract, or the agreement to arbitrate is otherwise invalid;
2. The party against whom the award is made did not have proper
notice of the arbitration or could not present its case;
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Article of March 2010 – Prof. Dr. H. Ercüment Erdem