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NEWSLETTER 2011
308
Fees With Regards To the Enforcement of Foreign
Arbitral Awards
1
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Att. Ezgi Babur
The Judgment and writ fees to be charged in the enforcement of
foreign arbitral awards are a problematic issue in practice. The situation
has been thrown into further disarray and confusion while International
Jurisdiction Network Project (“UYAP”), imposes to charge a fixed fee for
the foreign judgment, and Article 3 of the Act of Fees numbered 492 (“Act
of Fees”) imposes to charge a fixed or proportional fee dependent upon
the nature of the foreign arbitral awards, and that resulted with common
inclination to conclude that a proportional fee is charged concerning the
disputes which are subject to proportional fees.
General
In the determination of the fees to be charged with regards to
enforcement of international arbitral awards, the distinguishing
characteristic of the examination conducted in enforcement procedure are
of importance. Therefore, the special features of enforcement procedure
shall be examined below.
In the enforcement procedure, the judge shall not conduct an
examination concerning the subject matter of the case, and only considers
whether enforcement conditions and enforcement obstacles are met
at present case. The relevant subject is entitled as the prohibition of
“révision au fond”
by the doctrine. In the event that, the enforcement
judge examines the subject matter of the award, the parties’ preference
in choosing arbitration rather than state courts to settle their dispute, will,
without any doubt, be ignored. Therefore, the prohibition of
“révision
au fond”
is one of the essential principles of the enforcement of foreign
arbitral awards.
When the parties prefer that the disputes shall be settled by arbitration,
the competence in this matter is granted to the arbitrator, not to courts.
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Article of December 2011