323 / 469
LAW OF CIVIL PROCEDURE
309
In the event that the substance or legality of awards pronounced by the
arbitrators is examined by the enforcement judge, the preference of the
parties as per the choice of arbitration as a dispute resolution process will
be ignored.
Within this framework, the fees to be collected with regards to
enforcement lawsuits shall be handled in light of our explanations above.
Relevant Provisions of the Act of Fees (Court Fees)
Fees to be charged with regards to enforcement of foreign arbitral
awards are regulated under Article 3 of the Act of Fees. Pursuant to the
first paragraph of the relevant article, a judgment and writ fee shall be
charged in accordance with the nature of the award. Pursuant to the second
paragraph of the relevant article, it is regulated that the same principle
shall apply to fees with regards to arbitral awards and disputes that are
compulsory to be settled by arbitration.
Judgment and writ fees are regulated under the Tariff No.1 attached
to the Act of Fees. Pursuant to title III/1 of the relevant tariff which
regulates proportional fees, in the event that
“a decision is taken with
regards to the lawsuits, a subject matter of which is a disputed sum”
, a
proportional fee of 59.4 per mille shall be charged over the sum which
is subject to the dispute. The fixed fee is regulated under the title III/2 of
the Tariff No.1. Pursuant to the relevant disposition, a fixed fee shall be
charged for all cases except where it is indicated that the case is subject
to a proportional fee.
As we mentioned above, Tariff No.1 clearly regulates that, in the
event that
“a decision is taken with regards to the lawsuits, subject matter
of which is a disputed sum in between parties”
, a proportional fee shall
be charged. On the other hand, in enforcement lawsuits, there is not
any decision taken with regards to the substance of the dispute, and the
examination merely includes whether the conditions of enforcement are
met or there exists any enforcement obstacles.
Moreover, in UYAP system, there is a common practice concerning
the collection of fixed fees with regards to enforcement lawsuits, and the
fee is calculated as a fixed fee by the court clerkship, and the treasury
cash desk collects a fixed fee.