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Justification and the Public Order
The explicit violation of Turkish public order is regulated as an
obstacle to the enforcement of foreign court awards under the IPPL.
The State, in principle, waives its sovereign right to rule on conflicts
over which its own courts have jurisdiction and adopt the decision of a
foreign court while enforcing a decision. Consequently, the sovereign
right of the state is exercised by the bodies of another state. Therefore,
violation of the public order is a materially important obstacle to the
enforcement of foreign court awards.
The concept of public order is dependent on the time and place,
and its content and limits may not be precisely delimited. The Court of
Cassation has assessed, in the justification of the Decision, the relevant
provisions of Turkish law and how such provisions shall be taken into
consideration with regards to enforcement, in order to determine
whether the lack of justification constitutes a violation of public order
or not.
Justification under Turkish Law
Article 141 of the Constitution of 1982 regulates that court judg-
ments shall include justification. Article 297 of the Civil Procedural
Code numbered 6100 (as well as article 388 of the abrogated Civil
Procedural Code numbered 1086) stipulates that the judgment shall
include (in its justification) the matters on which the parties have or
have not agreed, the proof for contested matters, discussion and assess-
ment of proof, the deducted conclusion and the legal cause. Court
judgments shall include a justification as per Turkish law.
The justification of judgments derives from public order. The jus-
tification shall justify the judgment and is binding. The justification
states how the claims and defense of the parties are assessed. It is
apparent that under the Turkish law the justification is directly in rela-
tion to the fundamental right to defense.
Public Order and Prohibition of Révision au Fond
The investigation made for the enforcement regarding whether the
public order has been explicitly violated or not comprehends an assess-
ment of whether the legal consequences of enforcement of the foreign
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