At what point does the maintenance of public order outweigh the need to guarantee recognition and enforcement of foreign court decisions? State sovereignty is a fundamental principle of international law, and state courts are a primary exercise of that principle. Generally speaking no state would willingly allow another state to infringe on its sovereignty, but in practice the recognition and enforcement of foreign court decisions is a common occurrence. However, the limits to recognition and enforcement of foreign court decisions is an important question in international law. In this article, we will examine the principle of public order in Turkey, which is considered to be one of the primary exceptions to the recognition and enforcement of foreign court decisions in international law.
The enforcement of foreign court decisions in Turkey is regulated under Code No. 5718 on Private International Law and Procedural Law (“the Code”). According to the Code, there are some prerequisites for the enforcement of foreign court decisions. These are, the existence of a decision made by a foreign court, the said decision must be related to civil cases, and the decision must be finalized according to the law of the state where the decision was made. In addition to these essential conditions regarding the enforcement of the foreign decisions, Article 54 of the Code states that the following further conditions must be satisfied:
i. There must be reciprocity between Turkey and the country where the decision was made,
ii. The decision should not have been made on a matter that falls under the exclusive jurisdiction of the Turkish courts, and the foreign court should not have found itself authorized to constitute an "excessive jurisdiction,”
iii. The decision should not be clearly contrary to Turkish public order, and
iv. The decision must have been made in compliance with the defendant's right of defense.
The determination of whether the foreign court decision is contrary to Turkish public order is essentially left to the discretion of the judge. However, it is crucial to note that this does not mean that the Judge may refuse the enforcement of a foreign decision on the grounds that enforcement would be contrary to public order just because the foreign decision was made by applying substantive and procedural rules that are different from than Turkish law. In order for a foreign decision to be deemed contrary to public order, the decision must be contrary to the basic principles of the Turkish Constitution or the Turkish legal system, and the general customs and ethics of Turkish society.
In this regard, it is necessary to mention the Turkish Court of Cassation Unification Decision No. 2012/1, of October 12, 2012, which includes criteria to guide lower courts in ruling on questions of public order. In this decision, the Court held that enforcement of a foreign decision is contrary to the public order if it violates any of the following: the basic values of Turkish law, the moral and general Turkish understanding, the basic understanding of justice upon which Turkish laws are based, the general politics on which Turkish laws are based, the fundamental rights and freedoms in the Turkish Constitution, the common principles valid internationally, the goodwill of private law, the principles of ethics, the principles of law that are the expression of the moral principles and the understanding of justice, the civilization level of the society, the political and economic regime, and human rights and freedoms.
Most of the time, when the enforcement of a foreign decision is determined to be against public order, it is due to a violation of mandatory legal rules. However, it should be noted that the sole fact that a foreign decision is contrary to the mandatory rules of law does not mean that it will be against public order. In this respect, a foreign decision that violates any or every mandatory provision does not necessarily violate Turkish public order. Considering the above decision of the Turkish Court of Cassation, which draws the framework of public order, the enforcement of a foreign decision cannot be denied by a Turkish court simply because the foreign law applied differs substantively from Turkish Law or is even contrary to the mandatory rules of Turkish Law.
Clearly, Turkish judges are given broad discretionary authority in the determination of whether the enforcement of a foreign decision would be a violation of public order, since there is no precise definition of public order. Although in some cases it can be easily spotted that the maintenance of public order prohibits the enforcement of a foreign decision, in most cases this should be evaluated on a case by case basis. The biggest reason for this is that the concept of public order is ambiguous and variable. For this reason, whether this concept will constitute an obstacle to the enforcement of a foreign judgment should be evaluated in the light of the most current judicial decisions.