Updated: Aug 26, 2021
Evidence is a big risk when it comes to arbitration. At first, one has to find which evidences are needed in order to pursue arbitration, since building a case needs grounds on the damage, quantum and the causation link. Secondly, in some cases, states set forth rules on recognition and enforcement of a foreign arbitral award which are generally on translation and certificate of authentication. In Turkey, there is a simple process on how to apply to court with foreign arbitral awards and/or court decisions and it is Art.223 and 224 of Civil Procedure Code.
Before examining the process, it is important to know that the governing law on evidences is lex fori. Under Turkish Law, in common with other civil law traditions, if there is a formal requirement that is not complied with, the document will be null and void and the actions taken based on the said document will be resulted as null and void. In the case of foreign court decisions or arbitral awards, under Art. 7 of the Act on Private International Law and International Civil Procedure, it is provided that the documents with the foreign element will be governed by the law of locus regit actum or lex causea, therefore lex fori will not be applied. For these cases, Turkish law provides a simple process on how to submit evidences written in foreign languages before the Turkish courts.
First of all, according to the Art. 223 of the Civil Procedure Law, if evidence submitted is written in foreign language, it must be translated in order to be recognized under the Turkish law. The reasoning behind it is if there is a document or an evidence to be submitted, submitter must present it in a way that every person concerned will understand the said document.
Secondly, according to the Art. 224 of the Civil Procedure Law, if evidence submitted is, in fact, written in foreign language and issued by a foreign authority, it must be authenticated. Authentication will show that the person or entity that issued said document is authorized to do so and formal requirements under the locus regit actum or the law of the place where the facts occurred.
Authentication process is made easier by Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (“Apostille Convention”). This convention applies to public documents which are as follows:
Documents emanating from an authority or an official connected with the courts or tribunals of the state, including those emanating from a public prosecutor, a clerk of a court or a process-server,
Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.
The Apostille Convention excluded the documents executed by diplomatic or consular agents and the administrative documents dealing directly with commercial or customs operations.
The only formality that may be required in order to certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears, is the addition of the certificate described in Article 4, issued by the competent authority of the State from which the document emanates.
Formal requirements are explained and showed by the Convention.
Although the court sessions and arbitration proceeding is burdensome, submitting evidences made easier by the 3 simple provision under Turkish law and there will be no surprises for the person who is applying for the recognition and enforcement of the decision or the award.
Av. Ferhan Yıldızlı
Stj. Av. Bahar Şahin