Understanding Trial Fees in Enforcement of Foreign Judgments under Turkish Law

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Q&A Booklet: Understanding Trial Fees in Enforcement of Foreign Judgments under Turkish Law

1. What laws regulate the collection of trial fees in Turkey?

The collection of trial fees in Turkey is governed by the Law of Fees No. 492 (Law no. 492) and its corresponding tariff schedules, particularly Tariff 1 of Law no. 492.

2. What is the applicable fee for actions for enforcement of foreign judgments under Turkish law?

Article 4 of Law no. 492 establishes that the applicable fee for actions for enforcement of foreign judgments is determined according to the value, type, and nature of the verdict. However, this provision has sparked controversy regarding whether the fee should be fixed or proportionate.

3. What is the general rule for monetary claims in Turkish law under Tariff 1?

Under Tariff 1, when the claim is monetary and a judgment is rendered on the merits of the case, a proportional court fee, known as the judgment fee, applies. This fee is calculated as 6.831% of the total amount in dispute, with ¼ of the judgment fee required to be deposited in advance when filing the case (application fee).

4. How does the controversy surrounding the application fee impact enforcement actions?

The controversy arises from differing interpretations of whether enforcement actions for foreign judgments are declaratory actions or involve judgments on the merits. This ambiguity affects the determination of the application fee, which in turn impacts the official attorney fees awarded to the winning party.

5. What approach should parties take when initiating enforcement actions in light of this uncertainty?

To navigate the uncertainty, parties are advised to adopt a wait-and-see approach when initiating enforcement actions. This entails initially depositing the fixed application fee. If the court disagrees with this approach, it may order the plaintiff to deposit the missing portion of the application fee within a specified period.

6. How do appellate courts and chambers vary in their treatment of application fees for enforcement actions?

Appellate courts and chambers exhibit divergent practices regarding application fees for enforcement actions. For instance, some chambers of the Court of Cassation consistently rule in favor of fixed application fees, while others support proportional fees. This lack of uniformity contributes to the uncertainty surrounding trial costs.

7. What arguments are presented by proponents of fixed application fees and those favoring proportional fees?

Proponents of fixed application fees argue that they promote access to justice by avoiding the burden of fluctuating fees. On the other hand, proponents of proportional fees assert that they align with the clear provision of Article 4 of Law no. 492, which considers the value of the verdict in determining fees.

8. Has there been any legislative action to address the controversy surrounding trial fees in enforcement actions?

Legislative action has been partially taken, particularly concerning enforcement of foreign arbitral awards. An amendment in July 2016 clarified that proportionate fees would not apply to arbitration proceedings. However, this amendment did not extend to enforcement actions, leaving room for continued ambiguity and varied interpretations.

9. What steps are necessary to enhance legal certainty in this area?

To promote legal certainty, it is essential for lawmakers to address the issue with clear legal provisions, potentially through an amendment to Article 4 of Law no. 492. Establishing consistent rules for enforcement actions, similar to those for foreign arbitral awards, would mitigate uncertainty and ensure fair and predictable trial costs.

VOCABULARY LIST

Regulation – Düzenleme
Trial fees – Yargılama giderleri
Law – Kanun
Enforcement – Tenfiz, icra, Yürütme
Foreign judgments – Yabancı Mahkeme İlamları (kararları)
Applicable – Uygulanabilir
Proportional – Orantılı
Court fee – Mahkeme harcı
Judgment fee – Karar harcı
Dispute – Uyuşmazlık
Deposit – Teminat, Depozito
Controversy – Tartışma
Academic – Akademik
Unified – Birleşik
Practice – Uygulama
Riddle – Bulmaca
Uncertainty – Belirsizlik
Jurisdiction – Yargı yetkisi
Amendment – Değişiklik
Legislative – Yasama
Action – Eylem
Clarify – Açıklığa kavuşturmak
Fluctuating – Dalgalanan
Access to justice – Adalet erişimi
Align – Uyum sağlamak
Provision – Hüküm
Legislative action – Yasama eylemi
Enhance – Geliştirmek
Legal certainty – Hukuki kesinlik

Test

1. What laws regulate the collection of trial fees in Turkey?

A) Law of Justice No. 496
B) Law of Fees No. 492
C) Law of Trials and Tribulations No. 497
D) Law of Court Proceedings No. 495

2. What is the applicable fee for actions for enforcement of foreign judgments under Turkish law?

A) Fixed fee
B) Proportional fee
C) No fee
D) Varies depending on the court

3. What is the general rule for monetary claims in Turkish law under Tariff 1?

A) 2% of the total amount in dispute
B) 6.831% of the total amount in dispute
C) 10% of the total amount in dispute
D) Fixed fee of 1000 Turkish Lira

4. How does the controversy surrounding the application fee impact enforcement actions?

A) It has no impact
B) It leads to uniformity in court decisions
C) It creates uncertainty
D) It simplifies the legal process

5. What approach should parties take when initiating enforcement actions in light of this uncertainty?

A) Deposit only the fixed application fee
B) Deposit only the proportional application fee
C) Take no action until the controversy is resolved
D) Deposit the fixed application fee and wait for court direction

6. How do appellate courts and chambers vary in their treatment of application fees for enforcement actions?

A) They always rule in favor of fixed application fees
B) They exhibit divergent practices
C) They have no role in determining application fees
D) They always rule in favor of proportional application fees

7. What arguments are presented by proponents of fixed application fees and those favoring proportional fees?

A) Fixed fees hinder access to justice
B) Proportional fees create uncertainty
C) Both fixed and proportional fees have no impact
D) Fixed fees promote access to justice

8. Has there been any legislative action to address the controversy surrounding trial fees in enforcement actions?

A) Yes, an amendment clarified the issue
B) No, legislative action has not been taken
C) Yes, but it made the issue more ambiguous
D) Yes, but it increased trial fees

9. What steps are necessary to enhance legal certainty in this area?

A) Create more controversy
B) Leave the issue unresolved
C) Address the issue with clear legal provisions
D) Ignore the issue

10. What term is used to describe the process of enforcing foreign judgments in Turkey?

A) Legalization
B) Execution
C) Internationalization
D) Validation

Answers: