Current Application of the Principle of Reciprocity
Entrance
When it comes to the recognition and enforcement of foreign court judgments in Turkey, one of the most debated concepts in practice is the principle of reciprocity . Especially in enforcement cases, the question of "Are Turkish court judgments recognized in the country where the judgment was rendered?" can determine the outcome of the case. However, reciprocity has often become a misunderstood institution , interpreted too broadly , or invoked as an automatic ground for refusal
Turkish Private International Law No. 5718 regulates reciprocity not as a strict and formal condition, but as a flexible, practical, and contemporary criterion. This article examines in detail the legal basis of the principle of reciprocity, its types, the Supreme Court's current approach, and how it should be proven in practice.
1. What is reciprocity?
Reciprocity means that a state's approach to recognizing and enforcing the court decisions of another state should be mirrored by the other state in the same manner
Reciprocity in private international law:
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It aims to establish balance and equality among states .
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It prevents the unilateral recognition of judicial decisions
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However, obstruct access to justice .
2. The Legal Basis of Reciprocity in the Private International Law Act
According to Article 54/1-a of the MÖHÜK (Turkish Code of Civil Procedure):
"The enforcement of a foreign court judgment is contingent upon the existence of reciprocity between Türkiye and the state that rendered the judgment."
This arrangement:
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reciprocity specific condition for enforcement.
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It has not stipulated any general and absolute condition for recognition.
This distinction is critical in practice.
3. Is Reciprocity Necessary for Recognition or Enforcement?
a) In terms of enforcement
Reciprocity is a necessary condition for enforcement.
Foreign court judgments involving performance of obligations:
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If there is no reciprocity,
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Even if all other conditions are met,
it cannot be enforced.
b) In terms of recognition
In terms of recognition:
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Reciprocity is not generally required.
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However, in exceptional circumstances, this may be a matter of debate in practice.
The established position of the Supreme Court is that reciprocity is not an indispensable condition .
4. Types of Reciprocity
The Turkish Private International Law System does not treat reciprocity a uniform way . In practice, three different types of reciprocity are accepted:
a) Legal (Contractual) Reciprocity
Between the two states:
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Bilateral agreement,
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a multilateral agreement
exists.
For example:
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Enforcement and judicial assistance agreements
are the strongest indicators of legal reciprocity.
b) De Facto (Practical) Reciprocity
Actual reciprocity:
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Foreign state courts,
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It means that it effectively recognizes or enforces Turkish court decisions
This type of reciprocity the most common and practical type of reciprocity and is considered sufficient by the Court of Cassation.
c) Legal Reciprocity
In the domestic laws of some countries:
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General regulations may exist stating that "foreign court judgments are recognized/enforced."
Such arrangements can be interpreted as favoring reciprocity; however, they are not always considered sufficient on their own.
5. How is reciprocity proven?
Reciprocity automatically assumed fact. It must be demonstrated by the party requesting enforcement.
For practical proof:
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Foreign court decisions,
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Provisions of foreign legislation,
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Academic opinions,
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Official institutional documents
may be used.
The Supreme Court bases its decisions on concrete and up-to-date data , not abstract allegations
6. Current Approach of the Supreme Court of Appeals
The Supreme Court's approach in recent years:
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Not viewing reciprocity as a strict formal requirement,
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They consider de facto reciprocity sufficient,
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In cases of doubt, they favor an interpretation that would allow for enforcement
This approach is consistent with the aim of the Private International Law Act to facilitate international legal circulation.
7. Reciprocity – Public Order Distinction
Reciprocity and public order are different grounds for refusal.
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Reciprocity → Interstate relations
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Public order → Content of legal consequences
In practice, these two concepts are often confused, and arguments such as public order objection or lack of reciprocity are put forward. This approach is flawed.
8. Reciprocity in Family Law Decisions
Regarding decisions related to family law:
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Recognition of divorce → No reciprocity required
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Enforcement of alimony and compensation → Reciprocity is required
If this distinction is not made, the case is based on a flawed legal foundation.
9. Common Mistakes in Practice
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Reciprocity is also required for recognition
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Automatic assumption of reciprocity
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Failure to prove reciprocity in practice
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Relying on old and outdated precedents
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Confusing public order with reciprocity
Conclusion
Reciprocity is an important, but not an absolute and strict, obstacle to the enforcement of foreign court judgments within the Private International Law system . The current approach has shifted towards a practical, flexible, and justice-oriented understanding of reciprocity.
Reciprocity, correctly interpreted and proven with concrete data:
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It speeds up enforcement processes,
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It strengthens international judicial cooperation,
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It prevents unnecessary rejection decisions.
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