Public Order in Enforcement Cases and the Implementation of Foreign Court Decisions in Türkiye

The Concept of Public Order in the Enforcement of Foreign Court Judgments

With the development of international legal relations, it has become quite common for court decisions given in one country to have effect in another. For a court decision given in one country to be enforceable in another, certain legal conditions must be met.

In Turkey, one of the important conditions examined by the courts in enforcement cases filed to implement foreign court judgments is public order.

In enforcement proceedings, public order refers to the assessment of whether the enforcement of a foreign court decision in Türkiye is clearly compatible with the fundamental principles of the Turkish legal system.

In other words, a Turkish court does not re-examine the content of a foreign judgment; rather, it assesses whether the judgment's effect in Türkiye would harm the fundamental values ​​of our legal system.

Public order is an exceptional security mechanism in private international law that limits the application of foreign law or foreign court decisions.

However, the concept of public order should not be interpreted broadly. Otherwise, every foreign decision could be rejected on the grounds that it differs from Turkish law, and international legal relations could be severely damaged.

Therefore, the currently accepted approach is to apply public order only in cases of clear and serious violations.

The Legal Basis of Public Order in Enforcement Proceedings

In Turkish law, the enforcement of foreign court judgments is regulated under Law No. 5718 on International Private Law and Procedural Law.

In the Private International Law system, for foreign court judgments to be enforceable in Türkiye, several conditions must be met simultaneously.

These conditions include:

• the decision was given by a foreign court,
• that it has been finalized and has become enforceable,
• Not being given on a matter that falls under the exclusive jurisdiction of Turkish courts,
• not being clearly contrary to public order
• other enforcement conditions must be met

It is located there.

The public order review is conducted in terms of the legal consequences that a foreign decision will have in Türkiye.

In other words, the court does not evaluate the legal system of the country where the foreign decision was rendered; it only examines whether the resulting outcome conflicts with the fundamental principles of the Turkish legal system.

How is a Public Order Review Conducted?

When conducting a public order review in enforcement proceedings, the court does not reassess the merits of the foreign judgment.

This situation is related to the principle of prohibition of revision , which is accepted in private international law .

According to the revision ban, Turkish courts;

• foreign court's evaluation of evidence,
• the way of interpreting events,
• legal justification,
• the correctness of the decision in terms of substantive law

It cannot be reviewed again.

For example, if a foreign court rules that one party must make a payment in a contractual dispute, a Turkish court will not reinterpret the contract to determine whether the decision is correct.

However, a public order objection may arise if the outcome of a foreign decision is clearly contrary to the fundamental principles of the Turkish legal system.

Therefore, the public order review is less concerned with the correctness of the decision and more with whether its implementation in Türkiye is acceptable.

Public Order and Fundamental Principles of Turkish Law in Enforcement Proceedings

The concept of public order encompasses the fundamental values ​​of society and the legal system.

However, not every violation of a mandatory legal rule constitutes a violation of public order.

For a foreign court decision to be refused enforcement in Türkiye, the violation must be of a more serious nature.

For example;

• violation of fundamental rights and freedoms
• the complete elimination of the right to a fair trial,
• the emergence of results that clearly contradict the fundamental principles of law

This can be considered within the scope of public order.

Conversely, a foreign court adopting a different legal interpretation or resorting to a different method of resolution than Turkish law does not, in itself, constitute a violation of public order.

The fundamental aim in private international law is to strike a balance between different legal systems.

Limits of Public Order Intervention

In enforcement proceedings, public order is not a general ground for refusal to enforce foreign judgments in Türkiye.

If the concept of public order is interpreted too broadly, a large proportion of foreign court decisions could become ineffective in Türkiye.

This situation undermines international legal security and legal cooperation between countries.

Therefore, when courts make assessments regarding public order;

• the nature of the foreign decision,
• the resulting legal consequences
• The fundamental principles of Turkish law,
• requirements of international law relations

They evaluate them together.

Public order is a legal instrument used in exceptional circumstances.

The Concept of Public Order in the Enforcement of Foreign Court Judgments

With the development of international legal relations, it has become quite common for court decisions given in one country to have effect in another. For a court decision given in one country to be enforceable in another, certain legal conditions must be met.

In Turkey, one of the important conditions examined by the courts in enforcement cases filed to implement foreign court judgments is public order.

In enforcement proceedings, public order refers to the assessment of whether the enforcement of a foreign court decision in Türkiye is clearly compatible with the fundamental principles of the Turkish legal system.

In other words, a Turkish court does not re-examine the content of a foreign judgment; rather, it assesses whether the judgment's effect in Türkiye would harm the fundamental values ​​of our legal system.

Public order is an exceptional security mechanism in private international law that limits the application of foreign law or foreign court decisions.

However, the concept of public order should not be interpreted broadly. Otherwise, every foreign decision could be rejected on the grounds that it differs from Turkish law, and international legal relations could be severely damaged.

Therefore, the currently accepted approach is to apply public order only in cases of clear and serious violations.

The Legal Basis of Public Order in Enforcement Proceedings

In Turkish law, the enforcement of foreign court judgments is regulated under Law No. 5718 on International Private Law and Procedural Law.

In the Private International Law system, for foreign court judgments to be enforceable in Türkiye, several conditions must be met simultaneously.

These conditions include:

• the decision was given by a foreign court,
• that it has been finalized and has become enforceable,
• Not being given on a matter that falls under the exclusive jurisdiction of Turkish courts,
• not being clearly contrary to public order
• other enforcement conditions must be met

It is located there.

The public order review is conducted in terms of the legal consequences that a foreign decision will have in Türkiye.

In other words, the court does not evaluate the legal system of the country where the foreign decision was rendered; it only examines whether the resulting outcome conflicts with the fundamental principles of the Turkish legal system.

How is a Public Order Review Conducted?

When conducting a public order review in enforcement proceedings, the court does not reassess the merits of the foreign judgment.

This situation is related to the principle of prohibition of revision , which is accepted in private international law .

According to the revision ban, Turkish courts;

• foreign court's evaluation of evidence,
• the way of interpreting events,
• legal justification,
• the correctness of the decision in terms of substantive law

It cannot be reviewed again.

For example, if a foreign court rules that one party must make a payment in a contractual dispute, a Turkish court will not reinterpret the contract to determine whether the decision is correct.

However, a public order objection may arise if the outcome of a foreign decision is clearly contrary to the fundamental principles of the Turkish legal system.

Therefore, the public order review is less concerned with the correctness of the decision and more with whether its implementation in Türkiye is acceptable.

Public Order and Fundamental Principles of Turkish Law in Enforcement Proceedings

The concept of public order encompasses the fundamental values ​​of society and the legal system.

However, not every violation of a mandatory legal rule constitutes a violation of public order.

For a foreign court decision to be refused enforcement in Türkiye, the violation must be of a more serious nature.

For example;

• violation of fundamental rights and freedoms
• the complete elimination of the right to a fair trial,
• the emergence of results that clearly contradict the fundamental principles of law

This can be considered within the scope of public order.

Conversely, a foreign court adopting a different legal interpretation or resorting to a different method of resolution than Turkish law does not, in itself, constitute a violation of public order.

The fundamental aim in private international law is to strike a balance between different legal systems.

Limits of Public Order Intervention

In enforcement proceedings, public order is not a general ground for refusal to enforce foreign judgments in Türkiye.

If the concept of public order is interpreted too broadly, a large proportion of foreign court decisions could become ineffective in Türkiye.

This situation undermines international legal security and legal cooperation between countries.

Therefore, when courts make assessments regarding public order;

• the nature of the foreign decision,
• the resulting legal consequences
• The fundamental principles of Turkish law,
• requirements of international law relations

They evaluate them together.

Public order is a legal instrument used in exceptional circumstances.

The Public Order Approach in Enforcement Cases in Supreme Court Decisions

In enforcement proceedings, the concept of public order is one of the issues that Turkish courts consider with particular care. This is because a broad interpretation of public order can significantly complicate the enforcement of foreign court judgments in Türkiye.

According to the established approach of the Supreme Court, public order is not a broad concept encompassing all legal rules. The criterion to be used when assessing public order is whether a foreign court decision having legal effect in Türkiye clearly and seriously conflicts with the fundamental values ​​of the rule of law.

Therefore, the fact that a foreign court decision produces a different result than a regulation in Turkish law does not, in itself, constitute a violation of public order.

For example, a foreign court interpreting a contract differently, calculating compensation differently, or adopting a different solution according to its own legal system does not directly constitute an obstacle to enforcement.

The crucial point in the Supreme Court's practice is whether the acceptance of the decision's outcome in Türkiye violates the fundamental principles of the legal system.

This approach is important for the continuity of international legal relations, because one of the fundamental aims of private international law is for states to show a certain degree of respect for each other's legal systems.

Circumstances in Which Enforcement May Be Refused Due to Violation of Public Order

The public order impediment applies exceptionally to the enforcement of foreign court judgments in Türkiye. However, in some cases, it may not be possible to enforce a foreign judgment in Türkiye.

Violation of the Right to a Fair Trial

One of the most important areas of assessment within the scope of public order is whether the parties' rights to a fair trial are protected.

During the issuance of a foreign court decision;

• Failure to properly serve notice to the defendant,
• not allowing the exercise of the right to defense,
• one of the parties was not informed of the trial

If situations like these arise, it can be significant in terms of public order.

The right to a fair trial is a fundamental element of the rule of law. Therefore, a decision rendered in a trial where one party's fundamental procedural rights have been completely eliminated may not be acceptable in Türkiye.

However, it is important to note that simple procedural differences should not be considered a violation of public order.

Each country may have a different judicial system. What matters is whether the fundamental rights of the parties are protected.

Public Order Review in Family Law Decisions

In foreign court decisions relating to family law, the assessment of public order may be of a more sensitive nature.

Especially;

• divorce decisions,
• custody decisions,
• alimony provisions
• decisions regarding marital relationships

In this regard, the fundamental principles of family law in Turkish law are taken into consideration.

For example, if a decision by a foreign court clearly conflicts with fundamental principles of Turkish law regarding family order, then public order may be at issue.

However, it is not sufficient for a foreign legal system to simply contain regulations different from Turkish law.

In private international law, the aim is not to completely adapt foreign legal systems to Turkish law. The aim is to prevent the outcome to be applied in Türkiye from violating the fundamental values ​​of the legal order.

Public Order Assessment in Commercial Disputes

In the enforcement of foreign court judgments arising from international commercial relations, public order generally applies to a more limited extent.

The main reason for this is that parties have ample freedom of contract in commercial relationships.

Especially;

• trade receivables decisions,
• disputes arising from the contract,
• disputes between companies,
• international sales contracts

The enforcement of foreign judgments is a frequent issue in this regard.

A foreign court resolving a commercial dispute using a different legal interpretation does not often constitute a violation of public order.

However, the decision;

• serving an unlawful purpose,
• violating fundamental legal principles
• resulting in a clear injustice

In these situations, a public order assessment can be made.

The Issue of Public Order in Compensation Decisions

High compensation awards issued by foreign courts can also occasionally become the subject of public order debates.

High punitive damages, particularly those applied in some legal systems, may differ from the understanding of compensation in Turkish law.

In this case, the Turkish court would not automatically reject enforcement solely on the basis of the high amount of compensation.

The important question is whether the compensation awarded is compatible with the fundamental principles of the rule of law in Türkiye.

In other words, the fact that a foreign court has a different understanding of compensation does not, in itself, constitute a public order obstacle.

However, if the outcome is so severe as to be unacceptable under Turkish law and violates fundamental legal principles, then public order may become a concern.

Is a foreign ruling differing from Turkish law a violation of public order?

One of the most common misconceptions in enforcement proceedings is the belief that a foreign judgment differing from Turkish law constitutes a violation of public order.

However, such an approach is not accepted in the system of private international law.

The world has different legal systems, and each legal system resolves disputes according to its own rules.

If every difference were considered a violation of public order, almost none of the foreign court decisions would be enforceable in Türkiye.

Therefore, the following question should be asked during the evaluation:

"Is this decision different from Turkish law?"

not;

"Wouldn't the implementation of this decision in Türkiye be clearly incompatible with the fundamental values ​​of our legal system?"

should be.

This distinction is one of the fundamental points of enforcement law.

The Principle of Legal Certainty in Public Order and International Law

Legal certainty is of paramount importance in international legal relations.

International commercial and legal relations can suffer if an individual or company believes that a court decision obtained in another country is completely unenforceable.

Therefore, public order should not be seen as a tool to completely prevent the implementation of foreign decisions, but rather as a security mechanism that protects the fundamental values ​​of the legal system.

The approach accepted in Turkish law is that public order should be interpreted narrowly and applied only in cases of necessity.

In this way, both the fundamental principles of Turkish law are protected and the continuity of international legal relations is ensured.

Assessment of Public Order within the Scope of the Turkish Code of Civil Procedure

In the process of enforcing foreign court judgments in Türkiye, public order is one of the important conditions considered within the scope of Law No. 5718 on International Private Law and Procedural Law.

The Turkish Private International Law system, while acknowledging the effectiveness of foreign court judgments in Türkiye, also imposes certain limitations. The primary purpose of these limitations is to prevent the fundamental principles of the Turkish legal system from being harmed due to the enforcement of foreign judgments.

However, the important point here is that public order should not be used as a regular reason for refusal.

In enforcement proceedings, the court's approach when conducting a public order review is not to investigate whether the foreign judgment is entirely identical to Turkish law. The issue examined is whether the foreign judgment having legal effect in Türkiye constitutes a violation of the indispensable principles of the legal system.

Therefore, the concept of public order is not a tool that completely prevents the enforcement of foreign court judgments in Türkiye; it is merely an exceptional protection mechanism resorted to only when necessary.

How to Raise a Public Order Objection in an Enforcement Case?

In enforcement proceedings, the parties may argue that the enforcement of a foreign court decision in Türkiye is contrary to public order.

Specifically, the defendant;

• that his fundamental rights were violated during the trial process
• that the decision is incompatible with the fundamental principles of Turkish law
• the implementation of the foreign decision will have unacceptable consequences

He can claim that.

However, simply raising objections in a general way, such as "the decision is contrary to Turkish law," is not sufficient.

The claim of a violation of public order must be substantiated. It is important for the party to demonstrate the reasons why the foreign decision is contrary to the fundamental principles of Turkish law.

In making this assessment, the court considers the specifics of the case, the nature of the decision, and its legal consequences.

The Relationship Between Public Order and Jurisdictional Control in Enforcement Proceedings

In the enforcement of foreign court judgments, one of the issues considered along with public order is the court's jurisdiction.

Turkish law recognizes the exclusive jurisdiction of Turkish courts in certain areas of dispute resolution.

In these areas, judgments rendered by foreign courts may not be enforceable in Türkiye.

However, not every dispute over authority is evaluated within the scope of public order.

The crucial question is whether the foreign court's decision clearly conflicts with the strict jurisdiction rules of Turkish law.

Therefore, in enforcement cases;

• Authority review,
• public order review,
• enforceability of the decision

These should be considered as distinct legal assessments.

Limiting the Public Order Obstacle in the Enforcement of Foreign Court Judgments

The generally accepted understanding in international private law is that the public order impediment should be applied only in a limited way.

This is because it is essential for states to demonstrate a certain degree of trust in each other's legal systems.

If every state were to consider all foreign decisions that differ from its own legal rules as contrary to public order, the international circulation of decisions would become largely impossible.

Therefore, in modern legal systems, public order;

• open,
• heavy,
• fundamental

It is applied in terms of violations.

Simple legal differences, differences in interpretation, or the existence of different regulations in foreign legal systems do not, in themselves, constitute an obstacle to public order.

Frequently Asked Questions About Public Order in Enforcement Proceedings

Does the fact that a foreign court decision is contrary to Turkish law prevent its enforcement?

Not every irregularity constitutes an impediment to enforcement.

It is normal for a foreign court decision to differ in some respects from Turkish law. What is important from the perspective of public order is whether this difference constitutes a violation of the fundamental principles of the legal system.

Can the claim of being against public order always be made?

Public order is an important consideration in enforcement proceedings. However, it is not sufficient for the parties to merely allege a violation of public order based on abstract claims.

There must be a serious legal violation in the specific case.

Can high-amount foreign compensation judgments be enforced in Türkiye?

The high amount involved is not, in itself, an obstacle to enforcement.

Turkish courts, when determining the amount of compensation, consider the nature of the decision and the outcome it produces.

However, if the decision is explicitly punitive and leads to consequences incompatible with Turkish legal principles, then public order may be at stake.

If enforcement is refused due to reasons of public order, does the decision become completely invalid?

No.

The rejection of an enforcement request does not invalidate the foreign court decision in the country where it was rendered.

It only prevents the relevant decision from becoming enforceable in Türkiye.

The Importance of Public Order in the Enforcement of Foreign Court Decisions in Türkiye

With the development of international legal relations, the enforcement of foreign court judgments in Türkiye is becoming increasingly important.

Especially;

• in international commercial disputes,
• In family law relations of persons living in foreign countries,
• in cross-border claims and compensation disputes

Enforcement cases frequently come to the forefront.

In this process, public order must be applied in a way that both protects the fundamental values ​​of Turkish law and ensures the continuity of international legal relations.

A balanced approach to public order fosters both legal security and international cooperation.

Conclusion: The Role of the Concept of Public Order in Enforcement Proceedings

In enforcement proceedings, public order is an important, but exceptional, area of ​​consideration regarding the implementation of foreign court judgments in Türkiye.

Turkish courts do not reassess the merits of foreign judgments; they only examine whether the enforcement of these judgments in Türkiye is compatible with the fundamental principles of the rule of law.

The purpose of the concept of public order is not to completely prevent foreign decisions, but to safeguard the fundamental values ​​of the Turkish legal system that must be protected.

Therefore, when enforcing foreign court judgments, a public order assessment is made;

• the nature of the decision
• fundamental rights of the parties
• legal consequences
• Fundamental principles of Turkish law

It should be considered as a whole.

In today's world, where international legal relations are increasingly complex, the enforceability of foreign court judgments in Türkiye is of paramount importance. In this context, a correct understanding of the public order requirement in enforcement proceedings plays a critical role both in ensuring that rights holders can access their entitlements and in protecting the Turkish legal order.