Characteristics Of International Commercial Cases

Following points can be made concerning international commercial litigation:

In order to decide whether to bring an action or not, the creditor must have knowledge of the solvency of the debtor, that is, if the judgment obtained against the said debtor will be successfully enforced abroad where the said debtor has assets. For no satisfactory registration system exists, such information may be very difficult or too expensive to obtain in Turkey.

Notwithstanding the widespread application of relevant bilateral (see endnote 1) and multilateral conventions (see endnote 2), service of documents abroad cost more time as compared to the case in domestic proceedings. Personal service by the plaintiff's solicitor is not permitted.

The costs involved in the translation of documents may be substantial. In addition, regardless of cost, it may in practice be very difficult to obtain a reliable translation, especially of a document written in complicated legal language. An agreement drafted in American fashion, intricate in content, can only be rendered into good Turkish by an "amateur" translator who is a lawyer.

The existence of international agreements (see endnote 3) concerning taking evidence abroad is not in itself sufficient as such to overcome legal cultural difficulties. For example, in a case before a United States court where a request to obtain evidence was made to a District Court in Istanbul in 1993, counsel for one of the parties was not satisfied with the assistance provided by the Turkish court in taking evidence, as they were not permitted to "cross-examine" the expert witnesses.

In commercial matters, one of the most important difficulties for the foreign parties is the fact that they are not able to prove their claims with their own books of accounts, which is permitted in Turkey in controversies arising from commercial transactions between businesses. According to the Turkish law, only the books of accounts which are kept in accordance with the Turkish Commercial Court (Arts 66 - 86.) are admissible as evidence.

As in most legal systems, a foreign plaintiff is required to give a "security for costs" which will be used to cover the costs of the defendant should the plaintiff lose the case (cautio judicatum solvi) (IPPL Art. 32). Such security for costs is not required where there is a reciprocal agreement between the plaintiff's country and Turkey (see endnote 4). Nevertheless, many cross-border cases still fall in the field of application of cautio judicatum solvi. An American national who commences an action in Turkey, for example, must deposit the security for costs in the court (see endnote 5). According to the Turkish CCP, the court decides if the type and form of the security given by the plaintiff is admissible (CCP Art. 96). The Turkish Court of Cassation holds that the security must be given in a foreign currency (see endnote 6).

1 Turkish - German agreement dated 28. 5. 1929, Resmi Gazete, 4.6.1930, No. 1511 or RGBl 1930 II 6.

2 Hague Convention on Civil Procedure 1954, Resmi Gazete, 23.5.1972, No. 14194; Hague Service Convention 1965, Resmi Gazete, 17.6.1972, No. 14218.

3 e.g., Turkish - German agreement dated 28. 5. 1929. Turkey is not a party to Hague Evidence Convention of 18.3.1970.

4 This is the case inter alia for the contracting states of the Hague Civil Procedure Convention 1954, between Turkey and Germany (Agreement of 28.5.1929, Art. 2: Resmi Gazete 4.6.1930, no. 1511; RGBl 1930 II 6), between Turkey and the United Kingdom (Agreement of 28.11.1931, Art. 12, Resmi Gazete 5.7.1932, no. 2142).

5 Cf. Kuru, Hukuk Muhakemeleri Usul? El Kitabi, p. 689.

6 e.g. 12th Civil Chamber, 7. 12. 1983, No.10341/9973, Yasa Hukuk ve Ictihat Dergisi (1984), pp.279 - 280. Cf. Nomer, Devletler Hususi Hukuku, p. 379, note 191a.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.