logo, Turkey Law Firm
  • ABOUT US
  • OUR LAWYERS
  • SERVICES
    • Corporate Law
    • Commercial Law
    • Construction and Real Estate Law
    • Intellectual and Industrial Property Law
    • Administrative Law
    • Tax Law
    • IT and E-Commerce Law
    • Dispute Resolution Methods
  • SECTORS
    • Real Estate and Investment
    • Energy and Natural Resources
    • Transport and Logistics
    • Chemicals and Petroleum Products
    • Agriculture, Food and Retail
    • Healthcare and Pharmaceuticals
    • Telecommunications and E-Commerce
    • Investments in Education and Tourism
    • Entrepreneurship and Start-Up
    • Insurance and Reinsurance
  • PUBLICATIONS
  • CONTACT US
EN 🇬🇧
TR 🇹🇷
Coronavirus Desk

Foreigners’ Obligation of Providing a Guarantee (Cautio Judicatum Solvi) to File a Lawsuit, Initiate an Execution Proceeding or Intervene in a Lawsuit in Turkey

Home - Articles - Foreigners’ Obligation of Providing a Guarantee (Cautio Judicatum Solvi) to File a Lawsuit, Initiate an Execution Proceeding or Intervene in a Lawsuit in Turkey

Categories
Archive

Social Media

Linkedin Twitter Facebook-f Instagram

+90 (216) 464 12 12

[email protected]

  • September 28, 2020

Under Turkish Law, there is an obligation of providing a guarantee when a foreigner files a lawsuit, initiates an execution proceeding or intervenes in a lawsuit. Since it is hard to reach a person who does not reside in Turkey or have a connection with Turkey, this obligation aims to protect the defendant to receive its rights from the plaintiff in case the defendant wins the lawsuit.

Obligation of providing a guarantee is defined in both Turkish Civil Procedure Code numbered 6100 and Turkish International Private and Procedural Law numbered 5718. According to Article 84 para 1 of Turkish Civil Procedure Code, “ guarantee in an adequate amount should be provided to prevent any possible loss of the defendant, in case; (a) a Turkish citizen who is not residing in Turkey initiates a lawsuit, intervenes a lawsuit or initiates an execution proceedings, (b) an adjudication in bankruptcy to the plaintiff, arrangement of bankruptcy or debt restructuring on the basis of reconciliation in relation with the plaintiff has been started or the plaintiff has certificate of insolvency or the plaintiff has difficulty in debt repayment proven with documents.” As is seen, this article only applies to real persons who have Turkish citizenship but not residing in Turkey.

On the other hand, Turkish International Private and Procedural Law numbered 5718 defines providing guarantee obligation of real persons who are not Turkish citizens as well as legal persons that have their headquarters outside Turkey. According to Article 48/1 of the Turkish International Private and Procedural Law numbered 5718, “foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court shall be required to provide a security whose amount shall be determined by the court to cover the expenses of the legal procedures and proceedings as well as losses or damages of the other party.” In this context, term of guarantee means an assurance provided by plaintiff to cover possible losses and damages of defendant, litigation expenses and court costs.

Application of article 48/1 of the Turkish International Private and Procedural Law numbered 5718 depends on “element of foreignness”. Element of foreignness comprehends stateless persons and refugees as well as real persons who are not Turkish citizen as well as legal persons that have their headquarters outside Turkey.

Since providing a guarantee is a procedural requirement under Turkish Law, in case a plaintiff meets the requirements stipulated in the above-mentioned article, the court gives a peremptory term to the plaintiff and if the plaintiff does not fulfill its obligation of providing a guarantee within the peremptory term, then the lawsuit shall be dismissed without prejudice.

Nevertheless, there are some exceptions from foreigners’ obligation of providing a guarantee in Turkish Law such as reciprocity and legal assistance program. Reciprocity may be in three forms as contractual, statutory and actional. For contractual reciprocity, international contracts/conventions should be evaluated. Provided that the laws (statutory reciprocity) or de facto applications (actional reciprocity) of the foreigner’s government does not stipulate an obligation of providing a guarantee when a Turkish citizen files a lawsuit, initiate an execution proceedings or intervene in a lawsuit in such foreign country, the foreigner‘s obligation of providing a guarantee shall be also removed.

On the other hand, foreigners may benefit legal assistance programs. If there is reciprocity between country of foreigner and Turkey and the foreigner meets the criteria for legal assistance program, then foreigner’s obligation of providing a guarantee shall be removed.

Consequentially, foreigners are obliged to provide a guarantee while filing a lawsuit, intervening in a lawsuit and initiating execution proceedings in Turkey. Save for the exceptions stipulated in Turkish laws, provided that a foreigner does not fulfill this obligation within the peremptory term given by the court, then the lawsuit shall be dismissed without prejudice.

—

For more information and questions:

en.hansu.av.tr | +90 216 464 12 12

©Hansu Attorney Partnership

Hansu Attorney Partnership provides legal services to local and international clients, particularly in the areas of real estate, corporate, tax, energy and intellectual property law. This article is intended to present recent developments in Turkey and does not constitute legal or professional advice. Readers of this article should contact a lawyer to obtain advice with respect to any particular legal matter.

DOWNLOAD

Hansu Attorney Partnership is an international law firm providing one-stop-shop legal services to local and international clients with its long-standing experience. Our firm offers comprehensive legal consultancy services to private businesses and public authorities as well as international investors in Turkish, English, German and French with our dedicated team of experts and multilingual lawyers that have vast work experience in other countries.

PHONE:

+90 216 464 12 12

EMAIL:

[email protected]

ISTANBUL OFFICE CONTACT:

Sahrayıcedit Mah. Güzide Sok. Şişikler Plaza No: 14 Kozyatağı İstanbul
Post Code: 534734

IN COOPERATION WITH HANSU LONDON LIMITED

LONDON OFFICE CONTACT:

+ 44 20 4524 74 88
60 Cannon Street London UK
Post Code: EC4N 6NP

SOCIAL MEDIA

Linkedin Twitter Facebook-f Instagram
  • TERMS AND CONDITIONS
  • PRIVACY NOTICE
  • COOKIE POLICY
  • DISCLAIMERS
Menu
  • TERMS AND CONDITIONS
  • PRIVACY NOTICE
  • COOKIE POLICY
  • DISCLAIMERS
We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent.
Cookie SettingsAccept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT