the request for recognition and enforcement (tenfiz) of a foreign arbitral award does not, by itself, amount to the establishment of a monetary claim at the conclusion of the proceedings. Accordingly, it ruled:
“Given that the pending recognition (tenfiz) proceedings do not themselves produce a judgment confirming a monetary receivable, it is not possible to conclude that the legal conditions for granting a provisional attachment under Article 257 of the Enforcement and Bankruptcy Law (İcra İflas Kanunu) have been met. Therefore, the provisional attachment cannot be deemed to satisfy the statutory requirements.”
In light of this reasoning, the Court held that the lower court’s rejection of the debtor’s objection to the provisional attachment was unjustified, stating that:
“The objection to the provisional attachment should have been upheld, and the attachment lifted. It was incorrect to dismiss the debtor’s objection as unfounded.”
The case in question concerned an arbitral award rendered by the Federation of Oils, Seeds and Fats Associations (FOSFA) in London. The Court of Appeal, reversing the first-instance judge’s unreasoned decision, adopted the above legal reasoning.
A similar judicial stance has been taken in Italy, where the Court of Appeal of Trieste, in case R.G. 103/2025 (28 March 2025), ruled that a provisional attachment cannot be granted pending the enforcement of a foreign arbitral award (Roberto Oliva, Saisie conservatoire en attente de reconnaissance de sentence arbitrale étrangère).
By contrast, French law provides a more flexible statutory framework. Article L511-2 of the French Code of Civil Procedures of Execution (Code des procédures civiles d'exécution) as amended on 9 April 2024, provides:
“A previous authorisation by the judge is not necessary when the creditor invokes an enforceable title or a decision of justice which has not yet been declared enforceable.”
French courts have interpreted the phrase “decision of justice” under this provision as encompassing foreign arbitral awards, thereby allowing provisional attachments based on awards pending recognition.
Jacques Covo
FOSFA ve GAFTA Tahkimi Temyiz Daireleri ve Sözleşmeler Komisyonları eski Üyesi, Londra
Hukuk Müşaviri ve Tahkim Hakemi, Cenevre
Oğuzhan Karlı
MEF Üniversitesi, LLB | Turkish Arbitration Blog - Hukuk Koordinatörü, İstanbul