No Provisional Attachment in Relation to a Foreign Arbitral Award Without Exequatur in Turkiye

In international trade, it is crucial to obtain a provisional attachment following a favourable arbitral award as swiftly as possible, particularly when the debtor fails to pay upon demand. This necessity stems from the fact that court proceedings for the recognition and enforcement (exequatur) of foreign arbitral awards in Turkiye -similar to many jurisdictions- follow a three-tiered judicial structure: the Court of First Instance (“asliye hukuk mahkemesi”), the Regional Court of Appeal (“bölge adliye mahkemesi”), and the Supreme Court (“Yargıtay”). Consequently, recognition and enforcement may take a considerable amount of time before becoming final.

As Erdem Küçüker notes in Provisional Attachment Pending Enforcement of Foreign Arbitration Awards under Turkish Law: New Decisions Continuing Debate (Kluwer Law Blog), proceedings before the first instance court alone may “last up to one year or even longer.”

Recently, the 43rd Civil Chamber of the Istanbul Court of Appeal ("The Court") (İstanbul Bölge Adliye Mahkemesi) (decision of 28 April 2025, Docket No: E. 2025/541, Decision No: K. 2025/559) clarified that, as long as a foreign arbitral award has not been recognised (exequatured) under Turkish law, it cannot be considered a “matured debt” (vadesi gelmiş alacak) within the meaning of Turkish enforcement legislation. Specifically, the Court held that:

“A foreign arbitral award that has not yet been recognised and for which the exequatur process has not been completed cannot, in itself, be deemed to establish a matured receivable. The plaintiff in the present case relied solely on a foreign arbitral award which had not yet been granted an exequatur; such an award alone is not sufficient to approximately prove the existence of a matured monetary claim.”

Furthermore, the Court emphasised that 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