ENFORCEMENT OF FOREIGN JUDGMENTS IN CASE OF INTELLECTUAL PROPERTY LAW

As a rule, the judgments of one country’s courts have no force by themselves in another country. The court decisions issued by any foreign state court shall be effective in another country as final judgment and final evidence after it goes through a process of the recognition and enforcement decisions. [1] The process of enforcement of a foreign judgment is set out under articles 50 to 57 of the International Private and Civil Procedure Law Nr. 5718.

Recognition of a foreign  court decision means that court decision cannot be enforced in Turkey compulsorily, but provides the acknowledgement of that it has the power of a final judgment. On the other hand; enforcement is set out under Article 50 and et seq. under the Law numbered 5718 and defined as the procedure which provides enforceability to the definite judgments awarded by any foreign courts. According to the definitions set out under the Law numbered 5718, the recognition of any foreign court decision provides the legal existence and recognition of rights, to be used as conclusive evidence, and if necessary, introducing administrative acts in accordance with these decisions. However; enforcement of a foreign judgment provides enforcement of the decision in the same way as the decision of national courts. At this point; award of enforcement with its capability of enforcement differs from award of recognition in this respect.

First of all; there must be a court decision issued by a foreign court and this decision must be related to a legal case and it must be finalized according to the laws of the country where the respective court decision was issued, pursuant to Article 50 of the International Private and Civil Procedure Law Nr. 5718 for enforcement.

Intellectual property rights are the rights granted to persons over creations of their minds. They usually provide the creator with an exclusive right over the use of his/her creation for a certain period of time. As a general rule, intellectual property rights have limited protection, and intellectual property rights are protected according to the laws of the country where they are protected and limited to that country and may be claimed against strangers in this way.

Therefore; due to such nature of IP rights, it is not possible to recognize and enforce foreign court decisions regarding the registration, cancellation, invalidation of intellectual property rights and determination of trademark infringement.

However; if any compensation award  has been awarded in a foreign country as a result of a lawsuit based on intellectual property rights - for example a lawsuit based on infringement of trademark rights and unfair competition - enforcement of the respective foreign court decision on compensation will be possible.

At this point; enforcement ensures that the compensation ruled by a foreign court against real and/or legal persons whose assets are in Turkey are executed as a final judgement awarded by the Turkish court.

Another issue is whether mandatory conciliation  will be applied before filing an enforcement action for the amount of compensation ruled in the foreign court decision regarding the intellectual property rights. First of all, it is crucial to state that there is no clear regulation on this issue currently.

Applying to the mediator before filing a lawsuit is regulated as a condition of lawsuit in cases involving both commercial lawsuits and lawsuits involving claims and compensation for payment of a certain amount of money. The original or a copy of the final minutes approved by the mediator regarding the person, who could not reach an agreement at the end of the mediation process, must be attached to the petition. Otherwise, the plaintiff will be granted a definite period of 1 week by the court for submission of the report, and if the report is not submitted within the certain period of time granted therefor, the case will be denied procedurally.

In accordance with Article 4 of the Turkish Commercial Code, all kinds of lawsuits based on intellectual property rights are considered as commercial cases, and it is possible to accept that enforcement actions to be filed for the amount of compensation ruled in any foreign court decision are within the scope of compulsory mediation.  Although the enforcement case itself is not a lawsuit for claim or compensation, the part of the foreign court decision subject to enforcement is related to the compensation provision. For this reason, it may be considered that it falls under the scope of compulsory mediation, even if indirectly.

Competent Courts

According to article 50 of the International Private and Civil Procedure Law Nr. 5718, Enforcement of court decisions rendered by any foreign courts in the course of civil lawsuits in Turkey, which are final pursuant to the law of that foreign state, are subject to the enforcement decision of the competent Turkish court.

Article 51 of the International Private and Civil Procedure Law sets out the competent courts for enforcement of foreign judgments. The civil courts of first instance are competent for enforcement of foreign judgments. Nevertheless; there is no unity in practice, because some civil courts of first instance reject the applications owing to lack of jurisdiction, and escalate the file to the relevant commercial, intellectual property or labour courts.

Paragraph 2, article 51 of the International Private and Civil Procedure Law also sets out the jurisdiction of the courts. Pursuant to this provision, a case regarding enforcement of a foreign judgment must be filed before the court where the party, against which the enforcement is sought, is resident. If there is no address of residence for the respective party, then the case may be filed before the court on this party’s place of residence. If none of these exists, the case may be filed before one of the courts in Ankara, Istanbul or Izmir.

Enforcement Conditions [2]

The enforcement conditions are listed in Article 54 of the International Private and Civil Procedure Law (MOHUK), and basically 4 conditions are sought for enforcement of any foreign court decision.

1. If there is reciprocity between the countries subject to enforcement of the decision with Turkey:

Unlike recognition, in order to have any foreign court decision enforced in Turkey, there needs to be a mutual agreement between Turkey and the country where the decision is issued - that is in that country, there must be a provision of law or a de facto application in this direction that enables enforcement of the decisions issued by the Turkish courts.

2. If the decision is issued on an issue that does not fall under the exclusive jurisdiction of Turkish courts:

The foreign court decision must be issued on a matter that does not fall under the exclusive jurisdiction of Turkish courts. In Turkey, enforcement of any foreign court decisions in matters, falling under the jurisdiction of the Turkish courts, is not possible. Due to the nature of intellectual property rights, all issues such as registration, cancellation, invalidity and cancellation of these rights are falling under the exclusive jurisdiction of Turkish courts, and therefore, they are of unenforceable nature.

Similarly, in the enforcement of foreign court decisions in Turkey on the prevention of intellectual property rights infringement detection it is not possible. Because intellectual property rights should also be registered in Turkey to be accepted that the offense occured on property, the relevant law is being realized mainly from Turkish courts require these matters fall under the exclusive jurisdiction.

3. Not being against the public order:

In case enforcement of foreign judgments subject to the provision does not clearly contravene the public order, the enforcement is not possible in Turkey. It should be understood here with respect to enforcement of foreign court decisions that the results will emerge if the execution is not clearly contrary to the public order in Turkey.

In this regard, the most controversial issue in Turkish law is whether or not the foreign court decision is clearly contrary to public order if the decision of the foreign court is unjustified. The General Assembly of the Supreme Court of Appeals Unification of Jurisprudence has decided that the fact that the foreign court decision is unjustified will not be regarded as clearly contrary to public order.

4. Providing the defendant's right to defense:

As a rule, the right of defense of the person (defendant) against whom enforcement is requested must be ensured in accordance with the laws of the country where the decision is issued when the foreign court decision is issued. If the person against whom enforcement is sought has not been duly summoned to the court giving the verdict or is not represented in that court, or has been convicted in her/his absence contrary to the laws of the country where the decision is issued, this alone does not affect enforceability of the decision. However; if this person objects to the Turkish court against the request for enforcement based on one of the above-mentioned issues and proves this situation, enforcement of the decision is not possible.

Trial Procedure in Enforcement Cases

In accordance with Article 53 of the International Private and Procedural Law; the petition for enforcement is approved by: i) the original of the foreign court decision duly approved by the authorities of that country or a copy and a certified translation by the judicial body that issued the decision; ii) a letter or document showing finalization of the decision and duly approved by the authorities of that country, translation must also be added. In summary, what should be understood here is that a certified copy of the foreign court decision and the finalization annotation should be submitted with the notarized and apostilled translations thereof.

Pursuant to Article 55 of the International Private and Procedural Law; the request for enforcement is examined and decided in compliance with the provisions of the simple trial procedure. The simple trial procedure is set out under the articles 316 and et seq. of the  Code of Civil Procedure, and exchange of petitions is completed by submitting a petition and a rebuttal petition for the case, unlike the written trial procedure. The aim here is to conclude the case in a more rapid and practical way. Because the Turkish court will not make a detailed examination of the concrete case in these cases, it will examine whether the foreign court decision requested for enforcement is enforceable in terms of form and substance.

Revision ban

In enforcement cases, Turkish courts do not have the authority to examine and evaluate the accuracy of the procedure applied in the foreign court decision or the material and legal determinations contained in the decision. Turkish courts can only examine whether the foreign court decision meets the conditions of enforcement in enforcement cases.

Because of this reason, any claims regarding the fact that the material event and legal determinations subject to the foreign court decision have been evaluated incorrectly by the foreign court and any requests that the Turkish court should re-examine such claims (such as infringement of intellectual property rights and unfair competition allegations, the exorbitant amount of compensation and the reduction) are not possible and appropriate to be heard and accepted under the enforcement cases.

Effect of Enforcement Decision

In the presence of the conditions set out under International Private and Civil Procedure Law, any foreign court decision may be partially or completely enforced. If a foreign court decision is enforced, this decision will have a judgment and result as if it had been issued by a Turkish court. If a foreign court decision arising from an intellectual property right is enforced, this decision becomes enforceable.

D. Roza Dogan

Trainee Lawyer

 

References:

1. Onal, A. TANIMA VE TENFIZ KARARLARININ HUKUKI NITELIGI. Public and Private International Law Bullentin, 576-610.

2. International Private Law and Procedural Law No. 5718

Tutuncubasi, U. (2017). YABANCI KARARLARIN TURK HUKUKUNDA TANINMASI KONUSUNDA 690 SAYILI KANUN HUKMUNDE KARARNAME ILE DUZENLENEN YENILIKLER. Journal of Law Faculty of Dokuz Eylul University, 103-127.