1. LITIGATION – PRELIMINARIES
1.1 What type of legal system has your jurisdiction got? Are there any rules that govern civil procedure in your jurisdiction?
The Turkish legal system is established on a civil law basis, which is governed by the Code of Civil Procedure ("CCP").
Furthermore, some other procedural rules are foreseen in specific codes such as the Turkish Commercial Code, Code of Labour Courts, Maritime Labour Law, etc.
1.2 How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are there any specialist courts?
The Civil Court system in Turkey consists of three degrees: the first-degree courts; the Regional Court of Appeals; and the High Court of Appeal.
The first-degree courts are categorised into the Civil Court of Peace and the Civil Court of First Instance. The Civil Courts of First Instance are categorised into the Civil Courts of First Instance, which hear non-commercial disputes, and the Commercial Courts of First Instance, which hear commercial disputes.
There are also specialised courts in the Turkish court system, such as the admiralty court, the enforcement court, specialised court of intellectual and industrial property rights, etc.
1.3 What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe (please include a brief description of any expedited trial procedures)?
There are four main stages in civil proceedings: 1) exchange of submissions; 2) preliminary proceedings; 3) examination phase; and 4) oral hearings.
Turkish procedure consists of two main types of procedures to be followed during the proceedings; i.e., written procedure and simple procedure.
The simple procedure is an expedited and simplified procedure in which the parties can only submit points of claim and points of reply.
The written procedure includes two exchanges of submission: points of claim; points of reply; and second replies of the parties.
1.4 What is your jurisdiction's local judiciary's approach to exclusive jurisdiction clauses?
If there is not any mandatory jurisdiction of a specific court, the Turkish jurisdiction system allows merchants and public authorities to agree on a written and clearly expressed exclusive jurisdiction clause.
1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there any rules on costs budgeting?
Civil proceedings costs are as follows: application fees; official attorney fee; and litigation expenses.
The Code of Fees and Charges and secondary tariffs determine most of the litigation costs and is reviewed every year.
As a general rule, litigation expenses shall be paid before filing an application. At the end of the proceedings, litigation costs and the official attorney fee determined by the court shall be borne by the losing party.
1.6 Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible?
The parties who cannot afford litigation expenses are able to demand legal aid from the court.
The Turkish Law System permits the attorneys and their clients to make fee arrangements which cannot be lower than the minimum amount ruled in the Official Tariff by the Bar Association.
The legal fee can also be settled regarding the value of the claim amount, which cannot exceed 25% of the claim value.
1.7 Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?
The parties are able to assign a claim or cause of action to the third parties unless there is not any injunction granted by the court that restricts the assignment. Furthermore, certain requirements shall be met in the form of assignment, such as that the assignment must be in writing and the assigned amount stated expressly in the deed of assignments.
Third-party funding might be permissible under Turkish law within the limit of freedom of contract.
1.8 Can a party obtain security for/a guarantee over its legal costs?
According to Turkish Procedural Code, a security or guarantee obligation is firstly foreseen for foreign plaintiffs. More concretely, there should be no contractual, legal or de facto reciprocity with the country of the plaintiff and Turkey. In such case, foreign plaintiffs shall provide a security for the litigation costs and possible damages of the defendants.
Furthermore, a defendant is able to ask the court for an order of security if a Turkish citizen does not have a habitual residence in Turkey or the plaintiff has financial difficulties.
2. BEFORE COMMENCING PROCEEDINGS
2.1 Is there any particular formality with which you must comply before you initiate proceedings?
In principle, there is not any particular formality which should be compiled by the plaintiff before filing an application. Following the settlement of an application fee and legal expenses, the plaintiff is able to file an application.
However, due to recent amendments in the mediation legislation, before initiating a file at the labour court and commercial court, the plaintiff is obliged to apply to the mediator.
2.2 What limitation periods apply to different classes of claim for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as a substantive or procedural law issue?
The principal time-bar is a 10-year period commencing from the due date of the obligation regarding the Turkish Code of Obligations.
Beside that general rule, time-bars vary depending on the types of the claims, such as five years for claims arising out of the agency and brokerage agreements; one year for carriage contracts; and two years for tort claims (within the limit of 10 years as of the act).
Unless the expiration of the time-bar is raised by the defendant, the court could not consider the issuing of the time-bar ex officio.
3. COMMENCING PROCEEDINGS
3.1 How are civil proceedings commenced (issued and served) in your jurisdiction? What various means of service are there? What is the deemed date of service? How is service effected outside your jurisdiction? Is there a preferred method of service of foreign proceedings in your jurisdiction?
Points of claim shall be submitted to the court in order to commence the proceedings.
Thereafter, the points of claim shall be served on the defendant by post. This date of service by post would be deemed also the date of service.
If the defendant is living abroad, the service will be made according to the international agreements executed between the other states and Turkey. If there is not an agreement, domestic provisions are applied.
3.2 Are any pre-action interim remedies available in your jurisdiction? How do you apply for them? What are the main criteria for obtaining these?
A party is allowed to apply for a pre-action interim remedy.
In order to request from the court a pre-action interim remedy namely an interim injunction, the applicant shall prove that the acquirement of a right will be considerably difficult or impossible because of delay, or delay is likely to cause serious damage.
An application becomes acceptable by the court if the party provides security (15% of the claim amount in general) for the possible losses of the counterparty.
3.3 What are the main elements of the claimant's pleadings?
The main elements of the claimant's pleadings should be as follows: the name of the court; the names and addresses of the parties; the ID number of the plaintiff; the names and addresses of the parties' attorneys; the subject of the litigation; the factual grounds of the plaintiff's allegation; evidence; legal reasons; claims; and the signature of the plaintiff or the attorney.
3.4 Can the pleadings be amended? If so, are there any restrictions?
Parties are able to amend their submissions until the completion of the exchange stage of the submissions.
Once the subject stage is completed, it is only possible to amend the pleadings with the consent of the opponents.
In addition to that, if the claim amount cannot be calculated and determined prior to filing an application, the plaintiff can file the claim with a limited amount by reserving further rights/claims.
3.5 Can the pleadings be withdrawn? If so, at what stage and are there any consequences?
Pleadings can be withdrawn until the decision is granted with the explicit consent of the counterparty.
If the pleadings are withdrawn by reserving the client's further rights, the plaintiff will file a claim with the same subject-matter in the future.
In addition to that, the parties are able to waive their claims either partially or totally, notwithstanding the defendant's consent.
If neither party attends a hearing, or if a party does not attend the hearing and the other party declares not to follow the proceedings, the proceedings will be stopped. Thereafter, the case will be deemed not to have been filed unless it is re-filed within three months.
4. DEFENDING A CLAIM
4.1 What are the main elements of a statement of defence? Can the defendant bring a counterclaim(s) or defence of set-off?
The main elements of the points of reply are the same as with the points of claim.
After the point of reply has been submitted, the first objections cannot be alleged even if the subject period for submitting points of reply has not expired.
The defendant may file a counter claim if: a) the main claim is pending; b) there is a link between the main and counter claim; or c) there is a set-off relation between the claims of the parties.
4.2 What is the time limit within which the statement of defence has to be served?
The points of reply shall be submitted to the court within two weeks as of the service of the points of claim.
Therefore, upon the defendant's request, the court may grant a time extension for submitting the reply.
This time extension is to be granted for up to two weeks for the simple procedure, but up to one month for the written procedure.
4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party?
Either party is able to request the court to invite a third party to join ongoing proceedings as an intervener during the proceedings.
4.4 What happens if the defendant does not defend the claim?
If the defendant does not submit the points of reply within the time limit or the defendant decides not to follow the proceedings, it will be deemed that any and all claims are denied.
4.5 Can the defendant dispute the court's jurisdiction?
The defendant is able to raise an objection regarding the court's jurisdiction if the same is mentioned in the points of reply as a preliminary objection.
Furthermore, if there is an exclusive jurisdiction clause in the law for the subject-matter, the court shall examine its jurisdiction ex officio. In such case, the defendant is also able to raise the objection on the court's jurisdiction at any stage of the proceedings.
5. JOINDER & CONSOLIDATION
5.1 Is there a mechanism in your civil justice system whereby a third party can be joined into ongoing proceedings in appropriate circumstances? If so, what are those circumstances?
In case of a subsequent recourse action to be commenced by or against a third party, a party may request the court to notify the proceedings to the third party.
If there is no such notification, the subject third party might request the court's permission to join the proceedings as an intervener. An intervener can choose his side between the parties and the intervener is bound by the claims or defences and evidence submitted by that party.
The court shall render its judgment for the main parties of the case. Therefore, following the main case, if there is a recourse action between the intervener and the related party, the intervener cannot raise objections against the main decision.
5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances?
Two or more claims can be consolidated under the below conditions:
- if those claims are related;
- if the cause of action is the same;
- if the linked claims are filed before civil courts of the same level; and
- if the linked claims require the same specialisation.
The decision of the consolidation will be rendered by the court upon the request of the parties or ex officio during all stages of the proceedings.
The decision of consolidation can be given by the court at the hearing of the latter filed case and the consolidated case shall be heard before the court where the first case was filed.
A link will be deemed to be accepted by the court if both claims are on the same ground, or if a decision rendered in one claim may affect the other.
5.3 Do you have split trials/bifurcation of proceedings?
Severing the claims might be decided by the court either upon the request of the parties or ex officio during all stages of the proceedings.
6. DUTIES & POWERS OF THE COURTS
6.1 Is there any particular case allocation system before the civil courts in your jurisdiction? How are cases allocated?
The cases are allocated according to subject-matter, type of lawsuit and territorial jurisdiction.
According to the general rule of the allocation, a points of claim should be filed at the court of the defendant's location or place of residence.
Civil Courts of First Instance have jurisdiction for all civil disputes except the cases which fall under the jurisdiction of Civil Courts of Peace and the cases allocated to the specialised courts.
6.2 Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?
The court has authority to take any and all actions in order to finalise the cases.
All parties of the case, public authorities and any other third parties shall have to comply with the court decisions, i.e. to provide the court with their responses and all related information as requested by a court writ.
The parties are able to request from the court interim applications to conduct expert examinations, to hear witnesses, to dispatch writs to public authorities or third parties for collecting evidence, and to apply for temporary legal protections. The expenses of such requests shall either be paid by the related party, or the court may decide to use the funds paid in advance for the expenses.
6.3 What sanctions are the courts in your jurisdiction empowered to impose on a party that disobeys the court's orders or directions?
When a party disobeys the orders of a court, the judge may impose sanctions on that party, i.e. to expel the party from the courtroom, to impose fines and to order disciplinary detention.
6.4 Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, at what stage and in what circumstances?
The Turkish courts are not qualified to strike out a part of a statement.
Therefore, they can dismiss the case at any stage based on a decision of lack of jurisdiction or a pending claim.
Also, a court can partially accept or dismiss a claim at the end of the proceedings on the merits.
Furthermore, the court may also dismiss the claims/defences on procedural grounds.
6.5 Can the civil courts in your jurisdiction enter summary judgment?
The civil court can enter summary judgment if the judgment is about a protection measure or a precaution.
Besides this, the court can form a decision on the merits of the case with a summary judgment if the case is subject to simple procedure.
6.6 Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? If so, in what circumstances?
The court shall stay the proceedings if there is a preliminary issue or a prejudicial question. In this case, the proceedings will continue after the preliminary issues are solved.
The court will discontinue the proceedings:
- if the plaintiff waives the claim or the defendant accepts the claim;
- on the amicable settlement of the claim;
- if the subject matter of the case no longer exists;
- if any of the parties attended the hearing; or
- if the claimant states that it does not want to pursue the proceedings.
Click here to continue reading the Guide in full.
Originally published by The International Comparative Legal Guide to Litigation and Dispute Resolution 2020.
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.
