Challenging the Foreign Court's Jurisdiction in a Tenfiz Case in Turkiye

A debtor resisting enforcement of a foreign judgment in Turkiye may argue that the foreign court lacked indirect jurisdiction, meaning that under Turkish conflict-of-laws standards the foreign court should not have been regarded as competent to decide the dispute, particularly if the matter fell within the exclusive jurisdiction reserved to Turkish courts. If this objection succeeds, the Turkish court refuses enforcement without examining the foreign judgment's substance.

Indirect jurisdiction review is not about whether the foreign court correctly applied its own domestic jurisdictional rules, but about whether, viewed from the Turkish legal system's perspective, it was appropriate for that court to have decided the matter at all. This distinction is central to understanding why some judgments rendered by an entirely competent foreign court under its own law can still fail this particular test in Türkiye.

Article 54 of Law No. 5718 on Private International Law and International Civil Procedure (MOHUK) lists the foreign court's jurisdiction as one of the conditions examined in a tenfiz action, with particular attention paid to matters that Turkish law reserves to the exclusive jurisdiction of Turkish courts, such as certain disputes concerning real property located in Türkiye. Where a matter falls within such exclusive jurisdiction, a foreign judgment on that matter generally cannot be enforced in Türkiye regardless of other factors.

Turkish courts examining this objection look at the nature of the underlying dispute and whether it touches on a category of claim that Turkish law treats as reserved to domestic courts. For disputes of a more general commercial or contractual nature, without such an exclusive jurisdiction link, courts have been more willing to accept that the foreign court's jurisdiction was appropriate, particularly where the parties had a genuine connection to that forum, such as through contractual submission to jurisdiction or the location of the relevant transaction.

Commentators debate how expansively the category of exclusive Turkish jurisdiction should be read, since an overly broad interpretation risks undermining the enforceability of a wide range of foreign judgments involving Turkish parties or assets, while an overly narrow interpretation could allow foreign courts to decide matters Turkish law intends to reserve for its own courts. Contractual jurisdiction clauses in cross-border agreements add a further layer of debate about how much weight a Turkish court should give to a party's prior agreement to litigate abroad.

A debtor raising this objection should identify precisely why the dispute falls within a category of exclusive Turkish jurisdiction, or otherwise argue that the foreign court's jurisdictional basis was too weak a connection to the parties or the dispute to be recognised under Turkish standards. General assertions that "a Turkish court would have been more appropriate" are not sufficient without grounding in a recognised jurisdictional principle.

The objection is raised within the tenfiz proceedings themselves, following the general procedural deadlines for submitting a defence and supporting evidence under Turkish civil procedure.

The competent Turkish civil court of first instance hearing the tenfiz action rules on the jurisdictional objection as part of its examination of the statutory conditions for enforcement.

Relevant material includes the foreign judgment and case file showing the basis on which the foreign court asserted jurisdiction, any contract or agreement addressing jurisdiction between the parties, and evidence concerning the nature and location of the underlying dispute, such as the location of relevant property or the place of contractual performance.

Debtors sometimes assume that any foreign judgment against a Turkish party can be challenged on jurisdictional grounds; this is incorrect where the dispute has a genuine connection to the foreign forum and does not touch on a category reserved to Turkish courts. Claimants, for their part, sometimes overlook this objection when structuring the underlying transaction, only to find it raised later at the enforcement stage. Confusing indirect jurisdiction review with the foreign court's own domestic jurisdictional competence is another frequent source of confusion.

Parties structuring cross-border transactions with a Turkish nexus should consider, at the drafting stage, how a chosen foreign forum might later be assessed under Turkish indirect jurisdiction standards, since this analysis can materially affect whether a judgment obtained abroad will ultimately be enforceable in Türkiye.