Provisional Attachment Pending the Enforcement of Foreign Arbitral Awards under Turkish Law: New Decisions – Continuing Debate

Pending the enforcement of arbitral awards, award-creditors often apply to the courts for provisional measures to freeze the debtor’s assets, in order to secure the execution of arbitral awards.

This blog post analyzes recent Turkish court decisions relating to provisional attachment applications (i) during the enforcement proceedings and (ii) after first instance courts’ granting of enforcement. For (i), there are diverging decisions between different courts, which continue in recent case law, as to whether the provisional attachment application should be accepted. Whereas for (ii), the Turkish courts’ view seems to be unified, as confirmed by recent case law, that the provisional attachment should be granted. This article, after elaborating on the relevant Turkish law on the matter (A.), addresses the reasoning behind these court decisions (B.) and tries to determine some benchmarks that might be decisive on the outcomes of the provisional attachment applications in the context of proceedings for the enforcement of foreign arbitral awards (C.).

A. Relevant Provisions of Turkish Law

In Türkiye, the enforcement of foreign arbitral awards is sought before first instance courts (asliye mahkemeleri). Their decisions are subject to a two-tiered appeal process, first before the Court of Appeal (bölge adliye mahkemesi) and then before the Court of Cassation (Yargıtay), respectively. In practice, if all three levels are exhausted, the proceedings will have lasted for a couple of years. That said, a foreign arbitral award cannot be executed until the court decision on its enforcement is final, which includes all levels of appeal (Articles 57(2) and 61(2) of the Private International Law Act).

For this reason, award-creditors often apply for provisional measures to secure the execution of arbitral awards. For awards dealing with monetary reliefs, the provisional measure is referred to as provisional attachment, and it is applied to the debtor’s assets (ihtiyati haciz).

Under Turkish legislation, there are no specific provisions for provisional attachment concerning the enforcement of foreign arbitral awards. The general rule to obtain a provisional attachment is that either (i) the maturity of the receivable (not secured by a lien) must be plausibly proven or (ii) in the case of undue receivables, the debtor must not have a specific domicile in Türkiye or must have engaged in actions to escape from its obligations (e.g., by hiding or fraudulently transferring assets) (Article 257 of the Enforcement and Bankruptcy Act (“EBA”)).

B. Court Decisions on Applications for Provisional Attachment Relating to Enforcement of Foreign Arbitral Awards

The Court of Appeal became operational in 2016. Since then, these courts have the final word on applications for provisional measures (Articles 258(3) and 265(5) of the EBA). Before that, it was the Court of Cassation. In recent years, different chambers of the Court of Appeal rendered diverging decisions on the issue of what constitutes a “due receivable” in the context of foreign arbitral awards.

I. Decisions Relating to Applications During the Enforcement Proceedings

There are different perspectives as to whether, while the enforcement proceedings are ongoing, a foreign arbitral award proves the due receivable requirement for a provisional attachment.

1. Decisions Pro Provisional Attachment

In 2005, the 11th Civil Chamber of the Court of Cassation (decision of 21 April 2005, Docket No: E. 2004/4309, Decision No: K. 2005/4022, findable here) confirmed that a foreign arbitral award, while enforcement proceedings are ongoing, satisfies the requirement for a due receivable, which is sufficient to grant the award-creditor’s application for provisional attachment. In its reasoning, the Court held that provisional attachment is a temporary order mechanism and to order a provisional attachment, the award need not be declared enforceable by the court.

In a recent decision, the 31st Civil Chamber of the Ankara Court of Appeal (decision of 18 March 2025, Docket No: E. 2025/259, Decision No: K. 2025/264, findable here) has re-confirmed that an (ICC) arbitral award not yet declared enforceable satisfies the requirement for provisional attachment. While the Court did not provide a detailed reasoning, it confirmed the first instance court’s finding that an award not declared enforceable still establishes a due receivable. The 12th Civil Chamber of the Istanbul Court of Appeal (decision of 23 May 2024, Docket No: E. 2024/587, Decision No: K. 2024/797, findable here) rendered a similar decision on the matter.

2. Decisions Contra Provisional Attachment

In 2015, the 15th Civil Chamber of the Court of Cassation (by majority) (decision of 26 January 2015, Docket No: E. 2014/7100, Decision No: K. 2015/365, findable here) decided that the provisional attachment application (relying on a foreign court judgment) should fail. The Court of Cassation held that a foreign judgment not yet declared enforceable does not conclusively constitute a due receivable.

The 43rd Civil Chamber of the Istanbul Court of Appeal (decision of 28 April 2025, Docket No: E. 2025/541, Decision No: K. 2025/559, findable here) recently decided that without being declared enforceable, the (FOSFA) award does not meet the threshold to establish a due receivable. The 15th Civil Chamber of the Istanbul Court of Appeal (decision of 2 March 2022, Docket No: E. 2022/494, Decision No: K. 2022/419, findable here) also dismissed an applicant’s request for provisional attachment, based on similar reasons.

II. Decisions Relating to Applications After the First Instance Court Decision Granting the Enforcement

To the best of the author’s knowledge, in cases where the first instance court has confirmed the enforcement of the arbitral award but an appeal is pending, both the Court of Cassation and the Court of Appeal have a unified approach that the requirement for a provisional attachment is satisfied.

In 2004, the 19th Civil Chamber of the Court of Cassation (decision of 30 December 2004, Docket No: E. 2004/9775, Decision No: K. 2004/13391, findable here) decided that the provisional attachment application in favor of an (ICC) award that was declared enforceable by a first instance court should be granted. The Court held that, although the enforcement decision cannot be executed before it becomes final, a creditor can nevertheless request a provisional attachment by relying on the enforcement decision.

Likewise, the 14th Civil Chamber of the Istanbul Court of Appeal (decision of 8 June 2023, Docket No: E. 2023/1005, Decision No: K. 2023/1015, findable here) confirmed a first instance court’s decision granting a provisional attachment, pending the appeal on another court’s enforcement decision of a (Swiss Arbitration Centre) arbitral award. The Court stated that an award which is declared enforceable establishes a due receivable.

C. Commentary

In cases in which enforcement of an arbitral award is already granted by a first instance court, the Turkish courts seem to have a unified view that the requirements for provisional attachment are met, as confirmed by recent case law.

However, in terms of foreign arbitral awards not yet declared enforceable, different chambers of the Court of Appeal rendered diverging and, importantly, final decisions on the matter. Under Turkish law, in such a case, the Court of Cassation might be called to render a decision to unify the diverging views (Article 35(3) of the Law No 5235). It will be seen whether this procedure will be put in motion, which might help to achieve clarity on the subject matter.

Considering the lack of a uniform precedent on the matter for the time being, the author finds that the following criteria might be decisive on the outcome of provisional attachment applications, where at the time of the application, there is no first instance court decision on enforcement:

(i) Whether the applicant (prima facie) duly submitted the arbitral award and the arbitration agreement.

The court, when dealing with the provisional attachment application, could assess whether the award and the arbitration agreement are duly filed by the applicant. For example, the 9th Civil Chamber of the Adana Court of Appeal (decision dated 17 April 2025, Docket No: E. 2025/191, Decision No: K. 2025/699, findable here) dismissed the provisional attachment application, finding that the claimant did not duly file the certified full translations of the arbitral award and the agreements.

(ii) Whether the parties agreed that the award is binding on them.

Often, the parties accept the binding nature of an arbitral award with an explicit wording in their arbitration agreement or by referring to arbitration rules/arbitration laws that treat the arbitral awards as binding. This too could be considered when deciding on a provisional attachment application.

(iii) Whether the award is final.

The courts consider whether the time limit for filing setting aside proceedings passed without a case being filed or the setting aside motion is dismissed conclusively. If no motion is filed or it is dismissed, the courts could consider the final character of the award in weighing the provisional attachment application. For example, the 12th Civil Chamber of the Istanbul Court of Appeal (see decision above in B/I/1) relied on the finality of the award when granting a provisional attachment.

With the provisional attachment, the award-debtor’s assets are temporarily frozen. For this reason, the attachment is directly linked to one’s right of property. Thus, provisional attachment applications should be diligently evaluated for each case individually.

That being said, the lack of an enforcement decision by a first instance court should not automatically lead to the dismissal of a provisional attachment application. The first instance court proceedings on enforcement last for up to one year (and even more) and an award-creditor might need to secure the execution of the award during that period. On the flipside, each time when an award-creditor files a provisional attachment application relying on an award, the debtor does not have to see that its assets are automatically frozen.

To balance the interests, the criteria listed above might be decisive in instances where the court did not decide on the enforceability yet. Therefore, if (i) the applicant duly furnished the award and the agreement, and (ii) there is a final (and contractually binding) award, the provisional attachment request could be granted. The prospect of success could even be higher if a setting aside motion against an award is filed but it is dismissed conclusively.  However, in any case, the applicant should be ordered to deposit security (as per Article 259 of the EBA), to cover the debtor’s potential damages. With this mechanism, i.e., provisional attachment order against security, the creditor’s benefit of securing the execution of a final award will be balanced with a debtor’s right of opposing enforcement.