In this article about the process of Debt Collection in Turkey for Foreigners, we will examine how both Turkish and foreign companies or individuals can collect their debts from Turkish companies or individuals.
With the increase in world trade and the recent devaluation of the Turkish Lira, it is inevitable that international companies or individuals trading with Turkish companies will face debt collection problems.
As Turkey is not a member of the European Union, companies based in Europe cannot collect debts using the rights and remedies available to them under EU directives and regulations. Therefore, if you are dealing with a Turkish customer from whom you have not received payment, it would be in your best interest to contact a lawyer practicing in Turkey.
Since you need to recourse to the remedies provided by the Turkish Enforcement and Bankruptcy Code. It is important to note that although the Republic of Turkey is not a member of the European Union, Turkey is a part of the CISG (Vienna Convention on the International Sale of Goods) and the New York Convention on Arbitration.
Even if you have agreed in advance that the court in your country has jurisdiction over the dispute with the person you are trading with, it might not be the best way to file a lawsuit in your country, because if you are in a country that does not have a bilateral trade agreement with Turkey, you will be subject to the “Recognition and Enforcement of Foreign Judgments” requirement in Turkish courts, which will prolong the process of collecting your debt.
Depending on your situation, our attorneys will evaluate the most beneficial option for you. It is important to note that trade receivables generally have a 10-year statute of limitations, which begins on the due date of the receivable. The 10-year period from the due date of the invoice may vary depending on the situation. Let us review the options available to collect your debt.
Debt Collection in Turkey Without Legal Proceedings (Practice of Inkasso)
Inkasso is a practice widely used in international trade, particularly in Germany, to collect debts before resorting to litigation. Inkasso refers to the process by which a creditor delivers payment instruments or documents to a bank or financial institution to collect its receivables, and that institution contacts the debtor to secure the payment.
The International Chamber of Commerce (ICC) Booklet No. 522 “Uniform Rules for Collections” brings together the international collection requirements under one roof and regulates the conditions under which an international debt can be collected. These conditions pave the way for inkasso’s international practice.
When you contact us, our experienced lawyers on debt collection will contact the person/company to whom you owe the debt, without resorting to legal remedies. In this process, we will explain the legal remedies that can be applied to the other party, the victimization that can occur due to the debt owed to you, and your debt will be requested at no cost for you.
In this case, if an agreement cannot be reached, we will initiate the preliminary legal proceedings by sending a notice through a notary, when the notary’s expenses are covered. If the debtor or the company insists on not paying the debt despite all these procedures, it is necessary to have a look at the possible legal recourses that can be applied in Turkey.
Legal Procedure for Debt Collection in Turkey
In Turkey, with regard to the method of collecting a debt owed to you, the enforcement procedure is divided into enforcement procedure with judgment and enforcement procedure without judgment.
Enforcement without judgment is a way of enforcing a debt that is not based on a court decision or document. The general attachment procedure is one of the three ways of initiating an enforcement procedure without a judgment. After the creditor initiates the enforcement procedure, the debtor may object to the debt within 7 days at the competent enforcement office (the enforcement offices where the debtor resides are authorized).
The debtor may object to the enforcement proceedings in three different ways: he may object that the signature on the document on which the debt is based does not belong to him, that a certain amount or all of the debt does not belong to him or has not been paid, or that the enforcement office that initiated the enforcement proceedings is not authorized.
Upon the debtor’s objection to the payment order, the enforcement proceedings are suspended. Therefore, in order to ensure the continuation of the enforcement proceedings and to cancel the decision on the objection, either a lawsuit for cancellation of the objection or a lawsuit for cancellation of the objection must be filed.
Lawsuits for annulment of the objection may be filed within 1 year from the date of the debtor’s objection to the enforcement proceedings. The creditor who wins this case, in which the general courts have jurisdiction, may continue the enforcement proceedings after the request for cancellation of the objection has been accepted.
If the creditor wins the appeal, the debtor is ordered to pay at least 20% of the total amount of the debt, including compensation for refusal of enforcement, court costs and expenses, and attorney’s fees. This compensation is not granted without the request. A lawsuit to remove the objection can be filed only on the basis of Article 68 of the Enforcement and Bankruptcy Law.
Enforcement proceedings are a type of enforcement proceedings initiated on the basis of a court decision. The objection to this enforcement procedure is not considered by the court and is sent to the debtor for collection. The mediation practice, which came into force and started to be implemented in Turkey in 2013, has been made mandatory before going to court in commercial disputes as of 2019 with Law No. 7155.
Arbitration Agreement between Creditor and Debtor
Arbitration is seen as an alternative way of resolving disputes that have arisen or may arise between the parties, instead of traditional judicial methods, through independent persons called “arbitrators” to reach an agreement within the window permitted by law and due to the legal binding nature of this agreement.
Although there is a widespread belief that arbitration is faster than traditional litigation, the fact is that arbitration is much more expensive and there is no guarantee that it will take as long as traditional litigation. Depending on your specific situation as a creditor, it would be better to seek the advice of a knowledgeable and experienced attorney as to whether this route should be preferred.
The international arbitration must be enforced in accordance with both the New York Convention and Turkish procedural law. Since you will not be able to collect your debt until this enforcement process is completed, and due to the high cost of arbitration, it may not be a positive alternative to the traditional judicial remedy for your claims.
Duty to Deposit Security (Cautio Judicatum Solvi) and its Waiver’s for Foreign Creditors
In cases where the debtors are foreign nationals or companies, as you can examine in detail by clicking on the link for the obligation to deposit security for foreigners, the Enforcement Office may generally require foreigners with creditor status to deposit 25% to 100% of the amount of the debt as security in order to commence enforcement proceedings. Article 48 of the Private International Civil and Procedural Law No. 5718 may exempt the foreign party from the obligation to provide security on the basis of reciprocity in the second paragraph of the same article.
This exemption is regulated by multilateral and bilateral conventions. The Hague Convention on Civil Procedure of 1954 is one of the most important multilateral conventions providing for this situation. According to Article 17 of the Convention, 48 countries such as France, Spain, Portugal, Luxembourg, Switzerland and Germany, to which Turkey is a party, have mutually exempted themselves from the obligation to provide security.
In addition, the European Residence Convention is another multilateral agreement that provides for exemption from the obligation to provide security, and the agreement to which Turkey is a party with European countries such as Luxembourg, Belgium, Germany and the Netherlands, individuals and companies residing in these countries are not required to provide security.
On top of the multilateral agreements, some countries that have bilateral agreements with Turkey are mutually exempt from the obligation to deposit collateral.
The United Kingdom, which is also a party to the European Convention on Residence with reservations, exempted the parties from such deposit in the agreement signed with Turkey in 1931 entitled “Agreement between His Majesty in respect of the United Kingdom and the President of the Turkish Republic regarding Legal Proceedings in Civil and Commercial Matters” and also made provisions for the enforcement of the judgment. Canada and Australia have also acceded to this Convention and provide for an exemption.
As mentioned above, the debt collection process in Turkey can be quite complex and lengthy, especially for foreign creditors. In order to avoid unnecessary costs and to speed up the enforcement process, it is advisable to seek the assistance of experienced legal professionals who will assess your specific situation and choose the best procedure for you.
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Legal Counsel Baran İSTANBULLU
Att. Muhittin Kurnaz
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