SECURITY FOR COSTS FOR FOREIGN CLAIMANTS IN TURKISH COURTS: A PRACTICAL GUIDE TO CAUTIO JUDICATUM SOLVI
An Analysis of Law №5718 Art. 48 and Law №6100 Arts. 84–89
The information in this article is current as of the date of publication; however, legislation is constantly evolving and changing. It is important to verify current legislation and obtain legal advice before taking any action. In addition, not all topics are covered in this article; after providing basic information, attention has been drawn to matters that I personally consider important for personal or professional reasons, and the article in this form does not constitute legal advice.
I. INTRODUCTION AND TERMINOLOGY
Foreign nationals and foreign-incorporated entities seeking to file a lawsuit, intervene in proceedings on the claimant’s side, or initiate enforcement proceedings before Turkish courts may face a preliminary procedural obligation that their Turkish counterparts do not. They may be required to lodge security before their claim is heard on the merits.
Cautio judicatum solvi: A security deposit that a foreign claimant may be required to lodge with a Turkish court before its claim is heard on the merits, covering both the defendant’s potential losses and the procedural costs of the proceedings. In Turkish practice it is called yabancılık teminatı, meaning security arising from the claimant being a foreigner.
This article seeks to set out a practical framework for that obligation. It covers who counts as a foreigner for these purposes, the two statutory regimes that govern the requirement, namely Art. 48 of the Private International Law and International Civil Procedure Code (Law №5718) and Arts. 84 to 89 of the Code of Civil Procedure (Law №6100), how the two regimes differ, which forms of reciprocity produce an exemption, how the amount and form of security are fixed, what happens when the claim is assigned mid-proceedings, and how this obligation differs from the security that arises under interim relief. Security in Turkish arbitration proceedings is a separate subject and is not addressed here.
A note on terminology is needed at the outset. Law №5718 is Turkey’s private international law and international civil procedure codification; it governs cross-border civil and commercial matters before Turkish courts, including the special procedural provisions applicable to foreign parties. Law №6100 is the general code of civil procedure, applicable to all civil litigation regardless of nationality. The two operate on parallel but structurally distinct tracks and identifying which one applies to a given party is the first practical question to resolve before filing in Turkey.
Foreign natural persons: Under Art. 3/1-d of the Turkish Citizenship Law №5901, a foreigner is a person who has no nationality bond with the Republic of Turkey. The same definition is adopted at Art. 3/1-ü of the Law on Foreigners and International Protection №6458.
Foreign legal entity: Law №5718 does not define when a legal entity is foreign for the purposes of Art. 48. The explanatory note to Art. 84 of Law №6100 treats an entity with its center in Turkey as being of Turkish nationality and one with its center abroad as foreign, and the Court of Cassation in practice treats companies established and registered abroad as foreign legal persons. Art. 9/4 of Law №5718, which refers to the center of administration stated in an entity’s constitutive instruments, determines the law governing the entity’s capacity; it is a conflict of laws rule and does not itself define foreignness for procedural purposes. Art. 48 refers to natural and legal persons, and whether entities without legal personality that nevertheless have capacity to sue fall within it is not addressed by the text. It has been argued that they do, on the view that the provision attaches to foreignness rather than to corporate form.
Stateless persons, refugees and blue card holders occupy distinct positions and are examined separately below.
The article proceeds as follows. Section II sets out the statutory framework, who it applies to, when it applies, the amount and forms of security, and the available exemptions. Section III addresses the rationale, the reciprocity analysis in depth, the regime-selection question, the effect of assigning the claim, and the distinction from interim-relief security. Section IV sets out conclusions and practical observations.
II. THE SECURITY OBLIGATION: LAW NO. 5718 ART. 48 AND LAW NO. 6100 ARTS. 84–89
A. The Primary Regime For Foreigners: Law №5718 Art. 48
The principal rule is Art. 48/1 of Law №5718, under which foreign natural or legal persons who file a lawsuit, intervene in proceedings, or initiate enforcement proceedings before Turkish courts must furnish security in an amount fixed by the court, covering procedural and enforcement costs together with the opposing party’s potential losses.
The provision attaches to the claimant’s foreignness. The nationality of the defendant, or of the party against whom enforcement is sought, is irrelevant.
Condition of the action (dava şartı): Security under Art. 48 of Law №5718 is a condition of the action under Art. 114/1-ğ of Law №6100, which means the court examines it of its own motion at any stage of the proceedings and the defendant need not raise it. If security is not lodged within the peremptory period set by the judge or the enforcement officer, the case may be dismissed on procedural grounds under Arts. 88/1 and 115/2.
A party who has applied to intervene and fails to lodge security within the peremptory period is deemed to have withdrawn the application (Art. 88/2).
The most important procedural detail here concerns the content of the notice. Under Art. 94/2 of Law №6100, the consequences of failing to comply with a peremptory period must be brought to the party’s attention. The Court of Cassation treats an omitted or incorrect statement of those consequences as a defect in itself, even where the amount and the manner of deposit were properly stated. See Court of Cassation 3rd Civil Chamber, E. 2017/1181, K. 2018/8823, 20.09.2018 (decided under the former Code of Civil Procedure №1086), and 12th Civil Chamber, E. 2016/32912, K. 2017/215, 11.01.2017. The first thing counsel for a foreign party should check on receiving a security notice is whether it satisfies this requirement.
Two features of Art. 48/1 deserve emphasis. First, the security covers not only the defendant’s potential losses but also the procedural and enforcement costs of the state. It is therefore treated as touching public order and is examined of the court’s own motion at every stage. The practical consequence is that even an express waiver by the defendant does not extinguish the court’s institutional interest, and a contractual clause purporting to waive the deposit in advance will not bind the court. Second, the obligation extends to enforcement proceedings and not only to litigation.
Enforcement proceedings raise a question of competence, because the statute refers to the court. Given that Art. 48/1 expressly covers parties initiating enforcement, the Court of Cassation has consistently held that the reference to the court is to be read as the enforcement office in enforcement matters. See 12th Civil Chamber, E. 2012/24874, K. 2013/1346, 21.01.2013, and more recently E. 2025/975, K. 2025/2718, 26.03.2025, which also holds that the amount is to be fixed by the enforcement office and not by the enforcement court in its place. The explanatory note to Art. 84 of Law №6100 supports the same conclusion, stating that decisions on security in enforcement matters are taken by enforcement officers.
One point on scope remains unsettled. Both Art. 48 of Law №5718 and Art. 84 of Law №6100 use the term lawsuit, so whether security may be required in non-contentious judicial matters is debated. Some authors read the reference to a party filing a lawsuit as extending to non-contentious matters, while others record the question as unresolved.
The principal exemption is Art. 48/2: The court shall exempt the claimant, intervener or enforcement creditor on the basis of reciprocity. Once reciprocity is established the exemption is mandatory and no discretion remains. The reciprocity analysis is therefore the threshold question in every case involving a foreign claimant.
A tension between the enacted text and the explanatory note should be flagged. The repealed Law №2675 Art. 32 gave the judge discretion, using the permissive form. Art. 48/2 of Law №5718 uses the mandatory form, and that wording did not appear in the bill; it was introduced by a sub-committee of the Turkish Grand National Assembly before enactment. The explanatory note, however, still states that the court may exempt a party even absent reciprocity according to the nature of the case, and that the judge has discretion in this respect. Some authors rely on that note to argue that the discretion survives. In my view the enacted text is clear and a discretion contradicting it cannot be derived from the note. The argument nonetheless remains available to counsel seeking exemption.
A further basis for exemption sits at Art. 1 of Law №5718, which preserves the provisions of international conventions to which Turkey is a party. Where a bilateral or multilateral instrument provides for exemption from security, that instrument applies without any need for a reciprocity analysis.
B. Stateless Persons, Refugees, International Protection And Blue Card Holders
Under Art. 16 of the Convention on the Status of Stateless Persons, to which Turkey is a party, a stateless person enjoys the same treatment as a national in matters relating to access to the courts, including legal assistance and exemption from cautio judicatum solvi, in the contracting state of habitual residence. In other contracting states the person is accorded the treatment given to nationals of the state of habitual residence.
Domestic law reaches the same result for stateless persons holding a Stateless Person Identity Document. Under Art. 51/1-c of Law №6458, they are exempt from the reciprocity requirement applied in matters concerning foreigners.
Art. 16 of the 1951 Geneva Convention on the Status of Refugees contains a parallel provision. Turkey, however, is a party to that Convention with a geographical limitation. As a consequence, a person who seeks protection because of events occurring outside Europe cannot be recognized as a refugee in Turkey and may instead receive conditional refugee status under Art. 62 of Law №6458. Convention refugee status is therefore unavailable to a large proportion of the foreign nationals actually present in Turkey, and this must be checked before relying on the provision.
Under Art. 88/1 of Law №6458, holders of international protection status are exempt from the reciprocity requirement. No security may be sought from them irrespective of any arrangement between Turkey and their state of nationality.
A distinction that is frequently missed in practice matters here. Under Law №6458, international protection status and temporary protection are not the same thing. Refugee status, conditional refugee status and subsidiary protection fall within the Art. 88/1 exemption. Persons under temporary protection hold none of those statuses and cannot rely on Art. 88/1; for them, exemption arises, if at all, through legal aid following an examination of their economic and social circumstances. Given the size of the temporarily protected population in Turkey, this distinction is of considerable practical rather than theoretical significance.
A claimant granted legal aid is exempt from security under Art. 85/1-a of Law №6100. Foreign nationals seeking legal aid, however, must separately satisfy a reciprocity requirement, which sits at Art. 334/3 and reads: Foreigners may benefit from legal aid only on condition of reciprocity. A foreign party trying to escape security through legal aid therefore encounters the reciprocity question again through a different door.
That door has since been narrowed by the Constitutional Court, and the point is easily missed. In its decision in Mohamma Salem Pashto and Nazı Salem, application no. 2019/26339, dated 17 May 2023 and published in Official Gazette no. 32363 of 8 November 2023, the Plenary held that the right of access to a court under Art. 36 of the Constitution had been violated where an applicant’s legal aid request was refused solely because no reciprocity arrangement existed with the state of nationality. The Court observed that the condition at Art. 334/3 restricts access categorically, without regard to the applicant’s actual means, and that a court must first establish whether Turkey is party to any instrument obliging the provision of legal aid to foreigners, an inquiry that had not been made.
The practical consequence is that a foreign claimant who is genuinely without means should not treat the absence of reciprocity as the end of the matter. The argument that a categorical refusal offends the right of access to a court is now supported by the Constitutional Court’s own reasoning.
A separate development matters for foreign companies rather than individuals. Art. 334/2, which confined legal aid to public-benefit associations and foundations and thereby excluded other private-law legal entities, was annulled by the Constitutional Court in decision E. 2024/78, K. 2024/164, 24.09.2024, published in the Official Gazette of 21 November 2024 with the annulment taking effect nine months later. No replacement provision has been enacted. Private-law legal entities, including foreign companies, may therefore now seek legal aid, and legal aid in turn removes the security obligation under Art. 85/1-a. This route did not exist when most of the literature on cautio judicatum solvi was written.
Blue card holders, that is persons who were Turkish citizens by birth, renounced Turkish citizenship with permission, and hold a blue card under Art. 28 of Law №5901, together with their descendants to the third degree, occupy a highly contested position.
One side of the doctrinal view is that these persons are not subject to security under Art. 48 of Law №5718. The reasoning is that Art. 28/1 of Law №5901 provides that they continue to enjoy the rights granted to Turkish citizens subject only to the exceptions expressly listed, and exemption from security is not among those exceptions. Authors holding this view accept that a blue card holder without habitual residence in Turkey will nonetheless furnish security under Art. 84/1-a of Law №6100. The Directorate General for Foreign Relations and the European Union of the Ministry of Justice likewise groups blue card holders with stateless persons and refugees under the heading of special situations, which suggests the administrative approach runs the same way.
The competing view proceeds from the fact that blue card holders are formally foreigners under Law №5901 and should therefore furnish security under Art. 48. Its strongest argument is this: Furnishing security is not a right but an obligation, whereas Art. 28/1 of Law №5901 speaks of enjoying rights. Recasting relief from an obligation as a right within the meaning of that article is a strained construction.
In my view the second position is the correct one. Blue card holders are not Turkish citizens and should be treated as foreigners for the purposes of the security obligation. Nor does it seem to me coherent to characterize exemption from security as a right within the meaning of Art. 28 of Law №5901. Given the uncertainty, counsel on both sides has substantial room to argue.
C. The Second Regime: Turkish Citizens Without Habitual Residence In Turkey
A separate and frequently misunderstood obligation applies to Turkish citizens under Art. 84/1-a of Law №6100. Where a Turkish citizen who does not have habitual residence in Turkey files a lawsuit, intervenes on the claimant’s side, or initiates enforcement proceedings, appropriate security covering the defendant’s anticipated procedural costs must be furnished. This provision applies exclusively to Turkish citizens.
Habitual residence (mutad mesken): The explanatory note to Art. 84 of Law №6100 defines habitual residence as the concentration of the whole of a person’s life relationships in a particular geographical area. It is a factual test and is not satisfied merely by holding a registered domicile in Turkey.
The explanatory note also states that Art. 84/1-a has no application to legal entities, on the basis that habitual residence and citizenship are concepts tied to natural persons, whereas legal entities have a center; an entity with its center in Turkey is of Turkish nationality, and one with its center abroad is foreign and falls under Art. 48 of Law №5718.
Some authors criticize the choice to tie the obligation for Turkish citizens to habitual residence rather than domicile. The Court of Cassation, for its part, has accepted that the test is habitual residence and not registered domicile, but held that a Turkish citizen living abroad as a worker while retaining a registered domicile in Turkey cannot be taken to have made the foreign state his habitual residence, so that no security was required. See 17th Civil Chamber, E. 2012/12360, K. 2013/14625, 31.10.2013. That application is difficult to accept. Having stated the correct test, the Chamber in effect decided the case on the registered domicile, which is the very criterion the statute set aside.
Art. 84/1-b of Law №6100 provides a separate, nationality-neutral ground. Where the claimant is documented to be in financial difficulty, for instance through a prior bankruptcy decision, the commencement of composition or restructuring proceedings, or a certificate of insolvency, security must be furnished. This ground applies to foreign claimants as well.
The remaining subsections are easily overlooked. Under Art. 84/2, where circumstances requiring security arise during the proceedings, the court orders security at that point. Under Art. 84/3, in cases of compulsory joinder the obligation arises only if it exists in respect of all claimants. The latter offers a real line of defense where foreign and Turkish claimants proceed together.
Art. 85 of Law №6100 lists the situations in which security may not be required: Where the claimant benefits from legal aid; where the claimant holds immovable property in Turkey sufficient to cover the security sought, or a claim secured by a right in rem; where the action is brought solely to protect the interests of a minor; and where enforcement proceedings are brought on a claim established by a judgment. The relationship between these provisions and Art. 48 of Law №5718 requires care.
Some authors hold that Art. 84/1-a does not apply to a foreign claimant at all, because the obligation for foreign claimants is separately regulated at Art. 48, a reading the explanatory note to Art. 84 supports. Some observe that because Law №5718 does not regulate what may be given as security, or its form and scope, Arts. 86 to 89 of Law №6100 apply to foreign parties. It has also been observed that a treaty-based exemption operates in favor of a foreign claimant even though treaties are not among the situations listed at Art. 85, which indicates that the Art. 85 list is not read as exhaustive against foreigners.
Whether the last of these extends to foreigners under Art. 48 of Law №5718 is disputed. The view I agree with holds that under Art. 85/1-ç no security may be sought from a foreigner enforcing a judgment. The opposing view states that Law №5718 does not address the point, so a foreign party must furnish security whether the enforcement is based on a judgment or not. It must be stated however that authors holding this view nonetheless accept that a creditor holding a judgment is very unlikely to be found in the wrong and that the obligation ought to be removed in judgment-based enforcement. The opposing view is, in my view, indefensible.
The fact that Art. 85 makes no reference to international conventions does not mean that treaty-based exemptions are inapplicable within this framework. Where an instrument providing for exemption exists, the court may grant exemption on that basis.
D. Amount, Form And Procedure
Neither statute prescribes a fixed rate or formula. The amount and form are fixed by the judge at discretion under Art. 87/1 of Law №6100. That discretion must be exercised so as not to obstruct access to justice. Otherwise, security becomes a practical barrier to the Turkish courts for foreigners and non-residents, and a violation of the right to a fair trial under Art. 6 of the European Convention on Human Rights may arise.
The question of rate is, as at the date of writing, the least settled aspect of the subject, and the sources do not agree.
Some authors observe that courts apply the customary ten to fifteen percent rate used in interim attachment and injunction practice to security for costs as well, automatically and without a case-specific assessment. That habit is rightly criticized as categorical. The reported cases show how wide the range can be. In the case that later reached the Assembly of Civil Chambers, the court of first instance had ordered security of forty percent of the principal claim (E. 2013/12–1566, K. 2015/1144, 01.04.2015). At the other extreme, an enforcement officer who ordered security of one hundred percent of the claim was held to have departed from the governing principles (12th Civil Chamber, E. 2024/1957, K. 2024/7393, 18.09.2024).
A new element entered this picture in 2023. By letter dated 19.06.2023, no. 86420598–271/5728, the Directorate of Enforcement Affairs of the Ministry of Justice circulated guidance to enforcement offices. Reasoning from the damages provisions of the Enforcement and Bankruptcy Code №2004, namely Arts. 67/2, 68/7, 68/a-8, 69/5, 72/5, 169/a-6 and 170/4, each of which sets damages at not less than twenty percent of the claim, the letter states the view that where security is required the rate should be fixed at not less than twenty percent of the claim in the enforcement proceedings.
The letter is not a statute or a regulation and has no binding force; it says itself that if the matter reaches the courts, the courts’ decision will govern. As an administrative document distributed to 148 recipients, however, it has real capacity to shape enforcement office practice. Given the possibility that twenty percent comes to operate as a floor in enforcement matters, counsel for a foreign creditor should place on the record at the outset both that the letter is non-binding and that Art. 87/1 of Law №6100 requires a case-specific assessment. I must also note that I have not yet encountered this letter being applied in any of my international enforcements.
Another aspect of the letter is open to criticism. Although it states Art. 48/2 of Law №5718 in its mandatory form, the case law it quotes uses the permissive formulation under which the court may exempt a party on the basis of reciprocity. That wording belongs to the repealed Law №2675 Art. 32. Guidance that relies on decisions reproducing a repealed discretionary formulation is unsatisfactory.
It is possible to seek a reduction, or a lower rate at the outset. In my own experience courts can be receptive to concrete submissions about the claimant’s financial position.
The manner of deposit raises a further problem. Security in cash is lodged with the court’s cashier. The Court of Cassation has insisted in its decisions that security furnished by foreigners be deposited in foreign currency. As some authors note however, no provision of Turkish law, and in particular nothing in the legislation on the protection of the value of Turkish currency, imposes such a requirement, and the decisions asserting it identify no legal basis. The reasoning appears to be that because the obligation attaches to foreignness, the deposit should likewise be in convertible currency. That construction and the practice built on it rest on no statutory foundation and cannot be endorsed. Which currency applies in a given case is a matter for counsel to address.
As to form, Art. 87/1 of Law №6100 leaves the choice to the court. Accepted forms include cash, government bonds or shares, a pledge over movable or immovable property, an unconditional and open-ended guarantee letter from a bank, and a notarized suretyship agreement. Where the parties have agreed the form of security by contract, the court is bound by that agreement.
Where the circumstances requiring security change, the judge may increase, reduce, vary or lift it (Art. 87/2). Once the ground for security has ceased, the court orders its return on the application of the party concerned (Art. 89). Return is not automatic, so an application must be made.
III. RATIONALE, RECIPROCITY, ASSIGNMENT AND INTERIM-RELIEF SECURITY
A. Why The Rule Exists
The logic of the cautio judicatum solvi is straightforward. Where an unsuccessful claimant is located abroad and holds no assets in Turkey, a defendant who has incurred real costs defending a claim that failed may find recovery through cross-border enforcement difficult or impossible. The security is a pre-emptive guarantee, lodged at the opening of proceedings, ensuring that the defendant and the court can be satisfied without the friction of international debt recovery. It allocates a procedural risk created by the territorial limits of jurisdiction.
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The same rationale explains why the defendant cannot waive the security on the court’s behalf. The court’s institutional interest in charges and procedural costs is independent of the parties’ private arrangements.
The limits of the rationale should also be seen. As some authors note, security is an exceptional restriction on the right of access to the courts and the circumstances in which it may be required are exhaustively enumerated. It cannot be imposed in situations the legislature has not provided for, for instance on the basis of the parties’ agreement alone. The doctrinal position that I also agree with is that doubts about security should be resolved in favor of access to justice.
B. Reciprocity: The Three Forms And How They Work In Practice
Reciprocity: Under Art. 48/2 of Law №5718, reciprocity exists in any of three forms. Treaty-based reciprocity arises from a bilateral or multilateral instrument between Turkey and the state of the foreign party’s nationality. Statutory reciprocity arises where the domestic law of that state does not require security from foreign claimants or expressly exempts them. De facto reciprocity arises from established practice, meaning Turkish nationals are in fact not required to furnish security before the courts of that state.
The three are alternatives and establishing any one is sufficient. De facto reciprocity is nonetheless the most consequential in practice. Treaty-based and statutory reciprocity are of limited use where the foreign state does not apply them, and the court’s first line of inquiry is usually whether Turkish nationals can in fact proceed there without furnishing security.
The judge or enforcement officer must investigate reciprocity of their own motion; no assertion or request from the parties is required. In practice, particularly in enforcement matters, this investigation is often not carried out, and objections raised by debtors on the point are sometimes dismissed without reasons.
There is an administrative route worth using. The Directorate General for Foreign Relations and the European Union of the Ministry of Justice refers inquiries about de facto reciprocity to the Ministry of Foreign Affairs and transmits the response to the requesting judicial authority. Counsel asserting reciprocity should ask the court to issue such a request.
The most important multilateral instrument for treaty-based reciprocity is the Hague Convention on Civil Procedure of 1 March 1954. Accession was approved by Law №1574; accession was resolved by Council of Ministers Decision no. 7/4283 of 13.04.1972 under Art. 3 of Law №244 and published in Official Gazette no. 14194 of 23.05.1972. Art. 17 provides that no security or deposit of any kind may be required, on the sole ground of foreign nationality or of the absence of domicile or residence, from nationals of one contracting state who are domiciled in a contracting state and appear as claimants or interveners before the courts of another.
The current list of contracting states is published by the Directorate General for Foreign Relations and the European Union. It covers Germany, France, Italy, Spain, the Netherlands, Belgium, Austria, Switzerland, Poland, the Russian Federation, Japan, Israel, the Nordic states and a substantial number of Central and Eastern European states. It also includes Lebanon, Kazakhstan, Kyrgyzstan, Uzbekistan, Armenia, Mongolia, Morocco, Egypt, Argentina, Suriname and the Vatican. As regards China the Convention applies only to the Macao Special Administrative Region. Neither the United States of America nor the United Kingdom is a party.
Whether the 1954 Convention applies to legal entities produced one of the more striking deviations in Turkish practice. For a period, the 12th Civil Chamber held that the Art. 17 exemption covered natural persons only. Its reasoning was that the 1980 Hague Convention on International Access to Justice had expressly added the parenthetical reference to legal persons at Art. 14/1, and that this addition showed the 1954 Convention had never covered them. See 12th Civil Chamber, E. 2013/17436, K. 2013/24686, 02.07.2013, and E. 2015/26555, K. 2016/3489, 11.02.2016.
That reading has been criticized in detail in the literature. The grounds were that the terms national and nationality in the authentic text are translatable in a manner covering legal persons; that many international instruments use those terms to denote the attribution of legal persons or of things to a state; that neither the text nor the explanatory report of the 1980 Convention supports the inference that the 1954 Convention excluded legal persons; and that since access to justice is the principle and security the exception, doubts should be resolved in favor of access.
A document usually absent from this discussion supports the doctrinal position years before the Court of Cassation went the other way. A letter from the Ministry of Foreign Affairs dated 17.01.2005, no. 904.30/2005/KOPR/20078, records that Art. 17 of the 1954 Convention was interpreted as covering legal persons by J. H. A. van Loon, then Secretary General of the Hague Conference on Private International Law, and Christophe Bernasconi, legal expert. The letter is referred to on the Ministry of Justice Directorate General’s own page on the subject. Counsel arguing for a foreign entity should put this document before the court, which moves the argument from doctrinal opinion to administrative confirmation.
The 12th Civil Chamber ultimately reversed its position. In E. 2017/8463, K. 2017/15601, 14.12.2017, it stated that the earlier decisions rested on material error and ruled definitively that no distinction between natural and legal persons applies under Art. 17 of the 1954 Convention. The settled position is therefore that entities from contracting states are exempt on the same basis as natural persons. Given the earlier inconsistency, however, courts should not be assumed to apply this automatically, and the 2017 decision should be placed before the court expressly.
The second significant multilateral instrument is the European Convention on Establishment. Art. 9 provides that no security or deposit may be required from nationals of another contracting party who are domiciled or habitually resident in the territory of a contracting party. Two points require attention. First, this Convention covers natural persons only; a foreign legal entity cannot rely on it. Second, the United Kingdom and Ireland have entered reservations to Art. 9. The United Kingdom reservation preserves the right to apply the first and second paragraphs of Art. 9 as if the words concerning the absence of domicile or residence were deleted from the first paragraph. The accompanying explanations record that in England and Wales and in Northern Ireland security for costs may be ordered against a claimant resident outside the jurisdiction, and that in Scotland a practically equivalent result follows.
Turkey has concluded some forty bilateral instruments providing for exemption, covering more than forty states. The Directorate General for Foreign Relations and the European Union publishes them country by country together with the relevant article texts, and that list is the starting point for any reciprocity analysis.
One detail matters for legal entities. Some bilateral instruments expressly extend the exemption to legal persons; those with Algeria, Croatia, Lithuania, Moldova, Pakistan and Ukraine do so. Others refer only to nationals, leaving a question of construction as to whether entities are covered. The instruments with Italy, Saudi Arabia and India contain no direct provision on security at all; in Italy’s case the exemption is in any event secured through the 1954 Convention.
A common error in practice concerns the United Kingdom, which is often treated as resting on de facto reciprocity alone. A treaty basis exists. The Convention on Legal Assistance between the Republic of Turkey and the Government of the United Kingdom of 1931 was approved by Law №2045 and published in Official Gazette no. 2142 of 05.07.1932. Art. 12 provides that as regards security for costs and the payment of costs and charges, the nationals of each contracting party enjoy in the territory of the other exactly the same treatment as its own nationals. Art. 13 addresses the enforcement dimension of that exemption. In its 2024 decisions the 12th Civil Chamber applied the instrument to a Scottish company, noting that its territorial scope had been extended to Scotland on 30.09.1933 and relying on an opinion of the Turkish Embassy in London that a Turkish company suing in the English courts would not be required to furnish security merely because it is registered in Turkey.
Australia and Canada acceded to the same 1931 instrument. A treaty basis therefore exists for their nationals and entities as well, and it is wrong to place them in a category of common-law jurisdictions lacking an established reciprocity finding.
The United States of America is differently placed. It is not a party to the 1954 Convention and does not appear on the Ministry’s list of bilateral instruments providing for exemption from security. De facto reciprocity between the two states is nonetheless accepted, on the basis that United States courts do not as a general rule require automatic security from foreign claimants by reason of foreignness. The Directorate General for Foreign Relations and the European Union has confirmed this in official correspondence, with letters dated 24.02.2012, no. B.03.0.U-İG.0.00.00.10.3,11–87–2012, and 15.02.2015, no. 33711809–3–11–65–2015–200/13303.
A nuance deserves attention. In United States and English practice, security for costs and fees may be ordered on the application of the opposing party according to the particular circumstances of the claim or the claimant. That security arises from those circumstances and not from the claimant’s foreignness, and it is an obligation of a different character from the one at Art. 48 of Law №5718. The de facto reciprocity assessment should be built on that distinction.
As for a treaty basis, the Treaty of Establishment between the Republic of Turkey and the United States of America of 1931, signed at Ankara on 28 October 1931, contains a most-favored-nation clause. In E. 2015/3799, K. 2016/844, 26.01.2016, the 19th Civil Chamber held that a United States creditor company was exempt from security by virtue of the most-favored-nation clause in the establishment treaty. The text of the 1931 instrument is published in the archive of the Ministry of Justice Directorate General.
Whether that clause alone suffices for treaty-based reciprocity is not settled, and it has been recorded as disputed. In a matter I handled, the instrument was placed before the court, de facto reciprocity was found and no security was required, but neither the court nor the Directorate General, responding to the court’s inquiry, made any finding on the 1931 instrument. De facto reciprocity was treated as sufficient, and the treaty question was left undecided. That matter concerned the recovery of misappropriated crypto assets belonging to a United States national, and the reciprocity argument as it was actually run before the court is set out in this article: https://cemilsaar.com/tpost/cryptocurrency-asset-litigation-turkey The practical strategy for United States parties is therefore to advance de facto reciprocity as the primary ground and the 1931 instrument as supporting material.
In a decision of 05.11.2013, E. 2013/10700, K. 2013/17222, the 19th Civil Chamber reversed a judgment requiring security from a United States claimant, because the court had not examined the claimant’s argument, supported by letters of the Ministry of Justice, that de facto reciprocity exists between Turkey and the United States.
Two further problems arise in establishing reciprocity. The first concerns states formerly under the protection of another state. In one decision the Court of Cassation accepted that Saint Kitts and Nevis fell within the 1931 Turkey-United Kingdom instrument because its name appeared on the list annexed to the signature protocol, and reversed so that the effect of its later independence could be put to the Ministry; see 12th Civil Chamber, E. 2011/6632, K. 2011/23123, 21.11.2011. That decision has been criticized, on the view that a state which became independent in 1983 can be treated as a party to an instrument concluded with its former protecting state only if a succession relationship is established, and that the list in question covered territories then attached to the United Kingdom and was not signed by those states. In E. 2014/29710, K. 2015/4930, 05.03.2015, concerning Malaysia, the same chamber likewise held that the first-instance court’s finding that independence had taken Malaysia outside the instrument had no legal basis, and that the question should instead be put to the relevant Ministry.
The chamber’s more recent decisions resolve the point in favor of exemption. In E. 2023/2918, K. 2024/2455 and E. 2023/2357, K. 2024/2454, both dated 13.03.2024 and concerning a Scottish company, it held that natural and legal persons of states within the scope of the 1931 instrument are in practice treated as exempt. It relied on the decision of the Assembly of Civil Chambers of 23.12.1992, E. 1992/598, K. 1992/762, which treated Malta, a Commonwealth state that later became independent, as exempt, and it cited the 2011 and 2015 decisions as consistent with that position. Whatever the force of the criticism, the current practice of the chamber favors exemption.
The second problem concerns international institutions. As some authors observe, reciprocity cannot be satisfied in respect of an international institution not organically attached to any state, so such an institution cannot be exempted. Institutions established by several states under international agreements are foreign legal persons; Turkey’s being a founder or member does not, absent a provision to the contrary in the constitutive instrument, prevent them from being treated as foreign and required to furnish security.
C. Regime Selection: Dual Nationals And Turkish Expatriates
A dual national one of whose nationalities is Turkish falls entirely outside Art. 48 of Law №5718. The reason lies in the definition of foreignness. Under Art. 3/1-ç of Law №5901, a Turkish citizen is a person bound to the Republic of Turkey by a nationality bond, and under Art. 3/1-d a foreigner is a person who has no such bond. A person holding Turkish nationality alongside another nationality has that bond, is a Turkish citizen rather than a foreigner, and cannot be required to furnish security under Art. 48, which applies only to foreigners. Any obligation arises instead under Art. 84/1-a of Law №6100 if the person lacks habitual residence in Turkey.
The same conclusion should not be rested on Art. 4/1-b of Law №5718, which provides that Turkish law applies to persons holding several nationalities one of which is Turkish. Art. 4 governs only those cases in which the applicable law is determined by reference to nationality under the conflict of laws rules of the statute. It forms part of the private international law provisions in the first part of Law №5718, whereas Art. 48 belongs to the rules of international civil procedure in the second part, and it does not determine who is a foreigner for procedural purposes.
The position of a person holding two or more foreign nationalities and no Turkish citizenship is less clear. Art. 4/1-c of Law №5718 provides that for persons holding several foreign nationalities, the law of the state with which the person has the closer connection applies. Applying that criterion by analogy to the reciprocity analysis, so that reciprocity is examined by reference to the state of closest connection, is a defensible approach. The genuine link test developed in the Nottebohm judgment of the International Court of Justice supports an argument along the same lines.
It should be stated plainly, however, that Art. 4/1-c governs the determination of the applicable law, and no express provision or settled authority extends that criterion to the security obligation. The approach is a proposal by analogy, not a statement of existing law. Courts should not be expected to investigate the point of their own motion, and it requires careful explanation by counsel. The practical significance of the question is growing as multiple nationality becomes more common.
D. Assignment Of The Claim And The Later Disappearance Of Foreignness
Neither statute fixes foreignness to a particular moment. Foreignness present at the outset may therefore disappear before judgment becomes final, and foreignness absent at the outset may arise during the proceedings. Art. 87/2 of Law №6100 already provides for changes in the circumstances requiring security to be taken into account.
The most contested application of this flexibility is assignment of the claim. Where a foreign creditor assigns the claim to a Turkish citizen or to an entity of Turkish nationality before security is lodged, the foreignness required by Art. 48 disappears and no security is needed.
In E. 2013/17258, K. 2014/10074, 21.05.2014, the 8th Civil Chamber held that where the claim under enforcement was assigned, with all its rights and burdens, to an entity of Turkish nationality before expiry of the two-week peremptory period set for lodging security, the assigning foreign company retained no power of disposition over the file and the condition of furnishing security arising from the creditor’s nationality had to be treated as having ceased.
The question also reached the Assembly of Civil Chambers. In E. 2013/12–1566, K. 2015/1144, 01.04.2015, the Assembly held that although the foreign company initiating enforcement had not complied with the security obligation, the assignment of the claim to a Turkish citizen during the proceedings removed the element of foreignness, and no security could be required of a Turkish creditor for the enforcement to continue.
The decision was reached by majority and the dissent is worth noting. In the dissenting opinion, the assignment by a foreign company required to furnish security, during the proceedings, to a Turkish national represented by the same counsel amounted to circumvention of the statutory provision in order to avoid the obligation; under Art. 2 of the Turkish Civil Code №4721, the abuse of a right does not enjoy the protection of the law. The first-instance court had resisted the reversal on the same reasoning.
The literature does not present a settled view. One approach holds that because no provision fixes the security condition to a particular moment, and because Art. 87/2 requires changes to be taken into account, an assignment made after expiry of the peremptory period is equally effective. The other holds that an assignment made after expiry may breach the principle of abuse of rights.
The practical value of this is high. Assignment looks like the shortest route out of the obligation for a foreign creditor. Given that the Assembly decision was reached by majority and that the dissent rests on Art. 2 of Law №4721, however, the risk that an assignment made purely to avoid security, and through the same counsel, will be characterized as an abuse of right is real. The assignment should rest on a commercial rationale, and that rationale should be documented.
E. Interim-Relief Security: A Parallel And Separate Obligation
Security for costs must be clearly distinguished from the security arising in the context of interim relief. The legal bases, triggers, amounts and purposes differ materially.
Under Art. 392 of Law №6100, a party seeking a preliminary injunction may be required to furnish security covering the damage the counterparty or third parties may suffer if the injunction proves to have been wrongly obtained. This security is not confined to foreigners; it applies to any applicant regardless of nationality. The court may dispense with it where the application rests on an official document or conclusive evidence, or where the circumstances so warrant.
Preliminary attachment is available only for monetary claims and is governed by Arts. 257 to 268 of the Enforcement and Bankruptcy Code №2004. Under Art. 259, the applicant must furnish security covering all loss the debtor and third parties may suffer if the attachment proves wrongful. Where the claim rests on a judgment, no security is required; where it rests on a document of equivalent weight, the court has discretion.
A decision of the Court of Cassation illustrates what this distinction produces in practice. In E. 2014/13901, K. 2015/10418, 13.10.2015, the 11th Civil Chamber held that a guarantee letter filed to cover loss arising from a preliminary attachment order cannot be accepted as security for costs, and that the guarantee letter furnished for security for costs must be a different letter from the one furnished for the attachment. The first-instance court had treated part of the existing letter as security for costs, and that decision was reversed.
The governing distinction is therefore this. Security under Art. 48 of Law №5718 and Art. 84 of Law №6100 applies at the initiation of substantive proceedings and is tied to the party’s status. Injunction security under Art. 392 of Law №6100 applies at the time of the interim application and is tied to the risk of wrongful harm, nationality being irrelevant. Attachment security under Art. 259 of Law №2004 operates within enforcement proceedings and depends on the nature of the creditor’s title. These are legally separate obligations, to be planned and budgeted independently. It cannot be assumed that one guarantee letter will answer two of them.
IV. CONCLUSIONS AND PRACTICAL OBSERVATIONS
The cautio judicatum solvi is a procedural institution whose underlying logic is defensible; it answers a real enforcement asymmetry in international litigation. The difficulty lies in navigating it correctly, because the framework retains a degree of complexity.
A threshold observation is warranted before the practical points. The obligation is real, but it is subject to a very wide range of exemptions, many of which operate by force of law without any judicial discretion. Identifying which exemption applies is therefore the first task.
The exemptions rest on several distinct legal bases.
1) Multilateral treaty exemptions: Where the foreign party is a national of a state party to an instrument such as the Hague Convention on Civil Procedure of 1 March 1954, exemption arises. For legal entities the 2017 decision of the 12th Civil Chamber should be placed before the court. The European Convention on Establishment covers natural persons only and carries reservations for the United Kingdom and Ireland.
2) Bilateral treaty exemptions: Nationals of states with which Turkey has concluded an instrument providing for exemption are exempt, and the list published by the Directorate General for Foreign Relations and the European Union is the starting point. For the United Kingdom, Australia and Canada, the 1931 Convention on Legal Assistance supplies a treaty basis. Whether legal entities fall within a given instrument must be checked against its text.
3) Reciprocity exemptions under Art. 48/2 of Law №5718: Where the foreign party’s state does not require security from Turkish nationals, whether by statute, treaty or established practice, the court must grant exemption. Once reciprocity is established this is not a matter of discretion.
4) Art. 85 exemptions of Law №6100, applicable to all parties: Legal aid; sufficient immovable property in Turkey or a claim secured by a right in rem; an action brought solely to protect a minor’s interests; and enforcement of a claim established by a judgment. Whether the last extends to foreigners is disputed.
5) International protection status: Under Art. 88/1 of Law №6458, holders of international protection status are exempt from the reciprocity requirement. Persons under temporary protection do not hold that status and cannot rely on Art. 88/1; legal aid should be examined for them instead.
6) Refugees and stateless persons: The exemptions under Art. 16 of the Convention on the Status of Stateless Persons and Art. 16 of the 1951 Geneva Convention operate independently of any reciprocity analysis. Turkey’s geographical limitation to the Geneva Convention must be taken into account.
Reciprocity is the most consequential question for parties outside the treaty network and is rarely straightforward. De facto reciprocity is functionally the most important form; treaty-based and statutory reciprocity mean little if Turkish nationals are not in fact exempted in the relevant jurisdiction. The court’s first line of inquiry is the factual position. For the United States, de facto reciprocity has been confirmed in Ministry of Justice correspondence, with the 1931 Treaty of Establishment and the 19th Civil Chamber’s decision of 26.01.2016 as additional grounds. Courts nonetheless expect these matters to be established afresh, with supporting documentation, in each case.
The amount, while nominally discretionary, can become a substantial financial obligation. It has been observed that courts apply the ten to fifteen percent rate carried over from interim relief practice out of habit. Security of forty percent of the principal has been ordered, and an enforcement officer’s order of one hundred percent has been held to depart from the governing principles. The Ministry of Justice Directorate of Enforcement Affairs letter of 19.06.2023, for its part, states that in enforcement matters the rate should be not less than twenty percent of the claim. That letter is not a binding instrument and Art. 87/1 of Law №6100 requires a case-specific assessment. Given its capacity to establish a floor in enforcement office practice, however, an objection to the rate should be raised at the outset and with reasons.
The practice of requiring the deposit in foreign currency has no clear statutory basis. The decisions asserting it identify no basis, and it has been observed in the literature that the practice is unsound. This too is open to objection.
The regime-selection question, that is Art. 48 of Law №5718 against Arts. 84 to 89 of Law №6100, is frequently misunderstood. Turkish citizens abroad and dual nationals are not automatically exempt; they are governed by a different statutory framework, with different exemptions and no reciprocity mechanism. Blue card holders face genuine legal uncertainty and should obtain advice specific to their matter.
Two procedural points bear repeating. First, the security notice must state the consequences of failure to lodge; otherwise the notice is defective and that defect is a ground for reversal. Second, the return of security is not automatic, and an application must be made once the ground has ceased.
Finally, security for costs does not substitute for the security obligations arising from interim relief; it runs in parallel with them. A party needing to freeze assets quickly will face a separate obligation under the applicable interim relief provisions, independently of anything lodged for the main proceedings. The case law does not permit one guarantee letter to answer both. These obligations must be planned and budgeted simultaneously.
Att. Cemil Şaar, PhD(c)
This article was originally published at www.cemilsaar.com
cemilsaar@kstlawfirm.com | +90 535 416 9476 | linkedin.com/in/cemilsaar
