One of the primary reasons for preferring arbitration is the enforceability of arbitral awards, which are generally supported by many countries that are parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”). However, since the Convention mainly addresses the enforcement of final awards, the enforcement of interim measures issued by arbitrators remains a more contentious issue. Indeed, Türkiye is also among the jurisdictions where there are challenges and uncertainties regarding the enforcement of interim measures.
Under Turkish law, the legal framework for interim measures in international arbitral proceedings is governed by Article 6 of the Turkish International Arbitration Law (the “IAL”). This article provides the general rule that unless otherwise agreed by the parties the arbitrator or arbitral tribunal may issue interim measures and attachment orders except those binding on third parties or requiring implementation by execution authorities or other official bodies. It further states that if a party fails to comply with interim measures or attachment orders granted by the arbitrators, the other party may request the assistance of the court for such measures or orders.
As mentioned above, arbitrators in international arbitration proceedings are empowered to issue interim measures, which must undergo a formal enforcement process to become enforceable in Türkiye. However, while there is a possibility that parties might voluntarily adhere to such measures to avoid negative inferences from the tribunal or to prevent actions that could disadvantage their case, this authority does not yield the practical advantages as expected.
The fact is that, although interim measures are binding within the scope of the arbitration process, their provisional and non-final status poses challenges for enforcement and Turkish courts do not tend to enforce foreign arbitral interim measures without establishing the conditions of issuing an interim order under Turkish law.
Conclusion
Given that interim measures are temporary and non-final -meaning they do not resolve the underlying dispute- in principle, they are not enforceable in Türkiye which eventually does not encourage parties to prefer arbitration. Alternatively, to safeguard a party’s interests and ensure that the proceedings achieve the desired outcome also in Turkish jurisdiction, it may be a prudent strategy to request interim measures from a Turkish court, either before or during arbitral proceedings, along with submitting the necessary documentation to demonstrate that the legal conditions for granting an interim measure are met. We are of the opinion that, according to paragraph (1) of Article 6 of the IAL, this approach shall not contradict the arbitration agreement.