The Limits of Court Assistance in Interim Measures and Precautionary Attachment Orders Rendered by Arbitral Tribunals

In arbitral proceedings, parties frequently seek interim measures and interim attachment orders in order to protect their rights and interests until the final award is rendered. However, where such decisions rendered by an arbitral tribunal are not voluntarily complied with by the parties, the question of whether they may be rendered directly enforceable through court assistance has long remained a subject of debate in both doctrine and practice.

Pursuant to Article 414 of the Turkish Code of Civil Procedure No. 6100 (“CCP”), where a valid arbitration agreement exists, interim measures rendered by arbitrators may be granted an enforceability annotation by the court. This provision establishes a direct mechanism enabling the effective implementation of interim measures ordered by arbitral tribunals. Nevertheless, the scope of this provision is limited to interim measures and does not extend to interim attachment orders.

A different approach is adopted under Article 6 of the International Arbitration Act No. 4686 (“IAA”), entitled “Interim Measures or Interim Attachment.” Under this provision, where interim measures or interim attachment orders rendered by an arbitral tribunal are not complied with by the parties, the opposing party may seek the assistance of the court. However, unlike the CCP, the IAA does not provide for the granting of an enforceability annotation to interim measures ordered by arbitrators; instead, it refers to the concept of “court assistance.” This creates uncertainty, particularly with respect to the legal path to be followed and the legal nature of such assistance in cases where interim measures ordered by an arbitral tribunal are not voluntarily complied with by the opposing party.

In scholarly work, differing views exist as to the scope of the concept of “court assistance” set forth in Article 6 of the IAA. According to one view, court assistance refers to rendering interim measures or interim attachment orders issued by arbitrators directly enforceable through the courts. Under this approach, the court does not issue a new protective measure but rather conducts a limited review solely for the purpose of conferring enforceability on the arbitral decision and enabling its practical implementation. According to a second view, where an arbitral decision is not complied with, court assistance should be understood as the court’s issuance of a new and independent interim measure or interim attachment order. Under this approach, the court does not enforce the arbitral decision as such, but reassesses the need for interim protection within the scope of its own authority. A third view adopts a differentiated approach, assessing interim measures and interim attachment orders separately, arguing that interim measures ordered by arbitrators may potentially be implemented through court assistance, whereas interim attachment orders, by their very nature, may only be enforced through a new and independent decision rendered by a court.

Within this framework, the following questions frequently arise in practice: What are the purpose and limits of the concept of court assistance? Where an interim measure or interim attachment order rendered by an arbitral tribunal is not complied with by the opposing party, is it possible to obtain an enforceability annotation from the court for such decision?

Indeed, in line with these scholarly views, attempts are frequently made in practice to apply to courts for the granting of an enforceability annotation where interim and protective measures rendered by arbitrators are not complied with.

In a recent decision rendered by the Ankara 10^th Commercial Court of First Instance, the court emphasized that, where interim measures or interim attachment orders rendered by an arbitral tribunal are not complied with and court assistance is sought, the decision to be rendered by the court does not bear the nature of an enforceability annotation; rather, the court may only render a new and independent interim protective decision within the scope of its own authority (the appeal lodged against the decision in question has subsequently been rejected).

      I.Background of the Decision

The dispute arose from the failure to comply with and implement an interim attachment order rendered by an arbitral tribunal in the course of an arbitral proceeding conducted before the Istanbul Arbitration Centre. Upon the non-compliance with the arbitral tribunal’s decision ordering interim attachment over the respondent’s assets, the claimant applied to the Ankara 10^th Commercial Court of First Instance, seeking the granting of an enforceability annotation in order to render the arbitral decision enforceable through execution proceedings.

      II.Key Findings of the Commercial Court of First Instance

 The court rejected the application seeking an enforceability annotation for the implementation of the interim attachment decision rendered by the arbitral tribunal, and set forth the following reasoning:

• The concept of “court assistance” regulated under the IAA is not designed to confer enforceability on arbitral decisions. Rather, it merely allows the court, upon application by one of the parties, to assess whether to grant a new interim protective measure within the scope of its own authority.
• Granting an enforceability annotation to an interim measure or interim attachment decision rendered by an arbitral tribunal would amount to creating, by way of analogy, a legal mechanism not envisaged under the IAA, which would be contrary to the principle of legality and the autonomous nature of arbitral proceedings.

      III.Conclusion

The decision of the Ankara 10^th Commercial Court of First Instance underscores that, within the framework of the IAA, interim measures and interim attachment orders rendered by arbitral tribunals cannot be rendered enforceable through court assistance. Unlike the CCP, the provisions of the IAA do not contain an explicit regulation allowing for the granting of an enforceability annotation to arbitral decisions; rather, they merely authorize courts, upon application by the relevant party, to render a new and independent interim protective decision on the same matter.

Accordingly, if this approach is adopted, applications to courts in cases where interim measures or interim attachment orders rendered by arbitral tribunals under the IAA are not complied with should be submitted not as requests for enforceability annotations, but as applications for the issuance of a new interim measure or interim attachment order. Otherwise, where an application is made for the granting of an enforceability annotation to an arbitral decision, there is a significant likelihood that such request will be dismissed under the existing legal framework.