Frequently Asked Questions
Is there a Register of Aircraft?
In Turkey the registration of aircraft is the responsibility of the Ministry of Transport whose activities cover, inter alia, the certification and regulation of aircraft, air crews and airports together with the control of air traffic which are performed through Civil Aviation Authority. The Ministry of Transport is required to maintain a register of aircraft, the Aircraft Register.
Is there a Register of mortgages or rights over aircraft?
Mortgages and other rights acquired over aircraft are registered in the Aircraft Registry. No separate mortgage register is maintained.
Turkey has recently ratified the Convention on International Interests in Mobile Equipment (the “Convention”) and the Protocol to the Convention on Matters Specific to Aircraft Equipment (the “Protocol” and, together with the Convention, the “Cape Town Convention”).
International law has its own rules for protecting the basic values of the international community as all law orders do. The definition, extent, functions and effects of these rules were introduced to positive international law by the 1969 Vienna Convention on the Law of Treaties, and the main emphasis is the distinguishing characteristics of jus cogens rules rather than of "ordinary" ones.
Now that Turkey has issued the laws in respect of ratification of the Cape Town Convention and with support from the Civil Aviation Authority, it can be assumed that the Protocol will shortly come into effect facilitating asset-based financing and leasing of high value mobile equipment. It is hard to know what effect the Cape Town Convention will have in practice as there has been no attempted registration or repossession under the Protocol yet.
It is hard to know what effect the Cape Town Convention will have in practice as there has been no attempted registration or repossession under the Protocol yet.
Turkey has made a number of declarations under the Cape Town Convention which are extremely important.
Turkey has declared that it will apply Article XI of the Protocol, Alternative A in its entirety to all types of insolvency proceedings and that the waiting period for the purposes of Article XI(3) of that Alternative is sixty (60) calendar days.
Turkey has also made an opt-in declaration under Article 40 of the Cape Town Convention, stating that the following cathagories of non-consensual right and interest shall be registerable under the Cape Town Convention as regards any category of aircraft objects as if the right or interest were an international interest and shall be regulated accordingly;
- rights of a person obtaining a court order permitting attachment of an aircraft object in partial or full satisfaction of a legal judgement,
- liens or other rights of a state entity relating to taxes or other unpaid charges.
The Turkey has ratified the Warsaw Convention on Carriage of Passengers and Goods by Aircraft which came into effect in Turkey on June 23, 1978 and the Chicago Convention on December 20, 1945.
Turkey has not ratified the 1948 Geneva Convention on the International Recognition of Rights in Aircraft, or the 1933 Rome Convention on the Precautionary Arrest of Aircraft.
Are there any self-help remedies under Turkish law enabling mortgagee take possession of the aircraft, on the occurrence of an event of default, under the mortgage without judicial intervention?
It is not possible under Turkish law to take possession of a mortgaged item. Article 83 of the Turkish Civil Aviation Law provides that a mortgagee may recover its credit on the assets coming within scope of the mortgage only by compulsory execution measures. The Article further provides that if the mortgagor fails to pay all its debts, any agreement giving the Mortgagee the entitlement to take possession of the aircraft will bear no validity and a mortgagee will have to enforce its claim using compulsory enforcement procedures.
Under the International Private and Procedural Law of Turkey No. 5781, a foreign court judgment cannot be directly enforced in Turkey and an application should be made to a Turkish court which will only enforce a foreign judgment (i) if there is a treaty of reciprocity or in the absence of such treaty there is effective reciprocity for the enforcement of judgments between the two countries (ii) the foreign judgment is a final judgment and all possibilities of appeal have been exhausted; (iii) the judgment is not given on a subject which is among the exclusive jurisdiction of Turkish courts; (iv) if the judgment is not clearly against Turkish public policy; and (v) if the person against whom enforcement is sought does not raise an objection in the Turkish court to the effect that such person was not duly summoned to or represented at the foreign court or that the judgment was rendered in such person’s absence in violation of the laws of the foreign country and that the Turkish Court considers such objection as justified.
Is a deregsitration power of attorney enforceable?
Under the laws of Turkey a power of attorney which is required to be executed before a Notary Public cannot be irrevocable notwithstanding the statement in the document that it is irrevocable. As the issuer of a power of attorney may revoke such powers anytime thereafter by sending a notice of revocation and without requesting consent by the proxy, it is not desirable for proxies in Turkey to use such a power of attorney having been granted previously by the opponent as it may be regarded by the authority to which it is submitted for use as being a misuse of previously granted authorization.
Arbitration awards
The Turkish Government has ratified the 1958 New York Convention by means of Law No. 3731 of 1991, pursuant to which the Convention has become applicable from September 30, 1992. Enforcement proceedings for a foreign arbitral award in Turkey will depend on the country where the arbitration award has been issued and whether that country is also a party to the New York Convention.