Questions & Answers
- Is there a Register of Aircraft?
The registration of aircraft in Turkey is the responsibility of the Ministry of Transport, Maritime Affairs and Communication whose activities cover, inter alia, the certification and regulation of aircraft, air crew and airports together with the control of air traffic which are performed through the Directorate General of Civil Aviation (the “Civil Aviation Authority”). The Civil Aviation Authority maintains a civil aircraft registry.
- Is there a Register of mortgages or rights over aircraft?
Mortgages and other rights acquired over aircraft are registered in the Aircraft Register. No separate mortgage register is maintained.
- Is Turkey party to any international Conventions that relate to aircraft?
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”). Turkey has issued a law in respect of ratification of the Cape Town Convention and with support from the Civil Aviation Authority. Turkey has made a number of declarations under the Cape Town Convention which are extremely important. Turkey has declared that the Cape Town Convention shall not apply to a transaction which is an internal transaction in relation to the Republic of Turkey with regard to all types of objects or some of them. All parties involved in the leasing or financing of aircraft should welcome the coming into force of the Cape Town Convention, including airlines, not only because this could create greater liquidity in aircraft financing markets but also because airlines will themselves sometimes lease/sub lease aircraft and seek to rely on the terms of the Cape Town Convention.
Turkey has also ratified the Warsaw Convention on the Carriage of Passengers and Goods by Aircraft which came into effect in Turkey on June 23, 1978 and the Chicago Convention is also ratified and came into force 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 mortgagees to take possession of the aircraft without judicial intervention, on the occurrence of an event of default, under the mortgage?
It is not possible under Turkish law to take possession of a mortgaged item. The Turkish Civil Aviation Law provides that a mortgagee may recover its credit on the assets falling within the scope of the mortgage only by compulsory execution measures. The law further provides that if the mortgagor fails to pay all its debt, any
- Enforcement of foreign court judgments
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.
- Counter security requirements
It would be necessary for plaintiffs to deposit, at the court’s discretion, security for costs (“cautio judicatum solvi”), provided however, that the court may in its discretion waive such requirement for security in the event that the claimant is i.) considered to be a national of one of the contracting states of the Convention Relating to Civil Procedure at The Hague on 1 March 1954 (ratified by Turkey pursuant to Law No. 1574 published in the Official Gazette No. 14137 dated 23 March 1972) or ii.) considered to be a national of a state that has signed a bilateral treaty with Turkey, which has been duly ratified, containing inter alia a waiver of the cautio judicatum solvi requirement on a reciprocal basis.
- Is a deregistration 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 a statement in the document that it is. As the issuer of a power of attorney may revoke such powers anytime thereafter by sending a notice of revocation and without requesting the proxy’s consent, it is not desirable for proxies in Turkey to use such a power of attorney as it may be regarded by the authority to which it is submitted for use as being a misuse of a previously granted authorization.
- Arbitration awards
The Turkish Government has ratified the 1958 New York Convention by means of Law No. 3731 in 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.