Foreign Creditor Security: Court of Cassation 2026/5003

A company established in India starts enforcement proceedings against its debtor in Türkiye. The debtor applies to the enforcement court, arguing that the foreign creditor has not deposited security; the court sets a final deadline, cancels the proceedings when no security is deposited, and the regional court of appeal upholds the decision. When the case reaches the Court of Cassation, the Chamber obtains the information that decides the outcome from outside the case file, through diplomatic correspondence: whether Turkish citizens who bring enforcement proceedings in India are asked for security only because they are Turkish. The question the decision answers is this: how is reciprocity established in the security obligation of a foreign creditor, and is actual practice enough?

By its decision dated 01.07.2026, Docket No. (E.) 2025/7000, Decision No. (K.) 2026/5003, the 12th Civil Chamber of the Court of Cassation set aside the regional court of appeal's decision rejecting the appeal on the merits, and unanimously reversed the first-instance enforcement court's decision cancelling the proceedings, under Article 373/1 of the Code of Civil Procedure (HMK), applied by reference in Article 364/2 of the Enforcement and Bankruptcy Law (İİK).

📂 The Proceedings, the Complaint and Cancellation

The decision does not state the type of proceedings, or the amount or source of the claim. What is known is that the creditor is a company of Indian nationality and that it started enforcement proceedings against the debtor in Türkiye.

In its application to the enforcement court, the debtor raised the following claim, among other grounds of complaint: the creditor is a foreign company; in order to bring enforcement proceedings in Türkiye it must deposit security, but no security was deposited. On this ground cancellation of the proceedings was requested.

According to the text of the decision, the stages of the case ran as follows:

It is notable that the first-instance court ended the proceedings solely on the lack of security, without examining the debtor's other complaints. The Court of Cassation's reversal also turns on this point.

🌐 Article 48 of the Private International Law Act: The Security Rule and the Exemption

The dispute is based on Article 48, titled "Security", of Law No. 5718 on Private International Law and Procedure (MÖHUK). The current text has two paragraphs:

The wording of the provision clearly shows that the security obligation is not limited to foreigners who bring actions; it also covers foreign creditors who start enforcement proceedings. The purpose of security is to ensure that the loss and costs which a foreign creditor who turns out to be in the wrong may cause to the other side are covered. The idea that a foreign creditor may have no assets in Türkiye is the main reason for this requirement.

The rule, however, is not absolute. The Law sets reciprocity as the criterion for exemption from security. In other words, the citizen of a state that does not impose a security obligation on Turkish citizens in its own country receives the same treatment in Türkiye.

🤝 Three Sources of Reciprocity

In its decision the Court of Cassation expressly listed the ways in which reciprocity under Article 48 may be established. According to the Chamber, the exception to the security obligation is the existence of an exemption on the basis of reciprocity between the country of the creditor's nationality and Türkiye:

This list matters, because even where there is no treaty providing for exemption from security between the two countries, the fact that the other country does not in practice impose a security obligation on Turkish citizens is accepted as sufficient for exemption on its own. The decision contains no finding on whether there is a treaty between Türkiye and India on this subject; the Chamber reached its result through actual reciprocity.

🔍 Why Did the Court of Cassation Reverse?

As a result of correspondence made during the cassation review, the Ministry of Justice sent a reply letter dated 26.06.2026. Referring to a note of the Indian Ministry of External Affairs dated 29.04.2026, this letter gave the following information: Turkish citizens and legal entities who will bring enforcement proceedings in India are not required to pay any security amount, apart from the legal costs that Indian citizens are also obliged to pay.

The Chamber assessed this information as follows: Indian judicial authorities do not ask Turkish citizens for security solely because they are Turkish citizens. Therefore Indian citizens too must be accepted as exempt from security in enforcement proceedings they bring in Türkiye, on the basis of actual reciprocity.

As a result of this finding, the Court of Cassation stated that the first-instance court should have accepted the creditor as exempt from security and should have examined the debtor's other complaints as well and decided according to the outcome. Cancelling the proceedings on the ground that no security was deposited was found to be incorrect. For this reason the regional court of appeal's decision was set aside, the first-instance decision was reversed and the case was sent back to the first-instance court.

🏛️ Who Investigates Reciprocity?

The procedurally notable aspect of the decision is how the information on reciprocity was obtained. According to the text of the decision, a reply was received from the Ministry of Justice following the relevant correspondence, and this reply is based on the official note of India. The Court of Cassation tied its conclusion to this official information.

This approach has several consequences:

The decision contains no separate assessment of which party bears the burden of proving the exemption. However, the fact that the Chamber reached its result through official diplomatic information shows that reciprocity is not left only to the statements of the parties. For one aspect of the security issue in litigation involving foreign parties, see the article on security for a foreigner in a traffic accident caseTR.

🧩 Effects on Enforcement Law

The decision allows the following observations about foreign elements in enforcement proceedings:

For the approach of the enforcement court where the debtor side changes in proceedings started for a rent claim, the article on payment by a divided tenant companyTR is also a recent example from the same Chamber.

❓ Questions That Come to Mind

For detailed information and legal support, you can contact Savun Law & Consultancy. Contact details are on the contact page, and other case-law articles are in the Precedent DecisionsTR archive.