If the creditor initiates enforcement proceedings while the mandatory mediation stage prior to the filing of a negative declaratory action is still ongoing, may the court hearing the negative declaratory action grant a provisional injunction pursuant to Article 72/2 of the Enforcement and Bankruptcy Law ?
Whether negative declaratory actions fall within the scope of mandatory mediation had long been a matter of doctrinal and practical debate. This uncertainty was ultimately resolved by the amendment introduced to Article 5/A of the Turkish Commercial Code, which entered into force on 1 September 2023, expressly bringing negative declaratory actions within the scope of mandatory mediation.
Article 72/2 of the Turkish Enforcement and Bankruptcy Law (Law No. 2004) provides as follows:
“In the event that a negative declaratory action is filed prior to the commencement of enforcement proceedings, the court hearing the action may, upon request and against the provision of security not less than fifteen percent of the claimed amount, grant a provisional injunction staying the enforcement proceedings.”
In this context, the following question arises: How is Article 72/2 to be applied where the debtor has applied for mandatory mediation, but the mediation process has not yet been concluded, and the creditor initiates enforcement proceedings in the meantime?
If the enforcement initiated by the creditor is an ordinary (non-judgment) enforcement proceeding, the issue may appear less significant, as the debtor has the opportunity to suspend the proceedings by filing a timely objection before the enforcement office. In such a case, the need for a provisional injunction may not arise.
However, the question regains its full significance where the creditor initiates enforcement based on negotiable instruments (bill-of-exchange proceedings), or where the creditor, despite initiating an ordinary enforcement proceeding, seeks and obtains an attachment order (precautionary attachment). In such scenarios, it is at least theoretically possible for the court hearing the negative declaratory action to grant a provisional injunction suspending not only the enforcement proceedings but also the execution of the precautionary attachment.
The legislator has expressly addressed this issue in Article 18/A(16) of the Law on Mediation in Civil Disputes. The provision reads as follows:
“If, after an application has been filed with the mediation bureau, enforcement proceedings are initiated against the applicant in relation to the subject matter of the dispute, and the applicant files a negative declaratory action pursuant to Article 72 of Law No. 2004 within two weeks from the date on which the final mediation report is drawn up and requests relief accordingly, the second paragraph of Article 72 of Law No. 2004 shall apply.”
Accordingly, where enforcement proceedings are initiated against a party who has applied for mandatory mediation, and that party files a negative declaratory action within the statutory two-week period following the issuance of the final mediation report, the court may grant a provisional injunction staying the enforcement proceedings, subject to the security requirement set forth under Article 72/2 of the Enforcement and Bankruptcy Law.
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John Abraham
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Alizabeth Anne
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John Abraham
says Oct 15, 2017 at 11:00account of the system, and expound the actual teachings of the great explorer of the truth,
John Abraham
says Oct 15, 2017 at 11:00account of the system, and expound the actual teachings of the great explorer of the truth,
Alizabeth Anne
says Oct 15, 2017 at 11:00account of the system, and expound the actual teachings of the great explorer of the truth,
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