Istanbul Bar Association critiques the draft Enforcement Law, warning of its adverse effects on maritime trade and creditor rights.
The Istanbul Bar Association's Examination of the Historical Draft of the Enforcement Law
The draft 'Enforcement Law,' which is planned to replace the Enforcement and Bankruptcy Law No. 2004 that has been in effect for over a century in Turkey, is set to be completed by 2025 for public discussion. This new draft has created a significant impact in the legal and maritime world. Prepared due to the existing law losing its systemic integrity as a result of forty-one separate law and decree changes, the current law has become complex and difficult to implement, lacking an understanding of upper principles and balance. The Istanbul Bar Association has scrutinized this draft. The 'Enforcement Law Draft Commission,' consisting of Istanbul Bar Association Board Member Attorney Mehmedali Barış Beşli, Istanbul Bar Association Board Member Attorney Fırat Epözdemir, and Attorneys Muktedir İlhan, Sevim Çelikcan, Tevrat Duran, Özden Özdemir, Emrah Çevik, Selahattin Bektaş, Berçem Karataş, and Cemil Aygün, prepared a comprehensive report examining the draft's effects, particularly on maritime trade and general creditor rights. The commission detailed the innovations and potential crises that the draft might bring to the maritime sector and commercial life, based on data obtained from a series of widely attended symposiums and conferences held in November and December 2025 with the participation of academics, judges, lawyers, enforcement officers, and members of the Scientific Commission.
Scattered Maritime Enforcement Provisions Consolidated into One Book
According to the report of the Istanbul Bar Association commission, the provisions related to maritime enforcement in the current legal framework were extremely scattered, inconsistent, and problematic between the Turkish Commercial Code and the Enforcement and Bankruptcy Law. The most significant and positive step of the new Enforcement Law Draft from the perspective of the maritime sector is to abandon this scattered structure and consolidate maritime enforcement provisions under a single book. With this structural reform, it is aimed to achieve full compliance with international treaties to which Turkey is a party, particularly the 1999 Convention on the Arrest of Ships. The draft text regulates the processes of precautionary arrest of ships, their sale, and the distribution of receivables obtained from this sale in a much more detailed and clear manner compared to the past. Additionally, the concept of the right of retention on goods, which constitutes the backbone of maritime trade and holds great importance in the sector, has been addressed under a special section with a renewed and more modern approach. The Bar Association commission states that these compilation and consolidation efforts in the field of maritime enforcement will benefit the sector in line with the principles of simplifying the labyrinthine old provisions and reducing in-law references.
Exceptional Enforcement Ease in the Evacuation and Delivery of Vessels
One of the most significant innovations brought by the draft regarding litigation processes and enforcement mechanisms is the removal of the rule that first-instance court decisions are immediately enforceable, leaving the enforcement capability of the decision to the review of the appellate court. The Istanbul Bar Association strongly opposes this situation, arguing that this rule, applied to general cases, will leave the prevailing party unprotected and provide opportunities for malicious individuals to escape with their assets. However, the legislator has defined an important exception specifically for the maritime sector. According to the draft, first-instance court decisions regarding the evacuation and delivery of a ship, regardless of whether it is registered under its flag and registry, can be enforced immediately, even if there is a legal remedy available. This exceptional regulation stands out as a vital step to prevent large commercial assets, which have high operating costs and may lose value or incur damage day by day, from remaining idle or deteriorating in the hands of unjust possessors during prolonged appellate processes.
Dangerous Imbalance Created Against Creditors
Despite the positive systemic integrity steps such as consolidating maritime enforcement into a single book, the Istanbul Bar Association commission has raised serious criticisms regarding the overall philosophy of the draft. According to the findings in the report, the previously alleged imbalanced structure, particularly in areas such as non-judicial enforcement, has been completely reversed in this new draft. The commission emphasizes that the new system creates an excessively imbalanced structure in favor of the debtor, almost encouraging non-payment of debts, and complicates the collection of receivables, further victimizing the rightful creditor. The severe restriction of creditors' collection opportunities in high-volume, deferred, and fast-financial-return sectors such as maritime and logistics has the potential to undermine commercial confidence in the markets.
The Advance Payment System Could Drive the Sector into a Deadlock
One of the most controversial issues in the draft is related to enforcement costs and advance payments. Instead of taking measures to facilitate the collection of receivables to reduce file backlogs in the current system, the draft has taken a flawed path by excessively increasing enforcement costs, making it impossible to pursue small or medium-sized receivables in terms of cost-benefit balance. According to the draft, creditors must pay in advance when requesting expenses related to the actions they wish to take. The Istanbul Bar Association states that requiring an advance for arbitrary expenses at the very beginning of the enforcement process, which may or may not be incurred, will impose a significant financial burden on commercial enterprises that have to initiate numerous enforcement proceedings and will effectively restrict the freedom to seek rights. A striking example given in the commission report indicates that a creditor who places a precautionary lien on thousands of vehicles based on current tariffs will need to make an advance payment of hundreds of millions of lira just for preservation and sale. Considering that the amounts for ship, cargo, or container seizures and preservation processes in the maritime sector reach much higher figures, it is warned that such advance payment obligations could financially lock maritime trade creditors and lead to crises due to the financial costs incurred by creditors who cannot collect their receivables, creating a chain of negative effects on the markets.
The Earthquake Effect of the Regulation on Commercial Papers
One of the most common payment and financing instruments in deferred transactions in general commercial life, including maritime trade, is commercial papers (checks, promissory notes, bonds), which receive a significant blow in the new draft. The draft completely abolishes the enforcement procedure specific to commercial papers and reduces their legal status in enforcement proceedings from 'valuable documents' to 'ordinary documents.' The Istanbul Bar Association commission harshly criticizes that the legislator has completely disregarded the earthquake effect this removal of the privileged enforcement route will have on commercial markets and the damage it will cause to the economy. Given that creditors can access their receivables more quickly through commercial papers that have public trust and that these documents can be circulated securely and swiftly, the draft's elimination of this possibility has the potential to create serious problems in the economic field. The reduction of commercial papers frequently used in maritime operations such as freight contracts, bunker supplies, and shipyard payments to the status of ordinary contract papers could deeply shake the credit and trust chain in the sector. Therefore, the Bar Association proposes the preservation of the enforcement route specific to commercial papers or the application of negative determination lawsuit rules regarding objections to these documents.
Abolition of the Objection Removal Institution and the Burden on Courts
Another radical change in the draft that will pressure commercial creditors is the complete removal of the 'objection removal' procedure in non-judicial enforcement proceedings. In the current system, if the debtor objects to the enforcement proceedings, the creditor could quickly pursue 'objection removal' in enforcement courts based on official or acknowledged documents. However, the new draft requires the filing of an 'objection cancellation' lawsuit in general courts for the continuation of the proceedings after an objection. The Istanbul Bar Association states that it is a significant mistake to overlook that the workload of general courts, which already operate under heavy caseloads, will become even more unmanageable with this regulation, and that the collection of receivables by rightful owners will be delayed for years. In the maritime sector, where rapid collection is vital for the continuity of ship operations, subjecting creditors to the lengthy litigation processes of general courts could bring the commercial flow in the sector to a standstill.
Written Document Requirement and Interference with Freedom of Contract
The draft's imposition of a document requirement to initiate enforcement proceedings in non-judicial enforcement has also been vehemently criticized by the Bar Association commission. According to the draft, creditors without a document issued by official authorities, a document suitable for proving the cause of the receivable, or an unchallenged invoice in cases where both parties are merchants will not be able to resort to non-judicial enforcement at all. The Bar states that this regulation clearly contradicts the principle of 'freedom of contract' in the Code of Obligations and eliminates the rapid freedom to seek rights regarding unwritten contracts. Furthermore, it is expressed that the inability to initiate non-judicial enforcement even with emails, faxes, electronic communications, or bank transfer receipts, which are accepted as evidence in proving the receivable, will impose significant restrictions on the dynamics of economic life. Considering that email confirmations and swift receipts are fundamental to daily trade in international maritime commerce and agency relationships, it is emphasized that the ban on non-judicial enforcement without documentation offers no practical benefit to maritime companies and undermines the freedom to seek rights.
Unjustified Extension of Timeframes and Risk of Asset Evasion
Another issue highlighted by the Istanbul Bar Association commission is the unjustified extension of established timeframes, which have been in effect for over ninety years in the current law, in favor of the debtor without any concrete and reasonable justification. Changes such as extending the objection period for payment orders or increasing payment deadlines from 7 days to two weeks have been criticized in the report. The Bar argues that despite the technological advancements making it much easier for debtors to reach the courthouse and file complaints compared to the 1930s, extending these timeframes will provide the unjustly losing debtor with ample time to evade their assets. In the maritime sector, allowing a ship or cargo to operate without any enforcement restrictions for fourteen days instead of seven is more than sufficient time for assets to be moved to international waters or other jurisdictions. The Bar demands that the existing timeframes of seven days, fifteen days, etc., in the current law be preserved to prevent the balance of rights from being tilted in favor of the unjustly losing party.
Devaluation of Legal Labor and Prohibition of Forced Labor
One of the most criticized aspects of the draft at the professional level has been the regulations regarding attorney fees and litigation costs. The draft stipulates that enforcement costs are to be borne by the creditor, no attorney fees will be awarded in cases examined based on complaints, and a fixed attorney fee will be applied if the debtor makes a payment within the stipulated time. The Istanbul Bar Association commission states that leaving litigation costs on the prevailing party in cases examined based on complaints contradicts general legal principles and fairness. The commission emphasizes that the inability of attorneys to receive compensation for their labor constitutes a clear violation of the 'prohibition of forced labor' enshrined in the Constitution and the Attorneyship Law, highlighting that this situation will lead to 'labor exploitation.' The Bar argues that the legal contribution of attorneys in the enforcement process cannot be reduced to a mere formality, stating that such regulations will devalue both the attorney's labor and the creditor's rights, weakening the economic foundation of the right to defense.
Conclusion: New Crises Loom Instead of Solutions
The Istanbul Bar Association Enforcement Law Draft Commission clearly states in the general evaluation section of its report that the new draft completely tips the delicate balance between the creditor and the debtor in favor of the debtor. It is emphasized that attempting to resolve the blockages in the current enforcement and bankruptcy system by dropping files or expanding the area of non-seizability of debtor assets is a flawed approach. The inability of creditors to collect their receivables cheaply and quickly will create a financial burden on businesses, disrupt balances in the economy, and deprive public finances of revenue from fees and taxes. The Istanbul Bar Association has submitted its solution proposals, which are least costly, fast, and fairly consider the creditor-debtor balance, to the Ministry of Justice, item by item, to restore the rule of law and social peace and to re-establish society's belief that it can obtain its rights through legal means. The maritime and trade world is now anxiously and curiously awaiting how this draft law, which will profoundly affect the dynamics of the sector, will take its final shape in line with the warnings of the Bar and legal professionals.
THE BAR ASSOCIATION'S DRAFT ASSESSMENT CAN BE FOUND AT THE FOLLOWING LINK:
Source: SeaNews Türkiye
