The action for the annulment of objection is a special remedy aimed at resuming an enforcement proceeding that has been suspended due to the debtor’s objection. This action, which was incorporated into Turkish law with certain adaptations from Swiss law, does not pertain to the substantive collection of the debt, as in an ordinary debt claim, but rather to the continuation of an enforcement proceeding that has already been initiated. Also, a feature unique to Turkish law is that, in such proceedings, the creditor may request that the debtor who has unjustly objected to the enforcement be ordered to pay compensation amounting to no less than 20 per cent of the awarded sum. Likewise, a creditor who has initiated enforcement proceedings unjustly and in bad faith may also be ordered to pay compensation at the same rate.
The arbitrability of actions for the annulment of objection is widely debated in legal doctrine, both because such actions may result in a determination concerning the enforcement proceeding initiated before the judicial bodies and because they may also involve sanctions arising directly from statutory provisions, namely the compensations for denial of execution or bad faith. Judicial decisions on this issue also lack a consistent approach.
1. A General Look into the Actions for the Annulment of Objection
The primary purpose of the action for the annulment of objection, as regulated under Article 67 of the Enforcement and Bankruptcy Code No. 2004, is to revoke the debtor’s objection and thereby resume the enforcement proceedings. However, this procedural function has given rise to fundamental debates concerning the nature of this action from a substantive law perspective.
Determining the legal nature of the action for the annulment of objection is crucial for assessing whether such cases can be submitted to arbitration. According to the view categorising it as a declaratory action, the court does not order the debtor to make any payment but merely issues a declaratory judgment establishing the invalidity of the objection which prevents the continuation of the enforcement proceedings.[i] In contrast, authors who support the view that the action implies a performance claim argue that the action for the annulment of an objection is a standard performance action relating to a claim subject to enforcement proceedings, and that, with the annulment of the objection, the debtor is also ordered to make the payment.[ii] Finally, a third approach holds that, apart from certain special procedural requirements such as time limits and the connection with enforcement proceedings, this action is no different from an ordinary debt claim and should be considered a mixed-type action specific to enforcement law.[iii]
Although there have been disagreements among the chambers of the Court of Cassation in practice, this action is predominantly characterized as a declaratory action in the recent decisions of the Court.[iv] Within this framework, it is emphasized that the action should be clearly distinguished from a debt collection action, and that the court does not issue a separate order for payment.
2. Different Approaches to the Arbitrability of Actions for the Annulment of Objection
Arbitrability refers to the ability to resolve the disputes arising from matters over which the parties have the right to freely dispose by means of arbitration (Article 408 of the Code of Civil Procedure No. 6100). There are three main approaches regarding whether the action for the annulment of an objection falls within this scope:
a. First Approach: Non-Arbitrability
According to this view, the process of enforcement without a court order and the related action for the annulment of objection fall within the scope of judicial enforcement, on the basis of the sovereign authority of state. Since enforcement bodies operate within the state’s judicial system, submitting an action that directly affects this process to arbitration would be incompatible with the state’s sovereign powers.
The fact that arbitrators cannot issue provisional measures binding on enforcement authorities (Article 6/2 of the International Arbitration Law No. 4686) is understood to imply that they also cannot issue a final award binding such authorities, including an award annulling the objection to an enforcement order. Some scholars adopt this interpretation to maintain that actions for the annulment of objections are not arbitrable.
In a decision dated 3 November 1978, the 13th Civil Chamber of the Court of Cassation articulated this approach as follows:
“[…] In the contract concerning the rental of the defendant’s compressor, it was agreed that disputes would be submitted to arbitration. It is understood from the parties’ notifications that a dispute has arisen between them. The plaintiff cannot unilaterally waive the arbitration clause and initiate enforcement proceedings. Therefore, the court must rule that the enforcement proceedings are unlawful, not that the claimant is not indebted, due to the absence of a determination of liability through arbitration. If the defendant applies to the arbitrator and the arbitrator determines that the plaintiff is indebted to him, he may proceed with enforcement.[…]”
According to this view, while the substantive law aspect of the dispute (the claim) may be subject to arbitration, arbitrators cannot award enforcement-specific remedies in arbitration proceedings.
Accordingly, when the creditor submits the dispute to arbitration, the arbitrator should treat the case not as an action for the annulment of objection but as a debt (collection) claim. In this context, the arbitrator may determine the existence of the claim but cannot award compensation for denial of execution or bad faith within the meaning of Article 67 of the Enforcement and Bankruptcy Code. This approach was adopted by the 19th Civil Chamber of the Court of Cassation in its decision dated 14 December 2000, which stated: “In this situation, the claimant cannot bring an action for the annulment of an objection before the arbitrator. However, in consideration of procedural economy, it is possible for the case submitted to arbitration to be treated and concluded as a debt collection action.”[vi] Indeed, in the doctrine, Pekcanıtez also adopts the view—albeit for different reasons—that arbitrators cannot award compensation for denial of execution derived from procedural law in arbitration.[vii]
b. Third Approach: Arbitrability
Another significant approach advocated in Turkish legal literature and in judicial practice holds that the action for the annulment of objection is fully arbitrable with respect to both the principal claim and the compensation claims specific to enforcement law, without any restrictions.
In its recent decision dated 20 October 2025 (Case No. 2025/2168 E., 2025/3478 K.), the 6th Civil Chamber of the Court of Cassation held that the action for the annulment of an objection “does not differ from an ordinary debt claim, except for its special procedural requirements concerning time limits and the connection with the enforcement proceeding. In this respect, since it is subject to the parties’ autonomy, nothing under Article 1 of the International Arbitration Law or Article 408 of the Code of Civil Procedure prevents these cases from being submitted to arbitration.” The Court thus clearly affirmed that disputes arising from such actions may be resolved through arbitration.[viii]
Within this framework, it is argued that arbitrators may render decisions not only on the merits of the claim but also on the incidental consequences of the action. The 15th Civil Chamber of the Court of Cassation confirmed this authority in its decision dated 16 May 2011 (Case No. E. 2010/826, K. 2011/2941), stating: “According to the established practice of our Chamber, arbitrators are authorized to decide on actions for the annulment of objections and, as a consequence, to rule on claims for enforcement denial compensation.”[ix]
Similarly, the 11th Civil Chamber of the Court of Cassation, in its recent decision dated 3 April 2024 (Case No. E. 2024/212, K. 2024/2703), held that compensation for denial of enforcement does not constitute a public policy limitation and that the arbitral tribunal resolving the dispute may also rule on such compensation. This approach is based on the view that requiring the arbitrator who decides on the principal claim to refer the parties to the state courts for compensation would be contrary to procedural economy.
3. Conclusion
As can be understood from the above explanation, the arbitrability of actions for the annulment of objection remains a dynamic area of debate in Turkish law. Although recent decisions of the Court of Cassation show a tendency towards arbitrability, the existence of contrary rulings by certain chambers makes it difficult to consider this approach as fully established. Indeed, while the arbitrability approach in recent case law of certain chambers protects the party autonomy, differences of opinion among various chambers continue to create uncertainty in practice.
In particular, the legal characterization of compensation for denial of enforcement, together with the divergent views among judicial authorities on whether arbitrators are empowered to award such compensation, materially exacerbates the uncertainty surrounding arbitral proceedings. To safeguard legal certainty, the issue should be conclusively settled either by a unifying decision of the Grand General Assembly for the Unification of Case Law of the Court of Cassation or through explicit legislative intervention.
[i] Çağa, Tahir, Ödeme Emrine İtirazın İptaline Dair, Banka ve Ticaret Hukuku Dergisi, 1976/VIII/3, s. 21-31).
[ii] Kuru, Baki / Arslan, Ramazan / Yılmaz, Ejder, İcra ve İflâs Hukuku Ders Kitabı, Ankara 2014, s. 161-162.
[iii] Pekcanıtez, Hakan / Atalay, Oğuz / Surgurtekin Özkan, Meral / Özekes, Muhammet, İcra ve İflâs Hukuku, Ankara, 2013, s. 197-200.
[iv] Yılmaz, Ejder, “Tahkimde İtirazın İptali Davası ve Tahkime Elverişlilik Kuralı”, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, C. 16, Özel Sayı 2014, s. 531-554, s. 536 vd.
[v] Decision of the 13th Civil Chamber of the Court of Cassation dated 3 November 1978, Case No. 4625/4623 (Yılmaz, p. 542)
[vi] Decision of the 19th Civil Chamber of the Court of Cassation dated 14 December 2000, Case No. E. 2000/5610, K. 2000/8669.
[vii] Pekcanıtez, Hakan, Tahkimde Açılan İtirazın İptali Davasında Hakemler İcra ve İnkâr Tazminatına Karar Verilebilir mi?, Fasikül Hukuk Dergisi, Cilt: 10, Sayı: 100, Mart 2018, s. 57-65, s. 63.
[viii] Decision of the 6th Civil Chamber of the Court of Cassation dated 20 October 2025, Case No. E. 2025/2168, K. 2025/3478.
[ix] Decision of the 15th Civil Chamber of the Court of Cassation dated 16 May 2011, Case No. E. 2010/826, K. 2011/2941; similarly, Decision of the 15th Civil Chamber of the Court of Cassation dated 3 April 2008, Case No. E. 2008/262, K. 2008/2138.