Milletlerarası Usul Hukukunda Bekletici Sorun

Abstract

The court may decide to suspend a pending trial by reason of prejudicial question, if the outcome of an ongoing trial before another state court is decisive in a case. Although the suspension by reason of prejudicial question has been regulated in the Code on Civil Procedure No. 6100, the ability of the judge to decide on suspension was accepted both in the doctrine and case law in the period of the abrogated Code on Civil Procedure No. 1086. where there wasn’t a regulation about it. Therefore, it hasn’t been a controversial issue that a Turkish court could suspend the pending trial until the decision of another Turkish court. However, there isn’t a conciliation about the question whether a Turkish court can suspend the trial until the decision of a foreign court. This controversy has not been brought to light in the Code on Civil Procedure No. 1086. Suspending a pending trial until the decision of a foreign state court should also be evaluated within the scope of International Private Law and Procedural Law, as it contains a foreign element in terms of Turkish law. There is no clear provision in this regard in the Law on Private International Law and Procedural Law No. 5718. Consequently, there is no explicit regulation in the Turkish legislation related to the suspension of the Turkish court’s trial until the decision of a foreign court or an arbitral tribunal. In the drafting period of the Code on Civil Procedure No. 6100, German and Swiss Codes on Civil Procedure had been taken into consideration. In our study, it will be tried to reach a conclusion in this matter in terms of Turkish law by taking the regulations and jurisprudence in comparative law into account.