Revista da EMERJ - V. 22 - N.3 - Setembro/Dezembro - 2020

17  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  tary cases where they can be reformed if new information emerg- es later 37 . In such cases, both the theory and case law 38 are sup- ported by the fact that it is not possible to recognize and enforce these judgments because of the doubt arising from the lack of effective res judicata. However, the exclusion of recognition and enforcement only on the grounds that they lack “substantive” res judicata has been criticized by part of the theory on the basis that this distinction is purely theoretical and does not clearly follow from the law. That view is supported by the fact that, in the legis- lation applicable to the recognition and enforcement of decisions up to 1982, art. 537 of the then Turkish Code of Civil Procedure required the existence of a “final decision” 39 (kesin hüküm teşkil etmiş bulunmasi). However, derogations to the condition of termination ap- ply to judgments of the Courts of the States with which Turkey has bilateral agreements to facilitate the mutual enforcement of judgments. Thus, e.g. in accordance with relevant bilateral Con- ventions signed with Tunisia and Italy, the recognition and en- forcement of the foreign judgment is permissible, irrespective of the exercise of any extraordinary remedies (olağan kanun yolları), such as the appeal, provided that the decision is in accordance with the law of the executing State 40 . E.12819/K.10931, in Yargıtay Kararları Dergisi, 1992, pp. 741-742. 37 A. ÇELIKEL, Milletlerarası Özel Hukuku, Beta Kitabevi, op. cit., pp. 88ss. 38 Plenary Civil Divisions of Cassation Court (Υ. HGK) 28.12.1994, E. 2-625/K. 905 (Kazancı Hukuk Otomasyonu). 39 At this point, it is useful to clarify the following: as “definitive” (nihai) in Turkey are the decisions of the Tribunals of the first instance, which are issued after the last debate before them (since, as a rule, the Court of first instance needs more than one debate until it makes its final decision). The word “final” is to be interpreted as meaning that the merits of the case can not be reexamined since in Turkey there are no secon- dary Courts of substance (although they are provided by article 341 of the Turkish Code of Civil Procedure (HMK), but have not yet been established) therefore decisions of first degree are only offensive with an appeal (temyiz) to the Cassation Court (Yargıtay). As “final” (kesinlesmiş) are not those judgments of the first instance Courts for which either the time limit for appealing before the Cassation Court has expired, either have been appealed by an appeal and the Court of Appeal has issued an appeal or validating it. We see, therefore, that Court: finesse is ve nihai olmasını. Thus, the deletion of the reference to a “final deci- sion”, both in the old Code of 1982 and the new Turkish Code of Private International and Procedural Law, was considered to have been precisely because the legislator was interested in the “formal” irrespective of whether the decision could be reformed for substantive reasons. Besides, we believe that the recognition and enforcement of these decision is acceptable, as the hypothetical case of their reform in the future can come to recognize the new decision in Turkey. Moreover, this is not forbidden since, as we have seen above, the res judicata of the Turkish recognition/enforcement decision can not be wider than the res judicata of the foreign decision in its State of origin, and that res judicata has not prevented its reform in that State. 40 See also article 2c of the “Convention between the Republic of Turkey and the Republic of Tunisia