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

31  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  laid down by the relevant law constitute respectively bases of exclusive jurisdiction, thereby preventing the recognition of fo- reign decisions in relation to those matters 107 . 9.(FOLLOWS) EXORBITANT JURISDICTION The second part of paragraph (b) Art. 54 concerns the so- -called “over-jurisdiction” (aşırı yetki) as is known, in particular, by the english term: “exorbitant jurisdiction”. In other words, there is another negative condition which, if it does, impedes the enforcement of the judgment, namely when i) the Tribunal had wrongly held that it had jurisdiction, although it had no real con- nection with the subject matter of the dispute and the parties; and ii) the defendant disputed the jurisdiction of the Court with a claim in front of him. This condition was added for the first time to the Turkish Code of Private International and Procedural Law, and until then the exceeding international jurisdiction of the foreign Court was treated by the Turkish Courts in opposition to the Turkish public order 108 . Starting from the principle of the natural judge, the ratio legis of this arrangement is based on the logic that the choice of a Court irrelevant to the trial may conceal the plaintiff’s intention to restrict the judge’s access to evidence and eventually the pos- sibility of the adversary to defend his interests. Thus, according to the theory of Turkish law, some of the principles applicable to the procedural law of certain american States such as “in-state service of process” and in particular “long arm status” are examples of exorbitant jurisdiction in ac- cordance with Turkish law 109 . Therefore, a Court decision which has recognized itself competent for a decision based on one of the above principles without any real link to the case can not be 107 E. ESEN, Türk hukukunda yabancı mahkeme kararlarının tanınması ve tenfizinde münhasır yetki kavramı, in Μilletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, 2002, pp. 202ss. 108 That overstepping was considered to be a violation of the fundamental principles of Turkish law, as the case law violated article 36 of the Turkish Constitution and article 6 of the ECHR in order to ensure a fair trial. See in argument: E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 489ss. 109 C. ŞANLI, Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, Beta, İstanbul, 2011, pp. 223-224