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

 R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  50 in particular those for service to the opposite party are applied proportionally; and b) whether the effects of recognition came retroactively from the final judgment of the foreign decision or from the date of recognition by the Turskish Court. Concerning the first question, it was argued that since the- re is no explicit reference to art. 58, it is not necessary to sum- mon the opposing party in cases where recognition is sought by a separate document and therefore the judge makes the deci- sion only by studying the file without discussion. However, the majority of the theory, as well as the case law, accept that it is necessary to summon the other party, arguing that otherwise it is not possible to raise the defendant’s objection to the foreign Court, which, as we have seen, is a prerequisite for the enforce- ment (and therefore recognition) of a foreign decision under art. 54 par. (ç), but it is not investigated on its own initiative but only upon objection! 197 It was therefore reasonably believed in many cases that the adoption of the recognition decision without the summoning of the adversary contravenes the law which clearly protects the defendant’s right of defense 198 . As regards the question of the beginning of the recogni- tion of foreign judgments, it was argued that, by their nature, as “rule making” (inşai ή yenilik doğurucu kararlar), they also pro- duce legal effects in Turkey, not from the day of its adoption re- cognition decision but by the final judgment of the recognized foreign judgment 199 . There has been a debate on this issue for many years, but this has been definitively resolved by art. 59 of the Turkish Code of Private International and Procedural Law, which now explicitly states that “(…) the res judicata or the full probative force of a foreign judgment shall be governed by the final judgment of the foreign decision (...)” 200 . 197 A. ÇELIKEL, Milletlerarası Özel Hukuku, Beta Kitabevi, op. cit., pp. 640-641 198 Υ. 2. HD 16.05.2002, E. 2458/K..2905 and Υ. 2. HD 07.10.2002, E. 10804/K. 11537 (Kazancı Hukuk Oto- masyonu) in which the decision to recognize a foreign divorce decision (Turkish) was issued without the summoning of the other divorced spouse. 199 E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 504ss. 200 See, Ö. GÜNSELİ, Türk Hukukunun Yorumunda Hata Yapılmasına Ilişkin Yargıtay Hukuk Genel Juru- lunun 21.06.2001 Tarihi Kararı, in Μilletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, 1999-2000, pp. 768ss, with references to jurisprudence that has often been unclear about this issue.