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  56 is the determination of the foreign element in an arbitration judgment since only then is the process of recognition and en- forcement in Turkey necessary. Therefore, the first question to be answered is: how will we determine whether an arbitration deci- sion is domestic or foreign and whether the answer is the second then how will its “nationality” be determined? Unlike art. 1 of the New York Convention 217 , Turkish Code of Private Internatio- nal and Procedural Law does not contain a provision specifying which arbitration decision is foreign. Thus the relevant judgment is left to the judge to declare its execution. As to whether the arbitration judgment is domestic or fo- reign, the following criteria have been formulated in theory and case law 218 : a) the nationality of the parties; b) the place of arbi- tration (principle of territoriality); c) the nationality of the proce- dural rules applied to arbitration and d) the combination of the principle of territoriality and the nationality of the procedural rules applied. The first historic decision of the Plenum of the Turkish Court of Cassation 219 in 1951 defined foreign arbitration judg- ments as those which were “enacted in a foreign legal order” (yabancı bir kanun otoritesi altında verilmiş), thus rejecting the criterion of the nationality of the judge or the place this was is- sued. According to that judgment, an arbitration judgment car- ries the nationality of the legal order in which the arbitration pro- ceedings were conducted 220 . However, in 1976, the 5 th Political Section of the Turkish Court of Cassation, considered the alienity of an arbitration deci- sion solely on the basis of the place where the arbitration hearing and the issue of the contested decision took place 221 . Indeed, a 217 Which states that the Convention applies to the recognition and enforcement of arbitration judgments issued in the territory of another Contracting State. 218 As for the general theoretical considerations see: E. NOMER, N. EKŞİ, G. GELGEL, Milletlerarasın Tahkim, op. cit., pp. 120-125. 219 Y. HGK 07.11.1951, in Tatbikatta Yargıtay Kararları, 1952, pp. 890 as well as a subsequent decision which broadly uses the same reasoning: Y. 11. HD 28.12.1978, Kuru VI, 6158 220 A. ÇELIKEL, E. NOMER, E. ESEN, Devletler Hususi Hukuku (Çözümlenmiş Örnek Olaylar - Seçilmiş Mahkeme Kararları), op. cit., pp. 654ss. 221 Y. 5. HD 10.03.1976, E. 1617/K. 1052, in İlmi Ve Kazai İçtihatlar Dergisi, 1977, pp. 5671.