Abstract:

    Article 17 of the Hague Convention of 1 March 1954 on Civil Procedure provides that no security, bond or deposit of any kind may be imposed by reason of their foreign nationality, or of lack of domicile or residence in the country, upon nationals of one of the Contracting States, having their domicile in one of these States, who are plaintiffs or parties intervening before the courts of another of those States. The Turkish Supreme Court ruled in two different decisions rendered in 2013 and in 2016 that the exemption from security for costs provided in article 17 of the Convention of 1954 is only for physical persons and that legal persons are not under the scope of such exemption on the grounds that the personal scope of such exemption is specified by the term “national” in the Convention of 1954 and that, unlike Convention of 1954, legal persons are expressly included in scope of the exemption from security for costs under the article 14 of the Hague Convention of 25 October 1980 on International Access to Justice which is intended to substitute the Convention of 1954. This paper attempts to tackle the issue whether legal persons are under the scope of the exemption from security for costs provided in article 17 of the Convention of 1954, with reference to the above mentioned decisions of the Turkish Supreme Court, by means of literal and teleological construction of the Convention of 1954, taking the text and the explanatory report of the Convention of 1980 into consideration and in the light of the jurisprudence of the member states’ courts of the Convention of 1954.

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