The Cross-Border Mandate Between Italy and Turkey: Granting, Circulation and Validity of the Power of Attorney Across Two Legal Systems
The Cross-Border Mandate Between Italy and Turkey: Granting, Circulation and Validity of the Power of Attorney Across Two Legal Systems.
Practical profiles of substantive and procedural representation in judicial and extrajudicial matters between Italy and Turkey.
1. Introduction: the practical problem of the cross-border mandate
Every dispute that crosses a border encounters, even before the merits, a preliminary obstacle whose resolution conditions all subsequent activity: the establishment of a valid relationship of representation between the client and the professional called upon to act in a legal system different from the one in which the client is located. The problem, apparently technical and secondary, is in reality decisive. A power of representation defective in its form or in its chain of authentication does not merely produce an inefficiency: it determines the inadmissibility of the act, the non-existence of the entry of appearance, the impossibility of validly carrying out extrajudicial activity, with consequences that, in proceedings subject to time limits, may prove irreparable.
The practice of the Italy-Turkey corridor offers, in this respect, two mirror scenarios, which it is worth taking as the reference scheme for the entire treatment.
In the first scenario, an Italian client must act in Turkey. Consider, by way of example, the Italian citizen called upon to assert her inheritance rights over real property located in Turkish territory, registered in the name of a deceased person and already the subject of a power of attorney granted in the past to a third party. Here the power of representation must be formed in Italy and circulate towards Turkey, where it will be exercised before the notary, the land registry offices and, where necessary, the Turkish judicial authority.
In the second scenario, of exactly the opposite sign, a Turkish client must act in Italy. Consider, conversely, the company incorporated under Turkish law which, being a creditor of an Italian undertaking, must enter an appearance in proceedings pending before an Italian court in order to protect its position. Here the power must be formed in Turkey and circulate towards Italy, where it will be exercised as a procedural power of attorney before the national court.
The two scenarios share the same logical structure – a party in one jurisdiction, a dispute in another – but require distinct documentary chains and formalities, governed by the intersection of the domestic law of the two systems, private international law and a core of common international conventions. The present analysis reconstructs these chains, proceeding from a preliminary and indispensable conceptual clarification.
2. Three notions not to be confused: substantive mandate, professional engagement and procedural power of attorney
Practical experience teaches that most errors in this area arise from the conflation of three legally distinct notions, which everyday language promiscuously designates with the term "mandate", but which operate on different planes and according to their own rules.
The first notion is that of the substantive mandate, that is, the relationship of representation in the proper sense. Under Italian law, a distinction must be drawn between the mandate – the contract by which one party undertakes to perform legal acts on behalf of the other, under Articles 1703 et seq. of the Civil Code – and the power of attorney (procura), which is the unilateral transaction by which the principal confers upon the representative the power to act in his name, governed by Articles 1387 et seq. Article 1392 of the Civil Code is of particular relevance: the power of attorney has no effect unless it is conferred in the form prescribed for the contract that the representative is to conclude. The form of the power of attorney, in other words, is modelled on that of the final act. This principle, of apparent simplicity, assumes decisive importance in cross-border situations, where the act to be performed abroad may require solemn forms unknown to, or differently constructed in, the system of origin.
The second notion is that of the professional engagement, namely the contract that binds the client to the lawyer. This is a contract for intellectual services, falling under Articles 2229 et seq. of the Civil Code and governed, as regards the legal profession, by Law No 247 of 31 December 2012. It is here that the determination of the fee under Article 2233 of the Civil Code and Article 13 of that Law, the prior disclosure of costs required by Article 13(5), the prohibition of the contingency-share agreement (patto di quota lite) laid down by Article 25 of the Forensic Code of Conduct, and the rules on withdrawal under Article 2237 of the Civil Code are located. The professional engagement is the title of the internal relationship between client and counsel; it is not, in itself, the power of representation that counsel exercises externally.
The third notion is that of the procedural power of attorney (procura alle liti), that is, the representative power that authorises counsel to perform and receive procedural acts in the name of the party. In the Italian system it is governed by Article 83 of the Code of Civil Procedure and presupposes the procedural capacity of the party under Article 75 of that Code, as well as, for legal persons, the standing of the person who exercises their representation under Article 77. The procedural power of attorney is an act of prescribed form and procedural object, distinct both from the professional engagement and from the substantive power of attorney.
The distinction is not merely theoretical. In cross-border relationships, each of the three planes may be governed by a different law and require a different form: the professional engagement of the Italian firm will typically be governed by Italian law and contained in a private writing; the substantive power of attorney to act in Turkey will have to take the form required by the Turkish system for the act to be performed; the procedural power of attorney to be exercised in the Italian proceedings will have to conform to Article 83 of the Code of Civil Procedure and, if granted abroad, pass the test of formal validity examined below. To confuse the three planes – for instance, to assume that the engagement letter signed by the client serves in itself as a power of attorney exercisable before the foreign authority – is the error from which the most serious consequences derive.
3. First scenario: Italian client, Turkish forum. The power of attorney flowing out towards Turkey
Consider the case, drawn from the Firm's practice and here reported in anonymised form, of an Italian client who must assert her status as heir over real property located in Turkey. The matter presupposes a sequence of activities to be carried out physically in Turkish territory and before the Turkish authorities: the revocation of a power of attorney previously granted to a third party, the conferral of a new power of representation, and the commencement and management of the judicial and administrative procedures aimed at the recognition of the status of heir and the subsequent registration of the property in the competent Turkish land registries.
The nature of the engagement requires a structural premise. Activity before the Turkish authorities can be carried out only by counsel admitted to practise in Turkey. Hence the model, to which we shall return in conclusion, of coordinated dual representation: the Italian lawyer retains the strategic direction and general coordination of the matter, as the client's sole point of reference, while the corresponding Turkish lawyer carries out on site the necessary material, judicial and extrajudicial activities, on the basis of a specific power of attorney that the client undertakes to grant. The internal relationship between client and Italian firm is formalised in the engagement contract, governed by Italian law; the power to act in Turkey is instead conveyed by a distinct instrument of attorney, intended to circulate towards the Turkish system.
The Turkish terminology deserves to be recalled, since it enters directly into the correspondence and the documents. The special power of attorney is called vekaletname; the revocation of a prior power of attorney is called azilname. Both are, in practice, formed before the Turkish notary (noter); when, however, the principal is in Italy, their formation follows one of the two routes set out below.
The first route is the consular one. The Italian client may attend the territorially competent Turkish Consulate in Italy and there sign the power of attorney, which the consular officer receives and authenticates according to the forms of his own system. The power of attorney thus formed is, from the outset, a Turkish act, drafted in Turkish, immediately exercisable in Turkey without the need for an apostille, since it emanates from a Turkish authority. It is the route to be preferred where the act must have a form and content strictly conforming to the Turkish model, in particular for acts intended for the land registries and judicial proceedings.
The second route is the domestic notarial one with subsequent apostille. The client signs the power of attorney before an Italian notary, who authenticates the signature. Since the act is intended to produce effects abroad, its authenticity must be attested at the international level: this is the function of the apostille, provided for by the Hague Convention of 5 October 1961, to which both Italy and Turkey are parties [1]. In Italy, for notarial and judicial acts, the apostille is affixed by the Public Prosecutor's Office at the Tribunal in whose district the notary operates; for administrative acts, by the Prefecture. The apostille is followed by the sworn translation into Turkish, duly certified, and finally by the transmission of the act to the Turkish correspondent, who will use it before the competent authorities.
The choice between the two routes is not indifferent and depends on the nature of the final act, in keeping with the principle of Article 1392 of the Civil Code: where the Turkish system requires a particular solemn form for the act to be performed, the consular route offers a greater guarantee of conformity, since the act is born already Turkish; where, instead, an ordinary special power of attorney suffices, the domestic notarial route with apostille allows the client not to have to attend the Consulate, with an evident saving of time. In both cases, the correctness of the chain – authentication, apostille or consular authentication, sworn translation – is a condition of the act's exercisability in Turkey.
As to the fee, the transnational and deferred-performance nature of the engagement suggests a structuring by phases and by results. It is lawful, and does not constitute the contingency-share agreement prohibited by Article 25 of the Forensic Code of Conduct, to agree fixed and predetermined amounts, disconnected from any percentage of the value of the asset, whose enforceability is anchored to the achievement of specific technical-legal results – for example, the issuance and the becoming final, under Turkish law, of the decision of the Turkish authority recognising the status of heir, or the subsequent registration of the property. What distinguishes the lawful agreement from the prohibited pact is not the connection to the result as such, but the percentage parametrisation to the economic value obtained: so long as the amounts remain fixed and predetermined, the ethical constraint is respected.
4. Second scenario: Turkish client, Italian forum. The power of attorney flowing in from Turkey
The mirror scenario is that of the company incorporated under Turkish law which must act, or enter an appearance, in proceedings pending in Italy. Consider, likewise in anonymised form, the Turkish company that is a creditor of an Italian undertaking and intends to assert its claim by entering an appearance in the proceedings concerning it before an Italian court. Here the power of representation must be formed in Turkey and circulate towards Italy, and the documentary chain presents a further complexity compared with the preceding scenario, since to the power of attorney is added the need to prove the representative powers of the person who grants it in the company's name.
The first node is, indeed, that of the entity's representative standing. A foreign company acting in Italy must first prove its existence and the identity of the person authorised to represent and bind it. In the Turkish system, such proof is provided through two typical documents: the signature circular (imza sirküleri), a notarial act attesting the signing powers of the legal representative, and the certificate of activity (faaliyet belgesi), issued by the competent Chamber of Commerce, attesting the existence and operation of the company and the identity of its organs. It is on the basis of the signature circular that the legal representative – authorised to bind the company even individually, where so resulting – grants the special power of attorney to the Italian lawyer.
The second node is that of the procedural power of attorney. The power of procedural representation exercisable before the Italian court must conform to Article 83 of the Code of Civil Procedure and presupposes the procedural capacity of the party under Article 75. When the party is a foreign legal person, its capacity and its representation are determined according to the law governing its existence: under Article 25 of Law No 218 of 31 May 1995, companies and entities are governed by the law of the State in whose territory the incorporation procedure was completed [2]. It will therefore be Turkish law that determines who may validly represent and bind the company, and the signature circular will constitute the documentary proof of such power before the Italian court.
The procedural power of attorney granted abroad raises, on the formal plane, a question of no secondary importance. The power of attorney granted in Turkey by a Turkish party must, in order to be validly exercised in the Italian proceedings, satisfy cumulatively certain conditions: it must be formed before the Turkish notary according to the forms of the system of origin; it must bear the apostille affixed by the competent Turkish authority, in accordance with the Hague Convention of 1961; and it must be accompanied by a sworn translation into Italian. The basis of this regime rests on the principle that the formal validity of the act is assessed according to the law of the place in which it was performed, in keeping with the criteria of private international law, while its suitability to serve as a procedural power of attorney in the Italian proceedings is measured by its correspondence to the requirements of Article 83 of the Code of Civil Procedure. The case law of the Court of Cassation has repeatedly addressed the validity of the procedural power of attorney granted abroad, in particular as regards the need for translation and authentication, in terms that it is appropriate to verify in the light of the most recent rulings before any concrete application [3].
As to the Turkish authority competent for the apostille, a distinction must be drawn: for documents of an administrative nature, competence lies with the offices of the Governorate (Valilik) or the Sub-Prefect (Kaymakam); for documents of a judicial nature and for notarial acts, competence lies with the presidency of the judicial commission at the court (Adli Yargı İlk Derece Mahkemesi Adalet Komisyonu Başkanlığı). The precise identification of the competent office, as well as the exact designation and applicable practice of Turkish corporate documents – a matter which has, moreover, undergone an evolution with the progressive affirmation, alongside the traditional notarial signature circular, of the signature declaration registered with the trade registry – constitute matters of Turkish law that fall outside the competence of the Italian lawyer and must be entrusted to the verification of the Turkish correspondent.
Connected to this scenario, finally, is a question that practice reveals to be anything but theoretical: that of the cross-border service of process. The service of an Italian judicial act on a Turkish company, or vice versa, cannot be effected by informal means. It is governed by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to which Italy is a party – having ratified it by Law No 42 of 6 February 1981 – and to which Turkey is also a party, as well as by the long-standing bilateral Italy-Turkey Convention of 10 August 1926, made enforceable in Italy by Law No 1076 of 24 July 1930 [4]. It follows that service effected without recourse to the Turkish Central Authority or to diplomatic channels, by means of simple non-certified electronic mail and in the absence of a translation, does not conform to the applicable conventions and is exposed to challenge: a circumstance that the lawyer for the Turkish addressee may and must raise, and of which the lawyer for the Italian sender must take account, on pain of the ineffectiveness of the service.
5. The framework of private international law and conventions
The two scenarios, although distinct in their documentary chains, rest on the same structure of conflict-of-laws rules and international conventions, knowledge of which allows the practical formalities described thus far to be brought back into a system.
On the plane of the law applicable to representation, Article 60 of Law No 218/1995, which governs voluntary representation, is the first to be relevant. The provision establishes that voluntary representation is governed by the law of the State in which the representative has his place of business, provided that he acts in a professional capacity and that such place of business is known or knowable by the third party; failing those conditions, the law of the State in which the representative principally exercises his powers in the specific case applies. It follows that the power conferred on a Turkish lawyer to act in Turkey will tend to be governed by Turkish law, and that conferred on an Italian lawyer to act in Italy by Italian law: which explains, on the systematic plane, why the form and requirements of each power of attorney must be measured against the system of destination of the representative activity.
As regards the capacity and representation of collective entities, Article 25 of Law No 218/1995 has already been recalled, anchoring the rules governing the company to the law of the State of incorporation. The combination of the two provisions – Article 25 for the existence and organic representation of the entity, Article 60 for the voluntarily conferred representative power – provides the grid for assessing the standing of the foreign party acting through local counsel.
On the plane of documentary circulation, the cornerstone is the aforementioned Hague Convention of 1961, which replaced the traditional and burdensome consular legalisation with the issuance of a single certificate, the apostille, by the competent authority of the State of origin of the document. For Italy-Turkey relations the Convention operates fully, both States being parties; the apostille issued in Italy is recognised in Turkey and vice versa, without the need for any further consular intervention. There remains, of course, the need for the sworn translation, which the Convention does not eliminate: the apostille attests the authenticity of the signature and the capacity of the signatory, it does not render the content of the act intelligible in the language of the system of destination.
On the plane of the circulation of procedural acts, the Hague Convention of 1965 on service and the bilateral Italy-Turkey Convention of 1926 operate, as already illustrated. These are instruments that require recourse to formal channels – Central Authorities, diplomatic channels – the non-observance of which affects the validity and effectiveness of the service.
On the plane, finally, of the professional engagement contract that binds the client to the Firm, the applicable law is determined, within the European framework, by Regulation (EC) No 593/2008 (Rome I), which recognises the primacy of the parties' choice and, failing that, anchors the contract to the law of the characteristic performer. It is therefore entirely lawful, and advisable, that the engagement contract of the Italian firm should contain a clause choosing Italian law and identifying the competent forum for disputes relating to the professional relationship, as the Firm's practice consistently provides.
6. Operational indications and conclusions
The reconstruction conducted thus far allows some indications of immediate operational utility to be drawn.
The first concerns the clear distinction of the planes. In every cross-border matter it is necessary to keep separate, from the outset, the professional engagement contract – the title of the internal relationship with the client, governed by Italian law and contained in a private writing – and the instrument of attorney intended to circulate towards the other system, whose form is modelled on the final act to be performed and on the system of destination. The first does not replace the second; treating them as a single document is a source of invalidity.
The second concerns the informed choice of the route for forming the power of attorney. When the Italian client must act in Turkey, the consular route and the domestic notarial route with apostille are not equivalent: the former generates an act that is already Turkish, immediately exercisable and conforming to the local model; the latter is faster and less burdensome for the client, but requires the subsequent apostille and the sworn translation. The choice is made according to the form required by the Turkish system for the final act.
The third concerns the completeness of the inbound documentary chain. When the Turkish client must act in Italy, the special power of attorney, authenticated, apostilled and translated, must always be accompanied by proof of the entity's representative powers – signature circular and chamber certificate – likewise apostilled and translated. The omission of such documentary support exposes the entry of appearance to challenge on the plane of standing.
The fourth, and most general, concerns the organisational model. The reliable management of Italy-Turkey matters does not rest on the occasional sourcing of a foreign correspondent, but on a stable structure of coordinated dual representation, in which the lawyer of the client's system retains the strategic direction and acts as sole point of reference, while the lawyer of the forum's system carries out the local activity on the basis of a power of attorney formed according to the correct chain. It is in this stable division of tasks, and in the shared command of the documentary chains described, that the difference lies between a cross-border matter that is managed and one that is merely improvised.
In conclusion, the cross-border mandate is not a preliminary bureaucratic formality, but the very foundation of the validity of everything that follows. Care in its formation and in its circulation – the right route of authentication, the correct authority for the apostille, the sworn translation, compliance with the conventional channels of service – is the first and most concrete manifestation of competence in cross-border litigation and advisory work.
Notes
[1] Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. Turkey acceded on 31 July 1985, with entry into force on 29 September 1985; Italy is a party. In Italy the apostille is affixed, for notarial and judicial acts, by the Public Prosecutor's Office at the territorially competent Tribunal, and, for administrative acts, by the Prefecture - Territorial Office of the Government.
[2] Article 25 of Law No 218 of 31 May 1995 (reform of the Italian system of private international law): companies, associations, foundations and any other entity are governed by the law of the State in whose territory the incorporation procedure was completed.
[3] The principle referred to in the text reflects the consolidated orientation regarding the validity of the procedural power of attorney granted abroad and the need for the relative apostille and translation. Before any concrete application, verification of the most recent rulings of the Court of Cassation is recommended, given the evolution of the matter; the reference is here formulated in terms of principle and not as a citation of a specific decision.
[4] Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, ratified and made enforceable in Italy by Law No 42 of 6 February 1981; Turkey is a party. Also applicable, in Italy-Turkey relations, is the bilateral Convention of 10 August 1926, made enforceable in Italy by Law No 1076 of 24 July 1930.
Atty. Irmak Kasapoglu and atty. Alberto Agostini. Bologna, 31 May 2026. A contribution of Studio Agostini & Kasapoğlu, Italy-Turkey cross-border advisory practice.
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