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Editorial

Press releases and law firm thought leadership

This page is dedicated to keeping readers informed of the latest news and thought leadership articles from law firms across the globe.

If your firm wishes to publish press releases or articles, please contact Shehab Khurshid on +44 (0) 207 396 5689 or shehab.khurshid@legalease.co.uk

 

Turkey signs the Singapore Convention: A New Era in Enforceability of Mediation Agreements

Turkey signs the Singapore Convention: A New Era in Enforceability of Mediation Agreements in Foreign Countries

The mediation procedures have become a mandatory stage of commercial litigations in Turkish Law as of January 01, 2019. After only 4 months of practice, it appears that the success rate of mandatory mediation procedures is %65, according to the data published by the Mediation General Office of Justice Ministry of Turkey. As the national mediation procedure seems to be useful thus far, Turkey took a new step and signed the United Nations Convention on International Settlement Agreements Resulting from Mediation be known as the "Singapore Convention on Mediation" ("Convention"), which provides enforceability to international mediation agreements, on August 07, 2019 in Singapore.

Opinion of the Court of Cassation on the Contention of Expert Opinion and Expert Report

The notion of Expert Opinion, which entered into our law through the Code of Civil Procedure ("CCP"), has been a frequently resorted to method of helping to resolve disputes by the parties in our judicial system over the course of time...

Decision of the Court of Cassation General Assembly on the Unification of Judgments holding that an

In civil procedural law, a ban on the expansion and alteration of a claim and defense comes with two exceptions; the other party's consent, and "the amendment". The parties may completely or partially amend their proceedings prior to the end of the investigation phase. Provided that the legal requirements are fulfilled, an amendment may be filed without the consent of the other party or the court, since it is a unilateral and express declaration of will directed at the court 1. For instance, the parties may amend the value of the claim, or claim compensation, instead of payment in kind for defective goods.

Amendments Introduced through Law No. 7101 on Arbitration Proceedings

State courts have very important functions concerning arbitration proceedings. These functions may aim to provide assistance to arbitration proceedings, such as collection of evidence through state courts, which would support the functions of the tribunal, or functions aimed at supervision of arbitration proceedings, such as set-aside actions. The legal provisions regulating these functions play an important role in the determination of whether a particular state has an arbitration-friendly legislation.

Amendment of ICSID Rules and Regulations

At the 2016 Annual Meeting of the Administrative Council, the International Centre for Settlement of Investment Disputes ("ICSID") launched an amendment process on its' rules and regulations ("ICSID Rules and Regulations"). This has been the fourth amendment process since 1984, 2003 and 2006. As per Article 6 of the ICSID Convention, the amendments will only be effective upon the approval of two-thirds of the contracting states2. Hence, ICSID invited contracting states and the public3 to provide their amendment suggestions on topics worthy of consideration, which will be used as background papers throughout the process.

Challenging Arbitrators and LCIA Challenge Decisions

Introduction

It is essential that all arbitrators are and remain, independent and impartial throughout the arbitration. Almost all institutional rules contain a provision requiring arbitrators to be impartial and independent. Examples include Article 14 of the ICC Rules where “lack of impartiality or independence” is a ground for challenging the arbitrators and Article 10 of the LCIA Rules and Article 12 of the UNCITRAL Arbitration Rules where “justifiable doubts as to the arbitrator's impartiality or independence” is foreseen as a valid ground for challenge. Other grounds for challenge include arbitrators acting contrary to the arbitration agreement and the arbitrator’s qualifications.

Disputes on Health-Related Commercial Advertisements under Consumer Law

Introduction

The Law on Protection of Consumers No. 6502 (the "Law") is published in the Official Gazette on November 28, 2013 and entered into force on May 28, 2014. Article 1 of the Law specifies the purpose of the Law as "to take measures that protect the health, safety and the economic interests of the consumer ... in order to inform and educate the consumers in accordance with public interest". Regulation and supervision of advertisements are considered as necessary tools to protect consumers. Therefore the Law includes detailed provisions on advertisements, which are supported by the secondary legislation, i.e. the Regulation on Commercial Advertisement and Unfair Commercial Practices (the "Regulation").

AMENDMENTS OF PERIOD OF APPEALS OF TURKISH COURT DECISION INCIVIL AND CRIMINAL JUSTICE SYSTEMS

Regional Courts of Appeals started to operate as from July 20, 2016 and the Turkish Legal System adopted one more instance to its two (2) instance system, being transformed to a three (3) stage system.

In the new system, Regional Courts of Appeals operates as second instance and the Supreme Court of Appeals is the third instance.

Awards of excessive compensation under Turkish Intellectual and Industrial Property Law

Introduction

Article 17 of the Turkish Constitution provides that "Everyone has ... the right to protect and improve his/her corporeal and spiritual existence." Based on this provision of the Turkish Constitution, the general principles of indemnity law will apply to any violation of personal rights. Article 49 of the Turkish Code of Obligations provides the general principle for indemnification under Turkish law and states that "Whoever damages someone else with an unlawful and culpable act is obligated to compensate that damage."

The New ICC Arbitration Rules

As of 1 March 2017, the new Arbitration Rules of the International Chamber of Commerce (“New ICC Rules”) have come into effect and superseded the former version of the ICC arbitration rules, which have been in effect since 2012.

2016 FCPA Enforcement Actions and Highlights

Overall, this was a more active year for FCPA enforcement actions when compared to 2015. This year, Department of Justice ("DOJ") took a total of 10 enforcement actions and Securities and Exchange Commission ("SEC") took a total of 25 enforcement actions. Like last year, SEC is more active than DOJ, in terms of numbers of the enforcement actions. Of the 10 enforcement actions taken by DOJ, only 1 of them was related to a real person. Of the 25 SEC enforcement actions 4 of them were related real persons.

Changes in Appellate Review System

I. Introduction

The current Law on Civil Procedures (the "LCP") numbered 6100 had entered into force on October 1, 2011 but the new appellate procedures introduced by the Law numbered 5235 on September 26, 2004 and repeated in the LCP had not entered into force due to the fact that regional courts of justice hadn't been established and non-operational. Now finally, on July 20, 2016, regional courts of justice have become operational and therefore the new appellate procedures have entered into force, which changed the one-tier appellate review system constituted by merely the appellate review of Court of Appeals, into a two-tier appellate review system where another appellate review will be conducted by regional courts of justice before the review of Court of Appeals.

Debt Collection in Turkey

Under Turkish Law, a creditor is granted the right to collect its receivable in two ways. Firstly, it can initiate litigation procedures by filing an action of debt before local courts. The other way is to initiate executive enforcement proceedings (enforcement proceedings without judgement) before execution offices.  

High Court of Appeals Interprets General Transaction Terms Articles of Turkish Code of Obligations

Standard Terms Practice in Turkey:

The High Court of Appeals Interprets the General Transaction Terms Articles of the Turkish Code of Obligations

I.         Introduction

The corporate life in present conditions requires a precautional approach and a precise predictability so that the main idea of business, making money, is maximized. This main motive leads some institutions (hereinafter referred to as "contractor"), especially the banks, to prepare well-designed, juridically controlled, ex parte (prepared by one party only) contracts to use in numerous transactions. The pre-drafted provisions contained in these kinds of model contracts are named as "standard terms".

Interim Relief

The Interim Relief is regulated under the Turkish Procedural Law numbered 6100 ("TPL"). According to the legislation, the court can provide any kind of interim relief that has the effect of preventing the claimant incurring damages before resolution of his claim or, such as (i) freezing or securing goods or rights, (ii) ordering the defendant to take, or not to take, a certain action (for example, annotation to the title deed preventing its transfer, prohibiting the transfer of shares of a company, and so on).

Liabilities of Primary Employer and Subcontractors in case of a Collusive Contract

Growing economy and competitive environment in Turkey has been leading companies to seek more profitable ways to conduct their business. Therefore companies have chosen to engage in subcontracts for the purpose of reducing their costs. Yet, to serve such purpose, at some point companies have started utilizing subcontracts to limit employees' entitlements through collusive contracts. Labor Law numbered 4857 (the "Labor Law") and Bylaw on Subcontractor dated September 27, 2008 (the "Bylaw") regulate which services or works may be subcontracted and strictly prohibit collusive contracts. According to Article 2/7 of the Labor Law, a collusive subcontract is considered null and void. Such nullity of subcontract automatically results in primary employers being redefined as main and sole employers of employees assigned to subcontracted work. Consequently, primary employers are solely responsible for employees' rights arising from subcontracted works and technically, primary employers would not have the option to recourse to subcontractors in order to claim any compensation due to their sole responsibility.

This article discusses the recent decisions of High Court of Appeals stating that subcontractors cannot evade liabilities against employees assigned to subcontracted works despite the regulation under Article 2/7 of the Labor Law.   

Legal Remedy Against Decisions About Precautionary Attachment

In this article, we have reviewed the legal opinion and information about rejection of precautionary attachments and decisions considering Code of Civil Procedure ("Code") numbered 6100 and Court of Appeal Assembly of Civil Chambers Precedent Decision numbered 2013/1 E. 2014/1 K. 

AS OF 1 OCTOBER 2011 TURKEY HAS A NEW CODE OF CIVIL PROCEDURE REGULATING DOMESTIC ARBITRATION

In Turkey, the Code of Civil Procedure and the International Arbitration Act (“IAA”) provide the statutory basis for the settlement of disputes by arbitration. Domestic arbitrations are subject to the Code of Civil Procedure and international arbitrations are governed by the IAA.

Global Litigation & Arbitration - Turkey

October 2011 - Litigation & Dispute Resolution. Legal Developments by Paksoy.

More articles by this firm.

To glean an insider’s insight into the issues of litigation and arbitration across the world, Lawyer Monthly also speaks to Serdar Paksoy, the founding and senior partner of Paksoy, a full-service law firm in Istanbul, to find out about these issues in Turkey. Paksoy provides services in all major practice areas including litigation and arbitration, competition law, banking and finance, capital markets, corporate and commercial, mergers and acquisitions, privatisations, and real estate.

MEDIATION: TURKEY ON THE VERGE OF A NEW TERRITORY?

December 2009 - Litigation & Dispute Resolution. Legal Developments by Paksoy.

More articles by this firm.

Since 2007, the Turkish government has been working on a mediation model for the settlement of disputes. The Draft Law on Mediation of Civil Disputes (the "Draft Law") is currently pending for the review by the justice sub-commission of the Turkish Parliament. Following the review of the sub-commission, the Draft Law will be voted on in Parliament in order to be enacted.

THE ENFORCEMENT PROCEDURE OF ARBITRAL AWARDS IN TURKEY

Foreign judgments including the ones from arbitration courts or tribunals become recognizable under Turkish law via separate judgment of the Turkish Courts called ‘recognition and enforcement decisions’(in Turkish the procedure is named ‘tenfiz’). Following such decisions by Turkish Courts, the foreign judgment or arbitral award becomes enforceable in Turkey as a Turkish Court decision and any monetary debt may be collected accordingly through execution filings dependent on the execution (bailiff) offices of the Courts.

Medical Malpractice:Critique of the Turkish and American Approaches to Awarding Non-Economic Damages

When a doctor makes an error in your treatment, what legal compensation will be available? This is the central question in current medical malpractice litigation, one that is not easily answerable and that depends largely on the country in which you live. In the United States the past several decades have seen a rise in the number of medical malpractice suits, and escalating insurance premiums for healthcare providers amidst continued reports of medical error. In recent years the increase in medical malpractice litigation has been coupled with larger non-economic damage awards, reflecting concerns with maintaining quality care and holding healthcare professionals to acceptable standards of conduct. At the same time, such high awards have led state legislatures nationwide to respond with statutory limits on punitive and non-economic medical malpractice damages, in part due to concern that the risk of prohibitive legal expenses will drive competent, needed doctors out of the profession.

DEVELOPMENTS IN TURKISH INSOLVENCY LAW

The law governing Turkish Insolvency procedures known as the Execution and Bankruptcy Law (the EBL) (Icra Iflas Kanunu) has in previous years been amended twice and has introduced new procedures for ailing companies. In this article, we will take a look at these procedures.

Settling Investment-Related Disputes: Implementation of the Washington Convention

The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention) provides for the settlement of disputes arising directly from an investment between a contracting state and a national of another contracting state.

Enforcement of Foreign Arbitral Awards

Two legislative sources apply to the enforcement and recognition of international arbitral awards in Turkey. They are Articles 60 to 63 of the Code of International Private and Procedural Law (1) (Law 5718) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.(2)

Statutory Mechanisms for Arbitration

In Turkey, the Civil Procedure Law and the International Arbitration Act (1) provide the statutory mechanisms for the settlement of disputes by arbitration. Domestic arbitrations are subject to the Civil Procedure Law, while international arbitrations are governed by the International Arbitration Act.

Institutional Arbitration in Turkey: the Istanbul Chamber of Commerce

The Istanbul Chamber of Commerce (ICOC) has been operating as an arbitration institute since 1979. With the purpose of making Istanbul an arbitration-friendly jurisdiction, the ICOC acts as the principal institute for providing services to parties to a commercial dispute seeking settlement through arbitration. Thus far, 270 disputes have been settled through ICOC arbitration. Such disputes have involved both Turkish parties and foreign entities

Prison Sentences for Monetary Debts in Turkey

According to Article 38 of the Turkish Constitution (TC) “No one shall be punished for any act, which does not constitute a criminal offence under the law in force at the time committed; no one shall be given a heavier penalty for an offence other than the penalty applicable at the time when the offence was committed.” In addition, a new clause has been added to 38th Article with the amendment No.4709 dated October 3, 2001. As per this clause “No one shall be deprived of his liberty merely on the ground of inability to fulfill a contractual obligation.”

New Condominium Law and Building Management Plans

As the real estate market develops in Turkey the Condominium Law is becoming the center of attention. Turkish Parliament amended the Condominium Law No. 634 with a new Law No. 5711 and it was published in the Official Gazette at November 28, 2007 (‘Turkish Condominium Law’ or ‘TLC’).