The Legal 500

Focus item in this edition: Bounced Cheques (also see Banking & Finance Q1/2012)

Focus items for this edition are: Declaration of Assets & Imprisonment

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.

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.

New Code of Civil Procedure

In the decision of the Court of Appeals dated 8 March 2010 (File No:2009/9310) the argument was whether or not it is possible to consider the dissolution of a company within the context of Article 337/a of the Execution and Bankruptcy Code (Law No.2004) which states that if a merchant quits his or her trade activities, he or she must submit a declaration of wealth to the Trade Registry showing all of his assets and liabilities and the names and addresses of his creditors within 15 days.

There are a variety of tools available (both statutory and common law based) to enable disclosure to be obtained from third parties involved in fraud. 

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.

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.

The latest quarterly Pekin & Pekin Legal Newsletter has been published. Outlining key developments in the past three months, the newsletter is an essential source of concise information for those outside of Turkey keeping track of legislative changes. This quarter looks at new investment and funding initiatives, the continuing introduction of new capital market instruments, tax breaks for R&D and new regulatory developments in the telecoms sector.

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.

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.

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.

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)

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.

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

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.”

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’).