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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

 

Legal Developments Worldwide

Articles contributed by ELIG, Attorneys-at-Law

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Determination of Injury in Anti-Dumping Investigations: Turkey’s Side of the Story

April 2017 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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I - Introduction

In a world ruled by the global economy, protection of international trade from unfair competition holds great importance. Unfair competition can develop out of various trade forms such as dumping or subsidy. Between global players, such protection against these forms is maintained through customs taxes and other similar foreign trade policies like anti-dumping measures.

Quarterly Update on Anti-Dumping Cases in Turkey

April 2017 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Processing Personal Data Based on Legitimate Interest: A Comparison of Turkish Data Protection Law

March 2017 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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Processing Personal Data Based on Legitimate Interest: A Comparison of Turkish Data Protection Law, the Directive 95/46/EC and the GDPR 

Turkey's first and only law specifically dedicated to data protection and privacy, the Law No. 6698 on Protection of Personal Data ("Law No. 6698"), came into force on April 7, 2016 with certain transition periods. The Data Protection Board has been formed, but is not yet functioning. The secondary legislation is still pending, although certain sector-specific regulations have been put in place, and is expected to be completed by April 7, 2017.

Mandatory Mediation Under Turkish Labor Law

February 2017 - Employment. Legal Developments by ELIG, Attorneys-at-Law .

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I.        Introduction

An alternative dispute resolution method is expected to be introduced in Turkey shortly through the Draft Law on Labor Courts ("Draft Law"). The purpose of the Draft Law is to bring a functional and an effective judicial procedure for labor conflicts via mandatory mediation and to replace the current regulations.

Recent Developments and Legal Landscape on Procurement of Medicines from Abroad

January 2017 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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I - Introduction and Recent News on the Assignment of the Duties to Social Security Institution

In Turkey, import and sale of medicines are subject to licensing requirements of the Ministry of Health ("Ministry"). The principle is that medicines which are not licensed in Turkey cannot be put on the Turkish market. "Procurement of medicines from abroad" mechanism, on the other hand, brings an exception to this rule.

Violation of a Constitutional Right on the Internet: Protecting the Right to Privacy

January 2017 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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The Turkish Constitutional Court recently decided that the right to privacy can be violated on the Internet.  The court's decision numbered 2014/16701 ("Decision") was delivered on October 13, 2016 and concerned a military officer's dismissal from the Turkish Armed Forces ("TAF"). The ground of the dismissal was that the officer's private life is not suitable for TAF's ethical code of conduct and this information was provided from the images which were broadcasted on the Internet.  The officer ("applicant") individually applied to the Turkish Constitutional Court claiming that the principle of proportionality was not considered in the dismissal and his right to privacy was violated since the evidence is obtained unlawfully.  

Turkey Amends its Advertisement Regulation

January 2017 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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Turkey's main regulation regarding advertisements, the Regulation on Commercial Advertisement and Unfair Commercial Practices ("Regulation") was amended with another regulation published on the Official Gazette of 4 January 2017, effective immediately. Those who advertise their products and services, advertisement agencies and the media that publishes such advertisement should abide by the Regulation.

2016 FCPA Enforcement Actions and Highlights

January 2017 - Litigation & Dispute Resolution. Legal Developments by ELIG, Attorneys-at-Law .

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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.

Regulation on Processing and Protecting the Privacy of Personal Health Data

December 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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The Regulation on Processing and Protecting the Privacy of Personal Health Data ("Health Data Regulation") has recently been published on the Official Gazette, on October 20, 2016 and came into force on the same date.

This regulation is not only applicable to the health institutions and the data subjects whose personal data is processed, but also covers real persons and legal entities who process health data within the scope of a legislation. Therefore, all companies processing health data for reasons such as employment procedures, periodic inspection or due to obligations arising from social security legislation will be subject to the provisions of the Health Data Regulation.

DEVELOPMENTS ON COASTAL INVESTMENTS: New Communiqué on National Estate No. 373

November 2016 - Real Estate & Property. Legal Developments by ELIG, Attorneys-at-Law .

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Introduction

On October 8th 2016, the General Communiqué on National Estate No. 373 (“Communiqué”) has been published on the Official Gazette. The Communiqué governs principles regarding easement right and/or right of usage to be granted to financers for them to construct marinas, landing stages, piers and berths on state-owned or treasury lands.

The Communiqué brings an in-depth roundup for coastal investments, extending from the principles as to the tender process for granting the easement right, to the liabilities of the financers. To that end, there is no doubt that the Communiqué will draw the attention of investors contemplating to invest in coastal structures.

Transparency International Publishes 2016 Corruption Barometer for Europe and Central Asia

November 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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Transparency International ("TI") has published its regional Corruption Barometer for Europe and Central Asia ("Report") on 16 November 2016.

Turkey’s request for consultations against Morocco’s anti-dumping measures

November 2016 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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I          Background

 

In September 2014, following an anti-dumping investigation period, Morocco has imposed an 11 % tax duty against Turkish hot-rolled steel exporters which has created fuss in Turkish hot-rolled steel market and exporters.

 

Upon Morocco's anti-dumping measures on hot-rolled steel, in October 2016, Turkey has filed a "Request for Consultations" against Morocco before the World Trade Organization ("WTO")[1]. In its request for consultations, Turkey alleges that anti-dumping duties imposed by Morocco in September 2014 on imports of Turkish hot-rolled steel are inconsistent with a number of procedural and substantive provisions of the WTO's Anti-Dumping Agreement, the Agreement on Import Licensing Procedures as well as the General Agreement on Tariffs and Trade 1994.

See at  https://www.wto.org/english/news_e/news16_e/ds513rfc_05oct16_e.htm

 

Recent Developments in the Anti-Corruption Regulations in France and Germany

November 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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Since the enactment of the Foreign Corrupt Practices Act ("FCPA") on 1977, USA has been the leading the international fight against corruption. FCPA sets forth a standard for other jurisdictions in its extraterritorial and rigorous enforcement of its rules and regulations against corruption. In addition, OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions ("Convention") has been another push force in the field, obliging its signatories on a global scale to strengthen their laws to fight international corruption. Following the US leadership and acting under the awareness raised by the Convention on the issue, recent years witnessed legislative developments from many countries which sought more effective ways of fighting corruption.  This article will focus on two of the recent legislative updates in the arena of fighting corruption, namely, the developments in France and Germany.

Comparative approach to general principles of processing personal data

October 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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Law 6698 on the Protection of Personal Data came into force on April 7 2016 and applies to:

  • real persons whose personal data is processed; and

  • real persons and legal entities that process personal data.

Therefore, defining the actions and main actors involved in the processing of personal data is key to understanding the law's general scope.

Comparative approach to general principles of processing personal data

October 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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Introduction

Law 6698 on the Protection of Personal Data came into force on April 7 2016 and applies to:

  • real persons whose personal data is processed; and

  • real persons and legal entities that process personal data.

Therefore, defining the actions and main actors involved in the processing of personal data is key to understanding the law's general scope.

Comparative analysis of self-reporting & cooperation mechanisms under FCPA & Turkish Criminal Code

October 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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This year, Vimpelcom, a telecommunications company based in the Netherlands, has agreed to pay $397 million to US authorities to settle the charges that it made corrupt payments to Uzbek officials.

Comparative analysis of self-reporting & cooperation mechanisms under FCPA & Turkish Criminal Code

October 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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This year, Vimpelcom, a telecommunications company based in the Netherlands, has agreed to pay $397 million to US authorities to settle the charges that it made corrupt payments to Uzbek officials.

Single Continuous Infringement Concept and the Practice of the Turkish Competition Authority

September 2016 - Human Resources. Legal Developments by ELIG, Attorneys-at-Law .

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The concept of a single continuous infringement ("SCI") enables competition authorities to consider a series of agreements or conducts that have the same objective to distort competition in the market as one single continuous infringement. Similar to the approach in the European Union, the Turkish Competition Authority (Authority) also considers this concept while assessing a case under Article 4 of Law No 4054 on the Protection of Competition of 13 December 1994 (Law No 4054), which is akin to-if not the same as-Article 101 of the Treaty on the Functioning of the European Union (TFEU).

Exemptions under Data Protection Law

August 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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The Data Protection Law came into force on April 7 2016. It applies to:

  • real persons whose personal data is processed; and
  • real persons and legal entities that process such data (wholly or partly) by automatic means or as part of a data filing system by non-automatic means.

Therefore, the general scope of the law is broad and similar to the EU Data Protection Directive (95/46/EC).

Changes in Appellate Review System

August 2016 - Litigation & Dispute Resolution. Legal Developments by ELIG, Attorneys-at-Law .

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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.

An Overview of Margin Squeeze in Turkish Competition Law

July 2016 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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I.     Overview

Article 6 of Law No. 4054 on the Protection of Competition (the "Law No. 4054") entitled  "Abuse of Dominant Position" provides a general prohibition of abuse and a non-exhaustive list of examples. Although the list does not specifically categorize margin squeeze (or price squeeze) as a form of abuse, margin (price) squeeze was listed as a form of exclusionary abuse under the Guidelines on the Assessment of Exclusionary Abusive Conduct by Dominant Undertakings published in January 2014.

Legal Due Diligence: Most Common Vulnerabilities of Turkish Companies

June 2016 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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Although it is difficult to provide one global definition for the term "due diligence", we are going to use it below in the sense of an examination, through which a prospective buyer would obtain information about the target entity.  The need for a due diligence usually arises in the context of a takeover, be that an asset deal or a share deal, or it may sometimes be simply utilized for internal purposes. Our discussion below is based on the context of a share deal.

Cross-border data transfer rules under Data Protection Law

June 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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The Data Protection Law, Turkey's first dedicated general data protection law, was published in the Official Gazette on April 7, 2016. 

DOJ Launches FCPA Pilot Program for Voluntary Self-Disclosure – What does it offer?

May 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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On April 5th, 2016, the Department of Justice ("DOJ") announced the Foreign Corrupt Practices Act Enforcement Plan and Guidance ("Guidance") which aims to ensure greater accountability for Foreign Corrupt Practices Act ("FCPA") violations and provide greater transparency for companies with regard to mitigation.

Circular: Improving Transparency & the Fight against Corruption

May 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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On April 30th, 2016, the Turkish Prime Ministry published on the Official Gazette, the Circular No. 2016/10 on Increasing Transparency and Strengthening the Fight against Corruption ("Circular").

Registration of Layout of a Store as Trademark

May 2016 - Intellectual Property. Legal Developments by ELIG, Attorneys-at-Law .

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I.         Introduction

Could design and layout of a retail store be registered as a three-dimensional trademark? Apparently yes.

Comparison of Turkish Data Protection Law with EU Directive 95/46/EC

May 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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Turkey's newly enacted Law on Protection of Personal Data ("Law") is based on EU Directive 95/46/EC ("Directive") on protection of individuals with regard to the processing of personal data and on the free movement of such data. Although the Law is mainly based on the Directive, it is not identical and it differs from the Directive in certain points.

The Benchmark for an Advertising Slogan to be Registered as a Trademark in Turkey

May 2016 - Intellectual Property. Legal Developments by ELIG, Attorneys-at-Law .

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Advertising slogans are, in a nutshell, short expressions or idioms that brand owners use in advertising in order to make the advertised product or service remembered easily and also to have the slogan be associated with the product, thus the brand. A powerful advertising slogan is created after quite a costly and time-consuming endeavor and therefore is worth being protected, since use of similar slogans may confuse the public about the commercial origin of the product/service that is advertised with that particular slogan.

Data Protection Update: Data Protection Law is Approved by the Turkish Grand National Assembly

April 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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The Law on Protection of Personal Data ("Data Protection Law"), which is mainly based on Directive 95/46/EC, is approved by the Turkish Grand National Assembly ("TGNA") on March 24, 2016. Data Protection Law will now be sent to the President for approval and publication. The President will have fifteen (15) days to publish the law approved by the TGNA, unless he has any objections that compel him to return the law to TGNA for reevaluation.

Regulation Regarding Systemically Important Banks

April 2016 - Finance. Legal Developments by ELIG, Attorneys-at-Law .

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The Banking Regulation and Supervision Agency ("Agency") has recently published the Regulation Regarding Systemically Important Banks ("Regulation") on the Official Gazette, dated February 23, 2016 and numbered 29633. The Regulation has entered into force on the same date, as per its enforcement provision, Article 13. Our aim is to provide the reader with brief information as to the purpose and content thereof.

Data Protection Update

February 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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Data Protection Update: The Law on Ratifying the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of the Council of Europe is published in the Official Gazette

Amendments Made in the Electricity Market Licensing Regulation

February 2016 - Projects, Energy & Natural Resources. Legal Developments by ELIG, Attorneys-at-Law .

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I.     Introduction

Electricity Market Licensing Regulation ("Regulation"), introduced by Energy Market Regulatory Authority ("EMRA"), regulates (i) pre-licensing and licensing procedures and (ii) rights and liabilities of pre-license and license holders in the Turkish electricity market. 

The Regulation has been recently amended by EMRA with the Regulation Amending the Electricity Market Licensing Regulation ("Amendment Regulation"). The Amendment Regulation has been published in the Turkish Official Gazette on December 23, 2015 and entered into force on its publication date.

Financially Distressed Companies under Turkish Commercial Code

January 2016 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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Introduction

To provide a definite scope of what is stipulated under law, thus what we will delve into in this article, the starting point would be to define what would constitute a financially distressed company.

Amendments Made In the Non-Cash Payment Regulation: A Brief Outline

January 2016 - Finance. Legal Developments by ELIG, Attorneys-at-Law .

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I          Introduction

In Turkey, principles and details as to the authorization and operations of payment institutions and electronic money institutions are covered by the Regulation on Payment Services and Electronic Money Issuance and Payment Institutions ("Regulation") introduced by the Banking Regulation and Supervision Agency ("BRSA").

An Analysis of Remedies in Concentrations under Turkish Competition Law

January 2016 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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I. Introduction

Merger remedies have an important role in the assessment of problematic concentrations which also create certain efficiencies. Since 2014, the number of the transactions that have been made subject to Phase II review by the Turkish Competition Board has shown increase. In connection with this trend, it is also observed that remedies are implemented to remove competition law concerns raised by some of these mergers. Accordingly, the importance of conditional clearances and the remedies has been strengthening under Turkish merger control regime.

Risk, Compliance and Liability: International Reflections on Turkish Anti-Money Laundering System

January 2016 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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Over the years, the anti-money laundering landscape has become a risky arena, especially for companies active in the financial sector. The risk demonstrates itself as increasingly demanding regulatory requirements, the possibility of multiple enforcement actions for companies active in multiple jurisdictions and sky-rocket fines, as well as criminal enforcement against those liable.

Comparative Advertising Is Postponed In Turkey

January 2016 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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The effective date of the regulation, subject to our article published in November 2015 titled "Turkey Green-Lights Comparative Advertising", which will allow using components related to competitors' goods, trademarks, trade name and services in the advertisements in Turkey is postponed to the end of 2016.

Turkey Update: Protecting Personal Data of E-Commerce Consumers in Turkey

December 2015 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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Data protection is an important key to maintain the consumer's trust to e-commerce environment. E-Commerce Law and two secondary legislations based on the foregoing law are introduced in Turkey in 2015. Recent e-commerce consumer reports show that data protection and security concerns are known to be the most significant concerns of consumers, keeping them away from online sales.

Turkey Green-Lights Comparative Advertising

November 2015 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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At the beginning of 2015, Turkish Ministry of Customs and Trade issued a new regulation on the principles and procedures pertaining to advertising and abrogated and replaced the outdated regulation of 2003. The regulation ended the prohibition for comparative advertising and included a provision which allows using components related to competitors' goods, trademarks, trade name and services in the advertisements. This provision will enter into force January 10, 2016. The comparative advertising by indicating the competitors' names, trademarks, logos and titles will be legal in Turkey and this may yield to brand new legal disputes between competitors regarding their advertisements.

MONITORING EMPLOYEES

November 2015 - Employment. Legal Developments by ELIG, Attorneys-at-Law .

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I.       Introduction

Employers are, within the scope of their managerial right, obliged to preserve the order in workplace and in consideration of that, employees are obliged to work diligently due to the duty of loyalty. In that respect, employers have the right to request from employees to abstain from spending non-work-related time in the workplace. Then again, employers' practices to that end cannot violate the right of privacy and freedom of communication. In order to avert such practices causing violations in that respect, certain stipulations are introduced, through the legislation and the precedents of Court of Appeals' to restrict employers' right to monitor employees. This article will examine such and its boundaries.

BANKING REGULATION AND SUPERVISION AGENCY’S GUIDANCE

October 2015 - Finance. Legal Developments by ELIG, Attorneys-at-Law .

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BANKING REGULATION AND SUPERVISION AGENCY'S GUIDANCE: How to Deal With Global Players and Bitcoin in Turkey?

It is safe to say that electronic money and payment services are creating one of the fastest growing markets worldwide.

How to Build a Legitimate Commercial Electronic Communication Structure

October 2015 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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How to Build a Legitimate Commercial Electronic Communication Structure: Shedding Light unto Dark Spots of the Legislation

Recent legislative updates on commercial electronic communications changed the whole commercial e-communication structure between the companies and customers in Turkey. E-commerce Law (i.e. Law on Regulation of Electronic Commerce) and its Regulation (i.e. Regulation on Commercial Communication and Commercial Electronic Communications) are enacted consecutively, and they introduced strict processes for businesses. Aim of this piece is to highlight main weak spots and disorienting points of the Regulation, guide companies on how to proceed in a manner to balance the rights of consumers and protect their business structure, and bring a clear legal understanding on the debated matters.

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

September 2015 - Litigation & Dispute Resolution. Legal Developments by ELIG, Attorneys-at-Law .

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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".

Foreign-controlled Turkish companies’ acquisition of immovable properties within SPAs

August 2015 - Real Estate & Property. Legal Developments by ELIG, Attorneys-at-Law .

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How to address the statutory restriction on foreign-controlled Turkish companies' acquisition of immovable property within share purchase agreements?

The Title Deed Law numbered 2644 ("Title Deed Law") allows foreign-controlled Turkish companies to acquire immovable properties with no limitations, apart from properties within or near military or security zones. Such a seemingly straightforward system gets rather complicated with the ‘clearance' mechanism set-forth by the secondary legislation regarding the exception on the military/security zones. The following is a brief outline regarding this limitation, the relevant clearance mechanisms and how to address the risk of "no clearance" in share purchase agreements ("SPA").

How to Prevent Bribery: An Analysis of the OECD Foreign Bribery Report

July 2015 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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A company engaging in corrupt behavior risks significant legal repercussions due in part to the regulatory and enforcement changes that occurred in the last few years.

TIER II Loans and its Ranking Under Turkish Law

July 2015 - Finance. Legal Developments by ELIG, Attorneys-at-Law .

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The Basel Committee on Banking Supervision proposed reforms after 2007, known as Basel III. The Basel Committee, including Turkey, decided to implement Basel III starting from 2013 until 2019.

COUNTDOWN FOR ELECTRONIC PAYMENT SERVICES IN TURKEY

June 2015 - Finance. Legal Developments by ELIG, Attorneys-at-Law .

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REMINDER ON THE REGULATORY FRAMEWORK ON PAYMENT INSTITUTIONS AND ELECTRONIC MONEY INSTITUTIONS

I          Introduction

A year ago, long-awaited secondary legislation of the Law on Payment and Securities Settlement Systems, Payment Services and Electronic Fund Institutions ("Law") structuring the details of payment systems and payment services, the Regulation on Payment Services and Electronic Money Issuance and Payment Institutions and Electronic Money Institutions ("Regulation") and the Communiqué on the Management and Audit of Payment Institutions and Electronic Money Institutions' Data Systems ("Communiqué") slightly relieved the sector players after its publication on June 27th, 2014.

Appointed Members of the Turkish Competition Board Published on Official Gazette on June 24, 2015

June 2015 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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The three vacancies of the Turkish Competition Board ("Board"), the competent decision-making organ of the Turkish Competition Authority, which have been vacant for almost three months, have now been filled.

AN OVERVIEW ON THE TURKISH COMPETITION BOARD’S RECENT PHASE II DECISIONS

June 2015 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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I.  Introduction

Following the introduction of the amendments regarding the turnover thresholds under Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board ("Communiqué No. 2010/4") by Communiqué No. 2012/3 on the Amendment of Communique 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board ("Communiqué No. 2012/3"), the merger control review cases reviewed by the Competition Board (the "Board") have been progressively decreasing since 2013. That being said, the Board's Phase II decisions were considerably increased in 2014, which results in strengthening the importance of remedies and conditional clearances under Turkish merger control enforcement.

Assignment of Trademarks and Licensing of Trademarks in Turkey

May 2015 - Intellectual Property. Legal Developments by ELIG, Attorneys-at-Law .

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I. Introduction

Turkish law provides for both the assignment and license of trademarks. It is important to distinguish trademark related rights borne from assignment and licensing as this will determine the scope of rights that are exercisable. 

Protection of Creditors and Employees and Personal Liabilities of Shareholders in Mergers

May 2015 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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Synergies and increase in the assets of the merging companies are aimed at mergers. However, a merger may at the same time result in the increase of the liabilities of the merging companies. Further, in some cases the financial standing of the absorbed company in a merger may not even show positive figures thus such a merger may present a potential risk on the creditors of especially the surviving company. Due to the fact that creditors of the merging entities do not have a veto right against a merger, there arises the need for a specific protection tool for the creditors. A merger may also negatively affect the employees of the merging entities, again especially the ones of the absorbed company. On the other hand, "over-protection" may defeat the purpose of the merger concept so a fairly balanced protection mechanics is essential. This article focuses on the means of protection of creditors and employees, and personal liabilities of shareholders in mergers, as regulated by the Turkish Commercial Code ("TCC").

Ancillary Status of Non-Compete Obligations in the Cement Sector: Issues of Geographic Scope

April 2015 - Corporate and M&A. Legal Developments by ELIG, Attorneys-at-Law .

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In Turkey, non-complete obligations may be evaluated under the scope of "agreements that restrict competition" or "abusive conducts of dominant undertakings" (Article 4 and 6 of Law No. 4054 on Protection of Competition ("Law No. 4054"), akin to Article 101 and 102 of TFEU, respectively).

Notification Requirement of Foreign-to-Foreign Transactions under the Turkish Merger Control Regime

March 2015 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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Per the general application of the effects theory, transactions that do not directly or indirectly  impact Turkish markets are outside the scope of the Turkish merger control regime. The Turkish Competition Board ("Board") applied the effects theory in some of its decisions regarding highly exceptional foreign-to-foreign transactions. However, the precedent line of the Board suggests that a mandatory merger control filing will be required, as long as the parties exceed the turnover threshold applicable under Article 7 of Communiqué No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board ("Communiqué No.2010/4"), regardless of whether the contemplated post-transaction entity will have operations and/or generate turnover in Turkey. This interpretation of the effects theory and the Board's current understanding of this concept are closely related to the notifiability of foreign-to-foreign transactions with extremely low or even no effects in Turkey.

Another Patchwork Amendment to Turkish Internet Law

February 2015 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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There has been a new amendment to the recent legislative proposal ("Proposal") on amendment to the Law No. 5651 on Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651"), which is known as "Internet Law". The amended Proposal is submitted to the Turkish Grand National Assembly ("TGNA") on January 23, 2015.

Assessment of the Turkish Competition Board Decisions Regarding Restriction of Online Sales

February 2015 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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Online sales numerous advantages have rendered them increasingly popular during the past years. The internet, due to its unique characteristics, provides companies with an enlarged geographic scope, thus enabling them to promote their products widely, avoiding, at the same time, the operational costs of a brick and mortar shop. From the customers' perspective, it enhances consumers' variety of choice and their ability to virtually compare prices from several stores.

Turkey: Mitigating Anti-Corruption Risks In Emerging Markets

January 2015 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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With the execution of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the increasing enforcement of the US Foreign Corrupt Practices Act ("FCPA"), multinational companies are more aware of the consequences of corrupt behavior than ever. Due to historically high fines imposed for corrupt behavior, compliance is of crucial concern for companies. This becomes an even bigger issue, when a company begins to conduct business in emerging markets. This is because, emerging markets may be more risky for anti-corruption risks due to the difference in anti-corruption laws and perceptions. Therefore, the adoption of a compliance program and engaging in rigorous third party due diligence as a part of this compliance program becomes mandatory for multinational companies active in emerging markets.

Construction for Allotment Agreements: Distinction between Incomplete Work - Defective Work

January 2015 - Real Estate & Property. Legal Developments by ELIG, Attorneys-at-Law .

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I. Introduction to Construction for Allotment Agreements
A. Definition and Elements

In practice, especially in Turkey, there are numerous types of construction agreements relying on various terms and principles by virtue of the "freedom of contract" principle governing law of obligations. Construction for allotment agreement is the most common one among agreements that diverges from traditional construction agreements.[1] On that note, a traditional construction agreement can be specified as an agreement, pursuant to which the contractor undertakes to construct a specific structure whereas the client undertakes to pay a certain amount in consideration thereto.  

In the light of the foregoing definition by which parties' duties in a traditional construction agreement are elaborated, two basic elements are revealed, construction of a specific structure and making a payment for it. When the parties mutually agree on those basic elements, which constitutes the fundamental aspects of a construction agreement, the agreement is founded and inures effect.  

In a construction agreement, construction of a specific structure is the characteristic (main) performance and this is the contractor's responsibility, scope of which is elaborated through agreement. On the other hand, the client's responsibility is to make the agreed payment to the contractor, which is remuneration for the work undertaken by the contractor.

In a construction for allotment agreement, the client (land owner) promises to transfer a certain land share (allotment) to the contractor whereas the contractor undertakes to construct the agreed independent sections to the land owner.[2]



[1] For detailed information, see. Hasan Erman, Arsa Payı Karşılığı İnşaat Sözleşmesi (Construction for Allotment Agreement), 3. Edition, İstanbul, DER, 2010.

[2] Erman, İnşaat Sözleşmesi (Construction Agreement), p. 4; Cevdet Yavuz, Türk Borçlar Hukuku Özel Hükümler (Turkish Code of Obligations, Special Provisions), İstanbul, 2006, p. 352; Özgür Katip Kaya, Arsa Payı Karşılığı Kat Yapımı Sözleşmesi (Construction for Allotment Agreement), İstanbul, 1993, p. 5.

Review of the Constitutional Court Decision on the Cancellation of Article 42/1 (C) of Law No. 556

December 2014 - Intellectual Property. Legal Developments by ELIG, Attorneys-at-Law .

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Introduction

The Constitutional Court, with its recent decision of April 9th, 2014, numbered 2013/147 E. and 2014/75 K., cancelled Article 42/1(c) of the Decree Law on Protection of Trademarks No. 556 ("Decree Law"), upon request of İstanbul 4th Civil Court for Intellectual and Industrial Property Rights. Article 42/1(c) of the Decree Law, which is subject to the cancellation of the Constitutional Court, stipulated that a registered trademark should be declared null by the court in case it violates Article 14 of the Decree Law.

Article 14 of the Decree Law reads that if, the registered trademark has not been used within a period of five years without a justifiable reason, or if the use thereof has been suspended for an uninterrupted period of five years, the trademark should be declared null. Therefore, following the Constitutional Court's decision on cancellation of the relevant provision, the nonuse of a trademark will not lead to the nullity of a trademark and merely the cancellation of a trademark may be requested. In this article, the principle on compulsory use of trademark and the sanction based on the nonuse of a trademark will be examined. Then, the Constitutional Court's Decision will be evaluated by touching upon its reasons.

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

December 2014 - Litigation & Dispute Resolution. Legal Developments by ELIG, Attorneys-at-Law .

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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.   

Boundaries of the Turkish Competition Authority’s Investigative Powers

December 2014 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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Boundaries of the Turkish Competition Authority's Investigative Powers: Case Handlers vs. Personal Property

Dawn raids are a key form of investigative tool for the competition authorities. Officials may have broad powers to inspect corporate and residential premises, to seize and/or copy documents, e-mails and other records, and to interview employees. European Commission's ("Commission") investigative powers had undergone a dramatic change with Regulation 1/2003 back in 2004[1] and it seems that the Turkish Competition Authority ("Authority") intends to follow its European counterpart in terms of investigatory authority after almost a decade: The draft law ("Draft Law") to amend Law No. 4054 on the Protection of Competition ("Competition Law") which was brought before the Presidency of the Turkish Parliament in January 2014[2], if enacted, will grant additional extended investigative powers to the Authority including the power to inspect not just the undertakings', but also their employees' books, documents and data, preserved in "premises of any nature". Under Competition Law, without any doubt, the Authority currently does not have the right to examine the personal property of an undertaking's employees. This article aims to provide an insight on the Authority's current investigatory powers and practice regarding the collection of personal property and data during inspections, as well as the potential implications of the Draft Law on the right to private life in Turkey.



[1] Wils, W. (2013) Ten Years of Regulation 1/2003 - A retrospective, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2274013>

[2] For further information on the Draft Law, see Gurkaynak, G., On the Verge of Change: Turkish Competition Law (2014), available at  <http://www.mondaq.com/x/290632/Antitrust+Competition/On+the+Verge+of+Change+Turkish+Competition+Law>

 

Potential Consequences of Acquisitions of Minority Shareholdings under Turkish Competition Law

December 2014 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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The acquisition of a minority shareholding may come under the Turkish Competition Authority's ("Authority") scrutiny in two ways, mainly: 1) it may result in de facto or de jure sole or joint control, depending on the rights possessed by the minority shareholders and/or shareholding structures and past voting patterns; and 2) it may not result in control but in cross-shareholding structures amongst competitors in a concentrated market which may raise questions about coordinated effects. This article discusses the circumstances under which the abovementioned consequences may arise under Turkish competition law with references to the relevant legislation and the most noteworthy cases in this regard.

Corporate Governance Tips for Mergers & Acquisitions

December 2014 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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I. Introduction

This article is prepared for demonstrating the role corporate governance issues play in mergers & acquisitions ("M&A"). The term "corporate governance" can be briefly defined as rules introduced by the articles of association of companies, regulations on representation and binding of a company, and mandatory rules of law, which regulate the day-to-day activities, relations between the shareholders, responsibilities and obligations of the directors as well as the shareholders. A provision in the articles of association of the target company in an M&A transaction may derail the contemplated transaction. Moreover, following completion of the transaction minority or majority shareholders and directors may face difficulties and be restricted in running the operations of the company. For these reasons, it is very important to be able to plan the closing and post-closing corporate governance issues of the target company in an M&A transaction.

Construction for Allotment Agreements: Distinction between Incomplete Work - Defective Work

December 2014 - Real Estate & Property. Legal Developments by ELIG, Attorneys-at-Law .

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Introduction to Construction for Allotment Agreements

In practice, especially in Turkey, there are numerous types of construction agreements relying on various terms and principles by virtue of the "freedom of contract" principle governing law of obligations. Construction for allotment agreement is the most common one among agreements that diverges from traditional construction agreements.

 

 


 

Legal Framework on Advertising and Promotion of Medical Devices

October 2014 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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As of May 15th, 2014, the healthcare industry has welcomed a much anticipated legislation after the Regulation on Sale, Advertising and Promotion of Medical Devices ("Regulation") covering the sale, promotion and advertising activities of medical devices has entered into force upon its publication on the Official Gazette. 

How far can an employer go?: The Right to Monitor an Employee's Computer and Other Devices

October 2014 - Employment. Legal Developments by ELIG, Attorneys-at-Law .

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1. Introduction

 

Monitoring the employee's computer and other devices became a preventive measure for many employers in order to protect companies' interest, as a result of the increase in potential compliance issues in companies. Nevertheless, since such a monitoring right of the employers is not stipulated within the Turkish legislation, the subject is still controversial among doctrine and High Court of Appeals' precedents. Therefore this article aims to shed a light to the relevant subject by emphasizing (i) doctrine and High Court of Appeals' approach, (ii) the limits of the employer's such ability and (iii) the process to be followed on monitoring the employee's computer and other devices. 

Scope of Employers’ Freedom of Management and Essential Changes in Employment Agreements

October 2014 - Employment. Legal Developments by ELIG, Attorneys-at-Law .

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   Introduction

Due to the current conditions of the business world, employers often require to make certain modifications on their business structures which usually affect employment conditions of employees. Whilst employers are entitled to freely manage their businesses, Labor Law numbered 4857 (the "Labor Law") prohibits arbitrary changes in essential terms of employment agreements and regulates that essential changes in employment agreements are subject to employees' prior consents. Which changes would fall under the scope of employers' freedom of management and which changes would be subject to employees' prior consent are often misinterpreted.

This article discusses how far employers' freedom of management can extend in light of the precedents of High Court of Appeals. 

Fiduciary Duties and Responsibilities of Members of Board of Directors and the Exception thereto

October 2014 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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Members of board of directors ("board"), i.e. corporate body of a joint stock company having representative and executive authority, have to either act in a certain way or abstain from certain actions, while acting in a board member capacity. According to the new Turkish Commercial Code numbered 6102 ("TCC"), a board member shall; (i) act in person, (ii) act diligently (iii) be loyal to the company and (iv) treat the shareholders equally.[1] While these are generally referred to as the duties of board members, liabilities imposing board members to abstain from certain activities are referred to as restrictions. 

A company, with the articles of association, may also introduce duties regarding its board members other than those stipulated above. On the other hand, there is a certain exception to the duty of diligence and loyalty, details of which will be provided below.

This article aims to provide a brief outline of the fiduciary duty of diligence and loyalty of the board members and the amendments brought by the TCC.


[1] Tekinalp, Unal, Sermaye Ortaklıklarının Yeni Hukuku, Istanbul, 2013, p. 240.

Abuse of Dominance on Dependent Companies under Turkish Commercial Code

September 2014 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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  I. Introduction 

 

The concept of "dominance" is newly introduced to Turkish commercial law by article 202 of the new Turkish Commercial Code, which entered into force on July 1, 2012 ("TCC

 

"). The concept emphasizes the principle of "rule of law" and introduces a new dimension to liability of corporations and their corporate bodies. Article 202 of the TCC provides that a "dominant company" shall not exercise its control on the "dependent company" in a way that would cause the latter to incur losses.

 

Assessing Compliance Measures in Emerging Markets: The Turkish Example

August 2013 - Corporate & Commercial. Legal Developments by ELIG, Attorneys-at-Law .

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Compliance and risk management issues in evolving markets are becoming pressing concerns in many emerging markets where legislation on various fields of law is not yet entrenched in comparison to developed countries. Together with a growing awareness of building and implementing robust compliance programs, the necessity of complying with local laws is a top priority for companies operating in and willing to invest in an emerging market country. This holds true for Turkey.

Competition Law Update - Turkey – 2013

July 2013 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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The year 2013 brought a lot of changes in Turkish competition law. It seems to be one of the most important years for the modernization of Turkish competition legislation. Some of the most significant advancements are as follows.

The Enforcement and Legal Landscape of Business Crimes in Turkey

March 2013 - Crime. Legal Developments by ELIG, Attorneys-at-Law .

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As a rapidly developing market, Turkey's business environment is increasingly becoming susceptible to criminal and fraudulent activities, with elevated levels of enforcement and regulation posing challenges for local and foreign businesses operating in Turkey as well. The growing awareness on conducting transparent businesses in accordance with generally accepted compliance, corporate governance, and accountability principles, may bring about heightened legal hurdles for companies who have to comply with the applicable legal regulations when conducting their business operations.

Understanding Search Engines: A Legal Perspective on Liability in the Internet Law Vista

January 2013 - TMT ( Technology, Media & Telecoms). Legal Developments by ELIG, Attorneys-at-Law .

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This contribution discusses the legal dimension of search engines in an Internet law context, through both a global lens and a Turkish perspective. This paper introduces search engine liability in the growing Internet industry and the role of search engines in distributing and disseminating information. Next, this paper considers a global perspective on the legal dimension of search engines from United States case law, United Kingdom case law, and other European courts and legislation. This contribution then discusses the liability of search engines in the Turkish legal context. The conclusion provides an overall evaluation of the current status of search engine liability and prospective on its potential development.

CONTEMPORARY TURKISH COMPETITION LAW ENFORCEMENT IN CARTEL CASES: RECENT DEVELOPMENTS

April 2007 - EU & Competition. Legal Developments by ELIG, Attorneys-at-Law .

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Contributed by Gönenç Gürkaynak, Esq.
Partner
ELIG, Attorneys-at-Law
April 2007

 

In the 10 years since the competition legislation came into force in Turkey, sectors have faced a vast number of antitrust investigations.