Dispute resolution

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.  I.          Introduction The Convention has been drafted by the United Nations Commission of International Trade Law ("Commission") and adopted by the General Assembly during the 62nd plenary meeting held on December 20, 2018. The main motivation of the Commission is "to become an essential instrument in the facilitation of international trade and in the promotion of mediation as an alternative and effective method of resolving trade disputes". Indeed, the mediation has always been a low-cost, swift and efficient way to resolve a dispute, in comparison to other dispute resolution methods, which can also be observed from the data obtained in Turkey, from a micro perspective. Heretofore, the mediation agreement breaches were brought before different dispute resolution venues, such as Courts or arbitrative alternatives, if any respective clause was placed in the mediation agreement. Considering that mediation itself is a way to avoid dispute through mutual agreement of both parties on certain topics; the bringing breach of agreement to courts practically beats the purpose of mediation, as it brings litigation back on the table again. Henceforward, direct enforceability of the international mediation agreements in any event of breach might steer parties of a commercial relationship into mediation. II.       Scope of the Convention The Convention is, basically, designed for the international mediation agreements concluded after a commercial dispute. However, the mediation agreements, even on commercial disputes, are still required to have some certain qualifications for the Convention to be applicable. Thus, the Convention is still inapplicable for commercial mediation agreements other than the ones described in the articleA1/1 of the Convention. Besides that, the mediation agreements, which are specifically mentioned in Article 1/2 of the Convention are also excluded from the scope of the Convention and accordingly, the Convention cannot be applied on them. a.         Mediation agreements that are included to the Convention The mediation agreements that are included into the scope have been clearly defined under Article 1/1 of the Convention. The qualifications required for applicability of the Convention have been described in the Article 2 of the Convention. With reference to the first article of the Convention, the parties are required to have the qualifications indicated below:                              i.          The agreement should be borne from a mediation process The motion of "mediation" has been defined in Article 2/1(3) for the purpose of clarifying article 1/1. Accordingly, mediation has been described as a process during which the parties are trying to reach a mutual conclusion on the dispute with the assistance of a third party, the mediator. It has been specifically mentioned that the mediator is not entitled to impose a solution upon the parties. Accordingly, it can be understood that the mediator only has the authority to lead the parties to a mutually beneficial solution. Mediation, on the other hand, has a slightly different definition in the Turkish Mediation Law numbered 6325 ("Mediation Law"), regulating that mediation is a process wherein the parties gathers to find their own solution through communicating with and understanding each other with the assistance of an objective and specialized mediator who can offer solutions when the parties are not able to find their own solution. Comparing the mediation definitions in the Convention and the Mediation Law, it is seen that the understandings of two legislations are quite similar, except for the slightly broader authorities of a Turkish mediator due to the capacity to "offer" a solution. Other than this, the concept of mediation is regulated in a very similar way in both the Convention and Mediation Law.                            ii.          The agreement must be concluded in written form A written agreement is one of the musts for applicability of the Convention. Therefore the Convention has a clear definition on the topic. While the wording implicates that the mediation agreement can only be written on paper, Article 2/1(2) provides that recordings of the content of the mediation agreement in any form is sufficient to fulfill this requirement. The tools that record the communication include electronic communication as well, provided that the information contained is accessible to be used as a subsequent reference later on.   When it comes to the Mediation Law, there is no particular wording that provides an obligation regarding written or any other form with respect to the mediation agreement. However, the mediation process implied in Mediation Law stipulates almost every stage to be in written form.  Having said that, the mediation process should be applied to, preceded and completed with separate written reports, signed by the parties and the mediator. Therefore, regardless of this issue not being clearly stipulated in Mediation Law, the written form can be deemed to be mandatory in Turkish mediation procedures and it is not acceptable to put down any record in any form, except written form.                          iii.          The agreement must be resolving a commercial dispute The convention does not have a definition or explanation on what a commercial dispute is. Certain concepts are excluded from the scope of the Convention, from which can be derived what a commercial dispute is "not". However, as seen in Article 1/1 of the Convention, in assessment of whether a dispute can be considered "international", the locations of the place of business are regarded. Considering that "international" aspect of the dispute is the first and foremost condition for application of the Convention, which will be explained later on, it could be said that a commercial dispute is any dispute that pertains to the business affairs. The definition of "commercial dispute", in other respects, is defined in Turkish Commercial Code, stating that every interaction related to a commercial undertaking is a commercial transaction. Accordingly, every dispute related to a commercial transaction is also considered as commercial dispute. At this stage, we believe it would be accurate to argue that, despite lack of a clear definition in the Convention, a commercial dispute can be understood as "any dispute in relation to a commercial undertaking in concordance with Turkish Commercial Code".                           iv.          The dispute must be international. Article 1/1 provides a detailed structure on what "international dispute" is. The element of "international" has been divided into two prongs. The first is the parties' having places of businesses in different State. The second is the parties' having places of businesses in the same State, with two optional additional conditions being met. That is to say; if the substantial part of the obligations under the mediation agreement is performed in a State different than the place of business, the dispute is considered as an international one. On the other hand, if the subject matter of the meditation agreement is most closely connected to a place other than the place of business, then this would suffice for the dispute to be deemed international, as per the Convention. Having those requirements compared to Turkish Civil Private International Law, it is seen that the internationality element has been regulated in a very similar to the Turkish Civil Private International Law. b.        Mediation agreements that are not included to the Convention Article 1/2 of the Convention introduces several circumstances topics where the Convention will not be applied. To begin with, the first principle - as explained above - is the mediation agreement being concluded as a result of a commercial dispute. Besides the first principle, the Convention does not include in its purview the mediation agreements that are concluded as a result of disputes that are related to (i) personal, (ii) family, or (iii) household transactions of either party. This issue is important since, in Turkish Law, if one party is merchant, then the transaction is deemed to be a commercial one too. The Convention however excludes such transactions from its scope. In addition, mediations agreements concluded as a result of family law, inheritance law or employment law related disputes are excluded from the purview of the Convention as well. Article 1/3 of the Convention excludes mediation agreements on certain specific matters as well. That is to say; if a mediation agreement has been approved by a court or concluded in the course of a court proceeding, the Convention is not applicable to those mediation agreements. In the same vein, if the mediation agreement is enforceable as a judgement, the same goes for those mediation agreements as well. Finally, the mediation agreements that are recorded and enforceable as arbitral award cannot be subjected to the Convention either. Put succinctly any mediation agreement that has ever been made subject to any dispute resolution method is excluded from the purview of Convention. III.    Legal Outcome of the Convention with Respect to Enforceability of Mediation Agreements The Convention renders the mediation agreements having the characteristics explained above enforceable under the procedural rules of the enforcing State and conditions laid down in the Convention. To be able to enforce a mediation agreement, the party relying on to the mediation agreement must provide a signed copy of the settlement agreement and necessary evidence documenting that the agreement has been concluded as a result of a mediation process. The Convention provide few examples to these evidence, such as mediator's signature on the mediation agreements, and not stated as numerus clausus and can be tailored according to the conditions of the present case. The competent authority can always require any necessary document in order to verify that the requirements of the Convention are met, as per Article 4/4 of the Convention. The Convention will be applicable to the mediation agreements that are issued after the Convention enters into force, i.e. six months after deposit of the third instrument of ratification, acceptance, approval or accession, which is already completed done by 45 signatory States. Grounds for refusal of enforcement: The party against whom the mediation agreement is being enforced can object to enforcement of the mediation agreement, provided that;                   i.            Either party of the mediation agreement was under some incapacity,                   ii.            The mediation agreement to be enforced is null and void,                  iii.            The mediation agreement to be enforced is not binding or final,                  iv.            The mediation agreement to be enforced has been subsequently changed,                  v.            The obligations of the mediation agreement have already been performed,                  vi.            The obligations of the mediation agreement are not clear or comprehensive,                  vii.            The enforcement of the mediation agreement would be contrary to the terms of the mediation agreement itself,                  viii.            If the mediator made a serious breach of the standards that are applicable to the mediator or the mediation, without which breach that party would not have entered into the mediation agreement, and                 ix.            There is a doubt on the mediator's impartiality or independence that has a material impact or undue influence on a party without which failure that party would not have entered into the mediation agreement.  The competent authority on the other hand can refuse the enforcement in case;                   i.            The enforcement would be a contrary to the public policy of the enforcing State                   ii.            The subject matter is cannot be subjected to the mediation as per the local laws of the enforcing State.  IV.    Effects of the Convention to Turkish Law Turkey is adopting a position encouraging mediation to lower litigation-related costs and time spent on long and complex litigation procedures. To that end Turkey signed the Convention on August 7, 2019 and the Convention will be deemed to be a part of Turkish Law after its due ratification. In comparison of the Convention and mediation regulations in Turkish Law, it is evident that the provisions are very similar each other with respect to legal understanding, overall system and motions. Further, the Convention provides that enforcement actions will be taken according to the State's local law in compliance with the conditions of the Convention. As a result of the Convention, there will be no need to file cases based on breach of contract to enforce mediation agreements and the mediations agreements that have the qualifications and characteristics explained will directly be enforceable under Turkish legal system. Then again Turkish Enforcement Law has several different types of enforcement procedures and the Convention does not impose any method of enforcement, leaving this issue to the States. As this is the case, in Turkey these mediation agreements should be enforced as a Court decision, which is the procedure applied to the mediation agreements signed by both the parties and their attorneys and concluded as a result of mandatory mediation procedures. Also Article 4/5 of the Convention provides that the competent authority of the enforcing State should act expeditiously and the most expeditious method in Turkish Law regarding the enforcement procedures is the one allowed for the court orders. Authors: Gönenç Gürkaynak, Esq., Tolga Uluay and Doruk Altın of ELIG Gürkaynak Attorneys-at-Law (First published by Mondaq on September 18, 2019)

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"). Under Turkish law certain sectors, such as health sector, are subject to additional restrictions on advertising due to their unique nature and purpose. As a general rule, health-related commercial advertisements are prohibited under Turkish law through various pieces of legislation. Administrative sanctions are set to be imposed by the Advertisement Board on the advertisers, advertising agencies and establishments broadcasting these advertisements in cases where the health-related commercial advertisements are considered to be contrary these restrictions. Since the Advertisement Board's decisions are deemed as administrative actions under Turkish administrative law, these decisions are subject to judicial review before administrative courts. The Council of State rendered many decisions in cases where sanctions on health-related commercial advertisements are challenged and requested to be annulled, and these decisions provide further guidance on how the restrictions must be interpreted and viewed, specifically what makes a health-related commercial advertisement illegal under Turkish law. Commercial Advertisement under Turkish Law Article 61 of the Law defines "commercial advertisement" as "announcements that are marketing communications made through written, visual, audio and similar methods in any medium by the advertisers, in order to provide sale or lease of a good or service, inform or convince target audience in connection with a trade, work, craft or profession". Scholars argue that there are different definitive elements in commercial advertisements, such as existence of promotion, commercial aim, intention to promote, purpose of increasing popularity of a product or service, use of a medium, and addressing the public, i.e. more than one individual. Commercial advertisements are subject to regulations as they are considered to be inextricably linked to protection of consumers. Article 61 of the Law provides the main rules regulating commercial advertisements, which are elaborated and supported by the provisions of the Regulation. Article 77(12) of the Law specifies the administrative sanctions that may be imposed on advertisers, advertising agencies and establishments broadcasting the advertisements by the Advertisement Board in case of non-compliance to the regulations. Prohibited and Restricted Advertisements in the Context of Health Sector Article 61(2) of the Law provides that commercial advertisements must be in conformity with the principles adopted by the Advertisement Board, public morality, public order and personal rights; they also must be honest and true. Commercial advertisements that deceive or mislead the consumer, or abuse the consumer's lack of experience or knowledge, threatening the life of the consumer and safety of consumer's property, encouraging the acts of violence or inciting to commit crime, endangering public health, abusing the sick, elderly, children or disabled people are prohibited by Article 61(3) of the Law. In addition to these general rules, the Regulation provides more specific rules that need to be observed. Article 26(1) of the Regulation titled "goods and services subject to special rules on advertisement" provides that "advertisements of goods and services that which are subject to special rules on advertisement, such as ... health services ..., must be in conformity with all the other rules on advertisement and promotion provided in the relevant legislation." Therefore, while examining the health-related commercial advertisements, specific legislations must be taken into consideration. First of all, medical institutions and medical staff are not allowed to be involved in health-related commercial advertisements in order to prevent commercialization of human health and to observe public interest (common good) during the provision of healthcare services. Article 24 of the Law on Execution of Medicine and Medical Sciences No. 1219 provides an exception to the prohibition on medical staff being involved in commercial advertisement. This article stipulates that medical doctors are allowed to make announcements regarding the location of their clinic, working hours and their specialization; but they still cannot make advertisements regarding any other issue.  Article 60(2) of the Regulation on Private Hospitals allows private hospitals to make promotions and inform public only with the purpose of preservation and enhancement of health. That being said, Article 60(1) prohibits actions and promotions made by private hospitals that are considered to be contrary to medical deontology and ethical rules, which could deceive or mislead individuals or aim to increase demand of individuals or constitute unfair competition vis a vis other private hospitals. In the same vein, Article 29(1) of the Regulation on Private Medical Centers for Ambulatory Diagnosis and Treatment explicitly provides that "medical institutions cannot be involved in advertisement". The Ministry of Health's Circular on Private Medical Institutions' Informatory and Promotional Activities No. 2013/15 provides that "Explicit and implicit advertisements going beyond being informative and promotional shall be prohibited." Supervision of Commercial Advertisements and Sanctions in the Context of Health Sector The Advertisement Board has the authority to supervise commercial advertisements and to impose sanctions of suspension, correction, monetary fine, or precautionary suspension up to three (3) months in case of non-compliance pursuant to Article 63 of the Law. There are numerous decisions rendered by the Advertisement Board wherein the Board imposed sanctions on the commercial advertisements made by medical institutions and/or medical staff that (i) exceed the informatory purposes, (ii) render the activities of the medical institutions and/or medical staff as commercial activities, (iii) aim to create demand, and (iv) constitute unfair competition vis a vis other medical institutions and/or medical staff. These are the general restrictions that a health-related advertisement is bound by. Precedents concerning Advertisements in Health Sector Under Turkish law, the Advertisement Board's decisions are deemed as administrative actions and it is possible to initiate an annulment lawsuit against the Advertisement Board's decisions before the administrative courts. Various decisions of the Administrative Board related to health-related commercial advertisements were challenged through annulment lawsuits and the Council of State, the highest administrative court in Turkey, rendered many decisions in these cases, which provide further guidance on the restrictive rules on health-related commercial advertisements. Below are just a few of these decisions that could be an example to what makes a health-related advertisement being contrary to the allowed framework of such advertisements. 15th Administrative Chamber of the Council of State, with its decision dated December 15, 2015 and numbered 2015/8726 E., 2015/8764 K., confirmed an administrative court's decision wherein it was concluded that mentioning the contact details of the medical doctors working at a hospital in an advertisement published in a newspaper makes the hospital's activities seem like commercial activities. 15th Administrative Chamber of the Council of State, in its decision dated October 1, 2015 and numbered 2015/4050 E., 2015/5574 K., stated that advertisement published in a magazine containing statements such as "... the new technology is available at [the name of the hospital]" and the "before and after" photos of the patients aims to create demand for the relevant hospital, which renders the relevant hospital's activities as commercial activities and constitutes unfair competition vis a vis other medical institutions. 15th Administrative Chamber of the Council of State in its decision dated September 18, 2015 and numbered 2015/6917 E., 2015/5437 K. ruled that provision of detailed description of the treatments provided at a dental clinic by mentioning that all those treatments are successfully applied by the dentists working at that clinic and presentation of photos of the clinic was again considered as aiming to create demand, rendering the clinic's activities as commercial activities, and constituting unfair competition. 15th Administrative Chamber of the Council of State in its decision dated December 19, 2011 and numbered 2011/11279 E., 2011/5725 K. ruled that an advertisement that is published in a newspaper regarding a discount in vitro fertilization procedure limited with 500 families and gives contact details of the relevant hospital is contrary to law, as the advertisement aims to increase the demand for the relevant hospital and commercialize its activities. 15th Administrative Chamber of the Council of State in its decision dated November 21, 2011 and numbered 2011/1472 E., 2011/4167 K. ruled that the articles published in a magazine, which states that an hospital receives patients transferred from another hospital abroad and gives out contact details and opinions of the medical doctors working at that hospital abroad, is a commercial advertisement aiming to direct more patients to the hospital and medical doctors receiving transferred patients. 15th Administrative Chamber of the Council of State in its decisions dated December 21, 2011 and numbered 2011/12449 E., 2011/5843 K. and dated November 28, 2011 and numbered 2011/12437 E., 2011/4435 K. ruled that an advertisement on prostate treatment titled "Stay always young, just like me", which also has the internet address of the relevant hospital, creates commercial appearance for the relevant hospital and aims to increase the demand for the relevant hospital. 9th Administrative Chamber of Ankara Regional Administrative Court in its very recent decision dated February 9, 2017 and numbered 2017/55 E., 2017/60 K. ruled that an advertisement suggesting that a public dental clinic to be a better clinic due to its high quality treatment facilities compared to private dental clinics directly incentivizes the patients to choose that public dental clinic, which is contrary to law in terms of restrictions in health-related advertisements. In light of all these decisions, it is possible to say that health-related advertisements are considered to be illegal if these advertisements promote the health institution to attract patients, praise a medical procedure by implying that the procedure brings a positive effect despite that specific effect being irrelevant to that procedure, create attraction for the health institution by suggesting the institution is highly preferred, announce discounts on a medical procedure to steer patients into choosing the institution making that discount, suggest all the medical procedures are completed successfully in order to create a sense of confidence and thus patient demand. Surely these circumstances are mere examples of what constitutes an illegal health-related advertisement and any circumstance that exceeds the allowed framework of restrictive rules on health-related commercial advertisements would make the advertisement illegal. Conclusion The Law regulates commercial advertisement through the Regulation. Since the health sector is subject to special restrictions on advertisement due to special place in terms of public benefit, specific pieces of legislation become applicable when a health-related commercial advertisement is in question. As a general rule, health-related commercial advertisements are prohibited under Turkish law except for those aiming to inform the individuals. The Advertisement Board rendered many decisions in cases where health-related commercial advertisements are found (i) exceeding the informatory purposes, (ii) rendering the activities of the medical institutions and/or medical staff as commercial activities, (iii) aiming to create demand, and (iv) constituting unfair competition vis a vis other medical institutions and/or medical staff. The local administrative courts and the Council of State have adopted the same criteria while examining the legality of a health-related commercial advertisement by considering unique dynamics and specifics of each case. Authors: Gönenç Gürkaynak, Esq., Tolga Uluay and A. Bahadır Erkan, ELIG, Attorneys-at-Law (First published in Mondaq on December 5, 2017)

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. A) Introduction Ø Turkish First-Instance Courts are basic judicial authorities to settle disputes both for civil and criminal cases. ØTurkish Regional Courts of Appeals is a second inspection mechanism and a way of right to appeal between the Courts of First Instance and the Court of Appeals incorporated as of June 20, 2016, Regional Courts of Appeal review and examine decisions held by first-instance local courts and then such decisions can also be appealed if the decision is subject to examination of the Supreme Court of Appeal. The difference is that in the former appeal process (now the second-instance appeal process) local court decisions may only be subjected to a legal examination, meaning that the examination is based on whether the local court decisions are “correct” from a legal aspect but the facts and evidence leading to such decision are not evaluated.  However, Regional Courts of Appeal may examine the facts of the case, conduct hearings, and render a new decision. In principle, final decisions concerning material rights may be appealed, however, actions for amounts under 3,000.-Turkish Lira are not involved in this re-examination system and they are regarded as definitive/final subject to the decision of the first instance courts, therefore, cannot be appealed. ØTurkish Supreme Court of Appeals is the last instance court for reviewing decisions and judgment by both civil and criminal courts.  Court of Appeal is the legal remedy for the decisions ruled on by Regional Courts of Appeals. The decisions of Regional Courts of Appeals where the monetary value of the case do not exceed 40,000.- Turkish Lira are considered definitive/final and they are not subject to review of Supreme Court of Appeals. Furthermore, it should be noted that the previous appellate regime continues to apply for the decisions that are appealed prior to July 20, 2016. B) Reasons and Consequences of the Implementation of the Regional Courts of Appeals Into the System The new two-tier appellate system was regarded necessary for Turkish judicial system since it was apparent to practitioners that the Supreme Court of Appeals was not able to function due to its excessive workload. Considering that 90% of first instance cases are appealed in Turkey, the Supreme Court of Appeal’s review of the same was limited, ineffective and slow. With the introduction of Regional Courts of Appeals as first-degree appeal courts conducting a thorough review of the local court decisions including the review of evidence and facts, the Supreme Court of Appeals is intended to return to its actual purpose. As such, the Supreme Court’s main function as a high court is to sets and combines precedents, and thus improving the correct application of the laws and procedure. Consequently, the workload of Supreme Court of Appeal will definitely decrease and Supreme Court of Appeal is expected to work with greater efficiency. C) Appeal before the Turkish Supreme Court of Appeals >Supreme Court of Appeals in Civil Jurisdiction The procedure of applying to Turkish Supreme Court is regulated under the Articles 361 to 373 of the Turkish Civil Procedure Code No. 6100. In accordance with Article 361 of Turkish Civil Procedure Code No. 6100, following decisions are subject to the review of Turkish Supreme Court of Appeals; The judgments of the civil chambers of the Turkish Regional Courts of Appeal and; The judgments with respect to the cancellation of arbitration awards. In accordance with Article 362 of Turkish Civil Procedure Code, following issues are not subject to the review of Turkish Supreme Court of Appeals The decisions of Turkish Regional Courts of Appeal amount of which do not exceed 40.000.- Turkish Lira (In case of partial claims, the whole claim amount will be considered for calculation), The disputes within the jurisdiction of the First Instance Courts of Peace (excluding the disputes regarding real property rights), The decisions resolving issues of determination of location and task-based jurisdictional conflicts among First Instance Courts, The decisions regarding ex parte proceedings, The decisions on the correction of the Civil Registry Records of persons (excluding the cases which bear consequences regarding paternity), The decisions on transfer of legal actions among First Instance Courts within the same territorial jurisdiction, The decisions on temporary legal protections. Supreme Court of Appeals in Criminal Jurisdiction The procedure of applying to Turkish Supreme Court of Appeals is regulated under the Articles 286 to 307 of the Turkish Criminal Procedure Code No. 5271. In accordance with Article 286 of the Turkish Criminal Procedure Code No. 5271, following decisions are subject to the review of Turkish Supreme Court; The decisions of the Regional Court of Appeals (excluding the decisions of reversal). However, following decisions are not subject to the review of Turkish Supreme Court of Appeals; The decisions of Regional Court of Appeals that are related to the rejecting merits of the application of appeals on facts against the imprisonment penalties up to five (5) years or less and decisions denying the merits of appeals on facts against any kind of judicial fines, rendered by the Courts of First Instance, The decisions of Regional Court of Appeals that do not increase the imprisonment penalties up to five (5) years or less rendered by the Courts of First Instance, The decisions of Regional Court of Appeals that are related to optional sanctions and rejecting merits of the application of appeal on facts against the optional sanctions converted from imprisonment sentences rendered by  the Courts of First Instance, All kind of decisions of the Regional Court of Appeals that are related to crimes that require imprisonment penalties up to two (2) years or less and judicial fines connected with such crimes, All kind of decisions of the Regional Court of Appeals that are related to judicial fines, rendered by the Courts of First Instance, Judgments rendered by the Regional Court of Appeals which do not alter the decision of the Courts First Instance in relation to confiscation or forfeiture goods and revenues, Where the judgment of the Regional Court of Appeals was an acquittal on appeals on fact related to offenses that require imprisonment for ten years (10) or less, or decisions of denial of motions for appeals of facts in case of acquittals, Where the decision of the Courts of First Instance was related to striking a lawsuit, or a decision not to punish, or to a security measure and the Regional Court of Appeals has rendered a judgment in agreement with such decisions, Decisions of the Regional Court of Appeals that contain more than one sentencing and decisions above mentioned, as long as they stay within the limits noted. D) The Amendments of Periods Implemented with the Law No. 7035 on Appeals of Turkish Court Decisions The Law on Amending Certain Laws For The Purposes of Resolving the Issues Arising From the Operation of Regional Courts of Appeals and Regional Administrative Courts No. 7035 (the “Law No.7035”) adopted by Council of Ministers on July 20, 2017,has entered into force on August 5, 2017 through publishing in the Official Gazette No. 30145. With the enactment of Law No. 7035, the appeal periods of Civil and Criminal Courts are changed. Such changes are stated in the Articles 21 and 31 of the Law No. 7035 as follows; Ø As per to Article 21 of the Law No. 7035; the seven (7) day appeal period set forth in the Article 291 of the Criminal Procedure Code No. 5271 is extended to fifteen (15) days for criminal justice. Ø As per to Article 31 of the Law No. 7035; one (1) month appeal period set forth in the Article 361 of the Civil Procedure Code No. 6100 is reduced to two (2) weeks for civil justice. According to provisional Article 1 of Law No. 7035, the above-mentioned amendments to the appeal periods shall apply to decisions made on and after the effective date which is August 5, 2017. E) Period of Appeals of Turkish Court Decisions Before and After the Law No.7035 COURTS Appeal Periods Before The Law No. 7035 Appeal Periods After The Law No. 7035   Civil Courts of First Instance   1 month from the date of notification 2 weeks from the date of notification Commercial Courts of First Instance 1 month from the date of notification 2 weeks from the date of notification Civil Courts of Peace 8 days from the date of notification 8 days from the date of notification Family First Instance Courts 1 month from the date of notification 2 weeks from the date of notification Labor Courts of First Instance 8 days from the date of notification 8 days from the date of notification Consumer Courts of First Instance   1 month from the date of notification 2 weeks from the date of notification Civil Enforcement Courts of First Instance 1 month from the date of notification 2 weeks from the date of notification Cadastral Courts of First Instance 1 month from the date of notification 2 weeks from the date of notification Civil Courts of First Instance for Intellectual and Industrial Property Rights 1 month from the date of notification 2 weeks from the date of notification Criminal Courts of Enforcement of First Instance 7 days from the date of notification 15 days from the date of notification Criminal First Instance Court of Peace 7 days from the date of notification 15 days from the date of notification Criminal First Instance Courts 7 days from the date of notification 15 days from the date of notification Criminal Courts of First Instance for Aggravated Felonies 7 days from the date of notification 15 days from the date of notification Criminal Courts for Intellectual and Industrial Property Rights 7 days from the date of notification 15 days from the date of notification

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." In accordance with the general principles of indemnity law, the aim of indemnity is to compensate the damages suffered and the amount of the compensation cannot be higher than the actual amount of the damage suffered in any case. As an exception, however, there might be a special provision of law related to the case at hand that allows the plaintiff to claim compensation higher than the amount of the actual damage. Turkish intellectual and industrial property law legislation contains such special provisions. In this article, compensation in excess of damage suffered and determination of such compensation under Turkish intellectual and industrial property law will be explained. Provisions found in Turkish intellectual and industrial property law legislation providing for compensation in excess of damage suffered There are two opinions among Turkish scholars regarding the nature of the compensation in excess of the damage suffered. According to the first one, it is dissuasive rather than compensative, which means that it is a criminal sanction. On the other hand, the second opinion claims that compensation in excess of the damage suffered deters violators by encouraging the plaintiffs to bring action, which makes it a private law penalty. Although there is a discussion regarding the nature of the compensation in excess of the damage suffered, in practice, the special provisions of Turkish intellectual and industrial property law legislation related to the subject are being applied by the courts. The gist of the provisions found in Turkish intellectual and industrial property law legislation providing for compensation in excess of the damage suffered is to encourage the plaintiffs to bring actions, as well as to deter the people who would violate these rights. Furthermore, the people are encouraged to create new ideas and inventions by creating the idea that intellectual properties are secured by the law.  An example for the special provisions of Turkish intellectual and industrial property law legislation related to the compensation in excess of the damage suffered can be found in Articles 68 and 70 of the Law No. 5846 on Intellectual and Artistic Works. Article 68 provides that "The right holders whose permission was not obtained may claim the payment of compensation of up to three times the amount that could have been demanded if the right had been granted by contract, or up to three times the current value which shall be determined under the provisions of this Law, from persons who adapt, reproduce, perform or communicate to the public by devices enabling the transmission of signs, sounds and/or images the work, performance, phonogram or productions or who distribute reproduced copies thereof without written permission of the author pursuant to this Law." It is widely accepted in the doctrine and the practice that there is no need to establish the existence of damage and/or negligence, since it is considered that the perpetrator should know that it is illegal to use an intellectual property without the permission of the right owner. Article 70 of the Law No. 5846 on Intellectual and Artistic Works provides that "... Any person whose economic rights have been infringed may claim compensation under the provisions governing torts, if the infringer is at fault. In the cases set out in the first and second paragraphs [in case of claiming compensation for infringement of moral or economic rights], the infringed person may, apart from the damages, also claim the profits gained by the infringing party. In such case, any sum demanded in accordance with Article 68 shall be deducted from this amount." According to this provision, the profits gained by the infringing party can be claimed even if the total amount of the compensation exceeds the damages suffered. This constitutes another example of compensation in excess of the damage suffered. Article 149(1)(ç) of the Law No. 6769 on Industrial Property provides that an industrial property right owner may request indemnification of pecuniary and non-pecuniary damages from the court if its industrial property rights are infringed. Article 151(1) of the Law provides that the damage suffered by the right owner covers the actual loss and loss of profit. The right owner can choose from one of the three ways while calculating the loss of profit provided by Article 151(2). The first way is the amount of probable profit if there was no competition of the perpetrator. The second way is the amount of profit the perpetrator made using the industrial property right. The third way is the license fee the perpetrator has to pay if he/she used the industrial property right legally with a license agreement. The second way opens the way for compensation in excess of the damage suffered despite the other two ways. Moreover, pursuant to Article 151(4) of the Law No. 6769, if the industrial property right owner chooses the second way explained above and the court comes to the conclusion that the infringed industrial property right is the determinative factor for the demand for the product, the court decides to add an appropriate amount on top of the loss of profit calculated according to the second way. There is also another type of compensation called the reputation compensation regulated by Article 150(2) of the Law No. 6769. According to this provision, if the perpetrator of an infringement regarding industrial property rights use that right inappropriately and the reputation of the related industrial property right is damaged, the rightful owner of the right can ask for additional compensation. This compensation stands for the required expenses in order to restore the industrial property right's reputation, like advertisements. It must be emphasized that in order to rule on an indemnity in excess of the damage suffered, the damage must be pecuniary. In other words, it is not possible to rule for compensation in excess of non-pecuniary damage suffered. The wording of Articles 68 and 70 of the Law No. 5846 on Intellectual and Artistic Works also support this position. Determination of the compensation in excess of damage suffered under Turkish intellectual and industrial property law legislation In indemnity cases, it is essential to determine the amount of damage suffered in order to reach a verdict accordingly. As stated above, the only way for ruling for compensation in excess of the damage suffered is the existence of a special provision of law which allows it. As explained above, Turkish intellectual and industrial property law legislation contains such special provisions. However, the question how the compensation in excess of the damage suffered should be calculated is not clear even in those provisions. The general rules for determining the amount of compensation are provided in Articles 51 and 52 of the Turkish Code of Obligations. According to Article 51, the judge determines the amount and payment form of the compensation by considering the circumstances and particularly the perpetrator's degree of fault. Article 52 provides that if the damaged party has consented to the event causing damage or contributed to the occurrence or increase of damage, or aggravated the situation of the perpetrator, the judge may decide to decrease or remove the compensation. Compensation in excess of the damage suffered in cases of infringement of intellectual rights is regulated by Articles 68 and 70 of the Law No. 5846. In order to determine the amount of "three times the value" compensation, the owner of the infringed right can choose between two methods: "up to three times the amount that could have been demanded if the right had been granted by agreement" or "up to three times the current value which shall be determined under the provisions of this Law". Regarding both methods, the court needs to conduct an analysis and probably obtain an expert report in order to determine the amount that could have been demanded if the right had been granted by an agreement or the current value. Determination of loss of profit comes to the stage when an industrial property right is infringed, as explained above. While determining the exact amount of the profit made by the infringing party, the Law No. 6769 does not specify any method. Article 151(3) of the Law No. 6769 provides that "Particularly issues such as economic significance of the industrial property right, number, duration and type of licenses regarding the industrial property right which exist during the infringement, nature and size of the infringement are considered while calculating the loss of profit." Since the provision uses the phrase "particularly issues such as ..." it does not limit the issues which can be considered while calculating the amount of loss of profit. Therefore there may be other issues and/or methods which may be used in practice while determining the amount of the loss of profit. At this point, it is possible to consider the perpetrator's commercial books and financial records. However, there is the danger of commercial books and financial records not showing the accurate data and amounts due to different reasons. The factors for determining the amount of reputation compensation may be the required resources to restore the reputation. The industrial property right owner can also rely on past documents demonstrating the expenses made to reach a certain reputation and the expenses may be recalculated in order to update the amounts. Finally, since Articles 51 and 52 of the Turkish Code of Obligations are applicable to all indemnity cases, the court must evaluate the specific circumstances of the case and reduce the amount of the compensation if necessary after calculating the amount of the compensation according the relevant provisions explained above. Conclusion  Although the amount of the compensation cannot be higher than the actual amount of the damage suffered in any case under the general principles of Turkish indemnity law, Turkish intellectual and industrial property law legislation contains special provisions that allow the plaintiff to claim compensation higher than the amount of the actual damage, as explained above. Those specific provisions do not specify the method which should be used while calculating the amount of the compensation. This causes difficulties in practice both for the claimants who request the compensation and for the courts who are obliged to determine the amount of the compensation. Authors: Gönenç Gürkaynak Esq., Ceyda Karaoğlan Nalçacı and A. Bahadır Erkan, ELIG, Attorneys-at-Law. First published in Mondaq on July 31, 2017.