Erdem & Erdem Law Office > Firm Profile

The firm: Erdem&Erdem is an international law firm dedicated to providing practical business solutions to a diverse range of clients particularly in cross-border business transactions, M&As, corporate restructuring and governance, international contracts, corporate finance, project finance, energy/renewable energy, privatizations and PPPs, private equity investments, capital markets, competition and antitrust, litigation (execution and bankruptcy) and international arbitration.

Erdem&Erdem has a team of 50 fee-earners with specializations in line with the firm’s growing reputation and diversified practice areas.

Areas of practice
International transactions, M&As and private equity: The firm advises public and private companies, private equity firms, financial sponsors, investment banks, governmental entities in a variety of complex, cross-border and strategic transactions including structuring and organizing fund sponsors and investment funds, executing acquisitions, financing and exit transactions.

Competition and antitrust: The firm has a strong record of successful representation of the largest regulated and networked companies in Turkey, Europe, Asia, and the CIS and advisory in competition regulations.

Banking and finance: The firm advises corporate borrowers, private equity funds, financial advisers, commercial banks, investment banks in construction and acquisition finance and refinance, project finance, banking and capital market transactions, including issuances of high-yield debt security, secured and unsecured debt offerings and private placements.

Privatization: The firm represents foreign and local clients in privatization projects in Turkey, Western Europe and Southeast Asia. Its clients encompass refinery, port, airport, energy, healthcare, real estate, consumer goods, natural resources, and infrastructure and construction industries, also banks and financial institutions.

International contracts, agency and distributorship: The firm has decades of diverse experience in the field of international contracts. Team members are known for their in-depth know-how and extensive experience in drafting and negotiating all types of commercial contracts, such as agency, franchise, supply and distribution and commission arrangements, foreign representative and consultancy agreements.

Energy and renewables: The energy sector experience includes natural gas, coal and oil-fired power plants, co-generation facilities, agricultural and municipal solid waste projects, hydroelectric projects, and wind, solar and other renewable energy facilities.

Real estate and construction: The firm represents investors, developers, owners, lenders, prime contractors, REITs, PPPs, subcontractors, architects, port management authorities, airlines and energy utility companies involved in the construction and development of manufacturing, distribution and operational facilities in real estate finance, joint venture, leasing, acquisition and disposition of real estate assets.

Capital markets and corporate governance: the firm provides innovative solutions to a wide variety of capital raisings and compliance and governance issues the clients face in Turkey and abroad.

International arbitration: The firm’s arbitration practice is among its most prominent field of work. The team handles commercial and treaty dispute cases under the rules of every major arbitration system and in a wide variety of industries, including energy, mining, manufacturing, transportation, telecommunications, construction, finance, manufacturing and sports arising in Western Europe, Asia, Africa, Middle East and the CIS.

Litigation and bankruptcy: The hallmark of the litigation team is the experience of the lawyers who have been involved in litigation in almost every major practice, including M&As and post-closing disputes, insurance, transportation, breach of contract, partnership and joint venture disputes, real estate contracts, unfair competition, franchise and distributor disputes, government contracts, shareholders disputes.

Maritime law: The firm regularly represents clients in trials and appeals of admiralty and maritime matters. Their team handles and provides efficient resolution to maritime insurance and liability claims and other transportation matters in international or coastal trade. Erdem&Erdem has been involved in both prosecuting and defending transportation claims involving marine carriers.

Aviation: The firm regularly counsels airlines, airport authorities and other aviation industry clients in civil aviation regulation and enforcement, aircraft finance, engine and aircraft leasing, competition law and antitrust, mergers and alliances, aircraft acquisition and disposition, airport terminal construction and expansion projects, as well as aviation company reorganization, and restructuring issues.

Hospitality and leisure: The team is often engaged by foreign and local clients to provide support in all aspects of the development, acquisition, sale, financing, franchising, leasing and operation of hospitality and leisure assets that include hotels, resorts, theme parks, entertainment and sport complexes and convention centers that are abroad and in Turkey.

Intellectual property: The firm advises clients in telecommunications, Internet, advertising, and media who develop and license intellectual property, enter into transactions involving intellectual property, acquire portfolios of intellectual property, and make strategic decisions that are based on such considerations.

Tax law: Taking into account the fact that every commercial transaction comes with tax implications, we provide our clients with tax advisory and tax litigation services.

Press Releases

Canan Doksat has been promoted as Managing Associate at Erdem & Erdem

14th July 2021 We are very proud of announcing that Canan Doksat has been promoted as Managing Associate, as of July 1, 2021.

Alper Uzun has been promoted as Partner of Erdem & Erdem

14th July 2021 We are very proud of announcing that Alper Uzun has been promoted as Partner, as of July 1, 2021.

Anadolu Cam, Denizli Cam, Paşabahçe, Soda Sanayii and Trakya Cam were Merged Under Şişecam

22nd October 2020 Five companies of the Şişecam Group, four of which are publicly held, namely Anadolu Cam, Denizli Cam, Paşabahçe, Soda Sanayii and Trakya Cam have merged under Şişecam and the transaction was completed as of September 30, 2020.  Erdem & Erdem is proud to represent Şişecam in this merger transaction which is the biggest merger in Turkish capital markets.

Legal Developments

The Unification of Judgments Decision of the Court of Cassation on Notification Law

15th June 2021

Introduction

The Decision of the Court of Cassation Great General Assembly on the Unification of Judgments (“Assembly”) dated 20.11.2020 and numbered 2019/2 E., 2020/3 K. (“Decision”) was published in the Official Gazette dated 20.04.2021 and numbered 31460 and resolved the differences in opinion and application among the Court of Cassation General Assembly of the Civil Chamber, 2nd Civil Chamber, 4th Civil Chamber and 12th Civil Chamber. This article discusses the Decision, the terms used throughout the Decision, and the dissenting opinions.

Singapore Convention and Enforcement of Settlement Agreements in Turkey

15th June 2021

Introduction

The United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention”) was adopted by the United Nations General Assembly on 20 December 2018. It was signed by Turkey on August 7, 2019, when it was opened for signature. Finally, the Presidential Decision dated 21 April 2021 and numbered 3866 on the ratification of the Singapore Convention entered into force after being published in the Official Gazette dated 22 April 2021 and numbered 31462.

Shareholders’ Agreements in Family Businesses

15th June 2021

Introduction

Family businesses, in the simplest definition, are companies in which the company shares, or the authority to manage the company, belongs to various members of a family. The most significant issues that must be addressed in these companies are institutionalization, and the prevention or minimization of the effects of disagreements between family members on company activities. In ensuring the institutionalization of the company, it is not always sufficient for family members to be aware of their duties and responsibilities in the company and to comply with them in good faith, and legal instruments that have a binding effect and sanctioning power over the relevant family members become necessary in most cases. In this regard, one of these instruments is the shareholders’ agreements.

Recent Regulations Regarding Electricity Storage Activity

15th June 2021

Introduction

Technology has evolved to the point, today, where we use the energy we obtain from different sources most commonly in the form of electrical energy. Electricity is an ideal form of energy through which to perform our daily tasks due to its ease of transfer and conversion to different energy forms.

Liability in Primary Employer and Sub-Employer Relationship

15th June 2021

Introduction

Under labor and social security law, it is essential for the employer to carry out business with its employees. However, in the legislation, the sub-employer concept has been regulated by providing the opportunity to gain support from another employer and its employees in some parts of the work, wherein the employer and, therefore, its employees are insufficient. Pursuant to Article 2 of Labor Code numbered 4857 (“Labor Code”), an employer may assign its auxiliary works related to the production of goods or services carried out in the workplace, or a part of the main work that requires expertise due to technological reasons and the operation, to another employer who takes the job and assigns its employees solely for this work. As is understood from this regulation, the establishment of the primary employer and sub-employer relationship is subject to certain rules. In addition, some regulations have been stipulated in the legislation in terms of the results of this relationship and the liabilities imposed on the parties. Accordingly, due to the possibility that sub-employers who have more limited financial opportunities and smaller capital than the primary employer, cannot meet their debts to their employees and the Social Security Institution ("SSI"), the primary employers with a stronger financial structure and capital have been held jointly liable together with the sub-employer for these debts. In this article, the cases of joint liability regulated under the legislation, and the recourse relationship of the parties, will be evaluated.

Legal Grounds and the Scope of Joint Liability

Pursuant to Turkish Code of Obligations numbered 6098 (“TCO”), joint liability means that each of more than one debtor is responsible for the entire debt to the creditor. Below, the legal regulations under which the primary employer and the sub-employer are legally jointly liable and the scope of these regulations will be examined.

Labor Law

The responsibility of an employer to its employees arises from the employment contract between them or the mandatory provisions of the law-governed by this employment contract. Therefore, the primary employer has various responsibilities and obligations to its employees, both contractually and legally, due to the employment contract between them. There is no contractual relationship between the primary employer and the employees of the sub-employer. Nevertheless, pursuant to Article 2/7 of the Labor Code, the primary employer, together with the sub-employer, are liable for the obligations arising from the Labor Code, the employment contract, or the collective labor agreement to which the sub-employer is a party, to the employees of the sub-employer. With this regulation, the legislator has stipulated joint liability arising from the law to protect the sub-employer's employees as the employees of the primary employer. As a result of this obligation, the sub-employer’s employee may apply to both the sub-employer and the primary employer separately or together for the performance of his/her receivables. Pursuant to the Supreme Court, with respect to the scope of the joint liability in terms of individual labor law, notice, severance, bad faith, and reinstatement compensations, and all labor receivables, such as wages, overtime work, week holidays, general holidays, annual leave, bonus, premium, meals and road allowances are included.^[1] On the other hand, there are different opinions in the doctrine regarding the calculation of the primary employer's obligation arising from the receivables which are dependent as to the period of service, such as severance pay and annual leave. In terms of collective labor law, the responsibility of the primary employer comes into question for the rights arising from the collective labor agreement to which the sub-employer is subject. In accordance with the established doctrine and the Supreme Court opinions, within the framework of the job security granted to the employees with Article 18 of the Labor Code, the primary employer is not jointly liable for the invalidity of termination nor reinstatement of the employee; however, it is accepted that the joint liability exists in terms of non-reinstatement and idle time compensations arising from the sub-employer’s non-reinstatement of the employee to the work after a court decision. It should be emphasized that this joint liability is limited to the time that the employee works at the primary employer's workplace.^[2]

Occupational Health and Safety Law

Pursuant to Article 4 of Occupational Health and Safety Code numbered 6331 (“OHSC”), which is based on the obligation to take care of the employees, which is one of the fundamental obligations of the employer, the employer is obliged to take necessary measures to ensure and protect the health and safety of the employees employed in the workplace. In addition, as per Article 22 of the OHSC, an obligation to establish an occupational health and safety committee is regulated for the primary employer and sub-employer relations that last more than six months. Since the basis of these regulations is the employer’s obligation to taking care of its employees, it is considered that the material and moral compensation claims arising from a work accident suffered, or occupational disease acquired, by the sub-employer’s employees that occurs in or from the workplace, are within the scope of the joint liability of the primary employer.

Social Security Law

Joint liability for the primary employer and the sub-employer is also foreseen under Social Insurance and General Health Insurance Code numbered 5510 ("SIGHIC"), which regulates the social security legislation. According to Article 12/6 of the SIGHIC, even if the insured are employed through a third party and have made a contract with them, the primary employer is responsible, together with the sub-employer, for the obligations this law imposes on the employer. In accordance with the precedents of the Council of State and the Supreme Court, the primary employer is jointly liable with the sub-employer for the obligations imposed by the SIGHIC on the employers, such as the obligation to submit the statement of employment and the leave of the insured, the obligation to notify the workplace, the obligation to report workplace accidents, the obligation to give the monthly premium and the service documents, the obligation to pay the insurance premiums, etc. On the other hand, there are differing practices between the opinions of the SSI, the Supreme Court, and the Council of State, in terms of whether or not this joint liability exists for administrative fines. In one of its decisions, the Supreme Court is of the opinion that administrative fines are the result and sanction of the failure to comply with the duties imposed on the employer, the main employer shall also be responsible for the consequences of the subcontractor's failure to comply with its duties, and the primary employer will be liable for the administrative fines imposed on the sub-employer in accordance with this joint liability.^[3] On the other hand, in a recent decision, the Council of State has decided that since there is no explicit provision in the law stating that the principal employer will be liable for administrative fines in the case of failure to fulfill the specified obligations, and the responsibility of the primary employer solely exists financially and legally; therefore, the party who acts contrary to the relevant obligations should be held subject to the penalties. Accordingly, the Council of State considered that the primary employer shall not be held responsible for the administrative fines imposed by the SSI against the sub-employer, as per the rule of the personality of the penalties.^[4]

Right of Recourse

Under Article 167, which is one of the general provisions of the TCO regulating joint liability, unless otherwise agreed to, or understood from, the nature of the legal relationship between the debtors, each of the debtors is responsible for the performance that shall be made to the creditor with equal shares between/amongst each other. Therefore, as per the internal relationship between the primary employer and the sub-employer, the rule is that both employers are responsible equally to the employee of the sub-employer. On the other hand, this equal liability existing in the internal relationship can be eliminated by the sub-employer agreement concluded between the parties. According to precedents of the Supreme Court, it is stated that in a recourse case between the primary employer and the sub-employer, the liability should be resolved according to the provisions of the sub-employer contract.^[5] Accordingly, the primary employer may demand the entire amount from the sub-employer, which is paid to the sub-employer’s employee, if it is stipulated in the contract.

Conclusion

In the legislation, various results are foreseen in terms of the primary employer and sub-employer relationship. One of these consequences is the joint liability of the primary employer to the creditors of the sub-employer for some debts. The joint liability of the primary employer takes place not only in labor law, but also in occupational health and safety law and social security law. Accordingly, the primary employer is jointly liable with the sub-employer in terms of liabilities arising from the law and the contract to the employees of the sub-employer. In addition, it is accepted that this joint liability exists in terms of the compensation to be claimed as a result of a work accident or occupational disease in the workplace. Unlike the labor law and occupational health and safety law, the scope of the joint liability of the primary employer in social security law is controversial in case law and doctrine views. Legal joint liability stipulates that both employers are equally responsible to the employee and SSI. On the other hand, in the internal relationship between the primary employer and the sub-employer, this responsibility can be eliminated, or the liability ratios can be changed, if the parties agree. It should be noted that this agreement in internal relations cannot be claimed against third parties.

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(Authored by Idil Uz and first published by Erdem & Erdem on May 2021) [1] Decision numbered 2008/23429 E., 2008/20721 K. and dated 21.07.2008 of 9th Civil Chamber of the Supreme Court. [2] Justification of Labor Code numbered 4857 dated 07.03.2003. [3] Decision numbered 1991/10-277 E, 1991/359 K and dated 12.06.1991 of the General Assembly of the Supreme Court. [4] Decision numbered 2015/10087 E., 2018/7937 K. and dated 28.11.2018 of the 15th Civil Chamber of the Council of State. [5] Decision numbered 2012/8729 E., 2012/15064 K. and dated 11.06.2012 of the 13th Civil Chamber of the Supreme Court; Decision numbered 2004/11-254 E., 2004/295 K and dated 12.05.2004 of the General Assembly of the Supreme Court.

Limitation on Financing Expense Deduction through the Updated Draft Communique

25th May 2021

With the Article added to Corporate Tax Law No. 5520 (“CTL”) through Law No. 6322 promulgated in the Official Gazette dated 15.06.2012, the limitation on financing expense deduction was re-introduced into our legislation. According to the regulation whose first effective date was 01.01.2013, for the taxpayers whose foreign liabilities exceed their equity capital, except for credit institutions, financial institutions, financial leasing, factoring and financing companies, a portion of the financial expenses (exclusively for the exceeding part and excluding those added to the cost of the investment) to be determined by the President (the Council of Ministers on that date), not more than 10% has been considered as the payment not deducted as expense in the determination of the tax base. The President has been authorized to differentiate the rate by sector; whereas, the Ministry of Treasury and Finance has been authorized to designate the procedures and principles of the limitation.

Road to Energy Efficiency in Public Buildings: Communique on the Implementation of EPC’s

25th May 2021

In our country, significant steps have been taken recently to increase energy efficiency, to reduce energy costs, and to protect the environment. One of these steps is to increase energy efficiency by saving energy used in public buildings. Various regulations have come into force regarding public administrations, as well as other public institutions and organizations (“Administration”) to form energy performance contracts (“EPC”) with contractor companies in order to reduce their energy consumption or energy costs.

Assignment of the Author’s Economic Rights

25th May 2021 The author is the person creating the work and automatically becomes the owner of the economic rights on the work by the creation thereof. If the author does not have the resources to solely exercise the economic rights on the work, s/he may apply two different methods to benefit from the economic rights as regulated under Intellectual and Artistic Works Act numbered 5846 (“IAWC”). These methods assign the economic rights and assign the authority to exercise the economic rights; in other words, granting licenses for economic rights.

What Does Remote Working Regulation Regulate?

25th May 2021

The concept of remote working was included in the scope of Turkish Labor Law No. 4857 ("Labor Law") through the amendment[1] of Article 14 of the Labor Law in 2016. However, no secondary legislation that regulates the details of remote working was published following the amendment.

Minimum Labour Conditions of FIFA for Female Players Regarding Pregnancy and Maternity

25th May 2021

On 4 December 2020, the FIFA Council approved the amendments to the Regulations on the Status and Transfer of Players (“RSTP”) endorsed by the FIFA Football Stakeholders Committee in November, 2020. One of the most essential additions to the RSTP is the provision regarding pregnancy and maternity for female professional players. This article focuses on the minimum labour standards for female professional players introduced in the amendments to the RSTP, which were also notified to all member associations through circular numbered 1743.[1]The amendments came into force on 1 January 2021.

European Union Payment Services Directive and Its Effects on the Turkish Payment Systems Legislation

25th May 2021

With the initial regulation of the European Union called Payment Services Directive numbered 2007/64/EC (“PSD1”), which entered into force on 01.11.2009, an efficient, fast, secure and competitive payment market was intended, and the application of unified rules throughout this large market across Europe was ensured. FinTech companies, which are payment system providers within that scope, appeared in the finance scene as new actors, together with the banks.

Basic Principles Regarding Public Offering

25th May 2021

Public offerings attracted a great deal of attention from companies and investors in the first quarter of 2021. Beyond any doubt, one of the biggest benefits of public offerings is that it provides liquidity to the company (according to the method to be followed) and is a source of unsecured and non-recourse financing. Aside from this, public offerings of shares ensures the institutionalization of the company offered and, thus, the company becomes independent from a specific individual. The recognition and credibility of the company increases. Considering the benefits of a public offering, it seems that this momentum will continue to increase in the upcoming period. Many products, such as company shares, debt instruments, and warrants may be subject to a public offering. This article refers to the public offering of company shares.[2] Below, the main legislation that the companies will be subject to in initial public offerings in Turkey's capital markets, and the conditions deemed necessary by the Capital Markets Board ("CMB") and the basic principles regarding a public offering process, will be focused on.

The Change in WhatsApp Privacy Policy and Its Effect on Personal Data Protection Law

19th March 2021

On January 4, 2021, the most preferred online messaging application worldwide, WhatsApp, announced that it will change its privacy policy.

Withholding Tax Issue in Digital Advertising Services

19th March 2021

For startup companies, adjusting technology to needs, or creating new needs, with the products and services they offer, and gearing up in our country day by day, one of the key elements is undoubtedly digital advertising activities. With the impact of the Covid-19 epidemic, being visible in digital environments has become the golden rule of being able to operate. The 64% increase in electronic commerce volume[1] may indeed be considered as an indicator of this rule.

A New Tax Controversy: Valuable House Tax

19th March 2021

In accordance with the Valuable House Tax (“VHT”) that is regulated through Law Numbered 7194 on the Digital Service Tax and the Amendment of Certain Laws and Law Decree Numbered 375 (“Law No. 7194”), and which is quite new and controversial to Turkey, households in Turkey whose tax value is more than TRY 5,000,000 are also subject to the VHT in addition to real estate tax.

Energy Performance Contracts as a Project Financing Method

19th March 2021

The objectives of the Energy Efficiency Law[1] ("Law"), which was adopted in 2007, are listed as the efficient use of energy, prevention of waste, lowering the burden of energy costs on the economy, and increasing efficiency in order to protect the environment. In this regard, Article 3(1)(k) of the Law, defines energy efficiency as the reduction of energy consumption, without any decrease to the living standard and service quality in buildings, and without a decrease in production quality or quantity in industry.

Breach of Concordat by the Debtor

19th March 2021

A concordat is a reconstruction agreement that is regulated under Articles 285-309 of the Execution and Bankruptcy Law (“EBL”), and aims to protect both the debtors in poor financial standing, as well as their creditors. Concordats had been applied in our country for a considerable time in the past; however, their popularity ceased after suspension of bankruptcy provisions came into effect.

Halliburton Decision on Apparent Bias: Violation without Consequences

19th March 2021

The English Court of Appeal once reasoned, “Impartiality is the watchword of all tribunals, including arbitrators.”[i] This is indeed true. Arbitrators’ independence and impartiality, both in connection with the parties and the dispute itself,[ii] are fundamental to the arbitral process.

Parent-Subsidiary Liability Within the Scope of Foreign Corrupt Practices Act

19th March 2021 Traditionally, with an aim to prevent corrupt practices internationally, pursuant to the Foreign Corrupt Practices Act (“FCPA”), offering anything of value to foreign public officials while performing their duties in order to gain commercial advantages are prohibited.

Actual Carrier in Carriage of Goods by Sea

19th March 2021

Performance of the carriage of goods by someone other than the person who undertakes the carriage, both for inland and intentional carriage, is a common circumstance. This unique type of carriage by the sea resulted with the emergence of the concept of “actual carrier” due to its genuine nature and needs evolving over time. This Article reviews the term “actual carrier,” and the liability regime within the scope of sea carriage.

The Practice of Unforeseen Circumstance in EPC Contracts

19th March 2021

In EPC Contracts, especially for the international ones, there is a long period between the finalization of the tender or the execution of contract and delivery of the work. It is a quite common situation, in practice, with EPC Contracts that various events arise that were not present and/or unforeseeable when the bid was made or even when the contract was executed, which changes the circumstances unforeseeably.

Administrative Supervision of Advertisements in Light of Advertisement Board Decisions

19th March 2021 Advertising, which has existed since the beginning of trade between people, is a marketing element that we encounter today on television, internet, radio, all kinds of social media tools, on the street; in other words, in all areas of life.

Portfolio Management Companies 101

19th March 2021 The portfolio management companies (“PMC”) that are defined under Article 55 (Portfolio Management Companies) of Capital Market Law numbered 6362 (“CML”) are joint stock companies whose main activity is the establishment and management of investment funds.

Mert Karamustafaoglu has been promoted as Partner and Competition & Compliance Leader

6th March 2019

We are very proud of announcing that Mert Karamustafaoglu has been promoted as Partner and Competition & Compliance Leader, as of January 1, 2019.

Nezihe Boran Demir has been promoted as Managing Associate

6th March 2019

We are very proud of announcing that Nezihe Boran Demir has been promoted as Managing Associate, as of January 1, 2019.

Transfer of Türk Telekom Shares owned by OTAS is completed

6th March 2019

Within the scope of the restructuring of the loans obtained by Ojer Telekomünikasyon A.Ş. (OTAŞ) in 2013 and 2014, the transfer of the shares owned by OTAŞ, representing 55% of Türk Telekomünikasyon A.Ş.’s (Türk Telekom) issued share capital by a special purpose vehicle  incorporated directly or indirectly by the creditors was completed on 21^st of December, 2018.

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

7th January 2019

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

Arrest of Ships under Turkish Law

7th January 2019

The general principles on maritime enforcement are set out in Turkish Commercial Code ("TCC") numbered 6102. On the other hand, Turkey has ratified the International Convention on Maritime Liens and Mortgages, signed in Geneva on 6 May 1993 and the International Convention on the Arrest of Ships, signed in Geneva on 12 March 1999 and both conventions have been come into force on 25 March 2017. The provisions of these two conventions have already been taken into consideration by the drafting committee of the code, and the relevant provisions have been incorporated into the TCC in preparing the same. This newsletter reviews the principles and provisions stipulated in the TCC for the arrest of ships.  

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

7th January 2019

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

Share Pledges in Joint Stock Companies

7th January 2019

Share pledges in joint stock companies are not specially regulated under the Turkish Commercial Code ("TCC"). Therefore, the provisions of the Turkish Civil Code that regulate the general rule regarding pledges, shall apply. Under Turkish Civil Code Article 954, transferable receivables and other rights may be subject to pledge. The pledge established on a share in joint stock companies is a "pledge right established on the right." A pledge is established on shareholding rights. A pledge on receivables and rights is subject to the principles of movable pledges. (Turkish Civil Code Article 954/2).

Updated FIDIC Contracts

3rd January 2019

International Federation of Consulting Engineers that is known by the abbreviation of FIDIC (Fédération Internationale Des Ingénieurs-Counseils) launched updated Red Book (the Conditions of Contract for Works of Civil Engineering Construction), Yellow Book (the Conditions of Contract for Plant and Design-Build)) and Silver Book (the Conditions of Contract for EPC/Turnkey Projects) in the "International Contract Users Conference," organized in London in December of 2017...

Recent Developments in the Right of Access to Files

3rd January 2019

The parties of an investigation that is conducted in accordance with the Act on the Protection of Competition No. 4054 ("Competition Act") may enjoy the right to access the files concerning them that are drawn up by the Competition Authority ("Authority"). The procedures and principles related to use of this right are regulated via Communique on the Rules for Access to Files and the Protection of Trade Secrets No. 2010/3 ("Communiqué"). For the parties, it is very important to exercise their right to access to files properly, since the relevant right has a direct correlation to their right to defense. Therefore, this article focuses on the discussions that may rise during the exercise of the right to access the files in light of the recent Competition Board ("Board") decisions...

The General Data Protection Regulation in Force

3rd January 2019

The General Data Protection Regulation ("GDPR" or "Regulation")1 that was approved by the European Union ("EU") Parliament and entered into force in 2016 has started to be applied as of May 25, 2018. The GDPR lays down rules relating to the protection of natural persons ("data subjects") with regard to the processing of personal data, and rules relating to the free movement of personal data. With this Regulation, it is intended to protect the privacy of the data subjects more strictly, and to reorganize data privacy laws across Europe. Also, it is worth to note that, international companies, as well as Turkish companies, are under the obligation to comply with the GDPR, provided that their activities fall under the scope of the GDPR.

Scope of the GDPR...

General Information on Registration to the Data Controllers Registry and the Decision of the Persona

3rd January 2019

Law on the Personal Data Protection numbered 6698 ("Law") was accepted on 24 March 2016 and entered into force, except for certain articles that are reserved, through publication in the Official Gazette dated 7 April 2016 and numbered 29677...

Amendment of ICSID Rules and Regulations

10th October 2018

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

Amendments Introduced through Law No. 7101 on Arbitration Proceedings

10th October 2018

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

Trust Liability in terms of Groups of Companies

4th October 2018

Article 209 of Turkish Commercial Code No. 6102 ("TCC") has set forth obligations that are subject to damage caused by the trust and reputation of the parent company, as created with society and the consumer. Accordingly, "in the event that the reputation of the parent company and the group of companies reaches a certain level which provides trust to society or the consumer, the parent company is liable for the trust created by utilization of this reputation".

Possibilities and the Results of Trademark Confusion

4th October 2018

Trademarks are the vehicles that are used to differentiate companies one from the other. They help to capture the consumers' attention. It is essential and necessary to protect trademarks that are created and improved with capital and effort, from unrightful use by third parties, and to prevent the encroachment of trademarks through confusion. One of the most efficient functions of intellectual property law is to encumber imitations, and to halt improper benefit by using the popularity of the trademarks to their consumers. On the other hand, in our daily lives, we often see trademarks that are similar, and may wonder how they co-exist at the same time. In this article, we will shed light on the reasons why similar trademarks can be registered, the criteria that cause trademark confusion, and the remedies to prevent and/or remove these infringements.

MiFID II and its Eventual Impacts on Turkey

28th September 2018

The financial crisis of 2007–2008, which is considered by many economists to have been the worst since the Great Depression of the 1930s, has exposed weaknesses in the transparency of the financial markets. In order to restore investor confidence, strengthen transparency, and improve the functioning of the internal market for financial instruments, the European Union (“EU”) has started to draft a new regulatory framework for financial markets following the financial crisis. After seven years in the making, the Markets in Financial Instruments Directive II 2014/65/EU, and Markets in Financial Instruments Regulation 600/2014 (hereinafter together referred to as the “MiFID II”) entered into force on January 3, 2018.

As outlined, above, the new legislation includes both a directive and a regulation. While the regulation has a direct effect within the EU, the directive is to be applied by the member states in national law where there may be national discretion. This article aims to focus on the key aspects of the MiFID II and its eventual impact on third country firms i.e. on Turkey.

Recent Developments on the Enforcement and Bankruptcy Law and Concordat

28th September 2018

Introduction

A significant part of the recent legislative amendments to improve the investment environment are made to Enforcement and Bankruptcy Law (“EBL”) numbered 2004. The amendments made within the scope of Law numbered 7101 on the Amendments in Enforcement and Bankruptcy Law and Certain Laws[i] (“Law numbered 7101”) and the Law numbered 7078 on the Ratification of the Statutory Decree on Certain Regulations within the Scope of State of Emergency with Alterations[ii] (“Law numbered 7078”) shall be addressed.

[i]              Official Gazette (OG), No. 30361, March 15, 2018.

[ii]             OG, No. 30354, March 8, 2018 (bis).

Regulatory Approaches to Crowdfunding in European Union

28th September 2018

Introduction

Crowdfunding has finally entered into Turkish legislation through Omnibus Law no. 7061 dated 5 December 2017, by way of amending certain provisions of Capital Market Law numbered 6362. Although the amendments cover the mainframe of crowdfunding in a very basic form, detailed secondary legislations and policies are needed to implement crowdfunding as a successful system. In anticipation of the secondary legislation it would be beneficial to look at the regulatory approaches to crowdfunding within European Union (EU) Member States and United Kingdom (UK).

Challenging Arbitrators and LCIA Challenge Decisions

28th September 2018

Introduction

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

Management of Information Systems

28th September 2018

Introduction

As stated under Article 128 of Capital Markets Law No. 6362[i] (“Capital Markets Law”), one of the duties of the Capital Markets Board (“CMB”), among others, is to determine the procedures and principles for the supervision and operation of the management of the information systems of capital markets institutions, publicly held companies, stock exchanges and self-regulatory establishments. To this end, based on the provisions of the Capital Markets Law, Communiqué on the Management of the Information Systems (VII-128.9) (“Management Communiqué”), together with the Communiqué on the Independent Auditing of Information Systems (III-62.2) (“Auditing Communiqué,” Management Communiqué, and the Auditing Communiqué, shall collectively be referred to as the “Communiqués”) have been published in the Official Gazette dated 5 January 2018 and numbered 30292. Both the Management Communiqué and the Auditing Communiqué have entered into force with their publication in the Official Gazette. While the procedures and principals applicable to the management of the information systems for the listed establishments therein are determined under the Management Communiqué, independent auditing of information systems is further regulated under the Auditing Communiqué. This article will mainly focus on the scope of the Management Communiqué, innovations introduced thereunder, especially the obligation to keep the systems in the Republic of Turkey and, finally, the sanctions.

[i] Capital Market Law numbered 6362, OG, No. 28513, December 30, 2012.

Canan Doksat has joined Erdem & Erdem as Tax Counsel

27th September 2018

We are proud to announce that Canan Doksat joined Erdem & Erdem as Tax Counsel. Canan Doksat graduated from Koç University Faculty of Law in 2010. She continues her LL.M at the dissertation stage in Istanbul Bilgi University. She started her working life in 2010 at EY Turkey and worked as Manager in the department of Tax and Law.