Levent Lezgin Kılınç; Seray Özsoy
Nigar Guliyeva; Gülenay Kavcar; Eren Can Ersoy
‘The team at Kılınç Law & Consulting has an excellent perspective of market trends and vast knowledge of the energy sector.’
‘Levent Lezgin Kılınç is a very well-known partner in the energy sector and provides pragmatic, practical advice on our operations. Gülenay Kavcar is also an excellent M&A lawyer and she has always been extremely proficient in our deals in the energy sector with her great knowledge in the practice area.’
‘They have exceptional knowledge in the field regarding electricity, natural gas and petroleum operations.’
‘Levent Lezgin Kılınç is very attentive to details and ensures the his clients get the best possible outcome in any matter he handles.’
‘Levent Lezgin Kılınç is much more to us than just an external counsel and his relationship with us is extremely important to us. He is an extremely reputable team leader and a quick and efficient problem solver.’
SOCAR Turkey Company Group / SOCAR Turkey Enerji
Tanap Doğalgaz Iletim
Levent Lezgin Kılınç; Seray Özsoy
‘The team at Kılınç Law & Consulting take a strategic approach to problem solving that gets the deal done while maintaining key protection for their client.’
‘Levent Lezgin Kılınç stands out from other lawyers in the industry for his great problem-solving skills and is a pleasure to work with.’
‘They have a strong track record in M&A and project finance transactions. It is a highly proficient team and they provide great advice on every transaction. Levent Lezgin Kılınç has exceptional leadership skills.’
‘The team are exceptional at asset transactions. They work very well in a multi-disciplinary environment. It is a strong team of partners and senior lawyers, complemented by good associates with industry experience.’
‘Levent Lezgin Kılınç has unique leadership skills. In addition to his deep knowledge of the transaction, he makes a very constructive contribution to every deal he gets involved in.’
SOCAR Turkey Company Group
Tanap Doğalgaz Iletim Anonim Şirketi
Bor Şeker Anonim Şirketi
Kızılay Gayrimenkul ve Girişim Sermayesi Portföy Yönetimi A.Ş.
Levent Lezgin Kılınç; Seray Özsoy Yavuz; Gülenay Kavca
Anonim Şirketi and subsidiaries
Venture Capital Investment Funds of Arz Portföy
Venture Capital Investment Funds of Kızılay
RMA Group Coenda Group
Mersin International Port (MIP)
Kılınç Law & Consulting is a law firm based in Turkey, providing legal services in domestic and international areas. The firm’s leading services include energy and commercial law, competition law, mergers and acquisitions, including the execution of application processes to the Competition Authority, project finance and consultancy services given to Foreign Direct Investments. Accordingly, our law firm provides daily consultancy services to its clients in employment law, contracts law and capital markets law. Our team is competent to provide necessary legal advice to its clients before the national courts and other alternative dispute resolution mechanisms, with lawyers, specialized in maritime law, enforcement and bankruptcy law, and a dispute resolution team specialized in national and international dispute resolution. In addition, Kılınç Law & Consulting has experience in assisting foreign companies with obtaining work permits, residence permits and the acquisition of Turkish citizenship for their employees.
Kılınç Law & Consulting has extensive experience in assisting their clients before the administrative authorities to ensure they obtain required authorizations, licenses and/or permits for their respective commercial activities. Our specialist lawyers pursue and finalize the application process for the client before public authorities in Turkey while ensuring its foreign clients benefit from the incentives that the legislation offers. Following the completion of authorization, licensing and/or permit processes Kılınç Law & Consulting prepares project and financial agreements for its clients by carrying out the relevant negotiation processes and completes the closing and registration processes for its clients. Moreover, the firm conducts services in order to ensure its clients comply with the ever-changing regulations through our regulation and compliance department with the daily sector-specific feedback on regulatory changes.
In addition to providing consulting services on government relations in multiple sectors, Kılınç Law & Consulting also advises international companies on their investments in Turkey, including company establishment procedures, contract negotiations, completing agreements, restructurings, day to day corporate and operational needs and taking the necessary legal steps against disputes that may arise in the future. Kılınç Law and Consulting, within the scope of its innovation and fintech department; provides services to clients working in the fintech, artificial intelligence, E-commerce and Esports sectors and start-up and scale-up companies Kılınç Law & Consulting, through its data privacy department, provides services on compliance with the personal data privacy law that was amended in 2016 that regulates privacy obligations for companies that has a certain amount of revenue and employees. In addition, Kılınç Law and Consulting provides services to real and legal persons operating in the media and entertainment sector in the fields of advertisement law, digital media, media contracts, press and broadcasting law and internet law through the media and entertainment department.
Our goal is to offer preventive precautions and to generate solutions to the legal issues our clients face. Our team comprises experienced partners, associates, and paralegals who are fluent in English, German, Arabic, Russian and Azerbaijani.
|Energy Law||Levent Lezgin Kılınçfirstname.lastname@example.org||+90 212 217 12 55|
|Project Finance||Levent Lezgin Kılınçemail@example.com||+90 212 217 12 55|
|Mergers & Acquisitions||Seray Özsoyfirstname.lastname@example.org||+90 212 217 12 55|
|Dispute Resolution||Duygu Doğanemail@example.com||+90 212 217 12 55|
|Contracts Law||Nigar Guliyevafirstname.lastname@example.org||+90 212 217 12 55|
|Employment Law||Mevra Baran Akkoyunemail@example.com||+90 212 217 12 55|
|Corporate Law||Gülenay Çapkınoğlu Kavcarfirstname.lastname@example.org||+90 212 217 12 55|
|Competition Law||Eren Can Ersoyemail@example.com||+90 212 217 12 55|
|Contracts Law||Başak Kartal Bektimurfirstname.lastname@example.org||+90 212 217 12 55|
|Mr Levent Lezgin Kılınç||Founding Partner||View Profile|
|Mr Levent Lezgin Kılınç||Founding Partner||View Profile|
|Duygu Doğan Şahiner||Partner||View Profile|
|Duygu Doğan Şahiner||Partner||View Profile|
|Seray Özsoy Yavuz||Partner||View Profile|
Since its establishment in 2014; Kılınç Law & Consulting has always prioritized extending its reach to the international community and being of service to foreign investors on every legal problem they would face in Turkey. As a law firm providing services to foreign investors from all over the globe; we primarily focus on extending our international capabilities to better service our clients.
Kılınç Law & Consulting’s primary goal is to service foreign direct investors through their investments in Turkey. As a full service law firm, we are able to provide services to companies starting from their investment decision in Turkey via establishment of foreign capitalized companies as well as maximizing benefits they would receive from the governmental incentives, initiating their business in Turkey and their everyday legal enquiries.
Moreover, through working with foreign investors from all over the globe; we recognize that many of the investors prefer an on-hands approach in their investments, requiring their key personnel to be in Turkey to be able to direct their operations onsite. Acknowledging this requirement our Firm, through its immigration department has broad experience in assisting foreign companies with obtaining work permits, residence permits and the acquisition of Turkish citizenship for their employees.
Kılınç Law & Consulting through its strong connections in multiple jurisdictions, provides services to their clients in Azerbaijan, Europe, Middle East and wherever they require legal assistance at. As a team fluent in many different languages and experienced in providing services to foreign clients; we take pride in being able to assist our clients in their every need, in their own language.
In order to be efficient in attending to the legal requirements of our clients and to service our clients better through multiple expert professionals; we have recently formed foreign jurisdictional desks for UK, Central Europe, Kuwait, Azerbaijan, Qatar and Black sea Countries.
Extending Global Network
As a member of the global legal community; we are always in touch with global network of legal professionals and businesses. Through our multiple memberships in International Organizations including IBA and AIJA; we are able to work together with multiple experts in the field for the international requirements of our clients. Therefore, working together with Kılınç Law & Consulting means that you are part of an esteemed global network of highly skilled professionals.
Kılınç Law & Consulting’s London office has started its operations on 2019 in order to be a hub at one of the biggest economies in the world and able to give international legal advice for clients based, or planning to extend its reach to UK.
In order to extend our international capabilities, we are always trying to be in connection with the best legal consultants in different jurisdictions. In order to facilitate the operations in Qatar region, we have signed a Cooperation Agreement with Al Sulaiti Law Firm, one of the most reputable law firms in Qatar. Within the scope of this agreement Firms we will be covering the legal needs of our clients in our respective countries.
With its wide production possibilities, qualified workforce, strategic location, modern logistics infrastructure and incentive packages that can meet every need, in addition to these commercial advantages, Turkey located on the east-west line of energy resources, in Europe, is one of the most reliable routes to transport to their countries.
Turkey’s rapid economic growth has led to the emergence of a middle class whose purchasing power has increased in the last 19 years. More than 24 cities with over 1 million population each support a developing domestic market in Turkey. We provide a growing local demand infrastructure for multinational companies with our young and dynamic population with an average age of 32.7, The country with the youngest population compared to the member states of the European Union. Turkey also ranks high in the world in the number of qualified engineers.
Turkey gives to the Foreign Direct Investment, increasing its benefits to the investors and many other factors. Last years, Turkey with the new regulations and reforms boost the investments. Especially; With the regulations prepared within the scope of the Law No. 7263, some amendments and additions were made in the Law No. 4691 on Technology Development Zones and the Law No. 5746 on Supporting Research, Development and Design Activities, and the law was published in the Official Gazette dated February 3, 2021 and entered into force. The notable changes in the law numbered 4691 is the addition of the term “Incubator Startup”. It is stipulated that incubation centers located in the physical areas of Technology Development Zones can be established in other areas other than the areas of the region, and that entrepreneurs located in these centers can benefit from support, incentives and exemptions. This situation makes a great contribution to the development of initiatives that cannot get enough benefit from the advantages of the region, especially during the pandemic process. Besides, with the new paragraph added to Law No. 5746, “Venture Capital Support” was included in the Law and it was stated that the Ministry of Industry and Technology could transfer a budget from its own budget to venture capital funds in order to support technology, technological production and innovation activities. It is stipulated that tax deductions can be granted to companies benefiting from the funds to which this support budget is transferred or the investments of the funds invested by these funds. All these developments provide great support to bring value-added investments in fields needed by our economy to our country.
Moreover, it was pointed out by many government officials that Turkey is willing to get into the top 20 in the World Bank Rankings and will be willing to continue reformation processes in its legislation in order to further enhance the investment environment in the country. As one of the worldly renowned reports on foreign investment, World Bank annually releases a “Doing Business” guide that evaluates the fundamentals of every country and assessing where the country ranks against the rest of the world concerning the investment dynamics. In the previous editions of the “Doing Business Report”; Turkey ranked 69th in 2017, 60th in 2018, and 43rd in 2019. This year, in the “Doing Business 2020” report; Turkey has jumped up 10 places from the year 2019 is now 33rd in the World Rankings. But what has changed to cause this jump for Turkey.
Our Country is attractive for international investors with wide production potentials, qualified manpower, strategic location, modern logistics infrastructure and incentive packages that cater to any needs. In accordance with the records of the Government; Turkey has the required means to access a giant market of 1.3 billion people and US$26 trillion worth of trade volume with a four-hour flight radius.
Moreover, Turkey with its geographical location as the bridge between the continents of Asia and Europe as well as the having Bosporus being tying the Black Sea to the Mediterranean; has always been at the heart of the historical trade routes. In addition to these advantages for trade, Turkey is among the most reliable routes of transporting energy sources in the global markets such as the European Market and the Middle East and conducting trade at both of these regions from Turkey is an extremely potent approach for an investor looking to extend its reach to two continents via a strategic trade location.
In Turkey, especially for foreign investors, investments and trade should almost exclusively be conducted through companies in order to get the most of the Turkish Incentive System. As the companies offer plenty of advantages for an investor and quicken the processes through the use of representatives; the investors should direct their investments at a company established in Turkey in order to both legally protect themselves and get the most out of their investments.
As per the Turkish Commercial Code numbered 6102 (“TCC”), there are principal 5 (five) company types namely Joint Stock Company, Limited Liability Company, Collective Company, Commandite Company, and Cooperative Company.
Investors wishing to establish a company prefer two types of companies namely Joint Stock Company and Limited Liability Company, because of the reasons such as tax advantages, limited liability of the shareholders, the fact that the registration of the company before the authority.
A- JOINT STOCK COMPANY
Joint Stock Company is defined as a company that consists of a capital divided into shares and has liability for its debts as limited only to its assets. Also, the shareholders have liability only to the company as limited to the capital share they have undertaken at the established procedures. Therefore, for a shareholder, the liability is explicitly limited to the payment of the undertaken capital amount to the company.
The existence of one single founder shareholder who is a real or legal person is sufficient to establish a Joint Stock Company and there is no upper limit for the number of the shareholders.
The undertaken capital shall be TRY 50.000,00 (Fifty Thousand Turkish Lira) at least and this lower limit of the capital is TRY 100.000,00 (Hundred Thousand Turkish Lira) for the company subject to Registered Share Capital System. The registered share capital system is almost explicitly used by the Companies that are offered to the public and subject to the Capital Markets Law. Also, immovables can be transferred to the companies as capital providing a valuation of an expert report.
A Joint Stock Company can be established for any economic purpose unless prohibited by the law and for a limited or unlimited amount of time.
Establishment of the Joint Stock Company active in fields such as financial leasing companies, banks, insurance companies are subject to the approval of a ministry or other respective public institutions. In case of that, the Joint Stock Company is desired to be established to be active in such areas, approval letter from a ministry may be required before establishment. Please note the revisions of the Articles of Association of the companies operating in the above sectors are subject to this approval process, too.
The Articles of Association must be written and signed by the founder shareholder and the signatures must be approved by the notary public. Also, the Articles of Association includes the required items such as field of activity, capital, nominal values of the shares, authorities, address, representatives of the Joint Stock Company. First members of the Board of Directors are appointed by the Articles of Association. We’d like to emphasize this point that it is only possible to insert a provision into the Articles of Association if this provision is clearly allowed by the law.
There are two mandatory organs of the Joint Stock Company. These are the General Assembly and Board of Directors. The Joint Stock Company is managed and represented by the Board of Directors under the supervision of the General Assembly. Board of Directors is authorized to decide on any kind of transaction and subjects required to realize the purpose of the company generally. A member of the Board of Directors is not required to be a shareholder of the Joint Stock Company. Real and/or legal persons may be a member of the Board of Directors.
B- LIMITED LIABILITY COMPANY
Limited Liability Company is defined as a company established by one or more real or legal persons with a definite capital. The shareholders of Limited Liability Company have liability only to the company as limited to the capital share they undertook as well as the shareholders of the Joint Stock Company and also the shareholders of Limited Liability Company may be liable for supplementary payments and additional liabilities set forth by the Article of Association. This provision for the Limited Liability Companies is sometimes used to define some additional payment liabilities for the shareholders in order to avoid the insolvency of a company.
Limited Liability Company is established with a minimum capital of TRY 10.000,00.-(Ten Thousand Turkish Liras) divided in to share with a value of TRY 25.-( Twenty Five Turkish Liras) or multiples thereof by at least 1 (one) shareholder and maximum 50 (fifty) shareholders to be active in any kind of economic purpose and subject that are not illegal.
The Limited Liability Company consists of two mandatory organs, Shareholders’ Assembly and Manager or Board of Managers. Please note that, management and representation of Limited Liability Company are carried out by a Manager and/or Board of Managers. It is important that at least one shareholder must have managing authority. Furthermore, in the case of the number of Managers is more than one, one of these Managers must be appointed as the Head of the Board of Managers. Management and representation of the Limited Liability Company may be assigned to one or more shareholders or all shareholders or third person. Managers are authorized to decide on and conduct all subjects related to the management not vested into general assembly by law or Articles of Association.
C- INDEPENDENT AUDIT
It is crucial to explain that Companies are subject to Independent Audit pursuant to Turkish Audit Principles as per the Turkish Commercial Code and in accordance with the terms of 2018-11597 numbered Presidential Decree and the companies which subject to Independent Audit are also supposed to create a website and allocate some part of this website to the announcements required by the law.
D- COMPANY ESTABLISHMENT PROCESS
The company establishment process in Turkey is conducted through an electronic system named MERSİS and the supporting documents are delivered to the trade registry after an online application is filed to the system. For the establishment of the Joint Stock Company and Limited Liability Company (“Company”), the documentation that is pointed out in the respective regulation of the Company types shall be registered before the respective Trade Registry Office of the city that the Company will be established at.
Considering to start investing or expanding current business in Turkey will be the right decision for all the foreign investors, due to the fact that the Republic of Turkey has one of the most growing economies in the world with its advantages of geographical location, diversified economy and investment opportunities supporting by the government. Especially the Investment Office of the Presidency of the Republic of Turkey is the official organization for promoting Turkey’s investment opportunities to the global business community and for providing assistance to investors before, during, and after their entry into Turkey. As we are a lawyer, mostly directs our Clients to the Investment Office of the Presidency of the Republic of Turkey to hear the advantages and opportunities of Turkey from the firsthand. After their meetings with the Presidency Investment Offices, all our Clients have clear answers for their queries that why should we invest in Turkey.
Actually, there are many important reasons for making an investment in Turkey, but the top reasons to invest in Turkey can be listed as follows:
Large Domestic and Regional Markets
Skilled and Cost-Competitive Labor Force
All of the above reasons can be just motivation for all potential investors who are thinking to make an investment in Turkey. Also, there is one more good news from our country. The Republic of Turkey official announced its first fully domestically-produced car last months, it is planning to eventually produce up to 175,000 of the electric vehicles a year in a project expected to cost 22 billion Liras ($3.7bn) over 13 years. It is obvious that this investment demonstrates the country’s growing economy.
The legal system of Turkey is similar to the fundamentals of continental Europe. As a civil law country; Turkey has a codified set of rules that explain the processes that are to be carried out in the country. We believe codification of the rules to be an important attraction point for a foreign investor since the requirements, the repercussions and the liabilities are definitively laid out in the primary legal sources that are constitution, laws regulated by the parliament and the decrees issued by the Presidency and secondary sources that derive from these primary sources that are by-laws, regulations and communique.
Turkish Legal System based on the Turkish Constitution numbered 1982 is generally composed of Civil Law and Administrative Law and so does not adopt the precedent system. Generally, in Turkey, the judicial system is separated into three levels, one is the first instance courts, district courts, and supreme courts.
The scheme shows the main structure of the court system but under these courts, there are specialized courts for certain legal areas. (for example, under the courts of civil law; commercial courts, consumer courts, enforcement courts, family courts, labor courts etc.) Also, in Turkey with the new regulation for the labor cases and commercial cases, it is obligatory to apply mediation before filing a lawsuit. The mediation level is the pre-condition before filing a lawsuit. With this regulation, Turkey has gained the investors, due to the reason that the investor can speedily enforce their contracts at this level without paying any Court costs and expenses.
Turkish Courts especially seek written pieces of evidence before deciding on any cases, therefore it is very critical to gather evidence before applying any courts. From this point of view, we advise all our Clients to not act independently on any of their operations without taking consultancy from their lawyers, because in accordance with the current codes in Turkey, most of the transactions shall have to fulfill the form requirements regulated by the related laws.
The fundamental regulation that creates the foreign direct investment regime in Turkey is the Foreign Direct Investment Law Numbered 4875 (“FDI Law”) and the Regulation on the Implementation of the Foreign Direct Investment Law. According to the FDI Law, an FDI according to Turkish regulation is defined as;
Convertible cash capital in currencies that are traded by the Turkish Central Bank, Company Securities, Machinery and Equipment and Industrial and intellectual property rights that are brought to Turkey from overseas or; rights related to the profit, revenue, money receivable or investment having financial value used in the investment, Rights for exploration and extraction of natural resources, that provided domestically in order to;
An FDI that corresponds to the definition pointed out above; is regarded as equal with domestic investment. Moreover; Foreign direct investments, in accordance with the legislation in force; cannot be expropriated or nationalized unless the public interest requires and their provisions are paid.
Therefore, according to the FDI Law; investments made by foreign investment is not restricted in amounts except for certain sectors that are regulated through different regulations.
Secondly, according to Article 3c of the FDI Law; net profits, dividends, sales, liquidation and compensation, licensing, management, and similar agreements in exchange for sums to be paid by foreign loans principal and interest payments, and foreign credit principal and interest payments arising from the activities and transactions of Foreign Direct Investments in Turkey can be freely transferred abroad through banks or special financial institutions. Therefore; and FDI that fits the definition pointed out in the FDI Law is not subject to any foreign exchange control.
The new investment incentive system has been specially designed to encourage investments that have the potential to reduce import dependency on intermediate goods, which are important for the strategic sectors of the country.
Reducing the current account deficit, expanding the investment supports provided to less developed regions, increasing the number of support elements, promoting clustering activities, supporting investments to provide technology transformation are among the main objectives of the new investment incentive system.
As of 1 January 2012, the new investment incentive system consists of four separate regimes. Domestic and foreign investors can benefit equally from the following incentives:
1- General Investment Incentive Practices
2- Regional Investment Incentive Practices
3- Large Scale Investment Incentive Practices
4- Strategic Investment Incentive Practices
Investments that meet the following criteria are supported within the scope of Strategic Investment Incentive Practices:
In order to these incentive practices, each practice has a different type of benefits such as VAT exemption, customs tax exemption, tax discount, social insurance premium support, income tax withholding discount, social insurance premium support, interest rate support, land allocation, VAT refund.
The Republic of Turkey become the first destination for all foreign investors around the world due to the reason that the Republic of Turkey has one of the most growing economies in the world with its advantages of geographical location, diversified economy and investment opportunities supporting by the government. In accordance with the Doing Business Report, Turkey has jumped up 10 places to be 33rd among 190 nations. It is clearly seen that Turkey gained critical achievements in economic fields, especially by comparing all places into the index for two years, Turkey has gained improvement in 27 places. The expectation of Turkey is being ranked 20th on the next index. All of the improvements and the speed of economic growth boost investors to do direct investments within the border of Turkey.
Also, the Turkish Government continues to make new regulations and reforms in order to improve the activities of the Turkish business life such as reducing costs and accelerating the procedures.
Besides, last year can be the year of publishing new regulations and reforms for Turkey, due to the reason that Turkey aimed to boost the investments with the new regulations and reforms and truly succeeded in its aims Especially; the Law No. 7263, made some amendments and additions in the Law No. 4691 on Technology Development Zones and the Law No. 5746 on Supporting Research, Development and Design Activities. With new amendments, the great support provided to the incubators and the granted tax incentives to the investors.
Kılınç Law & Consulting
In the last year, Turkey has hosted important financing projects in the energy, automotive, agriculture, heavy industry, textile, defence industry, aviation, technology and real estate sectors. In recent years, consortium models have come to the fore in large projects, and the incentives injected directly into the economy together with the government’s incentive policy have played a critical role in creating an impact in a short time. Financial supports given to SMEs and small businesses include raw materials, spare parts, etc. increased the profitability of the products and ensured that the investments were placed on solid foundations.
The Central Bank of the Republic of Turkey announced on 31 March 2020 that it will extend rediscount credits up to 60 billion TL for Turkish lira export and foreign exchange earning services in order to limit the adverse effects of the Covid-19 epidemic. Since it was observed that the working capital loan need was effectively met by the banking system in the previous period, it was decided to use the 20 billion TL facility allocated to Turkish lira rediscount credits more effectively as an advance loan with investment commitment in order to support investments in particular sectors that are critical for the country.
Of the remaining 40 billion TL limit in Turkish lira rediscount credits, 20 billion TL is being used by Türk Eximbank, 10 billion TL by public banks and 10 billion TL by other banks. In addition, the number of projects co-financed by both domestic and foreign creditors in Turkey has increased in recent years.
Currently, highway, airport, port, marina and tourism facility, customs facility and customs gate, urban infrastructure and energy facility project in Turkey are carried out with the models that can be shown as four main public private partnership (PPP) models; build-operate-transfer (BOT), build-operate (BOO), build-lease-transfer (BLT); and transfer of operating rights (TOOR).
Sponsors in Turkey vary according to the size of the projects undertaken. In the Turkish market. Lenders are generally licensed by the Banking Regulation and Supervision Agency (BRSA). However, many other actors in the industry can act as lenders, including multinational credit institutions and international financial institutions such as the European Bank for Reconstruction and Development (EBRD), the International Finance Corporation (IFC) and the European Investment Bank (EIB).
Regarding deal structuring, firstly, a special purpose vehicle (SPV) should be established according to the company form desired in the project. If the SPV is to be established as a company, it can be either a limited liability or a joint stock company. In this case, a joint stock company is preferred due to the limited liabilities and capital structure.
If there are multiple sponsors in the project, in order to determine their cooperation, rights and obligations, a shareholder’s agreement (SHA) is signed in addition to the articles of association (AoA), where every issue cannot be regulated due to the strict regulation of Turkish Law and the confidentiality of internal relations. In case of conflict, AoA will prevail according to legal regulations.
Since other methods such as joint ventures and consortiums that can be used in project financing require the direct responsibility of the sponsors, incorporation of a company is recommended if the project does not specifically define the structure. Nonetheless, the SPE can be tailored to the different needs and measures of various parties in cross-border transactions involving foreign lenders, creditors or securities providers.
In accordance with Decree No. 32, Turkish residents are prohibited from taking out foreign currency loans from Turkey or abroad. Legal entities residing in Turkey can obtain loans in Turkish Lira from abroad if they use these loans through banks in Turkey. Legal entities residing in Turkey can also obtain foreign currency loans from abroad, provided that they comply with the principles and restrictions specified in the Decree No. 32 and use these loans through banks in Turkey. In general, legal entities residing in Turkey without foreign currency income must not take foreign currency loans from abroad.
On the other hand, there are no restrictions against providing security or guarantees to foreign lenders. This procedure is usually completed through a letter of guarantee issued by one of the Turkish banks on behalf of the project company.
In line with the national policy liberalised towards foreign direct investments in Turkey with the amendments made in the Foreign Direct Investment Law No. 4875 (FDI Law) in 2003, in principle, foreign direct investments can enter the Turkish business landscape without the need for permission. Legal entities established in accordance with Turkish law with foreign capital are considered domestic companies regardless of the shareholding percentage of foreign investors. Foreign investors and their investments are treated the same as domestic investors and their investments. Moreover, with the FDI Law, some other principles that are of high importance for promoting a successful foreign investment environment such as freedom to invest, valuation of non-cash capital and employment of foreign personnel have found application. In this framework, foreign investors can freely establish companies, open branches and/or buy shares of an existing company and make know-how technical assistance agreements with local companies.
According to the FDI Law, companies with foreign capital established under the Turkish Commercial Code shall be treated equally with companies with domestic capital. In accordance with this principle, foreign investors have the right to establish a company with 100% foreign capital or buy all the shares of an existing Turkish company.
Within the scope of domestic laws and bilateral and multilateral investment protection agreements ratified by the Republic of Turkey, profit transfer is guaranteed.
While companies resident in Turkey are subject to certain restrictions to obtain foreign currency loans from abroad, they are free to borrow from abroad in Turkish currency or foreign currency. In addition, Turkish legal entities that do not have foreign currency income are not allowed to borrow foreign currency from abroad. In addition, companies residing in Turkey are allowed to use intercompany foreign currency loans from their parent companies, under the condition that such parent companies own 100% of their shares directly or indirectly.
Regarding offshore foreign currency accounts, having a bank account for the SPV in Turkey will be one of the prerequisites for the project, as large projects are often the subject of the tender. On the other hand, Turkish banks may decide to set this issue as a prerequisite. However, in cases where the project company is operated through offshore foreign currency accounts, special attention should be paid to dividend transfer and double taxation, depending on the concrete case and the investor’s country.
Private law subjects do not have any registration or filing obligations within the scope of the projects (financing or project agreements) they undertake in Turkey, without some exceptions such as public or public-private partnership projects that are subject to the tender procedure being required to be registered by the relevant tender institution, certain notification and permission obligations of the publicly held companies regarding Capital Markets Board and Banking Regulation and Supervision Agency.
In Turkey, mining, petroleum works, water resources and the fields of activity within the scope of EMRA are among the fields that require a license for companies to operate. In order to carry out production, storage, transmission, distribution and similar activities in the fields of electricity, natural gas, petroleum and LPG within the scope of EMRA, a license must be obtained from the relevant institution.
It should be noted that, every foreign company that will operate in the electricity sector must be a limited liability company or joint stock company established in accordance with the regulations of the Turkish Commercial Code. In addition, there are separate regulations related to each resource/energy element regarding the regulations that should be included in the company’s articles of association, such as minimum capital requirements, periodical audit/reporting processes.
Rules regarding the priority of competing security interests may vary depending on the type of security. While the priority is the chronological order in the issues of collateral and security, the mortgage and lien orders are also important. The parties are free to agree on a different order in any case. In some cases, priority may be given to public receivables under the Law on the Procedure for the Collection of Public Receivables.
The order of the contractual security depends on the date the security is created, or the order of the guarantees may be specified in the agreement.
Within the scope of projects and financial contracts, capital and individual companies can be established within the scope of the Turkish Commercial Code. Also, through the establishment of partnerships or consortiums, projects and financial agreements can also be carried out. The partnership structure, management structure and responsibility structure of the partners and managers vary depending on the type of company. For example, the liability of the partners of commandite and collective company for the debts of the company is much heavier compared to the liability of limited liability and joint stock company partners. In addition, factors such as the field of activity of the project company, permits and licensing regulations to which it is bound, tax processes etc. affect the legal form determination process of the company.
Real estate and all kinds of immovable mortgages, liens on movables and stocks, letters of guarantee, any receivable that is allowed to be assigned, equipment, bonds and repo can be used as loan collateral by lending institutions.
Regarding charges or interest on all current and future assets of a company, in Turkish law, the subject of the security must be definite, therefore, a floating charge or other security interest on current and future assets are not allowed.
On the other hand, the restriction on the companies regarding purchasing and/or accepting their own shares as security or guarantee should be taken into account. Furthermore, additional restrictions may be imposed depending on the nature of security or guarantees and depending on the lender’s request.
It is necessary to mention specific items in accordance with the type of collateral agreement and since the subject of the security is required to be definite, a general description of the scope of the determined coverage is not sufficient.
If the claim is unpaid and has become due, the secured lender can enforce its collateral, in accordance with the provisions of the Turkish Code of Obligations No. 6098. With the default of the claim, a specific time is given to the debtor by instigating a warning, unless a specific time has been agreed in the agreement.
The basic and most preferred collateral enforcement method is to request the sale of collaterals through enforcement offices in case the collaterals are valuable immovable and/or movable assets other than cash collateral, bank letter, or cheque. The right of a mortgage on immovable assets such as facilities or debtor’s properties or stock certificates of a debtor or guarantor’s company is the most common types of collateral in project finance. Following the application of the lender, the sale transaction is arranged by the enforcement office and if the market value of the collateral is not available, the collateral is sold by auction.
Pursuant to Article 24 of the Turkish International Private and Civil Procedure Law No. 5718 (MOHUK), the parties may decide to apply the foreign law, if there is a foreign element in an agreement. If the parties choose foreign law, the dispute shall be resolved before foreign jurisdictions in accordance with foreign law. In order to file a lawsuit before Turkish courts with a foreign judgment, the recognition and enforcement process of the judgment must be completed. After such a process, any request acquired before foreign courts or arbitral tribunals can be fulfilled before Turkish courts and enforcement offices.
Arbitral awards rendered by one of the states party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards will be recognised and enforced in accordance with the provisions of the New York Convention without retrial, because Turkey is a contracting state to the relevant convention.
In terms of the arbitral awards given by a country other than contracting states of the New York Convention or a judgment by any foreign country’s court, MOHUK shall apply to the recognition and enforcement procedures
In terms of the rights to apply to courts and enforcement offices regarding their rights arising from loan or security agreements, foreign lenders and Turkish citizens generally have the same rights. However, with the Code of Civil Procedure No. 6100 and the MHK, exceptions have been made for Turkish citizens with no habitual residence and foreigners.
Various legal remedies envisaged in Turkish law to ensure restructuring other than bankruptcy can be summarised as concordat, restructuring through reconciliation and restructuring between the parties with external agreements without being brought before a court.
Concordat is a transaction that aims to prevent the bankruptcy of the debtor by delaying and restructuring the debts of the debtor who wants to pay his debt but cannot pay due to economic developments and market conditions.
One type of concordat called bankruptcy concordat begins when the debtor or one of the creditors who may claim the bankruptcy of the debtor submitting a concordat project to the commercial court of the first instance and determines when and how the debts will be paid. If the necessary conditions are met, the court gives the debtor a temporary respite and appoints a temporary concordat commissioner. The court must decide whether to grant the debtor a certain amount of time in the temporary period. Within the scope of the concordat process, creditor meetings will be held and the concordat project will be voted on. With the approval of the concordat, the concordat provisions become mandatory for all creditors.
Other types of concordats are the waiver of assets in which the creditors are authorised to dispose of the debtor’s assets or to transfer all or part of this asset to third parties and restructuring through conciliation envisaged for capital companies and cooperatives.
In line with the relevant provisions of the Execution and Bankruptcy Law No. 2004, it has been regulated that the receivables that are not yet due, will become due and demandable with the bankruptcy decision with one exception which is the receivables secured by a lien on immovable property of the debtor.
Receivables with a delaying condition or uncertain term can also be registered at the bankruptcy desk. However, at the end of the liquidation phase, the share allocated for these receivables can only be paid if the condition is fulfilled or the uncertain maturity is reached.
As a rule, in order for the creditor to make a claim from the surety bond, it must first demand payment. However, in the event that the debtor’s bankruptcy is decided pursuant to Article 202 of the Execution and Bankruptcy Law No. 2004, the creditor can make a request directly from the guarantor/security provider without applying to the debtor. Therefore, this constitutes an advantage for lenders.
With other alternatives having been created within the legal system in order for the debtor, security provider or guarantor to claim their receivables in case of bankruptcy, the risk towards creditors is minimised.
Pursuant to Article 43 of the Execution and Bankruptcy Law, persons subject to bankruptcy are those who are subject to the provisions of the Turkish Commercial Code and the real or legal persons who are declared to be subject to bankruptcy, although they are not merchants according to their special laws.
The natural and legal persons subject to bankruptcy can be named as commercial companies; foundations ; associations operating commercial enterprises to achieve their objectives; institutions and organisations established by the state; special provincial administrations, municipalities and villages and other public legal entities that will be managed in accordance with the provisions of private law in accordance with their own founding laws or that will carry out commercial activities (and therefore will be considered merchants). The merchant who quits the trade will be subject to bankruptcy for one more year from the announcement of its abandonment.
Establishments that spend more than half of their income on public duties are not considered merchants such as the state, special provincial administrations, municipalities and villages, other public legal entities, associations working for public benefit, and foundations that spend more than half of their income on public duties are not subject to bankruptcy. Moreover, the Social Security Institution is not subject to the foreclosure and bankruptcy provisions of the Execution and Bankruptcy Law.
The Bank Insurance Transaction Tax (BITT) rate was determined as 5% with the decision dated 12 August 1991, No 91/2072, published in the Official Gazette on 16 August 1991, No 20962, and a 5% tax is applied to insurance transactions pursuant to Article 33 of Expenditure Tax Law No 6802. The burden of the tax is a subsidised obligation and as in VAT, is reflected on to the end user who benefits from the services.
However, the following are not subject to any kind of tax, duty and charge, pursuant to Article 29 of the same law: the money received for insurance against nuclear risks, mortgage finance institutions, housing finance institutions, and housing finance funds received in favour of all transactions within the scope of housing finance, and compulsory earthquake insurance (DASK) premiums.
Regarding the risks in a project finance transaction, the risks are reinsured abroad, at a percentage determined depending on the types of transaction. Both original insurances and reinsurance can be paid to the foreign creditor and transferable. “Reinsurance insurance” is the reinsurance of a certain part or all of the insured risk. In the event that the risk of large damages coming at the same time, insurance companies take out repeated insurance in order not to have difficulties in paying the damage. Insurance companies are able to spread out risks that are not financially possible to bear on their own by reinsurance. Then, the parts exceeding the risk that the insurance company can undertake are transferred to reinsurance companies via reinsurance agreements. Generally, foreign insurance companies reinsure the major tax assessment risks undertaken by Turkish insurance companies.
The major items that will be subject to tax withholding are self-employment payments, employee payments, rent payments, and dividends, in accordance with the relevant articles of the Income Tax Law and the Corporate Tax Law. On the other hand, according to Article 30/8-b of the Corporate Tax Law that regulates the cuts from the abroad credits; principal, interest and dividend payments, insurance, and reinsurance payments regarding loans obtained from foreign financial institutions are not subject to a tax deduction.
Besides the deductions envisaged in the above aforementioned article, creditors are evaluated separately with regards to Banking and Insurance Transactions Tax (BITT).
The money received by bankers in cash or on account for their own benefit due to their bank transactions and services are also subject to bank transactions tax, as per the 2nd paragraph of Article 28 of the Expense Taxes Law No. 6802 (The Law).
In cases where the parties do not determine the contractual interest and default interest rates, the Law on Legal Interest and Default Interest (Code No 3095) finds the application area in terms of regulating the percentage of interest to be applied. Moreover, the same law also regulates the capital interest and default interest percentages to be applied in commercial transactions.
Furthermore, there is a limit for the contractual interest rates to be determined between the parties in the Turkish Code of Obligations No 6098. Pursuant to the Article 8/1 Turkish Commercial Code No 6102, interest rates in commercial transactions can be freely determined. Therefore, in project finance processes, the interest rate may be determined freely. Otherwise, the amounts indicated in Code No 3095 will apply.
As a rule, Turkish law will be applied to the agreements that do not contain a foreign element. However, in project or finance agreements, in cases where one of the parties is a foreigner, the application of foreign law can be decided.
First of all, as a rule, in the event that the parties to the agreement are Turkish then Turkish law shall be applied. The law to be applied in transactions and relations related to private law with foreign elements, the recognition of foreign decisions with the international authority of Turkish courts and rules on enforcement of decisions are regulated in the Law on International Private Law and Procedural Law (IPLPL) which entered into force after being published in the Official Gazette dated 12 December 2007, No 26728.
The “foreign element” mentioned is referring to a legal act or transaction being related to or relevant to more than one legal system and it can be evaluated in terms of person or place. When at least one of the parties is a foreign citizen, is a resident or has their habitual residence in a foreign country, a foreign element in terms of person can be in question. Whereas in cases when the signature place of an agreement or the place of fulfilment sought is in a foreign country, this would mean the foreign element in the sense of the place.
According to the Article 24 of IPLPL, – which will be applied to the agreements that contain a foreign element – the parties are free to choose the law to be applied to the agreement. Also, if the choice of law can be understood from the provisions of the agreement or the conditions of the case, it will be considered valid.
Pursuant to the same article, if the parties to the agreement have not chosen a law, the one most closely related to that agreement among the laws stipulated in the said article shall apply.
Even if there is no foreign element in the agreement, in the event that there are transactions regarding real rights on immovables in another country, the law of the country where these immovables are located will find the application area in legal transactions regarding real rights on immovables. Nevertheless, the fact that the parties having the opportunity to refer to foreign law rules and even to agree that foreign law will be applied to the agreement even though there is no foreign element in the agreement should be noted.
“Our lawyers all come from a range of legal and commercial backgrounds, and so the Firm posseses a thorough knowledge of the industries in which our clients operate. The team is also fluent in a range of languages. In addition to English and Turkish, our lawyers also speak Azerbaijani, Russian, German, Swedish and Spanish, allowing us to work effectively with our international clients.
Our main focus is to assist our clients in a simple, clear and cost-effective manner. I myself come from an in-house background; prior to founding Kılınç Law & Consulting, I was legal counsel at SOCAR, Azerbaijian’s State Oil Company, in Turkey. The Firm is therefore founded on a core understanding of corporate clients’ expectations of their legal services providers, and we apply this knowledge across all the matters on which we are instructed.”
“We envisage that our core services, energy and corporate, will continue to see substantial growth over the next year as Turkey solidifies its position in the region as a key energy and business hub. Furthermore, we have recently appointed a maritime law specialist, which will enable us to expand our offering in this sector.
There are many international individuals and companies that wish to invest in Turkey, especially in light of the new regulations in regard to Foreign Direct Investment recently passed through Turkish Parliament. The new Presidential Investment Office provides incentives for international investors, and so the country is ripe for investment across its regions. We expect an influx of international companies seeking lawyers with the specialist knowledge in local laws to achieve their objectives in Turkey.”
“In order to enhance our services further, the Firm is contactable 24 hours a day so as to make sure any urgent client matters are dealt with swiftly. We have also made our website more user-friendly and incorporated a media section, which features articles written by the team. This allows us to build a bridge between our clients and ourselves, keeping them informed on trends, changes in regulations, codes, amendments and sector developments.
We we will continue to maintain our highly international perspective and enhance our expertise in international areas, and have recently set up offices in Izmir and London.”
“Absolutely. Technology enables the Firm to efficiently and effectively serve our clients. We utilise a range of systems to keep our legal knowledge at the forefront and to ensure that the work we provide to our clients is both cutting-edge and takes into consideration the most recent changes and updates to the law, remaining compliant with both international and domestic regulation.”
“Kılınç Law & Consulting provides legal services on every practice area relevant to our clients. For instance, one of our clients recently consulted regarding an investment in Turkey. First of all, we researched and found the areas where the company could invest in its field of activity. We then provided opportunities to our client for incentives from the relevant ministries on the investment. We then completed all the necessary legal processes for the establishment of the company in Turkey. We are currently providing legal service in all litigation and corporate matters for the company. This will allow our client to add value to the company, both within its own organisation and internationally.”
“Our stability and strategic direction are the key components that attract our clients to us, and we plan to stringently maintain these qualities. As a matter of course, we are always improving the Firm and the quality of our services. We are training our colleagues on the issues we deem necessary to go above and beyond in the practice of law. Our success in this regard has allowed us to provide exceptional professional services to our clients, and we will continue to expand the scope of these activities in both the national and international arena.
Kılınç Law & Consulting, provides legal services in domestic and international areas to nationally and worldly renowned clients operating in multiple sectors. On the field of Project Finance; Kılınç Law & Consulting advises a range of high-profile international entities with operations in Turkey with an experienced team on providing project finance and project advice to a wide range of public and private sector entities.
Founding partner Levent Lezgin Kılınç, who has worked in major projects that were highly significant in the Energy and Project Finance fields for Turkey in his past years working as legal counsel to various leading companies in the field; his deep experience in Energy and Project Finance area, leads the Projects/Project Finance department of the firm.
On the field of project finance; our project finance team assists clients with project agreements, EPC contracts, operation and maintenance agreements, and PPPs. The services provided by Kılınç Law & Consulting start from preparing legal DD reports on the legal viability of the project. Following the decision to proceed with the project, Kılınç Law & Consulting oversees the application and tender procedures, provides consulting services with applications to required administrative authorities, including the competition requirements; provides services on drafting agreements and ensuring the clients fulfil the regulatory requirements through daily, weekly and monthly regulation sector-specific updates provided to to clients.
Kılınç Law & Consulting provides legal services across both domestic and international areas. M&A department is one of the more active departments our firm and due to the extent of the work we do in the field, the multinational aspect of our work and our overall expertise in other areas, such as energy law, project finance, capital markets etc., puts us in a unique position to cover every aspect of any M&A transaction. Therefore, our M&A / Corporate department, covers every corporate need of our clients, including but not limited to Legal Due Diligence reports, negotiation processes, closing of the M&A deals, share transfers, restructurings as well as daily corporate necessities of the clients such as establishment of companies, providing consultancy services for the General Assembly and Board of Directors resolution processes, capital increases and relevant registration processes.
Our client portfolio in Kılınç Law & Consulting is made up of well-respected domestic firms, including venture capital investment funds and predominantly, foreign investors from Austria, Azerbaijan, Germany, Gulf Region and many other places over the world. Therefore, due to the nature of our portfolio we are experienced in acting for the buyer-side in M&A transactions as well as mandates on joint ventures. For different projects; our clients prefer different economical approaches with different control mechanisms and checks and balances systems. Therefore, in the M&A transactions we provide services in a wide range differing from establishment of new companies, partnerships, consortiums or clients becoming shareholders at running companies through share transfers and restructuring of the company’s Article of Associations to ensure either full or partial control for the buyer-side as well as merger procedures.
Due to working with foreign investors in the majority of our deals, compliance of the firms to the foreign investment regulation in the country is essential in order to ensure the client benefits from the best possible outcome in terms of taxation and incentives the regulation offers to the foreign investors. As part of consultancy services provided to the venture capital investment funds, our firm represents the clients in the fund formation and compliance of fund to the Capital Markets regulation. Moreover, in order to ensure our clients, stay up to date in regards to the ever-changing legal environment, we provide daily updates for the clients that prefer this service; on the daily changes to the Turkish legislation through our regulation department.
Kılınç Law & Consulting, provides legal services in domestic and international areas to nationally and worldly renowned clients operating in multiple sectors. On the field of Energy law has a unique significance for Kılınç Law & Consulting. The Firm specialises in pursuing the application process before public authorities, such as the Ministry of Energy and Natural Resources and EMRA, as well as finalising the preparation of general agreements and the agreements regarding the project finance in this area and carrying out the negotiations in the field of energy law. Our client portfolio in the field of Energy Law includes SOCAR, TANAP, STAR Refinery, PETKİM and other significant companies in the sector.
The firm constantly provides consultancy services for clients in the field of Energy Law through their commercial activities in the sector; by drafting contracts, preparation of responses to possible objections; maintenance of relevant negotiations; preparation of legal memorandums and provided legal counsel. Moreover; the firm assists its client in disputes arising from energy law related matters, M&A projects in the sector and corporate law related day to day matters where experience in the sector is critical in overcoming the complex problems.
Compliance to regulatory changes, limitations and prerequisites are focal for a firm operating in the energy sector; therefore, we assist our clients on fulfilling the regulatory requirements through daily, weekly and monthly regulation sector-specific updates.
Since the service industry is constantly changing and developing, the need to offer and market the goods and services of the leading companies in the international area is increasing. In light of these developments, the recognition and protection of intellectual and industrial property rights in the international area become even more important with the disappearance of the national borders.
First of all, please be informed that the payment of employees’ salaries, premiums, bonuses, indemnities and other receivables bears legal consequences on various fields of law. We kindly represent the consequences of issuing the related payments by hand (in person); which may cause both administrative sanctions against the employer and lack of finding proof of payment.
I. REGARDING THE TRANSFER OF THE MANAGEMENT AND AUTHORITY TO REPRESENT AND BIND
The trading companies especially the joint stock companies are affected by the global economic growth and as a result of that, institutionalization of the internal managements of the companies has become essential impact. Particularly, since Turkey takes attention of the foreign investors, the merger and acquisition transaction (“M&A” or “M&A Deals”) become popular and the fact that the shareholders seek different approaches to the management of the companies, has led them to find an alternative way between them in order to regulate their relationship.
As per the Turkish Commercial Code numbered 6102 (“TCC”), there are principal 5 (five) company types namely Joint Stock Company, Limited Liability Company, Collective Company, Commandite Company and Cooperative Company.
To provide accurate information for investors operating in Turkey, public disclosure of the necessary information has a great importance for the continuation of the functioning of the capital market in a fair and competitive environment. Thus, the procedures and principles regarding Public Disclosure of Publicly-Held Joint Stock Companies are regulated in detail in both Article 460 of the Turkish Commercial Code No. 6102 (“TCC”) and Article 15 of Turkish Capital Markets Law No. 6361 (“CML”).