Ürey Law Office

Authors: Beyza Büyükağaçcı The German Supply Chain Law[1] (“Law”) requires large companies to identify, address and prevent violations regarding human rights and related environmental issues in the operations of themselves and their direct suppliers. Within the scope of these regulations, the large companies that continue their operations in Germany are obliged to ensure compliance with certain social and environmental standards within their supply chains. In this context, the conditions set out in the Act have been applicable as of 1 January 2023 for enterprises that have their corporate seat, administrative headquarters or statutory seat in Germany and employ 3,000 or more workers, and as of 2024 for enterprises employing 1,000 or more workers. Foreign companies that do not have a central office or branch in Germany remain outside the scope of the Act, even if they supply goods or services to Germany. Accordingly, the companies covered by the Law must monitor and act on violations of their direct suppliers’ operations, as well as their operations from the extraction of raw materials to their delivery to the last customer. In addition, if the companies within the scope receive verified information regarding potential human rights or environmental rights violations by one of their indirect suppliers, they are deemed obliged to immediately carry out a risk analysis for these violations. In this context, Law has determined two main areas of protection and these areas are regarding environmental rights and human rights. Within the scope of environmental protection; issues such as the production and non-use of banned chemicals, processing, collection, storage, and disposal of wastes in a way that do not harm the environment, and export and processing of hazardous wastes shall be evaluated. In the framework of compliance with human rights rules; any act or violation that is unlawful, including but not limited to child labor, forced labor, freedom of association, unequal treatment/discrimination, and improper use of force by security forces, shall be evaluated. If enterprises fail to comply with their legal obligations in the Law, fines may be imposed. Fines for breaches of due diligence and reporting obligations can reach up to 8 million euros depending on the nature and severity of the breach. If the enterprise shave an average annual endorsement over 400 million euros, and does not take corrective precautions directly aimed at a direct supplier, they may may face fines up to 2% of their average annual turnover. At the same time, it is possible to ban these enterprises from participating in public tenders for up to 3 years if the obligations in the Law are not followed. Therefore considering that the Law stipulates sanctions that could be a deterrent, it is probable for the enterprises which are obliged according to the Law, concretely audit their suppliers and create new business models in this framework. The Law also affects companies in Turkey that are directly or indirectly involved in the supply chain of businesses operating under the Law and engaging in commercial relationships. Obligations Imposed On Companies By The Law:   Obligation To Conduct Risk Assessment Reporting On The Fulfilment Of Due Diligence Obligation Preparing the Guiding Principle Impact Assessment Responsibility for Internal Compliance Establishment of a Risk Management System Establishment of Preventive Measures Taking Remedial Measures Establishment of Complaint Procedure 1-   Obligation To Conduct Risk Assessment Companies may need to adapt their risk, management, and compliance processes to identify human rights-related and environment-related risks. . The relevant situation is valid for both companies’ commercial operations and the organizations in their extended supply chains. Companies shall comply with the rules as far as possible with their suppliers. The risks that companies need to address include internationally recognized human rights treaties and sustainability issues, as briefly mentioned above: Forced labor, child labor, discrimination, violations of freedom of association (especially in the framework of trade union rights), unethical employment (e.g. employing workers without insurance), unsafe working conditions, environmental degradation, etc. Companies should take appropriate preventive or remedial measures based on on the present risk analysis In terms of supply sector, this can be defined as reviewing supplier selection and supplier monitoring processes and having a clear supplier communication process within the prescribed rules.  2-   Reporting On The Fulfillment Of Due Diligence Obligation A report on the status of due diligence obligations regarding human rights must be documented annually and made publicly available free of charge on the company's website within 4 months from the end of the financial year for 7 years. This report should include: What risks the company has determined.    The issue of what measures were taken while fulfilling the due diligence obligation, including the issues written in the policy text. The company's assessment of the impact and effectiveness of the precautions and, Evaluation of future precautions. 3-   Guiding Principles During the drafting stage of the legislation concerning the implementation of the Act, explicit reference was made to the OECD Due Diligence Guidance for Responsible Business Conduct and the UN OHCHR Guiding Principles on Business and Human Rights. However, these references were not directly incorporated into the final enacted text of the law; instead, these international guidelines continue to serve as key reference sources within the administrative regulations and interpretative documents governing the Act’s implementation. These guidelines are considered substantial texts on how to establish the content and implementation of the due diligence obligation required by the Law. Accordingly, human rights may occur violations in trade; During the company's own commercial operation Directly or through a third party (government, other company, etc.) due to its own commercial operations in case of commercial relations with them in violations arising from third parties Therefore, companies will be expected to pay attention to risk areas, particularly in these three groups. The human rights within the scope of "corporate responsibility for human rights" consist primarily of the rights set forth in the Declaration of Human Rights ( including the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and International Covenant on Civil and Political Rights ) and the Declaration of the International Labor Organization on Fundamental Principles and Rights to be applied in the workplace. 4-    Impact Assessment Companies will confer with potential risk groups and other relevant persons (trade unions and especially non-governmental organizations specialized in this subject), taking into account the content of their activities for risk assessment. One of the points that need to be fulfilled for the next steps of the supply chain is to ask primary suppliers to do their own risk assessments and these primary level suppliers to do the same risk assessment for their own suppliers. In this way, the lowest and highest levels of the supply chain will be able to manage the process in harmony. Within the scope of this risk assessment, companies will be able to apply the following preventive measures against suppliers with whom they are in a contractual relationship or in the process of making a contract: Considering expectations in line with human rights in supplier selection. Asking suppliers to identify risks of human rights violations in their workplaces and supply chains. Establishing a contractual control mechanism to monitor whether set expectations are met to ensure human rights are respected and providing the necessary training to fulfill these expectations.  Ensuring the establishment of a risk-based control mechanism that monitors the compliance of direct suppliers with human rights strategies.  The content and level of these obligations regarding risk assessment depend on the company's impact on the supplier, the severity and difficulty of the breach, and the risk of the breach occurring. 5-   Responsibility For Internal Compliance Companies covered by the Law are obliged to appoint a “human rights officer” responsible for monitoring risk management. In this context, the appointment of a risk management officer does not necessarily require a new position, and it is possible to integrate it into existing departments (e.g. compliance officer, sustainability department, etc.). 6-   Establishing A Risk Management System Companies should establish an appropriate risk management system to ensure compliance with the obligations stipulated by the Law and analyze their own and their direct suppliers' human rights and environmental risks as part of this system. 7-   Establishing Preventative Measures Companies should take the necessary measures within the scope of the protection of human rights and environmental protection in their supply and supply relations, and establish preventative measures to ensure compliance with the strategies determined by the guidelines by providing training in the relevant business areas. 8-   Taking Remedial Measures If it is determined that a violation has occurred or is likely to be violated in matters protected by the Law, the Companies are obliged to take corrective/compensatory measures immediately to prevent, stop the violation, or minimize the consequences of the violation. Otherwise, companies may face the administrative fines regulated in the Law and explained above, as well as civil cases to be substituted by those who suffered from the said violations and by Non-Governmental Organizations. 9-   Establishment of Complaint Procedure Companies should establish a public complaints procedure to report potential violations of human rights or environmental obligations in their businesses or suppliers. Accordingly, the effectiveness of the complaint procedure should be reviewed annually and, if necessary, on an ad hoc basis. RESULT: The Supply Chain Law, which stipulates many obligations for companies operating in Germany, regulates the audit of companies’ direct operations and, in certain cases, the operations of indirect suppliers from the extraction of raw materials to the delivery of the product to the last customer. Law also regulates the prevention of violations and the compensation in case of violations. Companies operating in Turkey that are not covered by the relevant law but are in the supply chain of German companies subject to the Law are likely to face various demands. Another point that should be noted is that regulations similar to the German Supply Chain Act have also been adopted at the European Union level. Indeed, on 5 July 2024, the European Union adopted and brought into force the Corporate Sustainability Due Diligence Directive (CSDDD). However, negotiations on the ‘Omnibus’ package—which introduces amendments concerning the scope and implementation timeline of the directive—are still ongoing. For this reason, it is of great importance that our companies, which export to the European Union, especially Germany, and which are suppliers of the companies in this country, are aware of the obligations stipulated by Law and that they take the necessary measures. [1] 1 Gesetz über die unternehmerischen Sorgfaltspflichten zur Vermeidung von Menschenrechtsverletzungen in Lieferketten (Lieferkettensorgfaltspflichtengesetz - LkSG) [2] 2 Proposal for a Directive Of The European Parliament And Of The Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937    

Author: Beyza Büyükağaçcı With the sudden changes in the economy, unexpected fluctuations occur in the exchange rate. Therefore, parties would like to draw up certain contracts in foreign currency or indexed to foreign currency in order to assure themselves. However, this is not possible for all contracts, and some regulations are made under the Law on the Protection of the Value of Turkish Currency. One of these regulations is the  Decision No. 32 on the Protection of the Value of the Turkish Currency Rescript. With the aforementioned rescript, it is inhibited to determine the price and other payments as in foreign currency or indexed to foreign currency. However it is allowed for determining in foreign currency indexed regarding certain contracts, it is obligated to discharge in Turkish currency at the payment stage. The aforementioned prohibitions are restricted in terms of  persons  by stating that they are ‘’ agreements concluded or to be concluded between persons residing in Turkey". Regarding  the hereby note, the statement ‘’parties’’ shall be understood as persons resident in Turkey. Finally, the restrictions imposed on contracts by the Rescript and the impact of this situation on the issuance of negotiable instruments are presented to you with the information note we have prepared. Moveable Estate Sale and Lease Contracts: Parties may determine the contract price and other payment obligations arising from these contracts in foreign currency or indexed to foreign currency in the Moveable Estate Sale and Lease Contracts. However, vehicle sale and lease contracts are excluded from the scope of this exemption. Therefore the contract prices and other payment obligations arising from these contracts shall be determined in Turkish currency. For this reason, it is not possible to use payment instruments such as checks, etc., issued in foreign currency on or after April 19,2022 to fulfill payment obligations under moveable estate sales contracts concluded/to be concluded between Turkish residents. Vehicle Rent Contracts: Parties shall not determine the prices and other payment obligations of vehicle rent contracts and the sale of commercial vehicles for passenger transportation contracts signed after September 13,2018 in foreign currency. Contracts signed before this date are excluded from the scope of this exemption. Real Estate Sale And Lease Contracts: Except for the exemptions below, in real estate lease and sale agreements, including residential and roofed workplaces, the parties shall not agree on the contract price and other payment obligations arising from these agreements in foreign currency or indexed to foreign currency.  Real estate sale and real estate lease contracts to which Turkish residents who do not have citizenship ties with the Republic of Turkey or branches, representative offices, offices, liaison offices, direct or indirect 50% or more shareholding or joint control and/or control of companies located in Turkey of persons resident in Turkey or persons resident abroad are party as buyers or lessees Real estate lease contracts for the operation of accommodation facilities certified by the Ministry of Culture and Tourism.        Real estate lease contracts for the lease of duty-free shops. Employment Contracts: The parties may not determine the contract price and other payment obligations arising from these contracts in foreign currency or indexed to foreign currency in employment contracts other than those to be performed abroad and those to which seafarers are a party. In addition to this, in employment contracts to which persons who are resident in Turkey but do not have citizenship ties with the Republic of Turkey are parties, the contract price and the other payment obligations arising from these contracts may be determined in foreign currency or indexed to foreign currency. Service Contracts: The parties shall not determine the contract price or the other payment obligations in foreign currency or indexed to foreign currency in service contracts except the contracts listed below including consulting, brokerage and transport contracts.   Service contracts to which persons who do not have citizenship ties with the Republic of Turkey are parties.  Service contracts made within the scope of export, transit trade, sales and deliveries accounted for export and foreign currency-earning services and transactions.  contracts made within the scope of the transactions to be operated abroad by persons resident in Turkey.  Service contracts to be made among the persons resident in Turkey, starting in Turkey and ending abroad, starting abroad and ending in Turkey or starting abroad and ending abroad.    Accommodation services contracts to be made by persons resident in Turkey for the accommodation facilities certified by the Ministry of Culture and Tourism.   Sales contracts for software produced abroad within the scope of information technologies and license and service contracts for hardware and software produced abroad to be made among the persons resident in Turkey.   Employment and service contracts to which non-residents are party as employers or service recipients of branches, representative offices, offices, liaison offices, companies in which they directly or indirectly have fifty percent or more shareholding or joint control and/or control, and companies in free zones within the scope of their activities in free zones. Contracts of Construction: The parties may determine the contract price and the other payment obligations arising from these contracts in foreign currency or indexed to foreign currency in construction contracts involving costs in foreign currency. Software and License Contracts: In sales contracts for software produced abroad within the scope of information technologies and license and service contracts for hardware and software produced abroad, it is possible to determine the contract price and other payment obligations arising from these contracts in foreign currency or indexed to foreign currency. Leasing Contracts: The parties may determine the contract price regarding leasing contracts to be made within the scope of Articles 17 and 17A of Decision No. 32 in foreign currency. Contracts made by state institutions and organizations: The contract price and other payment obligations arising from the contracts below to which state institutions and organizations are parties, may be determined in foreign currency or indexed to foreign currency. Within the scope of the projects to be conducted within the scope of foreign currency or foreign currency-indexed tenders, contracts and international conventions to which public institutions and organizations are a party, contracts other than real estate sales contracts and employment contracts to be made with third parties by contractors or incumbent companies and their contracting parties or to be made within the framework of the aforementioned projects, and Contracts made in relation to transactions carried out under the Law on the Regulation of Public Finance and Debt Management. However, the contract price and other payment obligations arising from these contracts may be determined in foreign currency or indexed to foreign currency in contracts, other than real estate sale and real estate lease contracts, to which public institutions and organizations, companies of the Turkish Armed Forces Foundation (such as Aselsan, Havelsan, Roketsan, etc.), and companies holding (A) or (B) level certificates within the scope of the Industrial Competence Assessment and Support Program (EYDEP) are parties; and such obligations may be agreed upon, paid, and accepted in foreign currency or indexed to foreign currency. Contracts carried out under the Law on the Capital Market Law: Without prejudice to the provisions of Decision No. 32, within the framework of the regulations based on the Capital Markets Law No. 6362, it is possible to create, issue and trade capital market instruments (including foreign capital market instruments and depository receipts and foreign investment fund shares) in foreign currency and to determine the obligations related to the transactions in foreign currency. Regulations regarding negotiable papers: In accordance with Article 8 of the Rescript on Decision No.32, it is not possible to determine the prices in foreign currency or indexed to foreign currency in the negotiable instruments to be issued within the scope of the contracts, the contract price and other payment obligations arising from these contracts, which are clearly explained above, cannot be determined in foreign currency or indexed to foreign currency. However, the negotiable instruments issued and got into circulation before the enforcement date (September 13, 2018) of the Temporary Article 8 of the Rescript on Decision No.32 are exemptions from the aforementioned Temporary Article. Finally, pursuant to the aforementioned article, this paragraph does not apply to negotiable instruments in contracts where the contract price and other payment obligations arising from these contracts cannot be determined in foreign currency or indexed to foreign currency, collected or overdue receivables and deposits given within the scope of real estate lease agreements and got into circulation within the scope of the performance of the contracts CONCLUSION Pursuant to Article 3/1 of Law No. 1567, administrative fines amounting to TL 91.240 and TL 760.385 for the year 2026 for each party to the contract separately for the breaches in the Rescript will be applied. These amounts are updated annually based on the revaluation rate determined each year. If the violation of the prohibition of making contracts in foreign currency or indexed to foreign currency is repeated, the administrative fine to be imposed will be doubled. Moreover, pursuant to Law No.6183 on the Procedure for Collection of Public Receivables, default interest will be applied to be collected with a fine at the rate of default interest for the period between the date of misdemeanor and the date of collection of the administrative fine to be imposed. Besides, there is not any adjudgment in this scope, there are several remarks stating the contracts made against the aforementioned regulations may be invalid.

Authors: Gizem Ak Yürek, Serdarhan Güler Arbitration is a method of resolving disputes related to private law that serves as an alternative to judicial procedures, where the parties, in accordance with their will or due to mandatory provisions stemming from specific agreements, submit the dispute to be resolved by an independent and impartial arbitrator or arbitration board. Although the competent arbitration board may rule a decision as a result of an arbitration agreement between the parties, foreign arbitral awards rendered outside of Türkiye can only be enforced in Türkiye through the process of recognition and enforcement. In other words, for a foreign arbitral resolution to be enforced in Türkiye, it must first be recognized and enforced through a court procedure. In this article, we will explain this enforcement process along with its legal basis. Legal Basis for the Enforcement of Foreign Arbitral Awards The regulations regarding the enforcement of foreign arbitral awards are set in Articles 60 to 62 of the Private International Law and Civil Procedure Code ("IPPL"). However, pursuant to Article 90/5 of the Constitution and Article 1/2 of IPPL, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Resolution, to which Türkiye is a party, will primarily apply. Therefore, it can be stated that only arbitral awards that do not involve within the scope of the New York Convention may be enforced under the provisions of IPPL. The applicable provisions, regardless of the nationality of the arbitrators, the citizenship or nationality of the parties, arbitral awards rendered in another country that is a party to the New York Convention, or awards issued in Türkiye that involve foreign elements but are not subject to the mandatory rules of the Civil Procedure Code (CPC) or International Arbitration Law (IAL) by the parties' will, will be enforced according to the New York Convention. Therefore, it would not be incorrect to state that the majority of enforcement procedures today are carried out in accordance with the New York Convention[1].   Procedural Rules in the Enforcement of Foreign Arbitral Awards The New York Convention refers to the procedural rules of the country where the enforcement action is to be filed. Therefore, the competent and authorized court, the type and amount of collateral and charge, the form of the proceedings, and the appeals process will be determined according to the procedural law of the country where the enforcement action is initiated. According to Turkish law, the party requesting the enforcement of a foreign arbitral award must apply to the authorized commercial court of first instance with the necessary documents (as stipulated in Article 61 of IPPL and Article IV of the New York Convention) (Law No. 5235[2], Article 5). Enforcement actions, in the absence of an agreement on jurisdiction between the parties, should be filed in the court of domicile of the losing party in Türkiye, or, if such residence does not exist, in the place where the party is residence. If neither of these applies, the enforcement action should be filed in the court located where assets subject to enforcement are found. If none of these locations exist, it will be stated that there is no competent court in Türkiye to enforce the relevant arbitral award. However, if it has not been filed in the authorized jurisdiction, it is essential for the defendant to raise an objection to jurisdiction within the prescribed time limit[3]. Following the application by the applicant, the request will be examined and decided in accordance with the simplified procedure. Additionally, the decision ruled in the case is subject to appeal. An appeal or cassation petition filed against the relevant decisions will automatically suspend the execution of the decision[4]. Furthermore, the foreign arbitral award enforced by Turkish courts must be executed within 10 years from the date the enforcement decision becomes final (Article 39 of the Enforcement and Bankruptcy Law).   Grounds for Refusal of the Enforcement of Arbitral Awards In an enforcement action concerning an arbitral award, the Court will not examine the substance of the case. According to the New York Convention, the Court may refuse to enforce the arbitral award if: - The parties to the arbitration agreement are under some incapacity, or the agreement is invalid under the law it is subject to, or failing any indication thereon, under the law of the country where the award was made; - The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; - The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, - The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; - The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. If any of these conditions are proven by the party against whom the award was given, the court may refuse the enforcement of the foreign arbitral award. In addition: - If the dispute that the arbitral award concerns pertains to a matter that, under the law of the country where recognition or enforcement is sought, cannot be resolved through arbitration (the matter is not arbitrable); - If the recognition or enforcement of the arbitral award is contrary to the public policy of the country where recognition or enforcement is sought, the judge may refuse to enforce the award ex officio. Under IPPL , the grounds for refusal of enforcement are quite similar. A key difference between the two legal frameworks is that under IPPL if the circumstances outlined for refusal of enforcement exist, the judge has no discretion in deciding whether to reject the enforcement request, while under the New York Convention, even if one of these grounds is present, the judge has discretion to accept enforcement[5]. In addition, there are some other differences, but overall, the two legal frameworks contain parallel regulations[6].   Enforcement of Foreign Arbitral Awards Without a Judgment and the Provisional Attachment Procedure Under usual circumstances, the party in favor of a foreign arbitral award must have the award enforced in Türkiye and then proceed to enforce the judgment by initiating an execution proceeding based on the decision (execution with judgment). However, in some cases, this procedure may be bypassed, allowing the party to initiate an execution proceeding without a judgment (non-judgment execution proceedings), relying on the foreign arbitral award as the basis. Nevertheless, the procedure of execution proceeding and the subsequent annulment  of  objection process  is a subject of significant legal debate[7].   Additionally, it is important to note that the applicant party also has the possibility of applying for a precautionary attachment procedure. In some of its rulings, the Court of Cassation has held that the condition of enforcement of a foreign award is not required for granting a precautionary attachment - which is a provisional measure - regarding a debt established by a decision of a foreign court or arbitral tribunal[8]. Although there are decisions contrary to this, it cannot yet be said that a consistent case law has been established on this issue[9]. Conclusion: - Foreign arbitral awards rendered outside of Türkiye can only be executed in Türkiye upon being enforced. As explained above, arbitral awards that do not fall within the scope of the New York Convention will be enforced in accordance with the provisions of IPPL. Therefore, the applicability of these two legal frameworks should be evaluated in the context of the recognition and enforcement application process. - Enforcement actions should be filed in the competent court of the place of domiciliation of the losing party in Türkiye, or, if no domiciliation exists, in the place where the party is residenced. If neither of these applies, the case should be filed in the court located where assets subject to enforcement are found. - In enforcement proceedings, the court shall not be entitled to conduct an examination on the merits of the case. It may only conduct a limited review with respect to the grounds specifically enumerated in the law. [1] Cemal Şanlı, Emre Esen, İnci Ataman-Figenmeşe, Milletlerarası Özel Hukuk, 10th Edition, Beta Yayınları, 2023, İstanbul, p. 825-826. [2] 5235 sayılı Adlî Yargı İlk Derece Mahkemeleri İle Bölge Adliye Mahkemelerinin Kuruluş, Görev Ve Yetkileri Hakkında Kanun (Law No. 5235 on the Establishment, Duties and Powers of the Courts of First Instance of the Judicial Judiciary and the Regional Courts of Appeal) [3] Şanlı/ Esen/ Ataman-Figenmeşe, ibid., p. 832. [4] Şanlı/ Esen/ Ataman-Figenmeşe, ibid., p. 833. [5] Ziya Akıncı, Milletlerarası Tahkim, 6th Expanded and Updated Edition, Vedat Kitapçılık, İstanbul, 2021, p. 649-650. [6] Akıncı, ibid., p. 643. [7] Cemre Tüysüz, “Tenfiz Edilmemiş Yabancı Hakem Kararları Açısından İlamsız İcra Takiplerine ve İhtiyati Hacze İlişkin Bazı Meseleler”, 41(2) PPIL 701, 2021. https://doi.org/10.26650/ppil.2021.41.2.997201 [8] Ruling of the 6th Civil Chamber of the Court of Cassation, Merits No. 2014/3906, Decision No. 2014/4941, dated 14.04.2014: "The regulation states: 'A preliminary injunction or precautionary attachment decision rendered by the court upon the request of one of the parties before or during the arbitration proceedings shall automatically expire once the award of the arbitrator or arbitral tribunal becomes enforceable, or if the case is dismissed by the arbitrator or arbitral tribunal.' According to this article, since it is possible to decide on a precautionary attachment before or during the arbitration proceedings, it is also possible to decide on a precautionary attachment after the award has been rendered. In this regard, while the court should have evaluated the plaintiff's request for precautionary attachment by considering the conditions set forth in Article 257 of the EBL (Execution and Bankruptcy Law), it was not appropriate to decide on the rejection of the request based on written justification." (Note: The original text of the ruling is in Turkish and has been translated from the original by us.) [9] Ruling of the 15th Civil Chamber of the Court of Cassation, Merits No. 2014/7100, Decision No. 2015/365, dated 26.01.2015: "In the concrete case, it is understood that the decision of the [...] Court, which has not been enforced, does not yet possess the status of a court decree (judgment) under Turkish Law. Following this admission, if the question of whether the debt has become due (i.e., whether it is exigible) needs to be discussed; there is no debt tied to a specific maturity date between the parties, and the existence of the debt is not certain and is of a nature that requires trial. Therefore, one cannot speak of a debt that has fallen due. Even if it were considered a debt that has not yet fallen due; although conclusive evidence is not sought regarding any of the matters listed among the conditions for precautionary attachment for debts not yet due, no evidence has been submitted showing that the conditions in Article 257/2 of the Law—which may be considered justified and reasonable—have been met. In this situation, rather than accepting the objection regarding the precautionary attachment whose conditions were not met and deciding to lift the attachment, the rejection of the objection as a result of a misinterpretation was not correct, and the decision had to be reversed." (Note: The original text of the ruling is in Turkish and has been translated from the original by us.)  

In a globalizing world, the value of branding has been increasing day by day. In the face of the increasing value of branding, trademark registration has been of great importance in order to prevent third parties from claiming rights about your brand and to prevent third parties from using a similar or identical trademark in a way that may confuse the name or offering similar goods and services as your brand. Within the scope of this study, the trademark registration process and stages have been examined. The application process for trademark registration consists of the following stages, respectively: 1) Procedural review of the application, 2) Examination of the application within the framework of absolute grounds for refusal, 3) Appeal against the decision and the publication, 4) Examination of the opinions and objections of third parties, 5) Registration of the application Procedural Examination of the Application: The Turkish Patent and Trademark Office (hereinafter referred to as "The Office") shall formally examine the conformity of the application with Articles 3 and 11 of 6769 Industrial Property Code If it is determined that there are no deficiencies, the application will be considered approved on the day, time, and minute that it was received. The applicant will be given two months to correct any deficiencies in the application if there are any. Applications that still need to be corrected before the deadline will be rejected. After all, if an application is filed for goods or services that fall under more than one class and the fee-related classes are not paid within the allotted time, the application will be evaluated for the class or classes covered by the paid fee. Examination of the application within the framework of absolute grounds for refusal: The application, which is finalized after the procedural examination is completed, is subjected to an ex officio examination by the experts within the framework of the reasons as absolute grounds for refusal, taking into consideration the goods and services requested to be registered. In the presence of one of the reasons listed as absolute grounds for refusal, the application is rejected for all or part of the goods and services for which registration is requested. A trademark application that complies with the requirements for submission and is not denied for one of the absolute grounds for denial shall be published in the Official Trademark Bulletin (hereinafter referred to as “the Bulletin”). Appeal against the decision and the publication: Against the decisions of the institution, those who are harmed by the said decision may appeal in writing and with reasons within two months following the notification of the decision. Appeals against the decision submitted to the Authority shall be examined by the Re-Examination and Evaluation Department (hereinafter referred to as "the Board"). As a result of the examination and evaluation, the Board shall make a final decision for the Office. The decisions of the Board shall be the final decisions of the Authority, and these decisions cannot be appealed again before the Authority. But a legal proceeding may be filed against the final decisions of the Board at the Ankara Civil Court of Intellectual and Industrial Property Rights within two months following the notification of the decision. 4: Examination of the opinions and oppositions of third parties Oppositions that the trademark applied for after the publication of the trademark application should not be registered within the framework of absolute and relative grounds for refusal shall be made by the relevant persons within two months from the publication of the trademark application. In the absence of opposition within the aforementioned time limit, the application shall be registered in the Trademark Register and published in the Official Trademark Bulletin. If the application is rejected entirely or partially during the first examination, the applicant has two months to file an appeal with the Office. The application in this instance needs to be reviewed in light of the appeal. If the appeal is upheld, the application will either be entirely or partially published in the Bulletin, which indicates that it may face further denial after an objection. The applicant shall be asked by the Office to provide his comments regarding the opposition within the allotted time. Upon request from the applicant, the opponent must provide proof that he used his trademark on the goods and services related to the opposition during the five years before the date of application or the date of priority of the application for which the opposition is filed, provided that the trademark, which is the basis for the opposition, has been registered for at least five years at the date of application or the date of priority of the application for which the opposition is filed. The opposition shall be rejected if the opponent is unable to substantiate the aforementioned. If it is established that the trademark, which is the basis for the opposition, has only been used for some of the goods or services that are covered by the registration,  the opposition shall be evaluated taking into account the goods or services whose use is proven. Registration of the application In the event that a complete or corrected trademark application is not objected to within the legal time limits or the objections made are definitively rejected and the required fee is paid, the application shall be registered, recorded in the registry, and published in the Bulletin. The maximum protection for a registered trademark is ten years from the date of application. This term shall be renewed for periods of ten years. In conclusion,  After a trademark application is filed, the Office examines the application in five stages.   The procedural examination is an inspection to examine the conformity of the application. If no formal deficiencies result from this examination, the Office examines the  application Within the absolute grounds for refusal framework under Article 5 of 6769 Industrial Property Code. If there are no absolute grounds for refusal, the application is published in the Bulletin After the application is published in the Bulletin, third parties may appeal within two months Following the notification of the decision. The next stage is the examination of the opinions and oppositions of third parties. If the third parties do not  object within the legal time limits or the objections are rejected definitively, the application is registered, recorded in the registry, and published in the Bulletin.  

Authors: Gizem Ak Yürek   In today's world, where economic and commercial life is built on liberal and global principles, "competition" is one of the concepts valued for ensuring the vibrancy and efficiency of economic life. While it is essential for actors in economic and commercial life to engage in "competition", limitations have also been imposed on activities aimed at competition to prevent actors from engaging in business, transactions and actions that violate the principle of good faith. In this legal brief, the matters defined as "unfair competition" in the relevant legislation and the legal actions that can be taken in cases constituting "unfair competition" are summarized and submitted for your information. What is Unfair Competition? Unfair competition is regulated in the Turkish Code of Obligations numbered 6098 ("TCO"), the Turkish Commercial Code numbered 6102 ("TCC") and in the other legislation not addressed in this legal brief.   Unfair competition, as regulated in TCO, refers to the situation where a person faces a decrease in customers or the risk of losing customers due to the dissemination of false news, advertisements, or other behaviours contrary to the good faith.   In TCC, unfair competition is defined as “behaviours or commercial practises that are deceptive or otherwise contrary to the good faith which affect relationships between competitors or between suppliers and customers”.   While the regulation in TCO is more limited and narrow in scope; in TCC, a more detailed regulation with various provisions on unfair competition is regulated. Cases which constitute “unfair competition” are exemplified in detail, and concrete indicators for determining unfair competition are specified.   Due to the regulation of unfair competition in these 2 (two) different laws, there are various Court of Cassation decisions stating that the regulations in TCC should be taken as the basis for resolving disputes related to unfair competition among merchants, while the regulations in TCO should be taken as the basis for resolving disputes related to unfair competition among non-merchants.   However, there are also opinions arguing that the broad and comprehensive regulations in the TCC should be applied to all disputes related to "unfair competition", regardless of whether the parties are "merchants" or not.   Cases Constituting Unfair Competition   In TCC, while the definition of "unfair competition" is provided, various cases constituting unfair competition are also listed separately.   Some of the cases specified in TCC as constituting "unfair competition" are as follows:   Making false, misleading, or unnecessarily disparaging statements about third parties or their goods, activities, prices, etc. Making false or misleading statements about himself / herself / itself, his / her / its commercial enterprise, products, activities, etc. Attempting to create the impression of having "superior" abilities as if achieving success in this regard, without having received any title, diploma, or award. Taking measures or actions that lead to the confusion of third parties' goods, activities, or businesses with his / her / its own.   The cases specified in TCC are not "limited in number"; they are merely examples of unfair competition that are commonly encountered in everyday life. Therefore, even if not explicitly mentioned in TCC, actions or behaviours that are "deceptive" and/or contrary to the good faith affecting relationships between competitors and/or individuals operating in the market and customers shall constitute "unfair competition".   There are 3 (three) main criteria considered in determining unfair competition. Accordingly, for a case to constitute unfair competition:   There must be an action or activity that affects commercial life. This action or activity must be "deceptive" or “contrary to the good faith”. The related action or activity must affect the relationship between competitors or between suppliers and customers.   In this context, in various decisions of the Court of Cassation it is stated that the following cases constitute "unfair competition":   Selling bread at a price lower than the one determined by the Chambers of Bakers,   “…Considering the costs, it was deemed obligatory for the standard 250-gram white bread to be sold at 0.75 TRY as of the date of the lawsuit. However, it was acknowledged that the defendant sold bread at 0.50 TRY, which was below this price. The defendant also admitted to this fact. Based on these grounds, the lawsuit was accepted, and it was determined that the defendant's actions constituted unfair competition. Accordingly, a decision was made to ascertain the unfair competition and to cease it…”[1]   Unauthorized use of information such as "examination periods," "vaccination days," etc., belonging to a clinic or medical center,   “…It is understood that the business product related to the customer information transferred to the plaintiff company consists of qualified information such as patient names and addresses, examination periods, vaccination days, etc. As stated by the expert committee consulted, the unauthorized use of this information from the plaintiff constitutes unfair competition…”[2]   Importing and selling the originals of the products subject to an exclusive distribution agreement by purchasing them from the third countries.   “…When offering goods brought into the country entirely legally through importation for sale, the defendant must avoid presentations that would create the impression that these goods are from the manufacturer's authorized seller, distributor, or sales center. From this perspective, it can be seen that in the specific case, the defendant used the plaintiff's brand and the word "guide" in its title in a manner that would create the impression that they were in a contractual relationship such as dealership or authorized dealership with the plaintiff.   Accordingly, it is not deemed correct to dismiss the lawsuit in its current written form without considering the aspects mentioned, especially since the actions of the defendant company constitute unfair competition within the meaning of Articles 56 and 57/5 of TCC. Therefore, if the conditions for determining and preventing unfair competition exist, as well as if there are grounds for awarding compensation, the court should have ruled in favor of determining and preventing unfair competition and, if necessary, awarding compensation. Therefore, it is deemed necessary to accept the appeal of the plaintiff's attorney in this regard and to overturn the decision in favour of the plaintiff…”[3]   Within the scope of unfair competition, it should also be noted that for an action or activity to constitute "unfair competition", it is not obligatory that;   There is a “competitive relationship” between the parties; The person taking an action or engaging in an activity constituting unfair competition have gained a benefit; The person taking an action or engaging in an activity constituting unfair competition is faulty and/or; The person subjected to unfair competition have been “damaged".   If the previously mentioned 3 (three) criteria are present, the related action or activity shall constitute "unfair competition".   Legal Actions That Can Be Taken In Case Of Unfair Competition   The legal actions that can be taken by the related persons in case of unfair competition and the issues that can be requested from the relevant court in this regard are as follows:   Determination of unfair competition, Prevention of unfair competition, Reinstatement of the situation resulting from unfair competition, Material compensation, Moral compensation.   3.1.              Determination Of Unfair Competition   In TCC, the first right granted to the related persons within the scope of "unfair competition" is the right to request the determination of unfair competition from the court.   In TCC, with a special lawsuit regulated for “unfair competition” which is a spesific type of lawsuit known as “declaratory lawsuit”, the relevant persons are granted the right to request from the court the determination of whether an existing situation constitutes "unfair competition".   In this regard, it should be noted that with the relevant lawsuit, it is possible to request from the court not only the determination that a situation constitutes "unfair competition" but also the determination that it does not constitute "unfair competition".   3.2.              Prevention Of Unfair Competition   In TCC, the related persons are also granted the right to request from the court the prevention of unfair competition.   Under the scope of "prevention of unfair competition," the court can be requested to cease an action or activity that currently exists and constitutes unfair competition; or to prevent an action or activity that has the potential to cause unfair competition or is likely to recur.   3.3.              Reinstatement Of The Situation Resulting From Unfair Competition   The elimination of the situation resulting from an action or activity constituting unfair competition can be referred to as "reinstatement".   In this regard, if a situation constituting unfair competition already exists the relevant court can be requested to eliminate the situation and/or means constituting unfair competition for the purpose of removing the unfair competition.   3.4.              Material Compensation   It is also possible for persons who has suffered damage from an action or activity constituting "unfair competition" to file a lawsuit claiming "material compensation".   For material compensation to be claimed due to unfair competition:   An action or activity constituting unfair competition must exist, "Damage" must have occurred as a result of this action or activity. The person taking action or engaging in activity which constitutes unfair competition must be "faulty".   In this context, the person who has suffered damage due to unfair competition can claim material compensation proportional to the "benefit" obtained by the person taking action or engaging in activity which constitutes unfair competition.   3.5.               Moral Compensation   In TCC, it is also regulated that moral compensation can be claimed due to "unfair competition".   For real persons, issues such as "honour and dignity," "physical integrity," "privacy of private life," etc., are evaluated within the scope of "personality rights," while for legal persons, issues such as "commercial reputation," etc., are evaluated within the scope of "personality rights".   In this regard, real or legal persons who suffer damage to their "personality rights" as a result of actions or activities constituting "unfair competition" can claim moral compensation from the court.   Conclusion   In economic and commercial life, there are cases that occasionally constitute "unfair competition". These cases are extensively regulated in our legislation and the relevant persons are granted various rights in this context.   The utilization of these rights is important for preventing unfair competition between actors and mitigating potential material and/or moral damages.   If you have any questions regarding “unfair competition” and the legal actions that can be taken in this regard, feel free to contact us anytime. [1] The Decision of the 11th Civil Chamber of the Court of Cassation Numbered 2017/1916 F. and 2018/7379 D., Dated 26.11.2018 [2] The Decision of the 11th Civil Chamber of the Court of Cassation Numbered 2015/4798 F. and 2015/12224 D., Dated 18.11.2015 [3] The Decision of the 11th Civil Chamber of the Court of Cassation Numbered 2007/10509 F. and 2008/13713 D., Dated 01.12.2008  

Authors: Serdarhan Güler New developments are occurring with the gradual prevalence of e-commerce platforms and becoming an inseparable part of life with the pandemic. In proportion to capaciousness of these developments and the number and sequence of the advertisements made by companies the interest of consumers in e-commerce is growing rapidly.  In this context, the use of e-commerce sites is expanding, not only for household goods, garments, cosmetics; but also for kitchen shopping. This intense interest of consumers has led to the formation of tech giants such as Amazon and E-bay internationally and important technology companies such as Trendyol, Çiçeksepeti, Hepsiburada, Getir in our country. Likewise, it is possible to see from the report[1] published by the Ministry of Trade that the ratio of e-commerce to general trade was 17.6% in the first six months of 2021. In this context, features of the economy are changing considerably, and we, as lawyers and legislators, have the obligation to develop rules and research the subject in accordance with the new shopping order. In the Official Gazette dated January 25, 2022, an appeal in favor of the law decision made by  the 3rd Civil Chamber of the Court of Cassation, dated November 15, 2021 and numbered 2021/4000 E., 2021/11403 K., regarding the liability of intermediary service providers that enable electronic commerce due to defective goods was published. We also believe that it would be useful to examine this issue in the context of comparative law, and we hope that the information note titled "The Appearance of the Liability of Intermediary Service Providers Enabling Electronic Commerce Due to Defective Goods Under Different Legal Systems" will be useful to those concerned. First of all, it will be seen when looking at the decision of the 3rd Civil Chamber of the Court of Cassation numbered 2021/4000E. that the defendant (the Consumer) applied to the consumer arbitration committee with the demand for refund of the fee arising from the delivery of defective goods against ÇiçekSepeti (the Claimant) and the demand was accepted, but ÇiçekSepeti demanded the annulment of the transaction, arguing that it had no hostility with the defendant because it was not a supplier. The Local Court dismissed the case on the grounds that the claimant was responsible for the defective goods, that the recourse relationship with the supplier company was an internal relationship, and that the consumer was justified in relying on the ÇiçekSepeti brand. Pursuant to Law No. 6502, the Ministry of Justice demanded the appeal in favor of the law on the grounds that the seller, the producer and the importer are jointly liable for defective goods and holding the service provider, who is not one of them, responsible would be contrary to the procedure and the law. By the Court of Cassation; it has been stated that the Claimant Company, which enables e-commerce on the Internet network, is in the position of intermediary service provider and according to the preliminary information form of the distance sales contract between the parties, the seller party is stated as "Duman Pastry Shop", by Article 9 of the Law No. 6563 on the Regulation of Electronic Commerce and Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce, it has been stated that the lawsuit should be accepted since the Claimant is not obliged to investigate the content provided and the judgment has been appealed in favor of the law." When the judgment of the Court of Cassation above and legal regulations are investigated, it is possible to say the intermediary service providers are not liable for the defective goods delivered in e-commerce under Turkish law. However when the actions of service providers that organize such large advertising campaigns, make commitments about the reliability of the system, advertise in this direction, and provide incentives for the purchase of the products offered on their platform are examined, it is seen that these advertisements and trust play a major role in the purchases made by consumers. Considering their financial power, it is concluded that by some people believe that it would be fairer that the intermediary service providers to be held responsible. Although the reaction to new cases and situations is slow in countries with a Civil law legal system such as Turkey, in countries with an Anglo-Saxon legal system such as the United States of America, disputes are analyzed "case by case", which increases the speed with which the law keeps pace with new developments.  Furthermore, the European Union's most fundamental regulation regulating liability, the "’The Product Liability Directive (85/374/EEC)", was inspired by the decisions of judges in the United States, which were enforced for many years and became established case law. In this scope, we are going to examine first the judgments given regarding this matter in the USA. In light of the above information, in the case of ‘’Oberdorf v. Amazon[2]’’ decided by the United States  Court of Appeals, briefly; a dog collar purchased by the consumer from a third-party seller is broken because of the sudden movement of the dog, and a part of the collar caused a serious, major and permanent damage by striking the left eye of the consumer, afterwards the consumer sued Amazon. Amazon, on the other hand, argued that websites provide a platform where two parties can come together and facilitate transactions, and therefore the company cannot be held liable for this damage.However, the Court stated that holding Amazon liable would stimulate Amazon to investigate the third-party sellers and ensure safety, as Amazon has significant control over third-party sellers and can remove unsafe products from its website altogether. In this context, noting that Amazon's contract with the third party included a clause on compensation that Amazon could recourse the compensation to be paid accordingly, and that Amazon could arrange a risk-based commission with third-party sellers, it was decided that Amazon is a seller and therefore subject to Pennsylvania's strict liability regime. In the case of ‘’Bolger v. Amazon.com,LLC[3]’’ which is another case, the Complaint Angela Bolger, purchased a backup laptop battery sold by Lenoga from an online shopping website operated by, the Defendant Amazon;  the Complaint alleged that Amazon was strictly liable for the defect in the batteries. The Supreme Court recognized the Complaint as right and decided that Amazon should be held liable, considering that Amazon is between the seller who is a third party and the buyer in this transaction and gives confidence to the Consumer and that Amazon can reserve its right of recourse through commercial agreements and thus can easily avoid damages. Although Amazon has been held liable for the decisions above, there have also been decisions[4] in the United States to the contrary and this issue is still up to date and continues to be debated. It wouldn’t seem possible to make a clear determination when the liability of online platform operators under the European Union Law is analyzed. However, there is no binding regulation directly on this issue in the EU Law yet. On the other hand, it is understood that Article 16 of the Discussion Draft Directive on Online Intermediary Platforms[5] prepared by the Digital Services Law Research Group and Article 20 of the Model Rules for Online Platforms ("ELI Model Rules")[6] prepared by the European Law Institute (the "ELI Model Rules") have already examined this issue.[7] First, when the Discussion Draft Directive on Online Intermediary Platforms is analyzed, according to the proposal, it would be said that an online platform operator, that prominently presents itself as an intermediary to customers and suppliers would not be liable for the supplier's failure not to perform its obligation properly under customer contracts. However, according to the proposal, the platform operator may be liable for damages arising from misleading information provided on the platform if the platform operator is informed about content that contains false information but fails to take appropriate precautions to remove or correct such content. Furthermore, if the Consumer reasonably relied on the predominant influence of the online platform on the supplier, it is possible to say that the platform administrator may be jointly liable under this Directive.Assuming the implementation of Article 20 of the ELI Model Rules, if the Customer reasonably relies on the platform operator having a dominant influence on the supplier, then the platform operator may be held liable for non-performance/defective performance of the contract between the supplier and the Customer. It can be said that this rule proposal is similar to the conditions ensured in the Oberdorf Case.[8] CONCLUSION: As a result, neither in Europe nor in the USA is there yet any clear precedent on the extent to which intermediary service providers are liable for defective performance or non-performance of goods ordered through their platforms, and if there is such  liability, whether strict liability provisions or fault-based liability provisions should be applied in terms of this liability.  When it is considered that e-commerce growing every year and is going to expand, it is possible to say that these debates are going to continue in the following years and the countries are going to develop new precedents and regulations on this issue. In this direction, these precedents and regulations are going to be decisive in terms of determining whether the protection of consumers or the protection of intermediary platforms will be emphasized. However, in terms of Turkish law, we would like to state that in the current situation, intermediary service providers are not liable for defective goods. While this issue continues to be discussed worldwide, we will continue to follow and share with you the developments on the subject. [1]https://www.eticaret.gov.tr/dnnqthgzvawtdxraybsaacxtymawm/content/FileManager/Dosyalar/ETI%CC%87CARET%20B%C3%9CLTEN%C4%B0%202021%20%C4%B0lk%206%20ay.pdf. [2] Heather R. Oberdorf and Michael A. Oberdorf v. Amazon.com, Inc., No. 18-1041 (03.07.2019) [3] Bolger v. Amazon.com, LLC., Super. Ct. No. 37-2017-00003009-CU-PL-CTL (13.08.2020) [4] Tomás Gabriel García-Micó, Platform Economy and Product Liability: Old Rules for New Markets, IDP Iss. 35, 2021 , s. 8 [5] Bknz. Busch, Dannemann, Schulte-Nölke, Wiewiórowska-Domagalska and Zoll (2016). Discussion Draft of a Directive on Online Intermediary Platforms. [6] Bknz. European Law Institute (2019). Model Rules on Online Platforms. [7] European Parliamentary Research Service, Liability of online platforms, Brüksel, 2021, s. 67-68. [8] Tomás Gabriel García-Micó, Platform Economy and Product Liability: Old Rules for New Markets, IDP Iss. 35, 2021, s. 18.  

Authors: Beyza Büyükağaçcı, Enis Kadıoğlu As a rule, the opportunity for foreigners to work in Turkey under someone or as self-employed is dependent on obtaining a "work permit". The type and scope of work permits are regulated by the International Labour Law (“Law”) No. 6735. According to the Law, the permission for foreigners to work in Turkey is subject to approval by the Ministry of Labour and Social Security, unless otherwise stipulated in bilateral or multilateral agreements and legislation. In this paper, we will provide information regarding foreigners' applications for work permits and the related process. According to Article 6 of the relevant Law, persons who are not citizens of the Republic of Turkey are prohibited from working and being employed in Turkey without a work permit. All procedures relating to the receipt, assessment, and completion of applications for work permits, exemption from work permits, and other applications are carried out through an electronic system, and the Ministry of Labour and Social Security evaluates applications according to its discretion within the framework of international labour policy. 1-   Work Permit Application Process For foreigners to be able to apply for a work permit, firstly, an employment contract must be signed between the foreign real person and the employer. The employer or the user of the e-declaration system authorized by the employer must register the workplace with his/her electronic signature in the automation system of foreigners' work permits via e-government (e-devlet). The employer can complete the application by clicking the "Apply" menu on the system, uploading the documents after filling them out with the required information from the "Domestic Application" tab, and signing the application with his/her electronic signature. If the application is assessed positively by the Ministry, the work permit fee and valuable paper costs, which are notified to the foreigner and the employer are deposited separately in the relevant bank accounts. The employer must submit the statement of employment by applying to the Social Security Center to which it is affiliated within 30 days from the date of approval of the work permit belonging to the foreigner. 2-   Necessary Documents For Work Permit Application The Ministry of Labour and Social Security requests the following documents from the foreign real person: an employment contract, biometric photograph, passport, and diploma. Besides, the employer is requested for a tax registration certificate, trade registration gazette, balance sheet, certificate of activity, and pre-permit document. 3-   Types of Work Permit If the application for a work permit is assessed positively by the Ministry, the foreigner is granted one of the types of work permits stated in the Law in accordance with the application made under an employment or service contract. The first type of work permit is the general work permit (temporary work permit). As set out in Article 10 of the Law, a work permit of a maximum of one year is granted to a foreigner on the first application, on the condition that the foreigner will work in a precise job at a certain workplace owned by an individual or legal entity, or a public institution or organization, or at workplaces in the same sector provided that it does not exceed the duration of the employment or service contract According to Law, foreigners have the opportunity to extend their work permits starting from sixty days before the expiration of the work permit duration by applying for an extension in any case before the expiration of the current permit. If the extension application is approved, the foreigner can be granted a work permit for up to two years for the first extension application, and up to three years for subsequent applications, provided they remain employed by the same employer. Another type of employment regulated by Article 10 of the Law is a permanent work permit, which foreigners who have long-term residence permits in Turkey or have had legal work permits for at least eight years can benefit. Such foreigners obtain privileged foreigner status. Foreigners with permanent work permits can benefit from all the rights provided by long-term residence permits. Additionally, except for regulations in special laws, they can enjoy the rights granted to Turkish citizens, subject to the provisions of the relevant legislation regarding social security rights, while preserving acquired rights. However, foreigners with permanent work permits do not have the right to vote, to be elected, to enter public service, or to fulfill military service obligations. In conclusion; As a rule, foreigners are obligated to obtain permission from the Ministry of Labour and Social Security in order to be able to work under someone or as self-employed in Turkey. All procedures relating to the receipt, assessment, and completion of applications for work permits and exemptions from work permits are carried out through an electronic system. If the application for a work permit is assessed positively by the Ministry of Labour and Social Security, the foreigner is granted one of the above-mentioned types of work permit in accordance with the application made under the employment or service contract.  

Authors: Enis Kadıoğlu   “…And so did the French legal system back in 1896, when Armand Peugeot, who had inherited from his parents a metalworking shop that produced springs, saws and bicycles, decided to go into the automobile business. To that end, he set up a limited liability company. He named the company after himself, but it was independent of him. If one of the cars broke down, the buyer could sue Peugeot, but not Armand Peugeot. If the company borrowed millions of francs and then went bust, Armand Peugeot did not owe its creditors a single franc…”[1]   In the current legal system, companies, with their rights and obligations, capable of initiating lawsuits and being sued, are the inured imaginary entities of modern life. Companies are established with a certain amount of capital, and the owners of the capital are referred to as "shareholders." Nowadays, through a banking application, it has become possible to become a "shareholder" of a company within seconds. This information note summarizes the "right to obtain information and examination" of shareholders regarding the company they own shares in, in the context of joint-stock companies, and is presented for your information.   Share and Shareholding   In our legal system, regulations regarding "companies" are primarily contained in the Turkish Commercial Code numbered 6102 ("TCC"). One of the types of companies regulated in the TCC is joint-stock companies. Companies traded on the stock exchange and whose shares can be bought and sold in daily life are also “joint-stock” companies.   Joint-stock companies, as of 1 January 2024, can be established with a minimum capital of 250,000.00-TRY (Two Hundred Fifty Thousand Turkish Liras). After the establishment of the company, the shareholders hold the status of "shareholder" in proportion to their capital ownership. Following the establishment of the company, shares of the company can be transferred or the company's shares can be offered to the public. In this regard, the "shareholders" of the company can change, and the number of "shareholders" can increase.   Rights of Shareholders   In TCC shareholders are granted various rights and authorities. Some of these rights and authorities include: the right to attend general meetings, the right to vote, the right of the dividend, the right to obtain information and examination... The effective exercise of shareholder rights ensures that the shareholders influence the operation of the company.   Right to Obtain Information and Examination of Shareholders   Shareholders’ right to obtain information and examination regarding the company in which they hold shares is one of the fundamental rights arising from shareholding. The right to obtain information and examination of a shareholder in a joint-stock company is primarily regulated in Article 437 of TCC.   Scope of the Right to Obtain Information and Examination   In TCC it is stipulated that a shareholder may request information regarding the "affairs of the company" and the "manner and results of the audit." In this context, in order to determine the scope of the right to obtain information and examination, it is necessary to specifically and primarily establish what is encompassed by the term "affairs of the company."   The term "affairs of the company" encompasses all kinds of transactions conducted by the company with natural or legal persons, all actions taken in this regard, and all legal, commercial, or contractual activities of the company.   In this regard, a shareholder has the right and authority to obtain information about all kinds of activities and transactions of the company in which they hold shares. As previously stated, being informed about the company in which one is a shareholder is one of the most fundamental rights.   Especially for publicly traded companies whose shares are traded on the stock exchange, the values of their shares can appreciate or depreciate in line with the company's activities and transactions. This situation directly affects the shareholder's personal economic assets.   Another important right granted to shareholders under the "right to obtain information and examination" in TCC is the right to examine the company's financial statements, audit reports, and activity reports. By examining these documents and reports, shareholders also indirectly exercise oversight over the company in which they hold shares.   The publication of the mentioned documents related to publicly traded companies whose shares are traded on the stock exchange on the Public Disclosure Platform makes it significantly easier for shareholders to examine the relevant documents and reports.   Limit of the Right to Obtain Information and Examination   In TCC, it is stated that a shareholder's request for information can only be rejected in 2 (two) cases. Accordingly, a shareholder's request for information can only be rejected if (i) disclosure of company secrets would result from providing the information, or (ii) other company interests that need protection would be jeopardized. The purpose of this regulation regarding the limitation of the "right to obtain information and examination" is to protect the company and ultimately, the shareholder.   As previously mentioned, companies, essentially a "figment of human imagination," can acquire rights and obligations in current legal system; they can engage in commercial, legal, or contractual relationships with other companies and/or individuals.   In this regard, it is reasonable and understandable for a company to keep certain matters as "secrets" to protect its interests and not disclose them to third parties. The company is a separate and independent entity from the shareholders and is obligated to protect the interests of its own "fictional" existence in addition to the shareholders.   If the right to obtain information and examination of a shareholder is maliciously exercised and the company's "secrets" are disclosed to a malicious shareholder, the company's commercial and/or economic interests will be harmed. This situation will directly harm the company itself and indirectly harm the shareholders of the company. Therefore, the company may reject the shareholder's request for information in the specified circumstances.   Exercise of the Right to Obtain Information and Examination The right to obtain information and examination can be exercised in various ways and at various times.   In accordance with TCC, companies are required to make the financial statements, annual activity report, and other documents specified in the TCC available for shareholders to inspect at the company's headquarters and, if any, branches, 15 (fifteen) days before the ordinary general assembly meeting date that companies are required to hold. Shareholders can visit the company's headquarters or branches to examine the specified documents and exercise their right to obtain information and examination in this manner.   The right to obtain information and examination can also be exercised by directly addressing questions to the company. This aspect of the right to obtain information and examination is primarily exercised at the company's general assembly meeting. During the convened general assembly, a shareholder asks their questions to the board of directors on behalf of the company either in writing or verbally. A shareholder can also direct their questions regarding the manner and results of the company's audit to the auditor.   It is essential for the board of directors or the auditor to respond to the shareholder's questions at the general assembly where the question/s were asked. However, if the answers to the questions require the examination of various documents, this fact is recorded in the minutes of the meeting, and the answers to the questions can be provided at the next general assembly meeting.   For publicly traded companies whose shares are traded on the stock exchange, the anticipated response time for questions raised by shareholders at the general assembly is more limited. In this context, if questions asked at the general assembly of a publicly traded company (i) are not related to the agenda of the general assembly and/or (ii) are too comprehensive to be answered immediately, the questions must be answered in writing within 15 (fifteen) days at the latest by the "investor relations department" of the company, and the answers must be publicly disclosed on the company's website within 30 (thirty) days from the date of the general assembly. It is also possible for a shareholder to submit their questions to the board of directors in writing before the general assembly meeting. This way, the board of directors is provided with the opportunity to conduct necessary examinations and make preparations for answering the questions before the general assembly meeting.   As previously mentioned, the right to obtain information and examination is primarily intended to be exercised at the general assembly meeting. However, it is acknowledged that shareholders have the right to obtain information and examination outside of general assembly meetings as well; hence, they can address their questions to the company outside of these meetings.     Legal Actions That Can Be Taken in Case of Violation of the Right to Obtain Information and Examination   If a shareholder's request for information and examination is rejected, left unanswered, or deemed insufficient, legal actions that the shareholder can take are also regulated in TCC.   Accordingly, a shareholder whose request for information and examination has been rejected may apply to the commercial court of first instance in the location of the company's headquarters within 10 (ten) days following the rejection; in other cases, they can apply within a reasonable period.   To expedite the resolution of the lawsuit filed by the shareholder, the trial is conducted under the simplified procedure, and the decision rendered by the court is "final".   As part of the lawsuit, the court examines whether the shareholder's right to obtain information and examination has been violated within the limitations specified in TCC.   If the court finds the shareholder's request to be "justified", it may issue a decision instructing the company to provide the shareholder with the requested information.   Conclusion   The right to obtain information and examination is one of the fundamental and important rights arising from shareholding.   This right grants a shareholder the right and authority to obtain information about the company in which they hold shares and indirectly "inspect" the company. However, this right can only be restricted in limited circumstances specified in TCC.   If you have any questions regarding the right to obtain information and examination, please feel free to reach out to us at any time. [1]Harari, Sapiens: A Brief History of Humankind, 2011