About

What are the most important transactions and litigations that you have been involved in during the last two years?

A contract has been signed with TCDD for the procurement of Velaro high-speed train sets (10+2) -produced by Siemens- which includes the maintenance services of the mentioned trains for three years. Although I was not in Siemens team at the time of the execution of the contract, I and my team have been actively working on the execution phase of such contract which is quite tough but exciting as well. We are very proud that our first train has already arrived safely to Turkey.

Before joining to Siemens, I was working as the Head of Legal of an electricity generation company and I was involved in the privatisation of hydroelectric power plants which is the largest acquisition to date of hydroelectric power plants by a domestic investor in Turkey.

What will be the main focus for the company in the next 12 months and how do you intend to assist with this?

Siemens Mobility is constantly developing new intelligent sustainable mobility solutions, therefore the main focus of Siemens Mobility Turkey would be to continue to be an active player in intelligent traffic systems including the mainline and urban transportation, signalling, electrification and transportation infrastructure. In order to conduct and complete successful projects, all of the team including the legal should act as the one team from the beginning, therefore we as the legal department of Siemens Mobility will always be a member of the project team and proactively support and advise in each phase.

How do you suggest in-house lawyers build strong relationships with business partners?

It is very crucial

No matter what background you have, if you are acting as an in-house, you should be aware that you are a part of the team, and you should ensure that your business partners feel the same for you. Hence, in-house lawyers should know and understand what their company is really doing, the business, the sector, the customer, the possible reactions of the customers, sectoral risks and these could not be learnt solely from the legal books, you have to work with the team together. Furthermore, as an in-house, you should be “advising”, not solely raising the red flag in order to block the process, on the other hand a good in-house lawyer should advise and try to find out solutions, if possible.

What “legal tech” products do you currently utilise, and do you foresee implementing more of these in the near future?

We are currently using a software program being used by Siemens Legal department for the archiving and filing of the documents developed by Siemens’ itself. Furthermore, at Siemens we are using a range of software in order to follow the projects and the contracts.

Have any new laws, regulations or judicial decisions greatly impacted your company’s business or your legal practice?

The developments and amendments in Public Procurement Law have a great impact on our company’s business as well our legal practice.

What do you feel are the most effective techniques for getting the most out of external counsel, in terms of how to instruct them?

First of all the instructions and thus the scope of work should be clearly set forth from the beginning. Furthermore, adequate information regarding the company including the work processes, the organisational structure and key sectoral elements should be provided to the external counsel. I also prefer to get in contact face to face or via telephone instead of writing an email in the event of a misunderstanding regarding the instructions. Lastly, demanding regular reports is also beneficiary if you are working on a retention basis.

FOCUS ON: Liquidated damages in the Turkish code of obligations

In today’s world, the companies, both the owner and the contractor sides, would like to assess and anticipate their risks before making an investment and entering into a contract. Therefore, it is quite common to come across with the liquidated damages clause in big construction contracts, for example EPC contracts as the liquidated damages is a concept according to which the parties of a contract agree on the possible compensation amount in advance, regarding the estimated damage that could be occurred in certain events of default.

On the other hand, although the liquidated damages concept is generally accepted by the practitioners and the doctrine, it has not been specifically protected by the legislations of the most of the civil law countries including Turkey. Therefore, the practitioners should be very careful with respect to the liquidated damages clauses stated in the contracts which are subject to Turkish Law.

One of the main risks regarding the liquidated damages concept is that liquidated damages could be deemed as a penalty and thus could be subject to a reduction by the judges as per article 182 of the Turkish Code of Obligations. It should be noted that the purposes of penalty and liquidated damages are quite different from each other. Penalties are generally stated in order to force debtor to perform its main obligation as a security and thus could be disproportionate and could be also deemed as a punishment. What is more, there is no need for an actual or existing damage in order to claim for a penalty. On the other hand, the aim of stating the liquidated damages is to estimate the amount of the possible damages in advance, in order to parties to be able to conduct an overall risk assessment for the project/contract. In contrary to the penalty concept, the owner should incur damages due to the certain default of the contractor as specified in related clause. Unfortunately, there is not a consistency within even the divisions of the Court of Appeal regarding this separation of penalty and liquidated damages. Therefore, the idea of “not benefiting from each other” should be taken into account while determining the amount of the liquidated damages.

Furthermore, given the fact that the liquidated damages clauses are deemed also as a sui generis type a of non-liability agreement, mandatory article 115 of the TCO shall also apply to the liquidated damages according to which the agreements on exclusion of liability for gross negligence and wilful misconduct in advance would be deemed void. Hence, if the contractor’s default is based on its gross negligence and wilful misconduct, then the cap stated in liquidated damages clause shall not be applied and therefore the owner could seek for an exceeding amount for its damages.

Consequently, under the light of the foregoing, the liquidated damages clauses should be drafted very carefully without leaving an ambiguity to the discretion of the jurisdiction authority.