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In the Days of COVID-19: Overview of Force Majeure and Frustration of Contract in English Law

The world is experiencing extra-ordinary days due to the Covid-19 pandemic. The construction sector is highly globalized with the involvement of many vendors, contractors, subcontractors, designers, etc. from different regions of the world and this means continuous mobilization of engineers, supervisors, technicians, specialists, workers, equipment, materials, machinery, etc. Almost all of the construction projects are affected by the restrictions brought by the countries due...

Draft Regulation on the Processing of Personal Data and Protection of Confidentiality in the Electronic Communications Sector

Founding Attorney Hatice Zümbül – Legal Intern Mehmet TurgutI. IntroductionThe Information Technologies and Communication Authority in Turkey published the Draft Regulation on the Processing of Personal Data and Protection of Confidentiality in the Electronic Communication Sector (“Draft Regulation”) on 23.03.2020, on its website by the decision of the Information Technologies and Communication Board (“Board”). Accordingly, essential changes on electronic communic...

New Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement

Recently, the investor-state dispute settlement (ISDS) mechanisms have become one of the most debated issues among international lawyers. Numerous calls have arisen for “ISDS reform,” which have paved the way for the intergovernmental efforts to tackle so-called major problems and deficiencies of the current ISDS system. The most prominent initiative in this sense is United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) which has been w...

A Legal Perspective on E-Sports in Turkey

As a result of the access of computers to households other than commercial life, it was soon to understood that these devices could be used not only for commercial purposes but also for individual entertainment after 80’s in the world. The integration of the Internet to these devices should be regarded as the beginning of a new era for computers and users. With the help of the internet, computer games are able to be played in multiple from different places, and it should be...

Types of Employment Contracts under Turkish Laws

According to Article 8 of the Turkish Labor Law No. 4857 (the “Labor Law”), an employment contract “is an agreement whereby one party (the employee) undertakes to perform work in subordination to the other party (the employer) who undertakes to pay him remuneration.” Article 393 (General Service Agreement) of the Turkish Code of Obligations numbered 6098 (“TCO”) defines the employment contract as “an agreement in which the employee is obliged to perform a work f...

Biometric Signatures

1. What is the Biometric Signature?A biometric signature basically is defined as a method for the signing of electronic documents based on the handwritten signature using a tablet, computer screen, or similar electronic devices. Following handwriting, the signature transforms to a simple PDF document and your biometric signature is ready! Besides, it is possible to add any evidence of signing such as biometric signature data, timestamp, location, IP information, photo, ID pic...

Legal Effects of COVID-19 on Rent Payments and Employment

I. OverviewThe novel coronavirus (SARS-CoV-2) and the Covid-19 disease it is causing are having an unprecedented impact on business and commercial activities all around the world. The pandemic has also reached Turkey and effectively paralyzed the industry and nearly all commercial activities, except for a few select businesses. To help companies and employees navigate the complex structure of new legislations and mechanisms introduced during this period, we have prepared this...

Recovery of Damages due to Patent Infringement in Turkey

AbstractPatent holders may file lawsuits in order to claim the damages that occurred due to infringement of their patents. However, the calculation method of the pecuniary and non-pecuniary damages may differ in accordance with the request of the Patent Holder. Besides, since patents are very valuable assets which contain technical characteristic, the strategy of the lawsuit should be carefully analyzed, and Patent Holder should secure the documents which prove the patent inf...

Case of Adaptation in Coronavirus Pandemic

1. IntroductionWe are going through an extraordinary period. While the world keeps fighting with the COVID-19 pandemic, we witness serious effects of the epidemic on health, and also impact on political developments, economy, trade, education, production and tourism sectors. As a result of globalization, it is an indisputable fact that how great and serious results this period has and will have.In Turkey, many measures are taken within the scope of combating the epidemic; one...

The New German Fining Policy under GDPR and Differences from The Dutch Fining Policy

The Fining Policy was[1] published on 14 October 2019 by the German Data Protection Authority (Datenschutzbehörde). The authority agreed with this policy a new way of calculating administrative fines imposed on data breaches in accordance with GDPR[2].The penalties to be paid when data breaches occur are determined under this policy. The enterprise making the data breach is obliged to pay the fine determined according to the annual turnover and the quality of the data breach...

Binding Corporate Rules in the EU and Turkey

Founding Attorney Hatice Zümbül – Legal Intern Mehmet Turgut 1. IntroductionThe Turkish Data Protection Authority (“Authority”) published an announcement on 10.04.2020, and introduced “Binding Corporate Rules” (“BCRs”) that is enabled to be used for the transfer of personal data outside of Turkey by companies.  Indeed, according to article 9 of the Law on Personal Data Protection no 6698 (“KVKK”), in the case of inadequate safeguards in the country to wh...

Data Localization Law in the time of Corona: Proposed Amendment to the Law No. 5651

Governments all around the world are announcing, initiating, and adopting numerous legal, economic, and financial measures to mitigate the effects of the COVID-19 outbreak. Since mid-March 2020, Turkey has also been taking similar measures by adopting various new laws and regulations. While some of these legislative efforts adopted in Turkey are predictable and expectable (such as rules regarding the extra shifts of the health workers or suspension of judicial proceedings due...

Force Majeure under U.S. Law

As of 8 April 2020, nearly 1.5 million people have contracted COVID-19, equity markets across the globe have shed trillions of dollars of gains, and unemployment has shattered previous highs.  As a result, businesses are struggling to fulfill their contractual obligations and looking for ways to mitigate their damage.  Can they not perform and be excused? It depends. Importantly, most U.S. jurisdictions recognize that such unforeseen pandemics may excuse businesses from per...

How the EU Passenger Rights will be Applied and Interpreted during the Outbreak of COVID-19

As recognized and declared to be a pandemic by the World Health Organization on March 11, 2020; as of March 25, 2020, COVID-19 (“the virus”) has caused around 435,000 confirmed cases with up to 112,000 recoveries, and around 19,700 deaths globally. While the mortality of the virus continues to affect human beings by spreading around the countries exponentially, its negative economic impact is also widening around the world crucially.Although it is obvious that all industr...

Algorithms Meet Transparency: Why There is a GDPR Right To Explanation?

In today’s world, the impact of automated decision making could be observed in practices of many industries and governments across the globe. Indeed, automated decision making is used in fraud detection systems, managing limited sources by municipalities, ranking performances of employers, calculating credit scores or by Amazon, Airbnb, or Uber for dynamic product pricing. [1] Private entities and governments using data-driven algorithms could reach decisions that might vit...

Short Time Work Allowance due to the Force Majeure

IntroductionThe Regulation on Short time Work and Short time Work Allowance (in Turkish “Kısa Çalışma ve Kısa Çalışma Ödeneği Hakkında Yönetmelik” hereinafter referred to as “Regulation”) has been published in the Official Gazette dated April 30, 2011 and numbered 27920.In Turkish Law, according to the Regulation, public authorities are able to influence the adjustment of the labor input between changes in employment levels and changes in the average hours...

What Should Be The Legal Limits for Governments to Collect and Use Its Citizens’ Personal Data?

Privacy concerns in China has gone hand in hand with the integration to global economy since 1980’s. Increased penetration of global brands into the economy and the WTO membership of China have resulted a shift towards nurturing privacy regulations. As WTO declared its membership, China started adapting deeper regulations on privacy (Yao-Huai, 2005). Although privacy issue has started finding a place in Chinese legal system in 1980’s, main aims of the laws has been reputa...

COVID-19 and e-Arbitration: The Takeaways for Turkey

We are living in an ever more digital era, yet many of the practical realities of international arbitration has remained unchanged. Arbitrators, lawyers, and parties have been resistant to adopt technology in the same way that other large professions have. That is to say, lawyers and arbitrators still typically attend hearings in person, and paper documents are still often incorporated in the proceedings. But, with the outbreak of COVID-19, arbitration is arguably witnessing ...

Processing Employee Health Data under Turkish Personal Data Protection Law

1. General Requirements for Processing Special Categories of Personal DataPursuant to Article 6 of the Law on Protection of Personal Data No. 6698 ("KVKK"), the race, ethnic origin, political thought, philosophical belief, religion, sect or other beliefs, appearance and dressing, association, foundation or union membership, health, her personal data is about her sexual life, criminal conviction and security measures, and her biometric and genetic data are considered...

Shared Revenue Building Contract

IntroductionShared revenue-building contract is a contract type rapidly spreading in use in recent years in the construction sector in Turkey. Acceleration capture public housing construction in recent years in Turkey, it revealed a significant financial resource requirement. The shared revenue-building contract has found the field of application as a type of contract aiming to meet this need.Housing Development Administration of Turkey (TOKİ) has an important role in the im...

Could Regulating Blockchain Technology Improve Competition in Digital Markets?

IntroductionDigital technology creates significant benefits for the economy and improves peoples life quality. According to advancements in networked processing, computing power, and cloud-based systems, consumers are enjoying new types of products and services in various sectors. Blockchain is one of the promising technologies. Proponents of blockchain technology acknowledge it as an instrument to enhance individual freedoms and user autonomy.[1] Some believe that blockchain...

The Approaches of the Countries to Covid-19 Considering Data Privacy

Founding Attorney Hatice Zümbül – Legal Intern Mehmet TurgutPublic Health V. Data PrivacyCoronavirus named “COVID-19” which has appeared for the first time in the 1960s has occurred in December 2019, the region of Wuhan, China.  The virus has spread so fast and now, the 118 countries are struggling with this epidemic. In the world, the number of people who died because of the virus has exceeded 4.500 and the number of confirmed cases has been more than 125,288. The w...

Can the Singapore Convention and ODR “Rescue” International Businesses in Dire Times?

The world, as we know it, is going through a major change. It is in turmoil. Countries are completely “shutting up”. Businesses are in distress. In the coming days, traditional legal mechanisms may also start to fail. Already, some countries have temporarily suspended some court activities. Perhaps, the time has come to give priority to mediation in resolving matters related to international commercial transactions.Unlike arbitrators in the arbitration proceedings, mediat...

Legal Aspects of Financing Models in Turkish Energy Investments

In Turkish Economy (which considered as a developing country) huge investments are the sharp milestones in the pathway of economic development such as “Energy Investments” and “Substructure Investments”. As a crossroads between major energy consumers and suppliers, Turkey occupies a strategic location that serves as a regional energy hub. The existing and planned oil/gas pipelines, the critical Turkish straits, and promising finds of hydrocarbon reserves around Turkey...

International Sales Contracts in Times of Global Crises

The world may be on the verge of a major global crisis. All individuals across the world are talking about the COVID-19 or, in other words, the coronavirus. It has affected the education system, the welfare system, the stock markets; it has burdened the health care systems, and countries are starting to close their borders. Unavoidably, global businesses and trade will see its fair share soon, that is- if it has not yet seen it.A major challenge that businesses will face in t...

How the KVKK will Affect Lead Generation Marketing?

According to Gartner’s definition lead generation is the process of collecting a set of contacts from prospective buyers with a goal to nurture and qualify them as sales opportunities to grow the business.[1]Nowadays, lead generation is one of the most preferred methods of marketing strategies of many companies. The main goal of this method is to bring potential customers and companies together. A lead can be any consumer who has directly or indirectly interested in buying ...

What is the Best Dispute Resolution Mechanism for International Sales Contracts?

The world has never been as globalized and as integrated as it is today. The integration has and is still forcing systems on all levels of society to go through change.  The legal systems and laws across the globe have had their fair share in keeping “up to date” in this new era of integration, which has resulted in the necessity to draft uniform laws. Within this framework, the United Nations has been engaged with the unification of laws for a few decades now. A success...

Getting Turkish Citizenship Through Acquisition of Real Estate

Within the scope of 20th clause, second paragraph, article (b) of the regulation on the Application of Turkish Citizenship Law, foreigners can acquire Turkish citizenship:“Real estate worth at least 250,000.00 US dollars, or equivalent foreign currency or Turkish lira, has been purchased with an annotation in the land registration indicating that it can’t be sold for 3 years; or property of established commonhold or construction servitude worth at least 250,000.00 US doll...

The Review of the 5th Anti-Money Laundering Directive of the EU

Founding Attorney Hatice Zümbül – Legal Intern Mehmet Turgut1. IntroductionThe events such as Panama and Paradise Papers, Middle East migration crisis and Human trafficking, occurred during the period from the date of the 4th EU Anti-Money Laundering Directive to now, have revealed the necessity for new measures to counter money laundering and the financing of terrorism.Recent terrorist attacks have brought to light emerging new trends, in particular regarding the way ter...

Obligations of the Employer Depending on the Number of Employees

Under the current Turkish Legal System, the employer has certain general obligations arising from the labor contract. These general obligations stipulated in the Labor Law numbered 4857 (“The Law”)[1] can be summarized as establishing occupational health and safety in the workplace and conducting supervision and observance related to this. However, as the number of employees of a workplace increases, a number of additional obligations arise along with the general obligati...

Legal Aspects of Cloud Computing Agreements under Turkish Law

Cloud computing, as an emerging technology, brings about new aspects to business models especially in terms of preservation and protection of funds and resources. On that sense, cloud computing is one of the main tools to re-form commerce and commercial entities in this globalizing world.[1] Hence, it is very important to comprehend the legal infrastructure of this emerging technology. In this post, we aim to provide some basic information about cloud computing and the legal ...

Employee Stock Option Practises in Turkey

AbstractEmployee Stock Option Plan (“ESOP”) have attracted tremendous attention during last decade and became one of the most controversial compensation methods, throughout USA and Europe. Corporations and especially startups, have been using the ESOP for managerial and non-managerial level of employees even tough ESOP originally were designed for top tier Employees. Since ESOP practices are dramatically increasing, ESOP is subjected to strict regulations in USA through I...

Termination of Employment Contracts by Employers as per Turkish Labor Law

1. OverviewThere are two separate systems provided in the Turkish Labor Law (the Law) for the termination of employment contracts. The first system is noted as the ‘freedom of termination’ (Art. 17), which essentially means that the employer is free to terminate employment contracts as it deems fit, provided that a contract is an employment contract for an indefinite duration. In this system, the employer is not required to provide any justification for the termination an...

Duties and Legal Responsibilities of the Manager and the Authorized Courts for the Disputes may arise from the Manager Contracts

Abstract: In this article, how a good manager should be in line with our experience and the legal validity of the irresponsibility clauses in the manager-client contracts and authorized courts for disputes may arise from these contracts were examined.The French word “Manager” is defined in TDK(Turkish Language Institution) as “The person who regulates and manages the professional work of an athlete or an artist.”Nowadays, managers are also involved in the daily lives ...

Recent Tax Changes in Turkey

Turkey introduced Digital Services Tax (the DST), together with Accommodation Tax, Luxury Residence Tax and some other important tax amendments under the Law No. 7194 (the Law) which was published on the Official Gazette dated December 7, 2019. These changes will be applicable in FY2020. In this article, we provide details of upcoming tax changes for FY2020 in Turkey.1. Digital Services TaxThe DST is applicable to companies providing digital services and the Law defines thres...

Fixed and Floating Charges and Why it Matters

SecurityThere are three basic types of security that can be created under English law:Pledge.Charge.Mortgage.What is a Charge?For practical reasons, most lenders will not want to take possession of a debtor's assets and a debtor will not want to lose control of its assets, especially if they are used in the day-to-day running of its business. Accordingly, a lender will want to take security by obtaining rights over, but not necessarily possession of, specific assets of the de...

Share Pledge in Joint Stock Corporations in Loan Transactions

When providing financing, the credit & finance institutions, i.e. banks, require the party, seeking the utilization of loans, to provide themselves with several securities. In such financial transactions, the banks require the individuals or corporations, who/which request an amount of loan from the bank, to sign guaranty, mortgage, assignment, insurance agreements as securities, along with the loan/credit facility agreements. In case the party to receive the loan is ...

Share Transfers in Turkey – Part III – Restrictions on Share Transfers

I. OverviewIn the previous parts of the corporate law and share transfer series, we reviewed the general rules and procedures relating to share transfers in joint stock companies (JSC) and the role of company share ledgers in such transfers. The third part of the series will focus more on the possible restrictions that may be imposed upon share transfers that will also be binding in terms of the Turkish Commercial Code.II. The Meaning of Restrictions on Share TransfersAs thor...

Contracts against the Ordinary Course of Living under Turkish Contract Law

A. Fundamental Principle: Freedom of ContractAccording to the principle of freedom of contract applicable under Turkish Law, as a rule, parties have the freedom to make contracts with any content. Thereby, parties are not obliged to draw up contracts that are considered reasonable by everyone or that are in line with the ordinary course of living. It is possible to depart from this ordinary course and conclude contracts that third parties may find vacuous or unaccustomed. For...

Liabilities of the Board of Directors

1. IntroductionPrincipal duties and obligations of board of directors of joint stock companies (“BoD”) are constituted under Turkish Commercial Code [1] (“TCC”).Turkish Criminal Code [2], Social Security and General Health Insurance Law (“Social Security Law”) [3], Tax Procedural Law [4], Public Receivables Law [5] and Execution and Bankruptcy Law [6] stipulates penalties and liabilities of BoD in breach of such duties and obligations.2. Duties and Obligatio...

A Critical Analysis of the Intermediary Liability Regime Imposed by Different Regulations

A. An Introduction to the World of Intermediaries and Their LiabilitiesAn intermediary can be defined broadly as an entity that provides the information flow from one party to another on internet.[1] Since they serve as a bridge for any communication between the parties, the intermediaries are able to reach any data formed by the users as well as personal information regarding them.[2] Hence, intermediaries play a tremendous role in assisting and protecting the free speech ri...

A Legal Analysis on CISG’s Scope of Application from Smart Contracts’ Perspective

I. Introduction and Development of Smart Contract Technology Distributed Ledger Technology (DLT) is a prominent element of today’s disruptive innovation age, and it is a fierce discussion topic especially ever since a pseudonymous person called Satoshi Nakamoto released his renowned paper and introduced a new peer to peer (P2P) electronic cash system called “Bitcoin”[1].  Nakamoto’s main idea was to create a decentralized transparent environment which eliminates any ...

Current Changes on Commercial Communication Brought by the (Amendment) Regulation

Founding Attorney Hatice Zümbül – Legal Intern Mehmet Turgut1. IntroductionThe Regulation on the Amendment to the Regulation on Commercial Communication and Commercial Electronic Messages has been put into force with effect from 1 September 2020 (the articles – 1,2,3,7,9,11,12,13,15,17 and 18- will be applied as of 1 September 2020).  The Regulation brings about changes regarding natural or legal person who wishes to send commercial electronic message in context of t...

Data Protection in Turkey - 2019 Year in Review

It has been three years since the framework law on protection of personal data (Turkish Data Protection Law – “TDPL”) was introduced to Turkey. In this 3-year introduction process, high interest, in particular, of practitioners and academicians in the subject contributes to the creation of bilateral awareness. In one hand, while data controllers embark on compliance process, data subjects begin to have knowledge through, in particular, activities of media and Turkish Pe...

Autonomous Driving, Ethics and the Legal Issues 1

I. IntroductionAutomated and autonomous driving will play an important role in future mobility. Today's vehicles can relieve the driver in many situations and technical progress is developing rapidly. Nevertheless, questions are still unanswered on the way to autonomous driving - including questions about the legal framework.Automated or autonomous driving distinguishes two development stages in self-driving cars. Today's assistance and semi-automated systems support the driv...

Irregular Migration to Turkey

People have the right to freedom of movement freely. States manage their borders in a manner that respect national sovereignty while preventing irregular migration. Regular migration is a type of migration that occurs in compliance with the laws of the country of origin, transit and destination. According to border statistics of Turkish Republic Ministry of Culture and Tourism, Turkey entertained 39.488.401 foreign visitors in 2018. It is seen from statistics that citizens of...

No More Extension for Short-Term Touristic Residence Permits in Turkey!

On December 2, 2019, the Turkish Directorate General of Migration Management announced that as of 01.01.2020, the requests of the foreigners who have been granted a one-year or longer short-term residence permit in total or at once for touristic purposes, for extending their short-term residence permits will be disapproved, in case of absence of a justifying reason other than tourism.[1]Fundamentally, the abovementioned administrative decision has merit because of the fact th...

Compliance with the Law on the Protection of Personal Data is Surely Important; How about Other Regulations that Turkish Companies Should Comply with?

The Law on the Protection of Personal Data is one of the most discussed and debated issues recently. This issue is so much popular that, it is as if this law is the only regulation that companies should comply with! However, that is not the case.Companies are obliged to comply with all relevant laws, regulations and internal rules. This is simply the obligation to act in accordance with the law.In a wider interpretation of the compliance obligation, in addition to compliance ...

Recent Developments Relating Google Android Decision of the Turkish Competition Authority

Founding Attorney Hatice Zümbül – Legal Intern Mehmet TurgutI. Introduction The Turkish Competition Authority (The TCA) carried out an investigation on 09.02.2017 in order to determine whether the contracts issued between Google and producers of the device and the Google Economic Integration’s practices breach the fair competition or not.At the end of investigation, the TCA had held the final decision regarding whether the economic integration occurred by Google LLC, Go...

Control Enhancing Mechanisms: Prioritizing Long-Term Company Success over Short-Term Shareholder Interests

The conventional shareholder value maximization-oriented corporate governance discussions are very likely to undermine long-term success of companies at their post-IPO stages. It is a matter of fact that, investors are likely to prioritize protecting their investments instead of contributing to the long-term development of the companies they have invested in. In this regard, for instance, investors mostly demand protection rights such as liquidating rights, control, and votin...

How is the Registration of Same/Identical Trademark Possible under the Law on Industrial Property Numbered 6769?

I. Article 5/3 of the Law on Industrial Property The Law on Industrial Property numbered 6769[1], which came into force on 10.01.2017, introduced several new regulations related to industrial property rights. One of the significant new regulations is the consent letter of trademark holder defined within the scope of Article 5/3 of the Law on Industrial Property. Under Turkish law, now, it is possible to register the same/identical trademark, which has already registered by an...

Assignment of Receivables and the Guarantee Liability of the Assignor

Assignment of receivable is a legal institution that has stemmed from the needs of life[1] and is a method frequently resorted to by both international and national businesses. It is mostly used when the assignor is in financial difficulty and as a result of the sale of the receivable below its real value.[2] This institution has been regulated in Articles 183 through 194 of the Turkish Code of Obligations No 6098 (“Code”). While it is not specifically defined in the Code...

Doubtful Debts arising from Cross-Border Commercial Transactions in Turkish Law and Administrative Implementation of the Law

IntroductionInternational trade is an indivisible part of businesses in this century. One of the risks of the cross-border trade is that a creditor must still pay the relevant amount of Value Added Tax (hereafter ‘VAT’) to the tax office even if the debtor did not pay the sum to the creditor. In international trade, usually, the volume of a business transaction can be higher than the value of a domestic transaction. Therefore, payable tax amounts are relatively higher tha...

Immigration of Skilled Workers to Germany

Hülya Oruç, LL.M. & Mehmet KayaPreambleGermany is experiencing an unprecedented shortage of skilled workers. Many positions cannot be filled. The high average age of Germans is gradually causing problems for the German economy. Old people cannot work and there is nobody to take care of them. This so-called demographic change is supposed to cause big economic problems in Germany, which is one of the most successful economies of the world.  Another problem is that ma...

Trying to Find Out the Knowns in the concept of “Originality” in Intellectual Property Law: An Analysis of the term of “Originality” in the Judgments of the Turkish Court of Cassation

I. IntroductionThe term “originality”, as a requirement for the existence of a work all around the globe, constitutes the very core of the term of copyright and so of the intellectual property law. That’s to say, it is agreed in the domestic laws of many states and in the relevant international agreements that to name something as a “work” for the purpose of copyright, it should meet the criterion of “originality” alongside with other criteria sought in the rele...

The Code No.6769 and the Invalidation of a Trademark Through Bad Faith

1. IntroductionTrademarks, as a source of visibility and reputation, become a strategic asset to companies competing on the basis of product differentiation and customer loyalty (1). While patents and copyrights can be described as governmental grants which give their inventor the right to exclusively use, make, or sell a product for a pre-determined time period, trademarks were merely perceived as indicators of the commercial origin of goods (2). The primary economic functio...

“De-Branding” as a form of Trademark Infringement: Mitsubishi v Duma Case

I. IntroductionTrademark infringement cases are generally based on the use of a trademark; thus, the concept of the use is always focused. While both European Union Trademark Directive[1] (hereinafter EUTM Directive) and Regulation[2] (hereinafter EUTM Regulation) besides the Turkish Industrial Property Code[3] bind the infringement of a trademark to the condition of the use of that trademark; the French Intellectual Property Code[4], on the other hand, exceptionally but expr...

“Conducting a Reference Check” and “Giving a Reference” in a Recruitment Process within the scope of the Turkish Legislation on the Protection of Personal Data

Part I: A general overview in the form of questions and answersIn principle, there are no obligations arising out of an employment relation between a potential employee and a potential or prospective employer unless an employment agreement is concluded. Similarly, all obligations between an employee and an employer arising out of an employment relation end upon the termination of the employment agreement. Nevertheless, some obligations referred to as pre pactum and post pactu...

Privacy and Security Concerns on Bring Your Own Device Policy

Bring Your Own Device: Privacy vs SecurityA. Introduction: Bring Your Own DeviceAs we all know, BYOD is a working model which employees can use their own devices for work. Recently, we have come across a significant research paper[1] about the ‘Bring Your Own Device’ (BYOD) model, its challenges and privacy. The researchers try to find out answers to these two questions:“(1) How do companies deal with employees’ privacy concerns regarding the introduction of BYOD?”...

Conclusion of Contract and Sources of Contract Terms

What is a contract? A contract can be defined as an agreement entered into between two or more parties (individuals, or entities) that creates obligations and rights and these obligations and rights are legally binding for parties. Depending on the type of contract, in some legal systems, the contract has to be written and signed for being legally binding while under some others even a verbal agreement can be held as conclusion of legally binding contract.For a contract, ther...

Share Transfers in Turkey – Part II The Role of Company Share Ledgers

I. OverviewIn Part-I of the corporate law and share transfer series, we reviewed the general rules and procedures relating to share transfers in joint-stock companies (JSC) in Turkey. Although the general procedures were reviewed in detail for all types of share transfers, the limitations on share transfers and restricting provisions set forth at the law were not included in that article. Therefore, the second part of the series will focus more on the role of shareholders led...

The Importance of the CISG in International Trade

The United Nations Convention on Contracts for the International Sales of Goods (CISG) is a multilateral treaty developed by the United Nations Commission on International Trade (UNCITRAL) and it establishes a uniform approach to international sales of goods. It has been adopted by many countries all over the globe. As of date, over 90 countries have ratified, approved, acceded to, or succeeded to the CISG. Lao People’s Democratic Republic is the most recent member: Lao Peo...

Share Transfers in Turkey – Part I Ownership and Transfer of Joint Stock Company Shares

I. OverviewJoint Stock Companies, noted as “Anonim Şirket” in Turkish (JSC), are a type of Capital Company provided for by the Turkish Commercial Code (TCC), similar to 'Corporations' in the U.S. and 'Société Anonyme' in Europe. These JSCs have certain differences with other types of capital companies (such as Limited Liability Companies) and are generally the preferred vehicle for capital investments in Turkey due to their advantages.According to Article 329 of the TC...

A Brief Investigation on the Turkish Personal Data Protection Law No.6698

Law No.6698 on Protection of Personal Data ("Law") entered into force after being published in the Official Gazette No. 29677 dated 07.04.2016. Turkey, despite being a party to much international protocol; Law No.6698 is the first direct legislation fort he protection of personal data. The law such as TCK ("The Turkish Penal Code") and CMK ("Criminal Law Regulations") contain brief regulations on the protection of personal data but; these arrange...

Key Issues to Consider While Doing Business in Emerging Markets: How to Be Compliant?

Emerging markets harbor appealing business opportunities for investors especially from developed countries due to their ever-growing nature. In the World Bank’s Doing Business 2020 Report, Turkey, as an emerging market, ranks 33 out of 190 economies and jumps up 10 places by scoring 76.8 overall in terms of ease of doing business. Turkey has comprehensive laws and regulations regarding corruption and bribery and also ratified the Council of Europe Criminal Law Convention on...

Turkey Proposes 7.5 Percent Digital Services Tax on Large Multinationals

Turkey’s Ministry of Treasury and Finance on 23 October released a draft law introducing a digital services tax, sending it to the Turkish Parliament for ratification.Turkey’s digital services tax is highly similar to the European Commission’s digital tax proposal. It would be applicable to companies with revenues in Turkey of 2 million TRY (Approximately 3.125 million euros) and with 750 million euros or more in consolidated group revenue.The rate of digital services t...

Validity of Online Arbitration Agreements in Turkish Law

Parties of a dispute must have given their consents for arbitration in order to be brought before an arbitral tribunal. As a general rule, parties may not be forced to arbitration without their given consent. A valid arbitration agreement between parties allows parties to start the arbitral process and to enforce the award at the end of arbitral proceedings. Such an arbitration agreement may be concluded with the traditional means of communication over a piece of paper as wel...

Selected Issues Related to Subject-Matter Arbitrability According to Turkish Law

A) IntroductionNotwithstanding that the principle of party autonomy constitutes the essence of arbitration; states are entitled to reserve their right to settling disputes. One of the most significant limitations to party autonomy is based on subject-matter[1]. Whether a matter is arbitrable is being determined in accordance with the relevant state’s public order and political and economic policies of that country[2]. In general, subject-matter arbitrability approaches can ...

United States Imposes Sanctions on Turkey for Military Action in Syria

On October 14, 2019, the Trump Administration imposed broad sanctions on a number of Turkish individuals and entities in response to Turkey’s recent military incursions into Syria.  The Administration further announced that it would increase tariffs on imports of steel from Turkey to 50%, and stated that it was suspending ongoing trade negotiations with Turkey in light of the military operations.  Although the sanctions have the potential for broad application, the initia...

Rape as a Political Tool and as a Weapon of War

AbstractIn “Swastika Night” writer Katharine Burdekin, was already imagining a future seven hundred years after the Nazis had triumphed and the world divided into spheres of German and Japanese influence. The book portrays all women who live in separate, caged-off districts and they indoctrinated on two main points: They should never oppose any man (rape, as a concept, no longer exists), and they must handover their male babies without a fuss[1].Although this is a fiction...

Unresolved Debate of Arbitrators’ Conflicts Disclosure: Time to Unify Standards?

 I. IntroductionIn this paper, I will analyze to what extent can the disarray regarding disclosure duties of an arbitrator be avoided by the implication of a unified standard in the U.S. Federal Arbitration Act (1) (“FAA”). The question revolving around the scope of conflict disclosure has been an unresolved issue within the US. (2) The FAA sets evident partiality as a ground to vacate an award, however, it fails to utilize a standard to apply evident partiality.Let us...

Confusing Concepts: Joint Venture, Consortium and Business Partnership in Turkey

PreambleDue to technological developments, undertaking projects such as airports, bridges, highways, metro, ports, which require great economic power, technical knowledge, and expertise, requires the collaboration of companies specialized in different fields and with different economic powers[1]. Establishing and managing one of the business corporations stipulated in the Turkish Commercial Code[2] (the “TCC”) for such collaboration will not provide the speed and flexibil...

Escrow Agreement Practices in Turkey

Escrow Agreements which allows securing the payment of obligations by transferring to the Third Party (Escrow Agent) is a method which has been commonly used in United States of America (“USA”) since the 1850s. Recently, Escrow Agreements have become one of the most preferred contract systems in Turkey since it allows to secure the payments, especially on conditional contracts. In this Article, we will be focusing on legal characteristics and key elements of Escrow Agreem...

Control Regime of Mergers or Acquisitions within the Context of Turkish Competition Law

1. IntroductionTurkish Competition Law audits ex-post (after the incident) the abuse of dominant position and/or damaging the competitive market via agreement, concerted practice or decisions of undertakings that are active in the certain markets; it also audits ex-ante (before the incident) the competition by subjecting the possible concentration in the sector caused by merger or acquisitions to permission.It is possible for an undertaking to dominate the certain market or t...

Overview of Project Finance and as a Security Device “Subordinated Loans” and its Reflection in Practice under Turkish Law

Abstract: Smart buildings, large airports, sports stadiums, power plants or in broad sense energy infrastructures that provide renewable energy; these mega constructions permanently require robust finance due to the enormous risk that the project owner bears the whole time. Not only a single company but widespread participation with various finance/banking corporations along with joint venture/s and mostly States must gather to achieve such projects. The subordinated loan com...

An Easy Remedy in the Aviation World: IDERA and its Implementation in Turkey

Following a long history in accomplishing the signing and the ratification process, on December 1, 2011 the Convention on International Interests in Mobile Equipment (“Convention”) and the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment (“Protocol”) (“CTC”) came into force in Turkey.The CTC and the qualifying declarations made by Turkey already have the force of law and prevail any conflicting leg...

Twin Peaks Approach to Financial Regulation

Jurisdictions such as the United Kingdom, the Netherlands, South Africa, and Australia have substantially reformed their banking and financial sector regulators by adopting a "twin peaks" regulatory structure.The global financial crisis did not affect the Netherlands and Australia as much as it did the United States and the United Kingdom. This does not have to do with only the regulatory structure but also the two markets that have invested in the securitization as...

Is it Sufficient? : Application of the New York Convention

Arbitration has become one of the most applied alternative dispute resolution methods more and more every day due to long proceeding of domestic courts or concerns about neutrality and so on. What makes changeling of the arbitration system is enforcement of an arbitral tribunal award. Undeniably, the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) is one of the cornerstones of the international arbitration ...

Different Types of Free on Board (FOB) Contracts

Over the past years, international trade overseas has been increasing as the day goes on due to the crucial impacts of globalization. As a result of this, trade companies require special trade terms to apply their contracts in order to keep in step with the speed of international commerce transactions. Therefore, the International Chamber of Commerce (ICC)[1] has undertaken the duty and created INCOTERMS including main pre-prepared contacts such as Free on Board (FOB) contrac...

Responsibility of Search Engines

IntroductionSearch engines have a central meaning for the meaningful use of the Internet. You override the Gatekeeper feature to access information available on the Internet. Only when something is executed on a search engine does it really exist for the normal user. The importance of these services for the fulfillment of individual and social information law cannot be ignored and should be universally accepted. This central role has called on the government to play an import...

Request for Disclosure of User Data by Turkish Authorities

The meshing of space and cyberspace for corporations and businesses moved most of relevant pieces of evidence to cyberspace. In many cases, if not all, electronic evidence has undisputed importance to prove parties’ claims. Administrative authorities also seek electronic evidence to perform their duties.This evidence shift to cyber-world has a profound impact on Information and Communication Technology (“ICT”) companies, which hold massive amounts of data of third parti...

Privacy Issues in M&A Transactions & GDPR

Introduction: A look at the relationship between M&A phases and privacy law Data protection and other privacy issues have been overlooked and underestimated for a long time and were thereby not at the top of M&A to-do list up until recent years. But after GDPR entered into force, the companies that are parties to M&A transaction started to pay more attention to data protection issues among other things considering the fact that the target company discl...

Achieving Corporate Governance with the Implementation of the Codes of Conduct

The concept of corporate governance has been discussed for decades to be achieved effectively. Many definitions have been made throughout the history and basically it is a controlling or direction system of companies.1 However it is not that simple, it also means separation of ownership and control, responsibilities of board of directors, duties of auditors and democracy in the public or private entities. Sir Adrian Cadbury (2000) defined corporate governance with a social pe...

Buyer Beware: Note to Turkish Companies Doing Business in Iran

The Evolving Relationship between Iran and TurkeyEver since the US withdrew from the Iran nuclear deal in May 2018 and re-imposed secondary sanctions against Iran in November 2018, anxious Turkish entrepreneurs have been lobbying the Turkish government to find solutions that would allow them to avoid these sanctions. The Turkish business world sees the cultural and geographic proximity of the two countries as a pathway for more significant economic opportunities in light of r...

Legal Dimension of Corporate Data Security

The existence of a strong interest[1]  on any data by natural or legal entities is called “data ownership”. It is seen that the identification of the data owner serves to ensure data security[2]. In the international doctrine where data ownership is examined, the definition of “corporate data” has emerged. Corporate data is exemplified as, but not limited to, commercial information of companies, information of employee and information of customer and supplier[3].Whil...

Electronic Signature Application in Turkey

The Turkish Electronic Signatory Law No.5070 (“E-Signature Law”) has entered into force as of 14 October 2004 upon its publication in the Official Gazette numbered 253551.E-Signature Law is drafted in line with the Europen Union (“EU”) Directive on electronic signatory No. 99/93 (“EU Directive”) which came into force in 1999. The EU Directive which set out a legal framework for EU member states was replaced on 1 July 2016 by The Regulation No.910/2014 on electr...

The Pos (Point of Sale) Usury

One of the types of crime created by the developing technology is “ The Pos Usury”. The usury which is regulated under article 241 of the Turkish Penal Code as one of the crimes, is considered as a serious fact for both the society and the state. In the Turkish Penal Code no. 5237, Article 241 of the crimes against society, usury: “A person who lends money to someone else to earn earnings is sentenced to imprisonment for two to five years and to a fine of up to five tho...

Discussion of Smart Contracts in the view of PECL

In 1996, an American cryptographer and legal scholar, Nick Szabo defined smart contracts as;“New institutions and new ways to formalize the relationships that make up these institutions are now made possible by the digital revolution. I call these new contracts "smart" because they are far more functional than their inanimate paper-based ancestors. No use of artificial intelligence is implied. A smart contract is a set of promises, specified in digital form, inclu...

European and Turkish Online Consumer Dispute Resolution

IntroductionTurkish legal system has seen positive moves in online arbitration lately for consumer disputes. Consumer dispute arbitration regulation was entered into force in line with the European Union Consumer Dispute System which has enabled Turkish consumers to resolve their issues without going through long and costly legal litigation procedures in Turkey.  Online Dispute Resolution Practice in Europe and TurkeyOnline Arbitration Resolution platforms are used in the Eu...

Turkey Proposes Another Tax Amnesty for Repatriation of Foreign Assets

The Turkish government on DATE sent a new draft law to the Turkish Parliament covering a new tax amnesty for repatriation of foreign assets such as money, gold, foreign exchange, securities, and other capital market instruments.This is Turkey’s third tax amnesty in three years. The measure is expected to be first ratified by the Parliament and then approved the President in the coming weeks.This latest measure reflects how Turkey repeatedly tries to tax the foreign assets o...

Arbitration Agreement under Uncitral Model Law and New York Convention

The most known method for dispute resolution is litigation all over the world, which could be also named as court jurisdiction, and it is based on the domestic law of the countries. Within the domestic jurisdiction, each country has its own legal system which differs from countries to countries. Although litigation is preferred method it is not very convenient because the workload of courts causes long judgments and sometimes the expenditures of courts are very high. Due to t...

Precautionary Arrest of Ships

The Turkish legislation on maritime trade law is inadequate. There are no special regulations under Turkish Law regarding the seizure of ships.Our main source of reference is the Enforcement and Bankruptcy Law[1], the Turkish Commercial Code[2], Law on Procedures of Collection of Public Receivables [3] and other laws.The general principles on law enforcement about maritime and see law are generally reviewed in Turkish Commercial Code numbered 6102. On the other hand, there ar...

Wrongful Behaviour and Directors’ Authority as a Constraining Mechanism

IntroductionDirectors, as principal officers, are empowered with an extensive authority to run a company and such an authority can be used for good or ill. The limitations placed on directors’ authority to enter into a binding transaction can constrain them regarding their involvement in wrongful behaviour. In order to determine the existence of such limitations, there is a need to examine how the company is typically run by the board of directors, and how their authority i...

CAATSA: A Brief Overview

I. INTRODUCTIONThe Countering America’s Adversaries Through Sanctions Act (“CAATSA”) requires the President to sanction targeted Iranian, Russian, and North Korean sectors, and penalize direct or indirect support of them. CAATSA was signed into U.S. federal law on August 2, 2017, and has imposed new economic sanctions on Iran, North Korea, and Russia. The Act has three sections: Title I – Countering Iran’s Destabilizing Activities Act; Title II – Countering Russia...

The Problem of Corruption in International Commercial Arbitration

IntroductionCorruption has existed for a long time, but its recent growth is significant. The World Bank Group`s report estimates that approximately $1.5 trillion in bribes are paid by businesses and individuals each year [1]. According to Transparency International Corruption Perceptions Index 2017, two-thirds of the 180 countries and territories in the world are highly corrupted [2]. Even in developed countries, the phenomenon of corruption is gloomy.These tragic figures pr...

Lifting the Veil of the Corporate in Turkish Law   

Introduction    Most of the law systems provide distinct and different legal personality to corporates than their members, shareholders, and partners. Type of legal personality and it’s specific limits of liability may depend on Classification of Corporate which regulated by law. In accordance with this principal Turkish Code of Commerce, Law no 6102 Article 125/2 declares as it quoted “Trading Corporations shall have their own legal personalities”   Pursuant to t...

Psychologıcal Harassment in the Workplace; Mobbing

1. Description of Mobbing:The aim is to intimidate, passivate, cool off, not to do or to dismiss the work carried out by one or more persons in the workplaces for the other person or persons; harms the personal values, professional status, social relationships or health of the victim or victims; malicious, deliberate, negative attitudes and behaviors. Mobbing, as well as people of the same level and,  can do against each other, especially; it is very common in hierarchical g...

Enforcement of ICSID Awards in Turkey in light of Recent Developments

This article is written for the purpose of enlightening the law society concerning the last developments in Turkey regarding the enforcement of ICSID awards. There was a debate about the enforceability of ICSID awards due to lack authorization appointment concerning validation of ICSID awards in Turkish Territory. In other words, until today Turkey did not assign any administrative body for certification of ICSID award despite the fact that the Washington Convention is ratifi...

Section 232 Investigations – U.S. Tariffs in Times of Trade Wars

While Section 232 of the Trade Expansion Act of 1962 is currently overshadowed in the news by other initiatives, it will likely remain one of the most critical tools used by the U.S. government in global trade – particularly in the current administration “trade wars.” As a result, it is imperative that we understand the issues inherent in imposing tariffs.A Section 232 investigation is conducted under the authority of the Trade Expansion Act of 1962. This act codified a...

How to Get a Business Based Stay Permit in the Netherlands?

Doing business in the Netherland is easily accessible for everyone, in accordance with the free labor market principles. Getting a stay permit based on these business efforts is another thing. The Dutch immigration policy is based on a restrictive immigration policy. This means that only in special circumstances if you fulfill certain detailed criteria, you can get a stay permit.In general, this means for third-country citizens that you need to provide an extraordinary benefi...