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Turkish Law Blog

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...

Digital Asset and Digital Heritage

Rapidly developing technology brings benefits to our lives and brings along many legal problems. One of the technological developments is the reflection of social media; has become an indispensable part of our lives. In fact, it is a matter of fact that some people have started to make financial gains through social media platforms. All these technological developments have revealed the concepts of digital asset and digital heritage; but these concepts do not have very widesp...

Turkish Courts’ Approach to Public Policy as a Ground for Refusal of Enforcement of Foreign Arbitral Awards

I. IntroductionIn Turkey, foreign arbitral awards may be enforced pursuant to the provisions of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated June 10, 1958 (“New York Convention”) of which Turkey is a contracting state since July 2, 1992, or under the Act on Private International and Procedural Law No. 5718 (“Law No. 5718”). The requirements and procedure sought by the New York Convention and Law No. 5718 for enforce...

Not a Widely Enjoyed Right: Joint Stock Company Shareholders’ Right to Derivative Suit in Turkey

PreambleA derivative suit is a right granted to joint stock company shareholders, which was regulated under former Turkish Commercial Code No. 6762[1] and which is preserved in the “new” Turkish Commercial Code No. 6102[2] (the “TCC”) which came into force on 01 July 2012.The subject matter of the derivative suit is basically claiming compensation of losses incurred by the company if the founders, board members, executives or liquidators negligently violate their obli...

Blockchain Law

AbstractWhat is Blockchain is a distributed database in which blockchain information is recorded in blocks, in combination with encryption algorithms? Blockchain is a technology that can be traced, but not broken, built with a chained model. Blockchain technology, which has entered our lives with bitcoin, enables us to operate without a center. Transactions are provided directly between the buyer and the seller with this technology. In this sense, it would not be wrong to say...

Employer's Vicarious Liability for His Employee in the Context of English and Turkish Tort Law

Abstract Consistency in business life is far more important than it can be imagined and also trust in business is the cornerstone of relationships with customers, suppliers, employees, and others who have dealings with an organization. In tort law context, the burden of responsibility the employer has to bear on behalf of his employee, in a sense, is essential to maintain continuity in the business environment because of the imbalance power in their relationship where the emp...

Shipowner’s Right to Limit Liability and Breaking the Limitation under the 1976 London Convention

PreambleLimiting the liability of shipowners in maritime commerce has always been the subject of hot debates. On one hand, shipowners make considerable investments, due to the value of their ships, and therefore seek to obtain some kind of assurance that their investments will return profit. It is only fair that shipowners demand protection against the perils of sea in the form of limited liability.On the other hand, injured parties and claimants expect the compensation of th...

Convertible Loan and Convertible Equity Agreement for Angel Investors and Startups

We are getting much more exposed to the term ‘startup’ than the past. It would not be wrong to say that startups and their newly established culture are composing a new era and they are being more attractive day by day. However, what is the definition of ‘startup’? This question could be seemed simple, but it is one of the toughest questions to answer. When we look at the simplest definition, “A startup is an entrepreneurial venture which is typically a newly emerge...

Personal Data Protection under Turkish Law: An Overview of Compliance Projects

After Personal Data Protection Law number 6698 came into force (April 7, 2016) in Turkey, and following a two-year-transition period (which concluded on April 7, 2018), the compliance process has been initiated in regard to general principles and rules on processing of personal data.Only “personal data” – defined as “any information relating to an identified or identifiable natural person (“data subject”).” – is classified as protected under the Personal Data ...

Contractual Relationship between Data Controller and Data Processor in Turkish Law

Data controller and data processor which are the main subjects of the data protection law can be in a contractual relationship to sharing rights, privileges and responsibilities. Contrary to Article 28 of the GDPR, there is no statutory obligation of concluding a contract in order to determine the regime of the responsibility in Turkish Law[1].Pursuant to Article 12 of the Turkish Data Protection Law (no. 6698), in the case of processing of personal data by a data processor o...

The Exigence of a Novel Approach to Corporate Governance

I. IntroductionCorporate governance has been a matter of debate especially because of the significant corporate failures such as Adelphia, Enron, WorldCom, and other high-profile scandals1. Academic studies in this regard suggest that high profile scandals mainly arise as a result of poor corporate governance models2. It is correct, from both theoretical and practical point of views that corporate governance content ties the powerful governance to efficiency, performance, and...

Will the California Consumer Data Privacy Act Affect Your Business?

It is already well- known that the European General Data Protection Regulation (“GDPR”) has had an impact well beyond the borders of the European Union. Many businesses worldwide have taken privacy measures to comply with it. Turkey may have been on the “lucky” side because the Turkish Personal Data Protection Law (No: 6698) stems from the European Data Protection Directive, which was succeeded by the GDPR.Now, California has introduced legislation that -similar to GD...

Concerted Practices in the Context of EU Competition Law

I. Introduction“All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market…”[1] are prohibited by Article 101 of the Treaty on the Functioning of the European Union (hereafter TFEU). Article 101 of the TFEU deals with the connection between two or more undertak...

Data Protection in Turkey

This chapter contains legal history of the data protection in Turkey. In addition, in this chapter, data protection law that came in to force in 2006 is going to be analysed in addition to the specific information.1. Legal History of Turkish Personal Data Protection LawThe history of the data protection in Turkey began with the Council of Europe`s Convention in order to provide individuals with protection concerning the Automatic Processing of Personal Data. Even though Turke...

Reforming Investor-State Dispute Settlement: Reflections on the UNCITRAL Working Group III and Beyond

1. Why Reform ISDS?International investment law (IIL) is at a crossroads. An obscure legal domain virtually unknown for most of its hitherto existence, it came to prominence only after the surge of investor-State disputes filed by foreign investments against their host states from the late 1990s onwards. After twenty years, it is easily one of the fastest-changing and most topical international legal-political domains. Throughout the 80s and 90s, states have entered into (ver...

Essential Facility Doctrine of EU Law

1. Introduction The essential facilities doctrine (EFD) holds that dominant firms may incur antitrust liability if they do not provide access to their facilities, even to competitors, on a non-discriminatory basis where sharing is feasible and the competitors cannot obtain or create the facility on their own.(1) In other words, the essential facilities doctrine is a remedy which tackles the abuse of market power by a firm which holds a dominant position and refuses to deal wi...

Companies Providing Social Media Platforms are Cauhgt by “Withholding Tax” Radar

 “Online Advertising Services are included in the Scope of Withholding Tax”I. IntroductionIn accordance with technological, commercial and economic developments, services provided via the Internet and platforms created on it became widespread. Accordingly, commercial activities, especially advertising activities, performed on these platforms are being more and more critical and useful for commercial enterprises.In parallel with these developments, actions operated on abo...

New Law Field Rising on Top of Unicorns: Startup Law

Modern era changed how we grasp and mean business drastically.  In our elders’ period, the best possible chance to become successful in business life was to get a foot in the door of a well-established corporate company. Things have changed after entrepreneurs found ways to incubate and accelerate an idea to a billion-dollar valuation company. (As entrepreneurs we call it to become a unicorn*) If you grow that fast, you can't survive with ordinary business skills and manag...

The Role of the Takeover Panel and Code in Facilitating or Impeding Takeovers

I. IntroductionThe City Code on Takeovers and Mergers[1] regulates takeovers in the UK along with company law. Company law has mechanisms which are quite important in regulating takeovers. For instance, these mechanisms include schemes of arrangement regulations and the law of directors’ duties.[2] However, company law’s influence is narrow because of the existence of the Takeover Code and Panel in the UK. UK company law and capital market regulations do not have a role i...

Abuse of Form Requirements during Property Transfers in Turkey

Freedom of contract stems from the freedom of will principle in civil law. Accordingly, persons can reach any legal arrangement or consequence by adequately revealing their will in this respect, within legal limits. This principle is guaranteed under Article 48 of the Turkish Constitution and Article 26 of the Turkish Code of Obligations (“TCO”). Some contracts, on the other hand, are subject to form requirement under the Turkish Legal System. Form requirements are a mech...

United States to Terminate GSP Designation for Turkey: A Key Development to Affect Turkish Exports to United States

On March 4, 2019, the Office of the United States Trade Representative (“USTR”) announced that it would remove Turkey from the Generalized System of Preferences (“GSP”), which allows duty-free access to the U.S. market, reasoning that Turkey no longer qualify for preferential treatment because of its higher level of economic development.Turkey’s Growing Trade Spat with Trump AdministrationAugust 2018 saw that President Trump doubled the tariff on steel imported from...

Biopiracy and Related Legal Issues

What is Biopiracy? Who owns nature? This is one of the most important questions when dealing with biopiracy. Is it the humankind who shares the same land with the biological resources, a single individual or a group of people? More importantly, can your own nature?[1]  Biopiracy simply is the medium in which the rights of indigenous cultures to the natural reserves and traditional knowledge are ignored and replaced by individuals’, institutions’ or companies’ monopoly...

New VAT Filing Obligation for B2B Sales of Non-Resident Electronic Service Providers

Article 9 the Turkish Value Added Tax (VAT) Law on the “Party Liable for Tax” was amended in 2017. New amendment stipulated that VAT arising from services provided electronically by those without a residence, workplace, headquarters, or business centre in Turkey to individuals in Turkey who are not VAT taxpayers must be declared and paid by the non-resident electronic service providers.Accordingly, new regulation became effective for cross-border B2C transactions of non-r...

Regulating of Internal Directive about the Transfer of the Management and Representation Authorities and Its Effects on Joint Stock Companies

Regulating of Internal directive concept about the transferring of management and representation authorities is a new institution in Turkish law which was transferred to Turkish Commercial Law from the Swiss Code of Obligations.By regulating an internal directive based on Article 367 of Turkish Commercial Code, it provides an order for management organization, clarify duties and responsibilities of the persons who are being in management organization, transfer management and ...

FIRRMA’s Implications on Foreign Investment into the United States

I. Introduction – Executive Summary:On August 13, 2018, Congress enacted the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”) to strengthen and modernize the Committee on Foreign Investment in the United States (“CFIUS”). This legislative step expanded CFIUS’ authority by amending the list of covered transactions (“Covered Transaction”). CFIUS can now review real estate transactions of developed and undeveloped land and acquisition of non-co...

Shareholders’ Prohibition of Competition in Joint-Stock Companies

AbstractIn joint-stock companies law, it is prohibited for people who are involved in the decision-making mechanism of the company to carry out commercial transactions independently from the company within the work field of the company or to be involved in other ventures operating in the field thereof. This prohibition of competition as a principle includes the members of the board of directors of companies as well as other managers and is valid for the whole term of employme...

Pandora’s Box: GATT Article XXI Security Exceptions

The WTO has recently released its long-awaited panel ruling on DS512, a dispute between Russia and Ukraine concerning certain restrictions on traffic in transit.  As the respondent side defending its measures, Russia had invoked GATT Article XXI – the national security exception.  The reason why the outcome of this dispute was “long-awaited” is that the United States is also expected to invoke the same provision to defend its Section 232 tariffs on steel and aluminum ...

The Registry of Data Controllers in 15 Questions

It is specified under the Law No. 6698 on the Protection of Personal Data (the “Law”) that the Registry of Data Controllers (the “Registry”) shall be kept by the Board of Protection of Personal Data (the “Board”).Pursuant to Article 16 of the Law titled “Data Controllers’ Registry”, data controllers are under the obligation of registration with the Registry before commencing to process personal data. However, the Board may based on its objective criteria suc...

New Approach on EU Competition Law-Effect Based Approach

In recent years, Eu Competition Law has adopted the effect based approach. It is easily seen from recent decisions of the Court of Justice (hereafter called CJEU). CJEU began to leave per se illegal view in CJEU decisions about infringements in Article 101 and Article 102.Restriction by object is restrictions about agreements that have anti-competitive effect by its nature. The court does not have to demonstrate any actual or likely anti-competitive effect of these agreements...

Fiscal Law: International Aspects of Doing Business in the Netherlands - 2

Structuring an Organisation, Legal and Fiscal AspectsLegal ConsiderationsAs mentioned in Part I of this article, the nature of business activities and related legal forms will affect your choice how to structure your organisation. The existence of a Bilateral Investment Treaty (BIT) may furthermore substantiate this choice.Most BITs grant investments made by an investor of a contracting state in the territory of the other a number of guarantees, which typically include fair a...

Fiscal Law: International Aspects of Doing Business in the Netherlands

IntroductionExpanding a business abroad is a challenging idea. For some, this might even be a huge leap into the complete unknown. It, however, all starts with finding the right business opportunities. Additionally, a sound business case needs to be developed and put into practice. This means that there are many hurdles to take and many arrangements to make, which can be quite complex. Let alone dealing with all legal aspects that normally is something beyond the entrepreneur...

To What Extent Trademark Law Should Protect Colours?

I. Introduction Trademarks are used for identification in commercial life to a high degree. It is crucially important for businesses to identify and distinguish their goods from other businesses. As the Court emphasized;“… the essential function of a trademark is to guarantee the identity of the origin of the marked goods or service to the consumer… A trademark must distinguish the goods or services concerned as originating from a particular undertaking… regard must b...

Consequences and Things to do Regarding Law on Protection of Personal Data

Personal data, protection personal data, Personal Data Protection Act, and more generally, law on protection of personal data have become a popular and much debated field in Turkey in the last two years. For those involved in the matter, the interest dates back to earlier times; nevertheless, regardless of any involvement, everyone is somewhat familiar with the foregoing issues today.Actually, there is no “uninvolved” section in the society within this field. As the conte...

Application of the New York Convention 1958: Is Turkey Arbitration-Friendly Enough?

It may be said that the arbitral practice suffers from the different national laws’ grounds for refusing recognition or enforcement of foreign awards across contracted parties to New York Convention 1958. It is fair to say that, nowadays the states are competing to become the most attractive place for international arbitration in growing their potential in international transactions and business investments by making an effort to improve their arbitration rules with very le...

Delay Penalties in Public Procurement Contracts

Article 20 of the Public Procurement Contracts Law is about the contractor who is in breach with the public procurement contract. Accordingly, it is stated that in case that the contractor fails to perform the contractual work in accordance with the contract or the tender documents or fails to complete the works in due time, a delay penalty as stated with the tender documents shall be applicable.Delay penalty is a material sanction for the Contractor who is in breach with the...

Social Media and Freedom of Expression in the Workplace: What is the Current Practice in Turkey ?

Social media has tremendous impact in our lives and its use often and -somehow inevitably- extends into the workplace. Employer’s competing interest in limiting workers’ freedom of expression to avoid reputational damage or various liabilities. The tension between worker and employer interests bridges into the different section where the effectiveness of the current legal and regulatory framework in balancing these competing claims.I. Work Related Expression on Social Med...

The Elective Residence Visa for Italy

The elective residence visa allows to enter to Italy, for the purposes of stay, to the foreigner who intends to settle in Italy and is able to maintain himself independently, without having to rely on employment.For this purpose, the foreigner will have to provide:adequate and documented guarantees regarding the availability of a dwelling to be elected as a residence, extensive autonomous, stable and regular economic resources, which can reasonably be expected to continue in...

The Most Recent Developments about Turkish Citizenship through Investment Laws

As it is known, with the new amendments in the regulations enacted on September 19, Turkish government had reduced the minimum limit of required investments for foreigners to acquire Turkish citizenship. With these amendments, the thresholds of the different investment types to acquire citizenship dropped to one fourth or one sixth of the previous minimum limits. It is important to note that whoever wants to benefit from the opportunities of the recent amendments have to do n...

The Passive Freedom to Provide Services for Turkish Citizens in the EU

A. Introduction The subject of this article is the issue of the passive freedom to provide services for non-EU citizens, here especially regarding Turkish citizens. This article questions whether Turkish citizens have a right to asses the EU without any visa or at least getting a visa without high requirements. In particular, the Demirkan judgment of the European Court of Justice (ECJ, C-221/11) from 24.09.2013 – which is still one of the most important judgements regarding...

Aviation Safety in EU: Drones

1. What is Drone and Its Usage Areas?In technical terms, drones are Unmanned Aircraft Systems (UAS), as they are aircraft operated with no pilot on board. Nevertheless, everybody calls them drones. They can vary from very small aircraft as big as a fly (nano-drones weighing 10-20 grams) to very large ones such as the Global Hawk with its 15 tons, used by NASA for scientific purposes. Drone technology has developed in the last few years. Individuals, commercial entities, and ...