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Turkish Law Blog

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 ...

Data Protection under the Data Protection Act 2018 with General Data Protection Regulations

The Data Protection Act 2018 (“DPA 2018”) replaced and repealed the previous Data Protection Act 1998 and it became UK law on 23 May 2018.[1] This new Act came into force as the primary piece of data protection legislation in the UK. The goal of the new act is to modernise data protection laws in order to ensure they fit for the increasingly digital society and economy.[2] It provides a modern and comprehensive framework by setting new standards in order to protect person...

Impact of Interruption of Limitation Period on Joint and Several Debtors

SummaryAlthough joint and several indebtedness exists in different legal systems, there is not a consensus regarding its character. According to “principle of plurality of obligatio” taken as basis under Turkish Law, debtors who are jointly and severally liable for an obligation, may be subject to different provisions. Notwithstanding, pursuant to Article 155/1 of Turkish Code of Obligations, if the statute of limitation is interrupted against one joint and several debtor...

Regulations and Final Amendments on the Protection of the Value of Turkish Currency

Decree No. 32 on the Protection of the Value of Turkish Currency (Decree No. 32) prepared by the Council of Ministers and published on the Official Gazette dated 11 August 1989 and numbered 20249, enacted on the Law No. 1567 on Protection of the Value of Turkish Currency published in the first years of the Republic of Turkey, has been amended by the decree of the President of Republic on the 13th of September 2018. This amendment has been implemented by adding a new subparagr...

International Investment Law: ICSID Arbitration and Annulment Mechanisms

International investment law has been designed to protect the secure flow of capital and relatedly to ensure the sustainability of investment projects.[1] Such definition of investment projects includes both portfolio investment and foreign direct investment.[2] These projects could only be protected by safeguarding the interests of actors who make these transactions. International investment law aims essentially to ensure the protection of foreign investors from the decision...

First Major Breach of the GDPR: France Fined Google €50.000.000

€50.000.000 that fined to Google by the French authorities in consequence of the breach of the GDPR demonstrates the GDPR’s quick entrance to the field, which has been in force for only less than a year. Thereby, the first major breach since the GDPR has come into force has been occurred and the administrative fine regulated under the GDPR has been imposed thereafter.As “personal data” changed dimension over time, the need to modernise the principles recognised in Dir...

A New Era in Payment Systems

Following the increased use of alternative payment and monetary systems, The Law on Payment and Security Reconciliation Systems, Payment Services and Electronic Money Organisations numbered 6493 (the “Law”) has entered into force as of 27 June 2013, upon its publication in the Official Gazette numbered 28690.The Regulation on Payment Services and Electronic Money Issuance and Payment Institutions (“Regulation”) and the Communiqué on the Management and Supervision of ...

Advantages and Disadvantages of the Ad Hoc Arbitration

IntroductionToday, arbitration plays a significant role on resolving international commercial disputes. According to Rene David, arbitration can be defined as a device whereby the settlement of a question which is of interest for two or more persons, is entrusted to one or more other persons – the arbitrator or arbitrators – who derive their powers from a private agreement, not from the authorities of a State and who are to proceed and decide the case on the basis of such...

Confidentiality Barriers in Online Consumer Mediation

AbstractAs a result of the globalization, cross-border trade and international disputes have increased. Accordingly, alternative dispute resolution mechanisms have been applied to settle these disputes such as mediation. Mediation provides a neutral and objective platform to solve the disputes in shorter time and affordable way. Mediation is preferred not only for business disputes but also this mechanism is applied for consumer cases. In current, online shopping is trendy an...

The Emergency Arbitrator (EA) Procedure

The Emergency Arbitrator is a set of provision established by ICC, in order to give effect to the arbitral proceedings. Due to rush and the need of taking immediate action in highly active commercial life, this new set of provisions is urgently needed. Considering that the commercial life has its own risky parts needing immediate intervention; the EA procedure guarantees the immediate intervention needed, in order to reduce the potential damages such as financial loss, or, th...

Acquisition of Turkish Citizenship by Investment

In GeneralCitizenship is described as the political and legal connections that connect people to States.[1] No doubt having a Turkish passport does have certain benefits to its holders especially for its geographic and political conditions making it a gate for the Europe. On the other hand the value of the immovable property over the years has increased consistently.The types of citizenship are two-fold: acquisition of citizenship at birth and acquisition of citizenship throu...

A Review of Article 649 of Polish Civil Code: Guideline for Construction Companies Planning to Enter to Polish Construction Market

Following the first article of the author regarding Article 647 of Polish Civil Code, this article provides an overview on Article 649 of Polish Civil Code with the same aim of providing some guidelines to the foreign construction companies that plan to enter into Polish construction market.  The last version of Article 649(1) in force and its free translation in English are given below.Art. 649 (1)1. Gwarancji zapłaty za roboty budowlane, zwanej dalej „gwarancją zapłat...

Cryptocurrencies and Turkish Legal Framework

With the technological developments, everything started to become digital. Therefore suddenly digital coins in other words cryptocurrencies entered into our world. Although, cryptocurrencies gains importance day by day, Turkish law does not recognise or regulate cryptocurrencies.Yet with the decreased amount of demand to cryptocurrencies, there are announcements made by various governmental authorities in connection with the cryptocurrency trade which are explained below resp...

Handbook for Foreigners to Conduct a Banking Business Under Turkish Legal System: Establishment of a Subsidiary

Abstract: This article essentially aims to present the conditions for foreigners in establishing a banking business in Turkey. To this end, Turkish Code on Banking Law numbered 5411 (hereinafter “TBC”) shall be elaborated along with other necessary codes, ordinances and circulars, subjecting the major type of the institution as subsidiary. Admittedly, almost every national banking system has been in a change in the aftermath of the last global financial crisis emerged bet...

Comparison of Remarkable Differences in the Sanctions System of EU Competition Law and US Antitrust Law

1. IntroductionDifferences between the US and in EU, concerning laws, and jurisdictions with the contribution of their backgrounds leads to follow different approaches in common issues, inevitably. Although in certain points they come together- like sharing similar aims; prevention, punishment and deterrent anticompetitive behaviour, their sanctions systems indicate significant differences. In this essay, primarily we will be looked at briefly developments and goals of the EU...

The Recent Changes in the Turkish Foreign Direct Investment Regulations

Transition to the Electronic System and Application ProceduresThe Regulation to make Amendment to the Regulation for Implementation of the Foreign Direct Investment Law (‘the Regulation’) has been published in the Official Gazette on 1 June 2018. The Ministry of Trade (‘the Ministry’) aims to digitally receive the forms that required to be filled rather than on paper form. This article looks into the primary alterations that were made on the Regulation for Implementat...

Turkish BITs and Applicable Law to the BIT Disputes

Bilateral Investment Treaties (BITs) are international agreements concluded by and between two states to regulate the terms and conditions for the investments made by an investor of a contracting party in the other’s jurisdiction. According to the database of the United Nations Conference on Trade and Development (UNCTAD) there are 2369 BITs that are in force as of January 2019 all around the world. Turkey’s share in the total amount of the BITs has reached to 128, 110 of...

Assisted Negotiation according to Italian Law

1. Assisted Negotiation Assisted negotiation is an alternative dispute resolution institution consisting of a contract (or agreement) by which the parties undertake to settle a dispute amicably with the assistance of lawyers who are duly registered in the bar or who are part of the public administration attorney's office.The agreement must contain, both the deadline agreed by the parties for completion of the procedure, which may not be less than one month and more th...

Battle on the Big Screen: A Call for the Turkish Competition Authority to Launch an Investigation into the Dispute between MARS and Turkish Film Producers

1. Facts and Allegations Turkey welcomed the new year with a furious debate over the box office revenue allocation between film producers and CJ CGV MARS [hereinafter MARS], the most influential undertaking in the domestic Turkish film industry. Producers have complained that their share from the sale of tickets has not increased for five years, remaining at between 4.5-5 Turkish Lira per ticket sold. They have condemned MARS for bundling movie tickets with popcorn and bevera...