Turkish Law Blog

 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...

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 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...

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...

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...

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...

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...

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 ...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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...

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 ...

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...

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...

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...

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...

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...

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...

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...

 “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...

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...

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...

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...

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...