Turkish Law Blog

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...

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...

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...

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...

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...

The Legality of Subsidies in the field of Energy with regard to International Trade and Investment Law Part 1: An Overview

Starting Point: Subsidizing versus Free Trade From Paris Agreement to One Planet Summit all considerations are on how to assess the sustainability. Hereby is the green energy and therefore the renewable energy investments are crucial for the developing countries. However, the problem is how to accomplish it. Considering the dependence of developing economies on foreign direct investment on one hand and the state support need of energy providers on the other, it is not that e...

How to Enforce Turkish Judgements in the Netherlands

Once a party has successfully obtained a positive judgement in Turkey, in most cases this party shall desire to enforce the judgement. But what if the properties of the losing party are not in Turkey but in the Netherlands? Can the Turkish judgement be used for enforcement in the Netherlands?Enforceable judgments:Which types of Turkish judgments are suitable for recognition and enforcement in the Netherlands?Article 431 of the Dutch Code of Civil Procedure (CCP) applies only ...

Composition with Creditors in order to Avoid Bankruptcy according to Italian Bankruptcy Law

1.  THE COMPOSITION WITH CREDITORSA. The composition with creditors "with right reserved" (or "in blank")Art. 161, paragraph 6 of the Italian Bankruptcy Act provides that the entrepreneur may file a petition for composition with creditors, reserving its right to submit the proposal for composition with creditors, the relevant plan and the additional documentation required, within the terms set by the Court between 60 and 120 days, which may be extended by...

Silver Bullet of Mediation? Turkey Implements Mandatory Pre-Litigation Mediation in Commercial Disputes

On December 6, 2018, Turkey's parliament passed legislation requiring mandatory mediation for commercial disputes as a prerequisite before commencing trial (the ‘Act’).[1] The Act establishes two criteria for assessing whether a particular dispute falls within the scope of the mandatory mediation requirement. First, the dispute must involve pecuniary compensation or debts arising out of obligations. Second, the dispute must either fall within the scope of Article...

Updated Risk & Regulation, ICO Scrutiny in the U.S.

Unlike in the European Union, in the United States, there remains much ambiguity surrounding the regulatory framework concerning cryptocurrency exchange platforms. However, a review of the recent developments in this area seems to reveal a regulatory trend that will take hold in the U.S. in this area in the years ahead.Briefly, in the U.S., several federal agencies assert authority over cryptocurrency exchange platforms. Some of the more involved agencies are namely the Secur...

Implications of Article 647(1) of Polish Civil Code: Guideline for Construction Companies Planning to Enter to Polish Construction Market

This article aims at providing some guidelines to the foreign construction companies that plan to enter into Polish construction market about the famous Article 647(1) of the Polish Civil Code which regards to “joint liability” of investor for payment of remuneration due to the subcontractor for construction works performed by him. Rather than discussing the Article 647(1) from legal point of view, this article will focus on its implications within the organization of con...

Environmental Policies of European Union and Environmental Liability with regard to Polluter Pays Principle

1. INTRODUCTIONNature’s fight with humanity keeps continuing since the invention of fire. As late as, the environmental damages increased with developments in industry and technology, and serious consequences without recourse show up. Polluted air, chemical spills, and harmful use of land are a few examples of how industry can have a negative impact on our natural environment.When the environment as an issue came to the fore of public debate in the late of 1960s and early 1...

The Evaluation of the Right to be Forgotten

IntroductionThe Internet has given users unprecented resources as an emerging technology with almost no boundaries and limitless possibilities. Thanks to the Internet, it has become possible to obtain information about a person or an incident or, to communicate with billions of people located thousands of kilometres away in seconds. Content on the Internet can be seen, copied, recorded or shared by many people. Because of the Internet’s working principles and features, it c...

Economic Sanctions against Iran and Extraterritoriality of United States Laws & Regulations

     The United States has used sanctions programs for decades to exert influence over state and non-state actors that threaten their interests, the national security or violate international norms.  Since 1984 when the United States enacted sanctions against Cuba they have continued to expand and enforce their sanctions programs. In 2017, the United States had comprehensive sanctions regimes on Cuba, Iran, Sudan, and Syria, along with more than a dozen other programs tar...