Turkish Law Blog

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...

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...

Overhauled Concordat Regime Opens a New Chapter for Turkish Bankruptcy Law

Bankruptcy postponement under the Turkish Bankruptcy Law was heavily criticised on the basis that it was open to manipulation. Critics also claimed the protections offered in this scope went beyond the legislators’ intentions due to systematic errors which had emerged in the process.Bankruptcy postponement was introduced to give debtors a final chance before being forced into bankruptcy, allowing them to put their business back on track without the pressure of collection pr...

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...

Liability of Trust in Group of Companies as per Turkish Commercial Code No. 6102

AbstractWith new Turkish Commercial Code (“TCC”) No. 6102[1], a new regulation came into force in Turkish jurisprudence called ‘liability of trust’ in group of companies with Article 209 which is stating the following:“In cases where the controlling company attains a level where its group reputation inspires confidence among the community or consumers, it shall be liable for any consequences of such.”[2]As the concerned law’s preamble confirms, Turkish Republic ...

The Turkish Court of Cassation's Infamous Decisions on Public Policy in Enforcement of Foreign Arbitral Awards

I.       IntroductionIn international commercial arbitration, parties to an arbitration proceeding are generally from different countries. Therefore, it is crucial for those parties that the arbitral award issued by the arbitral tribunal is enforceable and effective in different jurisdictions. For example, a prevailing party might want to benefit from the arbitral award by initiating debt collection proceedings in different countries where the losing party might have at...

Mediation Procedure as a Case Condition in the Adjudication of Turkish Labour Law

Mediation ProcedureThe application for mediation shall be made to the mediation office in the region where the defendant or one of the defendants reside, or to the mediation office in the region where the work has been conducted. If there is no mediation office established at such place, then it shall be made to an assigned chief clerk office.The mediator is determined by the office from the list provided to the presidency of committee. However, if the parties agree on anothe...

The Great Dilemma of the Companies: Share Buy-Back Decisions

While share buy-backs were used by other countries as a pay-out method for years, they were prohibited in Turkey until the end of 2009. Pursuant to Article 329 of the abrogated Turkish Commercial Code (the ‘TCC’) numbered 67621, it was unlawful for the joint stock companies to buy-back their own shares in exchange for any consideration in order to protect the capital and creditors’ interests, and also to prevent unequal treatment of shareholders. The share buy-back tran...

Amendments to Turkey’s Execution and Bankruptcy Law

Turkey’s new bankruptcy law, amid other legislative reform, aims to improve the country’s investment potential. Orçun Çetinkaya examines how the new law provides greater opportunity for debtors to recover their financial status.Amendments to the Execution and Bankruptcy Law and Other Certain Laws (also referred to as Enforcement and Bankruptcy Law) entered into force on 15 March 2018.Other amendments were also made to the Turkish Commercial Code, Civil Procedure Law, No...