Turkish Law Blog

Arbitration Agreement under Uncitral Model Law and New York Convention

The most known method for dispute resolution is litigation all over the world, which could be also named as court jurisdiction, and it is based on the domestic law of the countries. Within the domestic jurisdiction, each country has its own legal system which differs from countries to countries. Although litigation is preferred method it is not very convenient because the workload of courts causes long judgments and sometimes the expenditures of courts are very high. Due to t...

Precautionary Arrest of Ships

The Turkish legislation on maritime trade law is inadequate. There are no special regulations under Turkish Law regarding the seizure of ships.Our main source of reference is the Enforcement and Bankruptcy Law[1], the Turkish Commercial Code[2], Law on Procedures of Collection of Public Receivables [3] and other laws.The general principles on law enforcement about maritime and see law are generally reviewed in Turkish Commercial Code numbered 6102. On the other hand, there ar...

Wrongful Behaviour and Directors’ Authority as a Constraining Mechanism

IntroductionDirectors, as principal officers, are empowered with an extensive authority to run a company and such an authority can be used for good or ill. The limitations placed on directors’ authority to enter into a binding transaction can constrain them regarding their involvement in wrongful behaviour. In order to determine the existence of such limitations, there is a need to examine how the company is typically run by the board of directors, and how their authority i...

CAATSA: A Brief Overview

I. INTRODUCTIONThe Countering America’s Adversaries Through Sanctions Act (“CAATSA”) requires the President to sanction targeted Iranian, Russian, and North Korean sectors, and penalize direct or indirect support of them. CAATSA was signed into U.S. federal law on August 2, 2017, and has imposed new economic sanctions on Iran, North Korea, and Russia. The Act has three sections: Title I – Countering Iran’s Destabilizing Activities Act; Title II – Countering Russia...

The Problem of Corruption in International Commercial Arbitration

IntroductionCorruption has existed for a long time, but its recent growth is significant. The World Bank Group`s report estimates that approximately $1.5 trillion in bribes are paid by businesses and individuals each year [1]. According to Transparency International Corruption Perceptions Index 2017, two-thirds of the 180 countries and territories in the world are highly corrupted [2]. Even in developed countries, the phenomenon of corruption is gloomy.These tragic figures pr...

Lifting the Veil of the Corporate in Turkish Law   

Introduction    Most of the law systems provide distinct and different legal personality to corporates than their members, shareholders, and partners. Type of legal personality and it’s specific limits of liability may depend on Classification of Corporate which regulated by law. In accordance with this principal Turkish Code of Commerce, Law no 6102 Article 125/2 declares as it quoted “Trading Corporations shall have their own legal personalities”   Pursuant to t...

Psychologıcal Harassment in the Workplace; Mobbing

1. Description of Mobbing:The aim is to intimidate, passivate, cool off, not to do or to dismiss the work carried out by one or more persons in the workplaces for the other person or persons; harms the personal values, professional status, social relationships or health of the victim or victims; malicious, deliberate, negative attitudes and behaviors. Mobbing, as well as people of the same level and,  can do against each other, especially; it is very common in hierarchical g...

Enforcement of ICSID Awards in Turkey in light of Recent Developments

This article is written for the purpose of enlightening the law society concerning the last developments in Turkey regarding the enforcement of ICSID awards. There was a debate about the enforceability of ICSID awards due to lack authorization appointment concerning validation of ICSID awards in Turkish Territory. In other words, until today Turkey did not assign any administrative body for certification of ICSID award despite the fact that the Washington Convention is ratifi...

Section 232 Investigations – U.S. Tariffs in Times of Trade Wars

While Section 232 of the Trade Expansion Act of 1962 is currently overshadowed in the news by other initiatives, it will likely remain one of the most critical tools used by the U.S. government in global trade – particularly in the current administration “trade wars.” As a result, it is imperative that we understand the issues inherent in imposing tariffs.A Section 232 investigation is conducted under the authority of the Trade Expansion Act of 1962. This act codified a...

How to Get a Business Based Stay Permit in the Netherlands?

Doing business in the Netherland is easily accessible for everyone, in accordance with the free labor market principles. Getting a stay permit based on these business efforts is another thing. The Dutch immigration policy is based on a restrictive immigration policy. This means that only in special circumstances if you fulfill certain detailed criteria, you can get a stay permit.In general, this means for third-country citizens that you need to provide an extraordinary benefi...

Digital Asset and Digital Heritage

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

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

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

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

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

Blockchain Law

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

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

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

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

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

Convertible Loan and Convertible Equity Agreement for Angel Investors and Startups

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

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

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

Contractual Relationship between Data Controller and Data Processor in Turkish Law

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

The Exigence of a Novel Approach to Corporate Governance

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

Will the California Consumer Data Privacy Act Affect Your Business?

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

Concerted Practices in the Context of EU Competition Law

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

Data Protection in Turkey

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

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

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

Essential Facility Doctrine of EU Law

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

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

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

New Law Field Rising on Top of Unicorns: Startup Law

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

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

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

Abuse of Form Requirements during Property Transfers in Turkey

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

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

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

Biopiracy and Related Legal Issues

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

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

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

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

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

FIRRMA’s Implications on Foreign Investment into the United States

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

Shareholders’ Prohibition of Competition in Joint-Stock Companies

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

Pandora’s Box: GATT Article XXI Security Exceptions

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

The Registry of Data Controllers in 15 Questions

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

New Approach on EU Competition Law-Effect Based Approach

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

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

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

Fiscal Law: International Aspects of Doing Business in the Netherlands

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

To What Extent Trademark Law Should Protect Colours?

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

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

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

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

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

Delay Penalties in Public Procurement Contracts

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

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

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

The Elective Residence Visa for Italy

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

The Most Recent Developments about Turkish Citizenship through Investment Laws

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

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

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

Aviation Safety in EU: Drones

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

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...

The Shift Towards a “Risk-Based Approach” with GDPR: Critical Assessment of its Advantages and Disadvantages

Introduction As Gellert notes that ‘data protection is first and foremost a legal framework for the regulation of the risks stemming from the deployment of Information and Communication Technologies into society (and more in particular, the data processing operations they allow for)’[1], risk-based approach is not a new concept in EU data protection framework but it is now much more visible with General Data Protection Regulation (GDPR)[2].[3] In particular, articles 24 a...

Harmonising the Patentable Subject Matter in Computerimplemented Inventions: Why do the UK and the EU Approaches Superior to the US?

INTRODUCTIONFor decades, as a consequence of increasing number of patent applications in the area of computerimplemented inventions, IP practitioners, courts, patent offices across the world have been confused with the challenge of assessing “patentable subject matter”. Varying interpretations and diverging case law for computer-implemented inventions have led to different applications of claims in each jurisdiction.In the late 1990s, the United States of America (USA) ex...

The Prospects for Successful Regulation in the Public Interest for Artificial Intelligence

1.     REGULATION 1.1. Regulation and its Reasons to Exist Although the term ‘regulation’ has been defined in a number of ways, it is generally defined as a set of rules made by state intervention, thus in the sense of governmental activity.[1] The term ‘regulation’ can be used in the following senses as well: as deliberate state influence[2], as all forms of social and economic influence[3] or as a specific set of commands.[4]The existence of different meani...

New Rising Star: Implementation of the Mediation System under Turkish Legal System and its Development

Abstract: In our times, Alternative Dispute Resolution (hereinafter “ADR”) is getting more and more crucial. In particular in the countries where their standard legal system, most likely litigation, is dealing with an enormous burden of conflicts. This devastating burden time-to-time might generate a substantial weight to overcome by the courts and the jurists of that country; however, mostly that affects the efficiency of the judicial system and the trust of the privat...

Data Protection Authority Announced the Starting Dates to Register with the Data Controllers Registry

The Data Protection Authority announced the starting dates for the obligation to register with the Data Controllers Registry ("VERBIS"). You may find below explanations regarding the framework of the data controllers’ obligation for registration to the VERBIS.ObligationBased on the Turkish Data Protection Law no. 6698, natural or legal persons (i.e. companies) who process personal data shall register with VERBIS prior to commencing processing such personal...

Increasing Benefits by Performing Your Corporate Housekeeping Duties

Performing the annual corporate housekeeping of your company will bring various benefits for the company, its bodies and authorized individuals. Though it may be missed out easily by the companies, actually it is easier to duly handle the procedures by considering your effectiveness and the benefits at the end of the day. We can simply count the main trivets of the corporate housekeeping, as doing ordinary general assembly meetings, keeping updated your representation docume...

The Implementation of the Regulation regarding the Using of Competitors’ Information on the Comparative Advertisements Has Been Postponed

The last regulation which regulates the advertisement practices in Turkey based on the Law on the Protection of the Consumer titled “Commercial Advertisements and Unfair Commercial Practices” (“Regulation”) was published in the Official Gazette in 10 January 2015. Many provisions of this new Regulation came into force as of the publish date, but somehow a significant one did not.Article 8 of the Regulation allows for comparative advertisements provided that the specif...

Economics v Human Rights: Intermediary Liability for Free Speech, Copyright and Privacy

Nowadays, access to the information as fast as possible is crucial for the individuals of the Internet era.1 As per the most recent report of UK Government, in the UK, 89% of the adults had recently connected to the Internet in the first quarter of 2017.2 From a wider angle, as per the report of the International Telecommunication Union, in 2017, 48% of the world population used the internet with 81% of developed countries to use it whereas this percentage was only 41% of dev...

The Role of Intellectual Property Law in The Fashion Industry: An Analysis of the Legal Framework in Various Jurisdictions

Fashion Industry and the Role of Intellectual PropertyThe economic significance of the fashion industry all around the world is undeniable. In 2017, the United States’ apparel and footwear market were valued at 341.626 billion US dollars[1] whereas the same market was valued at 324.572 billion US dollars[2] for Western Europe. From a commercial perspective, it is crystal clear that the industry is massive, but these numbers also indicate the social importance that society...

AI Personhood: A Futuristic Approach

AI is becoming highly autonomous by day and acquiring more and more cognitive abilities. It cannot be denied: AI has already become a part of society. Since ethics and legal rules are the underlying ingredients of a functioning society; where does AI fit in to all of this? This is a dilemma that is being tackled by many; from philosophers to lawyers, from tech experts to visionary leaders.One thing that is clear is that the current set of rules are inadequate and they need to...

Step into a Big World through a Small Island Malta

Malta, as one of the smallest countries in Europe, is an open door to a big world. It is possible to summarize the leading advantages of Malta within the following topics:Opportunities for Turkish Local Technologies to Open up into Foreign MarketsMalta is a renowned country within the community of tech professionals and enthusiasts. Three government bills on DLT/Blockchain has been approved by the Maltese Parliament a while ago. Therefore, Malta became the first country in th...

“Mediation” in Turkish Labour Law Judgments as a Litigation Condition

The Labour Courts Law No. 7036, which was adopted on 12.10.2017 in the Turkish Grand National Assembly, entered into force in the Official Gazette numbered 30221 and dated 25.10.2017, thus abolishing the old Labor Courts Law numbered 5521 and bringing its application to an end.The Labor Courts Law which entered into force; in addition to the issues related to Establishment, Organisation and Working Conditions, it has also brought a number of new innovations as regards applica...

Establishing a Liaison Office in Turkey and its Commercial Advantages

IntroductionTurkish laws allow foreign companies to open liaison offices to do required research in their industry. These offices cannot carry out commercial activities. Here, the aim is to enable foreign companies to discover the potential in the domestic market, do research on investment opportunities and create new opportunities for themselves by conducting business activities in one of five different fields. Thus, it is possible to attract more foreign investment into Tur...

Legal Liability of Passenger seated in Emergency Exit Seat

I. IN GENERAL1. Emergency Exit Seats and Why Passengers Prefer ThemIn line with the progress made in the transportation sector and in technology, comfort in commercial aircraft nowadays has improved and aircraft seats, the first examples of which were made of wicker, have evolved considerably. Notwithstanding the improved facilities, some people prefer seats next to emergency exit doors, in order to enjoy a wider legroom. This is because the legroom of seats located next to e...

A Review of American Institute for International Steel Inc. v. U.S.: What are the Implications of President Donald Trump ’s Decision to Double Tariffs on Turkish Steel Imports?

Turkey is a major exporter of steel to the United States. In fact, Turkey ranked 6th as a source of steel imports for U.S. domestic consumption in 2017.[1]Yet, on August 10, 2018, President Trump doubled the tariff on steel imported from Turkey from 25 percent to 50 percent as part of a broader policy of strengthening the domestic steel industry by reducing steel imports.[2] Interestingly enough, imports from Turkey were penalized more than those from other countries that ha...