Asena has been with the firm since 2011 and is a senior associate. Her practice focuses on dispute resolution, employment, business crime and anti-corruption.
She advises and represents both national and international clients in their commercial law, law of obligations, construction and real estate related disputes. She has a specific focus on business crimes and she handles various disputes where the dispute contains the application of both civil and criminal law principles. She also actively involves in proceedings where recognition and enforcement of foreign judgments/arbitral awards is sought.
She is also experienced in employment law. She provides consultancy and represents clients in relation to a wide range of employment law issues including preparation and negotiation of employment contracts, personnel management, reemployment and unjust competition actions.
Mandatory mediation for commercial disputes was recently introduced by the Law on Legal Procedures to Initiate Proceedings for Monetary Receivables arising out of Subscription Agreements. As a result, an application for mediation is a condition for bringing a legal action before the courts, and a case will be dismissed on procedural grounds if the claimant in a commercial action fails to fulfil this obligation.
The Law on the Amendment of Some Laws to Improve the Investment Environment introduces new provisions regarding the issuance of cheques and bounced cheques. The omnibus act amends the Commercial Code and introduces a serial number issued by the bank and a two-dimensional barcode to the mandatory elements on cheques. Further, banks now have extended obligations regarding the opening of cheque accounts.
The COVID-19 outbreak, which was declared a pandemic by the World Health Organisation on 11 March 2020, the date on which the first case in Turkey was discovered, has inevitably had a significant impact on economic life. The measures taken to minimise this impact eventually resulted in labour law having to be restructured according to the pandemic's circumstances. In this respect, the duration of compensatory working, which is stipulated under the Labour Act, has been increased.
The Law on Minimising the Impacts of the New Coronavirus (COVID-19) Outbreak on Economic and Social Life and the Amendment of Certain Laws recently entered into force. The most significant amendments include the prohibition on employers terminating employment contracts for three months as of 17 April 2020 and the provision that employers can impose unpaid leave without an employee's consent during the three-month prohibition period.
The coronavirus pandemic will inevitably affect Turkish labour law; as part of employers' duty to protect employees, they must take occupational health and safety measures and protect employees' health and physical and mental integrity. This article outlines employers' duties in this respect.
At the beginning of each year, the minimum wage, severance payments and administrative fines prescribed by the Labour Act are revised. On 1 January 2020 the changes for 2020 came into effect. Among other changes, the monthly minimum wage rate has increased from TL2,558.40 (gross) to TL2,943.00 (gross).
The Supreme Court General Assembly on the Unification of Judgments recently concluded that penalty clauses agreed for the unjust termination of a fixed-term employment contract before its end date are valid and enforceable even if the contract is deemed to be of an indefinite nature due to a lack of objective conditions required by law to conclude fixed-term contracts.
Applying for mediation was recently made a prerequisite when filing a lawsuit concerning monetary claims by employees or employers arising out of employment contracts, collective labour agreements or reinstatement claims. Mandatory mediation was introduced to accelerate legal proceedings and lower the costs in employment disputes.
The Supreme Court recently found that the failure of employees to use appropriate language in their written workplace correspondence with superiors or colleagues constitutes a valid reason for termination. The court held that although the actions of the employee in question had not been serious enough to constitute just cause for termination and deprive him of his termination benefits, the employer could not be expected to continue the employment relationship.
Minimum wage, severance payments and administrative fines prescribed by the Labour Act are revised at the beginning of each calendar year. The minimum wage rate was recently increased to TL2,558.40 (gross) and the maximum severance payment was increased to TL6,017.60 (gross). In addition, the rate of administrative fines was increased by 23.73% compared with 2018.
The recently published Presidential Executive Decree 85 amended Decree 32 on the Protection of the Turkish Currency. In the field of employment law, it is unclear whether foreign nationals fall within the scope of the decree and how their salaries will be paid going forward. Since the decree uses the term 'Turkish residents', the general understanding is that it also applies to foreign employees, as they must have a residential address in Turkey in order to have a work permit.
The Labour Courts Act has introduced a number of changes and amended the appeal procedure for labour disputes. The legislature hopes to shorten the duration of actions which, by their nature, should be resolved as quickly as possible. Although it is still questionable whether these amendments will produce the anticipated returns in terms of reaching the desired duration for trial processes, they mark an important attempt to limit the two-phase appeal stage for certain cases.
A long-awaited legal arrangement on employees' automatic enrolment in private pension plans by their employers was introduced into Turkish law by way of an amendment law published in 2016. The amendment law adds new provisions to the Private Pension Savings and Investment System Act 2001. Accordingly, employees under the age of 45 will be enrolled in a private pension plan with a pension agreement between the employer and a pension company.
The Ministry of Justice recently prepared a new draft Law on Labour Courts and shared it with the relevant public institutions and organisations for review. The draft law aims to ease the judiciary's workload and accelerate the judicial process in employment cases. The most important amendment stipulated in the draft law is the introduction of a mandatory mediation phase. If the draft law is adopted, it will be mandatory for employees to apply for mediation before initiating certain lawsuits.
The Law amending the Enforcement and Bankruptcy Law and Other Laws recently came into force. The most significant amendments introduced to the Enforcement and Bankruptcy Law are the abrogation of the postponement of bankruptcy procedure and the adoption of a more efficient and functional structure for the composition with creditors procedure, which is a court-approved agreement between debtors and creditors.
Parliament recently enacted an omnibus bill which – among other things – introduced new provisions regarding the postponement of bankruptcy. As a legal mechanism open to the misuse of debtors, the limitation of applications for the postponement of bankruptcy has been on Parliament's agenda for some time. The changes aim to establish stricter norms for such applications and make filing for bankruptcy a more attractive option than postponement.
Under Decision 2480 on the Extension of the Suspension of Terms for the Prevention of Losses of Judicial Rights, the suspension of terms stipulated in Law 7226, which aimed to prevent any loss of rights in regard to trials due to the measures taken to combat the COVID-19 outbreak, has been extended. However, this date will be re-evaluated if the risk of spreading the virus is eliminated before the extension expires.
The Law on the Amendment of Certain Laws 7226 recently entered into force upon publication in the Official Gazette. Pursuant to Law 7226, the procedural terms will be suspended until 30 April 2020 in order to prevent any loss of rights in regard to trials due to the measures taken during the COVID-19 outbreak.
In a May 2019 decision, the Supreme Court General Assembly on the Unification of Judgments concluded that the plaintiff in a partial monetary action need not reiterate its claim for interest when increasing the value of the claim if it claimed interest for its principal receivables in the plaint petition and the claim of interest will automatically apply for the amount which is increased later on.
When the new Code of Civil Procedure was enacted in 2011, it introduced a new case type to Turkish litigation where plaintiffs file an action for receivables for an unquantified amount that is left to the courts to determine subject to dispute. This innovation in the litigation procedure raises questions regarding the instances in which plaintiffs should be deemed unable to calculate the size of their claims and what the courts should do when the receivables or damages are quantifiable.
Under Turkish law, there are two types of procedure in civil proceedings. Written procedure is the main and most common type, whereas the simple procedure, as the name suggests, is a simplified and expedited process. Following recent amendments, commercial cases worth less than TL100,000 are now subject to the simplified procedure in order to shorten the length of proceedings.
In order for an invoice to generate a payment obligation on its recipient, Turkish law requires that there be an obligatory relationship between the drafter and recipient. A recent case confirmed that even when the recipient of an invoice does not object to it and inadvertently records it in its accounting books, this does not result in a payment obligation unless the invoice has a legal basis.
The recognition and enforcement of foreign judgments and arbitral awards in Turkey is subject to the International Private and Civil Procedure Law, under which enforcement actions must be filed before the civil courts of first instance, including certain specialised courts. The Court of Appeals has generally adopted a single approach regarding the jurisdiction of specialised courts in enforcement actions, but a recent decision has created uncertainty in that regard.
The Council of Ministers recently enacted a decree-law that amends Banking Law 5411 by introducing a sub-paragraph into Article 160, which regulates the crime of embezzlement committed by bank officers. While the need to make this amendment may at first be questioned, it should be read in light of the background of the crime of banking embezzlement.