Turkey updates

Arbitration & ADR

Contributed by Kolcuoğlu Demirkan Koçaklı Attorneys at Law
Application of competence-competence principle
  • Turkey
  • 13 September 2018

The United Nations Commission on International Trade Law Model Law adopts the principles of competence-competence and the separability of arbitration agreements. Under these principles, an arbitral tribunal may rule on its own jurisdiction, including any objection with respect to the existence and validity of an arbitration agreement. In 2001 the International Arbitration Law introduced these principles to Turkish legislation.

Jurisdictional objections based on arbitration agreements – an overview
  • Turkey
  • 19 July 2018

Under the International Arbitration Law, if a party initiates court proceedings to resolve a dispute which falls within the scope of an arbitration agreement, the counterparty can object to the court's jurisdiction based on said agreement. The submission of objections and the resolution of disputes concerning the validity of an arbitration agreement are subject to the Civil Procedure Law. If a court accepts such an objection, it will dismiss the lawsuit on procedural grounds.

Istanbul Arbitration Centre goes from strength to strength
  • Turkey
  • 19 April 2018

The Istanbul Arbitration Centre (ISTAC) has provided dispute resolution services to Turkish and foreign entities through arbitration and other alternative dispute resolution processes since the introduction of the ISTAC Arbitration and Mediation Rules in 2015. The Global Arbitration Review has listed ISTAC among the institutions worth a closer look, and this recognition has strengthened its aspiration to become a regional hub for dispute resolution for companies and individuals from Europe, Asia and the Middle East.

Possibility of obtaining preliminary attachment before filing or during enforcement lawsuit
  • Turkey
  • 15 February 2018

In 2015 the 15th Chamber of the Court of Appeals held that courts cannot grant a preliminary attachment on the ground of a foreign court judgment, unless this judgment had been enforced in Turkey. The court's reasoning was that foreign court judgments and foreign arbitral awards can be executed in Turkey only if and when they are enforced in Turkey. However, a dissenting opinion in this decision stated that courts can grant a preliminary injunction before an enforcement decision has been finalised.

Does an arbitrator's nationality constitute a restriction on appointment?
  • Turkey
  • 16 November 2017

In both domestic and international arbitrations in Turkey, parties are, in principle, free to choose their arbitrators. However, there are limits in this regard, including where the parties are of different nationalities. The Court of Appeals recently rendered an important decision in this regard, which provides an objective standard of proof for assessing doubts with regard to the independence and impartiality of arbitrators.


Banking

The rise of cryptocurrencies – an overview
  • Turkey
  • 13 October 2017

Cryptocurrencies were introduced to the Turkish market in July 2013 under the Law on Payment and Security Settlement Systems, Payment Services and Electronic Money. However, there are no limitations on or controls over cryptocurrencies, which is why many investors choose to invest their money in this area. While the interest in and impact of blockchain and cryptocurrencies are growing daily, the legal risks for blockchain and cryptocurrency platforms have yet to be fully understood.

New law on pledges over movable assets in commercial transactions
  • Turkey
  • 10 February 2017

In an effort to improve collateralisation options and facilitate the access of small and medium-sized businesses to financing, Parliament recently adopted a new law introducing significant changes to pledges over movable assets. The law introduces easier procedures for establishing a pledge over movable assets, such as through registration instead of transferring possession.

Amendments to cheque regulations
  • Turkey
  • 27 January 2017

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.


Company & Commercial

Contributed by Acar & Ergonen Law Firm
Recent amendments to Law on Movable Pledges in Commercial Transactions
  • Turkey
  • 02 July 2018

The Law amending Certain Laws to Improve the Investment Environment was recently published in the Official Gazette. In order to boost Turkey's investment environment, the law has introduced notable changes to a number of different laws, including the Law on Movable Pledges in Commercial Transactions.

New electronic notification requirements introduced
  • Turkey
  • 18 June 2018

The recent amendments introduced to the Notification Law have significantly broadened the scope of parties for which electronic notification is compulsory. Prior to the amendments, electronic notification was compulsory only for joint stock companies, limited liability companies and limited partnerships with capital divided into shares. In contrast, following the amendments, electronic notification is now compulsory for a wide range of real persons and legal entities.

Amendments to Commercial Code introduced
  • Turkey
  • 28 May 2018

The Law amending Certain Laws to Improve the Investment Environment was published in the Official Gazette on March 10 2018 with different enforcement dates for the various amendments. The amendments introduced to the Commercial Code and other related legislation are expected to result in a move towards using trade registries in the incorporation procedure, which should accelerate the process.

Capital contributions in joint stock companies
  • Turkey
  • 24 July 2017

Under the Commercial Code 6102, shareholders must contribute capital to commercial companies incorporated by law (the so-called 'contribution obligation'). A contribution obligation mainly arises at the time of the incorporation of or the capital increase in a commercial company. Shareholders generally prefer fulfilling their contribution obligations in cash and their liability is limited to the amount that they subscribed for under a company's articles of association.

New communique on signing articles of association before trade registries
  • Turkey
  • 06 February 2017

Following the entry into force of the Law Introducing Several Amendments in Different Laws to Improve the Investment Environment in August 2016, the Communique Regarding the Signing of the Articles of Association Before the Trade Registries has now taken effect. The communique sets out the procedures to be followed when incorporation documents are signed or executed before the trade registries.


Competition & Antitrust

Contributed by ELIG Gürkaynak Attorneys-at-Law
Family ties – Competition Board assesses Akarlılar family's acquisition of Mavi
  • Turkey
  • 02 August 2018

The Competition Board recently published its reasoned decision following its examination of the Akarlılar family's acquisition of negative control in Mavi Giyim Sanayi ve Ticaret AŞ. In order to assess economic unity, the Competition Board had to examine the parties' economic and family ties; the foundation, composition and nature of these ties; any independent activities; and the parties' unity of interest.

Competition Board concludes preliminary investigation into online sales
  • Turkey
  • 31 May 2018

The Competition Board recently published its reasoned decision following a preliminary investigation into allegations that Jotun Boya Sanayi ve Ticaret AŞ had violated Article 4 of Law 4054 on the Protection of Competition. The allegations concerned claims that Jotun had determined the resale prices and sales conditions of authorised dealers and restricted their online sales through a prohibitive provision in its dealership agreements.

Competition Board concludes preliminary investigation into air conditioning sector
  • Turkey
  • 29 March 2018

The Competition Board recently published its reasoned decision following a preliminary investigation into allegations that Teknosa had violated Law 4054 on the Protection of Competition by restricting İklimSA distributors from selling to the complainant. It was claimed that Teknosa had instructed İklimSA that if its products were sold to the complainant, Teknosa would halt the payment of distribution premiums and end its commercial relationship with İklimSA.

Competition Board concludes preliminary investigation into furnishing sector
  • Turkey
  • 25 January 2018

The Competition Board recently published a reasoned decision following its preliminary investigation into whether Yataş Yorgan ve Yatak San ve Tic AŞ had violated Article 4 of Law 4054 on the Protection of Competition. The allegations concerned the claim that Yataş had, through its best price guarantee campaign, restricted competition by acting in cooperation with independent retailers or pressuring them with abusive pricing policies.

Competition Board grants exemption to Tyre Industrialist Association's waste management plan
  • Turkey
  • 16 November 2017

The Competition Board recently published its reasoned decision on the Tyre Industrialist Association's application for an exemption for its Waste Management Strategies and Implementation Plan for Worn-out Tyres 2016 to 2020. The board decided that the association's proposal would not limit competition in a manner which would violate Law 4054 on the Protection of Competition and granted an individual five-year exemption.


Employment & Benefits

Contributed by Gün + Partners
Supreme Court rules that borrowing money from customer is just cause for termination
  • Turkey
  • 27 June 2018

The Supreme Court recently issued a decision concerning an employee's dismissal for borrowing money from their employer's customer. The Supreme Court reversed the first-instance labour court decision and ruled that the termination was lawful based on the fact that the employee had acted against the rule of integrity and honesty and damaged the employer's reputation.

Procedural changes in labour cases
  • Turkey
  • 20 June 2018

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.

Proposed amendments to automatic enrolment in private pension plan system
  • Turkey
  • 28 March 2018

The Amendment Act of August 25 2016 introduced the automatic enrolment of employees in private pension plans. As a result, employees under the age of 45 must be enrolled in a private pension plan as part of a pension agreement between their employer and a pension company. As the majority of employees have withdrawn from the system, the Ministry of Finance recently prepared a draft omnibus law which introduced new provisions regarding automatic enrolment in the private pension plan system.

Amendment of regulation regarding employee consent for overtime
  • Turkey
  • 03 January 2018

Overtime in Turkey is regulated by the Labour Act and the Regulation on Overtime. Following criticism from legal scholars, the Regulation on Overtime was recently amended. The amendment has clarified that an employee's written consent for overtime can be obtained through an employment contract or during the employment relationship if needed. Therefore, obtaining employee consent at the beginning of each year is no longer required.

Labour Courts Act comes into effect
  • Turkey
  • 29 November 2017

The Labour Courts Act, which was recently published in the Official Gazette, aims to ease the judiciary's workload and accelerate the judicial process in employment cases. The act has introduced a number of changes, the most important of which include mandatory mediation for employers and employees before initiating lawsuits, an amended procedure for reinstatement cases and a reduced statute of limitations of five years for several types of compensation.