Egemen

Res. Assist.

One of the personality values enshrined within the scope of personality right is undoubtedly the right to the protection of one’s image. One’s image, or in other words a person’s image, is one of the substantial parts of the personality. Due to its close relation to the notions of person and personality, the existence of the right to the protection of a person’s image has been recognized in various legal systems. In some legal systems, the right protecting a person’s image has even been set out separately from the provisions protecting personality rights.A person may benefit from legal protection if the right to his/her image is violated. A person’s image has a characteristic that is separate from other personality values. That is, the violation of the right to the person’s image often constitutes a violation of other personality values as well. Moreover it is often that the person’s honour and dignity or private life is violated as a result of the violation of the right on the person’s image. This has led to debate on whether the right to a person’s image is an independent right.The first condition for a person to benefit from the legal protection afforded to him/her is that the form in question can be described as a “person’s image”. If the form in question cannot be deemed to fall under the scope of the concept of a person’s image, it is not possible for the person to benefit from legal protection. Therefore, it is necessary to draw the framework of the concept of a person’s image and to determine the scope of this concept.This article first describes the legal nature of the right to the protection of a person’s image. The views from German, Swiss and Turkish law on the right to the protection of a person’s image are outlined. After statements regarding the right to a person’s image, statements regarding the concept of a person’s image were made. In this context, the definitions of a person’s image are included in the doctrine and court decisions; the elements of a person’s image are stated and these elements are explained.The form obtained by a visual depiction of a person’s external appearance is expressed as a person’s image, if it allows the person to be recognized. In other words, a person’s image is the recognizable form of his appearance in the outside world, produced by various means on a visuable object. The person’s image has three elements: reproduction, the person’s external appearance, and recognizability.Reproduction is the copying of one’s external appearance. This concept needs to be widely interpreted. The technique used to portray the person and the quality of the execution of the technique of it do not matter. The person’s image can be obtained with tools such as pens, brushes, cameras, video cameras, or with other tools whose&nbsp;main function is not to portray. Although the technique or tool used in obtaining a person’s external appearance is not important, this appearance must be shaped on an object that can be viewed. The object in which the appearance of the person is shaped does not matter as long as it is viewable.A person’s external appearance is the second element of a person’s image. A form that does not reflect a person’s external appearance is not considered to be the person’s image. The appearance must be the appearance of the person and this must be the external appearance of the person. An ultrasound of a person that does not belong to the person, for example, does not reflect the appearance of the person’s property and the appearance of the person’s exterior, and consequently is not included in the concept of a person’s image. As the person’s external appearance is portrayed as different from the person’s external appearance, it is also included in the concept of the person’s image.The last element that a person’s image should have is recognizability. The existence of the concept of a person’s image is not accepted if the form in question is not conducive to the recognition of the person, in other words, the identification of the person is not possible from that form. As a rule, it is the person’s facial features that allow the person to be recognized. However, a person’s facial features are not the only indicator of recognition. In addition to other features of the person’s external appearance, some elements that accompany the image can also provide recognition. Icing of the face and putting down an eye strip are among methods that are used to prevent recognition. However, these methods do not always eliminate recognizability of a person. When assessing whether the person is recognisable, it should be examined whether he/she is recognisable in the vicinity of his/her close acquaintance.

A Person’s Image as a Personality Value

İbrahim

Article 393/1 of Turkish Commercial Code stipulates that a member cannot participate in negotiations related to a board of directors’ resolution to be taken on a matter where the noncompany-related personal interests of the members or their relatives listed in the law conflict with the company’s interests. As it is clearly understood from its express wording, this provision primarily covers the participation, by the relevant board member, in the discussion of the agenda item of the board of directors’ meeting which causes the prohibition. Despite the silence of the lawmaker on this subject, doctrine considers that one who cannot participate in discussion should not be allowed to cast vote. As a result, the prohibition stipulated in TCC 393/1 covers not only the participation to negotiations but also to voting process. The legal nature of TCC 393/1 provision is controversial. According to one view the provision is absolutely mandatory and a resolution taken in breach of this prohibition should be null and void. Another opinion -that we adopt- in Turkish doctrine considers TCC 393/1 as a non-mandatory provision, violation of which causes only a compensation liability, as TCC 393/2 states that “(t)he board member who acts in breach of this provisions and the members who do not object to attendance of the relevant member at the meeting although there is a known objective conflict of interest, and the board members who take a decision on attendance of such member at the meeting shall be obliged to compensate the company against losses incurred thereby”.&nbsp;The judicial practice is also not consistent on the matter. In some orders of the Supreme Court, it is said that attendance at the meeting, of a board member who shouldn’t attend the meeting within the scope of the prohibition from attending the negotiation, would not invalidate the decision taken, but only create compensation liability of the relevant member, while some other orders mention nullity of the board of directors’ resolution. TCC has no provision on the effect of the prohibition of board members from participating in negotiations and from cast vote, on meeting and decisions quorums. The opinion that considers TCC 393/1 as an absolute mandatory provision that invalidates the decision upon its violation, takes an approach similar to “effect rule” in TCC 446/1-b, with regard to the effect of provision on the quorums, and considers that if it can be concluded that the decision complies sufficient meeting and decision quorums without attendance and vote of the member who actually attends the discussions and votes in favour of the decision (so with the attendance of other members and their votes in favour of the decision), then mere attendance at the meeting and voting despite the prohibition would not affect the validity of decisions taken, but otherwise, i.e. if the prohibited member has had an “effect” on taking the decision, then it would be required to deem the decision invalid. According to the other view, TCC 393/1 provision should not be considered as a quorum matter; consequently the prohibition should not have any effect on the rules related to determining and calculating the quorums.&nbsp;In our opinion, TCC 393 is not absolutely mandatory and as violation of the provision does not invalidate the decision made, the prohibited member who participate and cast vote should be taken into consideration in calculation of meeting and decision quorums. However, this approach does not satisfy the sense of law fully, as the obeisance of law would be disadvantageous than its violation. In order to overcome this injustice, it would be the most solution in our view, considering the balance of interests and sense of justice, to take account of the prohibited members in the meaning of TCC 393, in determining quorums, when they attend the meeting and vote despite the prohibition, and not take them into account in determining quorums when they do comply with the prohibition and not attend the meeting and vote, and that the quorums must be calculated over the number found by deducting such members from the total.

Effect of the Prohibition of Board Members of Joint Stock Companies from Participating in Negotiations (TCC 393) on Quorums

Kübra

Assist. Prof.

Motorway Motor Vehicles Compulsory Financial Liability Insurance (Traffic Insurance) is the most common compulsory insurance and also the most common liability insurance in Turkey. In recent years, both the legislation and the general insurance terms, which are essential parts of the insurance contract, have been radically amended. These amendments affected the scope of the liability of the insurer against the injured party. Lastly, the Motorway Traffic Act (Act Number: 2918, Acceptance Date: 13.10.1983, OG 18.10.1983/18195) has been amended by Act Nr. 6704 (Act Number: 6704, Acceptance Date: 14.4.2016, OG 26.4.2016/29695). Concordantly in 2016, the General Terms of Motorway Motor Vehicles Compulsory Financial Liability Insurance have also been amended. After these amendments, it becomes unclear whether the insurer is liable to indemnify the damages because of temporary incapacity. In fact, insurance companies are able to claim that temporary incapacity damages are not covered by the compulsory traffic insurance contract. Temporary incapacity is the incapacity for work continuing during the treatment and recovery period because of loss of bodily integrity. Its result is existing damage that materializes by the date of the verdict. The calculation of the amount of the damage is concrete. On the other hand, if the effects arrive after the date of the verdict, it is a future damage, of which the amount has to be calculated using the abstract method.&nbsp;Temporary incapacity may occur as the first step of permanent incapacity. For example, a person may lose 30% of his capacity to work because of a traffic accident. During the six-month recovery period, he is 100% incapable of working. In such a case, this person shall be deemed completely but temporarily incapable of working during his recovery period. After the completion of the recovery period, he shall be deemed permanently but partially incapable of working. The Turkish Supreme Court has opined that the recovery period should be taken as a basis for calculating the compensation of the temporary incapacity damages. The injured party may use his right of direct action against the liability insurer. In that case, the insurer shall pay as if it were the substitute of the insured. Therefore, as to the recoverable damage, the calculation of the damage, incapacity, duration of the incapacity, etc, it is irrelevant who pays the compensation. The general principles of tort law and practice shaped by the Supreme Court decisions must apply in exactly the same way. However, the insurer is not the tort feasor. Since the insurer’s liability has been limited in some aspects by the terms of the insurance contract or by law, the amount of the compensation payable by the insurer is not exactly the same as the amount of the compensation payable by the insured party. On the other hand, it must be highlighted that this situation only affects the amount of compensation claimed from the insurer, not the total amount of compensation.&nbsp;As mentioned previously, after the latest amendments of the General Terms of Traffic Insurance in 2016, it becomes unclear whether the insurer is liable to indemnify the damages because of temporary incapacity. Within this scope, if there is no permanent incapacity, the damages caused by temporary incapacity are not covered explicitly by any of the provisions of the General Terms of Traffic Insurance. Despite that uncertainty, the damages because of temporary incapacity must be considered to be within the scope of the insurance coverage. This is because, in the case of a compulsory insurance regulated under a special statute, only those circumstances may be excluded from the scope of the insurance coverage that are stated as such as per the law, provided that they are explicitly excluded in the General Terms. Furthermore, exemption clauses must be definite, clear, and certain. In addition, in terms of legal policy, it is indefensible that these damages could be excluded from the scope of the insurance coverage. Hence, a recent decision of the Arbitral Committee of Appeal assessing this issue determined that the damages because of temporary incapacity would fall within the scope of the insurance coverage.

An Evaluatıon on Whether Temporary Incapacity Damages are Covered by Compulsory Traffic Insurance

Faruk

The subject matter of “statutory limitation–the term/duration required for the termination of labor agreement” is investigated in our study by trying to include decisions taken by the Supreme Court of Appeals. Within the scope of our study, basically, it is analyzed whether individual labor laws and Turkish Code of Obligations include explicit regulations regarding the term/duration for the termination of labor agreement and the range of application for terms in the cases where relevant regulations exist and whether exercising of the right of termination, which is among the formative rights, is subject to any term in the cases where explicit regulations do not exist and if it is subject to any time-constraint, the time period during which such right of termination is required to be exercised. The subject has been evaluated in the termination of the employment agreement within the framework of the Labor Law numbered 4857 within the scope of our study, due to the wide application area of the subject.The term for exercising the right of termination in the Labor Law, numbered 4857, is only included explicitly in the article 26. However, the terms in the said provision are not accepted for all terminations to be carried out by the employer or the employee. Terms specified in the relevant article are applicable only on the condition that the labor agreement is terminated by basing upon circumstances, which do not comply with codes of ethics and goodwill and other similar principles. Therefore, the 1-year term or six business days term is not taken into account in case of a termination of labor agreement with any valid reason other than termination by the employer pursuant to article 25/ II of the Labor Law. In other words, due to force majeure events pursuant to article 25/III of the Labor Law and due to the fact that the employee is taken into custody or arrested pursuant to article 25/IV of the Labor Agreement, the terms specified in the article 26 of Labor Law for the termination of labor agreement by the employer are not applied as a result of absenteeism of the employee as long as the notification period due to health issues pursuant to article 25/I of the Labor Law. The terms stipulated in the said provision shall not be applicable also for the terminations with a valid reason as the terms specified in the article 26 of Labor Law cannot be applied for the termination of labor agreement by the employer other than the reasons stipulated in article 25/II of Labor Law.Similarly, the terms stipulated in the article 24/I of Labor Law are not taken into account for the termination of labor agreement by the employee with a valid reason other than the reason specified in article 24/II of the Labor Law, that is, due to health conditions pursuant to article 24/I of the Labor Law or force majeure events pursuant to article 24/III of the Labor Law. Terminations with a valid reason other than article 24/II of the Labor Law and article 25/II of the Labor Law shall be concluded regarding the terms by basing on the content&nbsp;of relevant regulations. Within this context, it will be accurate to agree upon the fact that both the employer and the employee can exercise the right of termination as long as the reasons specified in the relevant provision continue in accordance with the content of regulations; arguing that the labor agreement can be terminated within a reasonable time period following the dissolution of the aforementioned reasons conflicts with the content of relevant provisions. No reason would remain to require the employer or the employee to maintain or terminate the labor agreement as when the reasons are dissolved the circumstances that require the labor agreement to be terminated will be invalid. However, reasonable time shall be sought only for the reason of termination with a valid reason included in the article 25/I,a of Labor Law pursuant to the content of relevant regulation. In addition to this, for terminations to be executed with a valid reason because of characteristics born by valid reasons, just like article 25/I,a of the Labor Law, and as a result of the procedure, which shall be followed for the termination, the reasonable time to be determined according to the characteristic of concrete case and qualification of the termination shall be based on.The mandatory structure of these terms is examined within the scope of our study, along with the range of application of terms included in the article 26 of Labor Law. The interpretation of the provision clearly set forth that the 1-year term is absolutely mandatory. Furthermore, it shall be accepted that both six business days term and oneyear term are absolutely mandatory in accordance with the purpose of making this article. In fact, the priority of statutory limitation specified in the article 26 of Labor Law is actually to eliminate legal uncertainty and to ensure legal security rather than protecting the interests of parties.The legal problem that emerges while implementing a six business days term and a one-year term is not only related to the range of application and mandatory structure. One shall also dwell on what shall be understood from the concept of pecuniary advantage which gives rise to the failure to implement the one-year term. Although it is easy to determine the meaning of pecuniary advantage in general terms, the purpose of the provision shall also be predicated on while assigning its meaning concerning the article. By accepting the statutory limitation through 26th article of the Labour Law, Lawmakers sought the ways to ensure the legal certainty by means of preventing the related person from undergoing legal uncertainty. Therefore, on the grounds of ‘‘pecuniary advantage’’, an exception is introduced for the rule, the ultimate aim of which is to eliminate legal uncertainty. While evaluating the expression of pecuniary advantage, the said aim shall be taken into consideration. To put a finer point on this issue, when it is taken into account that the statutory limitation is accepted for public order and public interest, it will be more reasonable to assert that the introduced exceptional implementation serves the same purpose. In this respect, it will be right to accept that an implementation that does not violate the public order would not constitute the exception&nbsp;of a provision, which is imposed to assure public order. Consequently, if it comes to the conclusion that the implementation, which is included in the scope of article 25/II of the Labour Law, causing an employee to derive material benefit, subverts the public order then, we think that the one-year term shall not be implemented. Apart from the exceptional case that affects the implementation of this one-year term, the concept of the business day is also evaluated in the sense of implementation of six business days. In this context, it will be appropriate to consider the business day as six-days except for the weekend days for the implementation of 26th article of the Labour Law both to eliminate potential legal problems and to accomplish the purpose of the relevant provision.

The Term/Duration Required for the Termination of Labor Agreement

Mehmet

The possibilities for the use of personal data have increased tremendously as a result of a data-wide range of analytics tools, the Internet of Things (IoT), artificial intelligence technologies and other similar methods. As highlighted by the Article 29 Working Party, the amount of personal data that exists, is processed and is further transferred continues to grow; the ever-increasing amount of personal information is accompanied by an increase in its value in social, political and economic terms; and breaches of personal information may have significant negative effects for data controllers in public and private sectors. The proliferation of national, regional, and international regulations for better protection of personal data and privacy have impacted business operations, government administrations and the personal activities of individuals. The inadequacy of classical data protection approaches have been uncloaked by the evolving nature of cyber risks, the tremendous increase of personal data processing through analytics and artificial intelligence technologies, the diversification of data processing and storage environments and the proliferation of sectoral regulations. The principle of accountability is proposed as the most efficacious solution to tackle new emerging risks and challenges in the changing landscape of data protection and privacy contexts.Accountability is a principle that exists in different national and international regulations, and its importance is increasing over time. For instance, OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, the pioneer instrument that addresses new and elevated privacy risks, prescribes the principle of accountability alongside other major data protection principles, such as collection limitation, data quality, purpose specification, use limitation, security safeguards, openness and individual participation principles. The OECD identified accountability as a key concept and underlined that a data controller should be held accountable for complying with measures which give effect to these principles. While Convention 108 (Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data) did not explicitly include the principle of accountability, it is argued that the modernised Convention 108, also called as Convention 108+, is based on the accountability principle. The modernised Convention imposes broader obligations on those who process data or have data processed on their behalf. Accordingly, accountability becomes an integral part of the protective scheme, with an obligation on controllers to be able to demonstrate compliance with the data protection rules.The Article 29 Working Party has underlined that there is an increasing need and interest in ensuring that data controllers take effective measures to deliver real data protection. The Article 29 Working Party’s discussions on the legal architecture of&nbsp;accountability-based systems has paid off. The principle of accountability is currently articulated under Article 5(2) of the General Data Protection Regulation (“GDPR”). The GDPR lays down six distinct data protection principles and requires controllers to be responsible for and be able to demonstrate compliance with these principles. This compliance requirement is briefly referred to as ‘accountability’. Turkish Data Protection Law does not mention accountability among its principles, which is not surprising as Turkish Data Protection Law is modelled after Directive 95/46/EC. However, in the long term, accountability is expected to be included among other core data protection principles since the Turkish government, under the latest development plan, announced its intention to reform Data Protection Law in accordance with the GDPR.The principle of accountability is a paradigm shift in data protection which has a conceptual breadth and magnitude that goes far beyond mere compliance. It requires data controllers to implement appropriate and effective measures to comply with the principles and obligations set out under data protection regulations and to further demonstrate this compliance on request. It is the process of proving that the protection of personal data is an essential value that is constantly observed, effectively applied, and regularly audited by data controllers. The principle of accountability imposes an increased duty of care on data controller and calls the data controller to act prudently according to changing risks. This principle is directly interlinked with other core data protection principles and creates a special liability regime. It could even be said that the principle encapsulates parts from all the data protection principles. According to the Article 29 Working Party, common accountability measures may include the following non-exhaustive list: establishment of internal procedures; creation of written and binding data protection policies; maintenance of an inventory of data processing operations; appointment of a data protection officer; offering adequate data protection, training and education; implementing procedures to manage access, correction and deletion requests; establishment of an internal complaints handling mechanism; setting up internal procedures for the effective management and reporting of security breaches; performance of privacy impact assessments; and implementation and supervision of verification procedures. It is important to note that a data controller can determine the level of accountability that is desired to be achieved, which depends on the legal and institutional framework to which the controller is subject.This article aims to provide a thorough analysis of the principle of accountability in the context of data protection law by adopting a comparative approach. The article aims to scrutinise the scope and underpinnings of the principle, identify its relationship with other data protection principles, and further discuss the normative effects of&nbsp;such a principle has on data controllers and data processors. In the context of this analysis, the article will attempt to shed light on how to demonstrate compliance with requirements set out under data protection laws/regulations in a practical way.

The New Paradigm of Data Protection Law: The Principle of Accountability

Hilal

Upon the application for appeal, the parties have the opportunity to obtain another decision that is favourable to them and more accurate, by opposing the court decision in which issues are found against them and which they find faulty. Within this opportunity, the court of appeal can re-investigate when necessary and revoke the first-instance court’s decision and make its own decision instead. When the relevant regulations of the Code of Civil Procedure numbered 6100 are examined, it is observed that the courts of appeal have been granted a very limited power of investigation (please review Article 355, 357 of the Code of Civil Procedure). In accordance with the principle of causality, which is one of the regulations in which the restriction is observed the most intensely, the court of appeal shall carry out its investigation based on the reasons of appeal, except for circumstances contrary to public order (Article 355).&nbsp;&nbsp;The party requests of appeal must also submit the reasons for the appeal. Under sub-paragraph “e” of Article 342/2 of the Code of Civil Procedure which regulates the elements of the appeal petition, the reasons and the justification for the application are stated. However, when paragraph 3 of the same article is examined, a conclusion has been reached that, even if the reason is not submitted, if the identity of the party requests of appeal and the decision against which the party requests of appeal are stated, the Regional Court of Appeal shall investigate the decision of the first-instance court in terms of the violation of public order, by considering the merits of the lawsuit. However, once such conclusion has been considered along with Article 352 of the Code of Civil Procedure where the preliminary investigation is regulated, it causes a confusion. Thus, it is explicitly stated in the relevant provision that the lawsuit file, which is determined as complete, shall be taken into the main investigation (Article 352/3). Therefore, since an application petition, which does not include the reasons for the appeal, shall be considered as incomplete, the dismissal of the same due to procedural deficiencies at the preliminary investigation stage will be a more appropriate solution.Although it is required to expect from the party requests of appeal that they submit the reasons for the appeal in the petition, this requirement is not a must of the appeal investigation to be restricted with the reasons submitted in absolute terms. Since the purpose of the proceeding of appeal is to eliminate the material and legal mistakes determined in the decisions of the first-instance court as much as possible and to provide a more effective legal protection to the citizens. Restricting the court of appeal with the reasons submitted by the parties leads to a conclusion to ignore some mistakes or deficiencies by the court, and such a conclusion is not compatible with the purpose of reaching more accurate and fair decisions by the court of appeal and the purpose of reaching the material truth of civil procedure law.While evaluating the principle of causality, special attention shall be given to two issues. The first one of these two is the principle of not deciding beyond the request, which is a result of the disposition principle, which is also valid in the proceeding of appeal. In accordance with the principle of not deciding beyond the request, the court shall not be able to decide more than the party requests of appeal, even if the court determines a violation other than the reasons indicated by the petition of the party requests of appeal. The second issue required to be considered is the “prohibition of reformatio in peius”. As per this prohibition, even if a reason is determined against the party requests of appeal by the appeal court during its investigation, the appeal court shall not be able to make a decision that puts the party request of appeal in a more disadvantaged position than that of the decision of the court of first instance by taking such a matter against the party requests of appeal. Public order is also the only exception to both the principle of not deciding beyond the request and prohibition of reformatio in peius. To the extent that the principle of not deciding beyond the request and the prohibition of reformatio in peiuare are complied with, we are in the opinion that the principle of causality can be abandoned in the appeal.

The Principle of Causality in Appeal under the Law of Civil Procedure

International law on sustainable development began to take shape mainly in the 1970s. By the early 1990s, the term was already recognized by international law. Conceptually, the elements of sustainable development have been adapted to the field of law through soft law instruments (United Nations General Assembly resolutions, declarations, action plans, etc.). On the other hand, there is also an international hard law regarding elements such as environmental protection, social development and economic development to which the concept refers. In other words, while sustainable development is conceptually defined by declarations, its implementation is left to more specific and much more concrete international treaties.&nbsp;&nbsp;Following the Brundtland Report, the term sustainable development has been widely used. In particular, the statement “ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs” seems to have been adopted as the definition of sustainable development. However, in our opinion, this term actually emphasizes the moral obligation that sustainable development imposes. In our opinion, the section in the Brundtland Report that can be considered as the definition of sustainable development is in the following paragraph: “sustainable development is not a fixed state of harmony, but rather a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are made consistent with future as well as present needs”.&nbsp;&nbsp;The difference of sustainable development from the terminology of “environmental protection”, which emerged conceptually before it, is that it puts the “integration” and “relation” between intergenerational justice (environmental protection) and intragenerational justice (social and economic development / development) at the center of law. The concept began to find its place in constitutions in the late 1980’s. In fact, the issues that the concept of sustainable development refers to were already regulated by the national constitutions. However, the concept of sustainable development brought up a different meaning to that which was regulated by the constitution before. Sustainable development changes the way people relate to other people, society and the state. This shift can be observed while analysing the rights, duties and obligations that the concept imposes. This shift caused a transformative effect on constitutionalism’s old model of relationships based entirely on the state-individual dichotomy. This dichotomy functions when the primordial aim of constitutionalism is considered as the limitation of government authority for the protection of constitutional rights of&nbsp;the individuals. However the function of constitutionalism is no longer limited to this unequal relationship. The concept reconstructs and diversifies the functions of constitutionalism by perpetuating the conception of “common survival in the planet”.&nbsp;&nbsp;In this study, the interpretation of the constitution in terms of the concept of sustainable development has been accomplished by reference to mutual relations between international law and national law on the one hand, and citizen – society – state on the other. AN individual’s relationship with nature is a relation of mutual inclusion. In this respect, neither solely starting from nature nor starting from human being would be appropriate for judicial interpretation: The interpretation of the constitutional environmental right can take place primarily, as François Ost suggests, on the basis of the “human-nature relationship”.Constitutions may or may not include regulations on sustainable development; national policies can be decisive in this respect. However, especially when considered together with sustainable development goals, international sustainability requires, as a minimum, incorporation of procedural safeguards (specifically expressed in the Aarhus Convention) in all constitutional systems in one form or another. In the 1982 Constitution, development plans emerge as the basic principle that connects the three pillars of the concept of sustainable development. The Constitution has highlighted the concept of planning in order to link economic development with social justice. Finally, constitutional sustainable development can be based on a relational value: on the principle of solidarity that says “to see someone else’s gain as one’s own gain”, “to know that the society is as strong as its weakest”, “to progress towards a common value by enriching with pluralism and tolerance”. This is how we understand the principle of national solidarity prescribed by Article 2 of the 1982 Constitution.

Constitution and Sustainable Development

Muhammet

International tax treaties are created according to the classical economy which requires a physical and stable workplace for an enterprise to be taxed in a country where it operates. The reasons for this imperative are: slow communication, exchange and customs rules, and high transportation costs. With the development of information and communication technologies (especially internet technology), international companies have had the opportunity to operate in most countries without creating a physical or stable workplace. This situation results in the state’s inability to tax the internet mediation company if a tradesman in his country sells his product to a person in his country via the internet mediation company. The same conclusion can be reached for social media companies and other digital companies. Regarding the situation in terms of indirect taxes, it is difficult for the government to receive VAT from a company that sends a product from abroad to its citizens in its own country. Although making the consumer responsible in this regard stands out as a solution, implementation problems may arise. These situations lead to the inability of states to exercise their taxation authority, which is one of the most important sovereign rights, which is unacceptable for many states in terms of economic conditions. For this reason, it is seen that many states are trying to tax such incomes unilaterally. On the other hand, states hosting digital companies such as the USA, threaten to retaliate against these taxes. As a result, it is stated in the doctrine, as cited in this study that there is a kind of tax war between the countries.It is clear that such tax wars will ultimately cause an economic damage to all states. For this reason, international organizations are working to prevent unilateral taxation. In this context, BEPS plans carried out by the OECD aim to find a fundamental solution to this problem. However, no update has been made to the OECD Model Tax Agreement, which is based on countries making international tax treaties. This Model Agreement still requires the existence of a physical workplace for taxation. Also, works have been started to find a solution to tax losses caused by the digital economy within the European Union. In this context, the EU wants to end the tax losses of the member states as soon as possible and is seeking a deep-rooted solution. The Digital Service Tax (DST) is the EU proposal to prevent short-term tax losses. In the proposal, it is stated that this tax is a temporary measure and will be abolished when the international solution for the taxation of the digital economy is reached. The tax foresees a 3% ratio on gross income and targets only certain sectors. However, since no compromise has been reached within the EU, some EU states, especially France, have implemented a similar tax unilaterally. The United States, being against such unilateral practices, has declared that it will retaliate.While the debate about the Digital Services Tax is continuing in the EU, Turkey quickly legislated Digital Services Tax in last quarter of 2019. In Turkey, the tax rate&nbsp;adjusted at 7.5% of gross revenues and the application area of the Digital Services Tax is wider than the EU proposal. In this respect, the tax burden on enterprises which are subject to the Digital Services Tax, has become more severe in Turkey. In addition, in order to ensure tax compliance, the executive body has been given the authority to decide on blocking internet access to companies that do not fulfill their tax obligations. For these reasons, a different and controversial Digital Service Tax has emerged in Turkey. Considering the 15% withholding application implemented on digital advertising services at the beginning of 2019 in Turkey, it is likely that a serious problem of system complexity and double taxation will occur. In this study, it is stated that the withholding tax application put into digital advertising services should be abolished in the short term, and making the tax system compatible with the digital age in the long term.

Digital Service Tax in the European Union and Turkey Practice

Oktay

Assoc. Prof.

Abdullah

Osman

In the case of democratic development and maturity, reformed bureaucracies may also be expected to work in a way which contains their discreetness, trustfulness, objectivity and soul of professionalism and at the same time they have to be responsive and accountable to the governments that come to power by democratic elections. Yet in the face of unsuccessful administrators in doing that, many lawmakers from various countries tend to legislate against those administrators for restraining them from behaving in a partizan way and ensuring that they are neutral in providing public services. For this aim they made some reforms and established new institutional orders.&nbsp;The current study was conducted to understand and explain the critical issues associated with the American Hatch Act, which is provided as such an institutional order, using documents that were collected by reviewing archives. The main rationale motivating such a study is basic propositions about the possible political behaviors of public servants and the necessities of avoiding such behaviors because public servants may have some powerful aspects on account of implementing public policies and in this sense they create some advantageous situations for policy makers by affecting voters. If it is really true, it would also be plausible to make some coercive legal arrangements, which are particularly effective in arranging actors’ behaviors, to guarantee public servants’ impartiality. The Hatch Act investigated in the scope of this study has been understudied to date, although it is accepted as one of the institutional arrangements that aim to make public servants neutral. With the current study, issues such as what sort of institutional order is established for American public servants, what is the main requirement for this type of order, what kind of coercive mechanisms and actors are created in this meaning, what type of implementations are created for this aim, why are some amendments in the Hatch Act realized during time and finally whether Hatch Act produce desired aims, in the scope of th eAmerican Hatch Act have been addressed in detail. To this end, we conducted a qualitative study by using the Hatch Act as a case. In doing so, this study provides some insights into the requirements of public servants’ neutrality while producing and providing public services. Furthermore it also provides some clues towards creating institutional orders, which aim to constrain first and then shape the behaviors (especially political) of public servants, by illuminating the processes of such an order from the USA. For analysis, we collected specific archive documents and other relevant texts by using open sources (i.e. legal documents and internet resources) and in some cases limited documents are provided by incumbents of the special council. After collecting data we used the content analysis technic to find apposite answers for our research questions. During this process we processed all of our data by using qualitative coding.&nbsp;This study’s potential contributions are manyfold. First it defines political or partizan behaviors or activities of public servants in general and more specifically in the scope of the Hatch Act to some extent. Secondly it illuminates and explains common socio-cultural infrastructure or background, aims and scope of institutional orders such as those created by the Hatch Act which aim to ensure public servants’ neutrality. In this way, it also paves the way for making very clear rationales of acts such as the Hatch Act. In addition to these it sheds lights on the legal processes, penalties and other implementations of the Hatch Act by providing some cases. More over, it provides concrete examples of the mechanisms and other actors aiming to facilitate and realize the implementation of the Hatch Act. Along with these it also clarifies the maintenance of such institutional orders.

Taking the Advantage of the Coercive Effects of Legal Arrangements in Shaping Public Servants’ Political Behaviors: The Case of the Hatch Act

Ekin

Lecturer

This study looks at refugee crisis discourse through the lens of international criminal law (ICL) and international refugee law (IRL) by asking the following question and raising following concerns respectively: in what ways the crisis, refugee and victimhood phenomena describe mass human movement in the modern world. As we get more attached to see violence in the news ranging from racism to armed conflict, it is sought to answer whether we also reflect this rage on refugees by marginalizing them in the end. In order to get some sense on this question, the role of conservative discourse and its extended state policies are analyzed to understand how they seed a negative image in the collective memory of societies about refugees. It is set to identify the problem that this created collective memory discerns refugees as evil wrong doers who breach every right possible that are attributed to states. This also justifies states’ way of crushing refugees bodily and spiritually to obstruct future refugees from arriving on their soils. The presented mindset herein also absolves states from abusive acts of their agents. In that we are conditioned to conclude that mistreatment of refugees is not grave enough to be considered within the context of crimes against humanity for instance; even though requirements for this international crime are present. Indeed, some scholars and public figures have taken action to get the International Criminal Court (ICC) involve holding governments and state agents responsible from their atrocious methods employed against refugees. However, in consideration of the major incidents and recent developments including failed correspondences with the ICC Office of The Prosecutor (OTP) in this regard, this Article asks whether international criminal law can really resolve the consequences of refugee crisis discourse at the end of the day.&nbsp;In pursuance of this question respectively the rhetoric of refugee crisis and its consequences are discussed both from a philosophical and legal standpoint. The evil nature of overwhelming incidents -constituting the misery of refugees in the hands of state of asylum- keep surfacing through news media and academic discussions, which have triggered an urge in international community to find a solution to these sequential matters. Some leading books have been written in respect to the consequential effects of refugee crisis discourse, to name a few: Solidarity and ‘Refugee Crisis’ in Europe by Óscar García Agustín and Martin Bak Jørgensen; Asylum Seekers, Sovereignty, and the Senses of the International edited by Jenny Edkins and Nick Vaughan-Williams; Asylum Seekers and Refugees in the Contemporary World by David J.Whittaker; Refuge Transforming A Broken Refugee System by Alexander Betts and Paul Collier. The crimes against humanity aspect of cruel treatment against refugees have been analysed by Ioannis Kalpouzos, Itamar Mann, Kevin Jon Heller and some other researchers cited within the context of this Article too. Merging all of these analyses and real-world examples, this study agrees that even if the elements&nbsp;of crimes against humanity come together with respect to treatment against refugees, still states will be reluctant to take refugee protection measures more seriously, if there are no consequences for not reducing any form of violence. Indeed recent correspondences with the OTP have shown that it is the ICC that is hesitant to pursue further investigation on related matters in the first place; for instance what has been going on in the Australian offshore detention centers. This Article in this respect looks at the incidents in which people escape from persecution due to race, religion, armed conflict, international crimes etc, and are victimized further due to receiving states’ atrocious conducts. This aspect brings together two disciplines of international law -namely ICL and IRL- to find solution whether inattentive states’ policies, get shaped/influenced by refugee crisis discourse, can be eliminated. As is concluded in the final part of this Article, recent examples and research prove us that as long as influential institutions, in particular ICC, remain silent on the face of growing discriminative politics, these countries who other ‘outsiders’ without having extrinsic pressure on them to refrain from any abusive treatments, will continue to get away with their legislations and policies in their limits and powers that will help and encourage these states to keep refugees out.&nbsp;

On the Refugee Crisis Discourse: A Critical Analysis Sitting in the Junction of International Criminal Law and International Refugee Law

Galip

In this article, the unilateral economic sanctions of states are analysed from the perspective of the terms of their legality in international law and their effectiveness as a political tool. As a method of analysis, in case of their legality, the states’ and scholars’ arguments for justifying this kind of practices and how others responded or rejected these are looked at. The soundness of these pro/counter arguments according to the relevant concepts and rules framing and regulating states’ behaviours in international law are then checked to see if and when unilateral sanctions would be considered legal. In case of their effectiveness, the political economy literature on sanctions are evaluated in order to discover states’ motivations to resort to these and internal or external political, social and economic factors affecting the success of sanctions. The main conclusions of the article can be summarised as follows.First of all, it seems that there is no specific rule in international law that prohibits states from resorting to unilateral economic sanctions. Yet, it is necessary to take into account the principles of necessity and proportionality (including the clause in the commentary to draft article 18 on state responsibility that qualifies serious economic pressure, which deprives the target state of any possibility of conforming with its obligations, as coercion), as well as some basic rules of humanitarian and human rights law in evaluating the legality of the content and effects of sanctions. On the other hand, in cases of violations of these limits on sanctions, it would be preferable to claim the responsibility based on the duty of care since providing the necessary proof in terms of attribution of responsibility for specific damages in the target state according to the strict criteria of control is very difficult. Furthermore, if economic sanctions are applied in the form of smart sanctions, responsibility might arise in terms of the sanctioning state’s human rights obligations towards targeted individuals.Another issue analysed in this article is the possibility of qualifying economic sanctions as a form of countermeasures in the law of state responsibility. In this regard, as the special rapporteur of the UN Human Rights Council pointed out in his report on the legality of unilateral sanctions, the determining criteria are the legitimacy of the ground and the conformity with procedural and material conditions for applying these kind of measures. One of the most disputed questions in the area of unilateral sanctions is whether or not these are in any way prohibited by the principle of non-intervention. It is concluded that currently such a prohibition in this regard has de lege ferenda status. The reasoning behind this conclusion is the fact that necessary state practice and opinio juris do not seem to be widespread and uniform enough to claim the existence of such a prohibiting rule.As regards the problem effectiveness of sanctions, sample analyses and theoretical evaluations on this issue prove the complexity of the factors and the difficulty of&nbsp;deciding the best form of sanctioning strategy. Nevertheless, if our perspective on international law is to use it as a tool for international cooperation for non-zero sum game and, if states resort to economic sanctions for maximising unilateral gains, this would be contrary to the idea of increasing global wealth through such cooperation.&nbsp;&nbsp;Finally, in the last section of the article I analyse an unusual example of sanctioning foreign entities by enacting domestic laws having extraterritorial effects, practiced by the US as a form of foreign policy. The way these laws use the limited categories of international law for extraterritorial effect and rather arbitrary application of such powers by the administration show the inappropriateness of such practice in international law, as could also be clearly inferred from the number of protests by other states and international organisations.

Economic Sanctions in International Law and A Short Evaluation of the Us’ Unilateral Sanctions

Zeynep

International humanitarian law became a fully codified branch international law in the 1970s. The attempts to codify a law of war, or a law for protection of civilians in war which would enhance distinguishing the civilians or non-belligerents, started in 1863 under an initiative led by Henry Dunant. Dunant, a Swiss entrepreneur who had fought in the Battle of Solferino, came back with the urge to protect non-combatants in conflict zones. Dunant, with a team founding the International Committee of the Red Cross, convinced European leaders to convene in Geneva. The 1864 Geneva Convention, signed at the end of the Geneva Conference, was the first multilateral international law document for wounded soldiers in conflict zones. The convention was followed by such treaties as the 1899 Hague Convention on the Laws and Customs of War on Land, the 1906 Geneva Convention on Wounded and Sick, the 1949 Geneva Conventions, and later the 1977 Geneva Conventions Additional Protocols I and II, which merged the two branches of the Geneva and Hague laws. After becoming fully codified, it was to be called International Humanitarian Law.&nbsp;The other branch of international law, the outer space law/space law, on the other hand, could not follow a similar successful evolutionary process. After the first interaction of human beings with outer space, with the launch of Sputnik I by Soviets, the race in the Cold War gave the signals to move beyond the globe. In the meantime, in order to prevent the abuse of the outer space, the United Nations (UN) was rapid to respond with treaty preparations. The UN founded Space Committee (the Committee on the Peaceful Uses of Outer Space/COPUOS) which was ad hoc in the beginning. Through recommendations of COPUOS, UN General Assembly created principles on the use of outer space, though non-binding. The evolution of outer space law, in a multilateral manner, started with the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967, mostly called Outer Space Treaty. Providing the fundamentals of outer space law, the Outer Space Treaty was followed by Rescue Agreement of 1968, Liability Convention of 1972 and Moon Treaty of 1979 while the latter is still not recognized as a genuine part of space law as most space powers are not signatories.&nbsp;After an overview of different evolutionary processes of two branches of international law, this study aims to reveal the hierarchy amongst them by determining the superior one. In this respect, it evaluated the very nature of their relationship under international law by looking at their development and main problems, separately. Considering International Humanitarian Law to be the older and grounded branch, the study focused on the relatively young branch, Outer Space Law and its problems, namely the issue of disarmament and the unrecognized Moon Treaty.&nbsp;Apart from the basic definition issues in the outer space law, the disarmament of space has been an ongoing issue of negotiations in the UN. There are two camps of the issue: the space securitists, Russia and China; and the space sustainabilitist, USA. While the first camp was the main provider of first Proposed Prevention of an Arms Race in Space (PAROS) Treaty, their main rival happened to be the US. As the space securitists moved with new proposals, the US stood against them by putting forward that space security by disarmament had secondary importance as the sustainability of space had the first place. Despite the attempts to find a common ground, it still seems to need more time to reconcile.Another unsolved problem of the outer space law, the non-recognition of the Moon Treaty, became more important after USA’s initiatives discarding the treaty in the beginning of 2020. Although none of the space powers signed the treaty, its requirements could provide peaceful use of Moon and other celestial bodies. Nevertheless, the signatory states’ relative space power is not sufficient to put those requirements into effect. USA’s executive order in April 2020 for cooperation on source-mining on the Moon and later, the declaration of preparing a special treaty for it, called Artemis Accords, seem to endanger the future conclusions of the treaty once and for all.&nbsp;After providing the vulnerabilities of the outer space law, three principles of IHL, namely distinction, proportionality and discreetness, were examined to apply in wars on space and it was shown that all these principles need to be applied despite its conflictual natures with the outer space law. Although all humankind is to be protected in the outer space, IHL principles such as distinguishing the possibility of giving harm, using limited force and refraining unnecessary harm to the surrounding objects as this could also endanger the life on earth, still need to be applied. In this sense, the conclusion of the study showed the superiority of the International Humanitarian Law when there is a war-like situation in outer space, which approves that IHL prevails over the outer space law.&nbsp;

The Relationship between Space Law and International Humanitarian Law

Thomas

Prof.

Buket

Hukuka Uygunluk Nedenlerinin Maddi Koşullarının Hatalı Varsayılması Kastı Ortadan Kaldırır Mı?

Hans

Nevhis

İstinafta Delil İkamesinin Sınırlandırılması

Abuzer

Prof. Dr.

Res. Assist. Dr.

Pursuant to Article 169 of the TCC, temporary measures offer legal protection and prevent conflict between parties during proceedings from the filing of a divorce case until the legal effect of the decision.With the filing of a divorce case, spouses have the right to suspend the joint household. This measure is not based on the decision of the judge, and whether the divorce case is disputed or uncontested is not a decisive factor. Furthermore, the right to live separately exists independently of whether the related case is justified or not. As a rule, the right of spouses to live separately will end with the legal effect of the decision to dismiss the divorce case or the withdrawal of the case.&nbsp;While evaluating the allocation of the use of the family home, the criterion of fitness for purpose should be considered, regardless of the fault status regarding the ground for divorce. Who owns the property right or limited right in rem on the common residence or who is a party to the debt relationship (e.g., lease agreement) on which the possession is based is insignificant. As the marital union continues to exist throughout the divorce proceedings, all protective provisions regarding the family home shall continue to be effective as long as the relevant immovable maintains that characteristic. If this protection is deemed insufficient in the concrete case, the judge can take any necessary temporary legal protection regarding the immovable property without any obstacles.The notable criteria for determination of precautionary maintenance are the needs of the spouses and their ability to pay. In the calculation of the amount of the minimum needs (subsistence) of the spouses, both the expenses owing to the suspension of the joint household and continuation of the marital union will be taken into consideration. Pursuant to Article 169 of the TCC, the other of the two main elements for the calculation of cautionary maintenance is the income of the spouses. The concept of income includes both earnings and asset returns (e.g., rents or interest). Pursuant to Article 169 of the TCC, the precautionary maintenance shall be calculated based on the difference between the minimum needs of the spouses—determined within the framework of the principles—and the income of the spouses. Moreover, pursuant to Article 169 of the TCC, when deciding on the precautionary maintenance, who is at fault is not considered in the facts alleged as the ground for divorce.In Article 169 of the TCC, the legislator mentions the measures regarding management of the property of the spouses among those that the judge can consider ex officio during continuation of the divorce or separation proceedings. Thus, if a spouse, who has the authority to freely use, benefit, and dispose of the assets that he or she owns in accordance with the marital property regime of participation in acquired property, violates the interests of the other spouse while exercising those powers or the obligation to provide information, the transition to separation of property can be decided. However, it is possible only if it complies with the principles of necessity, appropriateness, and proportionality, such as other measures in Article 169 of the TCC. Moreover, the judge can ex officio order restrictions on the power of disposal and payment of debtors of one spouse to the other spouse, which are essentially regulated in the law as measures to protect the marital union. While making such decisions, the characteristics of the fact that a divorce case has been filed should be considered.The judge can rule ex officio, i.e., without the need for any request, on the temporary legal measures that are necessary during divorce proceedings, i.e., those related to the spouses. During divorce proceedings, the judge can rule on any proportionate temporary measures, if needed. The provisional measures to be taken regarding the spouses during divorce proceedings are subject to a simplified procedure. Pursuant to Article 169 of the TCC, the decision on provisional measures can be rendered at the earliest when the divorce case is filed and can be effective at that time. The temporary measures taken pursuant to Article 169 of the TCC shall be effective until the legal effect of the divorce decision. Moreover, provisional measures pursuant to Article 169 of the TCC, which do not constitute a final judgment, can be amended during the proceedings.&nbsp;

Eemporary Measures Regarding Spouses During Divorce Proceedings Pursuant to Turkish Civil Code Article 169

Nilüfer

Assoc. Prof. Dr.

Articles 105 through 113 of the Turkish Code of Civil Procedure (CCP) regulate the types of lawsuits. However, these regulations do not have a limiting nature. A type of lawsuit is also found that is not explicitly included in the law and is referred to as an unseasonal (untimely/early) lawsuit, particularly with regard to judicial decisions and partially with respect to doctrine. The law makes no mention of this type of unseasonal lawsuit (untimely lawsuit/early lawsuit) nor provide any characterization. While accepted by judicial decisions, this type of lawsuit has also not been defined in these judicial decisions, and the conditions for this lawsuit are nowhere to be found. Based on the decisions, unseasonal lawsuits are understood to be used for receivables or claims that are not yet at the stage of being able to be claimed pursuant to various laws. In terms of unseasonal actions, a particular problem arises when addressing the dismissal of the lawsuit. This issue has been discussed and brought to the agenda, especially as the subject of a recent Unification of Jurisprudence Decision dated February 18, 2022. According to the judicial decisions, a lawsuit that is filed prematurely should be dismissed. However, whether the decision to dismiss this type of lawsuit is procedural or substantive is a matter of debate and needs to be evaluated. In judicial decisions, the unseasonal lawsuit is mostly dismissed procedurally on the basis of lack of legal interest. However, some judicial decisions have also observed that, in the event of the existence of an unseasonal lawsuit, a decision of dismissal is made based on the merits.In terms of civil procedural law, the procedural or substantive dismissal of a lawsuit is subject to different conditions and consequences. In judicial decisions, however, the current aspect of the debate on whether to dismiss an unseasonal lawsuit procedurally or on its merits is based on the more practical and pragmatic reason of how to determine the attorney’s fees rather than on any fundamental approach or perspective. In the event that an unseasonal lawsuit is dismissed procedurally, a lump sum attorney’s fee will have to be decided upon in accordance with the Paragraph 2 of Article 7 of the Attorney Minimum Fee Tariff. If the case is dismissed on merits, a proportional attorney’s fee is to be awarded.The Unification of Jurisprudence Decision dated February 18, 2022 decided that, in a lawsuit filed for a receivable that is not yet due, whether it is due or not is a matter to be evaluated ex officio and at every stage of the lawsuit within the scope of the legal interest as a condition of the lawsuit. With this case-law unification decision, a legal characterization has emerged where the due date is a litigation condition dependent on legal interest. Whether the receivable is due and whether the condition is met require an assessment of the substantive law. In an unseasonable lawsuit, the defendant asserts and proves that the claim is not yet due or that the condition has not yet been fulfilled. Claims regarding the maturity or condition may be asserted through defenses or objections. The ex officio consideration of these periods related to substantive law arises not from the fact that they are procedural conditions of action but from the fact that they have the nature of objections based on merit.Explaining conditional or contingent receivables through the concepts of cause of action and legal benefit may cause problems in terms of enforcement and bankruptcy law. Enforcement law and civil procedural law are two complementary fields. Enforcement law is an extension of civil procedural law. If one accepts conditional receivables or due receivables as a condition of litigation, the enforcement office will have to take the condition and due date into consideration ex officio during the enforcement proceedings.The decision to dismiss an unseasonal lawsuit only involves a determination that the receivable cannot yet be claimed. In an unseasonal lawsuit, the existence or nonexistence of the original receivable is not evaluated. A decision has not yet been made regarding the receivable whose right to be claimed has not yet occurred. Although not applicable to all unseasonal lawsuits, this study has the opinion that a lawsuit that is filed before the condition is realized or before the maturity date has occurred should be dismissed for the time being in terms of receivables subject to condition or maturity. In the case of a claim for a future performance, the claimant’s claim is not yet recognizable, and the claimant must wait until the due date. This decision is no final and definitive rejection of the claim. The dismissal of the lawsuit for the time being is a final procedural decision and not a final definitive rejection of the claim. Therefore, once the condition is fulfilled or the due date has been reached, the lawsuit may be reopened without facing the objection of res judicata. The procedural dismissal of unseasonal cases with a decision of dismissal for the time being will also resolve the issue of whether the attorney’s fee will be fixed or proportional. Because unseasonable lawsuits are generally evaluated based on the concepts of substantive law and not procedural law, the realization of the condition, the arrival of the due date, or the expiration of the period after the lawsuit is filed are considered as new facts. Therefore, after the lawsuit is filed, facts such as the realization of the condition and the maturity or expiration of the term can be asserted by the parties as a rule without being subject to any prohibition regarding changing the claim and/or defense.

Evaluating Unseasonable (Untimely/Early) Litigation Within The Scope of Judicial Decisions

Sümeyye

Articles 659-668 of the Turkish Civil Code No. 4721 (TCC) had regulated the provisions on the sharing of inheritance in inheritance cases involving agricultural lands or agricultural enterprises. However, Law No. 6537 repealed these relevant articles of the TCC and moved the regulations of these cases under the Soil Conservation and Land Use Law No. 5403 (SCLUL). As a rule, immovables are allocated to one of the heirs based on the actual (market, current) value at the time of distributing the inheritance. Inheritance cases involving agricultural lands are an exception, as the property is allocated based on the income value (Art. 657 TCC, Art. 8/C, f. 2/a of the SCLUL). The definition and calculation of the income-based value is not legally regulated but provisions on how to do this are made in the Regulation on the Transfer of Ownership of Agricultural Lands (RTOAL). In 2014, the regulations regarding the TCC provisions on agricultural immovables in SCLUL also detailed the income value basis. In December 2021, many changes were also made to the provisions in RTOAL on how agricultural lands are to be evaluated.The income-based value of agricultural land is often considerably lower than its real (market/fair) value. This study presents solutions to the existing problems regarding how agricultural lands subject to inheritance laws are allocated to heirs based on income evaluations. The difference in value between the income-based evaluation and market value creates a breach of interest, especially for the heirs other than the one to whom the agricultural land is to be allocated. However, this study is of the opinion that this situation should be evaluated within the framework of the purposes for which the income capitalization method was adopted, because applying the value obtained using the income capitalization method is more appropriate with regard to maintaining objectivity, protecting the financial status of the competent heir to whom the agricultural land is allocated, and ensuring in relation to this continuity in the agricultural system. However, adopting the income capitalization method when allocating agricultural lands does not justify the gap that exists between the incomebased value and the market value. In this respect, importance is had in updating the data from the Turkish Statistical Institute (TurkStat) and Ministry over shorter time frames and in increasing the number of academic studies to be conducted in the&nbsp;region in order to determine the correct capitalization interest rate and to evaluate the enhancement factors regarding objective value. In addition, having experts be experts in their field and make comparisons on the market value of a large number of similar agricultural lands based on the market approach and annual net income would be more appropriate in order to create a balance between the income-based and actual market values.The legislation contains no provision limiting a competent heir to whom agricultural land has been allocated from transferring its ownership at market value. In other words, a competent heir who has been allocated agricultural land based on the estimated income value may transfer said land to a third party subject to a barter agreement or put it up as capital in a company. Therefore, this competent heir will be able to obtain as much profit as the difference between the income-based value and the value determined in the relevant agreement under which the obligation to transfer ownership is undertaken. In this context, the claim should be accepted that profit has been purposefully obtained by interpreting the provision of the Law on the increase in value due to non-agricultural use (Art. 8/C/V TKAKK). However, this article is of the opinion that regulating a legislative provision would be more appropriate in which the profit to be obtained due to the transfer of agricultural land by a competent heir can also be claimed by the other heirs in proportion to their inheritance shares.In addition to all these suggestions, legislators should consider giving the outright ownership of agricultural lands to all heirs by granting usufruct rights to the competent heir and deducting the value of the usufruct right from the inheritance share. Choosing this method will both prevent the violation of the interests of other heirs due to agricultural lands not being allocated at their actual market value as well as ensure continuity in agriculture wherein competent heirs actually cultivate the agricultural lands. However, calculating the usufruct value should not be forgotten to also fall within the scope of evaluation. Therefore,the problems that arise when making income-based evaluations will obviously also arise with regard to the acceptance of usufruct rights. In addition, because inheritance shares not being terminated when applying usufruct rights may increase the likelihood of disputes, more problems are likely to occur than when using the income capitalization method. As a result, this study believes that, instead of granting usufruct rights to competent heirs regarding agricultural lands subject to inheritance, allocation should be made based on the value obtained by the income capitalization method within the scope of the solution proposals presented in the study.

Problems with the Income Value Basis in Agricultural Lands Subject to Inheritance

The ambiguity regarding many areas of constitutional law following the 2017 Amendments to the Turkish Constitution is also apparent in lawmaking. Annulling the executive branch’s power to introduce bills has raised questions regarding the executive branch’s role in the initial stages of lawmaking. The purpose of this paper is to clarify some of these issues by presenting and discussing the role of the executive and legislative branches of government in the initial stages of lawmaking (i.e., the preparation of bills).The paper identifies two main services in the initial stages of lawmaking: (i) assistance in obtaining information and conducting research in order to determine the necessity for enacting legislation and (ii) the preparation of draft bills that are technically accurate, that express concepts accurately, and that take into account existing enactments. The evaluation regarding the roles of the two branches of government is limited to these two services, and the study presents two sets of research questions: (i) Which mechanisms does the TBMM have access to in terms of the two services mentioned above, and is the TBMM’s institutional capacity sufficient for carrying out these services adequately? (ii) Has the executive organ been empowered to play a role in bill preparation through these two services as a result of the 2017 Constitutional Amendments, and if so, what are the legal limits to such power?Part I of the paper focuses on the mechanisms that Parliamentarians wield through Parliament. For this purpose, the paper presents and briefly analyzes the different mechanisms through which Parliament can obtain information for determining the necessity of enacting a law under three sections: (i) the constitutional mechanisms for obtaining information, (ii) the powers of the administrative staff of the TBMM&nbsp;&nbsp;in terms of conducting research and obtaining information, and (iii) the mechanisms regarding parliamentary committees. Lastly, the paper presents information on the assistance for legislative drafting as provided by the TBMM administrative staff, along with statistical data.Part II of the paper questions the power the executive organ has to play a role in the preparation of bills and the legal bases for this power. Firstly, the paper explores the legal limits for the sources of bills and the possibilities the executive organ has for producing information and draft legislation. The paper then examines the meaning, extent, and practice regarding the presidential power of recommendation, exploring whether this power can be interpreted as the constitutional foundation of the executive role and its assistance in preparing bills. Part III of the paper examines the regulations on executive drafting before and after the 2017 Constitutional Amendments and questions whether the regulations that are in force encompass legislative drafting in the aftermath of the amendments.Part IV of the paper puts forth the advantages and disadvantages of the executive branch’s involvement in the preparation of bills in the aftermath of the 2017 Constitutional Amendments. The paper identifies uncertainties and problematic issues and presents recommendations. Firstly, the article puts forth the advantages that the executive branch holds and what its participation contributes to the procedure. Secondly, this section identifies the need to regulate the power of recommendation and what the legal limits to such possible regulations are. Furthermore, the article identifies and considers the problems that have been encountered in terms of transparency, as well as the lack of the necessary checks and balances in the current governmental system. Finally, the article evaluates the sufficiency of the TBMM’s institutional capacity regarding personnel infrastructure and its capacity to obtain information and conduct research.

The Role of the Executive and Legislative Branch in the Preparation of Bills in Türkiye Following the 2017 Constitutional Amendments

Gökhan

Assist. Prof. Dr.

The issue of nullifying a judgment is one of the most arguable subjects in criminal procedural law. According to the prevailing opinion in the literature on criminal procedural law, judgments that are afflicted with particularly obvious defects are incapable of producing the intended effects due to consequences contrary to the general structure of criminal procedural law. Recognizing the validity of such judgments is to be refused due to being clearly intolerable for the legal community as a result of the extent and weight of their defects. Nullifying a judgment allows the recognition of a court judgment to be refused, thus allowing everyone (e.g., courts and enforcement authorities) to ignore said judgment without further judicial elimination proceedings. The supporters of this opinion use the term nullification to refer to the absence of the legal effects of a judgment. However, providing an exhaustive list of defects that constitute nullification is impossible.Whether a judgment given by a criminal court may be acceptably deemed to nullified due to the nature of the defects it contains and therefore also be incapable of having any legal consequences is an important issue to explain in terms of the theory of judicial proceedings. In the case of the acceptance of the nullification of a judgment given by an empowered court, apart from the judgment being considered unlawful by classification of the qualification of illegality, questions such as the criteria by which the qualification is made and the persons or authorities who are authorized to make this classification are to be answered in accordance with the criminal procedural system adopting the audit of legal remedy.As a judicial proceeding, judgments appear in the legal world through the occurrence of material, voluntary, and formal conditions. A judgment that contains these conditions legally subsists without having importance to whether its context is legally correct or not or whether it has complied with criminal procedural principles or not. In a criminal procedural system that foreseen an audit of legal remedy, the legal nullification of a judgment may be unaccepted regardless of the qualification of its illegality. An opinion that differs from the foreseen system of criminal procedure regarding the illegality of a judgment and basing this on the inconvenience of a judgment resulting in any legal consequences upon being rendered are undesirable for legal security. In this respect, regardless of the qualification of the illegality of a&nbsp;judgment a judicial authority has handed down, this illegality is to be resolved in an audit of legal remedy.As a result, the Turkish criminal procedural system is not designed to be able to reveal the legal consequences from a judgment being nullified. Due to the principle of legal security, the judgments courts hand down have an essential authority. The illegalities of these are eliminated through the audit of legal remedy, which is the accepted control mechanism in the structural scope of the criminal procedural system. One category is found that indicates how the nullification of a judgment is not predicated in the Criminal Procedural Code. The Criminal Procedural Code does not include nullification with regard to any illegality of judgment; regardless of the qualification of the illegality, the code has decided that all illegalities shall be discussed in an appeal and audit of legal remedy. In this respect and distinct from the illegalities subject to legal remedy, no reasons for nullification can be mentioned that refer to self-invalidity or that have foreseen a criterion of distinction. The category of nullifying a judgment is unnecessary in the Turkish legal system, as it particularly includes the Chief Public Prosecutor Objection and the Reversal in Favor of the Law as extraordinary legal remedies, thus revealing the Turkish legal system to have a more comprehensive system of audit of legal remedy comparted to German criminal procedural law.

The Issue of Nullifying a Judgment in Criminal Procedural Law

Koray

Zoning plans can be said to be technical legal documents composed of written and visual materials for defining the spatial characteristic and functional identity of urban settlements. In the other words, the priority aim of zoning plans is to afford an urban settlement’s spatial, ecological, sociocultural, and economic necessities. Zoning plans are also regulatory documents that assist in making healthy livable settlements.In this context, zoning plans depend on the relationships between legislative knowledge, which is necessarily composed of formal obligations, and the planning criteria and principles of urbanism, which consist of subjective and objective qualifications. Therefore, planning criteria and the principles of urbanism principles can be viewed as the criteria for a subjective and objective review of zoning plans as one of the main tools of regulatory documents regarding property rights.According to the literature on the judicial review of zoning plans, zoning plans are seen to have been examined in terms of plans types, special purpose plans, the hierarchical order between plans and authority, responsible procedures, and the principles of urban planning. The source of these judicial reviews is based on the knowledge of national legislation alongside the status of council decisions regarding the national dimension, as well as internationally on the decisions of the European Court of Human Rights.This paper attempts to determine and detail the context and contents of the planning criteria and principles of urbanism by benefitting from the literature on legislative knowledge, urban planning, and law. In this framework, the study is designed to be a systematic guide regarding planning criteria and the principles of urbanism for resolving disputes related to zoning plans.As a result of this paper, a guide has been created regarding planning criteria and the principles of urbanism composed of seven criteria based on the planning literature and on the legal knowledge of planning criteria and the principles of urbanism. The first criterion entails that zoning plans should be prepared in terms of the eligibility of the planning methods and techniques in the context of legislative obligations and the planning literature. These methods and techniques should be composed of successive stages that involve the design of the scenario, including vision and strategies, survey and analysis, synthesis, planning implementation and monitoring, controls, and revision. These stages are referred to as the spatial planning process in the urbanism literature. The second criterion is that integrity and continuity should exist among a zoning plan’s plan, legend, plan report, and plan notes. This also pertains to the integrity and continuity of plan decisions in the context of land use and the transportation system regarding the density in zoning plans.The third criterion is that zoning plans should provide knowledge on the required details with respect to the function and scale differentiation of the plan. In this framework, the decision contents of zoning plans regarding the different scales and types should show the differences in terms of their scales and types of plans. The fourth criterion states that zoning plans should have a hierarchical order from the upper scale to the lower scale between zoning plans. In the other words, lower scale plans should be prepared in accordance with the upper scale plan’s decisions. The fifth criterion states that the distribution of sociocultural services and technical infrastructure in zoning plans should be balanced and also should meet the sociocultural requirements in the context of legal obligations. The sixth criteria states that zoning plans’ spatial, functional, and demographic decisions should be in accordance with the site-specific conditions of the planning zone. Lastly, the seventh criterion states that all decisions in zoning plans should be objective in terms of how they distribute public services on private property. It is considered that this guide as a criteria set can be contributed subjectively, objectively, and technically to resolving disputes related to zoning plans.

A contribution to the judicial review process of the development plans: A guide proposal for planning criteria and the principles of urbanism

@JOURNAL_BOX_CURRENT

@JOURNAL_BOX_EARLYVIEW

Ayşe

One of the principles that Civil Procedure Law based on is the “dispositional control of the parties principle”. Under this principle, parties’ have the right solve private law disputes according to their dispositions. Under the principle, dispute parties are free to decide choose or not to choose litigation as way of resolution. Principle also covers to end the dispute by an settlement (in principle). One of the dispute ending options under the principle is the parties settlement agreement. Settlement agreement, generally, is an agreement in which parties agree to ending the dispute with mutual compromise. In other words, it can be also defined as an agreement in which parties completely or partially ending the dispute mutually. Settlement agreement, regulated as an stand alone regulation for the first time in the Article 313/1 of the Code of Civil Procedure (CCP) numbered 6100. Under the Article, settlement agreement means that the parties agreement on to ending the dispute completely or partially in an outstanding case. This definition only covers the in-judicial settlement. Because the definition requires a settlement in front of the court. Out of judicial/court settlement is not regulated under the CCP. Because, this kind of settlement fall in the area of the Turkish Code of Obligations. Out of judicial settlement is an agreement out of the court in which the parties agreed to end the dispute completely or partially at mutual interest point they considered. There is no necessity of an outstanding ongoing case process at this point. Additionally, an ongoing trial process would not affect the out of judicial settlement. It is needed a transformation of the out of judicial settlement to an in-judicial settlement to affect an ongoing trial at the same dispute. Out of judicial settlement is an substantive law agreement. This agreement is fall in the provisions (General Provisions) of the Turkish Code of Obligations. Out of judicial settlement agreement is not be need to be made in written because of the “freedom as to form” principle of the Turkish Code of Obligations. If the out of judicial settlement transformed to an in-judicial settlement it could affect an ongoing trial at the same dispute. Parties convey the out of judicial settlement to the court and then court get in record the agreement. After that moment, out of judicial settlement is evaluated as an in-judicial settlement. It is not needed that the whole provisions of the out of judicial settlement to get in recorded in the trial documents. Article 315/1 of the CCP regulates the provisions on effects and solutions of settlement agreements. Under this provisions when the out of judicial settlement transformed to an in-judicial settlement it would has the same legal power and&nbsp;solutions of it. The first solution of this transformation is the ending of existing dispute, in other words ending of the existing court trial. The second important outcome of the in-judicial settlement agreement is that it would have the same legal effect of final court decision. In-judicial settlement has an important another legal effect that it would has the power of the final court decisions under the Enforcement and Bankruptcy Code Article 38. If the out of judicial settlement transformed to an in-judicial settlement it would has the same affect as well.

Out of Judicial Settlement and Its Effect on Trial

Involvement of persons with disabilities in business life is extremely important – just as much as in their access to education and health services - and in their enjoyment of social protection because unemployment makes individuals becoming unemployed feel like they are useless. Involvement of persons with disabilities in business life, and pursuing the same eliminates the social effects caused by the risk of unemployment. In addition, working persons with disabilities benefit from social insurance protection based on their work, and thus a decrease occurs in the expenses made for persons with disabilities from the social security budget. While the policies relevant to persons with disabilities started with passive policies such as protecting persons with disabilities, today they have transformed into active policies such as ensuring the complete participation of persons with disabilities in employment. In Turkey, the number of persons with disabilities recorded on the National Database on Persons with Disabilities is 2.461.828 for the first half of the year 2019. And the rate of participation of persons with disabilities in employment is 22.1 percent. When compared with the data for the EU and OECD, this number is very low. Thus, increasing the participation in employment of persons with disabilities is also among the objectives relevant to business life. When the legal regulations in Turkey are examined, it can be observed that rules relevant to the protection of persons with disabilities have taken place in Constitutional Law for the first time. According to Article 17 of Constitutional Law, everyone has the right to live, and to preserve and improve their material and moral presence. And, according to Article 49 of Constitutional Law, working is everyone’s right and obligation. The government takes the required measures to increase the standard of living of employees, protect the unemployed, and support working. The government’s actualization of this obligation is especially important in terms of persons with disabilities who are experiencing many difficulties in involvement in business life. For this reason, it is required that the government should take special measures for persons with disabilities, and to provide the work environment for them. Hence, in Article 50 of Constitutional Law, it has been emphasized that no one could be employed in works not conforming to their strength, and the rule of “the ones having physical and psychological insufficiency are distinctively protected in terms of working conditions” has been established. And the most basic law regarding persons with disabilities is the Law on Persons with Disabilities no 5378. This law intends that persons with disabilities should benefit from fundamental rights and freedoms, and to ensure their participation in social life under equal conditions with other individuals. Article 30 of Labour Law no 4857 regulates the details relevant to the liability of employers to employ persons&nbsp;with disabilities. Article 30 was regulated again in 2008, and new principles were established regarding the employment of persons with disabilities. In accordance with this, employers employing fifty or more employees in the workplace have to employ a specific number of persons with disabilities. When Article 30 of Labour Law is examined, it is observed that the straightforward quota method has been adopted regarding the employment of persons with disabilities. The quota determined within this scope is three percent for workplaces in the private sector, and four percent for workplaces in the public sector. It is required that the following conditions are present for liability of the employer to employ persons with disabilities to arise : i) The workplace’s inclusion in the scope of Labour Law, or Maritime Labour Law, ii) Employment of fifty or more employees in the workplace. In case of the presence of these conditions, the employers are required to employ persons with disabilities whose rate of disability is at least 40 percent. Persons with disabilities should be employed through the Turkish Employment Agency. But the employer may also employ a person with disabilities through his own means. In this case, it is required to inform the Turkish Employment Agency, and to have the person with disabilities recorded at the Agency. An administrative fine is imposed on the employer acting against the liability of employing persons with disabilities. Another method regarding the employment of persons with disabilities is the concept of sheltered employment. Briefly, this method is ensuring the employment of persons with disabilities – for whom it is difficult to bring them in business life - within the frame of special conditions. In this system, there are sheltered workplaces where the working environment is specifically arranged in order to ensure the employment of persons with disabilities. In Turkish Law, the principles of this subject have been regulated in the Law on Persons with Disabilities, and in a certain regulation issued on this subject. That Regulation first came into force in 2006, and it was renewed in 2013. Persons with disabilities who will be employed at sheltered workplaces, are not only persons with physical disabilities but persons with mental and psychological disabilities. In terms of acquiring the status of a sheltered workplace, some conditions have been sought by the Regulation. Above all, it is required that the workplace is one which holds the qualifications determined by the Regulation, and where at least eight persons with disabilities are employed. In addition, the ratio of the number of persons with disabilities who will be employed at a sheltered workplace to the number of total employees shouldn’t be less than seventy five percent. In the Regulation, the physical conditions and equipment that the sheltered workplace has to have (safety, traffic safety, fire protection etc.) were also specified. A specific part of the remunerations&nbsp;of the persons with disabilities being employed at sheltered workplaces is paid by the government. In Turkish law, amendments made in time in Article 30 of Labour Law being the basis of the liability of employing persons with disabilities, and especially the increase in incentives for the employers in private sector are deemed as proper regulations. Again, allowing the employers to find workers who will be employed by their own means is also among those steps which would facilitate employment. Certainly, considering the measures ensuring employment as incentives rather than a quota and fine method would be a more constructive approach.

The Liability of the Employer to Employ Disabled Employee

@JOURNAL_BOX_FEATURED

Night work has been the subject of many discussions due to its contradictory nature to the biological structure of the human body. This attribute of night work requires that night work and day work should not be handled in the same way in the legal order. The developments in the field of Occupational Health and Safety Law, and the researches regarding the effects of night work on the human health, constantly demand the review and improvement of the regulations regarding night work. In this regard, the most important protective provision regarding the workers working at night could be the limit on the night working time. In accordance with the Article 69 (I) of the Labour Law No. 4857, “night” is defined as the period starting at the latest at 20.00 in the evening, and lasting at the earliest until 06.00 in the morning, which in any case lasts maximum eleven hours. Furthermore, in accordance with Article 69 (III), night work shall not exceed seven and a half hours. However, significant exceptions have been recently adopted to this rule. The amendment, enacted in 2015, allows employers in some sectors (private security, tourism and jobs related to healthcare) to demand night work in excess of seven and a half hours by obtaining written approval from the worker. It should be noted that the regulations concerning night work are particularly important regarding the work carried out by shift work. Taking into consideration the need for governing special procedures and principles on this subject, a regulation specifically on shift work has been issued, and exceptions to the rule on the limit of the night working time are also included in this regulation. In my opinion, the propriety of this change amendment is highly debatable. It can be argued that the service should continue uninterruptedly in the sectors mentioned in the Article (private security, tourism and jobs related to healthcare). However, the employment of the workers for longer periods is not the only way to ensure the continuity of the service. Although written approval of the worker enabling the night work in excess of seven and a half hours is stipulated, the worker-protective approach of the Labour Law which protects the workers even from themselves, especially on the issues regarding occupational health and safety should not be disregarded. It should also be noted that the Regulation on shift work also includes a statement which is not included in the text of the Labour Law. In the Regulation; it is prescribed that the workers employed by the subcontractor in the workplaces, where private security, tourism and health services are carried out, also fall under this scope. If the letter of the statement is followed; it could be concluded that all workers employed by the subcontractor in the health, tourism and private security sectors may be employed at night for more than seven and a half hours. However, it is clear that such an interpretation would be incompatible with the exception regulated in the Labour&nbsp;Law. The provision of the regulation should be interpreted in a manner to cover subcontractor workers who are employed in the sectors referred to in the Labour Law, specifically in cases where subcontracted work is carried out with respect to these sectors. It has been concluded that the recent changes in the field of night work constitute a reversal in terms of workers’ rights. It is clear that the continuity of the services without disruption can be also maintained by increasing the number of shifts. Furthermore, I would like to draw attention to the fact that the regulations regarding night work are quite disorganized. In this regard, it may be suggested that all the rules regarding night work should fall into a single regulation. As a result, it may be stated that there is a need for the review of the regulations on night work in our legislation.

Night Work and The Evaluation of the Amendments Regarding the Limit of Night Work Period

Cemile

This article deals with multi-tier dispute resolution clauses incorporating both mediation and arbitration together under Turkish Law. I use the terminology of “med-arb” not only for the situation where the mediator acts as an arbitrator, but rather in a general meaning covering all instances where the arbitration is commenced following an unsuccessful mediation. The purpose of this article is to discuss the validity of the med-arb agreements, the consequences of starting arbitration before the mediation fails, the effects of the mediation proceedings and of the mediator acting as an arbitrator on the arbitration that follows the mediation as well as the admissibility of the documents and factual evidence exchanged at the mediation. For the purpose of this article, the comparative laws, international ethics rules, international guidelines on the conflict of interest and admissibility of evidence are reviewed along with Turkish law. Turkish Code on Mediation in Civil Law Disputes stipulates some provisions related to the med-arb. These provisions shall apply equally to both domestic and international arbitrations where the place of arbitration is Turkey. Following the jurisprudence of the Turkish Supreme Court, a med-arb agreement is valid only if it reflects, without doubt, both parties’ consents to the arbitration following the failure of the mediation proceedings. Therefore, a multi-tier dispute resolution clause subject to Turkish law needs to be drawn carefully. In this respect IBA Guidelines for Drafting International Arbitration Clauses are of assistance. In cases where one of the parties commences arbitration without a recourse to mediation first, the arbitral tribunal should make a decision on the admissibility of the claim. There is no direct provision related to the question of admissibility under Turkish law. Under Turkish law, in parallel with the practice of international arbitration, the tribunal has to interpret the med-arb agreement to make a decision on the question of whether the recourse to mediation is a pre-condition of the arbitration. If the mediation is a pre-condition, then the tribunal should suspend the arbitral&nbsp;proceedings and direct the parties to the mediation. However, in the case that the mediation fails, the tribunal may resume the arbitral proceedings. There is nothing under Turkish law suggesting that a precondition of arbitration is a jurisdictional issue rather than an admissibility issue. The advantages of the med-arb are subject to heated debates among people holding different perspectives. Such advantages are controversial since when a dispute arises and the arbitration starts without a recourse to mediation, the respondent may object to the jurisdiction of the tribunal or to the admissibility of the claim relying on the fact that the pre-condition to try mediation first is not met. Such an objection may cause arbitration to be delayed and/or the costs of arbitration to increase. Therefore, before opting for a med-arb agreement the parties should evaluate the possibility of settling their dispute at the Med-arb. The parties who are able to consider their commercial interests do not need a med-arb agreement as they are able to settle the disputes without the assistance of a mediator. They first try to settle the dispute, in some cases for years, and to avoid adjudication by an arbitral tribunal. They only start arbitration when there is no possibility of settlement of their dispute and of saving their commercial alliance. In such cases, med-arb agreements become a tool to delay the proceedings and increase the costs for the claimant to force him or her to give up his or her claim. Having said that, for the parties who are unable to consider their commercial interest and unable to avoid adjudication, med-arb agreement may be the right dispute resolution clause. In a med-arb agreement, the parties may wish the mediator to act as their arbitrator if the mediation fails. Neither the Turkish Code of Mediation in Civil Disputes nor the Turkish International Arbitration Code prevents a mediator to act as an arbitrator. Turkish Ethics Rules for Mediators stipulate that a mediator may act as an arbitrator only if the parties have agreement in writing. Therefore, any mediator to act as arbitrator needs to have the parties’ written consent. In international mediation and arbitration practices, the scholars and practitioners widely accept that having an arbitrator who previously acted as a mediator generates a number of serious risks and concerns. First of all, the mediator-arbitrator may not protect his or her impartiality in the arbitration because of the facts that she or he became aware of during the mediation. Secondly, the mediator-arbitrator may rely on the confidential information exchanged in caucus while making the award. Thirdly, the mediator may be too willing to act as an arbitrator and as a result the mediation may prematurely fail. Finally, the mediator may abuse his or her powers and force the parties to settle their disputes as the mediator suggests. The parties may feel that if they are not able to settle their dispute and proceed to the arbitration, the mediator-arbitrator would make an arbitral award in parallel of the recommendations at the mediation phase. Considering the severity of the consequences, if the parties agree to have an arbitrator&nbsp;who previously acted as their mediator, they need to be aware of such consequences and they need to make an informed decision accordingly . The Turkish Code of Mediation in Civil Law Disputes restrains the ability of the mediator-arbitrator to rely on the documents produced during the mediation for the purpose of settlement and defines which documents are in this category. In the case where the mediator-arbitrator relies on these documents while making the award, depending on the extent the document or information has a bearing on the award, the arbitral award may be cancelled, or its enforcement may be refused. In November 2019, Istanbul Arbitration Center (ISTAC) introduced its Medarb Rules. ISTAC Med-arb Rules are the first published institutional Med-arb rules. ISTAC Med-arb Rules reflect the best practices in international mediation – arbitration. I believe that ISTAC Med-arb Rules will be welcomed in the field of international dispute resolution.

Multi-Tier Dispute Resolution Clauses Incorporating Both Mediation and Arbitration Together Under Turkish Law

@JOURNAL_BOX_MOSTREAD

Istanbul Law Review is a publication of Istanbul University, Faculty of Law.  

Istanbul Law Review is a quarterly, academic, peer reviewed journal which publishes articles in Turkish and English. Istanbul Law Review publishes articles, judicial reviews, legislation analysis’, publication criticism, translations which involves in law and law related subjects, and are based on genuine theoretical and practical academic research and suitable for national and international scale.

Istanbul Law Review involves in publications which are (i) capable of expanding theory and enhancing theoretical basis, (ii) analyzing either academic or judicial methodology, (iii) scrutinizing legal theory, practice, process, symbols etc. effecting society on private or public levels, (iv) exploring the subject in legal, sociological, political, psychological, philosophical, ethical, geographical and historical manner.

All expenses of the journal are covered by the Istanbul University. Processing and publication are free of charge with the journal. There is no article processing charges or submission fees for any submitted or accepted articles.

Fethi

Emerging Sources Citation Index (ESCI)

EBSCO

ERIH PLUS

TR Dizin

DOAJ

SOBIAD

@METRIC_VOLUMES

@METRIC_ISSUES

@METRIC_ARTICLES

@METRIC_OPENACCESS

Istanbul Law Review

@INFO_TAB_ABOUT

Editor in Chief

Co Editor in Chief

Editorial Assistant

Language Editor

Editor

@INFO_TAB_BOARDS

Istanbul Law Review is a quarterly, academic, peer reviewed journal which publishes articles in Turkish and English. Istanbul Law Review publishes articles, judicial reviews, legislation analysis’, publication criticism, translations which involves in law and law related subjects, and are based on genuine theoretical and practical academic research and suitable for national and international scale.Istanbul Law Review involves in publications which are (i) capable of expanding theory and enhancing theoretical basis, (ii) analyzing either academic or judicial methodology, (iii) scrutinizing legal theory, practice, process, symbols etc. effecting society on private or public levels, (iv) exploring the subject in legal, sociological, political, psychological, philosophical, ethical, geographical and historical manner.In this frame, primary fields of interest are listed as follows:• Human rights law,• Criminal law,• Financial and fiscal law,• Civil law,• Commercial law,• Obligations law,• Execution and bankruptcy law

Aim and Scope

Web of Science - Emerging Sources Citation Index (ESCI)TÜBİTAK-ULAKBİM TR Index EBSCO Central &amp; Eastern European Academic SourceEBSCO Legal SourceDOAJERIH PLUSSOBİAD

Indexing and Abstracting

The journal is committed to upholding the highest standards of publication ethics and pays regard to Principles of Transparency and Best Practice in Scholarly Publishing published by the <a href="https://publicationethics.org/" target="_blank">Committee on Publication Ethics (COPE)</a>, the <a href="https://doaj.org/apply/transparency/#principles-of-transparency-and-best-practice-in-scholarly-publishing" target="_blank">Directory of Open Access Journals (DOAJ)</a>, the <a href="https://oaspa.org/" target="_blank">Open Access Scholarly Publishers Association (OASPA)</a>, and the <a href="https://www.wame.org/" target="_blank">World Association of Medical Editors (WAME)</a> on <a href="https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing" target="_blank">https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing</a> The subjects covered in the manuscripts submitted to the Journal for publication must be in accordance with the aim and scope of the Journal. Only those manuscripts approved by every individual author and that were not published before in or sent to another journal, are accepted for evaluation.Changing the name of an author (omission, addition or order) in papers submitted to the Journal requires written permission of all declared authors.Plagiarism, duplication, fraud authorship/denied authorship, research/data fabrication, salami slicing/salami publication, breaching of copyrights, prevailing conflict of interest are unethical behaviors. All manuscripts not in accordance with the accepted ethical standards will be removed from the publication. This also contains any possible malpractice discovered after the publication. Plagiarism Submitted manuscripts that pass preliminary control are scanned for plagiarism using iThenticate software. If plagiarism/self-plagiarism will be found authors will be informed. Editors may resubmit manuscript for similarity check at any peer-review or production stage if required. High similarity scores may lead to rejection of a manuscript before and even after acceptance. Depending on the type of article and the percentage of similarity score taken from each article, the overall similarity score is generally expected to be less than 15 or 20%. Double Blind Peer-Review After plagiarism check, the eligible ones are evaluated by the editors-in-chief for their originality, methodology, the importance of the subject covered and compliance with the journal scope. The editor provides a fair double-blind peer review of the submitted articles and hands over the papers matching the formal rules to at least two national/international referees for evaluation and gives green light for publication upon modification by the authors in accordance with the referees’ claims.

Policies

The journal is an open access journal and all content is freely available without charge to the user or his/her institution. Except for commercial purposes, users are allowed to read, download, copy, print, search, or link to the full texts of the articles in this journal without asking prior permission from the publisher or the author. This is in accordance with the <a href="https://www.budapestopenaccessinitiative.org/read" target="_blank">BOAI</a> definition of open access.The open access articles in the journal are licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (<a href="https://creativecommons.org/licenses/by-nc/4.0/deed.en" target="_blank">CC BY-NC 4.0</a>) license.

All expenses of the journal are covered by the Istanbul University. Processing and publication are free of charge with the journal. There is no article processing charges or submission fees for any submitted or accepted articles.

Authors publishing with the journal retain the copyright to their work licensed under the Creative Commons Attribution-NonCommercial 4.0 International license (<a href="https://creativecommons.org/licenses/by-nc/4.0/" target="_blank">CC BY-NC 4.0</a>) (<a href="https://creativecommons.org/licenses/by-nc/4.0/" target="_blank">https://creativecommons.org/licenses/by-nc/4.0/</a> ) and grant the Publisher non-exclusive commercial right to publish the work. CC BY-NC 4.0 license permits unrestricted, non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Editor should consider publishing correction if minor errors that do not effect the results, interpretations and conclusions of the published paper are detected. Editor should consider retraction if major errors and/or misconduction that invalidate results and conclusions are detected.Editor should consider issuing an expression of concern if there is evidence of research or publication misconduct by the authors; there is evidence that the findings are not reliable and institutions of the authors do not investigate the case or the possible investigation seems to be unfair or nonconclusive. The guidelines of <a href="https://publicationethics.org/resources/flowcharts/complete-set-english" target="_blank">COPE</a> and <a href="https://www.icmje.org/recommendations/" target="_blank">ICJME</a> are taken into consideration regarding correction, retractions or expression of concern.

To guarantee that all papers published in the journal are maintained and permanently accessible, articles are stored in Dergipark which serves as a  national archival web site and at the same time permits LOCKSS to  collect, preserve, and serve the content.Additionally, authors are encouraged to self-archive the final PDF version of their articles in open electronic archives with  that conform to standards of Open Archives Initiative (<a href="https://www.openarchives.org/" target="_blank">https://www.openarchives.org/</a>). Authors should provide a link from the deposited version to the URL of IUPress journal website.

Istanbul Law Review is committed to upholding the highest standards of publication ethics and pays regard to Principles of Transparency and Best Practice in Scholarly Publishing published by the <a href="https://publicationethics.org/" target="_blank">Committee on Publication Ethics (COPE)</a>, the <a href="https://doaj.org/apply/transparency/#principles-of-transparency-and-best-practice-in-scholarly-publishing" target="_blank">Directory of Open Access Journals (DOAJ)</a>, the <a href="https://oaspa.org/" target="_blank">Open Access Scholarly Publishers Association (OASPA)</a>, and the <a href="https://www.wame.org/" target="_blank">World Association of Medical Editors (WAME)</a> on <a href="https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing" target="_blank">https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishing</a>All parties involved in the publishing process (Editors, Reviewers, Authors and Publishers) are expected to agree on the following ethical principles.All submissions must be original, unpublished (including as full text in conference proceedings), and not under the review of any other publication synchronously. Each manuscript is reviewed by one of the editors and at least two referees under double-blind peer review process. Plagiarism, duplication, fraud authorship/denied authorship, research/data fabrication, salami slicing/salami publication, breaching of copyrights, prevailing conflict of interest are unnethical behaviors.All manuscripts not in accordance with the accepted ethical standards will be removed from the publication. This also contains any possible malpractice discovered after the publication. In accordance with the code of conduct we will report any cases of suspected plagiarism or duplicate publishing.

Ethics

<div>The journal adheres to the highest standards in research ethics and follows the principles of international research ethics as defined below. The authors are responsible for the compliance of the manuscripts with the ethical rules.- Principles of integrity, quality and transparency should be sustained in designing the research, reviewing the design and conducting the research.- The research team and participants should be fully informed about the aim, methods, possible uses and requirements of the research and risks of participation in research.- The confidentiality of the information provided by the research participants and the confidentiality of the respondents should be ensured. The research should be designed to protect the autonomy and dignity of the participants.- Research participants should participate in the research voluntarily, not under any coercion.- Any possible harm to participants must be avoided. The research should be planned in such a way that the participants are not at risk.- The independence of research must be clear; and any conflict of interest or must be disclosed.- In experimental studies with human subjects, written informed consent of the participants who decide to participate in the research must be obtained. In the case of children and those under wardship or with confirmed insanity, legal custodian’s assent must be obtained.- If the study is to be carried out in any institution or organization, approval must be obtained from this institution or organization.- In studies with human subject, it must be noted in the method’s section of the manuscript that the informed consent of the participants and ethics committee approval from the institution where the study has been conducted have been obtained.</div>

It is authors’ responsibility to ensure that the article is in accordance with scientific and ethical standards and rules. And authors must ensure that submitted work is original. They must certify that the manuscript has not previously been published elsewhere or is not currently being considered for publication elsewhere, in any language. Applicable copyright laws and conventions must be followed. Copyright material (e.g. tables, figures or extensive quotations) must be reproduced only with appropriate permission and acknowledgement. Any work or words of other authors, contributors, or sources must be appropriately credited and referenced.All the authors of a submitted manuscript must have direct scientific and academic contribution to the manuscript. The author(s) of the original research articles is defined as a person who is significantly involved in “conceptualization and design of the study”, “collecting the data”, “analyzing the data”, “writing the manuscript”, “reviewing the manuscript with a critical perspective” and “planning/conducting the study of the manuscript and/or revising it”. Fund raising, data collection or supervision of the research group are not sufficient roles to be accepted as an author. The author(s) must meet all these criteria described above. The order of names in the author list of an article must be a co-decision and it must be indicated in the <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/BD7F3551BBE543F7A0E7628427A827AE" target="_blank">Copyright Agreement Form.</a> The individuals who do not meet the authorship criteria but contributed to the study must take place in the acknowledgement section. Individuals providing technical support, assisting writing, providing a general support, providing material or financial support are examples to be indicated in acknowledgement section.All authors must disclose all issues concerning financial relationship, conflict of interest, and competing interest that may potentially influence the results of the research or scientific judgment.When an author discovers a significant error or inaccuracy in his/her own published paper, it is the author’s obligation to promptly cooperate with the Editor to provide retractions or corrections of mistakes.

Editor-in-Chief evaluates manuscripts for their scientific content without regard to ethnic origin, gender, sexual orientation, citizenship, religious belief or political philosophy of the authors. He/She provides a fair double-blind peer review of the submitted articles for publication and ensures that all the information related to submitted manuscripts is kept as confidential before publishing.Editor-in-Chief is responsible for the contents and overall quality of the publication. He/She must publish errata pages or make corrections when needed.Editor-in-Chief does not allow any conflicts of interest between the authors, editors and reviewers. Only he has the full authority to assign a reviewer and is responsible for final decision for publication of the manuscripts in the Journal.Reviewers must have no conflict of interest with respect to the research, the authors and/or the research funders. Their judgments must be objective.Reviewers must ensure that all the information related to submitted manuscripts is kept as confidential and must report to the editor if they are aware of copyright infringement and plagiarism on the author’s side.A reviewer who feels unqualified to review the topic of a manuscript or knows that its prompt review will be impossible should notify the editor and excuse himself from the review process.The editor informs the reviewers that the manuscripts are confidential information and that this is a privileged interaction. The reviewers and editorial board cannot discuss the manuscripts with other persons. The anonymity of the referees must be ensured. In particular situations, the editor may share the review of one reviewer with other reviewers to clarify a particular point.

Only those manuscripts approved by its every individual author and that were not published before in or sent to another journal, are accepted for evaluation.Submitted manuscripts that pass preliminary control are scanned for plagiarism using iThenticate software. After plagiarism check, the eligible ones are evaluated by editor-in-chief for their originality, methodology, the importance of the subject covered and compliance with the journal scope.The editor hands over the papers matching the formal rules to at least two national/international referees for double-blind peer review evaluation and gives green light for publication upon modification by the authors in accordance with the referees’ claims.

Peer Review

Only those manuscripts approved by its every individual author and that were not published before in or sent to another journal, are accepted for evaluation.Submitted manuscripts that pass preliminary control are scanned for plagiarism using iThenticate software. After plagiarism check, the eligible ones are evaluated by Editor-in-Chief for their originality, methodology, the importance of the subject covered and compliance with the journal scope. Editor-in-Chief evaluates manuscripts for their scientific content without regard to ethnic origin, gender, sexual orientation, citizenship, religious belief or political philosophy of the authors and ensures a fair double-blind peer review of the selected manuscripts.The selected manuscripts are sent to at least two national/international external referees for evaluation and publication decision is given by Editor-in-Chief upon modification by the authors in accordance with the referees’ claims.Editor-in-Chief does not allow any conflicts of interest between the authors, editors and reviewers and is responsible for final decision for publication of the manuscripts in the Journal.Reviewers’ judgments must be objective. Reviewers’ comments on the following aspects are expected while conducting the review.- Does the manuscript contain new and significant information?- Does the abstract clearly and accurately describe the content of the manuscript?- Is the problem significant and concisely stated?- Are the methods described comprehensively?- Are the interpretations and consclusions justified by the results?- Is adequate references made to other Works in the field?- Is the language acceptable?Reviewers must ensure that all the information related to submitted manuscripts is kept as confidential and must report to the editor if they are aware of copyright infringement and plagiarism on the author’s side.A reviewer who feels unqualified to review the topic of a manuscript or knows that its prompt review will be impossible should notify the editor and excuse himself from the review process.The editor informs the reviewers that the manuscripts are confidential information and that this is a privileged interaction. The reviewers and editorial board cannot discuss the manuscripts with other persons. The anonymity of the referees is important.

1. Istanbul Law Review is a peer reviewed Journal that is published four times a year (in March, June, September and December) and indexed by ESCI and ULAKBİM.2. The articles sent to be published in our journal should not be published elsewhere, not be submitted to other journals simultaneously even with the purpose of evaluation. In this purpose, the authors shall also be reguired to sign a letter of undertaking. 3. Articles that are considered as unsuitable with the publication principles by the Editorial Board are sent back to the author without review. It is sufficient for the article to be rejected by the Editorial Board if the spelling errors are extraordinary, the domestic and foreign resources required for the subject being examined are not utilized, the scientific criteria academic ethical principles are not complied with, the article subject does not have an up-to-date significance in terms of theory and-or practice. 4. Before the article is sent to the referees, it is subjected to plagiarism examination withthe help of special computer programs. If the digital similarity rate is above 20%, it is sufficient for the rejection of the article within the scope of the editorial review of the related software report. 5. The article to be published in the journal must be written following the highest academic standards. In this context, intellectual background and effort at the level of doctoral or associate professorship thesis are expected from the authors. 6. Papers that are approved by the Editorial Board are submitted to reviewers in line with blind peer review principle. Authors are not informed about the identity of the referees. According to the assessments of the referees, the paper may be approved for publication, required to resubmission with amendments or rejected on the basis of inadequate quality. The referee phase does not have a minimum or maximum duration. The follow-up of this issue is a duty and authority exclusively belonging to the Editorial Board. 7. As a result of the referee reports, the final discretion and responsibility regarding whether the article will be finally published and if it will be published, in which issue of the Journal, the editorial board is responsible. The existence of a single rejectionnegative referee report is sufficient to prevent the article from being published. 8. The completion of the referee stage does not give authors the authority to request a private or official document indicating that the article will be published. The authors, with the awareness and responsibility of this issue, apply for their articles to be published in Istanbul Law Review and to be subjected to peer review. 9. Authors, must provide their titles, institutions, correspondence address, phone number and e-mail address. 10. The Review accepts and publishes articles written in Turkish and English. The articles must include Turkish and English abstracts consisting of at least 250 and at most 300 words and at least five and at most fifteen keywords must be added to the paper in Turkish and English languages. Following the abstracts, there must also be an extended summary of 600-800 words for all the articles both in English and Turkish. The article subject to the publication application must contain a maximum of 20,000 words, including footnotes. There is no minimum word limit. 11. The main text and footnotes must be written in Times New Roman. Font size for the main text should be 12 with 1,5 line spacing while footnotes are written in font size 10 with 1 line spacing. Footnotes are to be shown at the bottom of the page. Citations must be made based on the OSCOLA citation system. Otherwise, the article is sent back to the author to make corrections without a referee assignment. Abbreviations and other issues in Turkish articles must be made following the announced spelling rules. The mentioned citation rules can be accessed at https://dergipark.org.tr/tr/pub/ihm. 12. Author’s name must be written bottom right of the Turkish and English title of the paper and should end with a star symbol. Star footnote should consists of title and institution of the author and correspondence address, phone number and e- mail address. 13. The article must consist of a bibliography at the end and references need to be arranged in alphabetical order.14. To be limited with the copies published by the Faculty; financial rights regarding reproduction, distribution, public performance, derivative works and translation of the papers which are approved for publication are to be transferred to the faculty to be used on the print, auditory, digital etc. media, nationwide and worldwide. Authors accept not to receive any royalty payment.15. Besides articles, also translations may be published in the accepted languages. These papers might be approved or rejected by the Editorial Board. Original text of the translation and consent of the rightful owner are also should be enclosed with the translation. Translations are also subject to the assessment of reviewers.16. Papers should be sent to iuhfdergiler@istanbul.edu.tr in Microsoft Word (*.doc, *.docx) file type.17. Only one article of an applicant in the same publication year (4 issues) could be subject to peer review.18. The Editorial Board determines the articles to be included in one issue of the journal by considering criteria such as the purpose of maintaining the balance of Private LawPublic Law, the date of submission of the article to the Journal, the date of completion of the referee stage, the timeliness of the article subject, and the proportional balance on whether the authors are members of Istanbul University.19. The Editorial Board makes the utmost effort to publish all issues with the same number of articles as possible. An article that has completed all the necessary steps for publication, including the layout stage, as of the date of publication of an issue, could not be published in the relevant issue in terms of the number of articles, however, after a certain period after the relevant issue, within the framework of the system called Online-First it is published digitally before the issue is released.

Author Guidelines

Before beginning the online submission process please read the Information for Authors and make sure you have the followings available:Article submissions should be submitted directly to the e-mail address <a href="mailto:iuhfdergiler@istanbul.edu.tr" target="_blank">iuhfdergiler@istanbul.edu.tr</a>Cover letter to the editor<ul type="disc"> <ul type="circle"> <li>The category of the manuscript</li> <li>Confirming that “the paper is not under consideration for publication in another journal”.</li> <li>Including disclosure of any commercial or financial involvement.</li> <li>Confirming that the statistical design of the research article is reviewed.</li> <li>Confirming that last control for fluent English was done.</li> <li>Confirming that journal policies detailed in Information for Authors have been reviewed.</li> <li>Confirming that the references cited in the text and listed in the references section are in line with OSCOLA.</li> </ul> </ul><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/BD7F3551BBE543F7A0E7628427A827AE" target="_blank">Copyright Agreement Form</a>Permission of previous published material if used in the present manuscript<a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/6444C75BA6B344EBB1496510B0BAF8A3" target="_blank">Title page</a><ul type="disc"> <ul type="circle"> <li>The category of the manuscript</li> <li>The title of the manuscript both in the languge of the manuscript and in English</li> <li>All authors’ names and affiliations (institution, faculty/department, city, country), e-mail addresses</li> <li>Corresponding author’s email address, full postal address, telephone and fax number</li> <li>ORCIDs of all authors.</li> </ul> </ul>Main Manuscript Document<ul type="disc"> <ul type="circle"> <li>The title of the manuscript both in the language of manuscript and in English</li> <li>Abstracts: 250-30 words</li> <li>Key words: 5-15 words </li> <li>Extended Abstract (600-1000 words) in English (for the articles which are not in English)</li> <li>Main article sections</li> <li>Grant Support (if exists)</li> <li>Conflict of Interest (if exists)</li> <li>Acknowledgement (if exits)</li> <li>References</li> <li>All tables, illustrations (figures) (including title, description, footnotes)</li> </ul> </ul>

Although references to review articles can be an efficient way to guide readers to a body of literature, review articles do not always reflect original work accurately. Readers should therefore be provided with direct references to original research sources whenever possible. On the other hand, extensive lists of references to original work on a topic can use excessive space on the printed page. Small numbers of references to key original papers often serve as well as more exhaustive lists, particularly since references can now be added to the electronic version of published papers, and since electronic literature searching allows readers to retrieve published literature efficiently. Papers accepted but not yet included in the issue are published online in the Early View section and they should be cited as “advance online publication”. Citing a “personal communication” should be avoided unless it provides essential information not available from a public source, in which case the name of the person and date of communication should be cited in parentheses in the text. For scientific articles, written permission and confirmation of accuracy from the source of a personal communication must be obtained.Reference Style and FormatIstanbul Law Review offers referencing style OSCOLA. OSCOLA (Oxford Standard for the Citation of Legal Authorities) is published by the University of Oxford and detail and examples about the style can be found at https://www.law.ox.ac.uk/research-subject-groups/publications/oscolaOSCOLA Reference ExamplesPrimary SourcesDo not use full stops in abbreviations. Separate citations with a semi-colon.CasesGive the party names, followed by the neutral citation, followed by the Law Reports citation (eg AC, Ch, QB). If there is no neutral citation, give the Law Reports citation followed by the court in brackets. If the case is not reported in the Law Reports, cite the All ER or the WLR, or failing that a specialist report.Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] 1 AC 884.R (Roberts) v Parole Board [2004] EWCA Civ 1031, [2005] QB 410.Page v Smith [1996] AC 155 (HL).When pinpointing, give paragraph numbers in square brackets at the end of the citation. If the judgment has no paragraph numbers, provide the page number pinpoint after the court.Callery v Gray [2001] EWCA Civ 1117, [2001] 1 WLR 2112 [42], [45].Bunt v Tilley [2006] EWHC 407 (QB), [2006] 3 All ER 336 [1]–[37].R v Leeds County Court, ex p Morris [1990] QB 523 (QB) 530–31.If citing a particular judge:Arscott v The Coal Authority [2004] EWCA Civ 892, [2005] Env LR 6 [27] (Laws LJ).Statutes and statutory instrumentsAct of Supremacy 1558.Human Rights Act 1998, s 15(1)(b).Penalties for Disorderly Behaviour (Amendment of Minimum Age) Order 2004, SI 2004/3166.EU legislation and casesConsolidated Version of the Treaty on European Union [2008] OJ C115/13.Council Regulation (EC) 139/2004 on the control of concentrations between undertakings(EC Merger Regulation) [2004] OJ L24/1, art 5.Case C–176/03 Commission v Council [2005] ECR I–7879, paras 47–48.European Court of Human RightsOmojudi v UK (2009) 51 EHRR 10.Osman v UK ECHR 1998–VIII 3124.Balogh v Hungary App no 47940/99 (ECHR, 20 July 2004).Simpson v UK (1989) 64 DR 188.Secondary SourcesBooksGive the author’s name in the same form as in the publication, except in bibliographies, where you should give only the surname followed by the initial(s). Give relevant information about editions, translators and so forth before the publisher, and give page numbers at the end of the citation, after the brackets.Thomas Hobbes, Leviathan (first published 1651, Penguin 1985) 268.Gareth Jones, Goff and Jones: The Law of Restitution (1st supp, 7th edn, Sweet &amp; Maxwell 2009).K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998).Contributions to edited booksFrancis Rose, ‘The Evolution of the Species’ in Andrew Burrows and Alan Rodger (eds),Mapping the Law: Essays in Memory of Peter Birks (OUP 2006).EncyclopediasHalsbury’s Laws (5th edn, 2010) vol 57, para 53.Journal articlesPaul Craig, ‘Theory, “Pure Theory” and Values in Public Law’ [2005] PL 440.When pinpointing, put a comma between the first page of the article and the page pinpoint.JAG Griffith, ‘The Common Law and the Political Constitution’(2001) 117 LQR 42, 64.Online journalsGraham Greenleaf, ‘The Global Development of Free Access to Legal Information’ (2010)1(1) EJLT &lt; http://ejlt.org//article/view/17 &gt; accessed 27 July 2010.Command papers and Law Commission reportsDepartment for International Development, Eliminating World Poverty: Building our Common Future (White Paper, Cm 7656, 2009) ch 5.Law Commission, Reforming Bribery (Law Com No 313, 2008) paras 3.12–3.17.Websites and blogsSarah Cole, ‘Virtual Friend Fires Employee’ (Naked Law, 1 May 2009)&lt;www.nakedlaw.com/2009/05/index.html&gt; accessed 19 November 2009.Newspaper articlesJane Croft, ‘Supreme Court Warns on Quality’ Financial Times (London, 1 July 2010) 3.

<div><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/2BB9074E09174E55BE3CA4941309A672" target="_blank">Copyright Agreement Form</a><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/F6FB8940C9B54CC08CDC740CCFC6B8F3" target="_blank">Title Page</a></div>

<div>Ensure that the following items are present:● Cover letter to the editor<ul><li>The category of the manuscript</li><li>Confirming that “the paper is not under consideration for publication in another journal”.</li><li>Including disclosure of any commercial or financial involvement.</li><li>Confirming that the statistical design of the research article is reviewed.</li><li>Confirming that last control for fluent English was done.</li><li>Confirming that journal policies detailed in Information for Authors have been reviewed.</li><li>Confirming that the references cited in the text and listed in the references section are in line with OSCOLA</li></ul>● <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/BD7F3551BBE543F7A0E7628427A827AE" target="_blank">Copyright Agreement Form</a>● Permission of previously published copyrighted material if used in the present manuscript● <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/D4FC914AF17F43D6A40E18412A5E6731" target="_blank">Title page</a><ul><li>The category of the manuscript</li><li>The title of the manuscript</li><li>All authors’ names and affiliations (institution, faculty/department, city, country), e-mail addresses</li><li>Corresponding author’s email address, full postal address, telephone and fax number</li><li>ORCIDs of all authors.</li></ul>● Main Manuscript Document<ul><li>The title of the manuscript</li><li>Abstract: 250-300 words</li><li>Extended Summary (600-1000 words) in English for the articles which are not in English </li><li>Key words: 5-15 words</li><li>Main article sections</li><li>Grant support (if exists)</li><li>Conflict of interest (if exists)</li><li>Acknowledgement (if exists)</li><li>References</li><li>All tables, illustrations (figures) (including title, description, footnotes)</li></ul>​</div>

Issue Type	Regular
Editor(s)	Abuzer Kendigelen, Ali Paslı
Cover (PDF)
Full Text (PDF)
Front Pages (PDF)