Aydın

Res. Assist.

Technology and law are two substantial components that take form in regard to human needs and occupy indispensable places in human life. It is beyond dispute that these two elements influence each other according to human needs. Beginning from the later past, the crypto cash marvel, which has influenced the entire world, is really a result of other progressed innovations, particularly blockchain. These progressed advances have moreover appeared their affect within the field of law, and the German legislator has interceded in this field in terms of the system of electronic securities.Innovative technologies, particularly the blockchain innovation, which has influenced the entire world since the later past and made a unused slant in investment, have moreover appeared their impact within the field of law. The German legislator points to apply these innovations within the field of debatable instruments law in arrange to protect the attractiveness of the venture environment in this nation. To this conclusion, the German Electronic Securities Code (eWpG) dated 16 June 2021 has been published.The eWpG arrangements basically present two sorts of electronic securities, which cover bearer bonds. One of them is of the sort traced by a central registry, and the other is of the sort followed by a decentralized registry built up by utilizing blockchain innovation.eWpG, in spite of the fact that it appears like a framework arrangement, is a content that deals with the subject in all its lines. In this content, there are point by point directions on numerous issues like how possible is the transfer of electronic negotiable instruments by the holder and his instructions to the central registry and what kind of negotiable instruments can be arranged electronically and who can be the drawer and recipient.When the eWpG framework is examined, it is seen that it is really a bridge course of action for the long run. Because, only bearer bonds were included within the Code. It is additionally expressed within the justification of the Draft that it is too early for valuable papers other than that (particularly joint stock company shares). The Code moreover has an objective perspective in terms of its approach to innovation. Whereas taking under consideration the foremost up-to-date conceivable outcomes of current innovation, precautions have been presented to cover future innovations as well.What incited the German legislator to present the eWpG is the technical and legitimate progresses in this direction within the encompassing nations. It is incomprehensible for Turkey that needs to be integrated into the world to remain away from these improvements. Within the close future, it is inescapable that all current innovative opportunities, particularly blockchain innovation, will influence the economy and law.Based on the possibility of dematerialization of capital market instruments in our legal system, it cannot be said that our country is totally new with improvements in this course. On the opposite, very as of late, regulations have been made to monitor the bearer share certificates of non-public joint stock companies some time recently by MKK. In any case, this advancement does not require the total abandonment of the paper form as within the eWpG provisions. Be that as it may, both within the field of negotiable instruments law and within the field of corporate law, the paper form ought to be abandoned on the grounds of guaranteeing exchange security and ensuring investor security.In this study, to begin with of all, eWpG provisions were examined in detail in a systematic way. This research and analysis has been carried out by taking into account the most up-to-date scientific studies in both Turkish and German law. In addition to that, it is focused on how the digitalization wind, which too revealed the eWpG regulation, will have impacts on Turkish corporate law and debatable instruments law.&nbsp;

Thoughts on German Electronic Securities Code (eWpG) Dated 9 June 2021

Nihan

TMK Art 166/III regulates special grounds in mutual consent divorces. The Article mandates that with the presence of both parties’ consensus (or acceptance of the claim by the other party) the marriage shall be deemed as it has been irretrievably broken. The presumption prohibits judges from making further examinations, such as if the marriage is in fact broken or if the parties have a fault. The judge shall pronounce the divorce if the Article’s conditions are met.&nbsp;One of the conditions is the judge’s approval of the spousal agreement. Precisely, TMK Art 166/III requires that both spouses agree on the financial consequences of divorce and a parenting plan. Yet, this agreement alone does not enable a judge to decide on a judicial divorce. It must be approved by a judge. Therefore, both parties accept that a judge’s scrutiny may result in alterations to the agreement. This phrase clarifies that a judge can propose necessary changes in the agreement. In this case, the divorce is pronounced only if the proposal is accepted by both parties. Otherwise, the action is dismissed and the Supreme Court considers it a contested divorce action.&nbsp;In this study, the judge’s scrutiny and intervention on alimony provisions is examined taking into consideration that divorcing parties reach a consensus on alimony as it is included in the mandatory content of the spousal agreements. To this end, the legal nature of spousal agreement is examined primarily. We conclude that spousal agreements are like a private-law contract with the similar character of a settlement agreement. The necessity of a judge’s approval is not a constituent element but a complementary one. Thus, the legal nature of the agreement remains unchanged after it is approved by the court. In light of the conclusions mentioned, a judge’s scrutiny of alimony provisions is critical since this area has the highest possible conflicts.A judge’s intervention is primarily required when the parties are silent about alimony in the spousal agreement. The same can be said when a provision is reserved for further resolution by the parties. A judge shall not approve any agreement that is silent about alimony as TMK Art 166/III only refers to agreements that include a&nbsp;consensus on the financial consequences of divorce and the parenting plan. The result is also the same when the parties reserve their rights to claim future alimony since this shows a non-consensus on alimony. Contrarily, it is considered as leaving the judge to decide the alimony solution is possible, as is the case with Swiss Civil Code (ZGB) Art 112, TMK Art 166/III, where there is no restraint to do so.&nbsp;When the agreement includes a provision about alimony but not the ratio of change in the following years, it shall still be approved since the ratio of change is not mandatory content of the spousal agreement. Notably, most problems regarding alimony stem from the alimony waiver or when the amount is defined as too high or too low, in which case TMK Art 23 shall be decisive.&nbsp;

Alimony Scrutiny by Judge in Mutual Consent Divorces

Canan

Assist. Prof.

An employment contract may be executed for fixed or indefinite terms. An indefinite-term employment contract is the rule of thumb, whereas a fixed-term contract is an exception. This article, firstly, determines whether the objective reason condition is required to conclude and renew a fixed-term employment contract. Secondly, it explains “objective reason” and the consequences when there is no objective reason. This article concludes with a criticism of the provisions based on an objective reason to terminate and renew a fixed-term employment contract and some suggestions going forward.The only code that requires the objective reason condition to conclude a fixedterm contract is Employment Code No. 4857 (hereafter “EC”). This code applies to all workers irrespective of their job, excluding the exceptions listed in Article 4. The EC provisions shall not be applied to such exceptions and workers who are covered by other special employment codes. Article 11 of EC is, therefore, applicable only to conclude (and renew) a fixed-term contract with workers covered by the EC.Article 11 of the EC is as follows: The written employment contract between the employer and the worker is called a fixed-term contract when it is based on an objective reason, such as fixed-term work, the completion of a certain job, or the emergence of a fact.&nbsp;Accordingly, an employment contract that is not based on an objective reason will be considered an indefinite-term employment contract. Whether the lack of objective reason is considered automatically by the judge or can be put forward by the employer is a hot topic of debate. According to the majority and the latest judgments of the Court of Appeal, only the worker can put the lack of objective reason forward. This upholds Article 11’s intent to protect workers by preventing the abuse of the employer’s rights.&nbsp;There are no similar provisions in other employment codes requiring an objective reason to conclude a fixed-term contract. For this reason, the EC is seen as the strictest code and is criticized by the doctrine.As a result of such debates, lawmakers introduced a modification to the law during the Turkish Grand National Assembly on November 5, 2020. A proposed modification of Article 11 included a provision that excepted workers in a certain age group from the condition of objective reason in the conclusion and renewal of a fixed-term employment contract. Such a provision is contrary to the prohibition of age discrimination; this is almost certainly why the provision have not been enacted.&nbsp;In the author’s opinion, exceptions regarding the objective reason condition can be foreseen by considering a balance between workers’ protection and the need for flexibility of enterprises in the conclusion of a fixed-term employment contract. This being said, however, changes in the law should not bring about new legal problems.&nbsp;Paragraphs 2 and 3 of Article 11 are as follows: Unless there is a compelling reason, successive fixed-term employment contracts are not allowed. Otherwise, that employment contract is considered from the very beginning to be a contract for an indefinite term. A successive employment contract basing on a compelling reason maintains its status for a fixed term.Here, the “compelling reason” is considered the same as the “objective reason” in paragraph 1 of Article 11. Accordingly, if there is a fixed-term contract and the objective reason subsists or a new objective reason arises, it is possible to renew the employment contract for a fixed term.A similar provision appears in the Turkish Obligation Code No. 6098 (hereafter “OC”). Paragraph 2 of Article 430 of the OC is as follows: “If a fixed-term contract is continued implicitly after the end of its term, it turns into an indefinite-term contract. If there is a compelling reason, successive fixed-term employment contracts are allowed.” This provision is applicable not only to employment relations under the OC but also to those under the Maritime Employment Code No. 854 (hereafter “Maritime EC”) and the Press Employment Code No. 5953 (hereafter “Press EC”). This is because the EC is the general employment code and applies in the case of legal gaps that may exist in specific codes, including the Maritime EC and the Press EC.&nbsp;While a fixed-term employment contract may be successively executed, there is no limit to the number of times and the length for which such a contract may be renewed. The doctrine and the judgments of the Court of Appeal suggest determining a limit on how many times and for how long an employment contract may be renewed. In the author’s opinion, the best way forward is to add a paragraph to Article 11 of the EC and to Article 430 of the OC to set this limit. However, the legal instruments for the prohibition of abuse of the right and protection purpose of the articles prevent the contract from being renewed forever. Judges may make decisions by considering such instruments. For example, taking into consideration paragraph 3 of Article 430 of the OC, it should be accepted that fixed-term contracts with a total duration of more than 10 years.

Determination of the Objective Reason Condition in the Conclusion and Renewal of Fixed Term  Employment Contracts

Gülfer

Turkey’s Bylaw Regarding Rail Passengers’ Rights aims to regulate the rights and obligations of passengers traveling by rail before, during, and after accidents and incidents that affect them and the obligations and liability of railway train operators. First it is necessary to determine the scope of application of the Bylaw. Turkey is party to international conventions regarding railways, and if a case bears foreign elements, the relevant international convention applies exclusively. This Bylaw also applies in cases where there is no foreign element as well as where the applicable law is Turkish law.Rumeli Railways Operating Regulation dated May 18, 1872, is already in force in Turkey; this regulation was adopted during the Ottoman Empire and is still in effect today because no legal provision has abolished it to date. However, the fourth book of the Turkish Commercial Code (TCC) regulates transport law, and TCC art. 852 stipulates that special provisions for rail carriage are reserved. Accordingly, these special regulations regarding railway transportation apply first. However, because the provisions of the Bylaw Regarding Rail Passengers’ Rights and the Rumeli Railways Operating Regulation are more specific than the provisions of the TCC, the Rumeli Regulation applies first, and if there is a legal gap, the TCC provisions under “Transportation Works” then apply.According to the rail passenger transport contract, the most basic obligation of the railway train operator is to safely deliver passengers and baggage to their destinations; the Bylaw regulates the liability for the breach of this obligation. According to Article 19 of the Bylaw, the operator is liable for accidents that cause death or any bodily harm to passengers during boarding or getting off the train or while on the train. The operator is also held liable for loss of or damage to baggage and goods during transport, on the train, at the station, or outside the station while under its custody and supervision. A train operator can be relieved of liability in cases when damage occurs due to force majeure, the fault of the complainant, or the fault of a third party. Train operators must also deliver passengers to their destinations on time and are held liable for cancellations, delays and missing connections.The Bylaw regulates other obligations of the railway train operator. Paragraph 5 of Article 19 states that the railway train operator is liable for the general health conditions of the train; this includes providing clean food, water, and toilets. Additionally, the operator must keep passengers informed of any changes in travel status as well as protecting all personal data regarding passengers, baggage, and the goods.The principle of freedom of contract applies in our law; therefore, the parties to the contract of carriage are free to determine contractual matters. However, the passenger is the more protected party in a contract of carriage. For this reason, the last paragraph of Bylaw Article 5 stipulates that passengers’ rights cannot be restricted or abolished by the contract.Another important point to consider in relation to the Bylaw is that the courts appoint experts to investigate the causes of accidents in compensation lawsuits, and most of the train accidents is caused by the “operational fault” of the rail carriers. However, the Bylaw does not acknowledge any concept of operational fault. The fact that legislators did not address such an important issue, currently the subject of such controversy in the judiciary, reveals the inadequacy of the provisions of the Bylaw.As noted earlier, the Bylaw regulates important issues related to the liability of the railway train operator, limitation of liability, compensation to be paid and compulsory insurance. Such important matters should be regulated by laws, not by bylaws. The reason is that pursuant to Article 48 of the Turkish Constitution, everyone has the freedom to contract in any field they wish freedom to make contracts is one of the fundamental rights and freedoms stipulated by the Constitution. According to Article 13 of the Constitution, fundamental rights and freedoms can only be restricted by law. In one example conflict, the Bylaw mandates that rail operators carry insurance, but compulsory insurance limits the freedom of contract, therefore it shall only be provided by law. This means that the Bylaw violates the Constitution. Considering this and the reasons, it would have been more appropriate for these provisions to be regulated not under a bylaw but within the framework of a law regulating rail transport.&nbsp;

Scope of Application and Railway Operators’ Liability Pursuant to Bylaw Regarding Rail Passengers’ Rights

Aslıhan

This paper analyses the legal remedies for policyholder’s breach of precontractual duty of disclosure under Turkish law in comparison to German source law and Principles of European Insurance Contract Law (PEICL), as the most recent model law. After describing the remedies in German law for breach of duty in the first chapter, PEICL’s provisions are explained, in the second chapter, revealing the differences between provisions. In light of these findings, remedies set forth in Turkish law are reviewed in the third chapter. A subchapter further analyses the upper courts’ jurisprudence. The author’s primary motivation is to answer some questions regarding the new system established by Turkish Commercial Code numbered 6102 for policyholder’s duty of disclosure:In case of a breach of the precontractual duty of disclosure, German law provides for the right of withdrawal with an ex-tunc effect, termination, and contract variation as remedies. In contrast, PEICL only delivers the right to termination and variation. According to German law, the insurer may not exercise the right to withdraw from the contract if the policyholder was neither faulty nor acted in slight negligence while breaching the duty of disclosure. The insurer can withdraw the contract if a policyholder is found to have intentionally breached their duty or with gross negligence. If the policyholder breaches this duty with gross negligence, then an additional condition is required to withdraw the contract: It should be presumed that the contract would not have been concluded by the insurer if they were duly informed of a previously undisclosed fact prior to the conclusion of the contract. German law includes the right to terminate a contract if a policyholder breaches their obligation without fault or with only slight negligence; however, this right to terminate the contract can only be exercised if the insurer would not have concluded the contract if the fact that was not disclosed prior to contract conclusion was known. The PEICL deviates from German law by not setting forth a right to withdraw a contract and in terms of the conditions&nbsp;required to exercise this right of termination. Under PEICL, the insurer can terminate the contract even in circumstances in which the policyholder’s obligation is breached without fault, under the condition that the insurer would not be expected to conclude the contract if the information that was not disclosed prior to contract conclusion was known. If the policyholder breaches the duty of disclosure, whether by slight or gross negligence, the insurer can terminate the contract without any further requirement.Turkish law significantly differs from German law and PEICL regarding the right of cancellation because it does not require the default of the policyholder as a condition for the exercise of this right. Even when the policyholder is not at fault, an insurer can cancel a contract unless the insurer can be shown to have caused the policyholder’s breach. Regarding the right of cancellation, Turkish law also does not address conditions in which an insurer would not conclude the contract if an undisclosed fact was known prior to contract conclusion.Another notable view of the doctrine is Turkish law’s categorization of available remedies, which is offered to the insurer in two subsets. The first category refers to circumstances in which the insurer discovers a policyholder’s breach prior to the occurrence of the risk. The insurer is then entitled to cancel the contract within 15 days or demand a premium increase. Second category rights appear when an insurer learns of a breach after the risk occurs. In this case, the insurer is only entitled to demand a reduction of insurance premium in consideration of the policyholder’s negligence and causation. The author disagrees with categorizing insurers’ rights based on the timing of the discovery of the breach. This approach does not solve the challenges of the remaining imminent possibility that the risk might occur prior to the insurer’s exercising rights within the 15 days provided by the law. The author argues that the mechanism established in the Turkish Commercial Code should be construed similarly to the PEICL, so that Article 1439/1 determines the future of a contract by specifying the right of cancellation and right to increase premiums and Article 1439/2 addresses the question of whether and to what extent the insurance money would be paid after a risk occurred by providing the right to proportional reduction of insurance payout.&nbsp;

An Analysis of the Provisions of the Turkish Commercial Code Regarding the Violation of the Policyholder’s  Duty of Disclosure in Comparison with the Provisions of the German Insurance Contract Act and the  Principles of European Insurance Contract Law

Yasin

Turkish and Swiss Civil Codes (CC) allow the transfer of indirect possession (mittelbarer Besitz) (la possession médiate) (constructive possession) by an agreement between the transferor and the transferee (Besitzanweisung) (la délegation de possession) (Art 979/I Turkish CC, Art 924/II Swiss CC). The consent of the socalled “third party,” who has direct possession (unmittelbarer Besitz) (la possession immédiate) (actual possession), is not required for the transfer of indirect possession. In other words, in contrast with English law, it is not necessary that the third party in actual possession attorns to the transferee with the consent of the transferor.Because the transferee can acquire indirect possession of and—as a result—a proprietary right on chattels (chose in possession) without the consent or knowledge of the third party, Turkish and Swiss Civil Codes contain rules for protecting the interests of the third party.Turkish and Swiss Civil Codes stipulate that the transfer of indirect possession by an agreement between the transferor and the transferee has legal effect on the third party only after the transferor’s notice to the third party (Art 979/II Turkish CC, Art 924/II Swiss CC). Prior to this notice, the acquisition of indirect possession by the transferee and its legal results, such as the acquisition of property rights in chattel, cannot be asserted against the third party. Thus, the third party is still the so-called “mediator of possession” (Besitzmittler) for the transferor and can return the property directly to the transferor. In other words, the third party would still hold the chattel as bailee of the transferor. Upon receipt of notice of the transfer, the third party becomes the “mediator of possession” for the transferee as if the third party attorned to the transferee and holds the chattel as bailee of the transferee.Furthermore, Turkish and Swiss Civil Codes each provide that the third party can refuse delivery of the property to the transferee based on the same defenses that could have previously been invoked against the transferor (Art 979/III Turkish CC, Art 924/ III Swiss CC). The interpretation of this provision is, however, very controversial.In Turkish and Swiss literatures, the provision is interpreted narrowly. It is generally accepted that the third party cannot refuse delivery based on this provision if the third party has only a personal right (ius in personam) against the transferor, whereas the transferee has acquired a property right (ius in rem) through the transfer of indirect possession. This interpretation renders the provision virtually meaningless and leaves the third party with only a personal right against the transferor essentially defenseless against the transferee. If this interpretation is accepted, the transferor and the transferee can easily undermine the legal position of the third party by agreement between themselves.This article presents a different interpretation of the mentioned provision. In the author’s opinion, this provision is only applicable when the transfer of indirect possession relates to chattel. In such cases, the third party can invoke personal as well as property rights against the transferee to refuse delivery. As the personal right of the third party would be based on contract rights against the transferor, this interpretation results in a statutory exception to privity of contract. Such an exception is clearly necessary to establish equity between the interests of the parties.Indeed, if the Turkish and Swiss Civil Codes did not allow the transfer of indirect possession without the consent of the third party, the transferor and transferee would have to wait until the third party returned the chattel so that the transferor could deliver it to the transferee. In this scenario, the third party could invoke the personal right against the transferor to refuse delivery and thereby postpone the acquisition of possession of and a proprietary right in the chattel by the transferee. As the Codes allow the transfer of indirect possession by agreement between transferor and transferee, they prevent such a postponement, thereby improving the legal position of the transferor and the transferee. However, this improvement should not be at the expense of the third party. The legal position of the third party can only be protected if the third party can invoke the personal right to refuse delivery against the transferee in addition to the transferor.In Swiss literature, some authors argue that the notice of transfer to the third party has the effect that the transferee becomes, by operation of law, a new party to the contract between the transferor and third party, replacing the transferor. Based on this operation, the third party should be able to invoke personal contract rights against the transferee because the transferee has become a party to this contract. In this article, this interpretation is rejected because it forces the third party into a contractual relationship with the transferee and relieves the transferor from the transferor’s contractual obligations without the consent of the third party.In Turkish and Swiss law, the Code of Obligations (CO) sets out a special provision regarding the transfer of leased property. Pursuant to this provision, if the ownership of leased property is transferred by the lessor after the conclusion of the lease contract, the transferee replaces the transferor as the lessor (Art 310 Turkish CO, Art 261 Swiss CO). In other words, the lease contract continues to exist between the lessee and the transferee. Therefore, the lessee can invoke the personal contract rights arising out of the lease contract against the transferee. This provision constitutes a disproportionate interference in the freedom of contract of the lessee when the leased property is a chattel. This disproportion is the result of the lessee being obligated to continue the contractual relationship with the transferee, even though this continuation is not necessary to protect the lessee. Once the leased chattel is delivered to the lessee, its ownership can only be assigned by the transfer of indirect possession by an agreement between transferor and transferee. As explained above, the better interpretation of the relevant provision of the Turkish and Swiss Civil Codes provides for sufficient protection of the third party (i.e., the lessee) in such cases.&nbsp;

Legal Position of Third Party in Transfer of Indirect Possession by an Agreement between Transferor and  Transferee Compared to Lessee in Case of Transfer of Leased Property

Atila

Assoc. Prof.

The administration needs immovables belonging to private persons in order to perform public services. The right to property is among the rights and duties of the person in article 35 of the Constitution. Expropriation is among the social and economic rights and duties in Article 46 of the Constitution. Since the confiscation of the immovables belonging to private persons by the administration brings a limitation to the property right, it is obligatory to comply with the basic principles of regulation and restriction. The Expropriation Law stipulates the expropriation of privately owned real estates for public benefit and regulates the procedure of legal intervention in detail. In addition, the 18th article of the Zoning Law gives the authority to confiscate up to 45% of the immovable property free of charge in cases listed in the article.It is against the law for the administration to take possession of an immovable property without expropriation. In the actual confiscation, it causes an arbitrary behavior without relying on any decision of the administration and without paying the price of the immovable, causing a violation of the property right. In case of actual confiscation, the owner of the immovable property has the right to open lawsuits such as prevention of confiscation, demanding the value of the property, compensation or compensation in return for occupation. However, by making temporary arrangements, the legislator has made legal regulations stating that the ownership of the immovables that are actually confiscated without expropriation will be transferred to the administration and the cost will be paid to the owner of the immovable. These regulations are in the nature of an amnesty against the unlawful act of the administration. In addition to this, as in the zoning plans of a real property, if it does not expropriate or carry out other applications within a period of 5 years, legal confiscation without expropriation is in question. In legal seizure, it is illegal because the administration did not make a zoning program to implement the zoning plans within 5 years, did not take a decision to transfer the property to the administration or expropriated.The Expropriation Law allows the former owner to regain his property under certain conditions. According to Article 22 of the Law, if there is no need to allocate the property for the purpose of expropriation or a need for public benefit after the expropriation is finalized, the situation is announced to the former owner in accordance with the provisions of the Notification Law, and to pay the expropriation value of him or his inheritors within three months, together with the legal interest that will accrue from the day they receive the expropriation value. provided that he can take back the immovable. Article 23 of the Law regulates the former owner ‘s right to take back the immovable. Accordingly, within five years from the date of the expropriation value, the expropriation authority does not carry out any operation or installation suitable for the purpose of expropriation and transfer, or if the immovable property is left as it is, by not allocating it to a need for public benefit, the owner or the heirs shall be legally charged with the expropriation fee from the day they receive the expropriation fee. He can take back the real estate by paying it together with the interest. The former owner must request from the administration to return the immovable to him within one year from the date of his right to take back.As a result of a legal expropriation, the possibility of the former owner to regain his / her immovable property is foreseen by law, but there is no regulation for the immovables that have been illegally seized, especially after the court has made a registration decision on behalf of the administration. For this reason, there is a legal loophole. This gap can be eliminated by applying the provisions regarding the return of the immovable property to the former owner or the right to take it back in the Expropriation Law by analogy.While the comparison is free as a rule in private law, it is a controversial issue in public law. On the other hand, freedom of comparison is considered predominantly in terms of beneficial transactions in Administrative Law. However, since Article 24 of the Expropriation Law mandates the judicial judiciary for disputes regarding the return of the relocation to the former owner and the right of the owner to take back, it should be compared within the framework of private law. Benchmark is the application of a provision laid down in the law for a specific event to a similar event not regulated by law. In order to be able to apply for a comparison procedure, there must be a provision in the law on the compared subject, this provision must not be exceptional, there is no provision regarding the compared event, and the compared event must have the same quality in terms of reason and purpose. Since these conditions for comparison are also available in terms of immovables that are actually confiscated without expropriation, there is no obstacle to the application of the aforementioned provisions by comparison. In addition to the Constitution and the ECHR, which protect the property right, it necessitates the strictness in accordance with the principles of justice and equity. As in the case of the administration selling the said immovables to someone else, a situation on the contrary will constitute a violation of both the aforementioned regulations and principles, and will lead to the violation of the personal right and fair balance recognized by the property right. Moreover, the failure to recognize the rights of the former owner in the acquisition of property by arbitrarily and unlawfully violating the property right of the former owner in the immovable property, which was transferred to the ownership as a result of the decision of the administration to comply with the law, is incompatible with the Rule of Law.&nbsp;

Re-acquisition of the Land by Former Owner After Administrative Authority confiscated the land without  expropriating

Ahmet

Prof.

Bahaddin

The last century of the Ottoman Empire was a very active and controversial period in several respects. Gaining momentum from the proclamation of the Tanzimat Edict in 1839, structural changes accelerated and embodied a growing transformation in outlook. In this period, when critical decisions were made over political, religious, and culture issues, axial shifts and ruptures reached their peak, as well as educational policies started to evolve. It was unthinkable that Ottoman fiqh and legal life would remain unaffected by these developments, and indeed, they were influenced. Legal historians agree that the Tanzimat period was an important turning point in the history of Turkish law in terms of judicial institutions, legal rules of law, and legal education.As a matter of fact, since 1840 new laws, some of which had national character, some of which were taken from outside, entered into force. In 1847, commercial courts began to be established alongside the existing sharia courts, and in 1864, the Nizamiye courts came into effect. Conversely, both the implementation of new laws and demand for judges to preside over the new courts made it necessary to train new jurists, which, in turn, required the establishment of new law schools. As a result of this process, the Mekteb-i Hukuk-ı Şâhâne (Maktab-i Huquq; Royal Law School) was launched in 1880 under the auspices of the Ministry of Justice. Mahmud Esad Seydişehrî (Mahmud Asad Seydişehrî) was a particularly bright student of this school and later became one of the leading public officials and jurists during the last century of the Ottoman Empire. While a student, he started publishing Ravza-i Hukuk (Rawdha-i Huquq), an important law magazine or more precisely, a legal platform for researchers. Rawdha-i Huquq was published as a weekly magazine through Mahmud Asad’s efforts in 1884–1885, and a series of books was also published in this medium. In addition to articles in the field of law, the journal published books related to the courses in the Maktab-i Huquq program. As far as we can ascertain, six books were published in different fields in this series. One of them was a book on the philosophy of law translated from French by Mahmud Asad. Two books, titled Telhis-i Hikmet-i Hukuk and İlm-i Servet, are exact transcriptions of notes on lectures delivered by his professor, Münif Pasha. Two more, related to fiqh methodology&nbsp;and Islamic inheritance law, are Asad’s own compilation, while the last book is his annotation of the new penal code.In this article, the identity of Mahmud Asad Seydişehrî as a jurist and statesman will be considered first, and later, the six works in question will be examined in outline.The Rawdha-i Huquq series appears to have consisted of a total of six works. The series may be divided into three different subcategories: lecture notes by professors, translations, and original works of authorship. Although lecture notes and translated works were originally owned by others, it is understandable that Mahmud Asad wrote his name on the cover page as their author, considering the changes he made to these works and his acknowledgment of this fact at their beginning. It can be stated that he was the editor of the books in terms of organizing lecture notes and managing the publication process.The works in the Rawdha-i Huquq series are as follows: ,A. Hikmet-i Hukuk yahut Hukuk-ı Tabîiyye, 1301/1884, 84 pages B. Telhîs-i Hikmet-i Hukuk, 1301/1884, 224 pages C. Ferâidü’l-Feraiz, 1301/1884, 383 pages D. İlm-i Servet, 1302/1885, 176 pages E. Şerh-i Kanun-ı Ceza, 1302/1885, 84 pages F. Usûl-i Fıkh, 1302/1885, 384 pagesThis article will examine these six books by conducting content analysis and will highlight their unique aspects. Accordingly, it will be shown that theories of legal technique, legal philosophy, and political economy that had been developed in the West were followed in the modern schools that educated Ottoman jurists. Furthermore, this paper will provide insights into the high academic standard of Maktab-i Huquq.It is also worth mentioning that the long quotations drawn from Western resources on both philosophy of law and macroeconomics, accepted and written in the aforementioned new legal platforms, have not been scrutinized at all. Apart from any critique or discussion, there is almost no reference to the centuries-long legacy of fiqh on related issues, and no parallels are drawn between the two legal systems.This paper demonstrates that in-depth research into several aspects of the last century of the Ottoman Empire is still required, particularly in terms of legal and educational changes.&nbsp;

A Platform for Jurisprudence in the Last Period of the Ottoman State: Rawdha-i Hukuk

Uncompetitive behaviours of states are controlled through state aid rules. These state aid rules essentially serve to protect internal markets by limiting states’ market distortive aid measures. According to the latest state aid scoreboard published by the European Commission, state aid spending of Member States has increased since 2013. Within state aid spending, the energy sector is one the sectors receiving most aid and is the source of serious controversies between Member States.However, nuclear energy stands out among other types of energy sources and requires particular examination in terms of state aid rules for several reasons. First, it can easily be noticed that numbers of state aid cases to nuclear energy sector have increased significantly within the last decade and could be expected to increase more in the future. Second, the existence of the Euratom Treaty and accompanying issue of the applicability of state aid rules to nuclear energy sector place nuclear state aid cases in a very special position. In addition, nuclear energy is excluded from the 2014 Environmental Protection and Energy Guidelines though it had originally been included in its draft. Moreover, it has been seen that several state aid decisions of the Commission regarding the nuclear energy sector were challenged by other Member States, a situation which has been encountered very rarely within state aid control history. On the very contrary to these negative attitudes toward nuclear state aid, the Commission and European Courts have treated it differently and showed a very lenient approach in nuclear state aid cases.Given the increasing importance of nuclear energy state aid cases and the growing controversy around these cases, there is an increased need to deal with nuclear state aid case law as a whole to understand accurately how the Commission and the Courts assessed the relationship between state aid and nuclear energy in those cases.&nbsp;In the Germany Contingency Reserves case, the content of selectivity, one of the main requirements of establishing state aid, was clarified. It was explicitly reiterated that incidentally providing more benefits for one undertaking from the state measure which applied equally to all undertakings does not necessarily make the state measure selective. Accordingly, it was settled that the important thing which prevents state measures from being selective is to set equal criteria for undertakings to benefit from state measure instead of dealing with them as if all undertakings equally benefited from the state measure.In British Energy decisions, the increasing necessity of state aid for nuclear power plants as energy markets become more competitive was clearly noticed. It has been understood that low prices and a lack of financial instruments, which could hedge market risks for a long time, could expose nuclear power plant operators to unbearable challenges, as was the case for British Energy. After the British Energy decisions, as expected, numbers of nuclear state aid cases have soared due to rising numbers of various risks stemming from increasingly competitive energy market conditions.&nbsp;The most important advancement of state aid law was achieved thanks to long EDF cases by which the scope of private investor test was widened. After the EDF cases, it was settled that, even if state measures were regulatory measures, the Commission will have to investigate if a private investor test is applicable. In other words, the Commission will have to look at the effect of the measure, not its form of. In the same vein after the EDF cases, the Commission has taken a very important decision in Hungary Paks II as to the content of the private investor test and showed how the private investor test should be applied within nuclear energy state aid cases, taking into consideration the uncertainties of the nuclear energy sector in order to attain more accurate results.&nbsp;When it comes to most controversial case of nuclear state aid history, the Hinkley case, the main discussions were around the separation of investment and operating aid. While state measures for Hinkley, such as CfD, at first glance, seemed to be operating aid, the Commission decided to look deep inside and then accepted these measures as if they were investment aid. As these state measures were accepted as investment aid, they were found compatible with state aid rules. It has to be accepted that the Commission’s effect-based stance is a very important advancement within case law, and it is likely to encourage other states to use different state aid mechanisms similar to CfD in order to minimise risks for private investors.Considering all of the above, the issue of the application of state aid rules to nuclear energy sector is now mostly settled and, nuclear state aids will continue to be controlled under state aid rules taking into account the objectives of the Euratom Treaty. It could be expected that nuclear state aid cases will likely continue to increase as energy markets become more competitive. But it is very clear that the intrinsic risks of nuclear energy and related market failures stemming from imperfect market conditions are keenly appreciated by the Commission and the Courts, and nuclear cases are treated more leniently in line with these conditions. This sends a very clear message that the lenient approach of the Commission and the Courts toward the nuclear state aid cases will remain as long as market failures and the Euratom treaty exist and in this regard, the absence of guidelines for nuclear energy, while it seems like a disadvantage, will ensure the needed flexibility of the Commission when making its state aid assessment in nuclear state aid cases.&nbsp;

The Relationship Between State Aid and Nuclear Energy and A Legal  Analysis of Nuclear Energy State Aid Cases in Terms of European Union State Aid Rules

Tülay

Miray

Merve

Disputes regarding the delimitation of maritime zones in the Eastern Mediterranean have a long history because they do not refer to a purely legal problem. First, the status of the Greek Administration of Southern Cyprus and its presentation and acceptance as the sole representative of the island in the international domain has been subject to objections from Turkey for many years. Because the Turkish Republic of Northern Cyprus and its maritime borders have not been respected and recognized by, such as Greece and the European Union, a purely legal solution to the problem has not been easily discernible. Therefore, the delimitation of maritime zones between Turkey and Cyprus has continued to be a multifaced problem with both political and legal dimensions. Furthermore, as of 2003, while the Greek Administration of Southern Cyprus rapidly began to conclude bilateral agreements on the delimitation of maritime zones with certain coastal Mediterranean states, Turkey had concluded an agreement with the Turkish Republic of Northern Cyprus in 2011 and an agreement with Libya in 2019. In the meantime, both the Turkish Republic of Northern Cyprus and the Greek Administration of Southern Cyprus granted exploration and exploitation licenses to certain companies. Drilling activities by Turkey’s TPAO’s based on these licenses in Northern Cyprus have drawn adverse reactions from Greece and the European Union particularly and raised the tension between these various parties.According to international law, the delimitation of the exclusive economic zone and continental shelf is solely a matter between the coastal states. However, the European Union has nonetheless become a party to the dispute. Because Greece and Southern Cyprus have become members of the European Union from in 1981 and 2004, respectively, the Aegean Sea and Cyprus have become a part of the borders of the Union. The candidate status of Turkey for the membership in the Union has been recognized from 1999. Because candidate states must comply with the principle of the peaceful settlement of border disputes or give consent to the jurisdiction of the&nbsp;International Court of Justice (ICJ) for the same, the European Union has taken part in this ongoing Eastern Mediterranean conflict. Therefore, following the analysis of the reasons for the conflict between Turkey, Greece, and Southern Cyprus, the effects of that dispute on the relationship between Turkey and the European Union will be briefly discussed in this article.It is well-known that Turkey and Greece have a long-standing history of problems regarding the delimitation of maritime zones in the Aegean Sea and the Eastern Mediterranean. The three primary elements of the Turkish–Greek maritime disputes can be summarized as follows: 1) Disagreement on the breadth of Greek territorial waters and the ownership of certain islands or isles in the Aegean Sea; 2) the extent of the two states’ exclusive economic zones and continental shelves in the eastern Mediterranean; and 3) the continuing Cyprus crisis discussed earlier.The international law concepts of exclusive economic zone and the continental shelf grants certain privileges concerning the exploration and exploitation of energy resources to coastal states. Therefore, the delimitation of these maritime zones represents a significant national economic interest on the part of these states. At the same time, it is considered a matter of sovereignty and national independence by those same states. International law rules regarding delimitation are far from clear and concrete. They are based on the principle of equitable solution and the negotiation and conclusion of international agreements. Greece claims a full exclusive economic zone of 200 nautical miles to its easternmost islands in Eastern Mediterranean; Southern Cyprus similarly claims an exclusive economic zone of 200 nautical miles despite being very close to the southern coast of Turkey. In summary, the extent of maritime zones of the islands has become the most critical element of the dispute. The 1982 United Nations Convention on the Law of the Sea in Article 121 states the following: “«the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” Accordingly, islands are subject to the principle of the equitable solution without any question.&nbsp;The concept of equity has been analyzed and explained by the ICJ case law and has not, overall, consisted of numerus clausus criteria. However, constructing a provisional equidistance line seems the first step, and adjusting this line according to relevant circumstances should then form the second step. Finally, according to the case-law of the ICJ, validating that the line thus adjusted would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas is necessary. In the case of Serpents’ Island, the island’s location in the area of delimitation has been considered by the ICJ. The court decided that it should not affect the delimitation other than that stemming from the role of the&nbsp;&nbsp;12-nautical-mile arc of the island’s own territorial sea. As with Serpents’ Island, certain easternmost Greek islands, such as Crete and Rhodes, lying alone and far from the mainland, are not one of a cluster of fringe islands constituting “the coast” of Greece. Therefore, it would be inappropriate to consider those islands to construct a provisional equidistance line between the coasts of Turkey and Greece.&nbsp;

Doğu Akdeniz, Avrupa Birliği, Kıbrıs, Deniz Yetki Alanlarının Sınırlandırılması, Münhasır Ekonomik Bölge, Kıta Sahanlığı

Ömer

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

Muhammet

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

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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

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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

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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.

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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

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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)	Ömer Ekmekçi, Ali Paslı
Cover (PDF)
Full Text (PDF)
Front Pages (PDF)

Istanbul Law Review

VOLUME 79, ISSUE 3, 2021

Thoughts on German Electronic Securities Code (eWpG) Dated 9 June 2021

Alimony Scrutiny by Judge in Mutual Consent Divorces

Determination of the Objective Reason Condition in the Conclusion and Renewal of Fixed Term Employment Contracts

Scope of Application and Railway Operators’ Liability Pursuant to Bylaw Regarding Rail Passengers’ Rights

An Analysis of the Provisions of the Turkish Commercial Code Regarding the Violation of the Policyholder’s Duty of Disclosure in Comparison with the Provisions of the German Insurance Contract Act and the Principles of European Insurance Contract Law

Legal Position of Third Party in Transfer of Indirect Possession by an Agreement between Transferor and Transferee Compared to Lessee in Case of Transfer of Leased Property

Re-acquisition of the Land by Former Owner After Administrative Authority confiscated the land without expropriating

A Platform for Jurisprudence in the Last Period of the Ottoman State: Rawdha-i Hukuk

The Relationship Between State Aid and Nuclear Energy and A Legal Analysis of Nuclear Energy State Aid Cases in Terms of European Union State Aid Rules

Doğu Akdeniz, Avrupa Birliği, Kıbrıs, Deniz Yetki Alanlarının Sınırlandırılması, Münhasır Ekonomik Bölge, Kıta Sahanlığı

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