Abdurrahim

Res. Assist. Dr.

&nbsp;The right of preemption grants the right holder the opportunity to acquire ownership over the object of the right once the pre-emption event occurs. The right of preemption can arise from law or contractual agreements. When it arises from a contract, it can be established through an independent pre-emption agreement or by adding a clause to another contract, such as a lease agreement. From the perspective of Turkish law, in Swiss law, which serves as a reference, the legislator has facilitated the formation of pre-emption agreements by considering ordinary written forms to be sufficient, especially when such agreements frequently arise from clauses added to lease contracts. In terms of Turkish law, it has been argued that simplifying the form of pre-emption agreements is meaningless compared to purchase and repurchase agreements. In Turkish legal practice, the addition of pre-emption clauses to lease agreements has been rare. Nevertheless, recent jurisprudential developments have indicated that pre-emption clauses are gradually being included in lease contracts in the UAE. Such practices create a favourable legal situation for lessees who hope to eventually acquire ownership of their rented property or business premises. Therefore, the right of preemption is of paramount importance in lease agreements. From the perspective of Turkish law, not narrow and technical principal-accesory relationship between the right of preemption and a lease agreement. However, beyond this, there exists a functional connection between the origin of the right of preemption and the establishment of a lease agreement. From this perspective, it can be said that there is a broad linkage between the right of preemption and the lease agreement. In this broad sense, the right of preemption becomes subject to the fate of the lease agreement upon acceptance of this connection. Thus, the termination of a lease agreement of any form also terminates the right of preemption. However, if the conditions necessary for the exercise of the pre-emption right are fulfilled, the termination of the lease agreement no longer extinguishes the pre-emption right.The right of preemption can be established for a maximum period of 10 years. Parties may agree to participate for a shorter period. However, if the parties do not specify a time frame, the right of preemption is deemed to have been established for 10 years. In contrast, a lease agreement can be for either fixed or indefinite terms. In both cases, in residential and roofed workplace leases, the contract can be terminated by the lessee in the first instance, and the lessor has this right only after a one-year extension period at the end of 10 years. Therefore, if the lessee does not terminate the lease agreement, the lease agreement will continue for more than 10 years. In this situation, despite the lease agreement continuing beyond 10 years, the right of pre emption will cease due to the mandatory provision limiting its duration to 10 years. In terms of the de lege ferenda, it is more appropriate to accept that the pre-emption right exists as long as the lease agreement continues to exist. The right of preemption as a rule creates legal effects only between the lessee and the lessor. For a lessee to assert his/her right of pre-emption against third parties, the claim must be annotated in the land registry. However, the annotation of the lease agreement in the land registry does not automatically imply an annotation of the right of pre-emption. To annotate the right of pre-emption, the parties must either draw up an annotation agreement or include a related term in the lease agreement. Once the right of pre-emption has been annotated, it can be asserted against third parties who purchase the leased property during the continuation of the lease agreement. However, when the lease agreement terminates, the right of pre-emption also ceases. In this case, annotation naturally loses its effectiveness. In Turkish legislation, the right of pre-emption is regulated by considering independent pre-emption agreements. However, when pre-emption clauses are included in lease agreements or other term-based contracts, legal provisions can sometimes lead to inaccurate results. To solve these problems, which clearly arise in terms of the duration of the pre-emption right, legal regulations can be made in favour of the lessee to grant a legal pre-emption right depending on the establishment of the lease agreement. This approach aligns with the general tendency of law to protect lessees. It has been observed that some legal systems in other countries also recognise legal pre-emption rights in favour of lessees.

Consequences of Pre-emption Clauses in Lease Agreements When the Contract Ends

Artür

Assist. Prof. Dr.

&nbsp;Directive (EU) 2023/970, adopted on May 10, 2023, aims to enhance the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms. This Directive shall be transposed by the Member States by June 7, 2026. The Directive seeks to address the longstanding principle of equal pay, which faces implementation challenges, by introducing pay transparency as a core mechanism to prevent gender-based discrimination. The principle of equal pay was established by the Treaty of Rome in 1957. Various directives have since been adopted, including Directive 75/117/EEC in 1975, which emphasised administrative and judicial mechanisms for addressing discrimination but lacked provisions on the burden of proof. This was addressed by Directive 97/80/EC in 1997, which shifted the burden of proof to employers in cases of gender discrimination. Directive 2006/54/EC further reinforced these principles and highlighted the need for equality bodies. Directive 2023/970 builds on these by emphasising pay transparency and proactive measures against discrimination. The Directive applies to all employers and includes provisions for job applicants. It identifies transparency as crucial for achieving gender equality, addressing the barriers to recognising and proving pay discrimination. Pay includes base wages, bonuses, allowances, and other benefits. Justifiable pay differences must be based on justifiable criteria, such as skills, effort and working conditions. Transparency implies openness, accountability, and communication. It includes collective measures such as pay reporting and individual measures like employee rights to access pay information. Employers must provide information on pay levels and criteria for pay progression. Job applicants must also receive information on initial pay or pay ranges, promoting informed decision-making, and demonstrating gender-neutral pay criteria. Additionally, pay reports must include gender-based pay differences, quartile distributions, and the proportion of employees receiving supplements, with varying requirements based on employer size. German law mandates median earnings disclosure for comparison groups, whereas Turkish law lacks such provisions. Enacted in 2017 to align with Directive 2006/54/ EC, the German Pay Transparency Act also aims to eliminate gender pay disparities. Employers with more than 500 employees must prepare a pay report every three years (or every five years if bound by a collective agreement). This report must outline measures taken to ensure gender equality and pay equality, as well as the average number of employees by gender and full/part-time status. On the other hand, the Directive requires more frequent and detailed pay reports, applicable to employers with at least 100 employees, covering gender pay differences, median pay levels and the proportion of employees receiving supplements. In German law, employees have the right to request information about their wages and the pay elements. The employer must also provide the median earnings of the comparison group. The obligation to provide information applies to workplaces with more than 200 employees. Requests can be made every two years. The Directive, on the other hand, does not limit the information request period, whereas German law imposes a two-year interval. In addition, German law lacks provisions equivalent to the Directive’s transparency on pay progression criteria. The burden of proof shifts to employers if an employee demonstrates prima facie evidence of discrimination. If employers fail to meet transparency obligations, they must prove the absence of discrimination without requiring prima facie evidence from the employee. This principle has been reinforced by past CJEU rulings, and German law practices comply with it. Compensation for gender-based pay inequality must cover all damages, including non-material damage. Member states must ensure effective, proportional and deterrent penalties, potentially including structural workplace changes and exclusion from public tenders for repeated violations. Turkish law also emphasises equal treatment but lacks specific transparency measures. The law provides limited compensation for discrimination and lacks provisions for suspending or interrupting the period of limitation in employment. Aligning Turkish practices with the Directive would enhance transparency and empower employees. Pay transparency must not violate personal data laws. Whereas the Directive mandates that employers cannot seek job applicants’ previous pay information unless relevant to the job, this issue raises different opinions in Turkish doctrine. In conclusion, Directive (EU) 2023/970 strengthens the principle of equal pay through transparency, building on nearly seventy years of EU law. It introduces innovative measures, such as employee access to pay information and simplified burden of proof, aiming to foster a sociocultural shift towards valuing workers and&nbsp; &nbsp;ensuring gender equality in pay. German law requires adjustments to fully align with the Directive, while Turkish law could benefit from adopting similar transparency measures to balance employer-employee power dynamics.

Analysis of Directive (EU) 2023/970 on Pay Transparency in  Comparison with Turkish and German Law

Damla

Assoc. Prof. Dr.

&nbsp;Article 1498 of the Turkish Commercial Code (TCC) stipulates that the insurer can’t rescind the contract after five years have passed from the conclusion of the insurance contract, including renewals, due to the misrepresentations at the time the contract was made. In foreign literature, these provisions, which ensure the payment of the insurance amount written in the policy by preventing the insurer from exercising its rights against misrepresentation in application after a certain period of time has passed since the insurance contract is made, are called incontestability clauses. It is accepted that these provisions were first used in England in the 19th century to eliminate distrust in the insurance industry by insurers. However, today they have become mandatory provisions regulated directly by insurance laws. In Turkish law, a regulation in this content was included for the first time at the law level in Article 1498 of TCC No 6102. The main reason why incontestability clauses are mandatory rules and directly regulated by law is to protect the policyholder and the beneficiary. The main function of these provisions is to assure the policyholder and beneficiaries that the insurance amount written in the policy will be paid after the contestability period expires. The second function of these provisions, which is as important as the first, is to encourage the insurer to check the policyholder’s statements within the contestability period. Incontestability clauses have historically emerged in the context of life insurance. Similarly, these are the provisions that are mostly regulated and discussed in the context of life insurance today. However, it is seen that such provisions are also regulated in the context of insurance contracts such as sickness, health, and accident insurance. As a matter of fact, in Turkish law, the issue is essentially regulated under Article 1498 regarding life insurance. However, via references in Articles 1510/2 and 1591/1, Article 1498 will also apply accident, disease, and health insurance contracts. It is seen that two opposing views are defended regarding whether incontestability provisions should also be applied to property insurance. In this respect, it should be remembered that the main reason why incontestability provisions are regulated by law as mandatory rules is the superior interest related to protecting the policyholder and beneficiaries, and the existence of this superior interest is also valid for the policyholder and the insured in property insurance. Article 1484/1 which is related to compulsory liability insurance regulated as a type of property insurance in the TCC is an incontestability provision because it is stated that even if the insurer is fully or partially relieved of his indemnity obligation towards the insured, his obligation will continue up to the amount of compulsory insurance for the injured party in the article. In American law, two basic conditions are required for an insurance contract to become incontestable. The first of these is that the insurance premium has been paid, which is a condition directly mentioned in the relevant legal regulations. Article 1498 doesn’t include such a condition. However, in Turkish law, the insurer can always use its rights of rescission and termination of the contract in case of non-payment of premium, whether within or after the contestability period. The second condition of the incontestability provisions is that the contestability period has passed. In Turkish law, this period is determined as five years, which is longer than the period that is usually two years in the USA. However, similar to American law, the Turkish legislator has also regulated that renewals will be taken into account in the calculation of five years. On the other hand, Article 1498 does not include the condition, which is sought in American and even German law that the contestability period must be ended while the insured is alive, in other words, the risk must be occurred after the contestability period. The main application area of incontestability provisions is the misrepresentations at the time the contract is made. Nevertheless, with Article 1499 of TCC, a separate incontestability regulation has been made regarding the misrepresentation during the continuation of the contract. In the foreign literature, the two main exceptions that are considered to be outside the scope of application of incontestability provisions are intentional misrepresentations and misstatement of age. Similarly, the Turkish legislator has excluded intentional misrepresentations from the scope of application of Article 1498 and has made an age adjustment regulation in Article 1497 for cases where age is incorrectly declared. The provision of Article 1498, which states that the insurer can’t exercise its right of rescission against misrepresentations at the time the contract was made after the five-year contestability period has passed, is an incontestability regulation. Despite that, in the same regulation, the Turkish legislator gave the insurer the right to request the additional premium. If this request is not accepted, the insurer also has the right to pay a discounted insurance amount according to the ratio between the premium paid and the premium should must paid. Moreover, the insurer has the absolute right of rescission in cases where the increase in risk falls outside the insurance limits of the insurer. Thus, the assurance regarding the payment of the insurance amount provided by incontestability provisions to the policyholder and the beneficiaries has been circumvented by the legislator.&nbsp;

Incontestability Provisions in Life Insurance in the Context of Article 1498 of the Turkish Commercial Code

Mehmet

&nbsp;In cases where a person suffers partial or total permanent incapacity for work due to a tort or contractual breach, he/she may bring an action for compensation against the insurance company whose liability arises because of the damage due to this incapacity. For this purpose, the injured person can apply to the state court or the Insurance Arbitration Commission (for voluntary insurances, provided that the relevant insurer is a member of the insurance arbitration system; for compulsory insurances, membership is not required). The person who has exercised his/her right of choice in favour of filing a lawsuit in the state court may experience a progression in the effect of the damaging incident and a consequent increase in the degree of incapacity after the conclusion of the lawsuit. At this point, the question arises as to whether the injured party, who had previously obtained a judgment from the state court concerning the same incident, still has the option to choose between state jurisdiction and the Insurance Arbitration Commission in respect of a new case based on the increase in incapacity. Because in Article 30/14 of the Insurance Law, it is accepted that no application can be made to the Commission regarding disputes submitted to the court. This study mainly aims to address this issue. In this context, firstly, the issue of whether the negative effect of res judicata [Article 114/1 (i) of the CPC] arising as a result of the first lawsuit will constitute an obstacle to the examination of the second lawsuit to be filed with the claim that the degree of incapacity has increased is examined. It has been determined that the Court of Cassation has adopted the view that if there is an increase in the degree of disability of the injured person due to an evolving situation, a new lawsuit can be filed for compensation of the damage linked to this reason. In other words, the Court of Cassation accepts that there is a difference in terms of cause and subject matter of the case between the compensation case filed based on the evolving situation and the compensation case previously filed and concluded regarding the same damaging incident. &nbsp;This study then examines the scope of the rule in Article 30/14 of the Insurance Law. It is possible to associate the aforementioned rule with pendency and res judicata, among the negative litigation conditions regulated in the CPC. However, in Article 30/14, instead of the concept of pendency or res judicata, a phrase unusual for our civil procedure law terminology and whose scope is uncertain (the dispute has been submitted to the court) has been used. This phrase raises doubts about the cases in which this rule will be applied. Until the end of 2022, the Court of Cassation had interpreted the aforementioned rule in parallel with the pendency and res judicata. However, it has been determined that the Court of Cassation’s approach to the scope of application of the Insurance Law Article 30/14 has tended to change since late 2022 and has begun to interpret the field of application of the provision more broadly. This tendency of the Court of Cassation was also determined in our subject of examination. Because until late 2022, the Court of Cassation considered it permissible to apply to the Commission for compensation of damages linked to an increased degree of incapacity due to an evolving situation. However, some more recent decisions have concluded that such applications should be rejected under Article 30/14 of the Insurance Law. In our opinion, Article 30/14 of the Insurance Law, as a rule, can be applied in cases where a previously filed lawsuit with the same parties, cause and subject matter is still pending in the state court or where the negative effect of the res judicata exists. Accordingly, if it is accepted that the lawsuit filed for compensation for damages linked to the increased incapacity due to an evolving situation is different in terms of cause and subject matter from the first compensation lawsuit filed and decided by the state court, it should be possible to file a second lawsuit by applying to the Commission. In fact, in this situation, the dispute previously examined in the court differs from the dispute to be examined by the insurance arbitrators, and no prior dispute regarding compensation for damages linked to increased incapacity for work has been referred to the court. In addition, after it is deemed possible to file a new lawsuit for compensation for the damage linked to an increased degree of incapacity, there is no interest to be protected in not accepting that this case can be filed by applying to the Insurance Arbitration Commission.

Evaluation of Applications to the Insurance Arbitration Commission with the Claim of Increased Degree of  Incapacity for Work Under the Rule “No Application Can Be Made to the Commission Regarding Disputes  Referred to the Court” (Article 30/14 of the Insurance Law)

M. Emir

&nbsp;In cases where the will of the transferor is impaired by error, fraud, or threat, it has long been a matter of controversy whether the transferee becomes an entrusted possessor or not. This controversy directly concerns the scope of application of Articles 988 and 989 of Turkish Civil Code No. 4721. If, in these cases, the transferee is not deemed as an entrusted possessor, it is not possible for the bona fide third party to acquire a right in rem from him/her at the time of the transaction, and it becomes necessary to examine whether the conditions of acquisitive prescription are met. However, if the opposite view is taken, a bona fide third party is to acquire the right in rem at the time of the transaction. The solution to this debate, which has important practical implications, depends on both conceptual considerations regarding the will to transfer possession and striking an appropriate balance of interests between the owner and the bona fide third party. The conceptual problem mainly concerns whether there is a difference between the will required to transfer the possession of movables and the will required to conclude legal transactions. If these wills are actually one and the same, then the problem must be solved according to articles 30 et seq. of Turkish Code of Obligations No. 6098. However, if these wills are not the same, then it is necessary to explain what is meant by the will to transfer possession and how it differs from the will required to conclude a legal transaction. In arriving at a conclusion thereof, it must also be considered that the transfer of possession can occur with or without delivery. If, as a result, there is a difference between said wills, then the regulations relating to legal transactions are not applicable to the will to transfer possession. Thus, once this conceptual issue has been overcome, it should be examined how cases of error, fraud, and threat affect the will to transfer possession. It should be emphasised that the solution of this problem does not necessarily have to be “lump sum” and that a distinction can be made between defects of will. The solution to this problem is also decisive for the balance to be established between the interests of the movable’s owner and the bona fide third party. A mere conceptual approach does not guarantee an appropriate balance of interests. Therefore, conceptual results must be reviewed from this perspective. Whereas accepting the transferee as an entrusted person protects the security of transactions, denying such a title protects the security of rights. The former is advantageous for the bona fide third &nbsp;party, while the latter serves the interests of the owner. In cases where possession is transferred by delivery, it is difficult to justify leaving the bona fide third party unprotected in cases of error and fraud, as these defects only affect the motive of the transferor. The transferor delivers the movable under an erroneous conception that does not correspond to reality, without realising that he has made an error or has been deceived. It hardly seems appropriate to place the risk of the owner, who delivered the movable under an erroneous conception of reality, on the bona fide third party. Unlike these cases, in threats, the owner delivers the possession of the movable with complete awareness that he/she is being coerced to do so. In terms of the balance of interests, it does not seem appropriate to equate a threat with an error or a fraud. But here, as well, cases of transfer of possession without delivery must be treated differently. Since it is almost unanimously accepted that types of transfers without delivery consist legal transactions, the interest-based approach regarding these is required to be in line with articles 30 et seq. of Turkish Code of Obligations No. 6098.&nbsp;

Acquisition of Rights in Rem by a Bona Fide Third Party From a Transferee in Cases Where the Transferor’s  Will Has Been Impaired

Musa

&nbsp;The sell-on clause is agreed in the football player transfer agreement between the old club and the new club and entitles the old club to claim a portion of the transfer fee from the new club when the player transfers to a third club. This provision may be freely agreed between the old club and the new club within the framework of the principle of freedom of contract. However, the sell-on clause must not contravene Article 18bis of the Fédération I nternationale de Football Association Regulations on the Status and Transfer of Players (FIFA RSTP) and the rule of good faith and equity. The sell-on clause is a conditional obligation. Therefore, for this provision to be effective, the player must transfer from the new club to the third club, and the new club must receive a transfer fee for this transfer. In the period before the sell-on clause becomes effective, the new club must not prevent the transfer of the player to the third club by acting contrary to the rule of good faith. Otherwise, the condition is deemed fulfilled and the new club is obliged to pay the old club based on the fee determined in accordance with equity. The old club and the new club may agree on the details regarding the sell-on clause in the football player transfer agreement. However, in practice, some agreements do not include the details of the sell-on clause. In such cases, a legal dispute may arise between the parties. In disputes regarding the sell-on clause, the sell-on clause must be interpreted. During the interpretation, the words used by the parties in the sell-on clause should be the basis. Other provisions in the contract, non-contractual events, customs, and traditions should also be considered. In practice, disputes regarding the sell-on clause may arise in the following cases: (1) the new club makes a loan of professionals with the third club, (2) the footballer renews his contract with the new club, (3) the footballer unilaterally terminates his contract with the new club, (4) the new club exchanges the footballer with the third club, (5) the new club transfers a portion of the economic rights of the footballer to the third club, (6) the new club acts against the rule of good faith and (7) simulation in the footballer transfer agreement between the new club and the third club. Most disputes are resolved by examining the words in the sell-on clause. In these disputes, a decision can be reached by interpreting the words used in the sell-on clause, especially by determining whether the word “sale” or the word “transfer” is used in this provision. Since both the old club and the new club are experienced in contracts related to football, it may be assumed&nbsp;that they could consciously choose the words used in the contract and foresee the consequences. On the other hand, in some disputes, a decision can be reached by determining the true and common intention of the parties instead of using unclear expressions in the contract. The Court of Arbitration for Sport (CAS) also uses these methods in its decisions. When the sell-on clause becomes effective, the amount to which the old club is entitled must be calculated. In the football player transfer agreement between the old club and the new club, it may be agreed that the sell-on clause will be calculated by considering the gross or net transfer fee. If there is no agreement regarding this, the sell-on clause should be calculated on the basis of the transfer fee in the football player transfer agreement between the new club and the third club. If the mandatory costs of the transfer are to be paid by the third club, the sell-on clause is calculated on the amount obtained after deduction of these costs. On the other hand, if the mandatory costs are to be paid by the new club, they cannot be deducted from the transfer fee. However, if the third club has paid an amount different from the transfer fee in the football player transfer agreement between the new club and the third club, the calculation should be made taking into account the actual payment. The payment schedule of the sell-on clause is set according to the payment schedule of the transfer fee in the football player transfer agreement between the new club and the third club.

The Sell-On Clause in the Football Player Transfer Agreement

Vural

Prof. Dr.

&nbsp;In this study, the conditions under which the debtor can raise personal defences against the holder of a negotiable instrument under the Turkish Commercial Code (TCC) are examined. Articles 659 and 825 of the TCC stipulate that in commercial bills other than those written to the order of a specific person, personal defences can only be raised if the holder knowingly acts to the detriment of the debtor. Similarly, Article 687 of the TCC specifies that a debtor can only raise a personal defence in a letter of exchange if the holder knowingly acts to the detriment of the debtor. The Regulation also applies to promissory notes and checks. In this context, there is a difference between the concepts of “knowingly acting to the detriment of the debtor” and “deliberately acting to the detriment of the debtor.” The TCC consciously uses these two distinct concepts for different types of negotiable instruments. The aim of this study is to clarify the difference between these two concepts and examine the conditions necessary for a debtor to raise personal defence against the holder using negotiable instruments. According to Articles 659 and 825 of the TCC, a holder who acquires a commercial bill free from personal defences, they must not knowingly act to the detriment of the debtor. In this case, the holder’s good faith is irrelevant. It is sufficient for the debtor to claim that the holder knew or could have known about the harm to the debtor when acquiring the bill. In the case of negotiable instruments, Article 687 of the TCC requires the holder to deliberately act at the detriment of the debtor to be able to raise personal defences. This requires the holder not only to be aware of the existence of the personal defence but also to acquire the instrument with the intent to harm the debtor. Although there is no consensus in the doctrine on this issue, the predominant view is that the holder must have known about the personal defence and acquired the instrument with the intent to prevent it.&nbsp; How a debtor can prove that the holder deliberately acted to his/her own benefit in a negotiable instrument is also problematic. For a debtor to raise a personal defence against the holder, he/she must prove that the holder acquired the instrument deliberately acting to his/her detriment. This presents a significant challenge in terms of the burden of proof. Some authors in the doctrine argue that it is sufficient for the debtor to prove that the holder was aware of the personal defence. However, this approach eliminates the important difference between commercial bills and negotiable instruments in terms of the conditions for raising personal defence against the holder. Despite the difficulties in proving this, the law-established distinction must be maintained. Negotiable instruments are written to order and change hands through endorsement and delivery of possession. In negotiable instruments written to order, personal defences generally cannot be raised by the new holder during the transfer. However, if the holder acquires the instrument deliberately acting to the detriment of the debtor, these defences can be raised (TCC Art. 867/1). This provision allows the debtor to defend himself against a holder who has acquired the instrument through a valid transaction. There are some similarities between the purpose of this provision and the purpose of an action for annulment of a transaction under Article 277 of the Turkish Execution and Bankruptcy Law. The fundamental principle underlying an annulment action is to prevent individuals who are parties to a transaction from causing harm to a creditor. In an action for annulment, the creditor must prove that the debtor’s transactions with third parties have harmed them. To overcome this difficulty, the court established certain presumptions in Article 280 of the Execution and Bankruptcy Law. For instance, it is presumed that third parties with close family relationships with the debtor are aware of the debtor’s insolvency and intent to harm the creditor by making a transaction with the debtor that results in a decrease in their assets. In the practice of the Court of Cassation, it is accepted that if there is a specific close relationship between the holder and the endorser, the holder is considered to be acting in “bad faith”. For example, in situations involving a spouse, friendship, or parent-child relationship, it can be presumed that the holder deliberately acted to the detriment of the debtor. Additionally, in terms of endorsements made between companies, it is accepted that if an organic connection between the endorser and the holder, the holder deliberately acted to the detriment of the debtor. The Court of Cassation’s case law of such presumptions provides ease of proof for debtors, but the lack of concrete criteria in the decisions is open to criticism. The analogous application of the presumptions stipulated in Article 280 of the Execution and Bankruptcy Law can alleviate the heavy burden of proof on the debtor and enhance legal predictability. Thus, a debtor can raise a personal defence against a holder who has acted with the intent to harm them.

Thoughts on the Concepts of Acting ‘Knowingly’ and ‘Deliberately’ to the Detriment of the Debtor in Terms  of Raising Personal Defenses in Negotiable Instruments, and on the Proof That the Holder Deliberately Act ed to the Debtor’s Detriment

Abdülsamet

&nbsp;It can be seen that the police service, which is provided by the state and carries the authority to use force, can be divided into different types in terms of their nature. Regardless of its type, it is clear that police activities are in a serious relationship with the fundamental rights of individuals. In this regard, how the police service is organised in a country will have extremely important consequences on individual rights. Because it is undeniable that police officers who have the authority to use force on individuals carry a potential risk to their fundamental rights. The relationship between the police and the fundamental rights of individuals is not just about having the authority to use force over them. As a matter of fact, the difference in quality between the administrative police, which emerged before the crime and works for the protection of public order and security, thus called preventive law enforcement, and the judicial police, which started to work after the crime and assisted the investigation carried out by the prosecutor, is an extremely important aspect. In this context, although it is understandable for the administrative police to work under the hierarchy of administrative authorities, it is a serious problem how and where the judicial police, which takes part in independent and impartial criminal investigations, should be located. This is important both in terms of the expectation of a fair trial of those who are investigated as suspects and in terms of satisfying the wishes of the victims of the crime to clarify the act of crime and punish the responsible. Because administrative police officers who served before the crime and worked under the command of the administration, re-entering the field after the crime may cause serious problems, especially in terms of independence. The biggest problem that may occur in this context is investigations in which the perpetrators of the crime are the administrative police officers themselves. There is a high probability of serious violations against individuals, especially in the context of the right to life and the prohibition of torture and inhuman or degrading treatments, due to the force used while performing administrative police activities. Therefore, while investigating these acts, it is of great importance for judicial police to be separated from these administrative police officers. Administrative and judicial law enforcement in Turkiye are organised under the same organisation. Indeed, when the criminal procedure law is examined, it is understood that both law enforcement agencies are separated not in terms of organisation, but in terms of duty. Accordingly, some police officers working in the same organisation are engaged in administrative affairs, while others take on judicial duties. Although the job definitions of the personnel in question are made in this way, both types of law enforcement work within the same organisation and are subject to the same status in terms of appointment, disciplinary regulations, and other aspects. In addition, as the law provided that the judicial police would work under the command of the &nbsp;prosecutor when carrying out judicial proceedings, it stated that at other times, they would be subordinate to the hierarchy of their administrative superiors. In addition, the law states that administrative police officers will assist in judicial affairs when necessary. In this case, we come across a view where law enforcement in Turkiye is completely intertwined and entangled in terms of judicial and administrative polices. This issue has been discussed in the criminal and administrative law literature for a long time, and various remarks have been made. Some have defended this system, but on the contrary, opinions suggest that both police agencies should be completely separated from each other. However, it is rare to find that the issue is examined in constitutional law. In this study, after summarising the opinions in the criminal and administrative law literature, it has mainly been tried to examine the issue with the data of constitutional law. In this context, during the practice of individual application, which has become the dominant tool of the constitutional judiciary, serious violations have emerged because of the current structure of law enforcement. Indeed, the Constitutional Court has issued many violations in the context of investigating crimes such as murder, injury, or degrading treatment in which administrative police officials are potential perpetrators. The reason that led the Court to this conclusion in these cases is often the fact that the incident was not investigated independently and effectively. There is no doubt that Turkiye is in direct contact with the above-mentioned organisational form of law enforcement. In this article, some of the decisions of the Constitutional Court are examined in detail, and it is tried to be revealed in all clarity how the judicial police, which is under the same organisation with the administrative police, cannot effectively investigate such events. Thus, it has been concluded that a judicial police agency separate from the administrative police is necessary to protect fundamental rights more effectively and fulfil the state’s positive obligations in this context.

A Different Approach to Law Enforcement Discussions in Turkiye: Evaluation of The Separate Organisation  of The Judicial And Administrative Police Considering The Constitutional Court’s Decisions on Individual  Applications

Dilara

İbrahim

Assist. Prof.

Arbitration, an alternative dispute resolution method, is increasingly being used to resolve sports disputes and is also gaining popularity in Turkish law. According to Article 59 of the Constitution of the Republic of Turkey (the Constitution), the decisions of sports federations related to the administration and discipline of sporting activities can be challenged only through compulsory arbitration. The arbitral board’s awards are final and shall not be appealed to any judicial authority. This means that disputes related to the decisions of sports federations concerning the management and discipline of sporting activities must be resolved through arbitration. The arbitral board possesses supreme authority in these cases, and its judgments are conclusive. As per the provision of the Constitution and other related regulations, such as article 6 of the law, Nr. 5894 on Establishment and Duties of the Turkish Football Federation, the Turkish Football Federation Arbitration Board (TFF Arbitration Board) is the sole entity empowered to receive objections regarding decisions about the management and discipline of sporting activities by the Turkish Football Federation (TFF). Therefore, arbitration is compulsory for decisions about the management and discipline of the TFF’s sporting activities. This means that the parties are forced to initiate proceedings before the TFF Arbitration Board instead of the national court, and the decisions made by the Board are conclusive and cannot be contested. In disputes where the TFF Arbitration Board is the sole authorised body, any objections regarding the constitutionality of the laws applied must also be directed to the Board. Nonetheless, it is unclear whether concrete norm control measures can be implemented when any party or the Board finds a constitutional violation during arbitrations conducted by the TFF Arbitration Board. It is crucial to review the Board’s jurisdiction to assess claims of unconstitutional laws because it is the only authorised body, and its decisions cannot be appealed.&nbsp;The parties’ only recourse is to seek protection of their fundamental rights through concrete norm control through the TFF Arbitration Board. This is because the Board’s decisions regarding the management and discipline of sports activities are final, and individuals cannot start a case at the Turkish Constitutional Court through an individual application. Maintaining concrete norm control is crucial to safeguarding fundamental rights and freedoms guaranteed by the Constitution for sports stakeholders. Concrete norm control also helps eliminate any unconstitutional regulations in sports law. Therefore, during arbitrations managed by the TFF Arbitration Boards, the parties should have the right to raise objections. The Board should also have the authority to bring such objections before the Constitutional Court. This study examines the decision of Ali Rıza and Others v. Turkey (Case of European Court of Human Rights app no. 30226/10 dated 28 January 2020) and its effects as a hypothetical case study. In its decision, the Court ruled that Mr. Riza’s fair trial rights, as stated in Article 6 of the European Convention of Human Rights, were violated due to structural deficiencies in the TFF Arbitration Board. Since the same structural defects are still in Turkish law, any decisions of the TFF Arbitration Board would be tainted by the possibility of violating the parties’ fair trial rights. Therefore, parties should have the right to challenge the constitutionality of laws and apply for concrete norm control during arbitration, which is managed by the TFF Arbitration Board. When initiating concrete norm control in cases that the TFF Arbitration Board manages, it is vital to evaluate the criteria for concrete norm control stated in the Constitution. Considering this objective, this study first examines compulsory arbitration in Turkish sport law. This highlights a potential issue of unconstitutionality, as stated in the Ali Rıza and Others v. Turkey, which could be brought before the TFF Arbitration Board. Then, each condition for resorting to concrete norm control, as stated in Article 152 of the Constitution, is evaluated within the scope of the mandatory arbitration proceedings of the TFF Arbitration Board. This study examines European Court of Human Rights rulings, decisions made by Constitutional Courts, and constitutional laws from multiple countries for comparative law analysis. This section concludes by discussing the required modifications to be made in the positive law.

A Review of the Possibility of Application for Concrete Norm Control by the Turkish Football Federation  Arbitration Board

Elif

The period, which went down in European history as “The Age of the Witch Hunts”, has been the subject of many historical studies with several aspects, such as its causes, consequences, and varying characteristics in different geographic contexts. However, the analysis of the legal aspects of the hunt, which was essentially a judicial process, has remained relatively obscure. Although the role and details of the inquisitorial system that became valid in the 13th century in regions where the hunt was intense have been examined in some studies, the operation of various tacit assumptions and prejudices in the cases of witchcraft needs to be analysed. In particular, the marginal characteristics of the general profile of victims raise doubts about the existence of a metaphor of anomalousness that justified the verdict of conviction. The objective of this article is to investigate whether it is possible to confirm this suspicion. Employing the feminist method that reveals the role of metaphors in judicial decisions, this article aims to discover whether the metaphor in question had impacts in the cases of witchcraft, if so, how it operated, and what kind of components it consisted of. To verify the possible operation of the metaphor, the feminist method aimed at revealing gender-based assumptions that constitute the rationale for judicial decisions was employed. As a result of the application of the aforementioned method to cases of witchcraft, it has been argued that unmarried, old, and mostly poor women, who were found dangerous by the ruling classes, were targeted as Satan’s followers within the framework of the modern witchcraft notion formulated by the same groups. Although the main victims were also often considered eccentric by their neighbours, the transformation of their harmless anomalousness into a rationale for witchcraft accusations occurred in the late Medieval and Early Modern periods as a result of the efforts made by the ruling elites, especially by the clergy. Therefore, it has been pointed out that as a result of the operation of the metaphor of anomalousness, which was established by the classes that organised the hunt, women displaying the components of the metaphor, namely, unmarried, old, and poor women, were made the main target of the hunt. Principally, the data obtained from the writings and the statements of demonologists and witch hunters has been used as a basis for determining the role of the ruling classes in the association of unmarried, old, and poor women with the crime of witchcraft. In this article, the single status of the accused women is presented as the principal element of the metaphor. As outcasts free of masculine control, unmarried women were often found threatening and targeted as prominent suspects by the ruling elite of medieval and early modern Christian Europe, where the family was a fundamental social structure. It has been revealed that these women, who were also seen as a social problem by the ruling classes due to their poverty, became the bearer of another component of the metaphor, as a result of the presumption that they made a pact with Satan in exchange for pecuniary gain. Finally, the vulnerability of old women to witchcraft accusations was examined as a result of gendered prejudices such as their so-called envy against the “fertility” of young mothers and wives. In response to the questions put forward in the first paragraph, it has been concluded that unmarried, old, and poor women who were found dangerous by ruling classes were targeted as Satan’s servants within the framework of the modern concept of witchcraft. The anomalousness attributed to the civil status, age, and class of these women often served as a rationale for the witchcraft accusations. Thus, it has been noted that as a result of the operation of the metaphor of anomalousness, unmarried, old, and poor women who displayed the characteristics of the metaphor were the main targets of the accusations. It has been highlighted that with the introduction of the new criminal procedure, which allowed the use of torture in the cases of witchcraft and imposed both the burden of proof and the determination of the verdict on the court, the operation of this metaphor not only resulted in the accusation but also in the conviction, and therefore in the execution of thousands of anomalous women at the stage of the criminal charge.

The Metaphor of Anomalousness in European Witch Trials During the Late Medieval and Early Modern  Periods

Hayrettin

&nbsp;The Zoning Law No. 3194 dated 03.05.1985, is the main source of the Turkish Zoning Law. The law regulates which administrations are authorised in terms of zoning and the extent and content of the authorities of such administrations. The main feature of administrative law is the lack of authority; however, the state of being authorised is the exception. Therefore, if it is claimed that an administration is authorised on a certain issue, the relevant legislative provision should be proposed. In this respect, the law gives various administrations the authority to perform regulatory transactions on matters concerning zoning law and the authority to perform individual transactions. At the beginning of these administrations are the Ministry of Environment, Urbanisation and Climate Change, provincial special administrations, and municipalities. When Law No. 3194 is examined, it can be stated that local administrations are the general authorities, and the Ministry of Environment, Urbanisation and Climate Change is the exceptional authority. From this standpoint, it may be brought forward that the authority to make master and implementation development plans that concretely determine the structure of the city rests with local administrations. However, article 9 of the Law mentions that, the powers of the Ministry are regulated so broadly that it can be asserted that the powers of local administrations are secondary to the authorities of the Ministry. According to this regulation, the Ministry is authorised to change the zoning plans made by local administrations when deemed necessary, as well as to make, have these plans made and approve them ex officio. In addition to this, the Ministry can give instructions to the municipality through the governorship in case of a need to include official buildings and facilities in the zoning plan for the purpose of performing public services, or in case of changes, or making and approving the plan on this issue, and resolving disputes related to zoning plans that concern more than one municipality. While some of the authorities of the Ministry in this regulation are the primary powers given to it, some of them are tutelage powers. In general, the tutelage authority is the control and intervention authority carried out by another administration over the transactions and personnel of an administration with a public legal personality.&nbsp; However, the powers in Article 9 are so wide that it may be stated that the Ministry has the opportunity to override the authorities of local administrations on zoning planning. However, giving so much power to the Ministry indicates a departure from the rule of autonomy of local administrations and the principle of subsidiarity. However, it would not be right to think that the authority of the Ministry on Zoning Planning is unlimited. The arrangement itself has some limitations. The Ministry may use its powers in paragraph 1 “when necessary”, “by cooperating when necessary” and “informing the relevant administrations in this way”. Therefore, when applying for this authority, the applicant must meet the conditions set out in the article. There are also other limitations in the article. In addition, in accordance with the rule of the gradual unity of the plans, the Ministry must act in conformity with the upper tier plans when making changes to the plan. Despite this, it is doubtful that these restrictions are insufficient and that the Ministry may see an obstacle in exercising the powers contained in this regulation. On the other hand, in conformity with the principle of parallelism of power and procedure, it may not be possible for the local administration to alter a plan previously made by the Ministry. This means that local administrations cannot use this power. taking away the possibility of the local administration to use this power. In this respect, revealing the content and legal characteristics of the Ministry’s powers in the aforementioned article deems useful.&nbsp;

The Powers of The Ministry of Environment, Urbanisation and Climate Change Regarding The Zoning   Planing in The Context of Article 9 of The Zoning Law

Murat

&nbsp;In the name of legal certainty, the language of law has been approached from a mathematical and logical perspective. Most of us accept that law includes logic to some extent. However, the view that mathematical language resembles law has led to controversy. Some of these discussions attempted to reduce the law to a mathematical language by focusing on mathematical certainty. In this sense, reducing the legal language to a mathematical formula may achieve certainty. In other words, it aims to create definitions similar to those in mathematics for the general validity of legal concepts. At the same time, for this purpose, the present study attempts to identify the moral background of law with the apriori field of mathematics. Discussions on the other side focused on the conclusion that law derives from complex human relations, arguing that mathematical language is invalid in law. They argued that such reductions were invalid, claiming that the two domains were independent of each other. In fact, both discussions focused on the direct representation of law as a mathematical language. Law has neither purely mathematical precision nor a view that there is no mathematical objectivity. The focus should be on the similarity between law and mathematical language. In fact, the fields of law and mathematics cross borders without syntheses and identification. Mathematics tries to analyse the infinite by reducing it to symbols. The ∞ symbol denotes infinite equals. This symbol simply helps us understand the concept of infinity, which we cannot fully comprehend. Law also symbolizes justice, equality, and the scales. The scale symbolizes these two concepts, which we can never reach completely. Of course, the holders of these scales may vary, and the realisation of these concepts may vary. Both approaches attempt to identify areas of uncertainty. Our primary purpose here is to reveal the relationship between law, logic, and mathematics. Although mathematical methods are not used in law, law uses logical techniques. Although law does not use mathematical methods, law and mathematics can be observed within the same limits. Our aim here will be to dwell on the similarities between mathematical reasoning and legal reasoning rather than reducing law to a purely mathematical level. After the similarities between law and mathematical propositions, how important is the effect of mathematical reasoning on law? Does mathematical reasoning provide fairness to the law? Does it also provide objectivity? We will discuss the effect of logic on legal reasoning with questions like these. In fact, our aim in this study was not to create a purely mathematical law. In fact, it would be utopian to accept the foundations of law and mathematics as identical to undertake such a business. At the same time, efforts to construct a law using a purely mathematical language are one of the most dangerous ways. The effort to mathematize the law is only due to efforts to create a legal field and to realise&nbsp;&nbsp;justice. In such a situation, ignoring the exceptions in law causes the language of the law to be unfairly constructed. However, logic is effective in making correct inferences in law. Although mathematics does not explicitly source law, the function of logic in law is obvious. As a matter of fact, few lawyers would seriously defend the thesis that legal decision-making consists solely of applying the facts of a case to a rule to draw legal consequences. Considering the content of the rule and the decisions regarding the classification of events, the legal consequences of the case are handled logically.

Philosophical Foundations of Law’s Relationship with Mathematics: Is Law Having Mathematical  Certainty?

Peri

&nbsp;This paper first examines discrimination as a concept in general, defining its components and classifications as direct discrimination, indirect discrimination, positive discrimination, multiple (intersectional) discrimination, compound discrimination, structural discrimination. After emphasising that human rights cannot be understood only as adult rights and that every individual has human rights regardless of age, discrimination against children and international instruments that guarantee their rights against discrimination are evaluated in detail. In this context, the major international human rights conventions in which children are protected by anti-discrimination provisions are highlighted. In particular, the Convention on the Rights of the Child (CRC) is analysed as the most widely accepted and rapidly ratified international human rights treaty in history. The significance of the CRC as a unique international instrument that ensures children’s rights, protects them from all forms of discrimination, imposes obligations on States to respect and fulfil the rights set out in the CRC is emphasised. In the rest of this paper, discrimination against children on multiple grounds is discussed in a comparative perspective, in light of the various landmark decisions of the European Court of Human Rights and the US Supreme Court, to understand the approaches of these two judicial authorities in protecting children against discrimination. In the United States, where children’s rights are not directly regulated in the US Constitution and the Convention on the Rights of the Child has not been ratified by the US Government, the US jurisprudence of the Supreme Court has significantly contributed to the recognition of children’s rights. On the other hand, the European Court of Human Rights has been instrumental in promoting access to remedies for children in relation to their right to be free from discrimination. Article 14 of the European Convention on Human Rights provides for the prohibition of discrimination and ensures that the full exercise of the rights set out in the Convention without discrimination based on any factor. The Convention does not define the child; however, Article 1 of the Convention requires State Parties to guarantee the rights mentioned in the Convention to “everyone” under their authority. The European Court of Human Rights has adopted this approach in its judgement and has accepted the definition of the “child” of the UN Convention on the Rights of the Child (CRC). The European Court of Human Rights has recognised the significance of the CRC and has often referred to it in its rulings. Both the European Court of Human Rights and the US Supreme Court have an extensive body of case law on discrimination against children, particularly based on ethnic background, disability, age, birth, other grounds as religion and language. In the light of these monumental decisions it is analysed how these Courts interpret and address the discrimination issues, whether they take into account the “best interests&nbsp;of the child” when deciding cases related to discrimination against children, whether these Courts are receptive to achieve a beneficial outcome for a disadvantaged group, and finally, whether these Courts have adapted the interpretation of rights provisions to constantly evolving circumstances and situations when interpreting these provisions, in other words, whether these Courts have interpreted the instruments such as the US Constitution and the European Convention on Human Rights as living documents or not. Finally, in conclusion, evaluations are provided in line with the formulation and jurisprudence of both Courts on landmark cases of discrimination against children.

”Discrimination Against Children” in the Light of Landmark Decisions  of the European Court of Human Rights and the Us Supreme Court

Esin

Esra

Res. Assist.

The Limits and Challenges of Comparativism

Fethi

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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

Assoc. Prof.

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.

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

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Language Editor

Editor

@INFO_TAB_BOARDS

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

Aim and Scope

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

Indexing and Abstracting

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

Policies

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

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

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

Editor should consider publishing correction if minor errors that do not effect the results, interpretations and conclusions of the published paper are detected. Editor should consider retraction if major errors and/or misconduction that invalidate results and conclusions are detected.Editor should consider issuing an expression of concern if there is evidence of research or publication misconduct by the authors; there is evidence that the findings are not reliable and institutions of the authors do not investigate the case or the possible investigation seems to be unfair or nonconclusive. The guidelines of <a href="https://publicationethics.org/resources/flowcharts/complete-set-english" target="_blank">COPE</a> and <a href="https://www.icmje.org/recommendations/" target="_blank">ICJME</a> are taken into consideration regarding correction, retractions or expression of concern.RetractionJournal follows <a href="https://publicationethics.org/sites/default/files/retraction-guidelines-cope.pdf" target="_blank">COPE’s Retraction Guidelines</a> in case of retraction. The editor has the right to retract an article if: <ul><li>There is clear evidence that the findings are unreliable; either as a result of a major error (e.g. miscalculation or experimental error), or as a result of fabrication (e.g. of data) or falsification (e.g. image manipulation).</li><li>It contains plagiarised content. </li><li>It has been published elsewhere without proper attribution. </li><li>It contains material or data without authorisation for use.</li><li>There is copyright infringement or there is some other serious legal issue.</li><li>It reports unethical research. </li><li>There is evidence that the peer-review process is compromised or manipulated.</li><li>The author(s) failed to disclose a significant competing interest (also known as a conflict of interest) that, in the opinion of the editor, would have unduly influenced the interpretation of the work or the recommendations of the editors and peer reviewers.</li></ul>In case of retraction the following steps are followed:<ul><li>Retraction notice including article title is published in a subsequent issue of the journal. The retraction notice is paginated and listed in the table of contents. </li><li>A link is provided between the retraction notice and the original article in the electronic version. </li><li>The online article is preceded by a page containing the retraction notice; the reader can then proceed to the article itself.</li><li>The original article remains unchanged, except for a watermark on the .pdf on each page stating that it has been &#34;retracted”.</li></ul>Article Removal for Legal ReasonsIn the following circumstances, except the metadata (title and authors), the text of the article is removed and a page informing that the article has been removed for legal reasons replaces the article. <ul><li>The article is found to be defamatory or to infringe the legal rights of others, and retraction is not deemed to be an adequate solution.</li><li>The article has been, or is reasonably likely to be the subject of a court order.</li><li>There is a significant risk to public health. </li></ul>

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

The Artificial Intelligence Policy, prepared in light of developments in artificial intelligence (AI) and practices in scholarly publishing, sets out the editorial and ethical principles that authors, reviewers, and editors should follow when using such technologies. The following sources have been considered in the preparation of the AI policy:Committee on Publication Ethics <a href="https://publicationethics.org/guidance/cope-position/authorship-and-ai-tools" target="_blank">(COPE) - Authorship and AI tools</a>; International Committee of Medical Journal Editors <a href="https://www.icmje.org/recommendations/browse/roles-and-responsibilities/defining-the-role-of-authors-and-contributors.html#four" target="_blank">(ICMJE) - Artificial Intelligence (AI)-Assisted Technology; World Association of Medical Editors  (WAME) Chatbots, Generative AI, and Scholarly Manuscripts</a><a href="https://www.icmje.org/recommendations/browse/roles-and-responsibilities/defining-the-role-of-authors-and-contributors.html#four"></a>AI-assisted technologies (such as large language models [LLMs], chatbots, or image generators) can develop and produce a wide variety of content, including text, images, audio, and synthetic data. When used ethically and safely, these capabilities can increase productivity and foster innovation, but when used without human guidance, they pose risks such as inaccurate and biased results, omissions and errors in citations, deficiencies in protecting privacy and intellectual property rights, and potential violations of authors' and publishers' rights. IUPress adopts the following core principles to avoid these risks in the use of AI:  <ul><li>Details of any AI used in the production of content (including but not limited to text, figures, images, and code) must be declared and clearly explained in the appropriate section of the paper (as an acknowledgement and/or in the methods section). </li><li>No AI tool may be listed as an author in any scientific paper. </li><li>Authors are responsible for the accuracy, completeness, and originality of their work, even if AI is used in any way; they are responsible for the proper referencing and attribution of others' ideas, data, words, or other materials. </li><li>Reviewers and editors must not upload submitted work, in whole or in part, to any generative AI application.</li></ul>In the editorial processes of IUPress publications, tools are available to assist editors in identifying AI-generated content. On the other hand, it is common to use AI tools that provide suggestions for improving and enhancing readability, language, and grammar, and such AI tools can be used in IUPress publications under the supervision of editors and authors.

Artificial Intelligence Policy

<ul><li>Authors are required to declare if they have used AI-assisted technologies (such as large language models [LLMs], chatbots, or image generators) in the creation of their submitted work. </li><li>Authors should explain, both in the cover letter and in the appropriate section of the submitted paper (as a footnote and/or in the methods section), which AI tool and which version of it they have used and for what purpose. </li><li>Authors should also indicate how they used the AI tool and how they assessed the validity of the results obtained using this technology, and what aspects of the paper, manuscript content, data or supporting files were influenced by the use of the AI tool or were generated by AI.</li><li>It is the authors' responsibility to ensure the accuracy, validity and appropriateness of content and citations generated by AI-assisted technologies and to eliminate potential errors, inconsistencies and biased results. </li><li>Authors should always check the original sources to eliminate possible plagiarism, recognising that there is a potential for plagiarism in texts produced with AI-assisted technologies. They should confirm that they have checked and that the sources are original.  </li><li>AI-assisted tools (such as ChatGPT) cannot be listed as authors because they cannot be responsible for the accuracy, integrity, and originality of the work, and these responsibilities are essential to authorship. Therefore, authors are responsible for all material involving the use of AI-assisted technologies. Authors should ensure that all statements in the article that state the hypotheses, interpretations, conclusions, limitations, and implications of the study represent their own opinions.  </li><li>Studies created by authors using AI tools in the following ways, which substitute for the basic researcher's and author's responsibilities, violate the principles of scientific publishing and publication ethics, and such studies are not eligible for inclusion in publications: </li></ul><ul><ul><li>Generation of text or code without rigorous review, </li><li>Generation of synthetic data to replace missing data without a robust methodology, </li><li>Creation of any inaccurate, synthetic content, including abstracts or supplementary materials, </li><li>Creation and manipulation of images and figures (pictures, graphs, data tables, medical images, image snippets, computer codes and formulae) or original research data (enhancing, hiding, moving, removing or adding a particular feature within an image or figure) using AI.</li></ul></ul>

It is essential to maintain confidentiality in the peer review process and not to share or use the reviewed work in this process. <a href="https://publicationethics.org/sites/default/files/ethical-guidelines-peer-reviewers-cope.pdf" target="_blank">(COPE – Ethical Guidelines for Peer Reviewers</a>)<ul><li>Reviewers should not upload a manuscript or part of a manuscript submitted to them for review to generative AI tools or large language models to assist in the review, evaluation or decision-making process, as uploading content to such AI tools by reviewers violates the authors' privacy and property rights.  </li><li>Reviewing a scientific paper is a responsibility that can only be undertaken by human beings. The critical thinking and original evaluation required for peer review is beyond the scope of this technology, and there is a risk that the technology will produce inaccurate, incomplete or biased conclusions about the paper. The peer review report and decision letters should reflect the personal assessment of the reviewers and editors of the submitted content. The reviewer is responsible and accountable for the content of his/her report. </li><li>AI tools may be used in a limited way to improve the quality of the language of the peer review report (for translation or language editing) in the context of peer review. If such use is made, the reviewer must declare the use when submitting the report. </li><li>Reviewers who suspect inappropriate or undisclosed use of generative AI in a submission should report their concerns to the editor.</li></ul>

Editors are obliged to ensure that the confidentiality of the manuscripts submitted to the journal is maintained during the evaluation process, and it is essential that the peer-reviewed work is not shared or used outside the parties involved in that process. (COPE - Code of Conduct and Best Practice Guidelines for Journal Editors) <a href="https://publicationethics.org/files/Code_of_conduct_for_journal_editors_Mar11.pdf" target="_blank">(COPE – Code of Conduct and Best Practice Guidelines for Journal Editors)</a>.<ul><li>Editors should not upload a submitted article, or any part of it, to generative Artificial Intelligence tools or Big Language Models to assist in the review, evaluation or decision-making process, as this may violate authors' privacy and property rights. </li><li>Managing the editorial review of a scientific article implies responsibilities that can only be attributed to humans. Generative AI or AI-assisted technologies should not be used by editors to assist in the evaluation or decision-making process of an article, as the critical thinking and original evaluation required for this task is beyond the scope of this technology and there is a risk that the technology will produce inaccurate, incomplete or biased conclusions about the article. The editor is responsible and accountable for the editorial process, the final decision and its communication to the authors.</li><li>Editors should not use generative AI tools to compose decision letters or abstracts of unpublished research. </li><li>Editors may use generative AI tools to help find appropriate reviewers.</li><li>If editors suspect the use of generative AI in a submitted manuscript or a submitted referee report, they should conduct an editorial review of the matter and consider the policy.</li></ul>

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

Ethics

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

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

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

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

Peer Review

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

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

Author Guidelines

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

Although references to review articles can be an efficient way to guide readers to a body of literature, review articles do not always reflect original work accurately. Readers should therefore be provided with direct references to original research sources whenever possible. On the other hand, extensive lists of references to original work on a topic can use excessive space on the printed page. Small numbers of references to key original papers often serve as well as more exhaustive lists, particularly since references can now be added to the electronic version of published papers, and since electronic literature searching allows readers to retrieve published literature efficiently. Papers accepted but not yet included in the issue are published online in the Early View section and they should be cited as “advance online publication”. 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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.

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<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)	Fethi Gedikli, Ali Paslı
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Istanbul Law Review

VOLUME 83, ISSUE 1, 2025

Consequences of Pre-emption Clauses in Lease Agreements When the Contract Ends

Analysis of Directive (EU) 2023/970 on Pay Transparency in Comparison with Turkish and German Law

Incontestability Provisions in Life Insurance in the Context of Article 1498 of the Turkish Commercial Code

Evaluation of Applications to the Insurance Arbitration Commission with the Claim of Increased Degree of Incapacity for Work Under the Rule “No Application Can Be Made to the Commission Regarding Disputes Referred to the Court” (Article 30/14 of the Insurance Law)

Acquisition of Rights in Rem by a Bona Fide Third Party From a Transferee in Cases Where the Transferor’s Will Has Been Impaired

The Sell-On Clause in the Football Player Transfer Agreement

Thoughts on the Concepts of Acting ‘Knowingly’ and ‘Deliberately’ to the Detriment of the Debtor in Terms of Raising Personal Defenses in Negotiable Instruments, and on the Proof That the Holder Deliberately Act ed to the Debtor’s Detriment

A Different Approach to Law Enforcement Discussions in Turkiye: Evaluation of The Separate Organisation of The Judicial And Administrative Police Considering The Constitutional Court’s Decisions on Individual Applications

A Review of the Possibility of Application for Concrete Norm Control by the Turkish Football Federation Arbitration Board

The Metaphor of Anomalousness in European Witch Trials During the Late Medieval and Early Modern Periods

The Powers of The Ministry of Environment, Urbanisation and Climate Change Regarding The Zoning Planing in The Context of Article 9 of The Zoning Law

Philosophical Foundations of Law’s Relationship with Mathematics: Is Law Having Mathematical Certainty?

”Discrimination Against Children” in the Light of Landmark Decisions of the European Court of Human Rights and the Us Supreme Court

The Limits and Challenges of Comparativism

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