Funda

Assist. Prof.

With the Digitalisation Directive (EU) 2019/1151, many regulations have been made regarding company law to increase digital applications. The main purpose of the directive is to facilitate the formation and registration of companies within the borders of the EU by enabling the use of digital tools and methods in the field of company law. In particular, the aim is to reduce the cost of incorporating start-ups and small- and medium-sized businesses as well as their time and administrative burdens. The EU member state of Germany recently passed Gesetz zur Umsetzung der Digitalisierungsrichtlinie [Law Implementing the Digitalization Directive, or DiRUG] in order to transpose the directive’s provisions into national law and entered into force on August 1, 2022.The directive requires member states to ensure that the online formation of limited liability companies with cash capital may be carried out completely online without the need for applicants to appear in person before any authority. The decisions regarding whether online formation is possible for other kinds of companies and whether online formation can occur for limited liability companies with capital-in-kind are left to the member states. Meanwhile, member states are required to provide templates for the online formation of limited liability companies and make them available to citizens (or legal persons) of EU member states in order to facilitate the cross-border formation of corporations within the EU. The Directive has specifically pointed out certain issues that need to be regulated by member states in order to avoid some possible abuses and security breaches. However, the power to lay down detailed rules for the online formation of corporations has been absolutely left to the member states. German law provides the online formation only for limited liability companies with cash capital, while other types of companies and limited liability companies to be formed with non-cash capital are excluded from the scope of online formation. However, from August 1st, 2023, GmbHs that are to be founded with in-kind capital can also be founded online. New regulations in German law as created by DiRUG make it possible to handle the formation procedures completely online via video communication systems without applicants having to appear in person at a notary public. However, in cases where the notar [notary] is unable to perform their duties via the video communication system (e.g., if one of the parties cannot be identified or doubts exist about their legal capacity), the notary may refuse to carry out the transactions via the video communication system and require the physical participation of the person or persons concerned.In addition to the possibility of online formation, the directive also contains regulations regarding the online filing of documents and information to the commercial register. In this context, member states are obliged to ensure that the relevant documents are able to be submitted completely online, thus enabling the registration process to be carried out online without the applicant having to appear in person before the person or institution responsible for carrying out the online submission procedure. In order to comply with this directive, DiRUG regulates German law to require notary to also be able to electronically certify the qualified electronic signatures to be executed via the video communication system. This means the law recognizes the possibility to electronically transmit documents created via the video communication system directly to the register. However, German legislation has made an exception to this, regulating that the notary may refuse online certification and require the physical participation of the person or persons concerned so that the notary can properly conduct the business, such as may occur in the case of online company formation.Another innovation of the directive is the removal of the obligation to publish company documents and information with regard to disclosure. Instead, the register entries regarding the documents and information concerned are envisaged as being made directly accessible electronically/online. This regulation of the directive abolishes the dual disclosure system in German law, which had taken place via two separate internet portals in the form of online access to registration documents and separate disclosure of documents and information. Under the new system, only the entries in the register will be made accessible online, with the first retrieval of the entry in the commercial register via the electronic information and communication system being deemed a disclosure. The new system provides accessibility to the information entered onto the companies registers of member states, so that no difference will occur between the announced status and the recorded information. For this reason, the rule about the protection of confidence has been adapted to the new system, with the expression “confidence in the announced situation is preserved” being changed to “confidence in the registered situation is preserved.”

2019/1151 sayılı AB Dijitalleşme Yönergesi ve Alman Hukuku (DİRUG) Uyarınca Online Şirket Kuruluşu, Sicile Online İbraz ve Sicil Kayıtlarının Online İlanı

Gözde

Res. Assist.

Bilge

Assoc. Prof.

This article is conducted regarding decisions of the Turkish Constitutional Court protecting the justifications of trial courts through Law No. 6284 on Protecting Family and Preventing Violence Against Women. The article focuses on individual applications to the Constitutional Court about the sentences within the scope of Articles 4 and 5 regarding Law No. 6284.&nbsp;Article 4 of the Turkish Constitution mainly involves protective cautionary decisions, and Article 5 addresses the preventive cautionary decisions judges are to make. Regarding cases involving Law No. 6284 in the courts of first instance, judges have declared potentially guilty persons to be the perpetrator of violence at sentencing by considering the victim’s declaration of violence as actual fact in cases where no concrete evidence is found. This situation is the issue this article addresses, as not applying the presumption of innocence to sentences may be cause for an unfair accusation of the potentially guilty person, and this appears as a violation of that person’s individual rights.Based on the assumption of the article, this study examines the relationship between sentencing guidelines in Article 4 and in Article 5 with regard to Law No. 6284 as well as the objections presented to the Constitutional Court for evaluating the sentences received from the courts of first instance. First, the article selects the applications resulting from Law No. 6284 to the Constitutional Court, of which 22 applications were found. The article then identified the ones directly related Articles 4 and 5. Nine of these were found to be in violation of individual rights, two to not be in violation, and nine to have been declared expressly bereft of any merit.The evaluations of the Constitutional Court were seen to mostly be based on considering personal inviolability, the individual’s material and moral circumstances, and the freedom to claim rights based on the right to a fair trial and the right of a reasonable decision. Hence, the categorization of the applications in this study’s analysis fall under three main frameworks: (1) a consideration of personal inviolability of the individual’s material and moral circumstances (Art.17), (2) freedom to claim rights based on the right to a fair trial and the right to a reasonable decision (Art. 36), and (3) presumption of innocence (Art. 38/4). The study summarizes the sentences from the courts of first instance under these three headings and then analyzes and discusses the decisions of the Constitutional Court.Therefore, the argument of the article involves the indirect result of a potential aggrievement of women who declare having been subjected to violence, due to which the Constitutional Court then makes a decision regarding the violation of the individual rights of the person declared as the perpetrator of violence as a result of issues implementing Law No. 6284. Hence, this study aims to analyze the Constitutional Court’s violation decisions by considering the individual’s personal inviolability and material and moral circumstances of the individual (Art. 17), freedom to claim rights based on the right to a fair trial and the right to a reasonable decision, and the individual’s presumption of innocence (Art. 36; Art. 38/4).As a result, the decisions of the Constitutional Court basically reveal that the language of the judge in the court of first instance needs to be corrected through gender sensitivity training. The remarks from the Constitutional Court declare that the usage of judges created an extra disadvantaged position for the victims of violence due to the claim of unfair accusations. The judges of the Constitutional Court very importantly needed to remain unbiased as the decision regarding the applications were based on the presumption of innocence.Thus, this article’s analysis presents assumptions and suggestions for better implementing Law No. 6284 through the enquiry of violation decisions by the Constitutional Court. One effective method may involve a basic handbook for training judges, or face-to-face vocational training seminars. Those would be very efficient ways to solve the problem of rights violations from the start.&nbsp;

Bireysel Başvurularda Ailenin Korunması ve Kadına Karşı Şiddetin  Önlenmesi Kararlarının İncelenmesi

Burcu

With the widespread use of digital platforms over a short time, the legal status of those working on digital platforms has become an important issue in recent years. The fact that these new labor relations differ from traditional dependent labor relations and are non-uniform has led to the emergence of different views on the legal status of digital platform workers.Due to the experienced economic crisis, the effects of which are still ongoing, as well as various other socio-cultural reasons, platform work has become widespread in Spain in a short time compared to most European countries. Spain has created an important employment opportunity for its working age population, especially in terms of on-location platform work, and ranks as the European country with the highest ratio of digital platform workers out of the entire working age population in recent years. Some of the most common digital platforms in the country are delivery platforms. With the effect of their prevalence, the legal status of delivery platform workers has quickly become an important issue in Spanish Law. Disputes regarding the legal status of delivery couriers began being brought to the judiciary, with different rulings rapidly being made on the subject in various autonomous regions of the country. Resolving these various rulings regarding the legal status of couriers, working on delivery platforms have become necessary as per the decision to combine jurisprudence.The Spanish Supreme Court decided with its ruling to consolidate its case-law on 9/25/2020 that delivery platform couriers have the status of employees in accordance with the Spanish Labour Law. The Supreme Court stated digital delivery platforms to not only be an intermediary but to also be a company that has the required organization and digital tools to carry out its activities. The court decided that the essential features of the employment contract form an employment relationship between the courier and the platform and that couriers are employees who provide labor only as part of this organization and operate alongside the delivery platform in accordance with the dependency relationship.Following this ruling, a draft law was prepared with the meeting of social partners, and a disputable presumption was added to Workers Law No. 2/2015 by Spanish Royal Decree No. 9/2021 in parallel with the Supreme Court’s ruling. In addition, employers and platforms that use algorithms to regulate working conditions are obliged to inform workers’ committees about the algorithms that are used. With this change in law, Spain became the first European country to accept delivery platform couriers as employees in accordance with a legal regulation.With the accepted disputable presumption, the activity of persons who provide paid services consisting of the delivery or distribution of any consumer product or merchandise by employers who exercise the business powers of organization, management, and control, whether directly, indirectly or implicitly and by means of algorithmic management of the service or working conditions through a digital platform, is presumed to be included within the scope of Workers Law No. 2/2015. With this regulation, the general presumption of employment as accepted in Article 8.1. of the Workers Law No. 2/2015 was also applied to delivery platform couriers.According to this new regulation, delivery platform couriers working in Spain will henceforth be considered employees and be subject to Workers Law No. 2/2015, and the provisions of Workers Law No. 2/2015 will be applied to the employment relationship between couriers and digital platforms. Thus, couriers will be considered employees as of the date they start working on a digital platform and have the opportunity to claim their rights retroactively in terms of their labor.Another adopted regulation provided worker committees in workplaces with the right to be informed by the company of the parameters, rules and instructions upon which algorithms or artificial intelligence systems are based that affect decision-making and that may impact working conditions as well as access to and maintenance of employment, including profiling, as these committees have the authority to represent workers collectively.In line with these principles, this study first examines general information about the legal status of workers in Spain and platform workers, then evaluates the ruling of the Spanish Supreme Court to unify Case Law 9/25/2020. Lastly, the study examines the articles that were added to Workers Law No. 2/2015 by Spanish Royal Decree No. 9/2021, their criticisms, and the possible consequences of these regulations in practice.&nbsp;

Teslimat Platformu Kuryelerini İşçi Olarak Kabul Eden İspanyol Kraliyet  Kararnamesi “El Real Decreto Ley 9/2021” Üzerine Bir İnceleme

Tolga

One of the basic rules to follow when collecting foreign currency receivables through enforcement proceedings or bankruptcy is to convert the foreign currency receivables into Turkish lira. According to Enforcement and Bankruptcy Law Article 58 regulating the request to issue enforcement proceedings, the amount to be received in said request must be specified in Turkish currency. The exchange rate needs to be specified for the date on which the money receivable has been requested. In bankruptcy proceedings, the foreign currency creditor may collect their receivables in Turkish lira in accordance with the exchange rate on the date of the bankruptcy decision. Foreign currency receivables are also a special issue in terms of creditor composition agreements. When a debtor applies for a creditor composition agreement in Turkey, such as in the case of bankruptcy proceedings, the foreign currency receivable must be converted into the Turkish currency, and any payment offer must be in Turkish lira for foreign currency receivables subject to creditor composition agreements. Although the foreign currency creditor can claim the rate on the maturity or actual payment date, when the foreign currency creditor carries out enforcement proceedings, converting foreign currency receivables into Turkish lira is not possible for creditor composition agreements, as knowing what the exchange rate will be on the maturity or actual payment date is impossible. The status of foreign currency receivables should be evaluated separately for composition with creditors applications, despite, and approval stages. A debtor’s foreign currency assets must be converted on the balance sheet, one of the documents that must be attached to the composition with creditors application, into Turkish lira at the effective buying rate of the Central Bank according to the exchange rate on the date the balance sheet is drawn up. Another document requiring submission to the court regarding a composition with creditors application is the cash flow statement. In the cash flow statement, foreign currency transactions should be expressed in the Turkish currency at the exchange rate on the date the cash flow is realized. In order to determine whether any possibility of success exists regarding the composition with creditors proposal and to give the debtor a definite deadline, the real status of the debtor’s assets and liabilities should be determined by the commissioner, and a report should be submitted to the court. The commissioner must determine the value of the foreign currency debts based on current records in the debtor’s commercial books. The foreign currency creditor must convert their receivables into Turkish lira on the date of the deadline in the final composition with creditors agreement and notify to the commissioner. However, different opinions have been put forward regarding which date to use for determining the exchange rate according to which the foreign currency receivables will be converted into Turkish lira. In terms of the view of the principle of equality with which this study is in agreement, foreign currency should be converted into Turkish lira according to the exchange rate on the date the composition with creditors agreement is approved. This is because the creditors are paid according to what the composition with creditors projects if the agreement is approved. When the exchange is made as late as possible, the foreign currency creditor can acquire their receivables in accordance with the most recent exchange rate. Once a composition with creditors agreement is approved, the foreign currency creditor cannot claim compensation by claiming they have suffered damage, even if the value of the foreign currency increases within the terms stipulated for the payment of the debt. The obligation to convert the foreign currency receivable into Turkish lira regarding composition with creditors agreements is only valid for the debtor who applied for the composition with creditors agreement. However, once a third party becomes a guarantor for the debtor, liability of surety is maintained as a foreign currency debt. If the creditor wishes to pursue enforcement proceedings against the guarantor, the provisions of the general law regarding the conversion of the foreign currency receivables into the Turkish currency shall apply. Foreign currency receivables should also be evaluated in terms of the use of the right of clearing regarding composition with creditors agreements. Although which date the exchange will take place on is debatable, this study agrees with the view that it should be converted into the foreign country’s currency according to the exchange rate on the date the right of exchange is exercised within the terms of the composition with creditors agreement. Due to the composition with creditors agreement by cessio bonorum resulting in the finalization of the composition with creditors approval decision and the effects of the composition with creditors deadline being maintained until this decision is finalized, the foreign currency creditor should determine the amount in accordance with the exchange rate on the date of the composition with creditors approval decision was finalized. Because bankruptcy decisions take place with regard to the composition of creditors agreement after the bankruptcy, the foreign currency receivables should be converted into the Turkish currency by taking into consideration the exchange rate on the date of bankruptcy is declared.

Konkordatoda Yabancı Para Alacakları

Doruk

The voluntary refusal of inheritance is a legal process enabling one to remove the title of heir by not accepting the inheritance. However, sometimes in practice the heir is encountered to refuse the inheritance maliciously in order to deny goods to creditors. In such a case, the law has given creditors of the heir the right to file a lawsuit to nullify the refusal of inheritance.In order to file an action for annulment of denial of inheritance as regulated in Article 617 of the Turkish Civil Code, the following three conditions must be met:●	The assets of the heir refusing the inheritance should not be enough to meet the debt. The heir needs to have not had a certificate of insolvency for not paying the debt nor a bankruptcy decision in the heir’s name. The plaintiff creditor must be able to provide sufficient evidence to the judge by revealing that the heir who has refused inheritance has done this in order not to pay the heir’s debt, that the heir has unjustly rejected payment requests from the creditor prior to refusal, and that the heir has undergone enforcement proceedings.&nbsp;●	The heir must refuse the inheritance in order to harm the creditors. The presence of the intention of harm must be determined objectively in a concrete case.●	The creditors who have filed the action for nullity must not have had sufficient security for covering their receivables. The assurance can be given by the defendant or a third party before or after the nullity action filing has been introduced.&nbsp;The nullity action must be introduced to the Civil Court of First Instance located in the settlement of the legator within the peremptory time limit of six months from the refusal of inheritance. The case is opened by the bankruptcy administration in cases of heir bankruptcy, and by the willing creditors otherwise.Whom the action for nullity of refusal should be introduced against is disputable. One opinion says the case for the nullity of refusal should be introduced against the heir who has refused inheritance. Another opinion states the action should be brought against those benefiting from the refusal being requested for cancellation. According to the view adopted by the Court of Cassation, the refusal case should be introduced against the heir who has refused the inheritance and against all the people benefiting from the refusal of inheritance.At the end of the case, the first result of the court’s decision of annulment is the official liquidation. In case the testator has more than one heir and only the refusal of one of these heirs has been cancelled, whether the entire estate or only the inheritance share of the heir whose rejection has been canceled will be subject to official liquidation becomes open to dispute. In one opinion, the official liquidation can be realized in terms of the whole estate. According to another opinion with which the Court of Cassation has also agreed, only the inheritance share of the heir whose rejection has been canceled should be subject to official liquidation; otherwise, the heirs having accepted the inheritance would be damaged due to the official liquidation.&nbsp;Any money still remaining after the payment of the receivables related to these creditors has been paid gets distributed among the inheritors who would have received it had the refusal of inheritance remained valid. After completion of the official liquidation, the phase begins in which the heir whose rejection has been cancelled makes the payment toward the receivables due to the heir creditors. According to the order specified in the law, the receivables of the creditors who have filed an action for the annulment of the refusal should be paid first and foremost. In case the money at hand is insufficient for covering the entire receivables of these creditors, the creditors are to rest satisfied in the proportion of their receivables. If any money is still left after the payment of the receivables related with these creditors, the receivables of the other creditors of the heir whose refusal has been revoked who have not filed a nullity action are then paid. Thus, priority has been provided to the creditors who filed for the nullity of refusal over the heir’s other creditors. If the refusal is nullified as a result of a lawsuit filed by the bankruptcy administration and an amount falls to the share of the heir whose refusal has been nullified as a result of the official liquidation, this value is added to the bankruptcy table and becomes divided among the creditors registered to the bankruptcy office in proportion to their receivables due.If any value still remains after the payment of the heir’s debts to the creditors, this amount is distributed to the heirs who would have benefitted from it had the refusal of inheritance remained valid. The heir whose refusal of inheritance has been determined by the court to have been malicious is thus nullified and punished.

Mirası Reddeden Mirasçının Alacaklılarının TMK m 617 Kapsamında Korunması

Musa

Early performance describes the performance before due date that has been agreed upon by the parties in a contract. According to Article 96 in the Turkish Code of Obligations, a debtor can, as a rule, submit early performance on the debt before the due date. The debtor may render early performance by renouncing the beneficial aspects of the situation.The following exceptions to the possibility of early performance are stated in Article 96 of the Turkish Code of Obligations: (1) If the parties agree to terms prohibiting early performance in the contract, the debtor cannot render early performance. (2) Based on the nature of the contract, one may infer that early performance cannot be rendered. (3) In accordance with Article 96 of the Turkish Code of Obligations, circumstances may also prevent early performance.In accordance with Article 96 of the Turkish Code of Obligations, no discount is applied as a rule in case of early performance. Although the debtor renounces the benefits of the maturity, the debtor cannot force the creditor to renounce any part of the claim. This rule should also apply to debts accruing interest because the creditor in this case expects to benefit from interest income and the time of performance. However, Article 96 of the Turkish Code of Obligations regulates that discounts can be made in accordance with law, contract, or custom.In case of early performance, the parties may agree to pay early repayment compensation in order to compensate for the creditor’s loss of income due to the early repayment. The amount of early repayment compensation can be agreed upon in the contract. Meanwhile, the creditor may have the authority based on the contract to determine the amount of early repayment compensation. In this case, the creditor must act in good faith and adhere to the prohibition of rights abuse when determining the amount of early repayment compensation.Provisions are found regarding early performance in installment sales (Article 20), consumer credit (Article 27), and housing finance (Article 37) from Law No. 6502 on Consumer Protection. According to these articles, a consumer can give early performance for a debt. Provisions about early performance are also present in the regulations of a contract (e.g., Regulation on Installment Sales Contracts, Consumer Credit Contracts Regulation, and Housing Finance Contracts Regulation).Law No. 6502 on Consumer Protection states regarding early repayment provisions that, if the debtor pays his debt early, the debtor will be entitled to request an early repayment reduction. These provisions concerning early repayment reduction are intended to protect the consumer and are mandatory. How to calculate the reduction is explained in each contract’s regulations. If no provision is present in other regulations regarding this calculation, the relevant provisions in the Consumer Credit Contracts Regulation will be applied. If an early repayment is made on the installment date, the amount due for the installment is first subtracted from the total amount of the early repayment. If the repayment is made during the interim period, the amount of interest and additional expenses accrued since the due date of the previous installment is subtracted from the total amount of the early repayment. After subtracting these, the remaining amount is the early repayment of the capital. If the total amount of the capital is paid early, the early repayment reduction is the sum of the interest and additional costs that have not yet accrued. In case of partial early repayment, the interest and additional costs that will accrue for the part that have been paid early fall within the scope of the early repayment reduction.Article 37 of the Law on Consumer Protection concerning regulations on the early repayment provisions for housing finance states that the parties are given the opportunity to agree for the debtor to pay early repayment compensation in case of early repayment. In order to claim the early repayment compensation, the housing finance contract must be valid, and a fixed interest rate must have been determined in the contract. In addition, in this contract, the ability to demand early repayment compensation in case the debtor submits early performance should be clearly stated and agreed upon in this contract. The calculation of the early repayment compensation is regulated in Article 11 of the Housing Finance Contracts Regulation. When calculating the early repayment compensation, the early repayment amount corresponding to the capital is found first, then the early repayment compensation is calculated at no more than 1% of the early paid amount of the capital for cases where the remaining maturity does not exceed 36 months. Apart from this case, compensation is calculated at no more than 2% of the early paid amount of the capital for cases where the remaining maturity exceeds 36 months.

Tüketici Sözleşmelerinde Erken İfa

Emre

Duress is regulated as a reason for the relative nullity of marriage in Art. 151 of the Turkish Civil Code (TCC). Duress involves a spouse being forced to enter into an unwanted marriage by threat from the other spouse or a third person. Duress is a defect in the formation stage of will.&nbsp;Duress can also be defined as the deliberate and unlawful provision of a person’s consent to marriage by informing another person that the one whose consent is sought will be subjected to very imminent and severe danger regarding harm to life, health, honor, or dignity of that person or a relative of that person.The conditions necessary for duress to results in the relative nullity of marriage are regulated in Art. 151 of the TCC as follows.&nbsp;Firstly, one of the spouses must be under duress. Duress may come from the other spouse or from a third party. In cases where duress occurs from a third party, the other spouse doesn’t need to be aware of the duress.&nbsp;Secondly, the person who is threatening must have the intent to threaten.&nbsp;Thirdly, the duress must have been made in regard to the other spouse’s life, health, honor, or dignity or that of a person closely related to this other spouse.&nbsp;Fourthly, the duress must present an imminent and grave danger to the threatened. When determining whether the duress is serious or not, the subjective state of the spouse who was forced to marry is taken into consideration.&nbsp;Fifthly, a causal link must be present between the duress and the marriage. Having an ordinary causal link is sufficient here.&nbsp;Lastly, the duress itself must be unlawful.If the above conditions are met, the marriage under duress becomes disabled through relative nullity. However, a marriage made under duress being disabled through relative nullity does not automatically invalidate it. A lawsuit for relative nullity must be filed by the threatened party in order to ensure the annulment of the marriage.The legislation in TCC Art. 152 limits the time for filing a relative nullity lawsuit based on duress, according to which the threatened spouse’s right to file an annulment case ends after six months, starting from the date the effect of the duress disappears, but in any event within five years of the marriage.The court decision to annul the marriage due to the duress results in the marriage ending proactively (ex nunc), and the marriage bears all the results of a valid marriage up to the time of the judge’s decision (TCC Art. 156).These spouses may remarry after the existing marriage is annulled by the court. However, the marriage barrier based on in-law kinship still applies to the spouses.As per the decision to annul the marriage, the other spouse who was in good faith while marrying the threatened spouse retains the personal status he/she has obtained through this marriage.As a result of the annulment of the marriage, the threatened spouse may demand pecuniary and/or non-pecuniary damages from the threatening spouse or from the spouse who knew or may have known about the third-party duress.The threatened spouse may demand alimony from the other spouse, regardless of whether or not he/she is the one threatening.In cases where the marriage is annulled due to duress, the wife, regardless of whether she is the person threatening or being threatened, can ask the court to allow her to retain her husband’s surname.The threatened spouse’s right to sue for the annulment of the marriage does not pass to the heirs. However, the heirs can continue a lawsuit filed by the threatened party. As a result of the lawsuit, the surviving spouse who was not found to be in good faith at the time of marriage cannot be named a legal heir and loses the rights granted to him/her by the testamentary dispositions. The surviving spouse is not the one acting in good faith when that spouse was the threatening person or when that spouse knew or may have known about the duress from a third party.Children born out of a marriage receiving an annulment decision from the court due to duress are considered to have been born within the marriage.After the marriage is annulled due to duress, both the threatened spouse and the other spouse (whether a threatening person or not) have the right to establish a personal relationship with their own children and even take custody of them if conditions are suitable.&nbsp;&nbsp;The fact that the marriage between the spouses has ended with the annulment decision does not remove their obligation to meet their children’s guardianship costs. In this respect, whether the spouses are the threatening person or the threatened person makes no difference.Ultimately, individuals’ freedom of will to marry cannot be said to be sufficiently protected by Art. 151 of the TCC, contrary to the purpose of the legislation. In this context, including a provision in the TCC that takes into account all the types of duress affecting the individuals’ will to marry would be appropriate.&nbsp;

Türk Medeni Hukukunda Evliliğin Nisbi Butlanı Sebeplerinden Korkutma

Muhammed

Mehmet

Prof.

COVID-19 had emerged in the Wuhan region of the People’s Republic of China as of December 1, 2019 and went on that month to affect the entire world, especially developed countries. COVID-19 has been labeled a pandemic by the World Health Organization, causing new normal measures to be taken in all areas. Although COVID-19 has primarily affected the health sector due it being a pandemic, the necessary measures and other pandemic policies taken as a result have had impacts in almost all areas, especially on the economy. Research on its devastating effects on the economy have shown the pandemic to have crippled the economy at a rate exceeding that of the 2008 global crisis and approaching that of the Great Depression. Meanwhile, when considering the World Bank’s global economic forecast, GDP has been revised downwards, with national governments facing difficult times regarding poverty reduction and job creation.The social crises experienced during the pandemic have also deeply affected public procurements, which are an important dynamic of economic development. In general, public procurements are an important tool for governments’ management of sustainable public services as well as for the market economy. Governments and global institutions had been caught unprepared for the pandemic, during which they have need urgent medical supplies; the market was dragged into a bottleneck as a result of the increase in demand, causing the normal period of public tenders to lose their functionality. This situation would cause countries to compete with each other in the market and created an effect that can be described as “Cowboy Market”. All these effects have required new regulations to be made and various measures to be taken regarding the pandemic, and this was also an extraordinary period with regard to public procurement legislation. To say that these regulations are not only sensitive to providing short-term medical purchases but also purchases in almost all other areas would not be wrong, due to the concern of ensuring the continuity of public procurement, which is the driving force of sustainable development in the United Nation’s 2030 Sustainable Development Goals.The measures taken regarding public procurement during the pandemic have been seen to generally be made through various unnamed regulatory acts that make the provisions in countries’ national public procurement legislation more explanatory and/or flexible. Because social distance rules have also been very important in terms of staying healthy during the pandemic, all countries have encouraged the use of electronic methods in public tenders. The main purpose of these measures is to complete the tender process very quickly and simply within the pandemic measures. In addition to financial protective measures to ensure the sustainability of public procurements during the pandemic, different legal measures are seen to have come to the fore in two stages to eliminate experiencing problems: one for the public tender process, and another for the tender contracts.&nbsp;When looking at the legal measures regarding the public tender process, measures are seen regarding continuing the execution of public tenders through the use of electronic solutions or to hold procurements by adhering to social distance rules if this cannot be carried out. In addition, the legal norms regarding the formats and procedures related to procurement are also seen to have been stretched and equipped with measures that are able to achieve rapid results. When looking at the measures that have been taken regarding public procurement procedures during the pandemic, the contracting authorities in developing countries such as Turkey are seen to have been equipped with more subordinate authority, while the administrations in countries with developed democracies such as the European Union are seen to have been equipped with wide discretionary powers on the condition that they adhere to the principles of transparency and accountability. When looking at the measures taken regarding the obligations arising from public procurement contracts, the condition arises with regard to force majeure provisions that prevent the contractor from fulfilling its obligations. Depending on the severity of the force majeure, various measures can be taken such as the extending or terminating the delivery period of the contract, applying price changes, or transferring contracts with the aim of protecting public interest and taking measures to relieve contractors from being victimized. Due to bureaucracy being very low in developed democracies in general, one can see a fast and effective system that works within the pandemic conditions regarding tender contracts, while countries such as Turkey see the density of bureaucracy reduce efficiency, despite having similar legislative provisions. In addition to all these regulations, certain regulations were observed to have been made in some countries that prioritized the participation of SMEs in tenders, with some potential contractors in the USA who are also suppliers of some public procurements have been obliged to participate in procurement. Some countries, especially in the European Union, have determined central purchasing policies regarding medical purchases. Colombia requires the word COVID-19 be used in procurement contracts in order to facilitate traceability with regard to procurement, while other countries such as South Africa&nbsp;and Ukraine have an undersecretary predetermine items, suppliers, and prices and use a list to keep prices under control to prevent abuse of public procurement procedures, with purchases being made based on this list.&nbsp;

Kamu Alımlarında COVİD 19 Tedbirleri: Sürdürülebilir Alımlar için  Düzenlemeler

Gamze

The concept of governance has reflections in the field of law and even specifically in the field of tax law. In its individual application review, Turkish Constitutional Court clearly states that the tax administration should act in accordance with the principle of good governance. In line with the European Court of Human Rights’ case law, the Constitutional Court evaluates this principle in the context of “proportionality” principle. In this regard, it is important to reveal the meaning, scope, and legal basis of the principle of governance in terms of tax law.In this study, first of all, the concept of governance and the principle of good governance are discussed in general. Subsequently, it is questioned whether the principle of good governance is applicable in terms of tax law. In this context, it is concluded that acting in accordance with the principle of good governance in the taxation process is appropriate for the purposes of the rule of law and accordingly, democracy in the taxation process. On the other hand, it should be considered that this principle has no clear legal basis, its content is still somewhat vague. In addition, it is sometimes impossible, difficult or nonfunctional for the tax administration to interact with the taxpayer in accordance with good governance. In this regard, it is believed that it is not possible to apply this principle strictly and in all cases in tax law. However as a principle, the tax administration’s responsibility to provide information in case of a measure that affects or has the potential to affect the taxpayers’ rights and to provide the opportunity to express their opinions and objections against this measure will be in line with both the principle of good governance and the right of the taxpayer to be heard. In terms of the “active and participatory administration” dimension of the good governance principle, the administration’s passive attitude and failure to act in a timely and consistent manner would be contrary to the principle of good governance.&nbsp;In addition, the study also focuses on the steps taken and/or should be taken with regards to tax audits in the direction of Reis Automotive judgment of the Constitutional Court. In the aforementioned judgment, it was ruled that the tax administration should take the necessary measures to prevent different treatments among those subject to tax audit that are limited in terms of subject, scope and purpose. One of the steps&nbsp;taken is the “Tax Inspection Board Advisory Commission Regulation” published in the Official Gazette, dated 7 April 2021 and numbered 31447. The purpose of the regulation is to establish an Advisory Commission to provide an opinion to the Presidency and to determine the working procedures and principles of this Commission in order to ensure unity concerning the tax audit duties and to resolve the unclear aspects that arise regarding the implementation of the provisions of the related legislation. Whether the Tax Inspection Board Advisory Commission will serve these purposes remains to be seen.However, the latest amendments made with Act No. 73381 concerning tax audits are in the opposite direction of what is expected. Because the obligation to prepare a document that indicates the beginning of the audit (vergi inceleme tutanağı) and to be signed by both the administration and the taxpayer in the current system is abolished by the aforementioned amendments. Instead, it is deemed sufficient to notify the taxpayer of a letter stating that the audit has started (Article 18 of the Act no. 7338). Again, within the scope of the same act, the obligation to carry out the tax audit at the workplace of the taxpayer is abolished, and on the contrary, the rule that the audit should be carried out at the tax office was introduced (Article 17).

Vergi Hukuku Bakımından İyi Yönetişim İlkesi

Cüneyt

Hamza

The long-standing tensions between Azerbaijan and Armenia in the South Caucasus have been a frozen conflict for many years due to the Nagorno-Karabakh dispute and evolved into an armed conflict in the last months of 2020. This conflict is known as the Second Nagorno-Karabakh War and lasted for 44 days. The war erupted after Armenia launched heavy artillery attacks on Azerbaijan, with Azerbaijan immediately responding to these unlawful acts on the grounds of its right to self-defense. This conflict resulted in heavy casualties for both sides and ended with the Armistice Agreement signed on November 9, 2020.The purpose of this article is to thoroughly address the historical development of the Nagorno-Karabakh conflict and to examine the Second Nagorno-Karabakh War as well as the Armistice Agreement of November 9, 2020 from the perspective of international law. Thus, the first section discusses the conflict with an emphasis on the significant events throughout its history, examining the previous ceasefire processes in this context. In the early stages of the conflict after the dissolution of the Soviet Union, certain states in the region made various attempts to resolve the problem. However, these diplomatic initiatives were unsuccessful for certain reasons. Therefore, the Organization of Security and Co-operation in Europe (OSCE) began showing interest in the conflict. The OSCE Minsk Group was established in order to resolve the conflict and offered three proposals to the parties at the end of the 1990s. However, the parties were unable to reach an agreement regarding any of the proposals. As a result of this failure, the OSCE Minsk Group proposed the Madrid Principles in 2007, which involved returning the occupied territories to Azerbaijan and providing an interim status for the Nagorno-Karabakh region. However, neither of the parties were able to endorse the Madrid Principles.The second section of the article discusses Armenia’s violations of international humanitarian law and international human rights law during the Second Nagorno-Karabakh War. During the war, Armenia deliberately fired heavy artillery and rockets at many densely populated Azerbaijani cities. While these attacks resulted in the death and injury of many civilians who were supposed to be protected under international humanitarian law, they also severely damaged hundreds of homes, historical buildings, and other civilian centers. As is known, all States shall abide fully to their obligations under the Geneva Conventions of 1949, additional protocols, and other instruments of international humanitarian law related to respect for human rights in armed conflicts. However, from the very beginning of the war, Armenia intentionally violated these rules. Therefore, Armenia’s international responsibilities and the relevant Armenian decision-makers’ criminal responsibilities due to these violations must be held to account.The third chapter examines the provisions of the Armistice Agreement of November 9, 2020, which ended the Second Nagorno-Karabakh War. It first analyzes in detail the legal aspects of this agreement, concluding it to be an international agreement as per the criteria stipulated in the Vienna Convention on the Law of Treaties (1969) and binding to both its parties. This situation is important for the future of the Agreement. Moreover, this article examines the rights and obligations that the Agreement brings to all involved parties. This section also considers the start time and area to which the ceasefire regime is applied in accordance with the Agreement and additionally discusses the most recent status of the Lachin Corridor and the Zangezur Corridor. The article debates other provisions in the agreement such as prisoners of war exchange and return of refugees to the Nagorno-Karabakh region from the perspective of international law and evaluates the status of Agdam, Kelbacer, and Lachin.The scope, duration, and other elements of the Russian peacekeeping mission in particular have been elucidated with certain references to the general concept of a peacekeeping force in international law. Last but not least, Turkey’s position in the conflict is also analyzed in accordance with the terms of the agreement. In fact, no provisions are present in the Agreement that directly concern Turkey. Upon examining the preparatory works (travaux preparations) of the Agreement, however, the parties are seen to want Turkey to be a part of the Joint Observation Center established in Article 5 of the Agreement.The article’s conclusion underlines the lack of any provision in the Agreement determining the final status of the Nagorno-Karabakh region. Hence, the dispute is still an actual conflict that must be subjected to a resolution. Therefore, it is important to have the relevant actors, including Turkey, put effort into facilitating a final peace agreement regarding the status of the Nagorno-Karabakh region in order to prevent the reoccurrence of any other military conflict and establish a long-term peaceful settlement.

Uluslararası Hukuk Açısından Dağlık Karabağ Sorunu ve İkinci Dağlık Karabağ Savaşı’nı Sona Erdiren Ateşkes Andlaşması

Ömer

Prof. Dr.

Ayşe

Assoc. Prof. Dr.

Elif

Turkish Law has recently witnessed new developments in product liability law. With Code No. 7223 on Product Safety and Technical Regulations (ÜGTDK), which was published in the Official Gazette on March 12, 2020, and entered into force one year later, the regulatory gap regarding the liability of the manufacturer, which existed in Turkish Law for approximately six years, was eliminated. With the Code, European Union Council Directive 85/374/COD was tried to be integrated into national law. However, approximately one year after the Code entered into force, new developments regarding product liability law in the European Union came into the spotlight.There is no doubt that the current Product Liability Directive 85/374 in the European Union is a valuable tool for compensating individuals who have suffered personal injury or material damage due to defective products. However, with rapid advances in technology, particularly in artificial intelligence, autonomous devices, and the circular economy, the current directive may not be sufficient to address emerging challenges and adequately protect the interests of injured parties. The Proposal for a new Product Liability Directive was published on September 28, 2022, to overcome these issues. This proposal aims to modernise the existing directive and adapt it to the realities of the modern digital economy, technological innovations, and developments.The proposal addresses some key issues:First, it provides liability for products from the modern digital economy: Determining liability has become more complex with the increasing use of artificial intelligence and other technologies in the field of products. The proposal introduces provisions to clarify the liability of manufacturers when these technologies are involved in product defects.Second, it introduces liability for products that come from the circular economy: The circular economy promotes the recycling and reuse of products, which can also lead to complexity in determining liability for damages caused by defective products. The proposal could establish explicit guidelines for determining liability in such cases.In addition, it facilitates proof of damage: The proposal aims to simplify the process for injured parties to provide evidence of bodily or property damage caused by defective products. This could involve new approaches to gathering and presenting evidence, particularly as advancing technology can sometimes make it impossible for injured parties to provide evidence of product defects. The proposal seeks to support the injured party in such impossible situations and to enable them to compensate for&nbsp;their losses. However, these proof methods are also new to EU law but may not be entirely new.It also balances the interests of injured parties and manufacturers: A fair balance must be struck between the rights of injured parties and the responsibilities of manufacturers. The proposal arguably seeks to achieve this balance while promoting product safety and innovation.Finally, it protects damage to data: Damage to intangible goods is, as a principle, not recoverable under the product liability directive. However, the Directive introduces a major innovation in that it recognises that data damage is compensable under the product liability law. Therefore, the proposal demonstrates the EU’s commitment to updating and improving its product liability regulations to keep pace with technological developments and economic changes and to provide better protection for consumers and injured parties.This comprehensive research study delves into the proposed amendments introduced by the EU Product Liability Directive Proposal. It meticulously analyzes the potential impacts of these amendments on the Turkish legal framework, especially when compared to the Turkish Product Safety and Technical Regulations Law No. 7223. The aim is to explore a deeper understanding of how the proposed amendments could be integrated into Turkish law to strengthen product liability and protect consumers’ rights more effectively.&nbsp;

Evaluation of The Implications of The European Union’s New Product Liability Directive Proposal No. 2022/0302

Caner

The provision of Article 407/1 of the Turkish Civil Code, which mandates that every adult who has been sentenced to a term of imprisonment of one year or longer, along with the related provisions of Articles 407/2 and 471 of the same Code, have been annulled by the Constitutional Court. To address the legal vacuum and potential uncertainties in practise arising from the delayed implementation of this annulment decision, the legislator has reorganised the relevant provisions. Because of these amendments, custodial sentences will continue to exist as a condition requiring guardianship, albeit under different conditions. In this context, the idea that every adult who begins to serve a custodial sentence of a minimum fixed term duration should be restrained has been rejected. With the new regulation, it is not possible to restrict an adult who is in a penal institution for the execution of a finalised prison sentence without his or her request for this reason. However, the manner in which Article 407/1 of the Turkish Civil Code is structured is open to discussion. This is because, in its current form, the provision is suitable for interpretation as the person may assert any of the requests for guardianship or appointment of a trustee and the judge is bound by this request. However, interpreting Article 407/1 of the Turkish Civil Code in this way is not an appropriate application in terms of the discretionary authority of the guardianship authority, which is also emphasised in the Constitutional Court’s decision. It is also unacceptable in terms of “public guardianship” carried out by guardianship offices consisting of guardianship authority and supervisory authority within the scope of Article 397/1 of the Turkish Civil Code. In any case, Article 487/1 of the Turkish Civil Code should be interpreted as an implicit addition to the reasons stipulated in Article 408 of the Turkish Civil Code and as giving the judge the discretionary power not to restrict the person. For persons who have been sentenced to a total of five years or more of finalised imprisonment, a restraining order may be issued ex officio if deemed necessary for the protection of their personality or assets. In fact, we are of the opinion that it is not appropriate to determine this situation, which raises the possibility of restriction of the person against their consent, only&nbsp;according to the duration of the custodial sentence and ultimately to leave it entirely to the discretion of the judge. In its new version, Article 407/3 of the Turkish Civil Code clearly regulates that guardianship authorities must listen to the individual before making a decision. This provision must be applied in both cases where a guardianship examination is made upon request or ex officio. According to the wording of the provision, it is obligatory for the guardianship authority to hear and listen to the person concerned. The guardianship of a person who is restricted due to their custodial sentence shall be terminated automatically upon the lawful termination of this sentence. If the total sentence of imprisonment during the execution process is less than five years, the guardianship over the person must be terminated upon the request of the person. If the total imprisonment is five years or more, the court, which will conduct an examination upon the request of the person, may decide to terminate the guardianship if the reason for the protection of personality or assets disappears. Nevertheless, the provision of Art. 471/2, b. 1 of the Turkish Civil Code (The Regulation) regarding the termination of guardianship in the presence of a total sentence of less than five years is open to discussion. This is because, in such a case, it may be concluded that the guardianship may not be terminated in line with the wording of the provision; in other words, the judge is given a discretionary power in this regard. However, this expression, which gives discretionary power to the judge, should be read together with the provisions of Article 407/1-2 of the Turkish Civil Code and should be specific to persons who have been sentenced to a total of five years or more; in other words, guardianship examination is carried out ex officio. In such cases, the judge has a right to decide whether the reason for protecting personality or assets has disappeared. However, this amendment to the provisions of Art. 407 and Art. 471 of the Turkish Civil Code, which was made as a result of the Constitutional Court’s annulment decision and which gives priority to the person’s request to be heard, should be considered a positive development in favour of fundamental rights and freedoms, despite its shortcomings and possible problems.

Evaluation of Amendments to Law No. 7499 on Custodial Sentence as One Condition Requiring Guardianship

Cemile

Assist. Prof. Dr.

Dilşah

In Turkish inheritance law, heirs obtain the entire estate as a whole upon testator’s death. This classical understanding, which is rooted in Roman and Pandect law, is also acknowledged in the Turkish-Swiss legal system as well (Art 599 of the Turkish Civil Code; Art 560 of the Swiss Civil Code).When multiple heirs exist, they form a community of heirs. In this case, the heir jointly bears the rights and assets of the inheritance. For this reason, they must make a unanimous decision on all disposals of the probate property. They are also under joint and several liability for the debt of the estate. Joint ownership of the estate continues until division. However, joint and several liabilities for debts do not cease with the division of the property. As a rule, in order for the division or assumption of the debts of the estate among the heirs to be effective against creditors, the heirs must consent to an agreement between them (Art 681 of the Turkish Civil Code).&nbsp;Art. 655 of the Turkish Civil Code regulates this special provision. According to Art. 655, “The heir who inherits an estate property pledged for the debts of the deceased shall assume the debt secured by that property.” There is a dispute concerning whether this provision establishes an exception to Article 681. The debate centres on whether the consent of the creditor is required for the assumption of debt or whether a mere transfer of the property that is pledged to the heir is sufficient.The first requirement for the application of Art. 655 of the Turkish Civil Code is the establishment of a pledge on the deceased’s own property. The scope of the provision includes pledges concerning movable and immovable property. The second condition is that the pledge must be established for the deceased’s debt. Although a pledge is generally granted by the debtor of the receivable it secures, it may also be granted by another person to the debt of another person. If the deceased has established a pledge for the debt of a third party, Art. 655 shall not be applicable and the heir to whom the pledged property is assigned shall not have assumed the original debt. Under these circumstances, the heir only has to bear the risk that if the debt is not fulfilled, the property will be sold and the receivable will be collected. The last requirement for the application of the provision is that the pledged property is left to the heir. This is done through division of inheritance. The heirs may conclude a written sharing agreement (Art 676 of the Turkish Civil Code), or if they cannot agree, a partition lawsuit is filed (Art 642 of the Turkish Civil Code).When interpreting Article 655, Article 888 of the Turkish Civil Code should be taken into account where the pledge concerned an immovable property. Accordingly, in the event that the immovable property on which the mortgage is established is left to one or more of the heirs in the division of inheritance, the creditor must notify the land registry officer in writing that he reserves the right to apply to the other heirs&nbsp;within one year following the notification of this circumstance to him. Otherwise, the debt is assumed by the heirs to whom the property was left. Thus, other heirs are released from liability.&nbsp;The basic principles of inheritance law should be considered when assigning other pledged probate assets. For the protection of the creditors of the deceased, the legislator has provided a double guarantee by allowing recourse to both the estate of the deceased and heirs’ personal assets. The joint and several liabilities of the heirs against the creditors end upon the approval of the creditors to the agreements regarding the debt’s assumption by one of the heirs or upon the expiration of the 5-year period stipulated in the law. All of these regulations are primarily intended to protect the creditors of the deceased. There is a risk that the pledged creditor may be harmed by leaving the pledged probate property to an heir that is financially unstable. As a result, it should be accepted that the provision regulates only the internal relations of the heirs and cannot be asserted against creditors without their consent.

Transfer of Pledged Estate Property to the Heir within the Liability for Inheritance Debt Framework

Esra

The most characteristic feature of negotiable instruments is the unity of right and bill. As a result, right cannot be claimed separately from bills, and the debtor is only obliged to pay for the bill submission (TCC2 1 645). When a negotiable instrument is lost, it becomes either objectively difficult or impossible to claim the right within the bill. The annulment sanction can only be applied in the event of the loss of a negotiable instrument; therefore, it shall be accepted as limitedly applied method. An annulment decision gives a person who is a bill holder at the time of loss the opportunity to claim right without a bill or to request a new issued bill (TCC 651, 652). Thus, while the right holder is protected from the risk of not being able to obtain his/her right due to loss, the debtor is also protected from the risk of paying to an unentitled person.Annulment decisions have two effects, positive and negative. With its positive effect, it authorises decision holder to claim his rights against the debtor. However, its negative effect removes the diagnostic function of the lost bill. Since an annulment does not affect its function of transferring the right, third parties who have acquired the bill may obtain the right under the bill. Nevertheless, to place the right of third parties before the decision holder requires their acquisition in good faith (TCC 686/2, 792).When a bill, which was subjected to an annulment decision, is held by third parties, the debtor may be exposed to two separate claims for enforcement because one of them is the decision holder and the other is the bill holder. There are no regulations in law regarding how debtors should act in this case. Considering the problem in the context of the Procedural law, the content of an annulment decision should be respected unless proven otherwise, even if it is taken within an ex-part proceeding. In this case, neither the annulment decision nor the contrary of the decision was proven. Moreover, there is evidence supporting the maliciousness of the bill holder.Regarding the effects of an annulment decision; since the diagnostic function of a bill is removed by annulment, it is impossible to determine the right holder on a bill in accordance with the formal entitlement principles (TCC 686/1). Therefore, bill holders cannot take advantage of the entitlement presumption. However, contrary to this, it has been concluded in the present case that a regular endorsement chain is sufficient to accept the bill holder as the right holder.The holder of a bill, which has been removed from its owner in any way, is obliged to return it if he/she is malicious or has a gross fault in his/her acquisition (TCC 686/2, 778/1,a, 792). As a rule, the burden of proof of the maliciousness of a bill holder belongs to the decision holder. In the meantime, the criterion of ordinary life&nbsp;flow can be used, and the characteristics of the present event should be considered. According to some data in the present event (such as the fact that the check holder has not submitted the check to the court despite being aware of the annulment process, not notified the addresses of endorsers -except one- at the executive proceeding stage), accepting the bill holder in good faith is contrary to the ordinary life flow. In addition, a check holder who deliberately prevented the implementation of the return process regulated in law by not submitting the bill to the court should not be disadvantaged. Therefore, the bill holder should have been held liable to prove his good faith.&nbsp;When we consider the problem from the viewpoint of debtor; debtor shall be discharged if he or she pays to the decision holder in good faith (TTK 646/2, 710/3). The fact that debtors’ awareness of bills circulation does not change the result. However, if the debtor is aware of the annulment decision, he/she should avoid paying the bill holder. Since the decision holder benefits from the presumption created in his favour with TCC 652/1, the bill holder shall bear the negative effect of the annulment decision.The Supreme Court of Appeals has consistently held in its previous precedents that a debtor must not ignore the consequences of an annulment decision; otherwise, he or she cannot discharge. According to previous precedents, it is necessary to determine the right holder in a case between the bill holder and the holder of annulment decision, and the debtor can only be held liable to the person entitled in this case. On the contrary, in the present event subjected to this study, it has been accepted that the annulment decision will automatically become ineffective when the bill subjected to the annulment decision was procured by third parties; thus, the acquisition of the bill holder has been prioritised. However, a solution requires creating a balance between the interests of the holder of annulment decisions, the bill holder, and the debtor by considering the legal nature and effects of annulment decisions and the circulation purpose of negotiable instruments. Otherwise, debtors will unfairly be subjected to the negative consequences of bill annulment just because they have issued a bill and have no fault in the loss of the bill.&nbsp;

The Precedent Change of the Supreme Court of Appeals: The Punitive Effect of the Annulment of Negotiable Instruments on the Debtor (Upon the Decision of the Assembly of the Civil Chambers Identified As 19-1636/319, 19.3.2019)

Murat

Art. 33-35 of the SRR contain provisions on the establishment of ship mortgages. These provisions are “supplementary provisions” with respect to the provisions of Art. One thousand and fourteen et seq. of the TCC concerning the establishment of ship mortgages. Therefore, the provisions of Articles 33-35 of the SRR apply to matters that are not regulated under Articles 1014 et seq. of the TCC. Articles’s provisions 33-35 of the SRR shall apply to ships registered in the registry. Accordingly, if a mortgage is to be established on ships registered in the National Ship Registry and ships and yachts registered in the Turkish International Ship Registry, the provisions of Art. 33-35 of the SRR shall be applied together with Art. 1014 et seq. of the TCC. A ship mortgage may be established to secure a receivable that may arise in the future or that is conditional or contingent upon a negotiable instrument. However, as stated in Art. 35/1 of the SRR, ship mortgages cannot be established for receivables that are contingent on a mortgaged promissory note or revenue bond. It is possible to establish mortgages on more than one ship or share for the same receivable. In addition, ships need not be registered in the same registry. In the event that a mortgage is established on more than one ship or ship share for the same receivable, the procedures to be performed in the ship registry are regulated under Art. 34 of the SRR.In the case of shared ownership, each shareholder may establish a ship mortgage on his or her share. However, after a ship mortgage is established on one or more shares, the shareholders cannot establish a mortgage on the entire ship. In addition, if all shares of a ship belong to a single owner, it is not possible for the owner to establish a ship mortgage on separate shares in favour of separate persons. On the other hand, in the case of joint ownership, a ship mortgage can only be established on the whole ship with the approval of all shareholders. The contractual pledges of the ships registered in the registry are provided through ship mortgage only. Accordingly, a pledge cannot be established on an individually registered ship within the framework of the provisions of Law No. 6750 on Movable Pledge in Commercial Transactions (TITRK). However, within the scope of Article 5/2 c. 1 of the TITRK, if a movable pledge in commercial transactions is established on the entire commercial or tradesman enterprise or on a certain movable asset, the ship registered in the registry is also included in the scope of the pledge if there is a ship registered in the registry among the pledged movable assets.&nbsp;In order to establish a mortgage on a ship registered in the registry, a formal mortgage agreement must be concluded, the mortgage fee must be paid, and the mortgage must be registered in the ship registry. Under Art. 33/2 c. 1 of the SRR, the mortgage agreement must be provided for in writing and the signatures must be approved by a notary public or the ship registry directorate. In addition, the mortgage agreement may be executed in the form of a notarial deed, or the signatures in the&nbsp;written mortgage agreement prepared by the parties may be approved by the notary public. On the other hand, to establish a mortgage on a ship registered in the registry, a sum corresponding to 11.38 per 10,000 of the amount of the receivable subject to the mortgage must be paid as a fee. The last condition to be fulfilled to establish a mortgage on a ship registered in the registry is registration of the mortgage in the registry. For this purpose, the parties to the mortgage agreement or their authorised representatives must submit a registration request to the ship registry directorate. If the registration request petition is submitted to the registry office together with its annexes, the registry office personnel shall record the information specified in Article 1016 of the TCC in GESBIS and in the section of encumbrances of the ship in the registry book kept in a physical environment. Thus, a ship mortgage is registered and established in the registry.&nbsp;

Evaluation of Ship Registry Regulation Provisions on Establishment of a Ship Mortgage

Mustafa

For the last few decades, copyright on intellectual and artistic works and related rights over performances, phonograms, cinematographic productions, and radiotelevision broadcasts have been subjected to violations very easily and on a large scale, especially with innovations in the field of digital technologies. Therefore, on the one hand, regulations are being made at the international level, such as the TRIPS and WIPO Internet Agreements, while on the other hand, many of the states in the world are making various legal regulations to combat more effectively the violations of the rights of rights holders over their intellectual products on a national scale.&nbsp;The basis of various changes and new regulations in the Turkish Copyright Code (TCC) in the year 1995 and thereafter is essentially the aim of combating more effectively the violations of rights on intellectual products increased by technological innovations. In fact, it is necessary to evaluate the amendments made in 1995 and after Article 68 of the TCC regarding the refutation of infringements of financial rights on copyrighted products.&nbsp;In this essay, the amended provisions of Article 68 of the TCC are examined. To put it briefly, in accordance with the first paragraph of Article 68; the right holder who is subject to infringement of any of the financial rights in the form of processing, reproduction, dissemination, representation, and communication to the public on the work and intellectual and artistic products that are the subject of related rights may request the application of the method of refutation of infringement by demanding three times (namely triple compensation) the usual price. Although it is not explicitly stated in this Article, natural and legal persons defined as holders of rights under Article 80 of the Law can also use the same powers. Accordingly, those who adapt, reproduce, disseminate reproduced copies, represent, or communicate to the public a work, performance, phonogram, or production without obtaining written permission from the rights owner, or transmitting any sign, sound, or image to the public, without the permission of the rights holders, shall not be entitled to the price they may claim in the event of a contract, or they may request a maximum of three times more than the current market price to be determined in accordance with the provisions of this Law. As can be seen, in a copyrighted work unauthorised use of any of the rights of adaptation, reproduction, dissemination, representation in public places and transmission to the public is sufficient to demand more than three times the usual price of the infringed product, namely treble damage.&nbsp;However, in the second and third paragraphs of Article 68 of the Law, other rights are granted to the right holder in addition to the demand for three times the price in cases where the right to reproduce the copyrighted product alone and the right to disseminate it are violated. Other refutation methods, other than the triple&nbsp;compensation request, can only be used in cases of infringement of the right to reproduce and distribute along with reproduction. For example, if the action of a perpetrator violates any of the rights of processing, dissemination, representation, or transmission to the public, the refutation methods defined in the Law specific to the right of reproduction are not applied. In fact, due to the nature of these refutation methods specific to the right to reproduction, it is not possible to apply them in cases of infringement of other financial rights related to copyrighted work. Likewise, since the right to reproduction or dissemination is the most violated in practise, the second and third paragraphs of Article 68 include reproduction and dissemination as the only financial rights that can be subject to refutation methods other than the request for more than three times the usual price of infringed work.In this context, if the copies reproduced without permission are not put up for sale, the right holder may request the destruction of the reproduced copies, films, moulds and similar tools used for reproduction, or that they be given to him for an appropriate price not exceeding the production cost price, or, in the case of a contract, three times more than the amount he may request. This does not eliminate the legal liability of the unauthorised reproducer. If copies reproduced without permission are put up for sale, the rightful owner may use one of the options in the second paragraph regarding the copies in the possession of the infringer. However, for the second and third paragraphs to be implemented by rights holders other than the owner of the work, written reproduction permission from the owner of the work in accordance with Article 52 of the TCC is required.Rights claims arising under Article 68 can only be used in cases of violation of financial rights. If the rights violated are of a moral nature or if moral rights are violated along with financial rights, it is not possible for the plaintiff to request a decision in accordance with the provisions of Article 68 in respect of moral rights. The request for a reconsideration of moral rights can only be made within the scope of Articles 66 and 67 of the TCC.Finally, with the amendments made after 1995, the demand for three times the usual price, the payment of appropriate compensation for pirated copies, or the exercise of the right to destroy both copies and reproduction means, which is granted to the right holder on intellectual products in Article 68, is not conditioned on the fault of the perpetrator. It is not necessary for the plaintiff, whose financial rights have been violated, to suffer any damage in order to make such claims. In order to file a lawsuit according to Article 68, it is sufficient that the act attributed to the perpetrator is contrary to the law, that is, an unlawful act. Assuming that the use of the rights recognised in the TCC without the permission of the right owner and without any other reason for compliance with the law violates the rights, to deter possible&nbsp;and future infringements, the right owner is requested to pay three times the price he would have requested if he had made a contract with the infringer or the market value of the right subject to violation. Although such legal claims do not comply with the basic principles of Turkish compensation law, such sanctions are considered punishments specific to private law.

A Review on (Art. 68 of TCC) the Termination Methods for Infringement of Financial Rights on Copyrighted Products

Onur

The majority rule is one of the fundamental principles governing the limited companies. This means that the decisions taken, and the management followed by the majority affect other stakeholders who may have different interests other than those of the majority shareholder. As any power, the powers vested in the majority shareholder of a public company (in Turkish case, anonim ortaklık – briefly AO) thanks to majority rule may be abused by such shareholder.&nbsp;&nbsp;Against an abusive majority, the position of shareholders of a privately held AO is rather challenging and their options limited, due to lack of a viable access to liquid markets for their shares. This paper focuses on abuse by majority and how to mitigate this issue in an independent and privately held public company with an examination of the Turkish public company law on the matter regulated under Turkish Commercial Code numbered 6102 (briefly TCC).TCC art 202 governs unlawful use of the control for group of companies (conglomerate/ konzern). However, general provisions of limited companies lack any articles that directly regulate the issue of potentially or materially abusive behaviours by a majority (in broader terms, controlling) shareholder. Furthermore, TCC art 202 cannot be directly applied to the independent companies. Yet, an independent AO, either publicly or privately held, may well be the arena for an abuse by majority similar to the cases governed by TCC art 202. Current protections provided by TCC seems to fail to prevent chronic/systematic cases of abuse by majority in an independent and privately held AO; in return judicial and/or legislative intervention may be required. But how?This article examines the EU legal landscape with Member States’ approaches and European Model Companies Act while comparing them to Turkish perspective for finding effective ways to mitigate abusive majority behaviour in an independent and privately held AO.In order to provide such a perspective and to understand where the Turkish law stands, the following topics are discussed: differing legal approaches concerning abuse by the majority, equal treatment of shareholders, and exit rights as an effective remedy to mitigate the abuse by the majority.The EU legislation does not contain a general provision on how to prevent abuse by majority. In Member States, two approaches prevailed without a harmonising EU legislation. One approach seeks both a damage to company and to minority (eg France), the other finds it sufficient just damage to the minority in order to classify the action as an abuse by majority. For the minority, proving that company’s interest is also violated is a rather difficult task and as a result hinders the sought minority protection in most of the cases. Therefore, a single-threshold approach which&nbsp;requires minorities to prove only the damage to their interests should be the approach upheld. In independent and privately held AO, the options for a locked in minority are limited and a further minority protection is required. Single-threshold approach helps providing the sorely needed protection in a more efficient and global way.According to ECJ’s Audiolux ruling, no immanent principle of equal treatment of shareholders exists under EU law and the EU legislation does not force Member States the implementation of a blanket equal treatment principle of shareholders. Certain Member States tend to provide one. EMCA also regulates the issue directly. This is also the case in Turkish law via TCC art 357. With a provision explicitly imposing the company organs to uphold the principle of equal treatment of shareholders in the same position, single-threshold approach seems to be the prevailing approach in Turkish public company law, and thus Turkish law is positioned to provide an effective protection for minorities in an independent and privately held AO.&nbsp;&nbsp;With the Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 Amending Directive (EU) 2017/1132, for cross-border conversions, mergers, and divisions of limited liability companies, Member States are under the obligation to provide a right to dispose of their shares for an adequate cash compensation, ie an exit right, to the company’s members who voted against the resolutions concerning the related transactions in the general assembly. These provisions may be used by the minority to protect itself from abuses, potential ones included in the aforementioned transactions.&nbsp;EMCA provides a more comprehensive protection by regulating the liquidation due to fraud on the minority in Section 11.33, the right to sell out provided to minority stipulated in Section 11.35. Furthermore, according to Section 11.37, shareholders who incurred a loss have a right to be redeemed if the company, individual shareholders, the company’s creditors or other third parties incur a loss due to a shareholder’s intentional or grossly negligent action, and there exists a risk of continued abuse.&nbsp;Concerning the remedies to save the minority from the abuses committed by majority in independent and privately held AOs, a sell-out provision forcing the majority to buy the minority’s shares should also be introduced to TCC. In order to provide the minority with better options, and legal clarity and to protect it from judicial surprises, TCC art 531 on dissolution by just cause should also be modified in a way that it provides minority to directly request from the court to exit the company, if possible, at the majority’s expense. This type of mechanism would significantly ameliorate the minority’s position in companies, since the risk of paying the relevant cost would create a better incentive for majority to refrain from abusing its power. Furthermore, for the minorities, especially in an independent and privately held AO where they are deprived of an access to liquid markets, it would create the opportunity to be fairly compensated for their shares.&nbsp;

EU Legal Landscape and EMCA on Mitigating Abuse by Majority Shareholder(s) in Public Companies: Any Inspiration for Minority Protection in Independent and Privately Held Turkish Anonim Ortaklık?

Muhammet

In Turkish Penal Code No. 765, misdemeanours were defined as a type of offence. This Code classified offences into two categories: crimes and misdemeanours. However, with the introduction of Turkish Penal Code No. 5237, misdemeanours are no longer included as a type of offence. Removal of certain acts constituting a misdemeanour from the Penal Code require a separate code. Consequently, the Misdemeanours Code was adopted and came into force to create a system for acts requiring administrative sanctions, which are scattered throughout the legislation, and to ensure consistency in their implementation.With the enactment of the Misdemeanours Code, many problems and debates have arisen. First, these debate concerned whether some articles of the code conform to the constitution. Beyond constitutional debates, there are also discussions about how legal regulations should be applied and interpreted. There is no consensus on the nature of the Misdemeanours Code, primarily because it is closely related to both administrative and criminal law. Administrative sanction decisions against misdemeanours are considered “administrative actions”. There is no doubt about this matter. However, annulment procedures, which follow classical administrative procedures, cannot be applied to all administrative sanction decisions. Acts requiring administrative sanctions are broadly and uniformly regulated in the legislation. The Misdemeanours Code defines all acts requiring administrative sanctions as misdemeanours and establishes general provisions applicable to them.The Misdemeanours Code also provides specific legal remedies against decisions involving administrative fines and property transfer to the public. According to this regulation, judicial jurisdiction (criminal judge) generally serves as the judicial remedy, except where otherwise provided, against decisions involving administrative fines and property transfer to the public. Before the Misdemeanours Code came into force, the administrative judiciary was typically responsible for administrative sanction decisions. Previously, although a clear regulation in law was necessary for the judicial judiciary to be responsible for decisions involving administrative sanctions, the Misdemeanours Code now requires that this responsibility must be explicitly stated in law for the administrative judiciary.It has been argued that some provisions of the Misdemeanours Code are unconstitutional, leading to applications being made to the Constitutional Court of the Republic of Türkiye for the annulment of these provisions. In particular, the constitutionality of provisions on legal remedies has been debated. The core of these debates is whether the administrative judiciary has a constitutional basis and whether its judicial power is constitutionally limited. Thus, there is a question of whether the legislator can, through legal regulation, assign the resolution of a&nbsp;dispute falling under the administrative judiciary’s jurisdiction to the judicial jurisdiction. The Constitutional Court annulled some articles of the Misdemeanours Code as unconstitutional, leading to their revision. Following the new regulations, an application for annulment was filed again, claiming unconstitutionality, but the Constitutional Court rejected the request for various reasons. The criteria used by the Constitutional Court were “public interest” and “justified reason.”&nbsp;The Misdemeanours Code refers to the Turkish Penal Code in many articles under its general provisions. However, the Turkish Penal Code or the Criminal Procedure Code does not serve as general laws in the context of the Misdemeanours Code. The Misdemeanours Code is a distinct piece of legislation with its own legal remedy system. It regulates “application” and “objection remedy” against decisions involving administrative fines or the transfer of property to the public due to an act constituting a misdemeanour. A debate has been held on whether an application can be made against decisions resulting from the objection remedy. The most significant debate in this context is whether the extraordinary legal remedies laid down in the Criminal Procedure Code can also be applied to misdemeanours. Although the doctrine contains different opinions, the Court of Cassation has issued varying decisions on this issue.

A Review on the Remedies Arranged in the Misdemeanors Law Against Decisions of Administrative Sanction

The Ottoman Empire, within the constraints of its own circumstances, made reasonable efforts to modernize the profession of “legal representative for the case” (“dava vekilliği”) existing under the term “attorneyship for being party in the case/hearing” (“husumete/murafaaya vekalet”) in Islamic Law. In this regard, the Regulation on Legal Representatives for the Case of Regulatory (“Nizamiye”) Courts (“Mehakim-i Nizamiye Dava Vekilleri Hakkında Nizamname”) dated 1875, is the first regulatory framework related to the legal profession. It holds the status of being the foundational regulation for the profession of advocacy in the Turkish legal system.When the Turkish Republic era was reached, the prevailing view was that the legal institution of legal representative for the case was inadequate, and there was a need to create a new professional branch. In this context, within the ongoing judicial reform efforts, the aim was to establish a transitional period with Attorney’s Act numbered 460 (“Muhamat Kanunu”) until a more comprehensive law was enacted.Attorney’s Act consisted of a temporary total of 18 articles, led to the emergence of decisions in the post-war period with a predominant political aspect through the commissions (“tasfiye komisyonları/meclis-i tefrik”) established under this act as well as it facilitated the establishment of a new profession known as attorneyship (“muhamilik”), defined the rights, powers, and duties of this profession, specified the conditions for acceptance and transition into this profession, ensured the formation of a new professional organization under the name of the bar association, and introduced principles that still hold validity today such as activities incompatible with attorneyship or the prohibition of participation in a lawsuit.The consensus that has been present since the Ottoman period on the fundamental solutions outlined in the Attorney’s Act has led to debates in the Grand National Assembly of Türkiye focusing more on secondary issues. These issues include (i) the duration and form of the internship required to be eligible for the profession of attorneyship, (ii) whether graduation from a law school is a prerequisite for practicing as an attorney, and (iii) whether the terms “muhami” and “muhamat” deriving from the Arabic word “himaye”, “mahmi” and meaning that “protector”, are suitable for the newly established profession.&nbsp;In today’s context, the first two of these three discussed issues still retain their significance. Specifically, the 36-month internship system, originally envisaged as a civil servant within the judiciary and financed by the state according to the Attorney’s Act, has now transformed into a 12-month internship with an uncertain work structure, funded by the candidate themselves. When the current internship approach falls short of meeting the average characteristics of practices in other countries compared to the&nbsp;internship system outlined in the Attorney’s Act, it is observed that there has been a regression in terms of the duration and financial burden of the internship, limited progress regarding the choice of internship placements, and an ongoing expectation for the implementation of the bar exam. Therefore, it should be emphasized that a thorough review of the internship provisions in the regulations for lawyering would be highly beneficial.&nbsp;&nbsp;On the other hand, although it was not considered a reputable view during the Attorney’s Act discussions in the parliament, it is seen that two years after the Act’s enactment, graduates of the school of political sciences were allowed to practice as a lawyer by taking additional courses and completing exams. This practice continued for over 40 years. While investigating the rationale behind this, it is noted according to some approximate data that in the 1920s, only 20-30 people graduated from law faculties each year; considering that Ankara Law School produced its first graduates in 1928, a significant change in this number until the 1930s seems unlikely; in 1939, there were a total of 1,631 lawyers in Türkiye; from the 1960s to the late 1970s, the two law faculties in Türkiye produced a total of 950 graduates each year; in 1961- 1962, that the ratio of lawyers in Türkiye to the population was deemed sufficient pursuant to the research conducted by the State Planning Organization. Therefore, it can be inferred that the opportunity for political sciences graduates to practice law was provided until the gap in the legal professional workforce was filled; in other words, until the days when the ratio of lawyers to real persons in Türkiye decreased from one lawyer for every 10,000 individuals to one lawyer for every 2,485 individuals. However, today, by the ratio of lawyers to real persons, which is 459, in Türkiye, the question of whether graduates from other fields should practice law has evolved into the question of “Is there a need for so many legal professionals/lawyers?”&nbsp;

Transition to Modern Attorneyship Profession During the Republican Era, Discussions in the Turkish Grand National Assembly (TBMM), and Criticisms Regarding Today

One of the common features of law and literature is world-building with names. Ursula le Guin’s She Unnames Them All can be read as a text that considers the ordermaking function of names and challenges masculine character of naming. She, the main character of story, detaches things from their names, in a way approaching the divine violence of Benjamin’s conceptualization. She purifies nature from culture and returns it to its original state. This move to undo the established order can be considered as an anarchist attitude. Because, in line with Benjamin’s description of divine violence, main character of story does not replace names with new ones, she just unnames them. In the story, the justification for this is that names are not useful to non-humans anyway, and that living things are a homogeneous unity when stripped of their names. It is implied that nature is good in itself. While the association of names with usefulness meets the categories of labor and work, which Arendt presents as human conditions, it excludes the category of action. By using names, humans make designs that will ensure their survival, but beyond that, names make it possible for humans to think universals such as justice and beauty and to act in accordance with these universals. In other words, language makes it possible not only to make means but also to assign ends. Thus, the abandonment of universals is not only the abandonment of the means of human survival, but also the abandonment of freedom as a political end and justice as a legal end. So, the detachment of names from action means the rejection of law, which can be characterized as political naming. On the other hand, another fictional character, Tom Bombadil from The Lord of the Rings, does not turn his back on names while maintaining the implication that nature is good in itself. Another Tolkien character, the elves, who, like Tom Bombadil, are good with names, not only build a world with names but also resist evil. They defend peace, plurality and heterogeneity in Middle-earth by taking into account the balance of power. In the Lord of the Rings universe, it is not naming that is evil, but rule through naming. There are three types of use of names in the Lord of The Rings universe. Natural names representing pure science like Bombadil’s, names that are the product of conscious design like the elves’, and misnomers of evil characters like Sauron and Saruman. Different uses of names correspond to different forms of the reason. Misnaming refers to the subject’s manipulation and destruction of the nature of the object for its own purposes. In this sense, misnaming corresponds to instrumental reason. The villains are characters who not only instrumentalize nature but also dominate the people. On the other hand, elves, or wizards like Gandalf, that is, those who give things a name that corresponds to their nature, are characters who do not destroy nature while making use of it, and who take care of nature like a gardener. In this context, the gardener is the symbol of the right ruler. The struggle against evil characters, those who want power for domination, is also a struggle against the substitution of means for ends. The symmetry of Ursula’s anarchist attitude in Tolkien&nbsp;is the maxim “power corrupts”. In this statement, which is the essence of the concept of checks and balances embodied in American constitutionalism, law is seen not as a form of domination but as an antidote to arbitrariness. It is no coincidence that gardener hobbit, a representative of the natural law principle of protecting harmony in nature, and his employer are assigned the task of destroying the ring of power. This is because these two are from the Shire, which offers an example of an unstratified society.

Naming, Order and Power: She Unnames Them All of Ursula & Lord of the Rings of Tolkien

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Volkan

According to longstanding decisions by the Supreme Election Council (SEC), incumbent vice-presidents and ministers are not required to resign from their posts if they become candidates in parliamentary, presidential, or local elections. Before the 2017 constitutional amendments, the Turkish Constitution had a special regulation regarding this matter, but it was abolished with those amendments. Currently, the Constitution contains a general regulation on the eligibility to be a deputy, stating that public servants must resign if they wish to run in elections. This regulation also specifies several professions whose members cannot run for election without resigning: judges and prosecutors, members of the high courts, lecturers at higher education institutions, members of the Council of Higher Education, members of the armed forces, public servants, and other public employees not regarded as private workers due to the nature of their duties. These individuals cannot stand for election or be eligible to serve as deputy unless they resign their positions.Previously, Article 114 of the Constitution, titled “Interim Council of Ministers in Elections,” stipulated that the ministers of justice, internal affairs, and transportation would resign before general elections for the Turkish Grand National Assembly. However, this obligation was not contingent on whether ministers would be candidates in the upcoming elections. Ministers who did not intend to run in the next parliamentary elections were also required to resign under this article. For many years, the SEC justified its decisions based on this regulation, asserting that it was unnecessary for ministers not listed in the regulation to resign before elections. Despite the abolition of this regulation in the 2017 amendments and significant changes to the Constitution, particularly the shift from a parliamentary to a presidential system, the SEC continued to adopt a similar approach in its decisions in 2023. The SEC’s rationale, both historically and presently, is grounded in the belief that ministers should not resign to become candidates since they are not considered “public servants in the strict sense.”However, following the concurrent parliamentary and presidential elections in 2023, the legitimacy of these decisions came into question. The vice-president&nbsp;and ministers serving in executive roles, who were also elected as members of parliament, continued holding their positions as the presidential election advanced to a second round due to a lack of absolute majority. This situation directly contradicts the Turkish Constitution, which prohibits individuals from simultaneously holding legislative and executive branches. Consequently, it can be argued that the legitimacy of the SEC’s decisions has been undermined, necessitating the resignation of vicepresidents and ministers who are parliamentary candidates before elections.There is no explicit regulation in Turkish law requiring vice-presidents and ministers who intend to run in local elections to resign from their duties. However, distinctions exist between rules for local and parliamentary elections. Accepting that vice-presidents and ministers need not resign from office for local elections may pose challenges regarding ministry powers over local governments, as stipulated in the Turkish Constitution and relevant legislation. Given that central government officials possess significant powers that can influence local governments, similar to parliamentary elections, it is advisable for vice-presidents and ministers running for local government positions to resign. Conversely, there is no such requirement for presidential candidates.Although it is suggested that clear regulations on the subject should be included in Turkish law, it is also argued that the SEC should make a separate assessment for each type of election when determining who needs to resign from office. The SEC should also consider other constitutional regulations in addition to direct regulations on resignations from office. In this regard, the article also questions the sole reliance on the resignation regulation in the Constitution when determining whether vicepresidents and ministers are obligated to resign. It argues that the strict definition of “public servant” should not be the sole factor in this determination.&nbsp;

Is Resignation Required for Vice-Presidents and Ministers Before Running in Turkish Parliamentary, Presidential, and Local Elections?

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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

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.

Fethi

Emerging Sources Citation Index (ESCI)

EBSCO

ERIH PLUS

TR Dizin

DOAJ

SOBIAD

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Istanbul Law Review

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Editor in Chief

Co Editor in Chief

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

Aim and Scope

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

Indexing and Abstracting

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

Policies

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

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

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

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

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

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

Ethics

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

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

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

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

Peer Review

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

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

Author Guidelines

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

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

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Issue Type	Regular
Editor(s)	Ömer Ekmekçi, Ali Paslı
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Istanbul Law Review

VOLUME 80, ISSUE 3, 2022

2019/1151 sayılı AB Dijitalleşme Yönergesi ve Alman Hukuku (DİRUG) Uyarınca Online Şirket Kuruluşu, Sicile Online İbraz ve Sicil Kayıtlarının Online İlanı

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