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.”

Online Formation, Online Filing of Company Documents and Online Disclosure in the Register according to the Digitalisation Directive (EU) 2019/1151 and the German Law (DiRUG)

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;

An Analysis of the Individual Applications of Decisions Protecting Family and Preventing Violence  Against Women

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;

An Evaluation of El Real Decreto Ley 9/2021 The Spanish Royal Decree Accepting Delivery Platform  Couriers as Employees

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.

Foreign Currency Receivables Regarding Creditor Composition Agreements

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.

The Protection of Inheritor Creditors by Refusal of Inheritance Within the Context of Article 617 of the Turkish Civil Code

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.

Early Performance in Consumer Contracts

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;

Duress as Reason for Relative Nullity of Marriage in Turkish Civil Law

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;

COVID-19 Measures in Public Procurements: Regulations for Sustainable Procurements

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).

The Principle of Good Governance concerning Tax Law

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.

The Nagorno-Karabakh Conflict from the Perspective of International Law and the Armistice Agreement Ending the Second Nagorno-Karabakh War

Ömer

Mükerrem

Innovation continues to revolutionize the world, and worth is had in emphasizing how digital technology has disruptively transformed business and social relationships. In this respect, innovation is seen as an economic driver. The complications with technological innovation pose a great challenge to the law. The law generally seems to be more reactive than proactive in handling the speed with which technology and society change. In this respect, smart contracts reflect themselves as a technological revolution in this fast-paced changing world. Smart contracts occur as computer code that is placed on a blockchain, something that is characterized as distributed ledger that runs on thousands of different computers located in different parts of the world and has no central authority. Having said that, blockchain systems are developed with the motivation of eliminating intermediaries such as central banks and centralized organizations. Start-up companies currently unfold smart contract solutions for the purpose of digitally bypassing conventional contract law, and the main question in front of legal scholars is whether smart contracts present a masterful solution to the challenges with which conventional contract law contends. In connection with this point, this study benefits from comparative law and presents the concepts of blockchain and smart contracts in layman’s terms while considering the potential and limitations of smart contracts. Accordingly, this article delivers an attentive assessment of the roles blockchain technology and smart contracts have within the realm of contract law. The core questions this article asks are as follows:&nbsp;i) Are smart contracts legally binding? ii) Is conventional contract law satisfactorily adaptable for governing and regulating smart contracts, or does any specific rule need to be added for smart contracts? iii) Are smart contracts compatible with the rules governing general terms and conditions, personal data protection regulations, liquidation of invalid contracts, modification and amendment of contracts, and other applicable legal issues.&nbsp;In other words, this article takes the approach of elaborating on whether smart contracts are compatible with the existing framework of specific areas of conventional contract law and concludes that smart contracts offer innovative and unique possibilities, that they may considerably remodel the commercial ecosystem, and that they will require new legal responses. Still, smart contracts will not reposition contract law. Smart contracts are unquestionably one segment of the prevailing tendency of computerized technologies asserting themselves in order to displace or replace human decision making. That being said, smart contracts reflect themselves in the form of software with the ability to carry out an entire contract cycle from formation to enforcement.The first part of this article presents a general framework and sheds light on the legal and technological aspects of blockchain and smart contracts; it discusses the legal meaning of smart contracts and the technology behind the development of smart contracts. The later sections of the article explore the issue of smart contracts and their compliance with personal data privacy regulations. Subsequently, the article takes a look into the legal problems regarding the applicability of general terms and conditions to smart contracts, as well as restitutions in the event of a smart contract being deemed invalid. Additionally, the article discusses the complexity with applying certain provisions in the field of contract law, such as material adverse effect clauses, renegotiation clauses, materialization of secondary terms, interim measures, and other applicable legal issues.In summary, this article analyzes the application of contract law with regard to smart contracts. At this juncture, smart contracts appear to be characterizable as an instrument for automating and enforcing legal rights, and this may result in radical changes to the current business environment.&nbsp;

Akıllı Sözleşmeler ve Özel Hukuk Uygulamasında Ortaya Çıkması  Muhtemel Sorunlar

Seda

The Covid-19 pandemic brought with it the question of whether compulsory vaccination applications could be made legally possible. It is seen that with the increasing vaccine hesitancy and vaccine rejection throughout the world over the years, the community immunity for vaccine-preventable infancy diseases is gradually decreasing. In this respect, it has been accepted by many countries that infancy vaccination practices must be mandatory. Turkey is not far away from the current vaccine debates. The Halime Sare Aysal decision of the Constitutional Court in 2015 regarding infancy vaccination practices provided a different direction to this debate. The Constitutional Court built its decision only on the principle of “lawfulness,” without any reference to concepts such as custody, the best interest of the child, the superior public, or private benefit, all concepts that can replace consent to medical intervention. A crucial opportunity was missed by the high court’s strict formal assessment of the concept of legality, as the right of custody is understood in the current literature not only as a right, but as an obligation shaped according to the best interests of the child.Although the European Court of Human Rights did not find a violation in the Czech Republic’s decision to make infant immunizations mandatory, it missed a significant opportunity by not mentioning the ideas of custody or the best interest of the child in the judgment’s reasoning. The Vavřička and others v. the Czech Rebuplic case was constructed primarily in terms of a conflict between the private life of unvaccinated children and the values of public health and social solidarity. Despite appearances, the underlying issue is not a conflict between one’s freedom to self-determination and public health. Instead, the conflict at hand is between the parents’ right to make decisions on behalf of their children and the state’s right to impose obligations in order to preserve public health as well as the best interests of the child in question. For example, an adult person who refuses a vaccine against Covid-19 does so willingly and voluntarily, knowingly all of the consequences. This decision can be considered as a person’s self-determination. On the other hand, an infant cannot make this choice. As the decision will be made by the parents, it represents their choices instead of the infant’s, even though the consequences will be borne by the infant.In the first part of the study, I will examine which methods are compulsory for infancy vaccination in the world and especially in Europe. For example, the Measles vaccination is now required for children aged one and up who attend daycare, school, or other community institutions, as well as for individuals who work in those facilities or in medical facilities, according to a German legal rule that alters various statutes. Vaccinations against measles will also be required for those living or working in refugee and asylum-seeker facilities. Noncompliance will result in fines, as well as the exclusion of unvaccinated children and adults from the appropriate facilities. In the second part of the study, I will discuss Turkey’s legislation on infancy vaccination practices and the position of national and supra-national jurisdictions on this issue. The last part is devoted to the evaluation of the right of custody in the context of the best interests of the child. Unfortunately, this concept has found its place neither in the decisions of the Constitutional Court nor in the decisions of the European Court of Human Rights. Thus, the rights and best interests of the child related to infant vaccination practices will be examined. Furthermore, a step that will put an end to the debates on formal legality is to make a legal regulation by the legislator regarding infancy vaccination practices. In this respect, how the new regulation should be designed in order to take into account the best interests of the child will also be discussed.&nbsp;

Bebeklik Dönemi Aşı Uygulamalarının Velayet Hakkı Kapsamında  Değerlendirilmesi

Merve

Article 518/I of the Turkish Civil Code provides that bequeathed property be delivered to the testator in the state in which it is found at the time succession is begun, with the benefits and damages also being transferred to the legatee upon the initiation of succession. This provision makes a distinction in regard to the changes that occur to the bequeathed property before succession has begun compared to the changes that happen after. The legislator is to distinguish between the changes that occur prior to the initiation of succession those that occur after and to attribute different consequences to them. According to Art. 518/I of the Turkish Civil Code, bequeathed property is to be delivered to the testator in its current state once succession has been initiated. Accordingly, the beneficiary will suffer or benefit from the material and legal changes that have occurred up until the initiation of succession (i.e., the death of the testator) and that do not technically qualify as benefits or damage. The changes that occur upon the initiation of succession but prior to the execution of the legacy before updating the land register and ownership had transferred are referred to as benefits and damages. However, these concepts have not been defined, and thus the results of transferring benefits and damages are not clearly regulated in this provision.According to Art. 518/I of the Turkish Civil Code, benefits and damages will pass on to the testator at the time of death and prior to the execution of the will. As follows from this provision, the benefits and damages should belong to the legatee who will benefit from the bequeathed property despite not actually yet having become the owner and possessor of the property; at the same time, however, the legatee must also endure any destruction/damage to the bequeathed property, including the impossibility of transferring ownership for any reason.Meanwhile, the wording in Art. 518 of the Turkish Civil Code suggests this provision to only regulate the transfer of benefits and damages with regard to specific types of legacy. The provision in the doctrine has been argued to also be applicable by analogy to demonstrative legacy. However, the provision is also accepted as not being applicable to general legacy as well as legacy for procurement. In the case of a demonstrative legacy, the transfer of benefits and damages is carried out in accordance with Paragraph 1 of Article 518 of the Turkish Civil Code. Hence in the case of a demonstrative legacy, benefits and damages pass on to the legatee upon the initiation of succession. Although the provision does not clearly regulate this, the current study’s opinion regarding the case of a general legacy is that the benefits and damages pass on to the beneficiary only once the adjustment is made to the entry in the land register or the property is transferred.Regarding the case of a legacy for procurement, nothing changes in regard to the transfer of benefits and damages. Regardless of whether a generic debt or a piece debt has arisen from the legacy, benefits and damages will pass on to the legatee once the bequeathed property has been procured and handed over. Finally, a difference is seen regarding whether the legacy is subject to a condition precedent or a condition subsequent. In the case of a legacy being subject to a condition precedent, the benefits and damages will pass on to the beneficiary upon the occurrence of the condition precedent. In the case of a legacy subject to a condition subsequent, the beneficiary is entitled to the benefits and responsible for the damages arising from the legacy during the period from succession initiation up to the realization of the condition subsequent. When reading Article 518/I of the Turkish Civil Code from the heir’s perspective, heirs acting without authority are under the obligation to fulfill the requirements of the legacy and have to protect, manage, and preserve the bequeathed property while simultaneously being held liable for faults of any kind; on the other hand, the heir is not entitled to the benefits that accrued prior to the transfer (in accordance with Article 518/II of the Turkish Civil Code). Although at first glance, one might think that heirs have a more disadvantageous position compared to legatees, the responsibility of the heirs toward the bequeathed property is an extension of the principle of universal succession. As a consequence of universal succession, heirs must bear the debts associated with their title just as the rights belonging to the estate are vested in the heirs (Art. 599/II of the Turkish Civil Code). Furthermore, according to Art. 518/II of the Turkish Civil Code, heirs may claim the necessary and useful expenses they have incurred for the bequeathed property under the provisions of acting without authority. In addition, an heir who does not wish to bear the obligation to protect and maintain a bequeathed property has the right to refuse the inheritance (Art. 605 of the Turkish Civil Code).&nbsp;

Belirli Mal Bırakmada Yarar ve Hasarın Geçişi (TMK m. 518/I)

Aslı

The use of social media has become widespread all over the world, especially with access to the Internet being provided through mobile devices. Likewise, employees also use social media widely, both during and outside the working hours. In our study, it has been examined whether workers using social media during working hours or in a particular type of way constitute a reason for termination for the employer, and if so, which type of termination may apply. The increase in the use of social media by workers has led employers to take various measures. Indeed, the use of social media platforms in the workplace may cause employees to disrupt their duties. Moreover, workers losing focus due to the use of social media platforms can cause dangerous situations in terms of occupational health and safety. In addition, employees using social media (shares, comments, likes, and direct messages etc.) can sometimes put the employer in a difficult position in front of the public, damage the employer’s reputation, and even cause business secrets to be disclosed.It is possible for employers to limit the use of social media in the workplace in various ways. These regulations may be directly related to the use of the Internet in the workplace or may be in the form of restrictions on certain social media platforms. Furthermore, the employer can make regulations on how social media will be used. For example, it may be prohibited to share images of the whole or part of the workplace, or images of the workers in their workplace clothes. It is also possible for employers to explicitly permit the private use of the Internet at work. If the employer has not made any regulations regarding the use of the Internet for private purposes, as a rule, it can be accepted that the employee cannot use the Internet for private purposes at the workplace and during working hours. In practice, it can be seen that employers want to limit the employees’ use of social media, even outside the workplace. Employers are especially sensitive about the content of the posts made by the employees on social media platforms. As seen in some of the Turkish Supreme Court decisions, many employers claim that they suffer losses because of employees’ posts or the posts by others that the employees liked or reposted, even if these took place outside of the working hours.Employers do not have unlimited authority when making arrangements regarding the use of social media by employees. In particular, certain rights and freedoms of employees will be taken into account in determining the limits of the employer’s regulatory authority. In accordance with the relevant provisions of the Turkish Constitution, everyone has: (i) “the right to protect and develop his/her spiritual existence;” (ii) “the right to demand respect for his/her private life;” (iii) “the freedom of communication;” and (iv) “the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively.”While these freedoms are constitutionally guaranteed, they are not absolute. For example, the employee’s freedom of expression does not allow him/her to make statements about the employer or other employees that would harm their honor and dignity. Likewise, the employees are obliged to consider the legitimate interests of the employer, to keep business secrets, and not to compete with the employer during the continuation of the employment relationship, in accordance with their duty of loyalty. In determining whether the fundamental rights and freedoms of the employee have been violated, the obligations of the employees arising from the employment contract should also be taken into account. Within this framework, a fair balance should be found between, for example, the freedom of expression of the employee and the protection of the honor and reputation of the employer.The important points to be taken into consideration while evaluating the termination of the employment contract also examined in the study include: whether the employee’s use of social media (i.e., browsing, sharing, liking, commenting, and sending messages) violates the employer’s legitimate interests, the severity of the negative impact of the social media use on the employment relationship, and whether the continuation of the employment relationship can be expected. In this regard, (i) the social network used by the employee, (ii) the audience reached through the social network, (iii) the content of the social media use, (iv) use of information about the employer or the workplace, (v) the position of the employee in the workplace, and (vi) the effects of social media use on the employment relationship should be taken into consideration while evaluating the termination. In the last part of the study, in light of the above-mentioned issues, termination of an employment contract because of the employee’s use of social media are examined, considering the employee’s violation of the duty of work, obedience, and loyalty.&nbsp;

İşveren Bakımından Fesih Sebebi Olarak İşçinin Sosyal  Medya Kullanımları

Nilgün

The subject of the present study is the question of who would obtain the estate as an inheritor with the death of a person who is not under the paternal power (sui iuris) in Roman law. According to Roman law, the death of a Roman sui iuris citizen had to take place in order for someone to become an heir. Then, inheritance was done by legal inheritors through the will of the legator (ex testamento) or by calling into inheritance (delatio) by law (ab intestato), even if the heir was not appointed by anyone or there was no will. In addition, if the will made was invalid, the heirs appointed by the will did not accept the inheritance, or did not have the ability to obtain the inheritance, the legal inheritance would have found a field of application. Otherwise, as a rule of Roman law, inheritance by will and legal inheritance would not coexist. Inheritors (sui heredes) who would become sui iuris with the death of the head of a family, consisted of his wife, their children born in a marital union (or at least being fetuses), and their grandchildren from a previously deceased male child. In addition, until the reign of Iustinianus, the slaves appointed by the legator as heirs by freeing in their will would also obtain the inheritance as a domestic heir spontaneously, without any acceptance process upon the death of the legator. These people were considered the mandatory heir according to the ius civile since they could not be prevented from obtaining the inheritance. However, thanks to the privilege of power to be able to decline an inheritance for sui heredes (beneficium abstinendi), these people would not be responsible for the debts of the estate, even if they still had the right to inherit. In order to prevent the unfair consequences of the term on slaves as mandatory heirs because of the situation in which passives exceeds the actives, praetor stepped in and gave them the “privilege of keeping their own goods separate from the estate (beneficium separationis).” Thus, although the slaves appointed as heirs bore the qualification of inheritors, the peculium (or the assets) acquired by the legator were protected from the intervention of creditors after their death. Everyone except domestic heirs had to accept the inheritance as an external heir (heredes extranei) after being called to the inheritance. Since these people also had the opportunity to not accept the inheritance, they were also counted as the discretionary heir (voluntarii heredes). First granted to these persons, during the reign of Iustinianus, the privilege of “bookkeeping or inventory” (beneficium inventarii) enabled liability against creditors within the scope of all the goods that&nbsp;made up the estate. Acceptance of inheritance was carried out by a legal process (cretio) depending on the form, which usually consisted of 100 days in the Classical Legal Period or behavior showing the desire to be heir, that is, by acting as if he were the heir (pro herede gestio). However, in the reign of Iustinianus, there remained only the concept of aditio for accepting the inheritance with an ordinary statement and without any formal procedures after the abolishment of cretio. Those who could not become an inheritor according to ius civile, could demand praetor inheritance (bonorum possessio) within a period of 100 days or one year that was granted to them. This person could apply for the property protection granted by praetor for lawsuits against estate creditors, and they could obtain ius civile possession of estate assets at the end of acquisitive prescription period. According to Roman law, the last condition necessary to obtain the qualification of an heir was a license to inherit. For domestic heirs, it was enough to have inheritance licenses at the time of the death of the legator. However, at the time of the bequest in the acquisition of the inheritance through the will, if there were external heirs, there had to be an inheritance license at the time of the acquisition of the inheritance. There were no restrictions on the inheritance license of a sui iuris Roman citizen. In contrast, the inheritance licenses of women, family sons, and slaves were restricted. In addition to this, if it was desired to appoint a family child under the dominance of another father or slave belonging to a third person as an heir, the acquisition of the inheritance would have occurred for the benefit of the people who control this family child or slave. For this reason, the father of the family child appointed as the heir or the master of the slave also had to have an inheritance license. The ability to obtain inheritance (caducitas) and the inheritance license are different concepts. A person might not have had the ability to obtain an inheritance even if they had an inheritance license. Likewise, the ability to obtain inheritance was only true in the case of being called to the inheritance through a will. At the same time, the scope of inheritance was determined by the laws enacted by Emperor Augustus. By these laws, men between the ages of 25 and 60 and women between 20 and 50 were required to marry and have children. Anyone who was unmarried in this age range (caelibes) or who had not made a marriage suitable for their class would not receive their share of the inheritance bequeathed to them by will. If they did not fulfill their obligation to have children despite being married within this age range (orbi), they obtained half of the share of the inheritance left to them. However, those who did not have children in this age range could bequeath to their spouses only one-tenth of their assets through a will. Finally, a person who lacked an inheritance (indignus), would acquire the inheritance and bear the qualification of an heir. However, since it was not considered appropriate in some cases for this person to earn an inheritance, the assets they obtained were taken from them by aerarium or fiscus.&nbsp;

Roma Hukukunda Mirasçılık Vasfının Şartları

Injury from nervous shock (Schockschaden) refers to the types of damage caused by the mental breakdown or psychological disorder of a person other than the victim who’d been directly injured or died in an accident. One of the most striking examples of nervous shock is the mental depression of a mother who’d witnessed an accident where her son’s legs had been amputated by a train. Examples of these kinds of injuries can easily be counted, as these cases are very common in daily life. Although injury from nervous shock is legally recognized by foreign legal systems, they still have different legal opinions and regulations regarding this field and therefore the subject remains open to discussion.In Turkish law, injury from nervous shock is a fairly new term, and thus no legal regulations nor comprehensive definition exist for it other than some brief mentions in the legal doctrine. The lack of any specific provisions regarding injury from nervous shock may lead one to interpreted these types of injuries to be non-compensable. However, such a misinterpretation would clearly be contradictory to the general principles of compensation law, which merely seeks to protect victims that have been personally injured. In this regard, these specific types of injuries require the immediate attention of Turkish legislators and authorities.The injuries caused by nervous shock relate to the legal liability of the tortfeasor in Tort Law. The nature of these types of injuries are very similar to the concept of Damage by Reflection, as also regulated in the Tort Law of the Turkish legal system. However, these two types of injuries have different meanings and therefore shall be distinguished from one another. Damage by Reflection is the damage that occurs from a breach of contract or the tortious act of a legal entity that violates the personal rights of a person other than the direct victim who’d been subjected to this breach of contract or tortious act. Because Damage by Reflection aims to provide legal protection to persons other than the victim who’d been directly damaged, these types of damages can only be claimed if relevant special provisions exist that can be applied. A typical example of such damage occurs in the Turkish Code of Obligations regarding the loss of support of the victim’s relatives. However, injury from nervous shock only involves people who have a close relationship with the victim or who witnessed an accident where the victim had been heavily injured or died as a result of a tortious act. The main feature of injury from nervous shock pertains to the types of damages only derived from being a relative of the victim or witness to the accident itself, not because of indirectly being a victim. Subsequently, injury from nervous shock cannot be referred to as indirect damages. This type of injury is a direct form of damage regarding one’s mental integrity. In other words, it involves personality rights, which are considered absolute rights. A compensation claim in this regard therefore has a nature independent of a claim for loss of support as in Damage by Reflection.Injury from nervous shock can only be claimed if the case possesses the elements of proper causal link and illegality. The persons who are entitled to be claimants are only limited to very close relatives of a victim who has been directly injured or died or to one who witnessed the accident. Broad interpretation of the scope of the term “close relatives” is to be avoided but should instead only include parents and immediate family. In addition, the claimant should be seen to have suffered severe emotional distress or a psychological breakdown that leads to a breach of mental integrity. The compensation for injury from nervous shock as ruled by the court may be pecuniary as well as nonpecuniary.The most common cases of claims of injury from nervous shock in Turkish courts have been made by the relatives of those injured in traffic accidents. Previous decisions of the Turkish Supreme Court showed reluctance to acknowledge injury from nervous shock and rejected any claims thereof due to the lack of legal precedence. However, the Court’s view has changed over the course of time. Since its 1995 benchmark decision, the Court’s position has fully transformed to allow for injury from nervous shock to be claimed without requiring the claimant to fulfill the heavy burden of proof. However, the Court should also be noted to have avoided using the phrase of “injury from nervous shock” in its decisions.As a result, injury from nervous shock has a direct link to a breach of personal rights, which holds great significance in Tort Law. In accordance with the modern approaches in foreign legal systems, the Turkish legal system also recognizes the principle that a witness to or a close relative of a victim in an accident is entitled to claim compensation for injuries resulting from nervous shock. The legal liability derived from the violation of personal rights is independent from being the primary victim of the tortious act. This principle shall be moved forward both in Turkish as well as all other legal systems, wherein the scope of protection shall be interpreted broadly to include all those whose personal rights have been directly violated.&nbsp;

Şok Zarara Uğrayan Kişi Tazminat İsteminde Bulunulabilir Mi?

Alptekin

Öğretim Görevlisi Dr.

According to the practice, there are two types of signs sought registration for: traditional and non-traditional marks. Traditional marks can be listed nonexhaustively as words, logos, slogans, a combination of words, logos and slogans, pictures or drawings. On the other hand, many non-traditional (non-conventional) marks are more widely accepted due to the expansion of trade mark law. These can be listed as single colour marks, hologram marks, shape marks (three-dimensional or 3D) and sound, scent and taste marks. The three-dimensional mark is the most common type of non-traditional mark. In the EU, three-dimensional marks take up to 5 per cent of all trade marks. Although the assessment for three-dimensional marks should not be different from any other mark during the registration process, as the Court of Justice states, being a sign and having a distinctive character are not the only requirements for three-dimensional shapes to fulfil the protection criteria, a three-dimensional shape needs to overcome other absolute grounds for refusal indicated in the EU Trade Mark Regulation 2017/1001 and the EU Trade Mark Directive 2015/2436/EU. Special provisions regarding shapes or other characteristics indicate that shape marks need to fulfil three additional criteria. Article 4(1)(e) of the EU Trade Mark Directive and Article 7(1)(e) of the EU Trade Mark Regulation exclude shape marks that result from the nature of the goods themselves, which are necessary to obtain a technical result, or which give substantial value to the goods, from trade mark protection in the EU. On top of that, the Court of Justice of the European Union and EU Intellectual Property Office, to some extent, tend to be extremely strict in interpreting the law regulating the protection of three-dimensional shape marks. As a result, obtaining trade mark protection for three-dimensional shapes becomes increasingly difficult for proprietors.&nbsp;There are several policy considerations behind the conduct of courts and intellectual property offices alongside lawmakers’ intention in the EU regarding why they seem to be rather unwilling to grant trade mark protection to three-dimensional shapes. Threedimensional shapes as indicators of origin generally suffer from two main problem regarding trade mark protection. The first problem is the distinctiveness criterion which is the same for all types of marks, and there are no special requirements for threedimensional shapes to fulfil. However, common shapes or cheap packaging shapes (cheap in terms of production costs and R&amp;D) usually lack distinctive character. As they have rather common and obvious shapers, they cannot become indicators of origin. Also, consumers do not necessarily distinguish products for daily-life use. In other words, common shapes are not as indicative as figures, logos or words in the eyes of consumers. On top of that, the CJEU gives particular importance to the public interest clause and ensures that common shapes keep open for competition in the market since shapes are finite and certain shapes are in common use. The second problem regarding three-dimensional shapes is the special provisions: Article 4(1)(e) of the EU Trade Mark Directive and Article 7(1)(e) of the EU Trade Mark Regulation. Established case law indicates that if a product is protectable by other intellectual property rights such as patents or designs, additional trade mark protection should not be an option since trade mark protection gives indefinite monopoly rights to use the mark, subject to renewal. The CJEU justifies the conduct by claiming that time-restricted intellectual property rights, such as patents and designs, should not be extended by granting trade mark protection to such products. As the first exclusion dictates, shapes exclusively resulting from the nature of goods cannot be registered. It means that functional shapes that a specific design is necessary for the product itself, then these shapes cannot be registered to ensure healthy competition in the market even if they have some distinctive character. In addition, the second exclusion dictates that shapes necessary to obtain a technical result are also kept out of trade mark protection. The same concerns and reasoning apply to this provision. In this sense, the approach of the CJEU to three-dimensional on the grounds of the first and second subsections of the provision is appropriate.&nbsp;However, as this study suggests, the third exclusion is problematic due to its wording and interpretation by the CJEU. The clause indicates that shapes that give substantial value to products cannot be registered as trade marks. This clause is open-ended and allows for wide interpretations, which could completely exclude three-dimensional shapes that give a value or a character from trade mark protection. Three-dimensional shapes with distinctive character, unique, not a result of a technical function or nature, and giving pure aesthetic value should be registrable since they can function as commercial trade marks and indicate the origin of products. Nevertheless, the purpose of lawmakers is to maintain a distinction between trade marks and other intellectual property rights. Thus, abolishing the third exclusion completely might not be a good consideration, but narrowing its scope is needed for the purposes of trade mark protection regarding three-dimensional shapes.&nbsp;

Avrupa Birliği Adalet Divanı’nın Üç Boyutlu İşaretlerin Korunmasına Yaklaşımı

Fatih

Turkish Criminal Procedure System (TCPS) has been transformed into a three-tier structure, with the Courts of Cassation becoming operational on July 20, 2016. Firstand second-degree criminal procedures involve two aspects of judicial review: point of law and point of proof. Notwithstanding, the third level of criminal procedure is cassation and only includes point of law regarding judicial review. Therefore, the level of cassation (judicial review in the Court of Cassation) is referred to as the “judicial review”.&nbsp;In accordance with case law for the ECHR and the Turkish Supreme Court, the rules for applying a judicial review (appeal) are not violated as long as they have been previously regulated by the law and do not approach or exceed upon the essence of the right of access to justice and the right to a fair trial. The violation of a legal rule (unlawfulness) constitutes the reason, subject, and outline of an appeal (application to the Court of Cassation) in terms of the a judicial review of the level of law within the three-tier structure. The appellate brief (petition of appeal) should include the appellant’s reason for cassation. Nonetheless the point of absolute unlawfulness (TCPA, Art. 289) is not mandatory for an appellate brief. The absence of any reasons for (merits of) cassation on the appellate brief are legally sanctioned as grounds for the the Criminal Circuit of the Court of Cassation to reject an appeal. Therefore, having the appellant indicate the reason(s) for cassation on the appellate brief is essential for it to be subjected to a judicial review from the Turkish Court of Cassation.Articles 296/1 and 298 of the TCPC are incompatible with one another. Therefore, the indicating the reasons for (merits of) cassation on the appellate brief may have been previously submitted to a judicial review of the criminal circuit of the Court of Cassation, especially if a judgement is rendered without an opinion. Articles 296/1 and 298 of the TCPC must be amended by taking into account the principle of ultra petita regarding judicial reviews in the Court of Cassation. The essential problem with regard to indicating the merits of cassation arises for judgements that have been rendered without an opinion. When focusing on the legal arrangements in the TCPC within this situation, the first petition (i.e., appellate brief) is the first document filed for revealing the reason(s) for cassation regarding judgements rendered without an opinion. The second document involves the merits of cassation and is referred to as an additional petition.The applicant must submit an appellate brief (first petition) within a certain legal timeframe after the judgment (Court of Cassation judgment) has been delivered to the applicant. Afterward the applicant may submit an additional petition that includes the merits of cassation. Submitting an appellate brief that contains reasons such as “we oppose to the judgement,” “we do not accept the judgement,” “we submit an appeal,” or “we make an appeal” are unacceptable as valid appeal reasons for judgements that have been rendered without an opinion. However, indicating a reason for (merits of) cassation on the appellate becomes difficult and especially challenging for appeals to the criminal circuit of the Court of Cessations regarding rulings stated as “formulated judgement,” particularly when taking into account the absence of the obligation of indicating the merits of cassation regarding appeals from parties apart from the public prosecutor, as the application for cassation (application brief) cannot include the merits of cassation by nature of the ruling in this process.A valid application of cassation (application brief) includes a brief summary of the merits of the application (substantive law and/ or procedural law aspects) as long as the judgement has been rendered without an opinion. Afterward, the merits of the application can be submitted at the latest after the initial judicial review of the criminal circuit of the Court of Cassation using a second additional petition. Otherwise, the criminal circuit of the Court of Cassation will be able to make judicial review limited by the specific reason as determined in Article 289 of the TCPC.The TCPC regulates the obligation of indicating the reason(s) for (i.e., merits of) cassation. The Code has clearly and precisely adopted in principle the rule of ultra petita with regard to cassation. However, the Turkish Court of Cassation does accept a valid application cassation regarding substantive criminal law for appellants who declare a judgement to be unlawful in terms of “law and procedure” by law of analogy despite analogy already having been prohibited in terms of clearly and precisely.The statements (i.e., declarations) in the petition of cassation must be clear and require no interpretation in terms of the parties being represented by a lawyer. Otherwise, the application of cassation must be rejected. However, for parties who are not represented by a lawyer, the statements (i.e., declarations) on the petition of cassation must be interpreted as broadly as possible by taking into account the right of access to justice and the right to a fair trial. In this case, the merits of (i.e., reasons for) cassation should be revealed using an interpreter.&nbsp;

Ceza Muhakemesinde Temyiz Sebeplerinin Gösterilmesine İlişkin Zor(unlu)luk

Muharrem

The rise of human rights activism in the last quarter of the 20th century has turned human rights into a discourse of the modern age by giving a positive acceleration to the evolution of human rights towards an institutional structuring. The potential of human rights, which are structured through a normative construct, to transform societies has become a main focus of international institutions/organizations. The declarative normative framework of human rights education was initially regulated in Article 26 of the Universal Declaration of Human Rights (UDHR; United Nations General Assembly, 1948). Expressing the normative framework determined by the Declaration regarding the right to education, the principle of “everyone has the right to education.” (UDHR; art. 26/1) has put forth the subject of the right to education. The transformation of human rights education into a global movement corresponds to the end of the Cold War in the early 1990s. The United Nations World Conference on Human Rights (UN, 1993), held in Vienna, represents a turning point for human rights education. In fact, the Vienna Declaration and Programme of Action (UN, 1993, para. 78) which has been adopted as an output of this Conference emphasizes that “human rights education, training and public information is essential for the promotion and achievement of stable and harmonious relations among communities and for fostering mutual understanding, tolerance and peace.”&nbsp;Within the framework of national and supranational documents, the human rights education has shown a dynamic of gradual development. The first phase (prior to 1948) discusses the historical roots of human rights education in regards to the relationality between the basic educational theories and the morals education from Plato to John Dewey (1859-1952). The second phase (1948–1994) focuses on the institutionalization of the human rights education as an educational activity that aims at legitimizing the values and principles of universal human rights. The third phase (1995-2010), which corresponds to the transformation of human rights education into&nbsp;a global movement, begins with the declaration of the UN Decade for Human Rights Education. As a result of these gradual developmental phases, the rights education has become a global activism that aim to raise awareness on the rights granted and registered in the human rights treaties. The theoretical development dynamics of the rights education makes a participatory perspective with multi-stakeholders and multi-actors essential. It is therefore clear that the national human rights institutions should be more involved in the rights education as an institutional actor. In fact, such institutional structures play a significant role in systematically monitoring and reporting the pedagogies related to the human rights education and their impacts and putting awareness-raising activities into practice.The methodological approaches to the human rights education are characterized as a quest for a “fusion of horizons” (Hans Georg Gadamer, Truth and Method, Bloomsbury Academic, 2004) that brings forth an intercultural consensus in the field of human rights. However, the envisaged consensus is not based on a notion of transcendent idealism or moral realism. It is more of a consensus that is affirmed and conceptualized in many cultural structures. The educational models developed for the human rights education in the last quarter of the 20th century have generated a number of schemas to theorize the emergence, conceptualization and exercising of human rights. Although there are many methodological approaches to the human rights education, it can be stated that there is a general consensus on some basic components. First of all, the human rights education should cover both content and learning processes. Secondly, the human rights education should include relevant objectives related to cognitive (content), attitudinal or emotional (values/skills) and action-oriented components. While the main focus in the current human rights education paradigm is “education on human rights”, the relational hermeneutic/interpretive paradigm focuses on “education for the realization of human rights and their equivalents”. In the hermeneutic paradigm, the main focus is the dissemination of the rights knowledge by means of the cultural epistemology. On the other hand, the dissemination of the rights knowledge by means of the Western conceptualization of the human rights appears as the main focus in the modern human rights education paradigm. The foundation of human rights education in the relational hermeneutic epistemology will make it possible to eliminate the tension between the educational orthodoxy and Universalist-Relativist trends.Therefore, it is necessary to address the human rights education through the perspective of hermeneutics which has turned into a philosophy of interpretation in the modern period. Unlike the structured education models, the hermeneutics which reflects the multi-faceted dialectic between the comprehensor and interpreter makes&nbsp;it possible to construct a “subject”. In fact, a subject-centered methodology is not regarded in the structuralist education models. However, education is the construction of a semantic world. Similarly, the human rights also appear as a pluralistic dynamic cultural universe, as they address the dynamism of life as well as the rights and freedoms. Therefore, the human rights education should be addressed through a hermeneutic perspective, not a structuralist/constructed perspective. It should be noted that there are a number of critical perspectives focusing on the ‘effectiveness of human rights education, learning methodologies, pedagogical strategies and human rights discourse’. The human rights education has been criticized for many aspects, ranging from the transformation of human rights education into a global movement, human rights education turning into a political commitment, the literature focusing on purely pedagogical and methodological issues, the declarative nature of education and the colonization of rights education. These criticisms reveal the tense relationship between the modern theory of human rights notion and the cultural relativism. Furthermore, it is seen that the human rights education is organized around a human rights discourse specific to Western culture. In this context, it is emphasized that the human rights education is based on a Westerncentered pedagogy of human rights rather than a culture-based pedagogy. Constructed as the institutional entity of producing and teaching knowledge, the existential essence of the rights education is inherent in the spirit of universal principles and values. The existential tension between theory and practice, tradition and modernity, value and interest affects the pedagogical philosophy of the rights education. Considering all these critical perspectives, it is quite important to develop methodological pedagogies that enable to build a universal language, spiritual texture and culture specific to the teaching of rights, and to examine the forms of methods produced for the rights education through the paradoxical relationship between socio-economic and socio-political reality. All these exploratory efforts are critical for the identification of the organic structural problems that human rights education has been facing.&nbsp;

İnsan Hakları Eğitimi: Tarihsel, Yöntemsel ve Eleştirel Bir Çözümleme

Sevtap

Ülker

Sevgi

Verda

Our study aims to measure the gender perception of law students and to propose tools that will eliminate gender inequality in law education. As an institution that seeks to achieve justice, the law should also eliminate gender-based injustices. The answer to this need emerged in the 1980s as a feminist legal theory. The main effort of feminist theories, which consider the law from the perspective of women, has not been to build the law in favor of women, but to try to prevent it from working against women. Of course, the main problem is the realization of gender equality. For this reason, feminist theorists working on law have subjected law to a gender filter and have revealed the masculine nature of law. Another finding of these studies was that the known legal doctrines were developed by men in a male-dominated society. Although these doctrines may seem gender-neutral, they contain underlying basic male values, behaviors, expectations, and assumptions. Another finding is that those who make the codes on which the law is built are men and that the male point of view establishes the order by determining the standards and rules of the society. Even when it occasionally appears that arrangements are made in favor of women, especially in the laws and regulations regarding rape, obscenity, and abortion, upon a deeper inspection, a male domination is maintained through these laws. Although legal rules appear formally fair and non-discriminatory, their practices reinforce, perpetuate, and justify inequalities. For this reason, one of the agenda items of women, who are largely excluded from law-making processes, is to take part in the reconstruction of the law, which has fostered the patriarchal order until now. Achieving gender equality in law is becoming possible with the increasing inclusion of women in the sphere of law, where masculine thought has prevailed until today. “If law stands for justice, it must be justice for all.Another important point is related to the application of the law. It should not be forgotten that lawyers are also part of the society they live in. Stereotypes permeate both the investigation and trial processes, ultimately shaping court decisions, and can result in a sexist interpretation and application of laws. Although on paper, abstract and neutral rights rule on equal terms for everyone, these rule put women at a disadvantage with an underhanded gendered perspective. Whether the gender perception of lawyers in the implementation of the law has anything to do with legal education is a matter of exploration. Is it possible for law education to try to change the patriarchal understanding of gender, or is this field entirely up to the personal preferences of the lawyers? In other words, is law education at the level that would provide lawyers with an egalitarian perception of gender? The education of the “lawyer, who, due to his position, has a great share in the implementation and realization of justice” is of primary importance in the realization of gender equality across Turkey. Making the principle of equality in laws dominate all social life and, accordingly, breaking the traditionalist perception of gender through laws depends on the gender perception of those who are tasked with practicing the law. Legal education should be at a level that will provide lawyers with an egalitarian perception of gender. Identifying the situation regarding gender perception will also be an important step for the development of gender-sensitive education models. It is important for law students to have an egalitarian gender perspective in terms of reducing and eliminating the injustices and inequalities that women face, both in their professional and private lives. This study aims to measure the gender perceptions of students at the Istanbul University Faculty of Law. For this purpose, the Gender Perception Scale (GPS), developed and proven to be valid and reliable by Altınova and Duyan (2013), was used to determine and evaluate the gender perceptions of individuals. In addition to the 25-question survey (quantitative) of this scale, we prepared an eight-question survey (8 qualitative) specifically for law students.&nbsp;In this study, a survey (quantitative and qualitative) was conducted with the voluntary participation of 524 students in total (there is an “informed voluntary consent form” at the beginning of the survey text). As a result of the quantitative survey, it was concluded that the gender perception of law students in Istanbul University Faculty of Law ranked quite high in a positive direction. This result was also confirmed by the answers received from the qualitative questions.&nbsp;

Toplumsal Cinsiyet Eşitliğine Dayalı Bir Hukuk Eğitimi Modeli  Geliştirilmesi Çerçevesinde İstanbul Üniversitesi Hukuk Fakültesi  Öğrencilerinde Toplumsal Cinsiyet Algısı Analizi

@JOURNAL_BOX_CURRENT

Mustafa

The rule stating that a person may only be elected as the President of the Republic for a maximum of two terms as regulated in Paragraph 2 of Article 101 of the Constitution as amended by Law No. 6771 in 2017 has raised the question of whether or not presidential elections held during the term of the parliamentary system of government should be taken into account while implementing this rule. This question was analyzed by Prof. Dr. Mustafa Şentop in his article titled “The Rule of ‘Being Elected as President of the Republic for Two Terms at Most’ in the Executive Presidential System” which was published on March 2022 (Şentop, 2022). In that article, it has been put forth that the parliamentary period should not be taken into account while implementing Paragraph 2 of Article 101 of the Constitution during the presidential system of government, departing from the meaning given to that paragraph according to the legal interpretation methods and also from the principles concerning the application ratione temporis to of statutes. On the other hand, a paper titled “On the Constitutional Rule of Being Elected as the President of the Republic for two terms at most”, which was published by Kemal Başak on September 2022 (Başak, 2022), criticized the assessments made in the previous article, arguing that presidential elections held during the term of the parliamentary system of government should be taken into account while implementing the same rule.The purpose of this article is to examine Başak’s (2022) paper, without making a fresh assessment of Article 101 of the Constitution and to seek an answer to the question of whether or not the objections put forward in Başak’s paper legally invalidate the findings of the previous article (Şentop, 2022) regarding the meaning, the scope and the manner of the application ratione temporis of Article 101 of the Constitution. In this regard, the reason for examining Başak’s paper here as a separate academic article on the same legal matter is the fact that Başak’s (2022) paper&nbsp;provides an extensive summary of the opinions of academicians as well as politicians who expressed the view that, regardless of the change in the governmental system, all presidential elections should be taken into consideration while applying Article 101 of the Constitution, which has been the focal point of the public debate on the matter.&nbsp;The views put forward in Başak’s (2022) paper are based on the presupposition that the constitutional rule regarding a person’s ability to be elected as the President of the Republic for a maximum of two terms was not amended by Law No. 6771 in 2017. The current paper thus, firstly examines this presupposition and seeks to answer the question of whether two separate Constitutional Articles were entered into force at separate times regarding the matter, as previously argued in Şentop’s (2022) article or whether only one Constitutional Article has been in force, as argued by Başak (2022). It is expected that the answer to this question, by determining whether the provision contained in Law no. 6771 of 2017 has a separate legal existence from the provision established by Article 4 of Law no. 5678 amending the Constitution in 2007, will provide a better understanding of the legal characteristic of the rule stating that a person may only be elected as the President of the Republic for a maximum of two terms. Thereafter, this article examines the legal validity of Başak’s (2022) objections with regard to Şentop’s (2022) assessments concerning the application ratione temporis of statutes, as well as the application of the literal and historical interpretation methods for determining the meaning of Paragraph 2 of Article 101 of the Constitution.”&nbsp;

Cumhurbaşkanlığı Hükümet Sisteminde İki Defadan Fazla  Cumhurbaşkanı Seçilememe Kuralı – 2

Özge Ceren

Article 28 of the Law on Payment and Securities Settlement Systems, Payment Services, and Electronic Money Institutions (Law No. 6493, 2013) penalizes engagement in such activities as being an unauthorized system operator, payment institution, or electronic money institution, as well as leaving the impression of being a system operator, payment institution, or electronic money institution without proper authorization. The legal value that is preserved by punishing these crimes is the stability and security of the financial system. Anyone who commits the act described in the law can be judged a perpetrator of these crimes, with the victim being every member of society. The crime regulated in Paragraph 1 of Article 28 involves the act of engaging in activities such as being a system operator, payment institution or electronic money institution without obtaining the required permissions in accordance with Law No. 6493. The crime regulated in Paragraph 2 of Article 28 involves the act of using words and/or phrases that leave the impression that they are engaged in activity as a system operator, payment institution, or electronic money institution in relation to trade names, any type of documentation, announcement, and/or advertisement, or public statement without having obtained the required permissions in accordance with Law No. 6493. The crimes regulated in Paragraphs 1 and 2 of Article 28 can only be committed with direct intent, because particular emphasis about illegality is placed on the legal definition with the expression “without obtaining the necessary permissions in accordance with Law No. 6493,” with crimes committed by negligence not being regulated by Law No. 6493. Additionally, the permission clause mentioned in the definition of the crimes involve the principle of typicality. For this reason, the intention of the perpetrator must also involve the issue of permission, which also pertains to the principle of typicality. Therefore, any misuse regarding the obligation to obtain permission should be considered an elemental error. Therefore, such a situation should be stated as eliminating the intent of the perpetrator. In addition, a perpetrator cannot be punished should they have not taken the necessary attention and care and thus made an elemental error. This is due to Law No. 6493 not regulating crimes that are committed by negligence.The offense of engaging in activities such as being a system operator, payment institution, or electronic money institution without proper authorization as regulated in Paragraph 1 of Article 28 of Law No. 6493 is an uninterrupted crime. For this reason, the provisions regarding an attempt at this crime may be applied up until the completion of the crime. Meanwhile, attempting to leave the impression of being an unauthorized system operator, payment institution, or electronic money institution can be considered an offense if the act can be divided into parts. An implied primary-auxiliary norm relationship exists between the two crimes regulated in Paragraphs 1 and 2 of Article 28 of Law No. 6493. Therefore, perpetrators who have committed the two crimes regulated in these paragraphs should only be punished for the crime in Paragraph 1. Otherwise, if the act constitutes one of the crimes regulated in the Turkish Penal Code as well as one of the crimes regulated in Law No. 6493, the provisions of Law No. 6493 as the special case law must be applied when the same legal value has been violated. Therefore, this situation also applies to Article 28 of Law No. 6493. In addition, the crimes regulated in Article 28 of Law No. 6493 are optional crimes. As a result, committing only one of the optional acts of these crimes will be sufficient for the completion of that crime. The offense of engaging in activities such as being a system operator, payment institution, or electronic money institution without the required authorization as regulated in Paragraph 1 of Article 28 in Law No. 6493 calls for imprisonment from one year to three years and a judicial fine of up to 5,000 days, while the offence of leaving the impression of being a system operator, payment institution, or electronic money institution without the required authorization as regulated in Paragraph 2 of Article 28 in Law No. 6493 calls for imprisonment from one year to three years and a judicial fine of up to 5,000 days. If either of these two crimes are committed within a workplace, the decision may be made to close this workplace for two to six months or, in the case of recurrence, to be shut down permanently.

İzinsiz Sistem İşleticisi, Ödeme Kuruluşu veya Elektronik Para Kuruluşu Gibi Faaliyette Bulunma Suçu

Furkan

Turkish law has two types of co-authorship structures (i.e., authorship of a compound work and joint authorship) that are regulated in Articles 9 and 10 of the Law on Intellectual and Artistic Works (LIAW, 1951) No. 5846. Unlike works subject to joint authorship, a compound work can be divided into parts without deteriorating the work. Ordinary partnership provisions in the Turkish Code of Obligation (TCO, 2012) No. 6098 are applied analogously to both authorships of compound works and joint authorships in the matters not regulated under LIAW. 	Based on Paragraph 2 of Article 9 in LIAW, as long as the authorship of a compound work continues, authors may apply to the court against the one who objects to a transaction related to the compound work. If the objecting author cannot prove just cause, the court decision replaces the consent of the objector. From this perspective, termination of authorship of a compound work means that the authors can no longer be compelled to utilize their own contribution in the compound work. On the other hand, copyrights arising from authorship of a created and still existent compound work should be noted to continue, because the compound work is based on both the agreement of the authors and the de facto act, or Realakt in German. Therefore, in case of an infringement against an existent compound work, authors may still demand prevention or halting of the infringement, as well as claim compensation. With regard to making transactions related to a compound work, however, authors can no longer claim or force each other based on Article 9 in LIAW. 	As previously mentioned regarding termination, ordinary partnership provisions in the TCO are applied analogously. In this regard, if authors decide upon a fixed period of time or certain limitation (e.g., a one-time edition of a book) regarding a compound work, the compound authorship terminates upon completion. Prior to this, the compound authorship may be terminated by applying to the court on the basis of just cause. If the authors have not decided upon any limitation regarding the term of a compound work, one of the authors may give a notice of termination or apply to the court demanding immediate termination with just cause. According to Article 640 of the TCO, the termination of a compound authorship goes into effects after six months have passed since the notice of termination. 	In order to remove a section belonging to one of the authors of a compound work, all authors of the compound work must agree to this. Nevertheless, in some cases, the court may order the removal of a section belonging to one of authors upon the application of the other authors based on Article 9 of LIAW. For instance, when one of the authors objects to updating a book according to the new TCO or is unable to update the book, the other authors may apply to the court. If the objector cannot prove just cause, the court should order the section belonging to the objector to be removed, because the court cannot order the author to update that author’s section in the book. And also, one author may demand his part be removed by court order by relying on just cause. 	If one of the authors of a compound work dies, the financial rights respective to this section pass on to the deceased’s heirs. Heirs cannot be removed from the union. Furthermore, one of the authors may analogously waive the financial rights regarding that author’s section in accordance with Article 60 of LIAW, provided that this harms neither the compound work nor the other authors. Upon waiving this right, that author’s permission will no longer be required for utilizing financial rights related to that compound work. 	Joint authorship arises ipso jure with the creation of the work and ends with the expiration of the preservation period or the destruction of the work. Consequently, terminating a joint authorship is not possible by notice of termination or by court decision with just cause, as the provisions in the TCO regarding the termination of ordinary partnerships are not suited to the structure of a joint authorship. 	Paragraph 3 of Article 639 in the TCO, which is regarding termination of an ordinary partnership in the event of a partner’s share being liquidated through compulsory execution unless otherwise agreed, cannot be applied to joint authorship, as joint authorship cannot be liquidated due to the lack of any liquidation shares. The results concerning the death of one of the authors in a joint authorship are also specifically regulated in Article 64 of the LIAW. Additionally, one of the authors may waive financial rights in favor of the other author or authors. In this case, the rights of the others will be expanded.

Birlikte Eser Sahipliklerinde Sona Erme ve Birlikten Ayrılma

Çağla

French administrative law has had an impact on the organization of Turkish administrative law and its structure. Nonetheless, significant differences have arisen between the two legal systems due to regulations on the organization, duties, powers, and functioning of local authorities. The aim of this study is to examine the relationship between local authorities and central government in French law and the evolution of decentralization with regards to the French centralization policy in terms of administrative law by taking into consideration the amendments adopted into the French constitution by Law No. 2022-217 (in force since February 2022). The study is limited to the principles guaranteed by the French Constitution of 1958 and the enacted laws. The study has omitted legislation on overseas and special-status territorial communities, including Corsica, from its scope as they include exceptional rules that do not reflect the main features of the relationship between local authorities and the central government. 	The study first focuses on the term collectivité territoriale [territorial communities], with territorial referring to the centralization policy, while the term administration is not used in any way. The change to concept of local community as a term into a territorial community with the French Constitutional Amendments of 2003 is seen to have been not a coincidence but a clear indication of the dominance of France’s tradition of centralization. 	The second part of the study analyzes the evolution of the decentralization policy in the shadow of centralization, particularly in light of Law No. 2022-217 enacted in February 2022. The decentralization policy hadn’t taken place in the French Constitution of 1958 until an amendment in 2003. Until then, the principle of territorial communities’ free administration assured the administrative autonomy by local authorities instead of the central government. 3 	Another principle supporting the administrative autonomy of local authorities in French law is the clause of general competence that takes its roots from the Municipal Code of 1884. Article 72/2 of the Constitution mentions that territorial communities may make decisions regarding all matters arising under powers that can best be exercised at their level. This disposition has been adopted to comply with the principle of subsidiarity in the next step of constitutionalizing decentralization that occurred in 2003. Within the context of the regulations adopted to empower local authorities in 1982, the general clause regarding the scope of application of competences was expanded to include district, departmental, and regional authorities. In the following years, only district authorities remained within this scope. The differentiation principle, being the greatest innovation of Law No. 2022-217, appears to have avoided the negative effects of excluding departmental and regional authorities from being able to take advantage of the general clause of competence. This law was prepared on the basis of the conclusions from the Great National Debate of 2019 following the intense social events known as the Yellow Vest Protests. 	The third part of this study focuses on the organization and functioning of local authorities regarding the relationship between local authorities and the central government. The decentralization policy has clearly gained power since 1982, especially by being constitutionalized in 2003. Nonetheless, local authorities have yet to prevail against the central government. Indeed, the elected communé [community] mayors still have a hierarchical relationship with the central government in certain areas. Because no minimum population condition exists for their establishment, nearly 35,000 commune authorities are found in France. Hence, they are in a situation where some of them cannot even give local public services due to a lack of resources. These services are instead provided by public establishments for cooperation between local authorities. Even though some regulations have been adopted to expand the competencies of departmental and regional authorities, their exclusion from the scope of the clause of general competency has continued to produce negative effects alongside the limited financial resources. Although Law No. 2022-217 had been adopted as a result of the debates arising from previous social events, scholars mention that has not brought as many changes as expected for strengthening decentralization. 	The fourth part of the study concerns the administrative control powers the central government has over local authorities. These powers are explained on the grounds of protecting general public interest in the face of local public interest or as the continuity of public services. Nevertheless, governors’ administrative supervisory competency over local authorities’ actions has been replaced by an institution of prefectural application for judicial review, which enables the governor to apply to the competent First Instance Court regarding any illegalities arising from the concerned administrative actions or contracts. Supervision as a term has been removed from the 4 	Constitution with the amendments of 2003, with the term of administrative control having taken its place. However, the regulations regarding the central government’s administrative supervision over local authorities still exist, as well as those concerning the power of substitution. Consequently, the central government still has significant powers over local authorities. The study has been unable to conclude the local authorities or the policy of decentralization in France to have built up a strong position over centralization, even after decentralization had been constitutionalized in 2003.

Merkezi İdareyle İlişkileri Bakımından Fransız Hukukunda Mahalli İdareler

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Ayşe

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

Mahkeme Dışında Yapılan Sulh ve Yargılamaya Etkisi

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.

İşverenin Engelli İşçi Çalıştırma Yükümlülüğü

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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.

Gece Çalışması ve Gece Çalışma Süresinin Sınırı ile İlgili Değişikliklerin Değerlendirilmesi

Cemile

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

Arabuluculuk ve Tahkimi Bir Arada İçeren Uyuşmazlık Çözüm Yolu

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İstanbul Hukuk Mecmuası, İstanbul Üniversitesi Hukuk Fakültesi tarafından yayımlanmaktadır.
İstanbul Hukuk Mecmuası’nda, hukuk ve/veya hukuk ile ilişki kuran bilimsel disiplinler alanlarında, özgün akademik çalışmalara yaslanan, teorik veyahut uygulamalı; toplum içindeki davranış ve ilişkilerin değerlendirilmesi, hukuk sistemleri, makale, karar incelemeleri, mevzuat tahlili-tahkiki, hukukî matbuatın değerlendirilmesini konu edinen (müspet-menfi) eleştirel metinler, tercümeler dolayısıyla ulusal ve uluslararası ölçeğe teşmil olabilecek çalışmalar yayımlanmaktadır.
Bu çerçevede Hukuk Fakültesi Mecmuası’nda; (i) Hukuk kuramını genişleten ve hukukî uygulamaların teorik zeminini besleyen; (ii) gerek akademik gerekse de bir erk olarak yargının usûllerini (metodoloji) tahlil ve gerektiğinde teşrih edici; (iii) özel ya da kamusal bağlamda topluma geniş çaplı etki eden hukuksal tefekkürün, fiillerin, süreçlerin, simgelerin vb. mevcudiyetini irdeleyen; (iv) başta hukukî olmak üzere ele alınan konuyu sosyolojik, siyasal, psikolojik, felsefî, ahlâkî, coğrafî, tarihsel yanlarıyla da tahlil edebilecek metinlere yer verilmektedir.

Derginin tüm giderleri İstanbul Üniversitesi tarafından karşılanmaktadır. Dergide makale yayını ve makale süreçlerinin yürütülmesi ücrete tabi değildir. Dergiye gönderilen ya da yayın için kabul edilen makaleler için işlemleme ücreti ya da gönderim ücreti alınmaz.

Emerging Sources Citation Index (ESCI)

EBSCO

ERIH PLUS

TR Dizin

DOAJ

SOBIAD

@METRIC_VOLUMES

@METRIC_ISSUES

@METRIC_ARTICLES

@METRIC_OPENACCESS

İstanbul Hukuk Mecmuası

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

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

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

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

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Editor in Chief

Co Editor in Chief

Language Editor

Editor

@INFO_TAB_BOARDS

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

Aim and Scope

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

Indexing and Abstracting

The journal is committed to upholding the highest standards of publication ethics and pays regard to Principles of Transparency and Best Practice in Scholarly Publishing published by the Committee on Publication Ethics (COPE), the Directory of Open Access Journals (DOAJ), the Open Access Scholarly Publishers Association (OASPA), and the World Association of Medical Editors (WAME) 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.

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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.

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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 Committee on Publication Ethics (COPE), the Directory of Open Access Journals (DOAJ), the Open Access Scholarly Publishers Association (OASPA), and the World Association of Medical Editors (WAME) on https://publicationethics.org/resources/guidelines-new/principles-transparency-and-best-practice-scholarly-publishingAll 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 referees for evaluation and publication decision is given by Editor-in-Chief upon modification by the authors in accordance with the referees’ claims.Editor-in-Chief does not allow any conflicts of interest between the authors, editors and reviewers and is responsible for final decision for publication of the manuscripts in the Journal.Reviewers’ judgments must be objective. Reviewers’ comments on the following aspects are expected while conducting the review.- Does the manuscript contain new and significant information?- Does the abstract clearly and accurately describe the content of the manuscript?- Is the problem significant and concisely stated?- Are the methods described comprehensively?- Are the interpretations and consclusions justified by the results?- Is adequate references made to other Works in the field?- Is the language acceptable?Reviewers must ensure that all the information related to submitted manuscripts is kept as confidential and must report to the editor if they are aware of copyright infringement and plagiarism on the author’s side.A reviewer who feels unqualified to review the topic of a manuscript or knows that its prompt review will be impossible should notify the editor and excuse himself from the review process.The editor informs the reviewers that the manuscripts are confidential information and that this is a privileged interaction. The reviewers and editorial board cannot discuss the manuscripts with other persons. The anonymity of the referees is important.

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

Author Guidelines

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

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

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

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

Issue Type	Regular
Editor(s)	Ömer Ekmekçi, Ali Paslı
Cover (PDF)
Front Pages (PDF)

Istanbul Law Review

VOLUME 80, ISSUE 3, 2022

Online Formation, Online Filing of Company Documents and Online Disclosure in the Register according to the Digitalisation Directive (EU) 2019/1151 and the German Law (DiRUG)

An Analysis of the Individual Applications of Decisions Protecting Family and Preventing Violence Against Women

An Evaluation of El Real Decreto Ley 9/2021 The Spanish Royal Decree Accepting Delivery Platform Couriers as Employees