Assist. Prof. Dr.

The 19th century was a watershed for the Muslim world, and the Ottoman Empire was no less affected by the drastic transformation and modernization prevailing in the region. One of the most important aspects of Ottoman modernization was the codification of various laws in various fields, an important example of which was Kânûnnâme-i Ticâret, a commercial code adopted in 1850.The preamble of Kânûnnâme-i Ticâret clearly demonstrates that it was transplanted from French law as an adaptation of Code de commerce, the French commercial code enacted in 1807. The nature of this transplantation, however, has so far remained ambiguous, with most researchers having claimed Kânûnnâme-i Ticâret to be only a literal translation of Code de commerce.In this paper, I challenge this claim and argue that, while Kânûnnâme-i Ticâret was evidently transplanted from Code de commerce, the Ottoman Empire acted in a highly fastidious, intervenient, and selective manner during the transplantation, as demonstrated by my examination of the legal procedure known as concordat.1 As a procedure visibly transplanted from French law, concordat was introduced to Ottoman legal history for the first time in 1850 through the third book of Kânûnnâme-i Ticâret.To explore whether Kânûnnâme-i Ticâret was indeed a literal translation of Code de commerce, I study condordat as a case study and comparatively examine the pertinent chapters in both texts (i.e., Articles 211-248 in Kânûnnâme-i Ticâret and Articles 519-526 in Code de commerce). My examination demonstrates that the two texts differ one from another significantly in both form and content. For instance, the individual articles in Code de commerce are relatively longer, while those in Kânûnnâme-i Ticâret are much shorter. Similarly, the chapter headings and subheadings do not always match. In terms of content, I see three different ways through which Kânûnnâme-i Ticâret diverged from Code de commerce. First, some articles were modified by additions and deletions during the transplantation. Second, a number of articles were left un-transplanted and hence did not become part of Kânûnnâme-i Ticâret. Third, numerous new articles were added throughout the text, leading to many passages that do not appear in Code de commerce.By the same token, based on a comparative reading of the two texts, I discuss several points regarding the transplantation of Kânûnnâme-i Ticâret in particular and Ottoman modernization in general. More specifically, I try to quantitatively compare the articles relating to concordat in both texts, namely Chapter 6 (altıncı bâb) of Kânûnnâme-i Ticâret and Chapter 8 (chapitre VIII) of Code de commerce. The comparison demonstrates that Chapter 6 of Kânûnnâme-i Ticâret includes 38 articles, 2,452 words, and 19,115 characters. However, Chapter 8 of Code de commerce is overall shorter, as it comprises no more than 18 articles, 856 words, and 5,430 characters. Although it goes without saying that the two texts are in two different languages (i.e., Turkish and French), I still believe that the difference in length already casts new light on how Kânûnnâme-i Ticâret was transplanted. Given that the formal comparison might seem insufficient for drawing conclusions, I have also compared the contents of both texts to further crystallize the differences. By comparatively examining the two texts, I have identified the articles that appear in both text either fully and partially, as well as those that do not appear. My examination has revealed that 65.78% of the articles, 66.19% of the words, and 65.89% of the characters in Kânûnnâme-i Ticâret have an equivalent with a close or similar meaning in Code de commerce. In other words, 34.21% of the articles, 33.80% of the words, and 34.10% of the characters are unique to Kânûnnâme-i Ticâret and thus have no equivalent in Code de commerce, indicating the Ottoman Empire was highly selective during the transplantation, for approximately a third of the rules regarding concordat was created and introduced by Ottomans. As a result, I take issue with the dominant view in the literature that Kânûnnâme-i Ticâret consists merely of a literal translation of Code de commerce. I also argue that, as demonstrated in the example of concordat, the 19th-century modernization of Ottoman law was a process where Ottomans did not hesitate to go beyond merely transplanting European ideas and ideals, taking the local context into consideration. I believe that further studies exploring other parts of Kânûnnâme-i Ticâret and examining legal practice will allow for better understanding of the dynamics of the Ottoman Empire’s modernization agenda and for drawing a more cogent picture of the 19th-century modernization of Ottoman law.&nbsp;

Modernity, Reception, and Transformation in 19th-Century Ottoman Law: Transplantation of Concordat  into Turkish Legal History

Barış

Assoc. Prof. Dr.

The impact of fundamental rights on private law relations has become an area of increasing attention in the context of constitutionality checks and individual application (constitutional complaint) through the Turkish constitutional judiciary and judgments of the European Court of Human Rights (ECtHR) regarding state parties. Articles 38 and 15 of the Turkish Constitution and Article 6 of the European Convention on Human Rights (ECHR) constitute the basis of the presumption of innocence in Turkish law. The presumption of innocence is essentially related to the burden of proof in criminal proceedings. However, in order to protect this right, observing it only in terms of proving guilt in criminal proceedings is insufficient. In this framework and within the scope of the negative or positive obligations of the state, the public authority must refrain from treating such persons as if they were guilty. The presumption of innocence, with the right not to be criminalized being one of its elements, can be asserted against public authority.Fundamental rights can have an indirect or judicial effect on private law. Thus, the assertion of such rights on an individual basis against persons who do not exercise public authority can be ensured within the framework of the protection of personality rights. In addition to this, courts are also considered to be authorities exercising public power in the individual application, with ECtHR case law necessitating that these courts respect the fundamental rights recognized in the Turkish Constitution and the ECHR in their decision-making processes and judgments. Therefore, courts are obliged to render judgments in accordance with these rights in order to avoid violating fundamental rights when applying national law. Otherwise, a retrial may be warranted, in which case, ruling in accordance with the judgment of the Turkish Constitutional Court and the European Court of Human Rights will be obligatory.Although an interpretation must be made based in accordance with fundamental rights when applying national law, fundamental rights must prevail in terms of the regulations that conflict with fundamental rights. Otherwise, an application before the Turkish Constitutional Court or the ECtHR on grounds of fundamental rights having been violated will result in a judgment of violation. In terms of the presumption of innocence, if the court in a private law dispute judges one of the parties to the case to have committed a crime without a final judgment of conviction having been passed in terms of the facts examined in the proceedings, or if said case includes such a statement within the reasoning of the judgment, the right of the concerned party not to be criminalized by the public authority will have been violated. However, the necessity for avoiding violating fundamental rights in proceedings does not mean that the conditions stipulated in substantive law change. The conditions stipulated in substantive law and the requirement that the private law court must avoid violating fundamental rights at the end of the proceedings create a distinction between which conditions should be taken as the basis in proceedings. When considering the principle of interpretation in accordance with the Turkish Constitution and the ECHR, however, the conclusion cannot be reached that this condition is also required in substantive law by interpreting the legal provisions in private law. When applying to the institutions governing deprivation of inheritance or disinheritance for determining the status of an heir or testamentary creditor within the framework of a private law dispute becomes necessary, the potential will be present to risk violating the presumption of innocence and the right not to be tainted, depending on the nature of the reasons that are alleged to prevent the acquisition of rights arising from inheritance law.When analyzing the grounds for deprivation of inheritance and exclusion from inheritance, these grounds are seen to mostly criminal accusations in some cases. Although a final judgment of conviction is not required in terms of substantive law, in order to avoid violating fundamental rights, the occurrence of a judgment of conviction must be sought in accordance with the principles of interpretation as per the Turkish Constitution and the ECHR in order to rule that the grounds for deprivation of inheritance or exclusion from inheritance have been fulfilled. If a person who has been charged with a criminal offense dies, no obstacle is found to prevent a civil court from issuing a judgment. In cases where rendering a judgment in criminal proceedings would be difficult, having the civil court seek a conviction decision can be said to be appropriate when considering how the presumption of innocence is regulated in the Turkish Constitution.&nbsp;

The Connection Reasons for Deprivation of Inheritance and Removal from Inheritance Have With Presumption of Innocence

Hülya

Whether or not a minor is to be held liable for tort through fault and what the scope of a minor’s liability is remains a legal policy issue. Therefore, the rules on this matter differ in every legal order according to how minors are approached. According to Turkish and Swiss law, minors possessing the capacity of judgment are liable in tort. Thus, with regard to liability in tort, these minors are considered equivalent to adults who possess the full capacity to act. However, this does not mean that the characteristics of minors are not to be considered in terms of any liability in tort. The legal order protecting minors requires their benefit to also be considered in the field of liability law. For this reason, in cases where a minor is liable for damages, the minor’s characteristics need to be considered both in regard to when liability arises and when determining damages.The first phase, which determines when liability arose, requires examining the minor’s characteristics in terms of determining whether the minor possesses the capacity of judgment. In Turkish law, liability of a minor for a fault is based on the presence of the capacity of judgment. Thus, determining a minor’s capacity of judgment in concrete cases becomes a very delicate matter. The Turkish and Swiss civil codes contain no provisions regarding how to determine when a minor possesses the capacity of judgment. Unlike the German Civil Code, the Turkish and Swiss civil codes stipulate no strict age limit regarding a minor’s capacity for tort liability. Therefore, an assessment should be made on this matter in accordance with each concrete case. Age is the most crucial element of this assessment. For this reason, although neither Turkish nor Swiss civil law stipulate a strict age limit in terms of a minor’s capacity for tort liability, in doctrine and judicial practice, some age ratings have been considered for determining the capacity of judgment. In this context, capacity of judgment has been suggested to be ratable, with reduced capacity of&nbsp;judgment having been created as a third category between the presence and nonpresence of capacity of judgment. However, no need is found to create such a concept during the stage of determining when liability arose. This because Turkish law does not differentiate between full and reduced capacity of judgment, and even the presence of a slight fault is sufficient for liability to arise. A minor who has been identified as possessing the capacity of judgment (even at a reduced capacity) is to be held liable for tort. When determining damages, however, being a minor is considered a reason for reducing damages.&nbsp;Consequently, a minor’s capacity of judgment should be determined in Turkish law by considering all the other characteristics of the concrete case, as well as the factor of age. Instead of legally stipulating a strict age rating regarding capacity of judgment, this determination can be based on age ratings that are accepted in doctrine and in judicial practice. These age ratings are supplementary sources for guiding a judge in terms of determining capacity of judgment. This will serve to ensure both justice in the concrete case as well as legal security, as the other characteristics of the concrete case will be able to be considered alongside age.Another characteristic of the liability for tort through fault of a minor as debtor arises at the stage of determining damages. Turkish and Swiss legal doctrines are of the prevailing opinion that, if a child is found liable, damages should be reduced due to being a minor, as based on the doctrine of slight fault. Thus, filling the deficiency that arises from the lack of any explicit legal provision on this matter is expediently attempted through doctrine and judicial practice. However, explaining the doctrine of slight fault as the basis for reducing damages within the scope of “grossness of fault” as stipulated by Art. 51/1 of the Turkish Code of Obligations (see also Art 43/1 of the Swiss Code of Obligations) is unsatisfactory. This is simply because the presence of slight fault does not automatically lead to a reduction in damage as commonly accepted. In order to reduce damages through slight fault, other characteristics of the concrete case should justify the reduction. Therefore, considering the slight fault alone may be insufficient to ensure that being a minor is considered a factor affecting the damage amounts in any case. For this reason, being a minor should be considered a distinct reason for reduction within the scope of the circumstances stipulated by Art. 51/1 of the Turkish Code of Obligations. The basis for reduction should be the distinction between minor and child rather than grossness of fault. From this study’s point of view, accepting being a minor as a reason for reducing damages is based on the idea of protecting the child, which in turn derives from the Constitution and various international treaties and documents. The best interest and protection of a child require the minor’s age to be considered as the reason for reduction when determining the amount of damages, the minor is obliged to pay. The basis for this in liability law should be the circumstance, as stipulated by Art. 51/1 of the Turkish Code of Obligations.&nbsp;

Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of  Judgment

Melda

The novel coronavirus, which was first identified in Wuhan, China, on December 1, 2019, subsequently spread to the entire world in a very short time. Following the cases reported in Europe, North America, and the Asia-Pacific region, the World Health Organization declared the virus as a pandemic on March 11, 2020.1 Since the first day the virus began to spread, the pandemic affected many people in different ways, with nearly seven million people having died globally.2 However, the losses caused by the coronavirus pandemic are not limited to health problems and deaths. As it is known, almost every country took a series of similar precautions and restrictions to decrease the losses which could arise from the virus. In this context, although the continuity of some exceptional services which have life-sustaining importance was maintained, especially during the periods when the spread of virus accelerated dramatically, some severe precautions were taken by the governments to decrease the speed of the pandemic. In the frame of these restrictions, legal regulations which set forth the longterm closure of most sectors began to be implemented all over the world.3 Because of these restrictions, such sectors as tourism, transportation, aviation, education, automotive, and catering were unable to operate for many months. Accordingly, many entrepreneurs appealed to their insurers for the loss of revenue caused by the COVID-19 restrictions, referring to their previously signed insurance which provides coverage for business interruption losses. Business interruption insurance could be identified as an insurance agreement which provides coverage to policyholders against losses which are caused by the interference or interruption of business as a result of many factors outside of the hands of the policyholder, such as natural disasters, particularly fires, earthquakes, floods, or epidemic illnesses. However, it is important to emphasize that since nearly all of the business interruption policies provide coverage for losses which are the direct results of “physical damage,” most applications failed to be upheld. Contrary to popular belief, the coverage provided by business interruption insurance is very limited. Because of this, there have been many discussions related to the possibility of payment from insurance companies based on&nbsp;losses caused by COVID-19, with many lawsuits having been filed since the early days of the pandemic.In standard business interruption policies which do not contain any extension clause (non-damage clauses), the main issue related to business interruption losses caused by COVID-19 restrictions is the determination of the meaning of the term “physical damage.” As it is known, most business interruption policies used frequently in practice include some clauses which extend the scope of coverage. Determining the meaning of these clauses has a vital importance to decide whether compensation of the losses related to COVID-19 restrictions is possible or not, regardless of whether these losses can be qualified as physical damage. On the other hand, it is a known fact that in many policies used in practice, the parties can add “extension” or “exclusion clauses” into the agreement.This study aims to examine the extent of the coverage business interruption policies were responsible for as it relates to losses which arose from the COVID-19 pandemic and the subsequent restrictions, both in light of the court decisions and the general terms and conditions frequently used in practice in the insurance industry. At this point, it is also so important to emphasize that when deciding the extent of a business interruption policy, the wording of the policy is of vital importance; in many policies used in practice, the parties can add “extension” or “exclusion clauses” into the agreement. Because of this, we also aim to examine “disease,” “denial/prevention of access,” “hybrid,” and “virus exclusion clauses.”

An Appraisal of the Extent of Business Interruption Insurance  Coverage in the Context of the Covid-19 Pandemic

Necati

Accountability takes its source from the obligation to take care of the interests of others, which is one of the important elements of mandate contract. Accountability is a secondary considerations obligation that arises from the law. Although it is a secondary considerations obligation, it has a key role as it directly or indirectly affects many rights and obligations arising from mandate contract. As a matter of fact, from the point of view of the principal, the control of whether the execution of mandate is carried out correctly and properly and the effective use of the right to give instructions are only possible if the accountability obligation is fulfilled correctly. The agent’s ability to demand wages, expenses incurred due to the execution of the power of mandate, the elimination of the damages man has incurred, and the quittance of the debts man has undertaken depends on the fulfillment of the accountability obligation. Accountability exists in both material fact and legal transactions. In cases where the agent acts as both a direct and indirect representative, there is an obligation to be accountable.&nbsp;The regulation on accountability is imperative. The prior waiver of the principal from the right to hold accountability is null and void. Accountability is an obligation that is formed by the combination of many obligations in it. Within this obligation, there are obligations to inform, keep accounting, billing in various scope and degrees for each type of special power of mandate. A limited information obligation arises regarding accountability. The information here basically consists of givig information about the service or transactions carried out within the scope of the execution of mandate. In this respect, it should be considered seperately from the obligations of clarification and notification, which find their source in the obligation of loyalty and care in article 506 of the Turkish Code of Obligations. Clarification and notification obligations are among the obligations that the agent must fulfill spotaneously, without request. If the execution of mandate involves acquiring or spending various asset values, the agent’s obligation to keep accounting becomes important. Accounting can be demonstrated by keeping a systematic record of the values of assets acquired and spent related to execution of mandate and showing a balance. In addition to providing the information about the Money received and given individually, the balance must be displayed in a detailed, understandable and written manner by linking these&nbsp; information to each other. The obligation to issue an invoice arises in cases where the service or transaction that is the subject of the mandate is done for a fee. The agent declares the service considerations s/he has fulfilled on this invoice, together with the price information.&nbsp;Accounting should include a detailed report and descriptive information on the key processes of the service or transaction. A general idea should be given about the results of all the processes and activities carried out. Due to the agent’s obligation to keep records and preserve documents, it will not be sufficient for the agent to add the records and documents s/he has kept to the report. While preparing the account report, these records and documents should be used and they should be clearly linked with the data in the account report. If the scope of the accountability obligation is regulated in the contract between the parties, the agent will fulfill the accountability obligation as agreed. If there is no regulation regarding the ful fillment of the accountability obligation in the contract between the parties, the limit of the accountability obligation is determined by taking into account the principles of good faith.Accounting is carried out in two diffierent ways in relation to the time it is fulfilled. One of these is the accountability, which is called interim accountability, which is performed at any time when the mandate relationship continues; the other is the accountability, which is called final accountability, which is fulfilled when the mandate relationship ends. Except for the cases agreed by the parties or stipulated by a special law provision, there can be no spontaneous interim or final accountability obligation without the request of the agent. Only in certain cases, a limited scope of accountability may arise from some of the other obligations of the agent. Fulfillment of the obligation of accountability directly or indirectly affects many rights and obligations arising from power of mandate contract.Accountability is not an obligation that arises only after the end of the service or transaction subject of the mandate. This obligation may arise at any stage of the execution of the mandate. As a rule, it must be fulfilled in writing. Accountability is a duty of performance that can be fulfilled by the agent herself/himself or by a third party under her/his responsibility. Due to this nature, if this obligation is not fulfilled, it turns into a compensation obligation as it can not be fulfilled by force.&nbsp;

Agent’s Accountability to the Principal

Seda

Prof. Dr.

Conflict is an inseparable part of daily life as a result of individuals’ interactions in communal life. As a necessity of communal and social life, people are need to communicate with each other and live together. Conflicts arise in this communal and social living process when individuals with different purposes and benefits cannot overcome their differences. The important issue here is the effective management and resolution of conflicts among individuals. In this regard, the element that determines the direction of a conflict is thea handling style of the person managing the conflict.Mediation initially became a part of the Turkish legal system through Law No. 6325 on Mediation in Civil Disputes (Turkish Official Gazette, 2012, June 22, Issue No.28331) and is used in disputes that arise out of private law with the aim of resolving an interparty dispute through a neutral third person called a mediator, who is independent of the parties to the dispute and their representatives. Within the scope of Law No. 6325 on Mediation in Civil Disputes, during basic mediation training, candidates who will become mediators learn about conflict theory together with the basic principles of mediation, ethical rules, and legislation. Among the subjects within the scope of basic mediation training, conflict theory is one subject with special importance in terms of how mediators manage and resolve a conflict during mediation discussions and because it is a separate discipline compared to legal matters and legislation.Unless managed by an appropriate conflict management method, conflicts arising out of the various legal problems between parties may create a dynamic interaction that could lead to more detrimental outcomes. In this case, the possibility of litigation alongside other unpredictable uncertainties will be inevitable for disputes not resolved through appropriate conflict management and resolution.Mediation is a process that starts with negotiations and continues by making progress one step at a time. In this process, the mediator’s (or mediators’) experience in terms of conflict management and resolution plays a key role in resolving a dispute between parties. However, only knowing conflict management is not a sufficient component in terms of being a mediator. During mediation discussions and while managing these discussions one stage at a time, a mediator needs to also be able to see and realize the psychological components related to the decision-making process and behaviors of the parties. This different point of view in terms of mediation directs one to look into this matter from a different angle.With regard to this concept, people are creatures that think, analyze, make decisions, and put these decisions into action. All these mental functions (e.g., thinking, analyzing, decision making) are only possible with a healthily functioning human brain. However, an environment that involves concern, anxiety, anger, stress, and other similar feelings requires a mediator to see what the human brain is comprised of, how the threefold brain structure (i.e., primitive, emotional, and thinking brain) functions, and which neurological and psychological aspects affect the parties’ decision-making processes in order for the mediator to accordingly steer and manage the discussions at hand and handle the conflict properly.Article 1 of Law No. 6325 on Mediation in Civil Disputes states, “This law only applies to the resolution of private law related to disputes arising out of activities and transactions over which parties have full discretion, including those involving a foreign element.” Per this, mediation is law based. Even though mediation is accepted for private law-related disputes that arise out of activities and transactions, the study believes that analyzing mediation in terms of managing and resolving conflicts solely from a law-based point of view would be misleading. As a result, all the efforts of a mediator in terms of managing and resolving a conflict will be useless unless the mediator understands the psychology of the parties, builds trust between the parties, and applies effective communication techniques.In this scope, the presence of such feelings as anger, anxiety, devastation, disappointment, and other similar negative feelings will prevent the parties to a dispute who’ve attended the mediation meetings from thinking about the subject of the dispute in a logical sensible way, from analyzing the events in a healthy way, and from deciding accordingly. As a result, the healthy resolution of the parties’ legal problems will also not be possible.The parties to a legal dispute will not be able to reach the best decision regarding their legal dispute without using their mental capabilities. When looked at from this angle, the study believes that the feelings, psychology, and mental structure and functioning of the parties to a conflict that involve anger and anxiety during the mediation proceedings will lead to a flow of feelings during the mediation; while this is the subject of different disciplines, it is also closely related to mediation. For this reason, this article argues within its scope that the idea of building bridges among mediation, neurology, and psychology will contribute to the field in terms of the resolution of legal disputes.&nbsp;

Psychological Approaches to Mediation Along the Axis of Conflict Management, Conflict Resolution, and  Decision-Making Process

Yasin

Res. Assist.

In accordance with Turkish Commercial Code (TCC) Article 1104/2, a shipmaster has the authority to file a lawsuit on behalf of the shipowner for matters that fall under the shipmaster’s duties. In accordance with TCC Article 1104/3, any lawsuits to be filed against the owner and the bareboat charterer of a foreign ship may also be served against the shipmaster. This study assesses to which institution in civil procedure law the two regulations in question correspond.Firstly, when evaluating a shipmaster’s authority to file a lawsuit on behalf of the shipowner, two different views are present in the doctrine regarding this issue. According to one view, the shipmaster has the competence to conduct litigation. According to another view, the shipmaster has the authority of legal representation and can use this authority to file a lawsuit on behalf of the owner. Competence to conduct litigation refers to the authority to make a decision regarding the outcome of a request. A person with the competence to conduct litigation is also a party to the lawsuit. Legal representation refers to the representation of a person who has not been given the capacity to sue by a person appointed by law. This study is of the opinion that the regulation that gives a shipmaster the authority to file a lawsuit on behalf of the shipowner does not take into account the shipmaster’s competence to conduct litigation or legal representation but is instead an exception to the rule that the lawsuit is to be pursued through a lawyer in voluntary representation. In this regard, the shipmaster can be said to have proxy competence in a lawsuit. In this case, because the shipowner is party to the lawsuit, the judgment will be enforced against the shipowner.Secondly, when evaluating the regulation that enables all kinds of lawsuits to be filed against a shipmaster with reference to the shipowner or bareboat charterer of a foreign ship, a similar conclusion should be reached here as well. Accordingly, the regulation that allows a lawsuit to be filed against the shipmaster provides an exception to the rule that the lawsuit will be pursued through a lawyer in voluntary representation.A shipmaster may have taken legal action on behalf of the shipowner in regard to a matter for which the shipmaster was not authorized to represent the shipowner, or the shipmaster may have exceeded the limits of the shipmaster’s authority to represent the shipowner, or this authority may have expired during the transaction. This undoubtedly affects a shipmaster’s authority to represent the shipowner in court. If a shipmaster takes legal action on behalf of the shipowner as a representative despite not having the authority to represent, this action becomes binding on the owner only upon approval. Therefore, the shipmaster’s authority to file a lawsuit on behalf of the owner in terms of disputes arising from such transactions depends on the shipowner’s approval of said unauthorized legal action.The authority of a shipmaster to file a lawsuit on behalf of the shipowner in disputes arising from transactions that exceed the limits of the power of representation should be evaluated within the framework of TCC Article 1106. Accordingly, the law states that a shipowner who has limited the shipmaster’s authority to represent the owner can claim that the shipmaster did not comply with these restrictions only against those who know about these restrictions. Based on this principle, if a shipmaster exceeds the limits of the shipmaster’s representation authority in the transactions the shipmaster carries out with third parties on behalf of the shipowner, whether or not the third party knows about these limitations plays an important role in determining the shipmaster’s authority to file a lawsuit on behalf of the shipowner.&nbsp;Terminating a shipmaster’s employment contract also terminates the shipmaster’s authority to represent the shipowner in court. Therefore, in cases where the employment contract is terminated, the shipmaster loses the authority to file a lawsuit on behalf of the shipowner, nor is filing a lawsuit against the shipmaster possible anymore by referencing the owner or bareboat charterer of the relevant foreign ship.Finally, it should be noted that the provisions of Article 1104/2 of the TCC and Article 1104/3 of the TCC correspond to § 527 and § 760 of the German Commercial Code. The reason for including these provisions in German Commercial Code is that, at the time the law was being drafted, communications between shipmaster and shipowner were practically impossible, and no companies were found to be engaged in international transportation, nor any foreign representative offices of these companies. With the developments in the field of technology and the emergence of large transportation companies, the need for a legal regulation regarding a shipmaster’s authority to represent the shipowner in court no longer exists. As a result, these provisions were removed from the German Commercial Code.&nbsp;

A Critical Approach to Article 1104 of the Turkish Commercial Code Regulating a Shipmaster’s Representation Authority in Court

Cihan

In administrative justice, the substitution of parties due to death or any other reason while a process is still pending has important consequences on how proceeding will continue and which rules of procedural law will be applied. Determining whether a change in a party’s qualities or status has occurred is a matter related to civil law, property law, and commercial law, thus requiring the issue to be examined with a multidisciplinary approach. Therefore, the concept of the substitution of parties and its consequences have been interpreted in line with the requirements of public law and have gained an original appearance in the jurisprudence of Türkiye’s Council of State (Danıştay). In addition to its direct relationship with private law, applying a substitution of parties both at the first instance and at appeal proceedings requires finding solutions for many different scenarios. Despite the complex nature of the matter, Article 26 of the Administrative Procedure Act, which regulates the substitution of parties in administrative justice, is quite abstract and far from able to respond to what is needed. Although attempts have been made to fill the gaps through jurisprudence, this situation has led to results that are incompatible with the principles of administrative procedural law, such as administrative stability, procedural economy, equality of arms, and especially the right to access the court; this also creates conflict or competition among these principles.This study first focuses on the consequences of a decision to suspend proceedings. On one hand, this has positive results regarding the right to access the court and compliance with the principle of equality of arms. On the other hand, negative results arise that are incompatible with the principle of procedural economy and administrative stability. Upon suspending proceedings, the court not only suspends the case for a long period of time but also fails to reach a final decision. This legal uncertainty has consequences not only on the rights and interests of the parties to the case but also to those of third parties.The next part of this study analyzes the validity of procedural acts when a substitution of parties occurs. Determining whether or not a change has occurred in a party’s qualities or status is a matter for private law. This is why the administrative judge may sometimes not be informed of this substitution, whether practically or legally, and continues with the proceedings. In such cases, the validity of these procedural acts comes under question. In practice, Türkiye’s Council of State (Danıştay) has interpreted the rules of private law in line with the requirements of public law. However, judicial decisions should be noted as being inconsistent with one another, as well as to also go against the principles of administrative procedural law.&nbsp;The study’s second section concerns cases where the court is unable to suspend proceedings and annuls the petition. In some cases, the court decides to end proceedings pursuant to the changes in the qualities of the party to the case. Petitions that concern only a deceased person are to be annulled. Because the notion of “petitions that concern only a deceased person” is not described in the text of Article 26 of the Administrative Procedure Act, administrative courts and the Council of State decide whether to continue or end proceedings based on a case’s individual circumstances. According to jurisprudence, if the process concerns the rights of the inheritors of the deceased party, the court is to decide to suspend the proceedings. Otherwise, the petition is annulled. In administrative justice, decisions taken regarding actions for the annulment of administrative acts impact not only the parties of the litigation but also the legal status of third parties. In addition, some actions in administrative justice are directly related to the public interest. The current legal framework doesn’t allow for cases that have no monetary interest for the inheritors of the parties to continue, nor those that don’t comply with the aims of the actions for annulment.In conclusion, the current legislation regulating the substitution of parties due to death or any other reason for a process that is still pending is noted as being insufficient. Moreover, jurisprudential solutions are unpredictable and inconsistent. Therefore, this study has attempted to outline the solutions in comparative law and their applicability in Turkish Law, with special emphasis on French Law where the principles of administrative stability, procedural economy, and the right to access the court have been balanced effectively. These solutions are believed to be able to serve as a guide in eliminating some of the deficiencies in the Turkish legislation. In addition, the study underlines that harmonization and unification of the Council of State’s jurisprudence will also provide significant benefits.&nbsp;

Evaluating the Scope and Consequences of Substituting Party Qualities or Status in Administrative Disputes in Terms of the Principles Governing Administrative Procedural Law

Hüsnü

In Turkish and German law, participants as subjects of a criminal proceeding are entitled to exercise various rights and powers granted to them in the prosecution of an offense from which they have been harmed. Thus, participants can influence and direct a proceeding. Although participants’ position and activities in criminal proceedings are often identified with the public prosecutor, no specific regulation exists that would prevent them from acting independent from all other subjects of said proceeding or from exercising the rights and powers granted to them in line with their personal interests. In this context, the question arises as to whether participants are allowed to exercise the rights and powers granted to them in a criminal proceeding in favor of the accused and to carry out their activities for the acquittal of the accused. In the absence of any specific regulation, the discussions on the subject are made within the framework of the purpose of participation and the conditions required for valid participation.&nbsp;The provisions of the Turkish and German criminal procedure codes that regulate the rights and powers of participants impose no obligation for a participant to take sides with the prosecutor or to defend the allegations put forward by the prosecutor in a criminal case. Likewise, the person having been directly harmed by the offense committed is sufficient for obtaining the status of participant and according to this study, revealing a will to punish the accused is not necessary.The purposes of participation involve public scrutiny and a guarantee of transparency in criminal proceedings as well as the participants’ satisfaction and rehabilitation by having an active role where they can put forward their own ideas for the protection of victims and prevention of secondary victimization. All these purposes are aimed at ensuring that the participant as an independent subject of the criminal proceedings&nbsp; who has various rights and powers is able to act freely in the criminal proceedings in line with their legitimate claims and interests without jeopardizing the objective of achieving material truth. Participants are not organically linked to the public prosecutor’s office, nor are they obliged to consider public interests and balance as the prosecutor is.How to defend the personal interest of participants ideally remains a matter of their own choice and judgment. In this respect, this study believes the scope of participants’ rights, powers and field of the activity should not be narrowed based on the purpose and function of participation. In fact, a recent decision of the German Federal Court emphasized that participants are entitled to rights and powers as independent judicial subjects and are able to independently exercise these rights and powers in line with their own wishes and interests; in addition, participant activities cannot be made conditional in terms of purpose except for the conditions regulated for participation by law.&nbsp;The only legal basis in Turkish law that prevents the possibility for a participant to act in favor of the accused in a criminal proceeding can be said to fall under the “complaint requirement as” specifically regulated in Articles 237 and 238 of the Turkish Criminal Procedural Code (TCPC) No. 5271. In terms of participation procedure, this “complaint requirement is considered to” mean the declaration of will to participate in a criminal case and to punish the accused.This study is of the opinion that legislators have placed participants in the position of individual prosecution through the “complaint requirement mentioned” in the text of Articles 237 and 238 of the TCPC, thus qualifying their field of activity as acting only against the accused. Therefore, a will to participate that does not contain a complaint regarding the offense or the accused, and more specifically a will to participate that contains requests that are likely to result in favor of the accused, do not meet the complaint requirement. Meanwhile, the complaint requirement in German law, known as die Beschwerde, is not required, and the declaration of participation (die Anschlusserklärung) as regulated in Article 396 of the German Criminal Procedural Code is considered sufficient.&nbsp;Lastly, although no specific regulation exists in either the Turkish or German criminal procedure codes that prevents participants from applying for a legal remedy in favor of the accused, such an application has been stated to be incompatible with the legal conditions for participation and the purpose of participation, as well as the fact that the participant has no legal interest. In fact, while both Turkish and German criminal procedure codes are specifically regulated so that the prosecutor can apply for legal remedies in favor of the accused, this has not been regulated for the participant.&nbsp;

Participant Activities in Favor of the Accused in Turkish and German Criminal Procedural Law

Tolga

The article focuses on the poems of the famous poet Nâzım Hikmet Ran and tries to answer how four fundamental concepts of public law are conceived in his verses. These are “freedom”, “government”, “nation” and “county”.The first concept that the article deals with is freedom. The English word freedom has two equivalents in Turkish: Özgürlük and Hürriyet. Of these, özgürlük is a word derived after the Turkish Language Revolution in 1934. On the other hand, hürriyet has been used for a much longer time. Although these two words are considered synonymous, the word hürriyet has multiple connotations. For example, the revolution carried out by the Young Turks in 1908 is referred to as the “Hürriyet Devrimi (“Revolution of Hürriyet”). Likewise, Nâmık Kemal, one of the most important figures of the constitutionalist movements in the Ottoman Empire, is known as the “Poet of Hürriyet” for his writings on freedom. This old meaning of the concept largely means “absence of domination”. In this respect, it has a republican dimension in the sense used today by authors such as Quentin Skinner and Philip Pettit. As it is known, the republican idea of freedom, which stands in a different place from the liberal idea of freedom in the sense of “absence of interference”, seems to be adopted by Nâzım Hikmet. The author sometimes uses the word freedom in the sense of freedom from the despotic domination of the Democratic Party, but more often in the sense of freedom from the economic domination of the bourgeoisie, that is, socialism. These are exemplified in the article.The second concept the article deals with is government. The way Nâzım Hikmet deals with the concept of government in his poems is completely in line with the basic assumptions of Marxism/Leninism. The poet certainly does not view the dictatorship of the proletariat negatively. The poet includes names such as Marx, Engels and Lenin in his poems in a positive way, and he makes positive references to Robespierre, although he is not a socialist. Nâzım Hikmet’s approach towards Atatürk, changes according to time and context. Although he seems to complain about Mustafa Kemal in the case of the murder of Mustafa Suphi (the leader of the Communist Party of Turkey in 1920), which is still shrouded in fog today, the poet defends Kemalism as anti-imperialist and anti-feudal both in the Epic of Kuva-i Milliye and in his later statements. In this respect, Nâzım Hikmet’s criticism of the Kemalist government can be considered as coming from the left rather than the right, that is to say, towards overcoming it. Although it may be thought that Nâzım Hikmet’s favourable attitude towards Mustafa Kemal was due to the fact that he was in prison and was expecting a pardon/amnesty, the poet’s statements in support of Mustafa Kemal even during the years when he was released and abroad invalidate this argument. Although Nâzım Hikmet had a favourable view of Atatürk, he criticised the governments of the Republican People’s Party (CHP) and the Democratic Party (DP) quite harshly. Most of these criticisms were directed against the DP and its leader Adnan Menderes. In his very courageous verses, Nâzım Hikmet criticised the government’s policy of participation in the Korean War from a Leninist ‘revolutionary defeatist’ perspective. The message in Nâzım Hikmet’s verses is that the DP had abandoned the antiimperialist line of Atatürk’s era and had acquired a collaborationist and counterrevolutionary character. In this respect, it can be inferred from the poet’s verses that he was in favour of the military coup d’état of 27 May 1960, which was carried out by the Turkish Armed Forces against the DP government.The third concept analysed in this article is the nation. The word “Türk” in Nâzım Hikmet’s verses is similar to Atatürk’s understanding of nationalism, which is thought to have been grasped not with an objective understanding like the German Johann Gottlieb Fichte, but with a subjective understanding like Ernest Renan. In fact, this is more in line with the approach to nation in the work of Austrian Marxist Otto Bauer. Although in some contexts the word Turk is used in an ethnic sense, the dominant approach is to use the word Turk in the sense of ‘the people in Türkiye’. The poet, whose poems commemorate the Armenian deportation in 1915 with a negative connotation, does not emphasise a special emphasis on different ethnic groups such as Kurds or Laz people. Although his perspective is criticised by some scholars as a social chauvinist attitude, in our opinion, this approach can be considered as an extension of the TKP’s policy in line with the The Communist International (Comintern). Although the poet did not write a Kurdish-specific poem, in the late 1950s he made some statements on the Kurdish issue based on the right of nations to self-determination.The last concept that the article focuses on is the country. The country that appears with great longing in Nâzım Hikmet’s poems is, of course, Turkey. Although this longing of the poet can be seen in many of his poems, this concept is also dealt with as a subject of anti-imperialist struggle.In conclusion, Nâzım Hikmet’s constitutional theses overlap with the constitutional development theses of the international socialist movement. According to this thesis, which is based on the writings of names such as Lenin, Stalin and Mao on Turkey, the Kemalist movement has a bourgeois-revolutionary character with the momentum it derived from the 1908 Revolution. This revolution has the potential to rally the peoples of the east around it in the anti-imperialist struggle and to gain a more progressive character as long as it is realised, but to the extent that it fails to do so, it will be guided by imperialism by struggling with workers and peasants and cooperating with foreign capital. The volatile position of the 1930s was swung in the second direction with the DP government in the 1950s, but the just and patriotic struggle of the people put a stop to this.&nbsp;&nbsp;

Freedom, Power, People, and Territory: Nâzım Hikmet from the Perspective of a Jurist

Fethi

Ahunur

Murat

Digital platforms allow third parties share content and offer goods and services to internet users. If the shared content is illegal, content providers are liable for these infringements provided that the related act is not considered an exception under the law. It can also be considered that digital platforms are liable for these infringements because the infringement was caused by content providers’ usage of their infrastructure. However, the answer to the question of whether digital platforms are liable for content providers’ activities is not simple.&nbsp;The liability of digital platforms for third parties’ infringing acts should be examined in two ways. First, the digital platform’s liability as an infringer (direct/ primary liability) and second, as an accessory (indirect/secondary liability).Regarding the platform’s liability as an infringer, digital platforms shall not be considered as infringers who perform the infringing act as long as they are not the content providers. However, the line between being a content provider or not is not always clear. For trademark infringements, the CJEU does not consider platforms as “users” of trademarks. However, for intellectual property infringements, the CJEU discussed whether these platforms’ acts constitute communication to the public and thus violate the rights of intellectual property owners. In its case law, the CJEU widened the scope of the right to communication to the public and accepted that platforms may also be considered infringers under certain conditions. Nevertheless, some scholars have criticised the Court for considering subjective criteria for infringements of intellectual and industrial rights. But we have to emphasise that the Court’s main concern in this approach is its will to harmonise Member States’ laws on that matter. Therefore, we believe that the CJEU’s approach should not be directly transferred to Turkish law because Turkey is not a member state.&nbsp;Not accepting the platforms as infringers does not mean that they are not liable for infringing material. Because they provide technical means to third parties’ infringing acts, they may be liable for their actions. However, the legal nature of this liability should be the so-called secondary liability. According to Turkish law, in order to liable as an accessory, the accessor should be acted in fault. When determining whether the host provider has committed an error, the provisions of Turkish Internet legislation should be considered.&nbsp;In terms of providing technical means, digital platforms are already qualified as host providers. According to Article 5/1 of Act No. 5651, host providers have no general obligation to monitor or control the information they store or transmit. Despite the different assessments of the Turkish Court of Cassation and the doctrine, this provision should not be viewed as a liability exemption but as a standard for determining the host provider’s fault.&nbsp;Additionally, according to Article 6 of Regulation 2022/2065 (Digital Services Act-DSA) of the EU, the so-called safe harbour provision, host providers shall not be liable for the information they store or transmit under the conditions prescribed in Article 6/1/a-b. The CJEU applies this rule only to passive providers on the basis of its purpose. Until Act No. 7416s amendments to Electronic Commerce Act No. 6563 there have not been any safe harbour provisions for host providers have been established in Turkish law.&nbsp;According to Article 9/1 of the E-Commerce Act, which entered into force on 01.01.2023, intermediary service providers shall not be liable for the content offered by the service (content) providers. This rule applies only to “intermediary service providers” which have a more limited scope than host providers. Intermediary service providers are a subset of host providers. Moreover, Articles 9/2 and 3, the exemptions of the safe harbour, are only envisaged for “electronic commerce intermediary service providers” which also has more limited scope than host and intermediary service providers. These fragmented provisions make it difficult to assess the liability of digital platforms because the liability of host providers, intermediary service providers, and e-commerce intermediary service providers is regulated in a different way, which is sometimes contradictory. However, there is no justifiable basis for a different treatment for the liability of host providers. For intellectual and industrial rights violations, there is no different treatment in EU law, and Turkey’s legislation should follow this path.In addition, the liability exemption for host providers should not be understood in absolute terms. This exemption should be based on the rationale of the rule. In particular, a balance should be struck between the interests of internet users, rightsholders, and host providers. Therefore, considering the CJEU’s decisions, the host provider’s liability in terms of offering.

Legal Liability of Digital Platforms for Infringements on Intellectual and Industrial Property Rights from Third Parties’ Content

Burçak

According to Turkish Commercial Code (TCC) No. 6102 Art. 55.1.a.8, affecting a customer’s freedom to decide by using particularly aggressive sales methods is considered an unfair competition action. This article is based on the Swiss Federal Act On Unfair Competition art 3.1.h.&nbsp;Distincly from Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practises, the scope of the protection provided by TCC art 55.1.a.8 is not limited to consumers; the other market participants are also protected against aggressive sales methods. TCC does not designate per se aggressive commercial practises; therefore, a commercial practise can be regarded as aggressive by taking account of all its features and circumstances.The Code does not define “aggression”. The sale methods shall be regarded as aggressive in the event of harassment, coercion, including the use of physical force or undue influence. The harassment, coercion, or undue influence must be significantly impairing or is likely to impair the average customer’s freedom of choice. TCC 55.1.a.8 can be applied to situations where physical or psychological pressure makes the customer feel obliged to buy the goods or service and the customer acts with the motive of getting rid of the situation.&nbsp;In the Wind Tre SpA Decision of the Court of Justice of the European Union (CJEU), selling SIM cards on which internet-browsing and voicemail services are preloaded and pre-activated, without informing customers of that pre-loading and preactivation, is considered an aggressive commercial practise. According to the Orange Polska Decision of the CJEU, the fact that a customer takes the final transactional&nbsp;decision in the presence of a courier without being freely able to take cognisance of the content of that contract does not constitute an aggressive commercial practise in all circumstances.&nbsp;Compatibly with Swiss Law, the Code’s preamble states that aggressive sale methods do not involve the aggressive advertisements; such advertisements can be prevented by the general clause of unfair competition (TCC art 54.2). Therefore, persistent and unwanted solicitations are not covered by the TCC art 55.1.a.8 unless they are personalised on behalf of the customer.&nbsp;The fact that the elements of this unfair competition action are not clearly indicated in the text of the Code prevents legal certainty. The Turkish Court of Cassation found that sharing a link on the internet to show how football matches over which the plaintiffs have a broadcast monopoly can be watched free of charge violates this provision. We criticise this judgement since there is no harassment, coercion, or undue influence directed at customers in this incident.Aggressive commercial practises are also regulated by consumer acquit in Turkish Law (Code no 6502 on Consumer Protection art 62 and Regulation on Commercial Advertisement and Unfair Commercial Practises art 31). Turkish consumer arrangements on aggressive commercial practises are derived from Directive 2005/29/ EC of the European Parliament and the Council and therefore only regulates B2C practises. The main sanction for aggressive commercial practises under Regulation on Commercial Advertisements and Unfair Commercial Practises is administrative fine. If aggressive sale methods are applied to a consumer, the plaintiff may both file a complaint for the administrative fine and sue on the basis of TCC art 55.1.a.8. In case of aggressive sale methods, aside from the customer; chambers of commerce and industry, chambers of tradesmen, stock exchanges, and other professional and economic associations authorised to protect the economic interests of their members, non-governmental organisations that protect the economic interests of consumers, and public institutions have the capacity to sue for elimination and, in the event of the risk of recurrence, to cease and desist, in terms of TCC art.56. Additionally, since TCC regulates the criminal liability of the defendant (art 62), distinct from consumer acquit, the provision of TCC 55.1.a.8 maintains its importance for consumers as well.

‘Limiting the Customer’s Freedom to Decide by Using Particularly Aggressive Sales Methods’ in Terms of Unfair Competition Law (TCC 55.1.a.8)

Gülşah

In Turkey, as far as can be discerned from the decisions of the Court of Appeal, whether a minor is intersex or not is not recognised at the time of birth, it is only discovered later, than the (so-called) dominant gender of the minor is determined with the guidance of medical professionals, and the minor is subjected to an operation. After this medical operation, the legal representatives apply to the court with the demand to change the name of the minor and the gender stated on their identity card. Additionally, as has been seen in some decisions, local courts have rejected such demands on the grounds of Article 40 of the Turkish Civil Code. According to this provision, a person who wants to change their gender must reach the age of eighteen.The decisions of the Court of Appeal may be considered correct from a limited and narrow perspective. In other words, if an intersex minor who has already been subjected to a medical operation, together with medical professionals and parents, and if the gender of the minor is defined as female or male, it will of course be necessary to correct the record in the civil registry. Naturally, it may be contrary to the interests of the minors if they identify as female but continue to have a male name and if they identify as male but continue to have a female name. The operations to which the minor is subjected are unjust and unlawful.In Turkey, intersex minors are exposed to so-called “corrective operation” with the advice of medical professionals because of the concerns of legal representatives and social pressure. The genital mutilation operation and subsequent treatments performed on the intersex minor serve the interests of the parents rather than the interests of the minor. The pressure to make things legible to society and the possibility of future experiences almost force parents to consent to this operation, and the pressure to define a minor as female or male is exerted through the guidance of medical professionals. However, these reasons do not change the fact that the operation was unlawful.In this study, the unlawfulness of this corrective operation and subsequent treatments performed on the intersex minors is analysed. This study draws attention to reports of the European Union, the United Nations, and many intersex organisations, as well as to the laws of the countries that regulate this issue. However, the Swiss Civil Code, from which the Turkish Civil Code is derived and largely follows, has not been amended to prohibit operations on intersex minors. Additionally, The Swiss Civil Code does not yet permit the registration of a third gender. Neither legislative changes in German Civil Law nor legal regulations in other European countries will be considered guidelines for Turkish Civil Law. Of course, a lawsuit in the European Court of Human Rights by an intersex person who has been subjected to the operation and Turkey’s conviction in such a case could constitute a driving force for legislative change. However, no lawsuit has been filed yet.What needs to be done is to prohibit operations that are carried out with the consent of the legal representatives. In addition, regulations should be established that the operation cannot be performed before the age of eighteen or before the age at which minors can express their will. Although it is very difficult to expect legislative changes in Turkey in the near future, there is always hope.

The Unlawfulness of Genital Mutilation Operations Performed On Intersex Minor Who Do Not Have The Capacity of Judgement In Turkey

Hayri

Beşir

Temel

Res. Assist. Dr.

Because the protection of capital is an important principle in joint stock companies, shareholders cannot leave the company at any time. For this reason, shareholders in joint stock companies can only leave the company through share transfers. In the case of share transfer, the principle of freedom applies.&nbsp;&nbsp;In a joint stock company, shareholders may, as a rule, transfer their shares to whomever they wish at any time without authorisation or consent of another person. As a rule, the subject matter of a company’s business does not have any effect on the transfer of shares.However, both the law and the articles of association recognise some exceptions to this rule. Approval of the company is required for the transfer of shares that have not been fully paid for (legal binding), and transfer restrictions may be stipulated by the articles of association for some registered shares, even if they have been fully paid for (articles of association binding). These limitations are based on whether the shares are listed on the stock exchange or not, and whether the shares are registered in the share ledger or not in voluntary or legal transfers.In particular, in companies engaged in public service, the need for supervision of the shareholding structure and company activities by competent authorities comes to the fore. In cases where the state outsources a service, which should be performed by the state itself, to legal entities through various means, such as licencing, the supervision of whether these services are duly performed becomes imperative.However, some exceptions to this general regulation have been introduced for companies operating in regulated markets, such as banking and insurance, and the transfer of shares is subject to the authorisation and approval of the authorities regulating and supervising the relevant market. This regulation is based on the fact that these companies operate in various fields of public service within the scope of various licences or activity permits.Legal entities wishing to operate in the energy market must be organised as joint stock or limited liability companies; therefore, the provisions of the Turkish Commercial Code regarding joint stock and limited liability companies are also applicable to companies operating in the energy market. However, since the activities carried out in the energy market have the characteristics of public service, the legislation regulating the energy market also includes some special regulations that differ from the provisions of the Turkish Commercial Code.Controlling share transfers is also important for companies operating in the energy market where public service is provided; for this reason, permission from the Energy&nbsp;Market Regulatory and Supervisory Board is required for transfers that may affect the functioning or structure of the licenced companies.The Banking, Insurance and Capital Markets Laws clearly stipulate that share transfers made without obtaining the necessary authorisation are invalid. However, neither the Electricity Market Law nor the Natural Gas Market Licence Regulation stipulates that transfers made without the permission of the Energy Market Regulatory and Supervisory Board shall be invalid. In our opinion, transfers made without obtaining the authorisation of the Energy Market Regulatory and Supervisory Board should be deemed valid and the transferee should be registered in the share ledger provided that they are in compliance with the provisions of the Turkish Commercial Code. However, sanctions arising from electricity and natural gas market legislation should be applied to the company. In this context, first, the relevant company should be requested to correct its shareholding structure; if this is not done, the company’s licence should be cancelled.

Share Transfer Limitations for Joint Stock Companies and Companies in Regulated Sectors With a Special Focus on the Energy Market

This paper addresses the persistent problems faced by women in domestic labour due to inherited inequalities. As a well-known form of unpaid and undervalued labour, domestic labour is common in many countries. A significant proportion of domestic labour is performed by housewives. This is the substance of uncertainty experienced by housewives who grapple with uncertainty throughout their lives without proper social security, stable income and retirement plans. Law plays a predominant role in changing such social inequalities as a functional tool for improving society.&nbsp;In this article, we discuss how law can provide remedies to rectify domestic labour problems. This paper argues that legal reforms are needed to address this problem and focuses on changing matrimonial property regime articles within the Turkish Civil Code. The pervasive nature of unpaid domestic labour, predominantly carried out by women, is underscored, along with its adverse impact on women’s safety and dignity.Drawing on feminist theory, this article explores how scientific methods can contribute to understanding and redressing domestic labour problems. This thesis critiques the concept of objective research, firmly arguing that science has historically neglected women’s experiences and perspectives. It strongly advocates for the inclusion of the perspectives of oppressed groups, particularly women, in research to provide a more nuanced understanding of social issues such as domestic labour.This article discusses the paramount significance of evidence-influenced policies in addressing women’s problems, emphasising the need for qualitative research to capture the complexities of these issues. This acknowledges the pivotal role of the women’s movement in generating evidence and influencing policy changes, citing compelling examples from Türkiye, where progress has been made on women’s rights.This paper proposes critical amendments to the Turkish Civil Code to alleviate the burden of domestic labour on women, especially in cases of divorce. The evaluation evaluates the effectiveness of the current property division regime. The article also notes the opposition of the men’s rights movement, which seeks to roll back the progress made in the field of women’s rights in Turkey. However, the study argues that their arguments, particularly in relation to property division laws, are primarily ideological rather than evidence-influenced.The women’s movement criticised the former legal regime’s division of property rights, advocating that women should claim property acquired during marriage due to their unpaid domestic labour. While this change is an improvement, we question whether it truly achieves the intended goal. For instance, grant a claim on marital property to a spouse who devotes significant time to household matters align with the desired outcome? An illustrative example can shed light on this issue. Although it is not a scientifically proven phenomenon, in practise, there is a widespread example of men acquiring property before marriage with bank loans not in their name to avoid any legal claims because the debt was paid during the marriage; thus, the property was acquired during the marriage.&nbsp;The proposed amendments to the Turkish Civil Code aim to prevent men from exploiting legal loopholes, such as acquiring property shortly before marriage, to avoid equitable distribution during divorce proceedings. In addressing legal loopholes that benefit men by amending relevant laws, such as Turkish Civil Code article 220/1.2, we can regulate presumptions like “…Properties that belonged to one of the spouses at the beginning of the property regime can be accepted as personal properties as per law only if they are not deliberately acquired right before the beginning of the property regime. In case of paying the debts of such acquisitions during marriage, it shall be accepted as an indicator of such deliberate actions.” regarding deliberate acquisitions of men made before marriage with loans not in their names to prevent any legal claim.&nbsp;Issues experienced by women due to legal loopholes can constitute a basis for amendments only if they are detected in scientific research. Therefore, evidenceinfluenced policies are crucial for improving the quality and number of such presumptions. We emphasise the critical importance of evidence-influenced policies in developing effective legal solutions to women’s problems and advocate for data collection from divorced women to inform policy decisions.Overall, this study comprehensively analyzes the challenges that women face in domestic labour and property division. It strongly advocates for legal reforms in the Turkish Civil Code, informed by feminist standpoint theory and evidence-influenced policies to address these issues and promote gender equality.

A Proposal to Ease the Heavy Burden of Domestic Labour

Naim

Orhan

Öğretim Görevlisi

Neoliberal policies have created major socioeconomic transformations. The norm of precarity in labour relations is set off by the neoliberal transformation process. Accordingly, during this period, legislation on working life was also shaped in line with the needs of capital. Non-standard forms of employment that foster precarity have rapidly taken their place in the legal systems of states. In Türkiye, for example, Turkish Labour Law No. 4857 provides a legal basis for precarious work and regulates the types of contracts and practises that give way to flexible work, such as part-time work, fixed-term work, temporary work, on-call work and equalisation of working hours. The construction of the precariousness law weakened the power of labour against capital, thus the conditions for unions to organise narrowed. In Türkiye, 15% of workers are unionised. Moreover, the rate of workers covered by collective bargaining agreements is approximately 8%, which drops to a very low level of 5% in the private sector. The gradual loss of trade union power is condemning workers to poor working conditions. For the realisation of decent working conditions, freedom of unionisation must be effectively guaranteed.While freedom of unionisation is a fundamental right with a universal dimension regulated in the most fundamental international conventions, it is also a constitutional right in Turkey, where Law No. 6356 on Trade Unions and Collective Bargaining Agreements regulates the guarantee of freedom of unionisation. Article 25 of Law No. 6356 stipulates that an employer cannot discriminate on trade union grounds in recruitment, continuation of the employment relationship, or termination of employment, and that if an employer acts against the law, the employee who is subjected to trade union discrimination will be entitled to trade union compensation&nbsp;in the amount of at least one year’s wages. In addition, it is also stated in the article that an employee whose contract is terminated for union reasons may file a lawsuit for reinstatement in accordance with the provisions of job security and that an employee whose contract is finalised by the court to have been terminated for union reasons shall be entitled to a maximum of four months of idle time wages, provided that he/ she applies for reinstatement, together with union compensation. In the same article, it is emphasised that in the event that an employer does not reinstate an employee, no job insecurity compensation can be awarded, and no application to the job is required for trade union indemnity.The ECtHR delivered an important judgement on the inadequacy of the guarantee of freedom of union in Türkiye upon the application of Tek Gıda-İş Trade Union in 2017. According to a decision examining Tek Gıda-İş’s organising process at the TUKAŞ Gıda enterprise, the failure to reinstate dismissed workers or to pay deterrent compensation for union-busting behaviour by the employer discouraged workers from joining the union. Thus, the union failed to reach the numerical majority required to conclude a collective bargaining agreement. The judgement also found that lengthy court proceedings were effective in the process of unionisation. For all these reasons, the ECtHR concluded that Article 11 of the European Convention on Human Rights was violated.As emphasised in the ECtHR judgement, Article 25 of Law No. 6356 does not guarantee individual freedom of union. There are two problematic aspects to the current regulation. The first is that it is at the employer’s discretion whether or not to reinstate an employee whose dismissal for union reasons is finalised by the court. Another problematic aspect of Article 25 of the Law is that an employer is not obliged to pay a job security compensation to an employee who applies for re-employment. The first step to amend the article is to make the right to reinstatement absolute for an employee whose contract was terminated on union grounds. The protection of workplace union representatives as regulated by Article 24 of the Law can serve as an example in this regard. If the rights regulated for the security of workplace union representatives are adapted to Article 25, which regulates the guarantee of freedom of association, the problem of the lack of an absolute right to reinstatement for employees dismissed for union reasons, which is also criticised in the ECtHR judgement, can be radically eliminated. Although it does not provide as much assurance as this proposal, which guarantees termination on union grounds, it can be presented as a secondary proposal in which the employer should pay job security compensation to the employee if the employee is not reinstated. In order for this to be realised, it would be sufficient to remove the sentence “However, in the event that the employee is not reinstated, the compensation specified in the first paragraph of Article 21 of Law No. 4857 shall not be awarded” in paragraph 5 of Article 25 from&nbsp;the law. This amendment may also be a relative solution to the problem of setting compensation at a lower amount without considering factors such as the economic power of the employers and the low wages of the workers, which are also criticised in the ECtHR judgement.

Need to Improve the Guarantee of Freedom of Association against Precarious Work: Suggestions on the Revision of Article 25 of Law No. 6356

Zeynep

When a debtor requests concordat, he or she receives a provisional period and, as per Art.287 DEBL, the courts are then entitled to take any conservatory measure they see fit to preserve the debtor’s assets. The receivables credited to the debtor’s bank account also constitute a part of these assets. However, this receivable may also be used as collateral for a loan granted to the debtor by the bank, and when this is the case, the bank may choose to block the account in question. This way, the bank secures the right to foreclose this pledge, provided that the debtor fails to fulfil the secured obligation that it has undertaken. A very vivid discussion today is whether the bank’s blockage may be lifted by a court order, relying on Art.287 DEBL. In some cases, courts consider this measure a conservatory measure that they are entitled to take; whereas in others, this measure is found to contradict the general principle that allows the pledgees to commence an execution proceeding for the foreclosure of the pledge. In this article, the author evaluates the legal grounds presented in these court decisions and seeks to determine whether such measures can be considered under Art.287 DEBL.One of the arguments that the courts rely on while giving such orders is that the legal nature of the blockage of a bank account is a conservatory measure that, as per Art.295 DEBL, cannot be taken during the process of foreclosure of a pledge against a debtor who is granted a concordat period. However, blocking an account may not be seen as a conservatory measure because the blockage does not serve to preserve the receivable during the foreclosure of the pledge. Instead, the bank is already entitled to block the account following the establishment of the pledge. This derives from Art 961 TCC (Turkish Civil Code) which requires a third-party debtor to only perform its obligation against the obligee upon the pledgee’s consent. The bank may also enjoy its right to block the account when the pledge right secures a future receivable, provided that the receivable in question is factually concretised.&nbsp;Another argument on which the courts rely while taking such measures is that the concordat procedure is designed to occasionally interfere with the rights of third parties as opposed to what could have been said regarding the postponement of&nbsp;bankruptcy. Although conservatory measures affecting third parties’ rights were not allowed back when the postponement of bankruptcy provisions were in force, in some decisions, courts tend to emphasise how the concordat provisions differ from those regulating the postponement of bankruptcy. The list of provisions under the DEBL that the courts find to interfere with third parties’ rights is as follows: Art. 294 (1), 294 (3), 294 (4), 294 (6), 296 (1), and 296 (2) DEBL. It is suggested that banning a measure that lifts the blockage on a bank account just because it would take a toll on the bank’s pledge right would not comply with the listed concordat provisions, pursuant to which third parties’ rights are occasionally compromised.&nbsp;However, it is questionable to what extent the listed provisions affect third parties’ rights. First, Art. 294 (1) and (4) DEBL cannot justify a change of heart about the scope of the conservatory measures to be taken because the prevention of execution proceedings against the debtor and the restrictions regarding the use of the right to setoff were executed in the same manner under the postponement of bankruptcy as well. Art. 294 (6), on the other hand, cannot be seen as an interference with third parties’ rights because the article focuses on the assignment of future receivables. As the concordat debtor is no longer able to gratuitously assign receivables, the same restriction should apply to the assignment of future receivables. However, this cannot be seen as an interference with the assignee’s right because the assignee would not be able to fully enjoy its rights under the receivable before it is born. Art. 296 (1) prohibits contract provisions that allow one of the parties to terminate certain contracts once the other requests a concordat or the ones that stipulate that the request of the concordat would deem a breach of contract or would lead to maturity of the debt. This imposes a restriction on the freedom of contract but cannot be seen as an interference with the third parties’ rights; because a contract provision that is invalid in light of Art.296 (1) cannot give rise to any rights.&nbsp;Nevertheless, it may be argued that Art.294 (3) regarding the restriction on interests and 296 (2) that regulates the concordat debtor’s right to terminate certain contracts interfere with third parties’ rights. However, in these cases, the interference is very limited, considering that it is possible to compensate for the damage it would cause; whereas the consequences of a measure consisting of lifting an existing blockage cannot be compensated or taken back. Hence, this kind of a measure cannot be justified with the help of Art 294 (3) and 296 (2). Lifting the blockage provides the debtor with the tools to destroy the subject of the pledge (i.e. spend the money that is deposited in the bank account) and deprives the pledgee of its means to protect the subject of the pledge (i.e. the blockage of the account) that it may eventually resort to. It is safe to say that this approach does not add up with the provisions allowing an execution proceeding for the foreclosure of a pledge against the debtor. Yet again, it should be noted that if the pledge also covers the receivables that would&nbsp;later be credited to the bank account, and this occurs only after the debtor is granted the concordat period, then the act of disposition that establishes the pledge on these receivables would be invalid, and the bank would not be able to block the receivables that are credited to the account following the grant of the concordat period.&nbsp;

Evaluation on Whether the Blockage of Pledged Receivables Credited to the Concordat Debtor’s Bank Account Can Be Lifted by a Court Decision under Art.287 DEBL

Nagehan

If stakeholders and shareholders create de facto use of the real estate without obtaining the explicit consent of other stakeholders/shareholders, various legal consequences arise if this use remains silent for a long time. Especially if the stakeholder/partner is left with a small or large portion that he can use and if the stakeholder/shareholder remains silent for a long time, according to the decisions of the Supreme Court, it is possible to prevent semen of intervension, with the legal right of pre-emption and to be deprived of mesne profits demands. This situation is achieved in practice by citing the honesty rule in TCC.Art.2/c.2. On the other hand, the shareholder / shareholder who is not left with a part that she can use more or less, or who is left with it, is deprived of the claim for mesne profits unless she fulfills the condition of prohibition from usufruct. In order to examine whether this solution method is appropriate or not, our opinions on the formation of a valid implicit consent are stated by including the opinions in practice and doctrine under the title of each right. Undoubtedly, it is also important to determine the legal position of the stakeholder/shareholder who make de facto use vis-à-vis the stakeholder/partner who is considered to have given implicit consent due to remaining silent for a long time.In order to prevent the use of the legal right of pre-emption, the concept of de facto division formed by implicit consent must include parts used by the plaintiff and the defendant stakeholder. On the other hand, there is no need to include parts that other stakeholders need to use. Accordingly, while the de facto division defense of the shareholder who was given a small amount of space to use is heard, the de facto division defense of the third party who took over the share of the shareholder for whom no usable space was given is not heard. Thus, the stakeholder who does not participate in the de facto division and does not use the land corresponding to his share or less, or does not allow it to be used, is considered to have given implicit consent to the de facto division, and his interest in not allowing a foreigner to enter the joint ownership is not protected. On the other hand, the interest of the stakeholder who does not participate in the de facto division and is not allocated a place corresponding to his share, and of the other stakeholder/s in not allowing a foreign person to enter the joint ownership, is protected against this stakeholder.&nbsp;However, both gave implicit consent from the Supreme Court’s perspective. In such a case, by creating a difference between the two situations, the stakeholder in the first situation is prevented from exercising the legal pre-emption right without a valid implicit consent.The reason that the stakeholder does not object because it is based on the obligation of other stakeholders not to use the law that is incompatible with their rights and that there will be a legal sanction for their use is against the natural flow of life, as stated in practice, also needs to be questioned. It should also be noted that the burden of declaration, which must be made in a short time against actual use in practice, is imposed. It should also be noted that the stakeholder/shareholder who does not fulfill the declaration obligation is deprived of the most important rights based on property, since he gives implicit consent to the de facto use. However, the obligation to declare can only arise from the law and honesty principle. In order to talk about a valid implicit consent, first of all, a notification must be made to the stakeholder/shareholder by the stakeholder/shareholder who will make actual use in order to obtain consent, and no response should be received within a reasonable time. However, in this case, the silent stakeholder’s exercise of its legal right of pre-emption, semen of intervension and requests for mesne profits can be prevented through TCC art.2/c.2. The concept of remaining silent for a long period of time, which is accepted as implicit consent in practice, is not clear and undermines legal security. The issue that the stakeholder/ partner must object to the de facto use within the period specified in the law is also discussed in this study. In this article, we touched upon the issue of in which situation the concept of implicit consent can be considered a valid consent. We examined whether the losses of rights that occur in cases where implicit consent is accepted to be given in practice are appropriate or not, separately for each right where implicit consent creates legal consequences. While doing this, we benefited from current Supreme Court decisions and opinions in doctrine.&nbsp;

Legal Consequences of the Concept of Implied Consent in terms of the Cases of Legal Right of Pre-emption, Mesne Profits and Semen of Intervension

Hatice

Customary rules are one of the main sources of international law and are important because of the structure of international law. Customary rules are of two types, universal and regional. Universal ones are binding unless there is persistent objection. For regional agreements to be binding, consent is required.For customary rules to be formed, the general practise (the material element) and the general belief (the psychological element) must co-exist. General practise refers to the repeated practise of any state, including those states that are particularly “related” to the subject. The general belief, expressed as opinio juris, is that the aforementioned practise is accepted as a legal requirement. The existence of these two elements is necessary for the formation of customary rules.&nbsp;&nbsp;The established customary rules are binding. However, the fact that the state is bound by customary rules that it does not want is contrary to the general character of law, especially the principle of sovereign equality of states. For this reason, these states are given the right to obtain a persistent objector status. In other words, if a state that does not want a universal customary rule to bind itself persistently, expresses this objection, it will not be bound by the rule. There are some requirements for persistent objector status. First, the objection should start from the first formation phase of the rule and continue through the formation phase and beyond. The State should express its objection whenever and wherever necessary. Disputing a rule after the creation phase is complete does not grant this status.&nbsp;To assess whether North Korea has persistent objector status despite a ban on the use of nuclear weapons, the nature of the ban must first be determined. The prohibition on the use of nuclear weapons is contained in treaties. As is known, treaties, as a rule, only bind their parties. The attitude of states that are not parties to the treaty on nuclear weapons depends on the nature of the ban.It must be admitted that the prohibition has become a customary rule. Such weapons were first used by the United States in 1945 but, were not used again afterward. Therefore, it is possible to say that there is a general practise not to use this type of weapon. In terms of the general belief element, it is necessary to examine treaties aimed at the spread and use of this type of weapon, and the denuclearisation of some areas. The number of such treaties and the parties to them has reached a significant level. For the state parties, it can be posited that there is a belief that the law is behind the general practise. However, the extent of the ban is controversial. Although this type of weapon has not been used except the USA, many states produce, develop, or store this type of weapon. In this context, many agreements have been reached. It is not appropriate to accept the ban on use only. Even if this type of weapon is not intentionally used, even if it is actuated by accident, it will have serious and serious consequences.&nbsp;Some authors argue that the ban turns into jus cogens. However, compliance with the definition laid down in Article 53 of the 1969 Vienna Convention on the Law of Treaties is debatable. One condition of being a jus cogens is acceptance by the society of states that one cannot deviate from this rule in any way. These conditions are not met by agreements made for the production, development or storage of nuclear weapons. In fact, although no treaty accepts the use of nuclear weapons, treaties arranged by such stages prevent the jus cogens qualification.This prohibition has become a customary rule; it is possible for North Korea to maintain a persistent objector status if it fulfils the necessary conditions against this prohibition. However, the objection must remain for this status. Whereas, North Korea became a member of the International Atomic Energy Agency in 1974 and signed the treaty allowing inspections in 1992, became a party to the Nuclear NonProliferation Treaty in 1985, and signed a joint declaration with South Korea on the denuclearisation of the Korean Peninsula. Although, it withdrew from the NPT in 2003, it frequently stated that his work was for peaceful purposes. These actions signify that, starting from the formation stage, North Korea has not consistently objected to the rule. For this reason, North Korea is subject to the said ban, and its violations are grounds for liability.

State Status of North Korea Persistent Objector with Respect To The Prohibition on the Use of Nuclear Weapons

Volkan

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

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

@JOURNAL_BOX_CURRENT

Duygu

After the economic crisis that accelerated in our country following 2018, due to rising inflation and exchange rate shocks, Article 344 of the Turkish Code of Obligations (TCO) regarding the determination of rents for residential and roofed workplaces underwent changes aimed at protecting tenants. Following these changes, starting rents have reached exorbitant amounts, comprehensive guarantees have started to be demanded from tenants, and renting residential properties without an eviction commitment letter has become nearly impossible. Multiple limitations on the maximum rent increase rate for renewed rental periods have led to excessive differences between the residental rents renewed after the change took effect on June 11, 2022, and rental agreements renewed or established before that date. While the parties determined the starting rents and the increase rates for renewed periods based on the ongoing economic data, the rents for renewed periods affected by the legal changes, which entered into force due to the economic crisis, have remained below inflation. Due to the strict termination regime for residential rentals, lessors unable to terminate the contracts have started filing lawsuits for the determination of rents for longer than five years that have significantly decreased in real value against inflation, based on Article 344/III of the TCO. In cases where the conditions for these lawsuits are not met, they have begun to file rent adjustment lawsuits based on Article 138 of the same code. It is a well-known fact that this situation reflects a heavy workload on the judiciary and disputes regarding the rental prices increase day by day.The core of our study is the lawsuits filed by tenants regarding the adaptation of rents. Since adaptation has the nature of intervention in the contract, is considered as a last resort (ultima ratio) and closely related to the rent amount; it has been preferred to examine the provisions related to the determination of the rents. During the period governed by the Turkish Code of Obligations No 6098, the enactment of Article 344, which has special provisions for determining renewed rents in roofed workplaces, diminished the significance of lawsuits regarding the adaptation of rents in such leases. However, changes made to this provision later have made the adaptation of rents a necessary institution again.&nbsp;It is considered that the German law, which is dominated by the theory of the transaction basis, has been used as a reference in the structuring of Article 138 of the TCO regarding adaptation. when examining the conditions for adaptation under Turkish law, interpretation should be based on this theory. Therefore, in our study, while the conditions for the lessor’s request for adaptation of the rents Article 138 of the TCO have been examined, Article 313 of the German Civil Code (GCC) is taken into consideration. Unlike 313/I of the GCC, the adaptation of contracts to changing circumstances under Article 138 of the TCO is specifically limited to hardship among the groups of events related to the collapse of the basis of the transaction. This distinction is particularly significant regarding the lessor’s claim for adaptation of the rent. The fact that rent remains too low despite inflation does not indicate hardship for the lessor; rather, it creates an imbalance between the parties’ obligations. The fact that Article 138 of the TCO regulates only hardship has been rightly criticised and caused dissidence regarding its field of application. According to another view that we support, considering that the legal basis for hardship is the theory of the collapse of the transaction basis, the scope of Article 138 of the TCO should be interpreted broadly to include the disruption of the balance between obligations.&nbsp;The purpose of this study is to establish the conditions under which a tenant can request an adaptation of the rent, using 313 of the GCC as a reference. The first condition for adaptation is that an unforeseen and unforeseeable event at the time of the conclusion of the contract must cause a fundamental change in the objective conditions of the transaction. The event that changes circumstances must be objective and capable of leading to the collapse of the transaction basis concerning the contract in question. In this context, the fundamental change refers to the imbalance between the parties’ obligations. Finally, the tenant must not have fulfilled their continuing primary obligation; in other words, the contract must not have ended.&nbsp;

Legal Provisions Regarding the Determination of the Rent in Residential Rental and The Evaluation of The  Lessor’s Claim for Adaptation

Yahya

The article has two main purposes. First, it sheds light on a few crucial details about the normative hierarchy that are sometimes overlooked by scholars or students. This revisit of the issue also provides me with an opportunity to take a second look at issues associated with the normative hierarchy. The issues clarified in the first part will also help in answering the questions asked in the second part. The second purpose of the article is to raise what seems to be an interesting question only to reject it. The question is whether the normative superiority of morality over law could be claimed based on the explanations made in the first part and whether this could affect the truth of legal positivism. The second part of the article is dedicated to answering these two problems.&nbsp;The first section of the first part reiterates that whether a hierarchy exists between two norms or not should be determined based on the potential normative power of the norms. Therefore, for instance, the fact that at a certain point in time, a norm does not regulate the procedure of creation for another norm does not signify the absence of hierarchy as long as the first norm possesses the power to regulate it at another time.&nbsp;The next section is an answer to a possible critique of normative hierarchy that draws on H.L.A. Hart’s criticism of “validity purport”. Hart thought that the relationship of validity in Kelsen’s theory is reduced to a relationship between the contents of the norms and that this leads to problems for Kelsen’s understanding of the unity of the legal system. The reply stresses that Kelsen’s theory of validity does not merely take into account the contents of the norms but also pays attention to their normative power, i.e., what they can or cannot successfully regulate with their content.&nbsp;&nbsp;The third section reiterates that for the existence of hierarchy, it is not required that a norm need to be invalidated in case of contrariness to another. This is simply irrelevant. The crucial element is the requirement that a legal norm should be in conformity with the other. This is often established by a norm superior to both norms.&nbsp;The last section touches upon the interesting distinction between a source of law and a legal norm to indicate that the hierarchy is between the norms and not the sources. Combined with the fact that a single norm can be constituted by several&nbsp;sources of law, this section offers a way to determine the hierarchy between “multi-sourced” legal norms.&nbsp;The second part of the article opens with an inquiry into the minimum condition of legal positivism. There are differences in opinion among the legal positivists, but what makes them all legal positivists? The first section suggests that a form of the separability thesis is taken to constitute the common ground.&nbsp;The second section asks the following question: Since, as expressed in the first part, the existence of a hierarchical relationship between the norms does not require the invalidity of the inferior norm’s contrariness and finds the existence of a requirement of conformance, could it be claimed that ideal morality is superior to law? The article answers the question in the negative. The first section argues that the existence of a requirement to conform is sufficient for the existence of hierarchy in case a norm superior to both norms in question provides for the requirement of conformance. In the case of morality and law, there is no such common denominator. Just as morality claims to be superior to law, law may claim to be superior to morality. Moreover, it is argued that the legal positivism formulated around the separability thesis manages to survive even when it is granted that it is necessary for the addressees to have moral or prudential reasons to conform to legal norms.&nbsp;&nbsp;

Evaluation of The Requirement of Law’s Conformity to Morality From The Perspective of Legal Positivism  In Line With The Theory of Normative Hierarchy

Dilek

The banks have always been a focus of interest regarding the misuse of their sources for the sake of personal benefits. The main actors of the said misuse, however, are the auditors, who do not fulfil the auditing activity or duty as it should be and as a consequence, impair the affectivity of the audit, and the managers, who try to satisfy their personal benefits and ambitions by way of the use of the sources of the banks via intentional or careless behaviours through the acts and procedures contrary to the applicable laws. Thus, when the mismanagement and lack of audit come together, it will then be inevitable for the banks pertaining thereto to incur substantial scales of losses.On the other hand, the financial markets have been globalised due to the developments in the communication technology our era. In this case, the scope of the losses of banks arisingfrom the activities being designed for the satisfaction of the personal benefits or interests of the bank managers and audits is extended. According to this, a crisis commencing with a bank may spread over other banks in a country through a triggering effect of the social panic environment and throw them into a crisis and through a kind of domino effect and cause the said banks to collapse. Thus, a crisis commenced with a bank can cause a systemic banking crisis nationwide (Article 72 of the Banking Law). Consequently, it becomes possible for crisis of this kind to put the country into a general economic crisis. Even further, a crisis of this kind commencing with a bank is able to create a regional crisis exceeding the boundaries of countries geographically by affecting the countries, taken place within the close proximity of it, having experienced similar economic problems in the world. The concrete examples of this circumstance have been experienced in the banking crises, commenced in Mexico in the year of 1994 and spread over Argentina and Brazil consequently and then, turned into a Latin America financial crisis and subsequently, commenced in Thailand in 1997 and spread over Indonesia, Malaysia and South Korea and finally, turned into the financial crisis of the South-Eastern Asia. This circumstance, explained with ‘’the theory of the contagion effect of the banking crises’’ put forth the dimension and importance of the bank’s loss.&nbsp;In the face of this circumstance, the Governments have been required to necessary measures for preventing banks’ losses or crises. There have been various legal&nbsp;arrangements, expected heavy responsibility in deterrent nature bearing the objective of preventing the activities making the bank incur loss.&nbsp;It was adjudged by the lawmaker at the Turkish law having referred to Article 100 of the Banking Law that it might be possible to remove or invalidate the operating permit of a bank as a result of the decisions and procedures of the managers and auditors of a bank contrary to the applicable law or in case of the determination of the fact that they caused the related bank to be transferred into the Fund, then, it would be possible for the competent court to decide upon their personal bankruptcy directly upon decision of the board of the Fund and following the request of the same.&nbsp;It is necessary to determine on a clear and net basis the scope of this arrangement that adjudges upon a substantially serious responsibility such as personal bankruptcy with relation to the responsibilities of the managers and auditors of a bank as a result of their act(s) having caused their bank to incur loss at a degree that may bring the bank into crisis. This determination appears to be important for the stability of the application.However, the arrangement of Article 110 contains an important gap that makes this determination difficult. Namely:&nbsp;There is not any direct or indirect explanation at all, taken place in the expression and reasoning of the arrangement of the Banking Law, with relation to the nature of the responsibility in the event that the bank’s loss is jointly caused by more than one person. This uncertainty renders the determination of the scope of this arrangement difficult bearing the topic of ‘’Personal Responsibility’’. For this, it is necessary to make a comment, based on the realities of banking and sound legal bases, and present a solution proposal.&nbsp;In the face of this necessity, various evaluations have been made at the doctrine and Turkish Banking Law and different solution proposals have come forth.Within the scope of these evaluations, in case the creation of the bank’s loss by more than one person on a joint basis within the framework of the arrangement of Article 110, of the principle of the differentiated responsibility, accepted in the arrangement of Article 759 of the Swiss Law of Obligations through the reform in the Swiss Law on the Joint Stock Companies in 1991 and transmitted from this arrangement into the arrangement of Article 557 pertaining to the responsibilities of the members of the board of directors of the Joint Stock Companies of the Turkish Commercial Law no. 6102, the question of applicability of the said principle as a general provision through the instrumentality of Article 2/3 of the Banking Law. According to this, in comparison of the principle of the full succession responsibility with its results contrary to the equity that rules out opportunity for the debtors to&nbsp;put forth the causes of personal reduction such as degree of negligence and so on, in an external relationship, is the principle of the differentiated full succession that allows to bring forth the aforementioned causes of personal reductions and therefore, thought to be in conformity with the equity in general, in conformance to the objective for the arrangement of Article 110 and also the willpower of the lawmaker? Even further, in the face of the conviction, indicated by us; and when the principle of the differentiated full succession responsibility is applied within the framework of the arrangement of Article 110 in case the bank’s lost in question is caused by more than one person, will the results in conformance to the equity come forth from the point of view of the responsibilities of the managers and/or auditors and of also the provision of the balance of benefits or interests?The subject of this article is related to the willpower of the lawmaker of the applicability of the principle of the differentiated succession responsibility, and objective of the arrangement in the event that the bank’s loss within the framework of Article 110 and even beyond all these, the evaluation of whether it is in conformance to the establishment of a balance of benefits, required by the equity within the framework of the arrangement of Article 110.&nbsp;In order to make this evaluation, the mentioned legal problem or question will be determined within the content of the article before all else, and the evaluations for the solution of this question at the doctrine of the Turkish banking law and different proposals for solutions thereunder. Subsequently,In this context, our own evaluation and the proposal for solution that we have concluded as necessary to be available hereunder within this direction will be explained within the light of all these evaluations and proposals for solutions.

The Problem of the Applicability of the Principle of the Differentiated Succession Responsibility Within the Framework of The Personal Bankruptcy Responsibility of Managers and Audits at the Turkish Law

Gül

In trademark law, the average consumer&nbsp;is a measure that represents the target audience of a product or service and is used as a reference in cases of trademark registration or trademark infringement, and has a decisive role in evaluating consumer behaviour and perceptions and deciding on the registrability or infringement of a particular trademark or product. Indeed, one of the most important tools in the registration of a trademark and determination of the scope of protection is the likelihood of confusion between signs, and the registration request of a sign that is likely to be confused, including the likelihood of&nbsp;being associated by the publicise to its sameness or similarity with a registered or previously applied trademark and the sameness or similarity of the goods or services covered by it, is rejected upon objection [Industrial Property Law No 6769 (IPL) Art 6/1]. Again, the registration or unregistered use of such a sign constitutes an infringement of the trademark right with the previous registration date and may be prevented by the trademark right holder [Art 7/2(b) of the IPL, Art 29/1 of the IPL].The IPL has preferred to use the term “by the public” in relation to the similarity assessment of trademarks within the scope of the likelihood of confusion. However, it is accepted in both doctrine and judicial decisions that the expression “likelihood of confusion, including the likelihood of association by the public” used by the legislator does not mean all segments of the society, but the specific environment that faces the danger of association or confusion. In other words, in all these cases, the person whose perception is taken as the basis in determining the likelihood of confusion is the “average consumer”.Although most of the disputes regarding trademark law arise on the axis of likelihood of confusion, the “average consumer”, which is taken as a criterion in the evaluation, is not defined in the IPL or the Regulation on the Implementation of the Industrial Property Law, nor is there any regulation on its scope and limits in the trademark legislation. On the other hand, it is determined that the average consumer is defined in secondary regulations in two different areas. These are the Regulation on Commercial Advertising and Unfair Commercial Practises (Art 4/1-j) and the Turkish Food Codex Regulation on Nutrition Declarations (Art 4/1-f).In the judicial decisions on the subject, the average consumer is formulated as reasonably well-informed and reasonably observant and circumspect, but the level of information, attention and caution required may be evaluated differently within the framework of various criteria such as the nature of the goods/services or the nature of the buyer group[1].Indeed, while the presumptive level is higher in certain groups of goods/services, it may be at an average level in others. As a matter of fact, it is&nbsp;accepted that consumers will generally not act carefully in terms of products that are used by all segments of society in daily life.The average consumer group criterion used in trademark registration and infringement proceedings is the product of a norm-based practise that follows the legal or policy objectives underlying trademark law. Although the average consumer criterion as “a reasonably informed and reasonably cautious and prudent person” provides convenience to the decision-makers, it is insufficient because it does not take into account the scientific data on how consumer perceptions are actually directed. The replacement of traditional commerce by electronic commerce affects the purchasing behaviour of consumers and shapes consumer perception. The criteria determined within this framework make it impossible to make decisions on the subject on an objective and equitable basis.This paper does not aim to eliminate the criterion of the average consumer, but it may be time to adopt a more empirically grounded approach to the average consumer. First of all, the norm-infused structure of the average consumer is fictional in three senses: attention, knowledge and vigilance. This triple artificiality leads to a nonnegligible disconnect between what trademark law recognises and what reality is. Adding more reality to thisremodelling process and interpreting the average consumer as objectively as possible requires an interdisciplinary work between behavioural sciences and legal science. On the other hand, it is considered that the actual use of the trademark should also be taken into account as part of the global assessment in the likelihood of confusion assessment, and a more empirically based structure should be established by applying survey evidence in proving the likelihood of confusion.&nbsp;

Reinterpretation of the Average Consumer Benchmark considering Recent Developments

Muhammet

The justiciability of international organizations has been a topic of debate, particularly regarding the United Nations’ role in the cholera outbreak in Haiti. The UN’s role is often compared to that of a god who bears no responsibility for actions beyond being above the law. This article discusses the concepts of immunity, autonomy, and responsibility of international organizations, including the effective use of alternative systems to repair the damage caused. The role of personnel working for the UN is compared to that of angels, who are expected to work for the good of humanity. The Haiti Cholera Outbreak serves as a contemporary example through which to understand the UN’s stance towards immunity, responsibility, and justiciability in similar situations or cases. This article analyzes the immunity of the UN and compares it with other international organizations to demonstrate the special position of the UN. Waiver of immunity is tested with extreme examples in which human rights were involved.When the UN was created, there was no legal framework to hold international organizations responsible for damage they could cause. The law developed later through several court decisions and other legal instruments when the personality of international organizations became clear. The law of international responsibility was shaped to hold states to account as the primary actors of international relations. However, this led to some discrepancies in the responsibility of international organizations. To be more specific, jurisdiction of international courts was already developed to hear the cases between states, not covering international organizations.According to section 29 of the Convention on the Privileges and Immunities of the United Nations, immunity is waivable (by the UN Secretary General). However, waiver of immunity by the UN is uncommon. What would really happen if the UN did not hide behind its veil of immunity and face liability? Would this lead to more actions against the UN all over the world and render the UN’s functions disrupted?&nbsp;Considering the fact that UN peacekeepers have been involved in sexual abuse of local people in many host states, including Haiti, one can conclude that the UN might have ended up in great trouble if it had no immunity at all.It can be argued that the UN is a vulnerable organization as evidenced by Congo peacekeeping operations. Therefore, the UN needs a shield of immunity to operate properly. In a similar vein, immunity is necessary to ensure that the troop-contributing nations send their contingents more willingly; otherwise, the UN mission might dysfunction and even end up failure. Yet, the UN has expressed its “deep regret” and “moral responsibility” over the cholera outbreak and the subsequent human loss on a number of occasions and finally recognized moral obligation in a Security Council resolution in 2016. However, this has not reached the level of waiver of immunity, acceptance of legal responsibility, and compensation of any damages caused by the UN angels. By failing to undertake legal responsibility as such, the UN will undermine its own legality and sustainabilityIt was also argued that even in extreme circumstances, the UN should preserve its immunity for the sake of ensuring the UN’s independence from the member states. This argument provokes the question of to what extent the UN is independent of the member states? Independence, or, in other words, autonomy is a natural consequence of international personality. Today, it is undisputedly agreed that the UN has international legal personality, as first evidenced by Reparation for Injuries Advisory Opinion of the International Court of Justice. As such, the UN has the right to operate at the same level as states at the international forum, with similar but not identical rights with those of the states. Thus, the UN is able to enjoy rights and bear responsibilities as a result of its personality. These rights and obligations include the capacity to bring claims before international tribunals, immunity from national jurisdictions as well as the burden to face responsibility for the wrongful acts of its agents.One can argue for the limits of immunity that the UN should have. It follows that should the UN have immunity even when its agents have violated a norm of jus cogens character? Is it necessary for the UN to stick to its immunity even in such extreme circumstances? The question seems to have been answered positively by the European Court of Human Rights (ECtHR) in Stichting Mothers, where the UN has been found to have the shield of immunity even in the face of a breach of a norm of jus cogens character. The ECtHR relied on the argument that since the UN was acting under chapter VII, it would be an interference to deny its immunity. Since its establishment the UN as an international organization, in shaping the world order, was trying to reach the goal of peace and security. However, it was hard for the UN to create a balance between peace and justice, which remained an unsolved dilemma. This decision of the ECtHR reaffirms the dichotomy between peace and justice.In conclusion, not waiving its immunity and sticking to its God role the UN, might be said to have staged a non-existent God role by not making any visible alterations to the world to hold those who might be responsible to account. To avoid this image of a non-existent God, the UN should recalculate well when and where to resort to a waiver of immunity, considering its moral obligations and values that it was established to protect.

When Angels Misbehaved: Justiciability of the United Nations for the Cholera Outbreak in Hait

Alican

Mehmet

Climate refugees can be defined as people who are compelled to leave their homes due to climate change-related reasons. As can be understood from the description, the problems that climate refugees (would) face stem from two different but intermingled crises. Namely, the climate crisis and the refugee crisis. Although these two crises have set different obstacles for climate refugees, they are nevertheless related; since the climate crisis constitutes the substructure for the climate refugees. Thus, taking climate action is crucial for reducing the number of possible climate refugees. This structural approach to addressing climate refugees would protect them, even before they become climate refugees, by eliminating the substructure, which would give rise to the superstructure of climate refugees.Nevertheless, an increase in average global temperatures is foreseen even in the most optimistic scientific scenarios that assume the possibility of a relatively successful fight against climate change. Therefore, it is only reasonable to assume that climate refugees will become a part of the future. As a result, these people would need protection in the context of refugee rights. Thus, it is necessary to focus on both the climate crisis and refugee rights to offer a comprehensive solution.&nbsp;In order to deal with the substructure of the climate refugee issue, namely, the climate crisis, two main sets of solutions are suggested in this paper. The first set consists of international agreements aimed at combating the climate crisis. The Paris Agreement (2015) and the Kyoto Protocol (1997) are the two most prominent of those agreements. Although the agreements have been accepted quite widely; they both suffer from issues such as lack of an effective enforcement mechanism, lack of a supranational authority that would monitor the parties and implement the agreement directly, the principle of voluntariness in becoming a party to the agreements, freedom to withdraw from the agreements without any sanctions, and, finally, lack of&nbsp;any real sanction regarding failure to comply with the agreements. The flaws in both agreements stem from the paradigm of national sovereignty that enshrines states’ will and consent. Since it is quite unlikely that 193 member states of the United Nations will agree to take the same climate action, humanity’s fight against climate change is in constant jeopardy. Although public opinion favours climate action, people’s opinions do not seem to affect state policies either. The second set of solutions can be described as the “technological solutions” which refers to technologies, such as carbon capture technology, that are aimed at combating climate change. Unfortunately, these technologies are incapable of replacing the legal and political set of solutions before reaching a tipping point, resulting in an irreversible climate catastrophe.To deal with the superstructure of climate refugees, international refugee law must be examined, despite the fact that there is no legal definition of climate refugees in international law. The Refugee Convention Relating to the Status of Refugees (hereinafter, Refugee Convention), the most prominent document on the subject, not only lacks a definition for climate refugees but also does not provide climate refugees with the status of refugee; since the term “refugee” in the agreement can only be applied to those who are persecuted on a political basis. Nevertheless, climate refugees tend to suffer from natural causes rather than political causes. Therefore, it is necessary to draft a new refugee convention or an annexe to the Refugee Convention to transcend the convention’s narrow scope and protect climate refugees. Unfortunately, even if there were more comprehensive legal terms for climate refugees; considering the lack of enforcement in international law, they could not provide real protection. Thus, issues surrounding climate refugees, both in the context of refugee rights and the climate crisis, constitute a conundrum because of the current international legal and political status quo.

An Inquiry on the Legal Status and Protection of Climate Refugees from an International Law Perspective

@JOURNAL_BOX_EARLYVIEW

Ayşe

Assist. Prof.

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

Out of Judicial Settlement and Its Effect on Trial

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

The Liability of the Employer to Employ Disabled Employee

@JOURNAL_BOX_FEATURED

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

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

Cemile

Assoc. Prof.

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

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

@JOURNAL_BOX_MOSTREAD

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

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

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

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

Emerging Sources Citation Index (ESCI)

EBSCO

ERIH PLUS

TR Dizin

DOAJ

SOBIAD

@METRIC_VOLUMES

@METRIC_ISSUES

@METRIC_ARTICLES

@METRIC_OPENACCESS

Istanbul Law Review

@INFO_TAB_ABOUT

Editor in Chief

Co Editor in Chief

Editorial Assistant

Language Editor

Editor

@INFO_TAB_BOARDS

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

Aim and Scope

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

Indexing and Abstracting

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

Policies

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

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

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

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

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

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

Ethics

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

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

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

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

Peer Review

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

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

Author Guidelines

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

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

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

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

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

Istanbul Law Review

VOLUME 82, ISSUE 1, 2024

Modernity, Reception, and Transformation in 19th-Century Ottoman Law: Transplantation of Concordat into Turkish Legal History

The Connection Reasons for Deprivation of Inheritance and Removal from Inheritance Have With Presumption of Innocence

Reviews on the Characteristic of the Liability for Tort Through Fault of a Minor Possessing the Capacity of Judgment

An Appraisal of the Extent of Business Interruption Insurance Coverage in the Context of the Covid-19 Pandemic

Agent’s Accountability to the Principal

Psychological Approaches to Mediation Along the Axis of Conflict Management, Conflict Resolution, and Decision-Making Process

A Critical Approach to Article 1104 of the Turkish Commercial Code Regulating a Shipmaster’s Representation Authority in Court

Evaluating the Scope and Consequences of Substituting Party Qualities or Status in Administrative Disputes in Terms of the Principles Governing Administrative Procedural Law

Participant Activities in Favor of the Accused in Turkish and German Criminal Procedural Law

Freedom, Power, People, and Territory: Nâzım Hikmet from the Perspective of a Jurist

INFORMATION

SHARE