Ahunur

Res. Assist.

Murat

Assoc. Prof. Dr.

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

Prof. Dr.

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

Assist. Prof. Dr.

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?

Fethi

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Ayşe

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

Out of Judicial Settlement and Its Effect on Trial

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

The Liability of the Employer to Employ Disabled Employee

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

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

Cemile

Assoc. Prof.

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

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

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

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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
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