Cemre

Assist. Prof.

Cautio judicatum solvi is a warranty that ensures the remedy of a defendant’s loss for applying to courts. Some states such as Russia, Romania, and Bulgaria have no type of measures that could be considered as cautio judicatum solvi. Other states that have adopted cautio judicatum solvi may seek different conditions (e. g., citizenship, domicile, habitual residence).The reason for accepting cautio judicatum solvi is the risk that arises from the condition of the plaintiff. Applying to courts and being a defendant in a case has legal costs. These costs shall be redeemed by the party who loses the case. In case the risk occurs regarding an inability to redeem the defendant’s losses, the law mandates that plaintiffs deposit a fair amount at the beginning of proceedings.The law’s perspective on the conditions that may arise as a risk varies. Some state laws predict the habitual residence abroad of a plaintiff to pose a risk. Other states predict that the citizenship of the plaintiff may pose a risk and stipulate cautio judicatum solvi for foreigners.Turkish law accepts both abovementioned conditions as a reason for cautio judicatum solvi. According to Article 84 of the Code on Civil Procedure No. 6100, Turkish citizens with a habitual residence abroad shall deposit cautio judicatum solvi when they file a case in Turkish civil courts. International Private and Civil Procedural Law No. 5718 stipulates that foreigners who file lawsuits in Turkish civil courts shall deposit cautio judicatum solvi (Art. 48). Exemption from this obligation is by reciprocity.Reciprocity may be accepted in three different forms. The first form of reciprocity is by an international treaty. Türkiye and the state of the plaintiff may sign a bilateral or multi-lateral treaty that contains an exemption regarding cautio judicatum solvi. The second form of reciprocity is by law. If the state of the plaintiff does not accept cautio judicatum solvi for foreigners in their law, then the reciprocity condition has been set. The third form of reciprocity is by de facto practice. When Turkish citizens do not deposit any form of money for cautio judicatum solvi prior to applying to the courts, then reciprocity shall be accepted de facto.Due to the violent events that have occurred in Syria, millions of Syrians entered Türkiye over the past several years. Most of the Syrian’s entrance and stay in Türkiye were illegal. Syrians who enter illegally cannot be deported back to Syria due to the instability and violence in Syria. Therefore, the need to legalize their stay in Türkiye has arisen. Therefore, the Law on Foreigners and International Protection No. 6458 has established temporary protected status. In accordance with this status, Syrians may stay in Türkiye and receive certain services (e.g., health, education, social services).As of 2022, no reciprocity has occurred between Türkiye and Syria regarding exemption from cautio judicatum solvi. Moreover, no regulation exists for any such exemption regarding temporary protected status holders. Therefore, when a Syrian with temporary protected status applies to a civil court, they are to deposit money according to Art. 48 of the International Private and Civil Procedural Law.However, the 3rd Civil Chamber of the Adana Regional Court has stated that, even without an exemption for cautio judicium solvi regarding temporary protected status holders, the Geneva Refugee Convention shall be applied to them.Türkiye is a contracting state for the Geneva Convention. According to the Additional Protocol dated 1967, the geographical and historical limitations on the Geneva Convention have been abolished. However, Türkiye has reservations about the geographical applicability of the Geneva Convention. Hence the reservation is that Türkiye only applies this convention to foreigners who seek refuge for events that have occurred in Europe.Despite this reservation, the applicability of the Geneva Refugee Convention to temporary protected status holders has been accepted by the 3rd Civil Chamber of Adana Regional Court. This review study examines, the perspective of Turkish law on temporary protected status in comparison to the other international protection statuses.The Regional Court stated that, as a contracting state of the Geneva Convention, the exemptions mentioned in this treaty shall be applied to other forms of international protection, whether such protection is permanent or temporary. This study kindly disagrees with the ruling of the Regional Court for various reasons.Firstly, the reservation Türkiye has regarding the geographical applicability of the Geneva Convention prohibits the application of the Geneva Refugee Convention to temporary protected status holders in Türkiye who’ve come from Syria. Secondly, the perspective and the reason for establishing temporary protected status prevents the applicability of Geneva Refugee Convention regulations to exemption from cautio judicium solvi.Finally, the effects on the legal system from providing such an exemption to the millions of Syrian foreigners should also have been thoroughly considered by the courts who granted such exemption.&nbsp;

A Review of the Regional Court Decision Regarding the Exemption of Temporary Protected  Status Holders in Türkiye from Cautio Judicatum Solvi

Cüneyt

Prof.

Nesrin

Res. Assist.

Throughout history, the Aegean Islands have been under the sovereignty of different empires and dynasties. The roots of the current Eastern Aegean Islands problem go back to the middle of the 19th century when Greece gained its independence. The Eastern Aegean Islands include the Boğazönü Islands (at the entrance to the Dardanelles), the Northeastern Aegean Islands, and the Dodecanese Islands. These islands are geographically located in close proximity to the Turkish coast, which has raised concerns about Türkiye’s security. For this reason, the islands have been subject to international conventions. Among these, the 1913 London Treaty and the 1913 Athens Treaty, in which the authority to decide ownership of the islands was left to the Major Powers, are very crucial. With the Joint Decision of the Six Major Powers of 1914, the islands under the occupation of Greece were subordinated to the sovereignty of Greece. According to this joint decision, the islands were ceded to Greece on the condition that they were to remain under demilitarized status.The 1923 Lausanne Peace Treaty confirmed the Joint Decision of the Six Major Powers of 1914 and includes detailed regulations regarding the demilitarized status of the islands. The 1923 Convention Relating to the Regime of the Straits (the 1923 Lausanne Straits Convention) regulated the demilitarized status of the Boğazönü Islands, which are subject to Turkish and Greek sovereignty. The 1936 Montreux Convention Regarding the Regime of the Straits (the 1936 Montreux Convention) abolished this status for the region of the Turkish Straits while maintaining the demilitarized status of the Booğazönü Islands, which are subject to Greek sovereignty. Finally, the 1947 Paris Peace Treaty transferred the sovereignty of the Dodecanese Islands and Kastellorizo Island, which had been under the sovereignty of Italy, to Greece under the provision that these islands remain under demilitarized status. Türkiye should be noted to have not been a party to the 1947 Paris Peace Treaty.Greece claims the regulations of these conventions to have abolished the demilitarized status of the Eastern Aegean Islands. In this regard, the first claim of Greece is that fundamental changes have occurred to the circumstances of the treaties. According to this claim, the 1923 Lausanne Peace Treaty and the 1947 Paris Peace Treaty cover different circumstances. The second is the claim that the 1947 Paris Peace Treaty replaced the 1923 Lausanne Peace Treaty. Accordingly, the 1936 Montreux Convention also replaced the 1923 Lausanne Straits Convention. Third, Greece claims that Türkiye cannot uphold the 1947 Paris Peace Treaty as Türkiye had not been a party to this treaty. The last claim sees Greece’s right of self-defense coming to the fore, as according to Greece, Türkiye has made so-called threats against Greece.However, one should note that no fundamental changes have occurred regarding the circumstances on which both Treaties were made. For this reason, neither of these Treaties can be terminated. In terms of the second claim, the Montreux Convention only regulates the abolition of the demilitarized status for the region of the Turkish Straits (i.e., the Dardanelles, the Bosporus and the Sea of Marmara). Moreover, the provisions in the 1923 Lausanne Straits Convention are not in conflict with provisions in the 1936 Montreux Convention that are in force today. Thirdly, the fact that Türkiye was not a party to the 1947 Paris Peace Treaty does not mean Türkiye cannot abide by this treaty. The 1947 Paris Peace Treaty established an objective status. Finally, the claim of a threat is insufficient for invoking the right to self-defense. In order for a country to invoke the right to self-defense, Article 51 of the Charter of the United Nations (1945) clearly states the requirement of the presence of an armed attack for invoking self-defense. Therefore, Greece’s claim goes against international law. In this context, Greece’s claims regarding the abolishment of the demilitarized status of the Eastern Aegean Islands constitute a violation of the relevant international conventions and rules of international law.Within the framework of these erroneous claims, Greece has engaged in activities and actions aimed at violating the demilitarized status of these islands, and these activities and actions in violation of the islands’ demilitarized stated have currently begun increasing. For this reason, Greece’s arguments regarding the abolishment of the demilitarized status of these islands should be evaluated in the context of current issues. Considering which steps Türkiye will take in response to these violations is also essential.This study consists of three sections. The first section discusses and examines the Aegean Islands and the history of sovereignty over them. Afterward, the study discusses the concept of demilitarized status and international regulations regarding&nbsp;the demilitarized status of the Eastern Aegean Islands. The second section discusses Greece’s claims regarding fundamental changes to the circumstances of the treaties (rebus sic stantibus), how the later treaty replaces the previous treaty, invoking the right to self-defense, and Türkiye’s in ability to uphold the 1947 Paris Peace Treaty (res inter alios acta). The last part evaluates the demilitarized status of the Eastern Aegean Islands in light of current issues, with the study lastly putting Türkiye’s options forward in the context of international law.&nbsp;

Demilitarized Status in International Law and the Militarization Problem of the Eastern Aegean Islands

Didem

According both to the general theory of state and international law, a state is a community formed by people and exercises permanent power within a specified territory. This definition introduces three essential components of a state: population, territory, and sovereignty. Therefore, the people living within a defined territory are indispensable to forming a state, and the concepts of citizenship and nationality refer to the legal bond between these people and the state to which they belong. Although the size and composition of a population and individual departures from it are irrelevant, the strength of the ties among the people and between the state and people have been acknowledged to be crucial. By acquiring state citizenship, a person undertakes certain responsibilities toward that state and enjoys certain rights that are not granted to non-citizens. Basically, citizens of a state owe allegiance to the state in return for protection.Each state has exclusive jurisdiction to determine who its nationals will be. On the other hand, this authority has been acknowledged to not be unlimited, as states are the primary subjects of international law and the status of citizenship as given by states also have some important consequences in international law. Therefore, the citizenship regulations a state makes will be accepted by other states as long as they are consistent with international conventions, customary international law, and the principles of law as generally recognized with regard to nationality. Both the Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930) and the European Convention on Nationality (1997) include similar provisions in this regard.While numerous international conventions exist on nationality law, the rules of customary international law and the principles of law as generally recognized with regard to nationality are not that clear. However, the introduction of investment citizenship programs by which citizenship is granted only in exchange for money with no genuine link between the individual and the state has triggered some discussions regarding the essence of citizenship, the problems that may occur in international law, and thus the limits of the exclusive jurisdiction of states.Upon examining the scholarly opinions regarding state theory and international law and remembering the reasoning behind the tribunal in the Nottebohm case (ICJ 1, 1955), one could argue that, apart from the obligations arising from international conventions, the main framework that would limit the jurisdiction of a state when granting citizenship is the principle of the prohibition of the abuse of rights. Therefore, determining the cases in which a state would be deemed to be abusively exercising its exclusive jurisdiction is important. According to some scholars, the abuse of rights occurs when a state exercises a right in a way that either hinders the enjoyment by other states of their own rights or, contrary to the purpose of that right, injures another state. On the other hand, some scholars have defined the concept without the requirement of injury and have instead argued the abuse of rights to occur when a right is exercised arbitrarily for an end that differs from that for which the right had been created.In practice, international courts or arbitral tribunals determine whether an injury of a state has occurred as a result of another state granting citizenship. For example, acquisition of new citizenship may decrease the tax income of the state with which the individual currently holds citizenship. The loss of a state may reach significant amounts, especially when one state’s wealthy citizens systematically begin to acquire citizenship from another state and transfer their assets to that second state. In addition, the injury of a state may also occur when a financial crime is committed in that state by an individual who holds dual nationality. Because each citizen has the right to enter its homeland and the extradition of a citizen is restricted under international law, one can, after committing a financial crime, flee to the country whose nationality was acquired by means of an investment citizenship program.When adopting the opinion that does not require injury for the abuse of rights to occur, the arbitrary exercise of exclusive jurisdiction may also create problems in international law. In order to be non-arbitrary, an actual connection between the state and an individual has been argued should exist in order to constitute a legal connection. Because the principles of ius sanguinis and ius soli are acknowledged by international law as satisfying connecting factors for the conferment of nationality, actual connection can easily be constituted using these principles. When addressing naturalization marriage, adoption, and residence for a certain time are also considered sufficient actual connections. Therefore, for naturalization, importance is in the existence of an actual connection between the state and an individual that is not constituted by means of birth.In this context, investment citizenship programs within which citizenship is granted only in exchange for money without a genuine link between the individual and the state could give rise to allegations of abuse of rights. This leads to reconsidering the importance of the principle of effective nationality as applied in the Nottebohm case (ICJ 1, 1955), because granting citizenship in the absence of elements such as residing in the country or knowing its language or culture, things which show an actual connection between a state and an individual, may be evaluated as the abuse of exclusive jurisdiction and result in other states refusing to recognize this type of citizenship. Apart from the potential problems in international law, the legal connection constituted through investment citizenship programs also does not exactly correspond to the concept of nationality under the general theory of state.&nbsp;

Some Thoughts on the Principle of Effective Nationality and Citizenship Through Investment Programs

Cenk

Despite its shortcomings, the United Nations (UN) constitutes the most important platform for the current functioning of international law. The efforts made to maintain peace internationally and to ensure common security are reflected in the preamble of the UN Charter. As one of the most important elements in maintaining international peace, when the system envisaged for preventing the use of force fails to be implemented as intended, the UN will then try to fulfill the same task under very different conditions. As a result of globalization, the intertwined economic relations and financial mechanism that keeps the wheels of trade turning can sometimes turn into a very dangerous weapon and drag nations into warlike conditions. The international legal norms that constitute the source of economic sanctions should be such that it is prevented from doing more harm than good.While economic sanctions have been a highly preferred tool in international relations in recent years, they have become a point of heated discussion. Many states, especially Western ones, not only implement UN Security Council resolutions but also use unilateral sanction regimes to protect their national interests and at times international social order. In addition to states, which are the main subject of international law, regional and multilateral international organizations are also observed to attempt to achieve similar outcomes through economic sanctions. Economic sanctions are conceptually based on the UN collective system or the countermeasures under the law of international responsibility and have diverse applications these days.Sanctions are generally defined as a threat to act in cases of non-compliance with the law, the realization of a threat when necessary, and the measures aimed at ensuring behavior in accordance with international law. Economic sanctions that are applied in this context aim to change the unlawful behavior of the target state using commercial and financial means. While the UN International Law Commission used sanctions as the term for joint measures taken by international organizations in its study on state responsibility, it also defined unilateral actions as acts that are contrary to international law and that States can implement against a harmful state as countermeasures. However, if the violated norm of international law is at the level of jus cogens, then an erga omnes aggravated responsibility will occur towards the whole of the international community; and if all states besides the injured state are expected to give the right to employ common countermeasures, the practical importance of the distinction between sanctions and countermeasures will diminish.Another important factor in terms of economic sanctions is the authority that imposes the sanction. In terms of international law, different criteria emerge depending on whether the sanction originates from the UN, an international organization, or a State. Some authors argue that third-party states may resort to countermeasures when the peremptory rules of international law are violated. This argument is based on Article 42 of the International Law Commission’s (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). According to Article 43, a state may invoke the responsibility of another state in cases where the breached obligation is owed directly to that state, to a group of which the state is a member, or to the international community. Similarly, Article 48 states that a State other than the directly injured State may invoke the responsibility of the infringing State if the breach occurs against a group of States, including the requesting State, or against the international community as a whole. The main difference between the two rules is that one emphasizes the obligation, while the other emphasizes the damage. Although some authors rightly argue that reading this article alongside Article 54 does not allow sanctions against international law while still allowing retaliation; however, practices show that international law is shaped in the opposite direction. Meanwhile, because autonomous economic sanctions originate from municipal law, their compliance with international law will be contested, especially in terms of their application in cases abroad. Similarly, non-intervention in internal affairs, humanitarian law, human rights law, international trade law, international investment law, and the rules of the World Trade Organization (WTO) in particular exist as legal boundaries that must be taken into account.The effectiveness of economic sanctions, the legal basis of which is dubious in terms of current positive law, is another matter of discussion. The aim of sanctions is to ensure compliance with the rules of international law. Extensive sanctions such as export, import, and investment restrictions targeting entire economies are being replaced with point-based, guided sanctions that are assumed to be smart. However, this does not mean that extensive sanctions such as trade embargoes have been abandoned. Economic and financial sanctions are currently used together to provide the maximum benefit, with the results being analyzed in short intervals with the help of technology and the sanctions regime being modified accordingly rather than leaving the economic sanctions to their own fate once they have been decided and not inspecting their implementation, which occurs as one of the main reasons for their failure.When examining the recent economic sanctions against Russia, democratizing the country appears impossible, and pressure is put on Russian policymakers by targeting the decline in people’s purchasing power through wide-ranging economic sanctions and restrictions on accessing foreign currency assets in banks, thus causing an economic bottleneck in their daily life. Trying to block key sectors of Russia with targeted sanctions in order to prevent Russia from financing a long-term war does not seem very likely, nor are these sanctions effective in pressuring a change in policy. On a psychological level, pressure has been exerted on the Russian government by making the Russian people feel guilty, similar to what was done in Germany after World War II, and also by announcing the drama in Ukraine to the global public, especially on social media. However, to say that such propaganda has had a negative impact on national public opinion would be inaccurate, as the Russian government exercises tight control upon its media.In principle, International Law is known to support the protection of fundamental rights. Texts such as the Universal Declaration of Human Rights and the European Convention on Human Rights have always aimed to raise this level of protection. However, recent practices have revealed the harmful individual effects of economic unilateral sanctions while the people of the whole country are able to escape legal scrutiny. When considering the frequency with which digitalization and artificial intelligence are used in daily life, more intense efforts should be made to use these opportunities to increase the impact of economic sanctions while reducing the illegal and undesired impacts in terms of Human Rights Law, Humanitarian Law, and international trade, as well as International Law of course. A divisive picture of the world has emerged as a result of the Russian people having been harmed by the implemented measures, in addition to the states and individuals that do business with Russia. The policies pursued with vengeful outlooks indicate that a difficult process is expected in the world economy, which has yet to have healed from the wounds of the COVID-19 pandemic.&nbsp;

Questioning the Legality and Effectiveness of Economic Sanctions in International Law

Özlem

Öğretim Görevlisi Dr.

Applying the Principle of Best Interests to the Hague Convention on the Civil Aspects of  International Child Abduction in Light of the Decisions of the European Court of Human  Rights and of Turkish Courts

Burak

Assoc. Prof.

Arbitration is a method for resolving disputes that is used more and more every day in Türkiye. In addition to the fact that disputes are concluded faster under arbitration compared to state jurisdiction, government policies that support the widespread use of arbitration in Türkiye are an important contribution to the increase in disputes that are referred to arbitration. However, , the traditional approach of the courts to arbitration in practice can sometimes through the contribution of lawyers who adopt this same approach transform arbitration into a mechanism that prolongs disputes rather than one that provides a quick resolution to the dispute. Mandatory arbitrations aside, the essence of arbitration is based on the parties’ consent to settle their disputes before the arbitrators. This is where the problems that have been mentioned appear. In other words, the established approach regarding the judgments of the Court of Cassation and the general view adopted by doctrine is that arbitration is an exceptional means for resolving disputes, and the main authority for resolving disputes belongs to the state courts. Based on this proposition, arbitration agreements concluded by both parties seek for the consent to arbitration to be precise and clear and to exclude any grounds for hesitation. When examining the judicial decisions on this subject, the clauses in the arbitration agreements made between parties are observed to be considered invalid, especially in cases where courts and arbitration are jointly authorized to resolve a dispute as well as in asymmetric arbitration. In order to reach this conclusion in the relevant jurisprudence, the justification is based on the argument that the consent of the parties is neither clear nor precise in both aforementioned cases. The result of this inference is either the annulment of the arbitral award or the rejection of the first objection to the arbitration when the issue is initially brought before a judicial organ. When examining the subject in terms of agreements in which both courts and arbitration are jointly authorized to resolve a dispute, Turkish legal doctrine is observed to be divided between two approaches. While the first group, which constitutes the majority opinion, concurs that the agreements regulating the parallel competence of courts and arbitration are invalid in terms of arbitration, the second group of authors accepts that these arbitration agreements are to be considered valid. The authors who defend the first approach make an interpretation parallel to that provided by judicial organs, base their justification on the acceptance that the main place for the settlement of disputes is the state courts, and therefore accept that the agreements regulating the competence of both courts and arbitration simultaneously are to be considered invalid in accordance with the acceptance that the consent of the parties in this direction in arbitration agreements should be clear and exclude all grounds of hesitation. The opposing approach, on the other hand, accepts that parties may completely restrict the state judiciary by virtue of an arbitration agreement or foresee court or arbitration as alternatives to one another. Pursuant to this view, the consent vis-à-vis arbitration is clear in agreements that provide in parallel the right to apply for arbitration or to the courts. In such agreements, once the right to choose is exercised, the authority to which the dispute is initially submitted for the settlement of the dispute, whether it be the court or arbitration, is authorized to resolve the dispute as a whole for both parties. In judicial decisions, asymmetric arbitration agreements are expressed as the other situation that cripples the consent to arbitration. An asymmetric arbitration agreement is a general concept used for arbitration agreements that give advantage to one party. Asymmetric arbitration agreements can basically be divided into two main headings: (1) agreements that provide one party the right to arbitrate, and (2) agreements that limit the procedural right of one party to the benefit of the other. When examining Turkish legal doctrine, the general view in terms of asymmetric arbitration agreements is that, unlike parallel jurisdiction agreements, to accept asymmetric arbitration agreements as being invalid from the beginning would be wrong without considering the circumstances of a specific case. However, to create the perception that asymmetric arbitration agreements are absolutely to be accepted as valid would also be wrong. Doctrine accepts that asymmetric arbitration agreements which provide the right to apply to arbitration to one party should be interpreted according to the circumstances of the case. In this sense, the most important reservation expressed in terms of the validity of asymmetrical arbitration agreements involves whether an arbitration agreement exists that allows only one party to apply to arbitration and whether the other party is unable to apply either to the courts or to arbitration, the case where both are true would result in a violation of the right of access to justice, and the arbitration agreement would be invalid in such a case. A second reservation on the subject is related to situations where the asymmetry in the agreement is imposed by virtue of the economic advantage of one of the parties. In such cases, asymmetric arbitration agreements is accepted as being deemed invalid due to this negative condition and/or apparent inequality against the weaker party. In this study’s opinion, the main issue stems from the fact that the relevant doctrine still accepts the proposition “arbitration is an exception; the main method is state jurisdiction” as an absolute truth, in agreement with the Court of Cassation and jurisprudence. However, in my opinion, defending that this proposition, which had been accepted decades ago, still maintains its validity is difficult these days. Arbitration is currently widely used in Türkiye’s commercial life. This situation is even more advanced when dealing with international trade. In fact, the widespread use of arbitration that has currently been reached is a direct result of state policy. after the 2000s in particular, the reform realized with regard to the arbitration rules regulated under the International Arbitration Law and the Code of Civil Procedure was reinforced by foreseeing arbitration clauses in almost all public service concession terms and agreements and public-private cooperation agreements, and the establishment of the Istanbul Arbitration Center made disseminating arbitration culture to a much larger base possible. During this period in which the world is going through extremely rapid changes and time is more important than ever, much more beneficial results can be obtained for the Turkish legal system if the judiciary were to keep up with this process and to adopt arbitration as an assistive means for reducing the burden on the state judiciary as well as for providing people with the speed they need, instead of accepting arbitration as an exception. Adhering to such strict and literal interpretations on the existence of the consent to arbitrate in particular is seen as a way for parties who’ve concluded they will ultimately lose a case to prolong the proceedings as much as possible. Having a more supportive and liberal approach to arbitration in the Turkish legal system, one that is in line with similar practices around the world and that considers the rules of interpretation and contract processes prevalent in the field of the law of obligations, will provide great benefits in overcoming many problems and in preserving the principle of keeping contracts alive.

Consent to Arbitration; Interpretation It in Light of an Actual Judicial Decision

Bilgin

Extension of the Most Favoured Nation Clause to Dispute  Settlement Provisions in Bilateral Investment Treaties Which  Turkey is a Party of

Hümeyra

According to the United Nations High Commissioner for Refugees (UNHCR), an unaccompanied child is a person under the age of 18 who has been separated from her/ his parents and is not being cared for by an adult who has undertaken the responsibility of care by law or custom. A similar definition can also be found in Türkiye’s Law on Foreigners and International Protection (Art 3/1/m). According to the UN Convention on the Rights of the Child, to which Türkiye is a party, every contracting party must treat every child under its jurisdiction like a national child without any discrimination (Art 2) and is also obliged to recognize the child who does not have parents or any other family member the protection granted in the Convention to a child who has been permanently or temporarily separated from her/his family environment for any reason (Art 22/2). This protection to be granted to the child also includes the legal representation of the child in processes concerning her/his interests.Provisions governing the legal representation of unaccompanied children in Turkish legislation involve the regulation in the Child Protection Law that gives the court the discretionary authority to decide on the guardian and curatorship if deemed necessary while presenting an injunction decision (Art 7/7); the provisions of the Turkish Civil Code regarding the guardianship law (Art 396 et al.) and the Regulation on Child Support Centers also stipulate that a guardian or a curatorship will be appointed primarily for those who have no legal representative (Art 9/2). The design of the relevant regulations has not been tailored specifically for unaccompanied children.Juvenile courts grant the protective and supportive injunctions necessary for the care and upbringing of unaccompanied children who are in need of protection regarding social service institutions until the minor reaches the age of maturity. If the child in care is not under custody, the guardianship authority appoints the director of the institution or another person as guardian.According to the Regulation on Child Support Centers, a consultant is appointed to the unaccompanied child (Art 7/1/d). The duty of the consultant includes not only planning the child’s accommodations in the center and educational and social activities and/or informing the child about daily functions in the center but also covers the procedures regarding the protective and supportive measures from the juvenile court; carrying out the child’s basic needs such as clothing and stationery; covering the child’s expenditures; and following the child’s asylum process. These are in fact the duties that should be under the guardian’s authority. However, due to the absence of a court decision, the consultant is clearly not the guardian and does not have guardian powers and responsibilities. However, when examining consultants’ duties and responsibilities in this regulation, they are easily seen to actually be working as an assistant guardian.&nbsp;During a meeting with officials from the General Directorate of Child Services, they stated that the primary target for unaccompanied children in Türkiye is not the appointment of a guardian or a curatorship. The person with whom the child meets every day or whom the court deems appropriate may only be appointed as the guardian in cases of necessity, such as family reunification. Avoiding appointing a guardian to an unaccompanied child has been justified as a requirement for the court decision, and time has elapsed to take and remove the relevant decisions. Meanwhile, even if the plaintiff in lawsuits filed with the request of guardianship is one of the child’s relatives, the person upon having their request be found appropriate is appointed not as a guardian but as a curatorship, due to the possibility of abuse.Because unaccompanied children are obliged to stay in Türkiye, the law applying to the appointment of a guardian and curatorship will be recognized as Turkish law. In this sense, the management of the institution of guardianship with regard to Turkish substantive law and its suitability for unaccompanied children should be addressed.In Turkish law, guardianship is regulated as a public institution. The guardianship authority belongs to the civil courts of peace, while the supervisory authority belongs to the civil court of first instance. Guardians and curatorships are the main authorities who carry out the affairs of guardianship; guardianship offices are the guardianship bodies that make decisions, check-up on situations, and give permission when necessary. The rule in Turkish law is that any minor who is not under custody is to be placed under guardianship. Without prejudice to the provisions regarding the powers of the guardianship offices, the guardian essentially represents the minor under guardianship in all legal proceedings. A curatorship may also be appointed by the court for a specific task. In addition, unaccompanied children for whom a care injunction decision has been taken can also benefit from foster family services.As a result, when taking the regulations regarding unaccompanied children into account as a whole, one can easily conclude that these regulations are general and scattered. In this article’s opinion, the need exists for a new legal regulation that brings together and improves the provisions of the current legislation for unaccompanied children, inclusive of their legal representation. This regulation should also establish autonomous public legal entity guardianship institutions as well as regulate an institutional system. Guardian pools should be established within the legal person guardianship system. A guardian must be immediately appointed to the unaccompanied child before any asylum application is made. The time the court takes to decide upon the guardian appointment can be reduced by imposing an upper limit in terms of time. The appointment of a lawyer by the guardian to represent the child would also be appropriate.&nbsp;

Legal Representation of Unaccompanied Minors: An Assessment in Terms of Türkiye and Selected European Countries

@JOURNAL_BOX_EARLYVIEW

Miray

Under international law, imposing international responsibility on a state based on acts of private persons requires the use of the process of attribution. In other words, to hold a state accountable for an act of a private person that act must in some manner be attributable to the state. The jurisprudence of the European Court of Human Rights shows that the issue of attribution is divided into two parts: the doctrine of positive obligations and the evaluation of the status of private companies under the concept of governmental organization. The former essentially refers to the extension of obligations of the states deriving from the European Convention on Human Rights, while the latter refers to the attribution of acts of private persons to the state.In a wide range of cases, the Court has chosen to apply the doctrine of positive obligations, rather than attributing the act to the respondent state in order to hold a given state responsible for the act. However, some writers argue that the positive obligations doctrine is an acceptable method of attributing an act committed by a private person or entity to the state. On the contrary, from a general international law perspective, the law does not equate the attribution of acts of private persons with a state action. Since under such circumstances, an omission of a positive obligation (e.g., the obligation to protect) by a state organ has taken place, the unlawful conduct of a private person cannot be attributed to the state theoretically according to international law. Moreover, since the determination of the content of the international obligation is left to the primary rules (see ARSIWA art. 33); ARSIWA (secondary rules) simply does not deal with the question. Accordingly, violation of the positive obligations is nothing more than unlawful conduct by a state organ. In other words, the positive obligations doctrine does comply with the general rules on attribution. (ARSIWA Art. 4)Especially when it comes to state companies, state responsibility for the acts of that company are based on the understanding of the concept of “governmental organization,” which itself is a term that appears in Article 34 of the Convention. Although the Court implies that the concept of governmental organization is not a mirror image of what makes an entity a state organ, it expressly states that it will apply the criteria regarding the former, mutatis mutandis, to the latter. Hence, attribution of the acts of private entities to the state will be evaluated in light of the Court’s jurisprudence regarding what establishes a private entity as a governmental organization. Some judgments of the Court demonstrate that the Court has focused on the structure and functions of the entity in general while determining whether it should be deemed a state organ. On the other hand, a well-settled and codified customary rule of general international law (e.g., found in ARSIWA art. 5 and 8) stipulates that when determining whether a private entity is to be regarded as a state organ, the focus must be on the act claimed to be unlawful.Furthermore, this general evaluation perspective carries the risk of giving rise to the adoption and the “objective responsibility of the state doctrine,” which is clearly contrary to the customary rule of international law that requires efficient control of the state over the act in question for purposes of attribution.However, the majority of the Court’s case-law demonstrates that the analysis of attribution conforms to efficient control rule. In Liseytseva v Russia, the Court held that, in assessing whether a company enjoyed sufficient operational and institutional independence from the State, the Court had taken into account a wide range of factors, none of which would be determinative on its own. The Court summarized the criteria used in the case law for this purpose as follows:&nbsp;a) whether the rights conferred on the company are those rights which are normally reserved for public authorities and whether the legal entity exercises a public function or private function; b) the extent of State ownership, supervision, and control of the company; c) the role played by the State with respect to the procedure of insolvency of the company; d) and whether the State could be assumed to have accepted responsibility for the debts of the company fully or in part.&nbsp;In this study, we argue that these criteria, despite the Court’s use of its own terminology, reflect and conform to the general rules of attribution. But as mentioned above, in order for this to happen, these criteria must be applied in a manner that places the unlawful act in the center.Finally, the paper argues that neither the Convention nor the Court stipulates any rule on attribution nor adopts lex specialis on the same subject. Accordingly, secondary rules of international responsibility of states must be put in place. Although ARSIWA is not a binding text in the same way as an international agreement, the customary rules codified in it have to be applied when there is no lex specialis. Thus, despite its deficiencies, ARSIWA still functions as the glue that holds the sub-systems or self-contained regimes of international law together against the phenomenon of fragmentation.&nbsp;

An Analysis of the Attribution of Acts of Private Persons to the State in the European Court of Human Rights

Mustafa

The signing ceremony of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation or herein as the Convention, was held in Singapore on 07 August 2019. As of 05 February 2022, the Convention has been signed by 55 countries, including Turkey as one of the first signatory countries. As per Law No. 7282 dated 25 February 2021 (OJ 03.11.2021/31420) regarding the Approval of the United Nations Convention on International Settlement Agreements Resulting from Mediation, the Turkish Parliament deemed approval of the Convention suitable, and Presidential Decree No. 3866 dated 21 April 2021 (OJ 04.22.2021/31462) approved the Convention. According to the information on the official website of the Singapore Convention on Mediation, Turkey ratified the Convention on 11 October 2021 and will have been entered into force on 11 April 2022 (see also Presidential Decree No. 5235 dated 24 February 2022 [OJ, 02.25.2022/31761]).In a nutshell, the Singapore Convention on Mediation applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute which, at the time of its conclusion, is international (Convention Art. 1/1). Settlement agreements relating to consumer, family, inheritance or employment law; settlement agreements that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the state of that court; or settlement agreements that have been recorded and are enforceable as an arbitral award are excluded from the scope of Convention’s application (Convention Art. 1/2-3).The Singapore Convention on Mediation aims to effectively enforce settlement agreements resulting from mediation that has been conducted for an international commercial dispute in contracting states. Thus, this Convention can be stated as having a complementary nature to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention of 30 June 2005 on Choice of Court Agreements.Meanwhile, the Singapore Convention on Mediation, which [would] became a part of Turkish legislation, carries some questions in terms of domestic law. This study aims to assess the Convention in light of the Turkish Civil Procedure and Enforcement-Bankruptcy Law.In this context, the study will first provide (1) some information with respect to regulations in the Convention such as (a) the scope of the Convention’s application, (b) the enforcement of and reliance on settlement agreements, and (c) grounds for refusing to grant relief, and then discusses the issues of (2) whether or not the Convention applies to settlement agreements resulting from mediation conducted according to Turkish law and (3) how settlement agreements resulting from mediation conducted in a foreign contracting state should be evaluated under Turkish Civil Procedure and Enforcement-Bankruptcy Law regarding (a) the legal nature of settlement agreements and their consequences, (b) the ability to be subject to mediation, and (c) the effect of settlement agreements as a cause of action.As a result of the study, the following outcomes have been reached:&nbsp;(i) The following statement exists on the Convention’s official website: “The execution in Turkey of a settlement agreement reached as a result of a mediation that is not made within the scope of the provisions of the Mediation Law may be subject to the provisions of the Singapore Convention.” As a matter of fact, even if settlement agreements resulting from a mediation procedure conducted according to Law No. 6325 on Mediation in Civil Disputes are subject to the issuance of a commentary regarding its enforceability or have the nature of being enforced like court judgments, this circumstance does not cause these agreements to fall outside the scope of the Singapore Convention on Mediation’s application. Therefore, in accordance with the Turkish legal policy aimed at the common and effective application of mediation, necessary actions should be taken to correct this misunderstanding.(ii) As per the consideration that the Singapore Convention on Mediation shall have entered into force for Turkey as of 11 April 2022, making the necessary legal regulations will be useful regarding how the enforcement procedures should be for settlement agreements that are included within the scope of the Convention and which competent authority will be responsible for this matter.(iii) When considering the qualification of a settlement agreement that has been included within the scope of the Convention, the settlement agreement must be defined as an out-of-court settlement agreement subject to the ordinary written form of agreement under Turkish law; thus, no specific legal consequences exist worth stating, at least not in terms of current regulations regarding Turkish civil procedure and enforcement-bankruptcy law under the principle of lex fori.(iv) If a settlement agreement that is included within the scope of the Convention resolves a dispute regarding the rights in rem with regard to immovable property or contains a provision regarding this matter, the competent authority must refuse to grant relief on the ground that granting relief is contrary to Turkish public policy (Convention Art. 5/2/a); and not on the&nbsp;ground that the subject matter of the dispute is incapable of settlement by mediation under Turkish law (Convention Art. 5/2/b).(v) If a settlement agreement resulting from mediation that is conducted in a foreign contracting state contains a provision stating the particular disputes that are not able to be settled by the parties, this circumstance shall not fulfill the procedural requirement in Turkish law regarding compulsory application to the mediation procedure (Turkish Commercial Code Art. 5/A).&nbsp;

Legal Assessment of the United Nations Convention on International Settlement Agreements Resulting from Mediation Regarding Civil Procedure and Enforcement-Bankruptcy Law

Melikşah

The phenomenon of illegal immigration has been intensively encountered and discussed in Turkey in recent years, and one of its legal consequences involves the expulsion of those who’ve illegally entered the country. Expulsion decisions can undoubtedly be awarded not only for those who’ve entered the country illegally but also for those who’ve entered the country in accordance with the law. In administrative decisions regarding the expulsion of foreigners who’ve entered the country unlawfully or who’ve entered the country lawfully but whose expulsion is deemed appropriate for different legal reasons, multiple legal principles may sometimes come into conflict with one another, or different legal interests may conflict, such as protecting fundamental rights and protecting public order. The administration’s preference in this conflict or confrontation may occur as the deciding factor in which decision to make, but this may not always lead to fair and equitable results. If the use of preference or preponderance in favor of one legal interest or legal principle would result in unacceptable or intolerable consequences for the other, then methods and approaches that would cause less harm to the neglected one should be used instead of choosing just one option. The social, political, and economic aspects of expulsion decisions should also be stated to not suppress the legality of their assessment in a judicial review.The phenomenon of illegal migration has two legal bases: human rights on one side and public order on the other, neither of which can be neglected or ignored. An approach to dealing with this phenomenon that preserves both bases would undoubtedly be much fairer than a preference for one over the other.This study will first evaluate the nature of expulsion decisions in terms of administrative law. This assessment will answer the question of whether expulsion decisions are administrative measures or administrative sanctions. The study will then indicate how the previous assumption that expulsion decisions are governmental acts has now been rejected. Secondly, the study will examine the evidentiary nature of confidential information and documents as well as intelligence documents. In this context, Article 20 from the Procedures of Administrative Justice Act will be examined. This section will present the administrative courts’ interpretations regarding Article 20 and subsequently compare the rights-based perspective of the Constitutional Court with that of the administrative courts.Thirdly, the study will analyze the impact criminal investigations and prosecutions, which constitute important evidence in the review of expulsion orders, have on administrative proceedings. This is because the administrative courts that review expulsion decisions take into account whether any ongoing criminal investigation or prosecution is found for the person against whom a decision has been issued. Furthermore, three questions are answered under this section: Does the fact that a criminal investigation has been initiated against a person on its own sufficient for an expulsion decision, is the initiation of a criminal case sufficient or does it require a conviction, and do all convictions require expulsion? This study concludes that a distinction should be made in terms of the degree of the offense committed, even if a conviction has been obtained against the person for whom an expulsion decision has been issued.Fourthly, the study will assess the standard of proof courts apply in the judicial review of expulsion decisions. The concept of standard of proof refers to the minimum level of proof that a court must meet before reaching a conclusion in a particular case. In administrative procedural law, different standards of proof can be said to be applied for different types of disputes. Beyond a reasonable doubt as a strong standard of proof should be noted to be sought especially for administrative sanctions. The Constitutional Court has recognized in its decisions that, as a rule, different standards of proof may be required for different disputes, and applying different standards of proof in disputes involving different legal disciplines such as criminal law, tax law, compensation law, and administrative law may be possible. An expulsion decision against a foreigner does not require as high a standard of proof as in criminal law. When evaluating the characteristics of the case and the evidence, reasonable suspicion may be considered sufficient for expulsion decisions. Although the standard of proof of beyond a reasonable doubt, which is the standard of proof in criminal law, is required for administrative sanctions, a lower standard of proof should be considered sufficient in expulsion decisions by considering the threat it poses to national security and public order.However, adopting a lower standard of proof does not mean that these decisions will be unjustified. Nor does a lower standard of proof imply a trial without evidence. The reasonable standard of doubt this study proposes means that the information available for judicial review of a decision should lead to the strong opinion that an expulsion decision should be made. In other words, it requires the presence of evidence of sufficient quality to form such a judgment.&nbsp;

Issues of Proof in Judicial Review of Expulsion Decisions

Betül

National human rights institutions, which started to be established in the 1990s, have the aim of protecting and promoting human rights. Recently, much emphasis has been placed on the special and important role of NHRIs and on insisting that their activities should extend to the field of business and human rights. In this context, the Global Alliance of National Human Rights Institutions (GANHRI) encourages NHRIs to work effectively on business and human rights. The Edinburgh Declaration, adopted at GANHRI’s 10th International Conference, specifically highlights the importance of NHRIs and the functions they can perform in the area of business and human rights. The potential of NHRIs in this context is also emphasized in the UNGPs. The functions that NHRIs can perform are addressed in all three of the UNGP’s pillars: the state duty to protect human rights, the corporate responsibility to respect human rights, and access to remedy. These functions are also mentioned in the draft texts and optional protocol of the legally binding instrument on business and human rights, which is still in preparation.The Human Rights and Equality Institution of Turkey (TİHEK), Turkey’s NHRI, is both a national human rights institution and an equality body. The institution also functions as a national prevention mechanism. Turkish legislation and its implementation seem to have been unable to achieve the desired standards for promoting in the field of business and human rights. Therefore, TİHEK should follow contemporary developments elsewhere to operate more effectively in the area of business and human rights. To prevent business-related human rights violations in Turkey, TİHEK should use its authority and undertake its duties creatively and effectively. In our study, TİHEK’s mandate in Law No. 6701 was examined in light of the “protect, respect, and remedy” pillars of the UNGPs. In this context, TİHEK can undertake different functions in terms of all three pillars. Specifically:a- In terms of the state’s duty to protect human rights: 1- It can investigate business-related human rights violations in Turkey. It can then share recommendations on preventing similar violations with the competent authorities.2- When a national law that may impact business and human rights is being drafted, it can share legislative proposals with the relevant authorities to enhance protections and to prevent business-related human rights violations. 3- It can address issues pertaining to business and human rights in its annual reports and include case studies on the subject of business-related human rights violations, their causes, and solutions. 4- It can monitor and evaluate current developments overseas related to business and human rights and report its observations and suggestions to the authorities. b- In terms of corporate responsibility to respect human rights: 1- It can raise awareness among stakeholders about the field of business and human rights through mass-media. 2- It may publish special reports focusing on business-related human rights violations, which may address the causes of violations and suggest solutions. 3- It can liaise with business representatives and/or small, medium, and large enterprises to offer guidance about the fulfillment of human rights due diligence obligations in their business activities. 4- It can collaborate with civil society organizations working in the field of business and human rights, Turkey’s OECD National Contact Point, and Global Compact Turkey. c- In terms of access to remedy: 1- It can offer a state-based, non-judicial grievance mechanism within the meaning of the UNGPs, as it has a mandate to handle complaints about alleged violations of non-discrimination. To facilitate access to this remedy, however, the relevant law should be amended to give TİHEK the authority to handle all complaints pertaining to human rights, including cases in which applicants do not allege a violation of prohibition of discrimination. 2- It has the mandate ex officio to examine, research, make decisions, and follow the results of business-related human rights violations, regardless of whether or not these constitute a violation of the prohibition of discrimination. 3- It can inform those who apply to the institution with alleged violations of non-discrimination about appropriate administrative and legal processes and assist them to seek remedy. In terms of facilitating access to remedy for business-related human rights violations, it should also handle complaints about human rights violations that lie beyond the scope of the prohibition of discrimination and should offer guidance to all applicants.&nbsp;

The Importance of National Human Rights Institutions from the Perspective of Business and  Human Rights and the Examination of Human Rights and Equality Institution of Turkey in this  Context

Erman

Due to being directly linked to fundamental rights and freedoms as considered under international law, the alien expulsion and deportation process has been notably shaped by ethical principles, peculiarly in the sphere of human rights. Pursuant to the commonly accepted interpretation of customary international law, the subjects of entry, residence, settlement, and departure of aliens are considered within the exclusive power of each state. States’ exclusive power regarding the entry of aliens, which also covers their expulsion and deportation, is known as state sovereignty in international law. The power to expel is a critical power states hold, peculiarly with regard to longterm alien residents who have been granted permission to reside in a state indefinitely. States are entitled to exercise jurisdiction at their borders; however, they must do so in view of their human rights obligations. In other words, the limitation on states’ power with regard to excluding aliens from their territory is drawn by the international human rights standards as the restrictions are being imposed upon state sovereignty by customary international law. Therefore, states must exercise their sovereignty on reasonable grounds by obeying the generally accepted principles of international law. How the generally accepted principles of international law are interpreted may vary from state to state. Some legal systems such as that in the United States of America may use foreign policy as a basis for alien deportation even if the alien is not involved in any activity against the state. Furthermore, the presence of aliens may be grounds for expulsion and deportation. This study examines alien deportation and expulsion in Turkey based on foreign policy in light of Turkish and American court rulings.After determining the definition of “alien” in both American and Turkish law, the study then examines deportation as a term, which has different meanings in legal systems, and its scope in terms of the literature and Turkish and American legislation. When considering the definition of deportation in Turkish law, the basis for deportation is categorized as: (1) security and related grounds, and (2) false documentation, fraud, and misuse of visas and permits. By evaluating the basis with regard to the Foreigners and International Protection Act of Turkey (FIPA; Act No. 6458) and then applying the American policy regarding the foreign matters deportation test as explicitly stated in the reasoning of the U.S. Department of Justice’s Executive Office for Immigration Review, Board of Immigration Appeals regarding Ruiz-Massieu to Turkish law, public policy (i.e., ordre public) and the basis of FIPA’s first category with regard to national security may be a reason for deporting an alien from Turkey. To this end, foreign policy as a basis for alien expulsion from Turkey may be considered under public policy and the basis of national security. This study will thus examine public policy in Turkish law. Whilst the debate about the slippery definition of the public policy is ongoing, one can infer from mainstream Turkish scholars that public policy addresses the social, moral, and economic values that bind a society together and are shaped by morality, the fundamental rule of law, and the policy considerations underlying prevailing laws.When reviewing the Turkish Constitutional Court’s decisions as well as the Turkish Council of State’s decisions regarding alien deportation with respect to the basis of public policy, ambiguity exists about whether foreign policy-related matters may be a basis for expulsion. In this context, the study will scrutinize Turkish court rulings to ascertain the applicable deportation test in terms of its public policy. By evaluating the rulings from past cases, this study has deducted the deportation test to apply is based on the alien’s activity. An alien who does not engage in any activity against Turkey’s public policy or national security is not deportable. Regarding this case, the deportability of an alien who takes part in a protest against Turkish foreign policy is ambiguous in terms of public policy and the basis of national security. According to the U.S. Immigration and Nationality Act of 1965, an alien may be deported if their presence in the United States is in conflict with the United States’ foreign policy. In this case, ambiguity exists when applying the American standards for alien deportation in Turkey as to whether the presence of an alien who jeopardizes Turkish foreign policy is deportable. Before the FIPA was ratified in 2013, the basis of foreign policy as a general security or political and administrative requirement under the Residence and Travel of Foreigners in Turkey Act (RTFTA; Act No. 5683 was exercisable for expelling an alien from Turkey. This study proposes a new solution for dealing with such situations by considering past legislation and court rulings. In conclusion, the foreign policy matters regarding alien deportation from Turkey is unclear. This ambiguity must be resolved from a wider perspective by considering US practices and must be supported by legislation.This study focuses on alien deportation in terms of state foreign policy. This paper is divided into four sections. The first section introduces the background of the study. The second section considers the term “alien” and the grounds for deportation with regard to both the United States’ and Republic of Turkey’s legal systems. The third section discusses foreign policy as the basis for deportation in Turkish law in terms of public policy and national security and proposes practical solutions for dealing with such circumstances. Finally, the fifth section provides concluding remarks and makes some proposals for future research.&nbsp;

Foreign Policy as a Basis for Deportation in Light of Turkish and American Court Decisions

Abdullah

Fact witnesses have been used as evidence since ancient times in establishing justice, and this usage still continues. Fact witnesses are frequently used these days in both criminal and civil legal proceedings. With advancements in psychology, however, many studies have revealed unignorable statistics, especially in recent years. This situation concerns criminal law in particular and attracted the attention of many jurists in the last century, with various works having been written. Many of these evaluations emphasized that the evidence presented by fact witnesses to not be entirely credible and should be taken as the basis of the judgment after very careful examination.The first part of this study presents a short evaluation of the permissibility of fact witnesses in arbitration. This is particularly important because, despite the presence of exceptions regarding the resolution of certain types of disputes in Turkish courts, the main rule in Turkish civil proceedings is “prove by deed.” While this law does not define the concept of deed, Article 199 of the Turkish Code of Civil Procedure (No. 6100) indicates “prove by deed” to be a type of written or printed evidence.However, the same cannot be said for arbitral proceedings. Neither the Turkish Code of International Arbitration (No. 4686) nor the provisions of the Turkish Code of Civil Procedure (No. 6100) on domestic arbitration have any limitation on what claims can be proved with which types of evidence. Therefore, the use of fact witness as evidence can be at least as important as “proving by deed” (written evidence) in arbitral proceedings. As far as could be determined, this approach is also valid in many other legal systems. Likewise, no restrictions exist as such in the rules of most institutional arbitration centers. In fact, far from being prohibited, witness evidence is widely used in arbitration.The second part of this study evaluates the research regarding the credibility of fact witnesses as evidence. Many studies have been conducted over the use of witness evidence in terms of criminal law. The suitability of the conclusions from these studies may be considered for private legal proceedings by analogy. However, studies are also found to have dealt with the issue directly in terms of private legal proceedings, as well as arbitral proceedings in particular. This second section of the study utilizes both types of research as well as other ones focused on criminal law that may hold valid for the concept of fact witnesses as used in arbitration, even if the research is not directly related to arbitration.Some of the research utilized in this section has dealt with witness evidence by establishing the main issue to be about determining the honesty of the witness, while other research has centered around the reliability of witnesses’ memory. The basic questions primarily involve understanding whether the witness acted honestly or not and whether physical indicators such as a witness’ behavior, facial expressions, or tone of voice (being among the most used criteria) are able to provide direction. As mentioned before, some studies have sought answers to these questions. As for other studies that have focused on witness memory, the basic question involves the reliability of witness memory as a source of information, regardless of the witness’ honesty. These questions are crucial for arbitral proceedings, as they are sometimes vital for the emergence of a fair decision and also because the preparation of witnesses is one of the most time-consuming and costly stages.The first thing that can be said regarding the various general possible inferences that resulted from the utilized research is that criteria perceivable by the five basic senses (e.g., demeanor, tone of voice) should be used as little as possible when assessing the honesty of a witness. Another general inference is that, contrary to popular belief, witness memory does not record like a video camera and thus can be misdirected and therefore mislead as a source of information. The current study makes mention of many scientific studies in order to exemplify this last inference, and these studies have shown that being very cautious is necessary when making a judgment based on witness evidence.The third and final and part of this study provides suggestions regarding the use of fact witnesses, because despite these aforementioned facts, no tendency is found in the international arbitration community to abandon the use of fact witnesses as evidence. As a matter of fact, not even any recommendation could be found in this direction, even by researchers themselves. As such, when using witness evidence, one must be aware of the drawbacks mentioned throughout the study and must take measures for these drawbacks when necessary. For example, the most reliable way to find out whether a witness is telling the truth or not is to focus on the compatibility of that witness’ statement with other facts that have already been proven to be true. When a witness recounts the same event more than once, doubting that witness’ honesty may be appropriate if contradictions have arisen or if the story does not fit the ordinary course of life upon careful examination. Meanwhile, arbitrators should reduce the margin of error regarding memory as much as possible by asking witnesses how they had obtained the information they are providing and by informing witnesses that they can simply state what they do not remember. This study includes some of the many suggestions from both the ICC Report (2020) regarding witness memory and from other studies, and these suggestions should be taken into consideration due to having been obtained through extensive research and experience. Both arbitrators and the parties involved should comply with these suggestions and use fact witnesses as evidence in the most efficient way, as the costs of using these types of witnesses are often very heavy.&nbsp;

Credibility of Fact Witnesses in Arbitration in Light of Current Debates

Ahmet

Emre

Many reasons exist as to why arbitration is chosen over state jurisdiction for resolving disputes. The important reasons within the scope of this article are that an arbitral tribunal can reach a final decision quickly and that flexibility is allowed in terms of procedural arrangements. While conducting proceedings, the arbitral tribunal has the freedom to regulate various matters within the framework of the rules, laws, and party agreements to which the arbitrators are bound. In accordance with these features, the main question to which this article seeks an answer is whether decisions exist that arbitrators can make despite not being explicitly authorized nor the conceptual framework clearly stated. Inherent power is the concept this article uses while answering this question.In arbitration proceedings, arbitrators are expected to resolve a dispute with a final decision. Prior to this, arbitrators may be expected to make decisions on various issues during the proceedings, and these decisions may also be necessary in order to reach the final arbitral award. The arbitrators’ ability to make both the final decision and other decisions depends on their jurisdictional powers regarding these matters. An arbitrator or arbitrators (i.e., arbitral tribunal) who carry out this judicial activity and make the decision that finally resolves the dispute are granted through the necessary jurisdiction the power to conduct the proceedings mainly based on the parties’ agreement. In addition, the procedural rules to which the arbitration is subject or the rules on substantive law that are applied to the merits of the dispute also authorize the arbitrators with regard to various matters. In some cases, the arbitrators may make decisions based on their inherent powers regarding matters where the parties or the rules to be applied in the arbitration neither explicitly nor implicitly authorize the arbitrators. Giving arbitrators the power to adjudicate in order to resolve a dispute constitutes the main source of their inherent powers. Likewise, due to the fact that arbitration is a judicial activity, arbitrators are naturally considered to possess certain powers. Thanks to their inherent powers, arbitrators are able to make decisions on the procedural matters required in the proceedings, as well as on matters related to the merits of the dispute.In international arbitration, the need for arbitrators to resort to their inherent powers may arise for various reasons. The first of these reasons is the emergence of a problem whose solution does not exist within the arbitrators’ explicit powers. The necessity of a fair trial and the resolution of the dispute in all its aspects also requires the use of inherent powers, and arbitrators may be able to use their inherent powers in such cases.Will the arbitrators be able to make a decision in the absence of any regulation in the arbitration agreement, laws, or institutional arbitration rules regarding any issue requiring resolution during the arbitration proceedings? Is using an inherent power permissible as a requirement of the judicial function performed in arbitration? While examining the answers to these questions, the article will evaluate the judicial character of the arbitral tribunal. The article attempts to find answers to these questions in order to define the exercise of international arbitration regarding this subject and to reveal the conclusions that are reached as a result.The inherent powers of arbitrators derive from the existence of arbitration. Bringing a dispute to arbitration instead of state courts is itself one source of arbitrators’ inherent powers. Despite neither a permissive provision existing in the regulations that constitute the source of arbitrators’ powers nor a provision existing that can be understood as instructions for arbitrators, they are still able to make certain decisions using their inherent powers.In order for authority to be exercised within the framework of inherent power, this authority should not be included in the explicit expression of any legal regulation nor even be implied. In other words, a situation that is implicit in meaning and implicit in the regulations that regulate the arbitration and that authorizes the arbitrators can be said to grant authority to the arbitrators, and this may cause it to take the form of another type of authority. In other words, inherent power is derived not from the phrases of these regulations, but rather from their direct existence. The existence of these legal grounds (i.e., the fact that the dispute has been brought to arbitration) indicates the inherent powers of the arbitrators in the relevant matter. As a result, the authority that the arbitrators who’ve been empowered in this way can apply to cases where procedural and substantive legal regulations, party agreements, or any other source do not regulate how they will decide regarding a particular event or problem can be examined within the framework of the doctrine of inherent power.This article has conceptually examined the inherent powers of arbitrators in international arbitration. The concept of inherent powers has an important place in the theory and practice of international arbitration. However, no independent study is found on this subject in the Turkish legal doctrine. For this reason, the article has drawn the framework regarding inherent powers as a concept and explained the importance and purposes of these powers. The article has also explained the sources of inherent powers.&nbsp;

The Concept of Inherent Power in International Arbitration

Adnan

This study examines third-party funding in international investment arbitration. Third-party funding has become increasingly popular in international arbitration; however, no universally accepted definition of third-party funding has yet to occur. This study describes third-party funding as the practice where one of the parties’ arbitration costs is financed by a third-party funder who has no pre-existing interest regarding the trial and who aims to receive financial benefit by funding. With the presence of this third-party funder, the funded party is not required to pay the arbitration cost, so this can be said to be a win-win situation for both sides. Third-party funding began as a litigation funding practice that then went on to become popular in international arbitration. During England’s Middle Ages, third-party litigation funding was prohibited due to the doctrine of maintenance and champerty, while no doubt currently exists that third-party funding has had a growing positive impact on international arbitration. 2017 in particular was a very important year that saw a milestone regarding the regulation of third-party funding. Singapore and Hong Kong pioneered new legislation that permitting third-party funding in arbitration. This study also examines third-party funding in terms of Turkish law and has found no regulation to be present in regard to prohibiting third-party funding.Funder is a term that refers to a natural or legal person who has no pre-interest in a dispute and who finances a party’s costs either partially or in full. A funder may be a bank, insurance firm, law firm, or other entity particularly dedicated to funding disputes. Lastly, non-governmental organizations may also be funders. To provide funding, a funding agreement must be signed between the funded party and the thirdparty funder. No common acceptance of any legal character exists in this agreement with regard to legal doctrine, and as such this study concludes that benefit to be had in considering this agreement to be sui generis.Disclosure of third-party funding has been one of the most discussed issues in thirdparty funding, with scholars having discussed this issue in the scope of the importance of transparency in arbitration proceedings as well as with regard to the impartiality and independence of arbitrators. Disputes in international investment arbitration are also related to public interests, so this study indicates that tribunal proceedings should be more transparent. Disclosure of the third-party funding is an important circumstance for providing transparency in the arbitral process. In order to determine whether the arbitrators are acting independently and impartiality during the arbitration proceeding, one must know whether any relationships exist between the arbitrators and the funder. With the 2022 Amendment of the ICSID Arbitration Rules, a major step has been taken by making a new rule regarding third-party funding, with Rule 14 clearly regulating the disclosure of third-party funding. That the scope of third-party funding disclosures are limited to the name and address of the funder may be considered a good step. Confidentiality between the parties of the funding agreement must be taken seriously. Also, no obligation exists to disclose a third-party funding agreement with regard to ensuring the transparency of proceedings or impartiality and independence of the arbitrators. However, an important exception does occur in the last paragraph of Rule 14. The tribunal may order the disclosure of further information such as the funding agreement and other evidence. One should always take into consideration that a funder may choose how to keep some important parts confidential, such as sensitive information about the proceedings or trade secrets.Third-party funding in international investment arbitration also has negative effects on the tribunal process, one of these being that the funder may want to take full control of the arbitral proceedings. Due to their financial power, a funder has an advantageous position and may use this power to impose unfair terms to the funding agreement, such as having to make a decision on every strategic step during the tribunal proceeding. This is a serious problem that parties should resolve while negotiating the funding agreement. During the proceedings, funders will additionally want to learn comprehensive information about the procedure. Attorney-client confidentiality might face certain issues on this point. From the beginning to the end of the arbitration process, funders may request privileged information about the claim be disclosed based on due diligence. To avoid any possible problems that may occur in the future, parties should execute a confidentiality agreement within the due diligence process. Conflicts of interest may also arise during the arbitration due to the presence of a third-party funder. For example, an arbitrator may perform their due diligence before the case or the funder may consult the arbitrator regarding decisions on how to fund the claim. Therefore, the disclosure of third-party funding is vital. Another issue regarding thirdparty funding is whether or not funding agreements should be taken into account when making a decision about security for costs. This study has concluded that third-party funding should not be a factor when determining the security for costs, because thirdparty funding does not automatically reveal the claimholder as being impecunious. In addition, determining the security for costs in every third-party funding circumstance would delay the arbitration process.&nbsp;

Third-Party Funding in International Investment Arbitration

Sezai

Pandemics That Generate a New Grotian Moment in International Law

Saadet

Procedural aspects of the European Court of Human Right’s  Assessment under Article 3 of the European Convention on Human  Rights in Removal Cases

Esra

The 1951 Convention Relating to the Status of Refugees (hereon referred to as the 1951 Convention) and the Protocol Relating to Status of Refugees (hereon referred to as the 1967 Protocol) that supplements the 1951 Convention constitute the main legal bases for international refugee law. They provide a common definition for refugee status and catalog the rights to which refugees are entitled, and these can be regarded as two pivotal features for ensuring an effective international protection regime. However, neither impose any legal duty on member states to support the refugee-hosting states.	Even though several legal texts highlight the importance of burden-sharing and solidarity, no clear international structure exists that determines the nature or scope of responsibility and burden-sharing at the international level. Notwithstanding, the size of global human mobility has highlighted the importance of international cooperation more than ever before. The mass influx experienced after 2015 in particular and the dramatic events experienced along asylum routes have urged the international community to take concrete steps in this regard. In 2016, the UN Summit for Refugees and Migrants was organized, with the New York Declaration for Refugees and Migrants was adopted to address major refugee and migrant movements. Accordingly, the UN prepared two separate texts (i.e., the Global Compact for Safe, Orderly and Regular Migration [GCSORM] and the Global Compact on Refugees [GCR]). While GCSORM aims to address the migration phenomenon at the international level, GCR endeavors to establish an international system for predictable and fair burden-sharing.	GCR mainly aspires to reduce “pressure on host countries, strengthen refugees’ self-reliance, expand access to third-country solutions, and support conditions in the countries of origin for a safe and dignified return” (GCR, 2016, para 7). GCR consists of four parts: The Introduction sets out GCR’s background, guiding principles, and objectives, while the Comprehensive Refugee Response Framework (CRRF) as an annex to the New York Declaration constitutes GCR’s second part. The third part introduces the Program of Action, which sets out devices to help states achieve GCR’s goals (paras 11–13). Finally, the fourth part provides individual and collective responsibility mechanisms for monitoring the implementation and enforcement of provisions, such as the Global Refugee Forum as well as support platforms and solidarity conferences for special cases.	GCR targets maintaining strong cooperation with host states and developing refugees’ self-reliance. However, the implementation of these principles depends on states’ voluntary contributions. In other words, GCR (para 4) does not envisage a binding burden-sharing scheme. Hence Hathaway and Siegfried claimed that the current form of GCR does not foresee any clear and effective burden-sharing system for the host countries, and thus a historical opportunity has been missed. On the flip side, Aleinikoff approaches this debate from a different attitude, stating that compacts are designed to encourage international cooperation through the ecosystems or structures they bring with, and innovative ways should be found to strengthen the GCR.	The compact as a whole is built on common goals and interests, and the Program of Action (Part III) offers useful techniques and opportunities for interstate collaborations. However, this program lacks any comprehensive strategy and structure regarding global responsibility. Furthermore, although GCR was concluded during the period when thousands of people had lost their lives in the Mediterranean while seeking asylum, it makes no mention of strengthening international protections, reinforcing the right to seek asylum, or ending non-entrée practices by imposing responsibilities on states, nor does GCR provide any procedures or solutions for asylum seekers rescued at sea. Thus, the established structure has been criticized for being weak and ineffective.	In general terms, GCR offers new policies and tools for states that already want to contribute to refugee-hosting states. In addition, no mention is made of any mechanism or comprehensive strategy for establishing global responsibility for states that view refugees as a problem for border states and that do not want to assist. Despite all these criticisms, GCR reflects the best level that can be achieved under current political conditions. Hence, to make the current achievements more effective, GCR’s strengths and weaknesses must be identified, and the available opportunities must be used more efficiently.	New attempts to establish a fair burden-sharing system have pivotal importance for Turkey, which has been hosting the largest refugee population under temporary protection status for more than a decade. In this process, Turkey has demonstrated itself as an exemplar of international protection and offered many services such as health, education, and access to the labor market. However, the temporary protection status, having provided urgent protection to people in need without getting them stuck in bureaucratic obstacles, has completed its duty, and Syrians now need durable solutions. International refugee law envisages three traditional durable solutions: voluntary return, resettlement, and integration. By regulating these models, GCR introduces two additional methods: complementary ways of admission to third countries (paras 94–96) and other local solutions (para 100). Currently, Turkey is faced with the requirement of providing durable solutions to millions of Syrians in a political environment where resettlement opportunities are very limited and the conditions for returning are still insufficient. Therefore, this study attempts to find an answer to the following question: Can the Global Compact on Refugees and the new mechanisms it brings along provide durable solutions for Syrians in Turkey? Accordingly, the study suggests that GCR and its new tools have the potential to provide durable solutions as long as they (i.e., GCR Section IV on Global Refugee Forums and their potential to attract the attention of the whole world) are used more actively. Last but not least, when considering the size of the influx, Turkey should activate a support platform and mobilize the international community to find durable and sustainable solutions for the Syrians it hosts.&nbsp;

Can the Global Compact on Refugees Provide Durable Solutions for Syrians in Turkey?

Banu

International Jurisdiction at the Place of Performance of a Contract in Civil (EU) Law: A Jurisdiction Rule Stuck Between the Common Law Perspective and Conflict of Laws Terminology

Sema

Turkey has the world’s largest population of people seeking temporary and international protection. In Turkey, international protection applicants and status holders come from various nationalities, with the largest populations hailing from Afghanistan, Iraq and Iran.Since the Taliban took over in August 2021, armed resistance movements and armed conflict situations have continued in different regions of Afghanistan. According to the UN report dated January 22, 2022, one of the most important situations that increase the need for displacement and asylum in a safe country shortly is the threat posed by armed organizations, especially the Taliban, on the geography of Afghanistan.When the number of Afghan citizens apprehended as illegal immigrants in our country was examined, it was discovered that 100.841 Afghan citizens were apprehended in 2018, with the figure more than doubling to 201.437 in 2019. In 2020, 50.161 Afghan citizens were arrested and in 2021, 70.252 Afghan citizens were arrested in Turkey. According to a report dated 8 December 2022, it was determined that 110.283 Afghan citizens were arrested in our country as irregular migrants.This study is about the status of Afghan citizens who have been in Turkey as irregular immigrants, particularly in recent times, as a result of the armed conflicts that occurred before and after the Taliban’s takeover of Afghanistan’s national administration. In this context, evaluations will be made in terms of temporary protection status, immigrant status and residence permit after examining the situation of Afghan citizens who are irregular immigrants in our country following international protection law.By the end of the year 2021, the number of Afghan citizens in Turkey applying for international protection status is 21.926. When the applicants to the Presidency of Migration Management are examined, it was observed that the highest number of applications were made by Afghan citizens.It is impossible for the citizens of Afghanistan who came to the country to get refugee status, both in line with the geographical limitation imposed by Turkey on the Convention Relating to the Status of Refugees and in line with the Law on Foreigners&nbsp;and International Protection (LFIP) article 61 issued in parallel with the Convention. According to Turkish law, the primary condition for granting refugee status is that the person seeks international protection from our country as a result of events in European countries. In LFIP, the concept of conditional refugee, which is used for the first time in our legislation, is included instead of the concept of an asylum seeker. Provided that Afghan citizens arrived in the country as a result of an event outside of European countries and are unable to seek protection in their home country, they may be granted conditional refugee status. However, in order for an Afghan national to qualify for conditional refugee status, the applicant must have a well-founded fear of persecution because of his race, religion, nationality, membership in a particular social group, or political opinion (LFIP article 62). In this context, whether the fear of persecution of Afghans is based on a just cause should be evaluated separately for each applicant and the just cause should be proved by the applicant.Article 63 of the LFIP allows asylum seekers who are not qualified as refugees or conditional refugees to be granted subsidiary protection status in certain exceptional circumstances. For this reason, for an Afghan citizen to benefit from subsidiary protection in Turkey, this person must first not meet the conditions for conditional refugee status. The possibility that individuals, particularly activists, journalists and women, who lead lives incompatible with the Taliban’s political regime, may be subjected to torture, inhuman or degrading punishment or treatment, more importantly, the death penalty should be considered while determining subsidiary protection status.In the individual evaluations of these people, both the Presidency of Migration Management and the Turkish courts try to comply with the principles accepted in international law and the decisions of the ECtHR in the international protection applications made by Afghan citizens who came from Afghanistan as irregular immigrants in Turkey. Although the number of Afghans crossing our borders has increased significantly since the withdrawal of international forces from Afghanistan and the Taliban’s invasion of the country, this estimate is not yet considered a mass influx. There will be no mass influx as long as Turkey has the authority to receive and individually review the international protection applications of each Afghan citizen. Temporary protection decision shall be taken by the President of the Republic of Turkey upon the Ministry of Interior’s proposal. Since there is no such decision at the moment, Afghan citizens do not have temporary protection status under all circumstances.If there are Turkish ancestors and adherents to Turkish culture among Afghan citizens who come to our country, the President of the Republic of Turkey might&nbsp;grant them immigrant status. In previous dates, these people were accepted in Turkey as immigrants.It is also believed that Afghans who cannot be returned to their home country under the principle of non-refoulment even if their international protection status is denied can remain in the country under the terms of a humanitarian residence permit (LFIP article 46).

Assessments Regarding the Legal Status of Afghans Who are Irregular Migrants in Turkey

Merve

In this study, the administrative detention of foreigners in Turkey is examined in light of the jurisdiction of the TCC and the ECHR. After the Syrian civil war, Turkey has been the first country to host asylum seekers fleeing from the war. Because of its geographic location, Turkey is both a destination and a transit zone for the people who want to reach Europe. The number of people coming to Turkey for asylum has gotten exponentially higher until today, where it is now approximately 3.7 million. This number creates consequences for the Syrian community in Turkey and the country itself, socially, politically, and economically and in terms of state security issues. At this point, administrative detention becomes an essential tool for the state in controlling irregular migration, which creates a complex ongoing problem for personal liberty and security. To understand the aim and function of administrative detention, it has to be examined in four aspects in light of the TCC and the ECHR jurisdiction; its legality, the state’s obligation to inform, foreigner’s right to an effective remedy, and compensation. To start with the legality criteria, until the administrative detention provisions of the Foreigners and International Protection Law, (Law no.6458) was passed in 2014, there was no legal provision regulating administrative detention. Accordingly, implementations of this practice before 2014 were not legal and so not able to provide the legality criteria in neither the eyes of the TCC nor the ECHR. After 2014, even after the legality criteria was provided, the state has failed to fulfill its obligation to implement the law properly. The way the state follows in the implementation of this practice reveals that police headquarters put pressure on the governorships to issue out administrative detention and deportation decisions, without giving the decision-making body the chance to determine if the foreigner in question poses a risk for public security. Furthermore, the meaning of risk to public security mentioned in Law no.6458 does not provide legal certainty since various issues having different levels of intensity come under this clause, as is often encountered in court decisions (which is another problem beyond the scope of this study). Another problem is that the foreigners entered the country without legal papers because they were fleeing from the war, which is described as a situation that must not be punished by the 1951 Convention Relating to the Status of Refugees. Since the unlawful administrative detention practices serve punitive aims in the ECHR ruling, it violates the state obligation of the 1951 convention not to punish for illegal entrance.Besides these practical problems, the state also fails to inform the foreigner properly and adequately about his administrative detention. Foreigners who experienced this practice could not enjoy their right to appeal, with the state also failing to provide an effective remedy which was confirmed in both the TCC and ECHR rulings. The effective remedy was also in question concerning compensation. Since this practice makes the foreigners deprived of their liberty and security, compensation could not be a restitutio in integrum, but instead, just a cover for the damages. That caused another problem because there was no legal remedy mentioned for compensation in Turkish Law, which was also confirmed in the TCC ruling. After all those violations and until 2014, the TCC ruled that full remedy action in administrative courts is the effective legal remedy for compensation claims. After this ruling, the applications where the full remedy action was not exhausted were found inadmissible by the TCC. However, this remedy also has problems since the administrative courts do not have the authority to decide if the detention was lawful or not. This situation produced a legal gap for the cases where the detention was not ended by a court decision regarding its unlawful status, but an administrative decision or cases which ended because they exceeded the 12 months maximum time limit prescribed in the law.In Turkey, administrative detention practices still have a long list of wrongs that have to be corrected to protect foreigners’ personal rights to liberty and security. The problems mentioned here reveal a bigger problem: its punitive nature and aim. This is because the implementation of this practice is more likely to produce a punitive effect rather than a regulatory one. In this study, by analyzing chosen judgments of the mentioned high courts, it is determined that administrative detention practices in Turkey serve a punitive aim. The state is obligated to protect the peoples’ rights under its jurisdiction, regardless of their background. As such, it has to establish a fair balance between the rights of foreigners and public security to fulfill its obligations of convention and respond to national security issues simultaneously.

The Punitive Aspect of Administrative Detention Measure in Terms of Right to Liberty and Security in Light of the European Court of Human Rights and Turkish Constitutional Court Jurisprudences

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Esen

The subject of our study is an action brought to state courts regarding a dispute subject to arbitration and the determination of parties’ objections related to arbitration. The respondent may raise an arbitration objection in the case appearing before the state court and the claimant may plead that the arbitration agreement is invalid. On these claims, it is important to determine the scope of the review to be carried out by the court. Before going into the scope of the review, it’s important to address briefly the relevance of a foreign seat and its effects according to Turkish arbitration law. An important result of the determination of a foreign state as the seat of arbitration under Turkish law is that the dispute would fall outside of the scope of the Code on International Arbitration No. 4686. However, in cases where a foreign state is designated as the seat of arbitration, the International Arbitration Code art. 5 regulating the arbitration objection will be applied to the dispute. IAC art. 5 stipulates that if an action is brought before the court in a matter which is subject to an arbitration agreement, the respondent may object to the jurisdiction of the court. The acceptance or refusal of the objection and disputes concerning the validity of the arbitration agreement are subject to the provisions of the Civil Procedure Code regarding the preliminary objections. If such objection is accepted, then the court shall dismiss the action on procedural grounds. Although it is accepted in the article that the court will dismiss the action in case of a valid arbitration agreement, detailed provisions regarding the standard of the review and the validity of the arbitration agreement are not included. Two main opposite views have been accepted in the doctrine regarding the scope of the review. According to the first group of authors the court should, determine the validity of the arbitration agreement after a full review and in case of a valid arbitration agreement, refer the dispute to arbitration. And according to the second view, the court should only look for an arbitration agreement, thus carry out a prima facie review and in case of the existence of an arbitration agreement, refer the dispute to arbitration. In this case, the arbitral tribunal shall have the competence to decide on its own jurisdiction according to the principle of Competence-Competence. It’s important to determine which standard of review should be adopted by Turkish courts when the seat of arbitration is in a foreign country. UNCITRAL Model Law art. 8, 1958 New York Convention art. II/3, Civil Procedure Law art. 422 all include the provision that unless the arbitration agreement is “null and void, inoperative and incapable of being performed” the dispute should be referred to arbitration. It can be deduced from the wording of these articles that the court should carry out a full review and determine the validity of the arbitration agreement. In the doctrine and in the jurisprudence of Swiss courts, it is agreed that the court should decide whether the arbitration agreement is valid in cases where the seat of arbitration is in a foreign state. It is emphasized that otherwise the principle of natural judge would be violated. After determining the scope of the review, the law applicable to the validity of the arbitration agreement is examined in the second part of the study. According to the article 4 of the International Arbitration Code, “The validity of the arbitration agreement is subject to the law agreed by the parties, failing such agreement to Turkish Law.” This article provides for the law applicable to the arbitration agreement, however it cannot be applied where the seat of arbitration is in a foreign country. As there is no other rule or provision regulating the applicable law when the seat is in a foreign country, there is a legal gap in Turkish law regarding this matter. Several views and methods have been put forward in the doctrine on how to fill the gap regarding the law applicable to the arbitration agreement. According to the first view, Article 4 of the International Arbitration Code should be applied by analogy and Turkish law should be applied to the arbitration agreement. The second view also applies Article 4 by analogy however the authors consider that the underlying principle of this article is the “seat of arbitration” and state that the law applicable should be the law of the seat. It is also argued that the applicable law can be determined by application by analogy of the article V/1/a of the New York Convention. And finally, the law applicable to the arbitration agreement can be determined according to the conflict of law rules on the law applicable to the contracts, thus article 24 of the Code on Private International Law and International Procedure Law. In our opinion, it is possible to fill this gap with the application of the provisions of the Code on Private International Law and International Procedure Law, which contains general rules regarding the disputes including a foreign element. In cases where there is no provision in the lex specialis, namely the Code on International Arbitration, it is possible to refer to the aforementioned Code. Article 62/f of the Code on PIL which regulates the recognition and enforcement of foreign arbitration awards can be applied by analogy. According to this article, the law applicable to the validity of the arbitration agreement is subject to the law designated by the parties, or in the absence thereof, to the law of the place where the arbitral award is rendered. Thus, in the absence of any choice of law by the parties, the law of the seat of arbitration should apply

Review of the Validity of the Arbitration Agreements by Turkish Courts in Cases Where the Seat of Arbitration is in a Foreign Country and the Applicable Law

Doğan

Today’s commercial and economic life has a character that transcends the borders of countries. Knowledge and expertise gain importance in this economic structure. Therefore, in many fields such as consultancy, banking, the medical sector, education, law, architecture, which require expertise, the contract of mandate has a wide application area. As a matter of fact, the contract of mandate manifests itself in many cases together with the representative authority or, more precisely, requires the representative authority raising the question of which regulations will be subject to the contract status and which law to be applied to the representative authority. Due to the similarity between the contract of mandate and the representative authority, the resolution of the qualification dispute is very important in the determination of the applicable law to the contract of mandate. Since, according to the qualification methods (lex causae method or lex fori method), gray areas can be evaluated within the scope of the representative authority or contract of mandate. In the determination of the subject, it is necessary to evaluate the areas touching the representative authority as a whole and to be subject to the same law. At the beginning of these areas, sub-power of attorney, substitution of mandate and the cases required special representative authority come together. These institutions should be considered within the concept of representative authority and subject to the law of the state in which the agent has his place of business according to Article 30, paragraph 2 of the International Private and Civil Procedure Law (Act No. 5718) that regulates the representative authority. This is because these institutions dispose the conditions under which acts of the agent bind the principal in relation to third parties. Therefore, possible legal conflicts that may arise as a result of subjecting gray areas to different legal systems will be prevented. On the other hand, the case that several persons conclude a contract of mandate as agents according to the substantive law and those of agents do not act together as a representative, cause an agency without authority. In the same way, when the substitution of mandate is available, the lack of authority to delegate the power of representation to another person as a representative or the authorization that is not given in cases where special representation is required lead to the agency without authority. Since the conditions required to be accountable the principal to third parties for the acts of agents are deficient in these cases, this deficiency falls into the application area of the Article 30, paragraph 2 of the International Private and Civil Procedure Law. The law to be applied to the indirect representation is always connected with the basic legal relationship with the substantive law and should be considered as its integral part. Therefore, the indirect representation should be subject to the law applied to the basic legal relationship. Outside of the grey areas, the applicable law to the contract of mandate shows parallelism with the general “contract status”, in other words “the law applicable to contractual obligations”. In the absence of a choice of law, the applicable law to the mandate will be governed by the most connected and closest law to the contract of mandate in accordance with the objective connecting factor that should be specified according to the characteristic obligation of mandate. In the contract of mandate, it is accepted that the characteristic obligation is the service obligation of the agent. This objective connecting factor is the habitual resident of the agent or if the contract of mandate was concluded in the exercise of a professional or commercial activity, where the agent has his place of business. Having regard to the complexity of today’s economic relations, the possibility of a more closely related law will be strengthened. Considering the state of all affairs, if there is a law more tightly related to the contract of mandate, that particular law shall govern the relationship between the parties in accordance with Article 24, paragraph 4 of the International Private and Civil Procedure Law. The exceptional application of the exception clause will be more important than the expected situation of this disposition in the present case. It should be noted that doctors, engineers, architects, lawyers, counselors, notaries, dentists, veterinarians and banks who have the capacity to act as agent in the contract of mandate will often perform their obligation of service on their own place of business. Accordingly, in the absence of a choice of law in these professional activities, the law which the objective connecting factor determines, will often be considered as the more closely related law with the contract of mandate.

The Applicable Law to the Contract of Mandate

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Şafak

Surrogate motherhood has become one of the most interesting and complicated issues of family law in domestic laws as well as in private international law. The wellaccepted certainty of the ‘mater semper certa est’ principle of Roman law has started to lose potency with the development of new reproduction techniques. The different national legal provisions and applications have become the reason for the rise of international surrogacy tourism. It has been observed that the once rigid approach of European countries in this matter has become softer following the decisions of the European Court of Human Rights (ECHR) in Mennesson and Labassee. The subject in Turkish law is partly regulated and the practice of surrogate motherhood is prohibited. In our study, we attempted to approach the subject from different perspectives in terms of comparative law and recent ECHR decisions. In this way, we wish to make a contribution to the discussion and potential legal framing and harmonization in Turkish law. Surrogate motherhood has recently turned into a global operation because couples who face legal prohibition of surrogacy in their own countries head towards those countries which allow the process. Nonetheless, this process does not function smoothly especially because of the associated legal and ethical problems. Moreover, the legal problems of transnational surrogate motherhood, issues such as the legal validity of the conditions of the surrogacy agreement, the parties to the agreement, the rights and obligations of the parties in case of breach of contract, the legal and ethical nature of the contract, and the parentage issues are the main topics for discussion. Cases regarding surrogate motherhood initially started to engage public attention in the 1980s. The legal cases ‘Baby Cotton’ (Britain) and ‘Baby M’ (USA) have had serious repercussions across the world and have brought forth the legal and ethical issues regarding the process. The current and famous international cases such as ‘Baby Donna’ (Belgium), ‘Baby Manji’ and ‘Balaz Twins’ (India), ‘Baby Gammy’ (Australia-Thailand) have followed these cases. National legislators are now faced with this new and interesting element in family law, confirming that the practice of surrogate motherhood is steadily increasing. In comparative law, countries may be divided into three categories according to their legal policies on surrogate motherhood: 1. Those countries known as ‘import countries’ in the doctrine because that they do not currently allow surrogate motherhood in their domestic law. Germany, Switzerland, France, Austria, Italy, Spain and Turkey are in this first category. 2. Those countries where no legal regulations regarding surrogate motherhood exist or where the process is allowed in domestic law under strict conditions and supervision provided that the willing couples are entitled to nationality or permanent residence e.g. Belgium, Holland, New Zealand, Brazil. 3. The third group is referred to as export countries, including certain states in the United States (e.g. California), Russia, Ukraine, Israel, India and Greece. These countries accept both transnational and domestic surrogacy. Those countries belonging to categories I. and II. have long refused parental authority for willing couples of babies who were already born in countries which allow surrogate motherhood based on the grounds of ‘contradiction to public policy’, ‘fraud against law’ or incompleteness of other requirements. Nonetheless, it is possible to say that the rigid approach of European countries in this area has softened since the EHCR decisions in Mennesson and Labassee case. In Turkey, there was no specific legal regulation (in terms of ‘code’) for a long time regarding having a child by assisted reproductive technologies and surrogate motherhood – although the legal aspect of the subject was partly regulated by a by-law. Evaluating the legislation of the foreign countries that have prohibited the surrogacy, it was truthfully criticized in the doctrine that such a legal prohibition of surrogate motherhood should have been set forward rather by the will of legislator, but not the administration. Finally, there have been amendments to Law 2238 on the Harvesting, Storage, Grafting, and Transplantation of Organs and Tissues, by Law 7151 on the Amendment of Certain Laws and Decree Laws enacted in Official Gazette 30616 dated 05.12.2018. Accordingly, surrogate motherhood is legally prohibited by power of these amendments. (Non-commercial) Surrogate motherhood should also be accepted as a legal possibility de lege ferenda and should be the subject of an extensive and detailed legal arrangement and supervision as it is the case in Israel, in case there is no other medical choice left. It is possible that surrogacy can come to be a useful alternative solution, provided that the arrangements aiming at the protection of the child and the parties to the application are carried out under strict supervision. As evidenced by the increasing number of cases of surrogate motherhood, disregarding what the science of medicine provides and, moreover, legal prohibition of its practice is not a long-term solution. Since the surrogate motherhood agreement is a private law contract, it will be more appropriate to allow the implementation of this application in the event that no one can be forced to become a party to the contract. Furthermore, the application is considered as a last resort when the usefulness of the application is taken into consideration and the other means are officially depleted. Hence, we believe that the legal arrangements should be made to facilitate the establishment of paternity with the willing father and mother. In the face of medical developments in reproductive methods, the silence or prohibition of the law will violate the rights of individual/families to have children and their rights to reproduction. We would like to express that surrogacy has been prohibited not just because of the ethical aspects of the subject matter, but also the legislator may probably have thought of avoiding the problems to be occurred in the practice.

A Difficult Turning Point in Family Law: The Current Developments on Surrogate Motherhood with a Comparative Law Perspective

Burcu

The Chartered Institute of Arbitrators (CIArb) in its Code of Professional and Ethical Conduct for Members, defines ethical rules as “a set of moral principles according to which one should conduct one’s affairs”. It is common for parties in international commercial arbitration cases to be represented by one or more party representatives registered with multiple bars or not registered with a bar at all or even by a layperson, when permitted. Moreover, often, the seat of arbitration can be where neither party’s representative is licensed. This brings up the question of which ethical rules shall be applicable to the parties’ representatives, who shall be the competent authority in case of breach, whether the arbitral tribunals have legitimate power to sanction the parties’ representatives and so on. Long before the current discussions on the necessity to adopt a Code of Ethics for parties’ representatives, Professor Michael Reisman affirmed in 1971 that parties’ representatives should be subject to regulation at an international level. The International Bar Association (IBA) published the IBA Guidelines on Party Representation in its IBA Guidelines on 23rd May 2013 specifically regulating the conduct of party representatives in international arbitration proceedings. According to the Guidelines, it shall apply where and to the extent that the Parties have so agreed, or if the arbitral tribunal, after consultation with the Parties, wishes to rely upon them after having determined that it has the authority to rule on matters of Party representation to ensure the integrity and fairness of the arbitral proceedings. Furthermore, the London Court of International Arbitration (LCIA) Rules came into force on 1st October 2014 with an Annex entitled General Guidelines for the Parties’ Legal Representatives (LCIA Rules). Contrary to the IBA Guidelines, the LCIA Rules apply to all arbitration conducted under the auspices of the LCIA commenced on or after 1st October 2014. Finally, the Singapore Institute of Arbitrators (SIArb) published Guidelines on Party-Representative Ethics (SIArb Guidelines) on 26th April 2018 and the American Arbitration Association (AAA) together with the International Centre for Dispute Resolution (ICDR) published Standards of Conduct for Parties and Representatives (AAA Standards). Uncertainty regarding the ethical rules applicable to party representatives as well as the differences in the application and appreciation of the above-mentioned regulations lead to two concerns: the use of guerrilla tactics by party representatives in an attempt to derail arbitral proceedings and the absence of a level playing field for parties and their counsel in international arbitration. Existing guidelines and rules deal with common areas of concern, including the party representative’s duty to ensure the integrity and fairness of the arbitral proceedings, duty of candour or honesty owed to the arbitral tribunal, the promotion of the good and equal conduct, limitation of the communication with witnesses, the other party and arbitrators. However, it is clear that existing regulations do not provide a solution for all the existing ethical problems, such as contingent fees, third party funders, lawyer-client privilege, and confidentiality of settlement negotiations. Some scholars called for the creation of a Global Code of Ethics, a uniform set of rules applicable to all party representatives at an international level. However, other scholars expressed concerns that the super production of rules and guidelines may bring more harm than the benefit it is supposed to bring and is a threat to one of the biggest advantages of international arbitration which is the procedural flexibility. One of the biggest problems regarding the application of ethical rules to party representatives in international arbitration is the absence of a competent authority who is able to enforce the said rules in case of a breach. The IBA Guidelines as well as the LCIA Rules give arbitral tribunals the power and duty to sanction breaching party representatives. It is understandable knowing that the arbitral tribunals are vested with wide powers and in the best position to supervise and prevent unethical behaviour. An alternative would be to give the power to sanction party representatives to arbitral institutions - as did the AAA in its Standards of Conduct - by recording party representatives that do not conduct themselves in an appropriate manner in the Institute’s black lists. Finally, the Swiss Arbitration Association (ASA) suggested the creation of a Global Arbitration Ethics Council, a transnational body charged with the enforcement of ethical principles. In November 2015, an informal working group was chaired by the ASA in which several known arbitration associations and institutions participated. After reviewing empirical data collected from bar councils all over Europe and the US, the group held a second meeting and reached the conclusion that the “time has not yet come” to form an international body charged with the enforcement of ethical standards. This article suggests that, before calling for radical changes such as the implementation of a Global Code of Ethics or the creation of a transnational body charged with the enforcement of ethical principles, it should be deeply analysed whether arbitral tribunals are able to deal with ethical issues under current regulations.

Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice

Berk Hasan

The Path of Eastern Arbitration to Take Islamic Finance Disputes from the Hands of English Litigation

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Public and Private International Law Bulletin (PPIL), which is regularly being published by Istanbul University Faculty of Law Research Center of International Law and International Relations since 1981, targets national and international audience. Articles submitted to Public and Private International Law (PPIL) are subject to a double-blind peer-review evaluation system. Public and Private International Law (PPIL) is published twice a year, in June and December. The academic papers requested to be published in Public and Private International Law Bulletin (PPIL) have to be submitted by the latest March 31st for June issue and September 30th for December issue. Disciplinary and interdisciplinary academic papers focused on the diverse faces of public and private international law in connection with the basis of justice are being published in Public and Private International Law Bulletin (PPIL). Therefore, while following public and private international law and international relations issues and publishing related academic papers this journal aims to help academicians studying or making researches in the same field. Besides academic articles on public international law and private international law, book reviews regarding the same subjects and evaluations of related court decisions are published in Public and Private International Law Bulletin (PPIL).

İnci

Galip

Emerging Sources Citation Index (ESCI)

EBSCO

ERIH PLUS

TR Dizin

DOAJ

SOBIAD

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Public and Private International Law Bulletin

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Editor in Chief

Co Editor in Chief

Managing Editor

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Language Editor

Editorial Board Member

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Public and Private International Law Bulletin (PPIL), which is regularly being published by Istanbul University Faculty of Law Research Center of International Law and International Relations since 1981, targets national and international audience. Articles submitted to Public and Private International Law (PPIL) are subject to a double-blind peer-review evaluation system. Public and Private International Law (PPIL) is published twice a year, in June and December. The academic papers requested to be published in Public and Private International Law (PPIL) have to be submitted by the latest March 31st for June issue and September 30th for December issue.Disciplinary and interdisciplinary academic papers focused on the diverse faces of public and private international law in connection with the basis of justice are being published in Public and Private International Law Bulletin (PPIL). Therefore, while following public and private international law and international relations issues and publishing related academic papers this journal aims to help academicians studying or making researches in the same field.Besides academic articles on public international law and private international law, book reviews regarding the same subjects and evaluations of related court decisions are published in Public and Private International Law Bulletin (PPIL).Mainly preferred topics of (a) public international law and (b) private international law in Public and Private International Law Bulletin (PPIL) are listed below.(a) Public International Law<div style="text-align: left;"><div style="text-align: left;">1.    International Law (in general, i.e., History, Philosophy, Theory, Sources, Subjects of International Law; The Relations of International and National laws)</div></div><div style="text-align: left;">2.    International Law Personality, Recognition of States and Governments</div><div style="text-align: left;">3.    Territorial Sovereignty and State Jurisdiction </div><div style="text-align: left;">4.    International Transactions: Unilateral Acts and The Law of Treaties</div><div style="text-align: left;">5.    International Peace and Security Law and Use of Force</div><div style="text-align: left;">6.    International Human Rights Law</div><div style="text-align: left;">7.    International Environmental Law</div><div style="text-align: left;">8.    International Humanitarian Law ( Armed Conflicts Law)</div><div style="text-align: left;">9.    International Organizations Law</div><div style="text-align: left;">10.  International Law of the Sea</div><div style="text-align: left;">11.  International Economic Law</div><div style="text-align: left;">12.  State Responsibility</div><div style="text-align: left;">13.  International Criminal Law</div><div style="text-align: left;">14.  International Refugees Law</div><div style="text-align: left;">15.  Peaceful Settlement of International Disputes (Diplomatic and Judicial Means)</div><div style="text-align: left;">16.  International Air and Space law</div><div style="text-align: left;">17.  Transboundary Waters and Aquifer (groundwaters) Law</div>(b) Private International Law:<div>1.    General Principles of Private International Law 2.    International Procedure Law 3.    Conflict of Laws Rules 4.    International Investment Law 5.    Law on Aliens (i.e., Social Rights, Property Rights, Right to Education) 6.    Citizenship Law 7.    International Jurisdiction 8.    Recognition and Enforcement of Foreign Court Judgements and Foreign Arbitration Awards 9.    International Family and Child Law 10.  International Contracts Law 11.  Alternative Dispute Resolutions 12.  International Commercial Arbitration 13.  Migration LawIntersecting topics of these two areas such as immigration and refugee law, investment law are also being subject to interdisciplinary legal reviews.  </div>

Aim and Scope

Web of Science - Emerging Sources Citation Index (ESCI) TUBITAK-ULAKBIM TR DizinDOAJERIH PLUSEBSCO Central &amp; Eastern European Academic SourceEBSCO Legal SourceSOBİAD

Indexing and Abstracting

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

Policies

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

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

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

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

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

Public and Private International Law Bulletin 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. The journal will act according to the COPE guidelines and flowcharts when faced with cases of suspected misconduct, complaints and appeals.

Ethics

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.

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/JTA6CLJ8T5/848869224A0F46AF8A1AF364064CF007" 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 selected manuscripts are sent to at least two national/international referees for evaluation and publication decision is given by editor-in-chief  upon modification by the authors in accordance with the referees’ claims.Editor-in-Chief 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.

Peer Review

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

LanguageArticles in Turkish and English are published. Submitted Turkish article must include an English abstract, keyword and an extended abstract. Extended abstract in English is not required for articles in English. Manuscript Organization and FormatAll correspondence will be sent to the first-named author unless otherwise specified. Manuscpript is to be submitted online via <a href="https://dergipark.org.tr/tr/pub/ppil" target="_blank">https://dergipark.org.tr/tr/pub/ppil</a> and it must be accompanied by a cover letter indicating that the manuscript is intended for publication, specifying the article category (i.e. research article, review etc.) and including information about the manuscript (see the Submission Checklist). Manuscripts should be prepared in Microsoft Word 2003 and upper versions. In addition, <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/848869224A0F46AF8A1AF364064CF007" target="_blank">Copyright Agreement Form</a> that has to be signed by all authors must be submitted. 1. The manuscripts should be in A4 paper standards: having 2.5 cm margins from right, left, bottom and top, Times New Roman font style in 12 font size, line spacing of 1.5 and “justify align” format. For indented paragraph, tab key should be used. One line spacing should be used for the tables and figures, which are included in the text. 2. The title of the text should be centered on the page, in lower-case letter, bold, Times New Roman font and 14 font size. 3. Information about the author is to be written on the left part of the page skipping one line space after the title, and it should be in Times New Roman font, 10 font size, with one line spacing. After indicating the name of the author in lower-case letter and surname in capital letter, the title, affiliation, and e-mail address should be included. 4. Before the introduction part, there should be an abstract of 200-250 words both in the language of the article and in English. An extended abstract in English between 800-1000 words, summarizing the scope, the purpose, the results of the study and the methodology used is to be included following the abstracts. If the manuscript is in English, extended abstract is not required. Underneath the abstracts, 5-15 keywords that inform the reader about the content of the study should be specified in the language of the article and in English. 6. The manuscripts should contain mainly these components: title, abstract and keywords; extended abstract (If the manuscript is in English, extended abstract is not required), sections, footnotes and references. 7. Tables, graphs and figures can be given with a number and a defining title if and only if it is necessary to follow the idea of the article. Otherwise features like demographic characteristics can be given within the text. 8. A <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/5BA20B6708CA44FAAF80776194D8FB31" target="_blank">title page</a> including author information must be submitted together with the manuscript. The title page is to include fully descriptive title of the manuscript and, affiliation, title, e-mail address, ORCID, postal address, phone and fax number of the author(s) (see The Submission Checklist). 9. The rights of the manuscripts submitted to our journal for publication, belongs to the author(s). 10. The author(s) can be asked to make some changes in their articles due to peer reviews. 11. A copy of the journal will be sent to each author of the accepted articles upon their request. 12. The studies that were sent to the journal will not be returned whether they are published or not.OSCOLA Reference ExamplesPrimary Sources Do not use full stops in abbreviations. Separate citations with a semi-colon. Cases Give 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 instruments Act 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 cases Consolidated 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 Rights Omojudi 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 Sources Books Give 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 books Francis Rose, ‘The Evolution of the Species’ in Andrew Burrows and Alan Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (OUP 2006). Encyclopedias Halsbury’s Laws (5th edn, 2010) vol 57, para 53. Journal articles Paul 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 journals Graham 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 reports Department 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 blogs Sarah Cole, ‘Virtual Friend Fires Employee’ (Naked Law, 1 May 2009) accessed 19 November 2009. Newspaper articles Jane Croft, ‘Supreme Court Warns on Quality’ Financial Times (London, 1 July 2010) 3.k/sites/files/oxlaw/oscola_2006_citing_international_law.pdf

Author Guidelines

Before beginning the online submission process please read the Information for Authors and make sure you have the followings available: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 4th Edition. </li> </ul> </ul><a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/848869224A0F46AF8A1AF364064CF007" 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/JTA6CLJ8T5/9463F19C103F4828B2E32AAFBDB13F53" 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 language of the article 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 the article and in English</li> <li>Abstracts (200-250 words) both in the language of the article and in English</li> <li>Key words: 5 words both in the language of the article and in English</li> <li>Extended Abstract (800-1000 words) in English (only for articles which are not in English)</li> <li>Grant Support (if exits)</li> <li>Conflict of interest (if exits) </li> <li>Acknowledgement (if exits)</li> <li>References</li> <li>All tables, illustrations (figures) (including title, description, footnotes)</li> </ul> </ul>Manuscript Submission<ul type="disc"> <li>Dergipark anuscript submission site of the journal is: <a href="https://dergipark.org.tr/en/pub/ppil" target="_blank">https://dergipark.org.tr/en/pub/ppil</a></li><li>While uploading Main Document, make sure that the main document has no information that clarify the author’s identity. Due to double blind peer review, Main Document must not include Title Page, the name of author or any other detail that can disclose the author identity. </li> <li>Additionaly, Supplemental File for Review must not include any detail that can disclose author identity as well.</li> </ul>Files to be uploaded separately<ul type="disc"> <li>Copyright Agreement Form</li> <li>Permissions obtained for previously published material if used in the present manuscript</li> <li>Title page</li> <li>Main Manuscript Document</li> </ul><ul type="disc"> <ul type="circle"> <li>The title of the manuscript both in the language of the article and in English</li> <li>Abstracts (200-250 words) both in the language of the article and in English</li> <li>Key words: 5 words both in Turkish and in English</li> <li>Extended Abstract (800-1000 words) in English (only for articles which are not in English)</li> <li>Grant Support (if exits)</li> <li>Conflict of interest (if exits)</li> <li>Acknowledgement (if exists)</li> <li>References</li> <li>All tables, illustrations (figures) (including title, description, footnotes)</li> </ul> </ul><ul type="disc"> </ul>

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Ensure that the following items are present:●    Cover letter to the editorü    The category of the manuscriptü    Confirming that “the paper is not under consideration for publication in another journal”.ü    Including disclosure of any commercial or financial involvement.ü    Confirming that the statistical design of the research article is reviewed.ü    Confirming that last control for fluent English was done.ü    Confirming that journal policies detailed in Information for Authors have been reviewed.ü    Confirming that the references cited in the text and listed in the references section are in line with OSCOLA 4th Edition.●    <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/848869224A0F46AF8A1AF364064CF007" target="_blank">Copyright Agreement Form</a>●    Permission of previously published copyrighted material if used in the present manuscript●    <a href="http://cdn.istanbul.edu.tr/FileHandler2.ashx?f=ppil_title-page_637057799040699150.docx" target="_blank">Title page</a>ü    The category of the manuscriptü    The title of the manuscriptü    All authors’ names and affiliations (institution, faculty/department, city, country), e-mail addressesü    Corresponding author’s email address, full postal address, telephone and fax numberü    ORCIDs of all authors.●    Main Manuscript Documentü    The title of the manuscriptü    Abstract (200-250 words)ü    Key words: 3 to 5 wordsü    Extended Summary (800-1000 words) in English for the articles which are not in Englishü    Grant support (if exists)ü    Conflict of interest (if exists)ü    Acknowledgement (if exists)ü    Referencesü    All tables, illustrations (figures) (including title, description, footnotes)

<a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/848869224A0F46AF8A1AF364064CF007" target="_blank">Copyright Agreement Form</a> <a href="https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/5BA20B6708CA44FAAF80776194D8FB31" target="_blank">Title Page</a>

Public and Private International Law Bulletin

EARLY VIEW

A Review of the Regional Court Decision Regarding the Exemption of Temporary Protected Status Holders in Türkiye from Cautio Judicatum Solvi

Demilitarized Status in International Law and the Militarization Problem of the Eastern Aegean Islands

Some Thoughts on the Principle of Effective Nationality and Citizenship Through Investment Programs

Questioning the Legality and Effectiveness of Economic Sanctions in International Law

Applying the Principle of Best Interests to the Hague Convention on the Civil Aspects of International Child Abduction in Light of the Decisions of the European Court of Human Rights and of Turkish Courts

Consent to Arbitration; Interpretation It in Light of an Actual Judicial Decision

Extension of the Most Favoured Nation Clause to Dispute Settlement Provisions in Bilateral Investment Treaties Which Turkey is a Party of

Legal Representation of Unaccompanied Minors: An Assessment in Terms of Türkiye and Selected European Countries

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