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

Işık

Assist. Prof. Dr.

This article deals with a specific problem regarding the interpretation and scope of arbitration agreements with a focus on international arbitration. In practice, the parties to a fixed-term contract regarding a continuous relationship (e.g., lease agreement, distributorship agreement) commonly continue the relationship de facto without explicitly entering into a new agreement at the end of the term. In such a case, the problem arises whether the arbitration clause in the original written contract covers disputes arising out of the legal relationship that continues beyond the initially agreedupon term.To tackle this problem, the article firstly inquires as to the legal consequences of such de facto continuation of a legal relationship under Turkish law. The study hereby submits that such a de facto continuation shall, as a rule, be construed as a tacit extension (i.e., renewal, prolongation) of the same contract.&nbsp;The article continues with general considerations regarding the interpretation of arbitration agreements, followed by discussions the applicable law to the interpretation of arbitration agreements. The prevailing view is that the law applicable to substantive issues regarding the arbitration agreement, which is the one also governs the issue of interpretation. The trend in international arbitration calls for a broad interpretation of the arbitration agreement. The ratio of such approach is that business persons acting in good faith can easily be presumed to desire a one-stop method to resolve their given disputes. In particular, the Swiss Federal Court more than once has stated in its decisions that once parties’ consent to arbitrate has been ascertained, the scope of the arbitration agreement shall be interpreted extensively.The article also questions the role Article II of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) with regard to the interpretation of arbitration agreements, whereby the said convention applies. According to one view in literature, the interpretation of arbitration agreements should be done in light of the pro-arbitration objectives of the convention. This view relies on the suggestion that Article II of the NYC mandates an international rule of arbitration agreements subject to the NYC. If this view is adopted, the interpretation of arbitration agreements would be conducted irrespective of the national law applicable to the arbitration agreement.Even if the view suggesting that Article II of the NYC imposes an international rule for interpretation of arbitration agreements be not followed, or in cases where the NYC does not apply, the study hereby argues that Turkish courts should interpret arbitration agreements broadly and in a pro-arbitration manner in line with the trends in international arbitration. The Turkish legislator has openly stated their intention to draft a legal framework in line with trends in international arbitration. The preamble of the International Arbitration Law states that this law was prepared “based on the model law prepared by the United Nations Commission on International Trade Law (UNCITRAL) and the contemporary understanding, developments and principles in comparative international arbitration law.” Similar language has been used in the explanatory notes on rules regulating domestic arbitration. The judiciary must take into account these intentions of the legislator.However, a brief look at case law of Turkish Court of Cassation reveals the court’s tendency to interpret arbitration agreements restrictively. Decisions by first instance courts are found that conform to the trends in international arbitration but that were later overturned by the Court of Cassation. This article examines one example of such a decision. The analysis shows that the Court of Cassation’s approach to the issue is neither compliant with the views adopted in this article nor with the trends in international commercial arbitration.The conclusions reached can be summarized as follows:1- In contrast to the Court of Cassation’s decision, a fixed-term distributorship agreement whose parties continue the relationship de facto without entering into a new agreement explicitly at the end of the term should be construed as a tacit extension of the same contract.2- When parties extend an existing contractual relationship, the arbitration agreement shall also cover the disputes relating to the extended period, unless the parties’ will to the contrary can be ascertained. This outcome is in line with the presumed intentions of business people acting in good faith. The fact that the parties did not re-express their intention to arbitrate in accordance with the written form requirement at the time of the extension of the contract does not in itself indicate their intention to resolve the disputes before the state courts for the extended period. This conclusion is also consistent with the practice of international arbitration and the opinions on Article II (2) of the NYC. However, in exceptional cases where parties in addition to extending the term of the contract also substantially modify their contractual rights and obligations, the re-expression of their intention to arbitrate may be necessary.3- The parties may also establish a new contract with similar content following the expiration of the first contract at the end of a certain period. In this case, whether the arbitration agreement regarding the first contract will also cover the new contract should be evaluated. This evaluation requires an interpretation of the parties’ intentions. The starting point for this interpretation will be the text of the arbitration agreement. However, the standard arbitration clauses that are generally used in practice state that disputes “in connection with” or “relating to” the contract in which the clause is included will be resolved through arbitration, and such arbitration clauses are interpreted broadly in international arbitration practice. This assessment should take the relationship between the two contracts into account. If the second contract is deemed to be a continuation of the previous contract, economically if not also legally, or to complement the first, the arbitration agreement in the first contract should cover the second contract as well. Of course, the solution to this problem ultimately requires the interpretation of the parties’ intentions. In practice, similar problems are also encountered in cases where a settlement agreement without an arbitration clause has been concluded in relation to the main contract containing an arbitration clause, or in cases where more than one contract has been concluded for the same work or project and only one or more of them contain an arbitration clause. In the practice of international arbitration practice, there is a tendency to interpret the arbitration agreement broadly in such cases. Unless a different dispute resolution method has been agreed upon in the contracts that do not contain arbitration clauses and no other facts are found to support the parties’ intention to the contrary, to assume that the parties’ intention is to resolve their disputes with a single dispute resolution method would be appropriate.4- The decision of the 11th Civil Chamber of the Turkish Court of Cassation, as well as previous decisions by the Court of Cassation on similar matters, does not appear in line with the conclusions reached above or with the practice of international arbitration. When analyzing the legislature’s recent regulations on arbitration, the legislature is seen to have aimed to establish a legal order in accordance with the contemporary understanding, developments, and principles in comparative international arbitration law. Having the courts adopt a more arbitration-friendly approach in their legal practice and in line with this aim of the legislators would be appropriate.

Is an Arbitration Agreement in a Fixed Term Contract Enforceable in the Event of the De Facto Continuation of the Relationship at the End of the Term? Critique of a Recent Decision by the 11th Civil Chamber of the Court of Cassation

@JOURNAL_BOX_EARLYVIEW

Bilgin

Prof. Dr.

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

Hümeyra

Assist. Prof.

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

Cemre

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

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

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

Merve

The Discretionary Power of the Administration in Acquiring Turkish Citizenship Through Marriage

Etienne

Incorporation of Rules Governing the Enforcement of Prison Sentences Imposed by the International Criminal Court ICC: An African Perspective

Ceren

Res. Assist. Dr.

The non-refoulement principle is a concept that prohibits States from returning a refugee or asylum seeker to territories where their life or freedom would be at risk of being threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.Article 33 of the 1951 Refugee Convention includes the most comprehensive regulation on the principle of non-refoulement, according to which:1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion2. The benefit of the present provision may not, however, be claimed by a refugee against whom reasonable grounds exist for regarding them as a danger to the security of the country in which they are, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.	Although the principle is basically associated with refugee law, the concept is not restricted to refugee law, as it also has an important application area within the framework of human rights treaties. This principle is supported by human rights treaties that preclude refoulement that would expose the concerned individual to the danger of torture or cruel, inhuman, or degrading treatment or punishment. While the principle of non-refoulement is clearly included in some human rights treaties such as the American Convention on Human Rights (1969) and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984), the principle is handled in relation to other provisions of some human rights treaties, such as the European Convention on Human Rights (1953) and the International Covenant on Civil and Political Rights (signed 1966, enacted 1974). This principle is especially associated with prohibiting ill treatment, which is a non-derogable right in these human rights treaties, notwithstanding circumstances of public emergency. In other words, no exceptional situation is stipulated when applying the principle of non-refoulement within the context of human rights treaties that are contrary to the 1951 Refugee Convention.This research aims to analyze this principle as evaluated within certain articles of the European Convention on Human Rights. The first section of this paper will present the principle of non-refoulement in international law, particularly within the framework of the 1951 Refugee Convention. The study will then discuss the relationship between the principle and human rights law.The second section of this paper looks at the extraterritorial application of the 1951 Refugee Convention and the European Convention on Human Rights. The protection stipulated by the application of non-refoulement principle is not restricted by high contracting party territory and is accepted as falling under the jurisdiction of a State in circumstances where a person can be said to be under the authority and control of that State within the scope of the ECHR. Therefore, a person can be considered to be within a State’s jurisdiction based on the circumstances, after which the state is bound to comply with this protective duty. In this context, where the threat of ill-treatment stems from is unimportant, whether the person is within the territory of that State, in their country of origin, or in a third State. Moreover, the application of the principle within the framework of the European Convention on Human Rights does not require a person to have refugee status. The principle is applied to deportation, extradition, expulsion, and refoulement cases regardless of whether the person has refugee status or not.The third section this paper will analyze the case law under the European Convention on Human Rights within the scope of how the principle is applied. The European Court of Human Rights accepts that refoulement would be a violation of Article 3 (prohibition of torture) of the Convention if substantial grounds exists for accepting that the applicant risks a violation of their rights under Article 2 (right to life) and Article 3 should they be returned to the other state. Article 3 of the European Convention on Human Rights envisages applying non refoulement to such situations, notwithstanding acts that have taken place outside a country’s territory, acts committed by or under the responsibility of another state, or conduct that has yet to occur. When applying the principle, however, the European Court of Human Rights make a distinction with regard to the relevance of the rights protected by Articles 2 and 3 and other rights laid down in the European Convention on Human Rights. The Court has determined a higher threshold of a flagrant breach for Article 5 (right to liberty and security), Article 6 (right to a fair and public hearing), Article 8 (protection of family and private life), and Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights.

Application of the Principle of Non-Refoulement Within the Context of the European Convention on Human Rights

Elif

Postcolonial Approaches to International Human Rights Law: The TWAIL Case

Sibel

Law applicable to individual employment contracts are regulated under Article 27 of the Turkish Private International and Procedural Law No. 5718 (MÖHUK) in terms of the protection of a weaker party. In this respect, the parties (employer and employee) are not completely free to choose any law they want. Thus, the parties can only choose the law that does not deprive the employee of the protection afforded to them through the legal provisions of the country in which the employee habitually carries out their work. The connecting factor adapted for application to employment contracts is affiliation to the place where the employee habitually carries out his work. The peremptory norms whose purpose is to protect the employee regarding the law of the workplace will indicate the employee’s level of protection. In this respect, MÖHUK differs from the Rome I Regulation on law applicable to contractual obligations. MÖHUK does not allow the law to be chosen that may result in the employee being deprived of the protections afforded to them by contractual provisions that cannot be deviated from regarding the law of the habitual place of work. However, while the Rome I Regulation also does not allow the law to be chosen that may result in an employee being deprived of the protection afforded to them by contractual provisions that cannot be deviated from regarding the law of the habitual place of work, this also applies to the law of the country where the place of business through which the employee is engaged is situated, with the law of the country being more closely affiliated than is indicated in Paras. 2 and 3 of Art. 8 in Rome I Regulation.In cases where the parties did not choose a law, the applicable law must be determined by the objective criteria, which is the law of the habitual place of work (lex loci laboris). However, in cases where the employment contract is more closely affiliated with another law, that law may be applied (MÖHUK, Art. 27, Para. 4). Para. 4 of Art. 27 is not an escape or exception clause but rather a main rule that is subject to the judge’s discretion. The general precedent is that the judge must apply this provision in favor of the employee.In cases where both parties are Turkish, or domiciled or residents in Türkiye, where the contract is written in Turkish, or when the wage is paid in Türkiye, the employment contract will be assumed to be closely affiliated with Turkish law. Foreign service contracts that have been prepared by the Turkish Employment Agency in particular are&nbsp;assumed to be closely affiliated with Turkish law and to be due to Turkish employees being taken abroad from Türkiye by Turkish employers. Thus, the applicable law under Art. 27 of MÖHUK would be Turkish law.These contracts include provisions stipulating that some issues will be governed by the legislation of the country where the employee works. Turkish writers argue that these provisions involve the choice of law, and this choice of law as stipulated in the Terms and Conditions that are the only mode for foreign service contracts, is valid under Turkish law.In my opinion, the provisions in a contract regulating issues such as official holidays, work hours, and overtime pay are to be governed by the legislation of the country where the employee works and such provisions shall not be qualified as choice of law agreements in terms of private international law. These are contract provisions and incorporate the law of the workplace by reference. Thus, the validity of these contract provisions and the applicability of the law of the workplace will be subject to the law applicable to foreign service contracts.Foreign service contracts are prepared as Terms and Conditions by the Turkish Employment Agency. A contract involving choice of law through terminology or by incorporating some workplace rules by reference as included in the contract must comply with the Turkish Code of Obligations (Act No. 6098 dated January 11, 2011). Under foreign service contracts, employers again are obliged to inform employees about the work conditions and situations that are subject to the law of the workplace in writing. Thus, the employee must know about foreign law. When an employer fails to inform an employee, the terms regarding a choice of law or an incorporation of some rules by reference will not be binding.In the absence of choice of law foreign service contracts will be governed by the law of the country where the employee habitually carries out their work. However, these contracts are more closely affiliated with Turkish law due to both parties being Turkish, domiciling in Türkiye, the contract being written in Türkiye and prepared the Turkish Agency, or the payment being transferred to Türkiye. In this respect, I argue that a judge will have no need to find out the content of the law of a workplace in order to make a comparison and figure out which law is in favor of the employee unless the employee in particular claims that law.On the other hand, in cases where Turkish law is applied to a foreign service contract, Arts. 31 and 33 of MÖHUK will be taken into consideration. Under Art. 31, the ruling to override the mandatory rules of a third country that is closely affiliated with the contract may occur. Again, the law of the country where performance is to be rendered will be taken into consideration with regard to an act of performance under Art. 33 of MÖHUK.Under Art. 6 of MÖHUK, Turkish rules that qualify for overriding mandatory rules will additionally apply to an employment contract irrespective of applicable law as long as the place of work is situated in Türkiye. In cases where the workplace is abroad, however, the Turkish override of mandatory rules will not directly apply. Still, the policy underlying these provisions will reflect the public policy of Türkiye. Moreover, the constitutional values, economic and social regime of Turkish employment law, and policies safeguarding the social state will indicate the scope of Turkish public policy. Accordingly, in cases where a foreign law contradicts Turkish public policy, that law will not apply in Turkish courts. Turkish law will be applied when necessary under Art. 5 of MÖHUK.

Law Applicable to Foreign Service Contracts

Habip

The International Law Commission (ILC) was established with the aim of promoting the codification and progressive development of international law. Over the years, it has prepared numerous important treaties, such as the 1961 Vienna Convention on Diplomatic Relations and the 1969 Vienna Convention on Law of Treaties. These conventions are now considered among the elemental texts of the current international legal system.As a result of its institutional relations and expertise, the ILC has become an important legal authority that is respected for its work methods and outputs. As a subsidiary organ of the United Nations (UN) General Assembly, ILC members have increased over the years and been chosen from the candidates nominated exclusively by the governments of UN member states to assure that “the Commission as a whole representation of the main forms of civilization and of the principal legal systems” (Statue of the ILC art. 8). Meanwhile, the ILC has also developed well-operating work processes to ensure the necessary expertise in its outputs.This study first examines the ILC’s work methods and structural formation to gain a sense of frequently used terms and concepts regarding the Commission and its outputs. Although the Statute of the ILC (UNGA Res. 174(II), 21 November 1947) provides a fundamental structure for its organization, work methods, and expected output, the ILC’s current operational procedures may not be immediately evident from this statute alone. Therefore, this study provides information based on official sources such as annual reports and yearbooks to reflect a concrete picture of the ILC’s current practices.Throughout its 75 years of service, the ILC has continuously adapted to changes and satisfied expectations. It has strived to maintain a balance among the various needs, demands, and approaches concerning the ILC’s structural formation, mission, and forms of outputs it has produced.The present study surveys how the ILC has balanced different factors under three themes, firstly by reviewing the balance between codification and progressive development as a repeating subject in the ILC’s activities. The difficulty in distinguishing these tasks has been apparent since the ILC’s beginning and it wasn’t able to maintain this for long. Currently, the ILC does not differentiate between these tasks, nor does it declare any qualification regarding its outputs purely on this distinction. What has prevailed is the first theme of the composite idea of these two concepts.The second theme is about what form the ILC’s outputs take. Preparing soft law texts rather than hard law texts has been an obvious trend in the ILC’s works. With the turn of the century, most of the ILC’s outputs were not prepared for being converted into&nbsp;a convention, so the ILC recommend alternative ways of utilizing these texts. When looking at the reasons for this, the trend in changing expectations and diversifying topics comes to the forefront. A considerable percentage of fundamental fields in the international legal system has been codified, and states suffer from the so-called treaty fatigue. Thus, preparing new draft articles to be converted to treaties is not prominently listed among state expectations. Instead, the ILC has turned to different forms for elaborating upon its previous works in complimentary codification and has also preferred the best forms regarding the ripeness of the field for codification and progressive development. These new forms are relatively convenient to study or put on the work schedule with their soft effects due to the reduced opposition among states. However, to think of these changes in form as a decrease in the ILC’s authority or the quality of its work would be erroneous. Current studies and remarks do not indicate a decline in impact regarding the ILC or its outputs.Lastly, the study inspects the structural balancing efforts with respect to the number of ILC members and profiles of both the members and the officers. Regional representation is the principal practice with regard to the ILC’s structure and work processes. Members are chosen from already defined regional groups in assigned numbers. In order to strengthen the rule of regional representation, the officers that establish the Bureau of the ILC are chosen on a rotating term. Thus, each post is held by each regional group for a normal term of office. Nonetheless, some problems exist regarding the ILC’s structure. The gender gap is obvious, and the number of Special Rapporteurs from specific regional groups and certain legal systems is also problematic.Through this analysis, the study demonstrates that the ILC as an organizational part of the UN is in a continuous endeavor of change and balance to maintain its acceptance and usefulness. This reconciles the need for clear norms by way of codification and the necessity of adapting new regulative frames by way of progressive development. The ILC adapts to the changing grounds of international order and state preferences in order to accommodate new demands and provide the necessary normative guide. The ILC also strives to represent the differences of its constituents, albeit with some deficiencies. As such, the ILC remains an important institution in the development and promotion of international law.

Evolution of the International Law Commission: The Pursuit of Functional and Structural Balance

@JOURNAL_BOX_CURRENT

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

@JOURNAL_BOX_FEATURED

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).

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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 Turkish and in English</li> <li>Abstracts (200-250 words) Turkish and in English</li> <li>Key words: 5-15 words Turkish and in English</li> <li>Extended Summary (800-1000 words) in English (only for articles which are Turkish)</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 Turkish and in English</li> <li>Abstracts (200-250 words) Turkish and in English</li> <li>Key words: 5-15 words Turkish and in English</li> <li>Extended summary (800-1000 words) in English (only for articles which are Turkish)</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

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

Is an Arbitration Agreement in a Fixed Term Contract Enforceable in the Event of the De Facto Continuation of the Relationship at the End of the Term? Critique of a Recent Decision by the 11th Civil Chamber of the Court of Cassation

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