Acentenin Müvekkilini Davada Temsil Yetkisine İlişkin 6102 Sayılı Türk Ticaret Kanunu’nda Düzenlenen Hükümlerin Yabancı Mahkeme Lehine Akdedilen Yetki Anlaşmalarına EtkisiCemre Tüysüz
Türk hukukunda yetki anlaşması ile borç ilişkilerinden kaynaklanan ve yabancılık unsuru bulunan uyuşmazlıkların çözümü için yabancı bir devlet mahkemesinin seçilebilmesi kabul edilmiştir. Bunun yanında, acentelerin aracılık veya akdettiği sözleşmelerden kaynaklanan uyuşmazlıklarda müvekkilini temsil yetkisi, Türk hukukunda kabul edilmektedir. Bu yetki doğrultusunda da müvekkile izafeten açılacak davalarda yetkiye ilişkin uygulamada sorunlar ortaya çıkmaktadır. Milletlerarası usul hukukunda bu durum yetki anlaşması ile yabancı mahkemenin seçildiği durumlarda, acenteye karşı müvekkiline izafeten açılacak davanın, yetki anlaşması ile seçilen mahkemede mi yoksa Türk mahkemelerinde mi görüleceği konusunda ortaya çıkmaktadır. Yabancı mahkemenin seçildiği yetki anlaşmasının, müvekkile izafeten acenteye karşı açılacak davalarda uygulanmayarak, davanın Türk mahkemelerinde görülmesinin mümkün olup olmadığı, milletlerarası usul hukuku ve TK m 105/2 kapsamında yapılacak inceleme ile tespit edilmelidir. Bu çalışmada mevcut düzenlemeler ışığında acentenin müvekkilini davada temsil etme yetkisi milletlerarası usul hukukundaki yetki anlaşmaları açısından incelenmiştir.
The Impact of the Agency’s Authority to Represent their Clients Stipulated in Turkish Commercial Code No 6102 on Jurisdiction Agreements in favor of Foreign CourtsCemre Tüysüz
According to Turkish law, parties may appoint foreign courts regarding the disputes to arise from obligations with a foreign element. Besides, authority to represent the client has been granted to the Agency regarding the transactions conducted by them, according to Turkish law. Concerning this authority, problems occur regarding the claims directed to the agency on behalf of the client. These problems may arise in private international and procedural law when parties include a venue clause to their agreements and appoint a foreign court. Determination of which courts shall have the jurisdiction over the claims regarding the transactions concluded by the agencies shall be made through the examination of Private International and Procedural Law and Turkish Commercial Code Art. 105/2. This article focuses on the situations on such examples and to determine whether apply to the foreign courts mentioned in the venue clause or to the Turkish courts, by the regulations in Turkish law, regarding the agency’s authority to represent the client.
There are three parties within the commercial relationships which are concluded via agencies. The first party is the agency; who is an aid, performing on behalf of their client. The second party is the client, main commercial party which instructs agency to perform on their behalf. The third party is the customer, which is entering into a transaction with client by signing an agreement with the agency. Agencies perform and conclude commercial transactions on behalf of their clients. Client initiates commercial relationships with customers and pays fees to the agency according to their performance. According to Turkish law, agencies have the authority to represent their clients and file claims against customers on behalf of their clients regarding the disputes arising from the agreements which they concluded. It is also stipulated at Turkish Commercial Code that customers may address their claims from the Client, to the agencies as well (Art. 105).
The role of the agency in the aforementioned lawsuits is important. Therefore in the first section of this study, the role of the agency in the lawsuits regarding the agreements they concluded has been examined. Aforesaid examination has been made through the Turkish commercial law and procedural law doctrine. According to procedural law, it is mainly accepted that, anyone who is presented as plaintiff and defendant is a party of that lawsuit. However, the regulations in Turkish Commercial Code regarding the role of agencies mention otherwise. Because it is mentioned that decision given by the court shall not be enforced against the agency, it can only be enforced against the client, common interpretation in procedural law shall not be applied here. Agencies shall not be deemed as a party of the lawsuits regarding the agreements conducted by them.
As it is accepted that the agencies are not the party of the lawsuits, their actions must be classified to evaluate further procedural matters. It is legally acceptable that agencies act as a proxy for the clients in the lawsuits, because they can not be deemed as a party. The second part of the study focuses on the jurisdiction agreements in which foreign courts are appointed. Parties may appoint foreign courts regarding the resolution of their disputes in the agreement they conclude. Conditions required for the appointment of foreign courts stipulated at Art. 47 of Code on Private International and Procedural Law, numbered 5718. Validity of jurisdiction agreements in which foreign courts were appointed, disputes shall have three conditions: foreign element, arising from an obligational relationship and the non-existence of exclusive jurisdiction of Turkish courts.
Foreign element means having a relation with more than one state. This may occur in various forms, e. g. having citizenship of a foreign country, having a domicile or habitual residence in a foreign country, performing the agreement in a foreign country, etc. There is no limitation for the occurrence of the foreign element. The second condition regarding the validity of the jurisdiction agreement is dispute shall arise from an obligational relation. Therefore any disputes regarding the family law and non-obligational relations shall not be subject to a jurisdiction agreement. The third condition is that there shall be no Turkish courts with an exclusive jurisdiction. Exclusive jurisdiction of Turkish courts effect the validity of jurisdiction agreement. When a Turkish Court has exclusive jurisdiction on the dispute, the jurisdiction agreement shall be null and void.
The main result of a valid jurisdiction agreement in Turkish Law is that foreign court has an exclusive jurisdiction over the dispute. If the lawsuit is brought up in Turkish a court, objection regarding the Turkish courts’ international jurisdiction shall be accepted and the claims shall be declined accordingly. The third section of this study focuses on the effects of the regulation in Turkish Commercial Code (Art. 105) regarding the agencies’ authority to represent their client to the jurisdiction agreements. Authority to the agencies is given for creating opportunity to bring up a lawsuit in Turkish courts against foreign clients by the customer resides in Turkey. Although agreement concluded via agency has a jurisdiction clause in favor of a foreign court, customer has an opportunity to bring up a lawsuit in Turkish courts, as well. Therefore, customer has a choice between Turkish courts and a foreign court mentioned in jurisdiction agreement. However, Turkish Court of Cassation has a different approach to the matter. According to three Court of Cassation decisions given in 2020, the jurisdiction agreements are null and void, due to the exclusive jurisdiction of Turkish courts. Court of Cassation ruled that the Art. 105 of the Turkish Commercial Code grants an exclusive jurisdiction to Turkish courts. Therefore, any jurisdiction agreements for the appointment of foreign courts signed by agencies shall be null and void. The decision regarding the exclusive jurisdiction is not appropriate and acceptable with respect to private international and procedural law. In this study, it is aimed to focus on the effects and critique of the article 105 of Turkish Commercial Code and the recent decisions of Court of Cassation.