Konkordatoda Yabancı Para AlacaklarıTolga Akkaya
Yabancı para alacaklarının icra ve iflâs hukuku düzenlemeleri çerçevesinde tahsilinde uyulması gerekli temel kurallardan biri, yabancı para alacağının Türk lirasına çevrilmesidir. İcra takibinde takip talebine ilişkin düzenlemeye göre, takip talebinde alacağın tutarı Türk parasıyla belirtilmelidir. Ayrıca yabancı para alacağının hangi tarihteki kur üzerinden talep edildiğinin takip talebinde belirtilmesi gereklidir. Para alacağının Türk lirası olarak talep edilmesi zorunluluğu, iflâs yoluyla takipte de geçerlidir. Yabancı para alacaklarının tahsili, konkordato süreci bakımından da özellik göstermektedir. Konkordatoda alacaklılar arasında eşitliğin sağlanabilmesi için yabancı para alacağının ülke parasına çevrilmesi ve konkordatoya tâbi yabancı para alacakları için Türk lirası olarak ödeme teklifinde bulunulması gerektiği kabul edilmektedir. Bu çalışmada konkordatoya tâbi yabancı para alacaklarının konkordatoda hangi tarihteki kur üzerinden ülke parasına çevrilmesi gerektiği konusunda öğretide ileri sürülen görüşler incelenmiş ve değerlendirilmiştir. Yabancı para alacaklarının durumu, konkordatoya başvuru, konkordato mühleti, konkordatonun tasdiki ve feshi aşamaları bakımından ayrı ayrı incelenmiştir. Sonuç olarak iflâs dışı konkordatoda yabancı para alacaklarının konkordatonun tasdiki tarihindeki kurdan ülke parasına çevrilmesinin isabetli olacağı sonucuna varılmıştır.
Foreign Currency Receivables Regarding Creditor Composition AgreementsTolga Akkaya
One of the basic rules to follow when collecting foreign currency receivables within the framework of enforcement and bankruptcy law regulations is to convert foreign currency receivables into Turkish lira. According to Enforcement and Bankruptcy Law Article 58 regulating the request to issue enforcement proceedings, the amount to be received regarding the issue of enforcement proceedings must be specified in Turkish currency. In addition, the exchange rate needs to be specified for the date the foreign currency receivable is requested. The obligation of claiming currency receivables in Turkish lira is also valid for bankruptcies. Collecting foreign currency receivables also differs in terms of creditor composition agreements. The accepted practice is to convert the foreign currency receivable into the Turkish currency in order to ensure equality among creditors and to offer to pay in Turkish liras for foreign currency receivables subject to creditor composition agreements. This study examines the views put forward in the doctrine about the exchange rate for foreign currency receivables subject to creditor composition agreements needing to be converted into the country’s currency. The study also separately examines the status of foreign currency receivables in terms of application, respite, approval, and termination of creditor composition agreements. As a result of the examination, the study has reached the conclusion that converting foreign currency receivables in pre-bankruptcy creditor composition agreements in accordance with the exchange rate on the date the creditor composition agreement was approved would be appropriate.
One of the basic rules to follow when collecting foreign currency receivables through enforcement proceedings or bankruptcy is to convert the foreign currency receivables into Turkish lira. According to Enforcement and Bankruptcy Law Article 58 regulating the request to issue enforcement proceedings, the amount to be received in said request must be specified in Turkish currency. The exchange rate needs to be specified for the date on which the money receivable has been requested. In bankruptcy proceedings, the foreign currency creditor may collect their receivables in Turkish lira in accordance with the exchange rate on the date of the bankruptcy decision. Foreign currency receivables are also a special issue in terms of creditor composition agreements. When a debtor applies for a creditor composition agreement in Turkey, such as in the case of bankruptcy proceedings, the foreign currency receivable must be converted into the Turkish currency, and any payment offer must be in Turkish lira for foreign currency receivables subject to creditor composition agreements. Although the foreign currency creditor can claim the rate on the maturity or actual payment date, when the foreign currency creditor carries out enforcement proceedings, converting foreign currency receivables into Turkish lira is not possible for creditor composition agreements, as knowing what the exchange rate will be on the maturity or actual payment date is impossible. The status of foreign currency receivables should be evaluated separately for composition with creditors applications, despite, and approval stages. A debtor’s foreign currency assets must be converted on the balance sheet, one of the documents that must be attached to the composition with creditors application, into Turkish lira at the effective buying rate of the Central Bank according to the exchange rate on the date the balance sheet is drawn up. Another document requiring submission to the court regarding a composition with creditors application is the cash flow statement. In the cash flow statement, foreign currency transactions should be expressed in the Turkish currency at the exchange rate on the date the cash flow is realized. In order to determine whether any possibility of success exists regarding the composition with creditors proposal and to give the debtor a definite deadline, the real status of the debtor’s assets and liabilities should be determined by the commissioner, and a report should be submitted to the court. The commissioner must determine the value of the foreign currency debts based on current records in the debtor’s commercial books. The foreign currency creditor must convert their receivables into Turkish lira on the date of the deadline in the final composition with creditors agreement and notify to the commissioner. However, different opinions have been put forward regarding which date to use for determining the exchange rate according to which the foreign currency receivables will be converted into Turkish lira. In terms of the view of the principle of equality with which this study is in agreement, foreign currency should be converted into Turkish lira according to the exchange rate on the date the composition with creditors agreement is approved. This is because the creditors are paid according to what the composition with creditors projects if the agreement is approved. When the exchange is made as late as possible, the foreign currency creditor can acquire their receivables in accordance with the most recent exchange rate. Once a composition with creditors agreement is approved, the foreign currency creditor cannot claim compensation by claiming they have suffered damage, even if the value of the foreign currency increases within the terms stipulated for the payment of the debt. The obligation to convert the foreign currency receivable into Turkish lira regarding composition with creditors agreements is only valid for the debtor who applied for the composition with creditors agreement. However, once a third party becomes a guarantor for the debtor, liability of surety is maintained as a foreign currency debt. If the creditor wishes to pursue enforcement proceedings against the guarantor, the provisions of the general law regarding the conversion of the foreign currency receivables into the Turkish currency shall apply. Foreign currency receivables should also be evaluated in terms of the use of the right of clearing regarding composition with creditors agreements. Although which date the exchange will take place on is debatable, this study agrees with the view that it should be converted into the foreign country’s currency according to the exchange rate on the date the right of exchange is exercised within the terms of the composition with creditors agreement. Due to the composition with creditors agreement by cessio bonorum resulting in the finalization of the composition with creditors approval decision and the effects of the composition with creditors deadline being maintained until this decision is finalized, the foreign currency creditor should determine the amount in accordance with the exchange rate on the date of the composition with creditors approval decision was finalized. Because bankruptcy decisions take place with regard to the composition of creditors agreement after the bankruptcy, the foreign currency receivables should be converted into the Turkish currency by taking into consideration the exchange rate on the date of bankruptcy is declared.