Category: Publications

Essential Financial Literacy for Lawyers
This article, written by Av. Haldun Barış Haldun Barış, has also been published on the website Hukuki Haber.

Commercial life has evolved and continues to evolve into a complex, fast-paced, and interdisciplinary professional process. As legal professionals, it is essential for us to adopt a more holistic approach when providing legal services to clients in the commercial sphere. Therefore, it is crucial to have a good understanding of certain concepts that are frequently encountered in commercial life, which could also be referred to as financial literacy. Especially for lawyers working in fields such as contract law, commercial law, capital markets law, competition law, and tax law (in short, those providing holistic consulting/services to companies), the ability to quickly read financial records and statements, and detect tricks or fraud, is very important. For this reason, I have decided to write this article to explain and interpret some basic concepts and to mention certain laws. The concepts discussed and the specific laws I explain in this article are as follows:

Balance Sheet, Current Assets, Non-Current Assets, Depreciation, Current Ratio, Company with Competitive Advantage, Goodwill, Consolidation, Bond, Lease Certificate, Short Selling, Derivative Transaction, Difference Between Manipulation and Speculation, Investment Fund, Repo, Offshore Banking, Principle of Honest Representation.

Blue Sky Laws, Sunshine Laws

You can learn the story of a company and many of its details from its activity reports. However, the actual data about the company is found in its financial statements. A company’s periodic financial statement is called a balance sheet, and balance sheets provide information not only about the specific period in question but also about the company’s business, its history, and even its future.

Article 68 of the Turkish Commercial Code (TCC) defines the balance sheet as follows:

TCC 68: “The merchant is required to prepare a financial statement (respectively the opening balance sheet and the annual balance sheet) that shows the relationship between the amounts of assets and liabilities at the beginning of commercial activity and at the end of each business period. In the opening balance sheet, the provisions of the year-end financial statements and the year-end balance sheet apply.

(2) The merchant prepares an income statement.

(3) The balance sheet and income statement together constitute the year-end financial statements. The provisions of Article 514 regarding the Turkish Accounting Standards are reserved.”

Similarly, Article 73 of the TCC regulates the contents of the balance sheet:

Article 73 – (1) Unless otherwise provided in the Turkish Accounting Standards, the balance sheet shall show the fixed and current assets, equity, liabilities, and period-adjustment accounts as separate items, with sufficient detail and in a schematic format.

(2) Fixed assets include those assets that have been continuously allocated to the business.”

When we look at a period’s balance sheet, we first encounter two main divisions: assets and liabilities. Under the liabilities section, there are two subheadings: current assets and non-current assets. Current assets can be described as assets that can be converted into cash in the short term. Non-current assets, on the other hand, refer to assets that can be converted into cash more slowly. For example, cash, gold, etc., in the company’s cash register are current assets; the company’s factory, real estate, etc., are non-current assets.

Within current assets, various items are encountered. Particularly, cash and cash equivalents, trade receivables, and inventory are important items that give many clues about the company. In non-current assets, trade receivables and real estate are key items.

It would be appropriate to mention the “goodwill” item that may appear in the non-current assets section of balance sheets. Goodwill refers to the positive difference between the cost of acquiring a previously acquired company and its fair market value.

In the liabilities section, three main subheadings exist: short-term liabilities, long-term liabilities, and equity. Short-term and long-term liabilities represent the company’s financial obligations according to their maturity. Equity includes the company’s capital, reserves (a portion of profits must be left in the company according to a certain percentage of profit distribution), profits and losses from previous years, foreign currency differences, and revaluation amounts. After these basic tables, a consolidated, integrated income and expenditure statement appears. Some aspects of these tables provide important information about the company.

Let’s explain some aspects with an example: Suppose a company’s current assets include cash and cash equivalents amounting to 500 million TRY, and its trade receivables amount to 1 billion TRY. Its inventory is 3 billion TRY (in current assets), short-term liabilities are 3 billion TRY, the cost of sales is 50 million TRY, and depreciation expenses are 750 million TRY. The company’s capital is 15 billion TRY. When analyzing this company, we might interpret that its inventory is high, it might be a production company if its non-current assets are high, depreciation expenses are high, short-term liabilities are high compared to cash equivalents, there may be problems in its production and sales cycle, and the company might face cash flow issues in the short term. However, these comments are basic and are given for example purposes. A detailed examination should be conducted. The example illustrates that financial statements can provide significant data about a company even when we have no prior knowledge of it.

Of course, one must pay attention to potential fraud and manipulations in financial statements.

After examining the basic concepts related to financial statements, I would like to explain other fundamental concepts that I consider important in commercial law:

Bond: Securities issued by governments or companies that promise an interest return at a specific maturity date.

Lease Certificate: A security issued by a leasing company allowing the earning of returns from a specific percentage of an asset.

Short Selling: A common transaction in stocks where you sell a stock that you do not own by borrowing it and then repurchase it at a lower price to return the borrowed amount.

Derivative Transaction: Transactions made based on an asset’s future price or maturity, agreed upon at the time of the deal.

Difference Between Manipulation and Speculation: Manipulation is defined as “Market Fraud” under Article 107 of the Securities Market Law, with various types. Speculation is not a crime but refers to taking positions or making trades based on current stock prices and future predictions.

Investment Fund: An investment tool where money and securities are professionally managed and tracked.

Repo: The sale of securities with a repurchase agreement to provide cash flow.

Offshore Banks: Known as “offshore banking,” this system operates in tax haven countries and some island nations where individuals not residing in these countries can manage their money in advantageous accounts with low or no taxes and little regulation.

Principle of Honest Representation: Regulated under Article 515 of the TCC, it states that financial statements of public companies must be truthful, clear, understandable, and accurate, in accordance with the Turkish Accounting Standards.

Finally, I would like to mention a few “special” laws that I find important in financial law:

Blue Sky Laws

These laws were developed in the 1900s in the USA to prevent fraudulent activities. They require securities issuers to provide accurate information and brokers to obtain licenses, thus protecting investors from false promises and misleading information.

Sunshine Laws

Sunshine Laws are regulations that require transparency, openness, honesty, and the use of accurate data in commerce.

References:

BUFFET Mary, CLARCK David; Warren Buffet ve Finansal Tabloların Yorumlanması için Küçük Kitap, Gedik Yatırım; Scala Yayıncılık

Blue Sky Law, (https://www.britannica.com/topic/blue-sky-law#:~:text=blue%20sky%20law%2C%20any%20of,lots%20in%20the%20blue%20sky.) (Access Date:

Sunshine Laws, https://www.leapxpert.com/glossary_term/sunshine-laws/

Conceptual Framework for Financial Reporting, (https://www.kgk.gov.tr/Portalv2Uploads/files/DynamicContentFiles/Türkiye%20Muhasebe%20Standartları/TMSTFRS2018Seti/Finansal%20Raporlamaya%20İlişkin%20Kavramsal%20Çerçeve/KÇ_2018.pdf) (Access Date: 14.12.2023)

Single Chart of Accounts, https://ismmmo.org.tr/dosya/415/Mevzuat-Dosya/tekduzhesapplani.pdf (Access Date: 14.12.2023)

REGULATIONS

TCC No. 6102

Securities Market Law No. 6362

Conceptual Framework for Financial Reporting Notification No. 209, Official Gazette, Thursday, January 27, 2011

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Developments and Practices in the Yacht Law Sector in Turkey

Due to its geographical structure, surrounded by seas on three sides and its strategic position bordering the Mediterranean, Aegean, and Black Seas, Turkey holds significant potential in the yacht sector. The high capacity of Turkish marinas, the advantages they offer in tourism, and the recent success in yacht production have contributed to the development of yacht law. Yacht law covers a wide range of legal regulations and practices, including ownership, registration, flagging, financing, operation, insurance, and the commercial use of yachts.

Among the countries bordering the Mediterranean and the Aegean, Turkey is one of the most attractive regions for yacht tourism. Coastal cities like Bodrum, Marmaris, Göcek, and Fethiye welcome thousands of domestic and foreign yachts annually, making Turkey an essential destination for yacht owners and operators.

The General Framework of Yacht Law

The yachting sector in Turkey began developing in the 1980s and experienced rapid growth from the 2000s onwards. During this period, Turkey became a country of interest for foreign yacht owners and investors. Legal developments in the field of yacht law progressed in parallel with this growth. Significant developments have been recorded, especially in legal regulations related to yacht construction, sales, and customs duties.

Yacht law is a specialized field under Maritime Trade Law, and yachts are subject to different regulations depending on whether they are used for commercial or private purposes. Yacht law in Turkey is primarily regulated by laws such as the Turkish Commercial Code, the Maritime Labor Law, and the Turkish Civil Code. Furthermore, international agreements, particularly the United Nations Convention on the Law of the Sea (UNCLOS), also play a role in shaping the international legal framework to which Turkey is a party.

Regulations on Yachts in the Turkish Commercial Code

The Turkish Commercial Code (TCC) provides the primary legal framework that comprehensively addresses regulations related to maritime trade. According to the TCC, yachts are classified among vessels subject to maritime trade, and therefore must be registered, inspected, and insured under the Code. For a yacht to fly the Turkish flag, the owner must be a Turkish citizen. However, foreign-flagged yachts can also operate in Turkish territorial waters for tourism purposes, although this can result in different legal outcomes regarding inspections and taxation.

The TCC divides yachts into two categories: “commercial yachts” and “private yachts.” Commercial yachts are those that can be chartered through charter agreements, while private yachts are reserved for the personal use of their owners. This distinction directly impacts the operational conditions, insurance, and tax obligations of the yacht.

Charter Agreements and Commercial Yachts

The charter agreement is a crucial aspect of maritime law. These agreements regulate the leasing of ships or yachts for a specified period or voyage. They outline the obligations and rights of both the owner and the charterer. Charter agreements are generally divided into three main types:

1. Bareboat Charter (Demise Charter):

• The yacht comes under the full control of the charterer, who provides the captain and crew.
• The charterer is responsible for the management, maintenance, and all expenses of the yacht.
• Ownership remains with the owner, but operational control is with the charterer.

2. Time Charter:

• The yacht is leased for a specific period, but the owner provides the captain and crew.
• The charterer determines the yacht’s route and operations, while the owner maintains technical management.
• The charterer covers expenses such as fuel and port fees, while the owner handles crew salaries and maintenance.

3. Voyage Charter:

• The yacht is chartered for a specific route or voyage.
• The owner retains full control of both technical and operational management.
• The charterer typically pays for the yacht’s carrying capacity, while the owner covers operational and maintenance costs.

The commercial yacht charter sector is an internationally growing industry, and those looking to operate in this field must ensure that charter agreements are properly drafted.

Flag Regulations for Yachts

In Turkey, the process of registering a yacht and obtaining the right to fly the Turkish flag requires an application to the Ministry of Transport and Infrastructure. During the application process, various documents, such as those detailing the yacht’s technical specifications, identity and residence documents, and the yacht’s registration certificate, are required. Applications are typically handled through local port authorities. Yacht owners who wish to operate under the Turkish flag must follow specific procedures to register their yachts in the Turkish Ship Registry. Foreign-flagged yachts may also operate in Turkey for limited periods, but flying the Turkish flag provides significant tax advantages and commercial rights.

Foreign-flagged yachts, particularly those operating for tourism purposes, are frequently used in Turkey. The tax exemptions and inspection standards applied to these yachts can create a disadvantage for local yacht owners. Foreign-flagged yachts are not fully subject to local regulations, providing tax advantages and negatively affecting the competitive strength of local owners.

Application and Document Preparation

The first step in the flagging process for a yacht is the preparation of necessary documents and the initiation of the application. The required documents for flagging a yacht in Turkey include:

• Boat License: The official document that shows the ownership and technical specifications of the yacht.
• Sales Contract: Documents proving the purchase of the yacht and the details of the transaction.
• Identity and Residence Documents: The yacht owner’s identity information and residence address.
• Insurance Policy: A document proving that the yacht is insured against risks that may occur during maritime activities.
• Technical Compliance Documents: Certificates demonstrating the yacht’s technical specifications and compliance with safety standards.

Once these documents are prepared, an application is submitted to the General Directorate of Maritime Affairs of the Ministry of Transport and Infrastructure. Applications are typically processed through local port authorities and require the payment of a fee.

Technical Inspection and Audit

Following the application process, a technical inspection and audit of the yacht are conducted. During this process, the yacht’s compliance with maritime standards and safety regulations is assessed. The key criteria considered during technical inspections include:

• Dimensions and Capacity: The length, width, and carrying capacity of the yacht.
• Engine Power and Performance: The engine power and performance of the yacht at sea.
• Safety Equipment: The presence of safety equipment, such as life jackets, fire extinguishers, and lifeboats.
• Structural Condition and Maintenance: The overall structural condition of the yacht and its maintenance records.

Based on the results of the technical inspection, a decision is made on whether the yacht is eligible for flagging. The inspection is carried out by authorized inspection organizations or maritime experts, and the yacht owner must cooperate during this process.

Registration and Certification Process

After successfully completing the technical inspection, the official registration and certification process for the yacht begins. This includes issuing a registration number for the yacht, which certifies that the yacht is recognized by the Republic of Turkey and grants the right to fly the Turkish flag. During the registration process, the yacht owner is issued a Registration Certificate, which includes the following information:

• Yacht Name and Registration Number: The official name of the yacht and its assigned registration number.
• Ownership Information: The name, address, and contact details of the yacht owner.
• Technical Information: The dimensions, engine power, production year, and other technical specifications of the yacht.

Conclusion

Turkey holds a strategic position in yacht tourism and law, with its coastline along the Mediterranean, Aegean, and Black Seas. Comprehensive regulations concerning yacht ownership, flagging, and charter agreements have been established within the framework of the Turkish Commercial Code, Maritime Labor Law, and relevant international agreements. This legal infrastructure ensures that activities in the sector are conducted in a regulated and safe manner. Turkey’s existing legislation on yacht law supports the growth of the sector and ensures a clear and enforceable legal framework for yacht owners and operators.

References

1. Gül, F. (2020). Deniz Hukuku ve Uygulamaları. İstanbul: Denizcilik Yayınları.
2. Kaptanoğlu, M. (2018). “Türkiye’de Yat Hukuku ve Uluslararası Yat Mevzuatı Arasındaki İlişkiler”. Denizcilik ve Hukuk Dergisi, 23(2), 105-120.
3. Kaya, B. (2021). “Yat Kiralama Sözleşmeleri ve Türkiye’deki Yasal Düzenlemeler”. Hukuk ve Ekonomi Dergisi, 15(3), 45-63.
4. Turkish Commercial Code, Law No. 6102.
5. United Nations Convention on the Law of the Sea (UNCLOS), 1982.

PRACTICAL INFORMATION ON FOREIGN LAW -3

(Short Evaluation of the Constitutional Court’s Decision dated 15.2.2024 and numbered 2019/40761 – Expulsion with Intelligence Report)

In this letter, which will be the third of the series I plan to write on foreigners’ law, I will make a brief evaluation of the decision of the Constitutional Court dated 15.2.2024 and numbered 2019/40761. The fourth article I started to write in the series will be on foreign trade and INCOTERMS.

At the beginning of the article, I would like to remind you again that I write these articles within the framework of academic ethical rules but without academic concern. I strive for the series to contain practical rather than theoretical knowledge.At this point, I would like to thank all the justice community employees, especially my colleagues, who commented on the previous articles, contacted me and thanked me, and asked their questions. I hope that this series will be useful to colleagues like me who are still in the early years of their profession and to colleagues who are new to the field of foreigners’ law.

In the above-mentioned decision of the Constitutional Court, an application was made with the allegation of various violations of rights regarding the rejection of the lawsuit filed by the deported foreigners in line with the intelligence report. The Constitutional Court, on the other hand, did not find the applications justified based on various reasons in its decision. This decision is not actually a surprise. However, the opposing views in the resolution are noteworthy. In this article, what I want to evaluate is the reasons for the dissenting vote.

Similar cases and decisions have increased, especially with the effect of increasing migration to our country in recent years. I have already conducted, still conducting several similar cases. In fact, a client who applied to us was an Evangelist and was deported after a meeting similar to the one in the decision. During my consultancy service to the client, I said many times that the chance of winning the case was quite low, and even when I insisted on opening the case, I received written consent. Because the discretion of the administration is wide, especially in entry ban decisions and deportation decisions, and this is the how it is all over the world. As a matter of fact, traces of this situation are seen in international treaties.

In addition to these issues, evaluations based on freedom of expression, religion and conscience were made in the dissenting opinions in the decision. For example, in the counter-vote opinion written by the President of the Constitutional Court;

“missionary activities are within the scope of freedom of expression“and also describes the intelligence report as abstract.

In our opinion, I have to state that I cannot agree with the opinion stated in the dissenting opinions that missionary activities should be considered within the scope of freedom of expression and freedom of religion and conscience, if these activities are carried out in a systematic and organized manner. As a matter of fact, the fact that these activities are°indistinguishably intertwined with the activities of the 5th branch and the conjuncture of Turkey is one of the grounds in my opinion. On the other hand, although I will be content to mention that it is a long subject of discussion, the”modern state” is not a completely rational structure and the ground that creates it°should not be forgotten.

Another issue in the opposing opinion is°intelligence reports. I think there are two different aspects of this issue. The first is the broad discretion of the administration regarding border security. As a matter of fact, there are borders in the modern state and passport-visa applications are available. If these practices (deportation, visa, residence permit)°are on a completely objective and rational basis, it is clear that the borders and these practices will have no function. Therefore, it should be accepted that the administration has a wide discretion in these practices in Turkey as in the whole world.

On the other hand, auditing the reports/minutes kept, especially intelligence reports, in certain dimensions and criteria will prevent arbitrariness. In this respect, I agree with the opposing vote views. As a matter of fact, a positive decision I received last year showed that the report was based on a material mistake (name similarity). Recently, in a case similar to the case subject to the Constitutional Court decision, the court committee examined the intelligence report and stated that it met with the intelligence officer. However, the report was not included in the file or disclosed to us, so I could not make a defense. In its decision, the court stated the reasoning as follows:

“In theconcrete case, with the interim decision of our Court dated…, the document submitted to our intelligence Court by stating the reason for not including the explanatory information and documents regarding the acts and facts based on the restriction code with the letter dated 07/02/2023 and numbered…, which was taken as a basis for the restriction code subject to the lawsuit, was delivered to the intelligence officer after the committee of our Court examined the said document and it was concluded that the said intelligence information confirmed the reason for the imposition of the restriction code subject to the lawsuit.” ANKARA 26th ADMINISTRATIVE COURT DECISION NO : 2024/* * *

In our opinion, in such cases, if there is an attorney in the file, the attorney should be able to examine the document and be given the opportunity to make a defense, taking into account the degree of confidentiality. If there is no attorney in the file, the judge may request the defense by giving a certain amount of information to the principal or the situation may be examined by following a different way, but the right of defense should not be restricted.

At this point, the degree of confidentiality of the reports in question will also be important. In this regard, a method can be developed by taking into account the distinction in Article 4 of the Regulation on the Procedures and Principles to be Applied in Confidentiality Degree Documents:

“ARTICLE 4- (1) There are three degrees of national confidentiality: Top Secret, Confidential and Service Specific Restricted:

1. Top Secret: It is used for documents that may significantly harm the external relations, national defense, national security and activities with allies of the State if disclosed or learned by unauthorized persons.
2. Confidential: It is used for documents that may harm the interests of the State, security, intelligence and technology activities if they are disclosed without permission or learned by unauthorized persons.
3. Service Specific Restricted: Used for documents that may harm any administrative activity, real or legal person, administrative investigation, judicial investigation and prosecution if disclosed without authorization or learned by unauthorized persons.”

In addition, the opinion of the Council of State on a similar issue (criteria for the examination of documents by lawyers) is as follows:

“Institutions and organizations listed in the third paragraph of Article 2 of the Attorneyship Law No. 1136, as amended by Law No. 4667, are obliged to assist lawyers in the fulfillment of their duties. The above explanations regarding the duties of lawyers should be taken into account in determining the scope and limits of the obligation to assist.

These institutions are obliged to submit the information and documents required by the lawyers within the framework of the following scope, without prejudice to the special provisions in their laws.

a ) Submission for examination is a function that should be carried out in an appropriate place within the institution and organization where the information and document are located, accompanied by an officer when necessary.

b ) The request to fulfill the obligation to submit the information for examination by sending it to a place or city other than the institution and organization where the information and document is located cannot be considered as a request suitable for the purpose of the law.

c ) The scope of the information and documents required by the lawyer should be understood and evaluated within the limits specified in the explanations regarding the duties of the lawyers and the statement of need.

d ) The legislator has kept the collection of samples from the documents that the institutions and organizations have the opportunity to examine subject to the submission of a power of attorney. After the examination of these documents by the lawyers, it is required by the provision of the law that the subject, date and number of these documents can be taken as an example.

2- The limits and content of the special provisions in the laws, which are the exception to the obligation to submit for examination, should be evaluated within the legal framework specified in the above explanations on this subject with the relevant article texts.

CONCLUSION: It was unanimously decided on 10.4.2002 to submit the file to the Presidency of the Council of State with the above-mentioned opinion on the subject of hesitation. ” COUNCIL OF STATE 1st DEPARTMENT DECISION NO: 2002/52 DATE:10.4.2002

Ultimately, the “right to defense” should not be violated by saying that there is a “confidential document” or “intelligence report”. The Constitutional Court emphasized this situation in 2020:

“The Supreme Court held that the applicant was not given the opportunity to defend against the confidential documents submitted by the defendant Administrations and taken as a basis for the verdict in the court decisions. This led him to conclude that the principles of equality of arms and contradictory jurisdiction guaranteed in Article 36 of the Constitution were violated. The Supreme Court unanimously decided to send the decision to Ankara 13th Administrative Court for retrial in order to eliminate the consequences of the violation.( Constitutional Court Decision No. 31174 on Friday, July 3, 2020).

AV.HALDUN BARIŞ

PRACTICAL INFORMATION ON FOREIGN LAW -2

(Marriage of Foreigners, Divorce Cases with Foreign Factors)

In this article, which will be the second of the series I plan to write about foreigners’ law, I will continue to mention some of the legal processes related to real persons as I mentioned in the first article.

At the beginning of the article, I would like to remind you again that I write these articles within the framework of academic ethical rules but without academic concern. I strive for the series to contain practical rather than theoretical knowledge.At his point, I would like to thank all the justice community employees, espically my colleagues, who commented on my previous article, reached out to me and thanked me, and asked their questions. I hope that this series will be useful to colleagues like me who are still in the early years of their profession and to colleagues who are new to the field of foreigners’ law.

In the previous article, I mentioned the processes related to residence permit, deportation, entry ban, INAD passenger, administrative detention decisions of foreigners in Turkey. In this article, I will mention cases such as the marriage and divorce of foreigners, and in summary, the paternity case. In the following articles, I will write about the foreign element malpractice case and now I will start to focus on the fields that I work more in, such as foreign element contracts and corporate law, investment law, energy law.

Before addressing the issues in the article, I would like to give a brief information here about a question that I think is important asked by a colleague of mine about the issues in the previous article:

My colleague’s question was°”When a foreigner who is in Turkey within the 90-day visa/residence permit exemption period applies for a residence permit during this period and his/her application is rejected, is the time spent in the application review process counted from the 90-day exemption process” .

As it is known, citizens of some countries are exempted from visa/residence permit for 90 days every 180 days. The question of our colleague actually happens to many strangers and is a matter of curiosity. In fact, since one of the purposes of the 90-day exemption in question is the time required for the application, the time spent during the application is considered to be from this exemption. After this brief information, let’s move on to practical information on foreigners’ law and first of all, let’s examine some frequently encountered family law issues:

3. Marriage and Divorce Cases of Foreigners

3.A. Marriage of Foreigners

First of all, it should be noted that Turkey is a country frequently preferred by citizens of countries such as Russia and Post-Soviet geography, Arab geography, Pakistan, China for marriage due to both its natural-historical beauties and its civil law compatible with the EU. The marriage certificate issued after the marriage ceremony in Turkey is an international marriage certificate. However, it is useful to make a small note here. Although this marriage certificate is an international certificate, it should not be forgotten that the marriage certificate must be apostilled for its validity in some countries.

Foreigners can get help from lawyers in Turkey during the marriage process. At this point, it is sufficient to make an appointment after providing the necessary documents (celibacy certificate, health report, passport translations). In these documents, it is very important that the names are compatible with the passport, there is no disruption in translations and the “celibacy certificate”.

3.B. Divorce Cases

Like the marriage of foreigners in Turkey, divorce is one of the most common situations. However, I think it would be useful to make a basic distinction when dealing with divorce cases related to foreigners’ law:

1. Divorce of two foreigners in Turkey or divorce of one Turkish and one foreigner in Turkey
2. Recognition-execution case regarding divorce cases outside Turkey

If two foreigners or a Turkish and a foreigner want to divorce in Turkey, it is necessary to look at IPCPL article 14 here. IPCPL article 14 is as follows:

“The reasons and provisions of divorce and separation are subject to the common national law of the spouses. If the parties are in separate citizenship, the law of common habitual residence shall apply, and if there is no such law, the law of Turkish law shall apply.

(2) The provision of the first paragraph shall apply to alimony claims between divorced spouses. This provision also applies in case of invalidity of separation and marriage.

(3) Custody and problems related to custody and in divorce are also subject to the provision of the first paragraph.

(4) Turkish law shall apply to requests for interim measures.”

At this point, it would be useful to mention the concept of “habitual residence”, which is frequently mentioned in the law. Habitual residence is a different concept from settlement and was taught to us in the faculty (Ankara Uni. Law) as “the law with which a person is associated”. The concept of habitual residence can be considered as “the law with which the person is in a social relationship” and “the law of the place where the person lives his/her life”.

Undoubtedly, the other issue regarding divorce is related to marriage goods and alimony. It is necessary to look at Article 15of the IPCPL on matrimonial property:

1. “The spouses may expressly choose either the law of their habitual residence or national law at the time of marriage; in the absence of such a choice, the common national law of the spouses at the time of marriage shall apply to the matrimonial property, and in its absence, the law of their common habitual residence at the time of marriage, and in its absence, Turkish law shall apply.”

Paragraph 2 of Article 15 of the IPCPL emphasizes the exception regarding immovables:

2. “In the liquidation of the goods, the law of the country where they are located shall apply to the immovables.”

The situation changes in alimony cases. Article 19 of the IPCPL Law No. 5718 regulates the applicable law to alimony cases:

ARTICLE 19- (1) Alimony claims are subject to the law of the habitual residence of the alimony creditor.

On the other hand, when determining the law to be applied by considering the aforementioned articles, it is necessary to refer to and take into account Article 5 of the IPCPL:

“ARTICLE5°– (1) In the event that the provision of the authorized foreign law applied to a certain event is clearly contrary to the Turkish public order, this provision shall not be applied; Turkish law shall apply when deemed necessary.”

Therefore, it is necessary to examine Articles 5, 14, 15, 19 of the IPCPL when determining the law to be applied in divorce and ancillary cases. These articles stipulate that if there is no common national law of the parties in the divorce case, if there is no common residence law, Turkish law will be applied; in alimony cases, the common residence law will be applied; in property regime cases, unlike divorce, if there is no common residence “or” common national law will be applied, the “moment of getting marriage” will be considered and if this is not the case, Turkish law will be applied. On the other hand, there is an exception to the immovables mentioned above.

If two Turkish citizens have divorced abroad, a recognition and enforcement lawsuit must be filed in order for this divorce to be valid in Turkish law. Recognition is required if it is only a divorce case; enforcement is required for decisions requiring enforcement such as alimony-compensation, etc. Enforcement is more inclusive than recognition decisions and includes recognition. However, in practice, I have also had files in which a verdict was made as “to be recognized and enforced” in lawsuits filed with the request of recognition and enforcement. In addition, when I read the old files, I saw that there were similar provisions.

Enforcement proceedings are regulated between articles 50 and 63 of the IPCPL. In the decision of the General Assembly of Civil Chambers of the Court of Cassation, the issue was handled in a very understandable way:

“The fact that civil lawsuits are a qualification regarding procedural law, the evaluations regarding the qualification and the types of lawsuits that will be civil lawsuits will be determined and evaluated according to the law of the country where enforcement is requested. On the other hand, the foreign judgment must be finalized in terms of its form according to the law of the country where it is issued. After examining the condition of legal benefit in the enforcement case and examining whether the judge who will make the decision meets the conditions sought in Turkish Law only in order to enforce the foreign decision, he/she will be able to make an exequatur decision if the conditions are found. It is not possible for the enforcement court to examine the law applied by the foreign court to the merits and whether it correctly applies its own procedural provisions in the same way and to examine the content of the foreign judgment (2675 p. IPCPL m.38/c, 5718 p. IPCPL m.54/a, b, c,°ç). However, it is the requirement of the mandatory provision of the Law No. 5718 that if the foreign court judgment is clearly contrary to the Turkish public order, it is in any way an obstacle to enforcement, …” and the concepts of recognition and enforcement have been explained and accordingly; it has been decided that the enforcement court does not have the opportunity to examine the content of the foreign judgment by making a substantive law and procedural law audit regarding the foreign court decision regarding a dispute arising from a private law relationship.” CIVIL GENERAL ASSEMBLY OF THE COURT OF CASSATION 2017/2-2669 DECISION NO: 2021/109 DATE: 18.2.2021

Another decision of the Civil General Assembly of the Court of Cassation regarding the recognition of foreign court judgments is as follows:

“The increasing intensity of cross-border relationships causes many°private law questions,°especially disputes arising from foreign marriages. While each state tries to protect its national interests with the decisions made by its own courts, it also has to observe the rules of respect for the national activities and the rights of individuals. The effectiveness of the decisions made by the sovereign states’ own courts is limited to that°country. Foreign court judgments can be recognized and enforced outside the country in which they were rendered, and have effect and effect only through recognition and enforcement of the judgment. As a rule, recognition and enforcement can be carried out by a separate lawsuit to be filed. With the recognition or enforcement decision as a result of these cases, the foreign court decision and the local court decision gain their force and quality” CIVIL GENERAL ASSEMBLY OF THE COURT OF CASSATION 2017/108 DECISION NO: 2018/1459 DATE: 18.10.2018

Following this summary and basic information, let’s touch on some important points and decisions and conclude the article:

-First of all, in practice, it is asked whether the lawsuits to which the holders of blue cards (persons who have obtained Turkish citizenship on leave) are parties have an element of foreignness. There is no foreign element in the transactions of people who has a blue card.

– The 1-year statute of limitations (Turkish Civil Code art. 178) in compensation lawsuits to be filed after the divorce case is 1 year from the finalization of the recognition-enforcement lawsuits:

– In divorce cases with foreign elements, if one of the parties is in abroad, a warrant is written to the General Directorate of Law and Foreign Relations of the Ministry of Justice and actions are taken in accordance with the “Communiqué on the Procedures and Principles to be Followed in Foreign Notification and rogatory Request”.In this communiqué, the necessary costs and other issues for the recourse procedures are discussed in detail. After depositing these expenses from the relevant banks, their receipts must be submitted to the bank.

For example, in divorce cases, a rogatory request may be made for economic and social status research.

It is also possible to have witnesses heard by way of rogatory. In addition, a questionnaire can be sent for witnesses who are Turkish citizens abroad in accordance with Code of Civil Procedure 244. In this case, expenses are deposited from the bank, the questions requested to be asked are submitted to the court as a statement, the judge also adds the questions he/she wants to be asked, transactions are made through the embassy, and the witness submits his/her written statements to the embassy in due time and the embassy sends them to the court. Thus, the witness is deemed to have been heard. Additional questions may be asked if needed.

– In cases with foreign elements, a warrant is also written to the Ministry of Foreign Affairs many times and information is requested. This information may be related to the existence of agreements, etc. In addition, in cases with foreign elements, a warrant may be written to the General Directorate of Foreign Relations of the Ministry of Justice and an opinion may be requested on the “reciprocity principle”.

– As can be seen in the decisions of the courts in the recognition and enforcement request in divorce cases, there are certain important issues: the°finalization of the decision to be recognized and enforced, the provision is not contrary to public order and Turkish law, the fact that there is an actual practice that makes it possible to recognize the verdict, and that it has legal conditions.

The issue of violation of public order is a very broad, comprehensive and controversial issue. Examples in this regard are noteworthy in Ahmet Cemal Ruhi’s Recognition and Enforcement of Foreign Decrees of Divorce in Turkish Law. In summary, regarding the recognition in Turkey of the divorce decree of a lesbian marriage in Denmark, the author stated that it cannot be recognized and enforced due to the violation of public order (there is an absolute and superstitious marriage), but the decisions regarding the members of the divorce (compensation, etc.) should be enforced in accordance with the principle of equity.

Another example in the aforementioned work is related to whether the sharia court decision will be recognized, where the talaq and divorce in Saudi Arabia and the testimony of the woman are not considered full witnesses. The opinion of the Ministry of Justice was taken on this decision and ultimately the court recognized the divorce case, taking into account the declaration of acceptance of the woman in the way she wanted to divorce. Information on the relevant letter is as follows:°Letter of the General Directorate of Legal Affairs of the Ministry of Justice dated 30.11.1990 and numbered 50308.

– In some countries where the Anglo-Saxon Legal System is adopted, a different procedure can be adopted in divorce cases. For example, in a divorce case in England, I saw that the case was very, very fast and the divorce took place without determining the defect, and the cases were carried out separately regarding financial issues. I was also surprised that the judge who gave the verdict was authorized in other cases regarding the consequences of the divorce. For example, my client’s ex-husbnad had used violence while meeting with his children, she made the application for measures and rearrangement of negotiations to the same judge and the judge quickly decided because she was familiar with the file, etc. Likewise, the fact that the place and time of delivery were specified in detail in the decision regarding the establishment of the relationship between the father and the children and that they were followed up with an application made me think.

– Another issue that we should mention in foreign divorce cases is the Hague Convention on the Legal Aspects of International Child Abduction. This contract and also the “European Convention on the Recognition and Enforcement of Decisions relating to the Custody of Children and the Return of Custody of Children” must be known and the procedures stipulated by the contracts should be operated in case of custody and°child abduction.

In addition, it is also important to issue a foreign exit permit (consent to be issued by the notary public) when the children will be taken abroad. If custody is in one parent, according to Turkish law, the permission of another parent is not required, but I recommend that this consent be issued by the notary public if possible in order to avoid problems in practice.

-Finally, I would like to mention the paternity cases. These lawsuits filed to determine the lineage of children outside marriage are related to public order. If the lawsuit is to be filed against the minor, first of all, a trustee lawsuit should be filed and authorization should be obtained from the Civil Court of Peace. Then the trustee opens the case. The trustee is usually the lawyer who will handle the file. Then a paternity lawsuit is filed in the family court. In such cases, the DNA report is important. For this reason, it is also requested to deposit collateral. In addition, the name, surname, address, identity information of the parents and the information of the minor should be written in the petition. Such cases are also reported to the Public Prosecutor by the court.

In summary, I conclude this article, in which I emphasize the marriage and divorce of foreigners in Turkey and the recognition and enforcement of divorce decrees. At the end of my article, I would also like to propose a work that I think will be useful to my colleagues, although it is not related to the subject, and I enjoy reading it, and I am extremely proud of every article in its content:Nobelite, Prof. Dr. Can Aktan

See you in another article of the series…

Av.Haldun Barış

Malpractice Cases and Responsibility of the Physician

*Deniz Mete ÖZCAN

With the specialization that takes place in almost every occupational group today, it is an indisputable fact that the profession performed by physicians requires the most attention because it is related to the right to life itself. In this article, if the physician does not show the necessary care, we will evaluate issues such as the reasons that give rise to responsibility and which courts evaluate these issues in the light of high judicial decisions.
Before starting our article, we feel it necessary to discuss the differences between malpractice and complications. Complications are a predictable risk as a result of a medical intervention, whereas malpractice is the patient’s harm as a result of the incorrect or careless application of medicine. The physician must inform the patient about possible complications and obtain consent from the patient for medical intervention before performing the procedure.

The legal relations that may give rise to the responsibility of the physician are basically four: culpa in contrahendo, acting without power of attorney, tort, and contract. First of all, to give an example of culpa in contrahendo, let’s say you do not like your nose at all and you are negotiating a contract with a specialist physician about nose surgery. The physician tells you the options that may be available to you, and after you sell your car below the market price to pay for the service in question, the physician informs you that he/she cannot make a contract with you. In this case, the physician may have a responsibility arising from the culpa in contrahendo. In other words, a legal responsibility will arise within the framework of the promise given to you by the physician.

As a rule, the physician must explain the complications and risks that may occur to the patient before a medical intervention and obtain the patient’s consent. However, in cases of sudden events, if the medical intervention does not contradict the patient’s special superior interest and presumed consent, such an intervention is also legally justified. For example, suppose a person is bitten by a poisonous animal. Suppose that as a result of this bite, the person’s consciousness is lost and there is a life risk if the leg that the animal bit is not amputated immediately. In this case, if a physician who is with him/her amputates the person’s leg without his/her consent, although it will cause unauthorized work, the physician has no responsibility in this case. Because the amputation of the leg, compared to the death of the person, complies with both his/her assumed consent and his/her superior benefit. Therefore, it would be impossible to talk about tort in such an event.
In addition to these types of responsibilities, the physician may commit a tort against the patient or may not comply with the contract between the patient and the physician. In this case, a responsibility of the physician arising from the contract arises.

At this point, while examining the responsibility of physicians, the quality of the institution they serve will also be taken into consideration. If the patient has applied to a private hospital, since the physician undertakes the treatment on behalf of the hospital, not on his/her own behalf, he/she will be an assistant person in accordance with Article 116 of the Turkish Code of Obligations. However, if the patient applied to a state hospital and encountered a problem because of the treatment he/she received, he/she can file a lawsuit against the state institution to which the public hospital is affiliated. In this case, there is no direct relationship between the patient and the physician, and the patient will be involved in this relationship as a person benefiting from public service, and the physician will be involved in this relationship as a public official.

If the patient applies directly to the physician for treatment, it can be said that there is a proxy relationship between them. From the stable jurisprudence of the Court of Cassation and the dominant view in the doctrine, we can conclude that the relationship between the physician and the patient is a contract of proxy. The reason for the existence of a proxy relationship rather than a service or employment contract between the patient and the physician is essentially that the physician is equipped with wider powers. Unlike service and employment contracts, there is no subordinate relationship or commitment to the employer in the power of attorney contract; the most prominent debt of the attorney in the power of attorney contract, and the physician in our case, is the obligation to perform the work carefully. Based on the judgment of the 13th Civil Chamber of the Court of Appeals, emphasizing that the relationship between the patient and the physician is a power of attorney contract in the jurisprudence numbered 2014/17432 and 2015/8258 of the Civil Chamber, the court stated that the attorney is responsible for the damages arising from the lack of diligence in his efforts, transactions, actions, and behaviors, not for the failure to obtain the result that the attorney directs while performing his power of attorney duty.
Suppose the physician undertakes to perform aesthetic surgery or a dentist undertakes to make a prosthetic tooth for the patient. In this case, what kind of legal relationship will be established between the physician and the patient? In such a case, since the physician will actually create a work, the provisions of a work contract between the patient and the physician will be valid, and the responsibility will be determined in accordance with the provisions of Article 470 et seq. of the Turkish Code of Obligations. If the patient does not pursue a commercial purpose, which is very unlikely, a lawsuit arising from the work contract will be filed with the Consumer Court, not the Civil Court of First Instance. In this case, of course, we assume that a dental prosthesis or an aesthetic intervention is performed in a private hospital. If the said intervention was made in a state hospital, the said application will be made to an administrative court as mentioned above. If the court finds the doctor performing public duty to be at fault, the administration shall recourse the said damage to the doctor.

Under normal circumstances, an application must be made to the Civil Court of First Instance about a dispute arising from the power of attorney relationship. However, if the patient does not pursue a commercial purpose while making the contract, the transaction in question is counted as a consumer transaction. As a matter of fact, in the decision of the 3rd Civil Chamber numbered 2015/18344, it was stated that the dispute between the dentist and the patient arises from the work contract regulated in Article 470 of the Turkish Code of Obligations, that there is no clear provision in the law that the cases arising from the work contract will be heard in the Civil Court of Peace, that there is a relationship between the parties (Dentist-Patient) in the concrete case, that the plaintiff has the title of “consumer” according to the provisions of Law No. 6502 and therefore the court in charge is the Consumer Court.

As Seyhan Law Firm, with more than 25 years of experience and our Russian-speaking experts, we can follow your cases arising from incorrect treatment and carry out your processes related to compensation. You can click on the WhatsApp or Telegram buttons on the right to reach our Russian and English-speaking experts.

In international contracts, the applicable law is the law that the parties to the contract will use to resolve disputes regarding the content and interpretation of the contract. The determination of this law may vary depending on factors such as the parties to the contract, the place where the contract was made, the subject matter of the contract, and the nationality of the parties.

One of the factors that plays an important role in determining the applicable law in international contracts is Article 24 of the Turkish Code of Private International Law and Procedure (MÖHUK).

Article 24 of Private International Law and Procedure

Article 24 of MÖHUK is a provision in Turkish law that governs the determination of the applicable law in international contracts. According to this article, the parties may explicitly choose the law applicable to the contract. This choice may be specified in the written text of the contract or by the express declarations of the parties. For example, the contract may include a provision stating that “This contract shall be governed by Swiss law.”

The following conditions must be met for Article 24 of MÖHUK to be applied:

• The contract must have a foreign element: At least one of the parties to the contract must be foreign.
• The chosen law must be specific: The chosen law must be determined explicitly or implicitly.
• The chosen law must not be contrary to the mandatory provisions of the chosen law: The chosen law cannot be contrary to the mandatory provisions of the contract.

if the parties have not explicitly chosen a law, the second paragraph of Article 24 of MÖHUK applies. This paragraph is referred to as the implied choice of law. In implied choice of law, a conclusion can be reached without any doubt as to which law will apply based on the provisions of the contract or the circumstances of the case. For example, if all parties to the contract are Turkish citizens and the contract is signed in Turkey, it can be concluded that Turkish law will apply to the contract.

Limitation of Choice of Law in Contracts with Foreign Elements

The increase in international trade and cooperation has led to an increase in the number of contracts concluded between parties from different countries. In such contracts, the limitation of the law chosen by the parties is important for legal certainty and predictability. The freedom of choice of law allows the parties to choose the law applicable to their contracts. However, this freedom is not absolute. In some cases, it may be restricted for reasons such as public policy or the protection of the weaker party.

Areas of Limitation:

Socially Oriented Contracts:

In cases where one of the parties is economically and socially weaker, special regulations have been introduced by the legislator to protect the weaker party. In such contracts, the law chosen by the parties cannot restrict the mandatory provisions in favor of the weaker party.

Socially Oriented Contracts Regulated in MÖHUK:

1. According to Article 27 of the MÖHUK, the law chosen by the parties applies to employment contracts. However, the minimum protection that the employee would have under the mandatory provisions of the law of the habitual workplace is reserved. This regulation represents a minimum limit set by the legislator for the protection of the employee.

2. Article 26 of the MÖHUK regulates the choice of law in consumer contracts. Accordingly, the law chosen by the parties applies, provided that the minimum protection that the consumer would have under the mandatory provisions of the law of the habitual residence is reserved. This regulation can be applied if the chosen law, within the framework of the conflict of laws rules, is in favor of the consumer. Otherwise, the law of the habitual residence constitutes the minimum limit for the protection of the consumer.

Mechanisms Limiting Choice of Law:

There are two main mechanisms that limit the law chosen by the parties:

1.Public Policy:

Public policy refers to the rules that concern the fundamental political, social, economic, and legal structure and fundamental interests of a society. According to Article 5 of MÖHUK, if the provision of the competent foreign law applied to a particular event is clearly contrary to Turkish public policy, that provision shall not be applied and Turkish law shall be applied if necessary.

2.Directly Applicable Rules:

Directly applicable rules are legal norms that emerge as a result of social and economic tasks being undertaken and public interests being taken into account. These rules are determined as mandatory provisions that are effective in private law relations and that take public interest into account. Examples of such rules include import-export bans and bans in the foreign exchange and foreign trade law.

Conclusion

In contracts with international elements, the parties’ choice of which law to apply should be made by considering the balance between the principle of autonomy of will and the limits of legislation. This balance ensures legal stability, legal certainty and predictability, preventing possible disputes in contractual disputes and contributing to the development of international trade and cooperation.

With the amendment made in the Communiqué on the Decision No. 32 on the Protection of the Value of Turkish Currency (Communiqué No: 2008-32/34) published in the Official Gazette dated 19 April 2022 and numbered 31814 (Communiqué No: 2022-32/66), the phrase “However, it is obligatory to fulfill and accept the contractual payment obligations in Turkish currency.” has been added to the end of the ninth paragraph of Article 8 of the said Communiqué.

According to this amendment, “It is possible for residents of Turkey to determine the price and other payment obligations arising from securities sales contracts other than vehicle sales contracts to be concluded between themselves in foreign currency or indexed to foreign currency; however, it is obligatory to fulfill and accept the contractual payment obligations in Turkish currency”.

Within the scope of the first paragraph of Article 3 of the Law No. 1567 on the Protection of the Value of Turkish Currency, an administrative fine will be applied with the scope of reproportion to those who violate this obligation.

Accordingly, separately for each party of the contract, which may be found to be in violation of the TL payment obligation.

– From approximately 31,656 TL up to 264,172 TL due to acts committed in 2023,

– Due to the acts to be committed in 2024, an administrative fine from approximately 50,162 TL of up to 418,607 TL may be imposed.

The Public Prosecutor is authorized to decide on the administrative fine to be imposed, and in case of recurrence of the violation, the specified penalties can be applied twice.

Within the scope of the first paragraph of Article 3 of the Law No. 1567 on the Protection of the Value of Turkish Currency, an administrative fine will be applied with the scope of reproportion to those who violate this obligation.

Kind regards.

SEYHAN LAW FIRM

Atty. Bülent SEYHAN

Turkey follows an open investment policy that allows foreigners to establish companies in the country. However, there are legal regulations that must be followed during the establishment phase. Depending on the type of company, the documents to be complied by foreign investors may vary according to their main functions, capital requirements, tax and legal regulations.

In this article, the permission of foreigners to establish a company in Turkey, the legal legislation they will comply with, the application stages and the necessary documents, the articles that will encourage foreigners to establish a company in Turkey and the advantages of doing business in Turkey for foreign investors will be discussed.

Application Stages and Documents

In order for a foreigner to open a company in Turkey, he/she must decide on the type of company at the first stage. It is generally recommended that the company be a joint stock or limited liability company.

In the next stage after the type of company, it will be important to decide on the title of the company. The title of the company must include the fields of activity of the company.For example  ECA AUTOMOTIVE, TOURISM, INDUSTRY, CONSTRUCTION (type of company) Company.

After this stage is passed, it is necessary to obtain a potential tax number for the company partners. This tax number can be obtained from the internet or from tax offices. However, what is important at this point is the need for an address statement.

After the potential tax number, the “articles of association” of the company must be prepared. This is very important as it will be the constitution of the company. It is recommended to prepare it in the presence of a lawyer and financial advisor.

 After this stage, transactions should be followed at the trade registry office in the provinces, and if exports or imports are to be made afterwards, transactions should be made in this regard as well. These transactions can be followed and completed in many cities, especially in Istanbul-Ankara-Izmir-Antalya, through Seyhan Law Office.

It is mandatory that commercial books are kept by a financial advisor after your company is established.

Incentives

Free Zone- Another way for foreigners to establish a company in Turkey is to invest in free zones created specifically for them. These regions provide many tax advantages for foreigners with lower tax rates, tax exemption, facilitated customs procedures, free foreign exchange transactions and tax exemption for domestic labor compared to other regions of Turkey. Izmir, Turkey’s oldest free zone, can be given as an example.

Easy company formation- Establishing a company in Turkey can be completed in a few days. You do not need to come to the country to establish a company in Turkey. You can solve all your company establishment processes in Turkey through Seyhan Law Firm.

An Attractive Investment Environment-Turkey’s economy is growing rapidly and offers an attractive environment to the world’s leading investors. Turkey, which has a strategic location between Europe, Asia and the Middle East, is an ideal place to do business. Turkey also offers a large domestic market and many opportunities to do business in the Middle East and Asia. The young population makes the country an attractive labor market.

Conclusion and Suggestions

Turkey has a great potential for foreign investors. The Turkish government continues to work to improve the investment climate. This will reduce the barriers for foreign investment to come to Turkey and create a more attractive environment for investment. Turkey attracts attention with its unique geographical location, high-quality workforce, advantageous investment environment and strong economy.

Partnering with local businesses to strengthen your company in Turkey, conducting market research by ensuring the active participation of people with experience in the Turkish market, and being familiar with customer needs, competitive factors, and other business activity-related components are the right steps to put you ahead of other companies.