Tag: seyhan law office

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ARBITRATION AGREEMENT IN TURKISH LAW

ARBITRATION AGREEMENT IN TURKISH LAW

            Arbitration is an alternative method of dispute resolution in which the parties resolve their disputes through arbitrators. The arbitration proceeds faster and is more reliable In addition, the will of the parties has a higher priority

In order to resort to the arbitration method of solving issues, the parties may enter into an arbitration agreement.

In Turkish law, the arbitration agreement is governed by Article 412 of the Civil Procedure Code:

“An arbitration agreement is an agreement between the parties to submit all or part of a dispute that regarding a contractual or non-contractual legal relationship to an arbitrator or arbitral tribunal.”

Article 4 of the International Arbitration Act No. 7098 also defines what an arbitration agreement is

An arbitration agreement is an agreement between the parties to resolve all or some of the disputes arising out of or in connection with an existing legal relationship, whether arising out of the agreement or not, through arbitration. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Under Turkish law, arbitration contracts must be created in writing. E-mail, correspondence and other written means are considered valid. The arbitration agreement may be drafted separately or the arbitration agreement may be appear as part of the main agreement. In fact, this moment is clearly stated in the New York Convention:

New York Convention 2/2

 “2. The term  “agreement in writing ” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.

The most important issue concerning arbitration agreements is the will of the parties. The will of the parties must be clear and unequivocal. In this framework, the Supreme Court of the Republic of Turkey decided as follows:

“A statement of intent regarding the resolution of a dispute by an arbitrator or arbitral tribunal in an arbitration agreement or arbitration clause is a basic element of an arbitration agreement. (…) In order for an arbitration clause or agreement to be valid, the parties must clearly and accurately state in the arbitration agreement or clause in which they disclose their arbitration will in a manner that is not inconsistent and confusing. In order for an arbitration clause or arbitration agreement to be considered valid in the case law of our Chamber and the local Court of Cassation, it is recognized that records that eliminate or weaken the final will that the dispute be resolved by the arbitrator nullify the arbitration agreement or the terms of the arbitration agreement. ” HD., 22.06.2020 T., 2019/3450 E., 2020/1932 F

The arbitral tribunal and the courts cannot be dealing with the same case simultaneously. The authorised courts shall be declared null and void.

Another important issue concerning the arbitration agreements is that the person who will sign the arbitration must necessarily have the legal authority to do so. The reason for this is that the arbitration agreement is signed with special authority. This is regulated by Article 74 of the Civil Procedure Code of the Republic of Turkey:

Article 74 of the Code of Civil Procedure states: “If no clear authority is given, a lawyer … may not conclude arbitration agreements…”.

Some topics are not subject to arbitration in Turkish law. When drafting an arbitration agreement, it is necessary to pay attention to this moment. This issue is regulated by Article 408 of the Civil Procedure Code:

“Disputes arising out of real property rights or which are not subject to the will of both parties shall not be subject to arbitration.”

For example, a dispute involving a house in Turkey or an incident that is the subject of criminal cases cannot be the subject of an arbitration agreement. On the other hand, arbitration may be preferable in disputes (compensation, etc.) arising from contracts for the construction of a condominium, but not related to the transfer of property.

For a valid arbitration agreement in Turkish Law, it is necessary to carefully organize the above processes and, if possible, use ready-made arbitration clauses.

Lawyer Haldun Barish

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AN EXAMPLE OF DUE DILIGENCE OF A COMPANY PARTNER: A CASE OF CANCELLATION OF THE TRANSFER OF THE TRADEMARK

AN EXAMPLE OF DUE DILIGENCE OF A COMPANY PARTNER: A CASE OF CANCELLATION OF THE TRANSFER OF THE TRADEMARK

Attorney HALDUN BARIŞ

In 2021, with the investigation initiated against the general manager of our client company for “trademark infringement“, we learned that one of the partners of the company transferred the trademark used by the client company to his own company several years ago. We on our part, filed a lawsuit regarding the “cancellation of the trademark transfer“. In this concrete case, one of the company’s partners, through the former manager, who he authorized and cooperated with by granting him the power of attorney, transferred the company’s trademark to his own personal company for a symbolic fee. Years later, he sent a warning to the company asking that the trademark should not be used and immediately filed a complaint and led to the initiation of criminal proceedings against our client.

During the prosecution phase, the case of “cancellation of the trademark transfer”, which we filed in the Sivas Civil Court of First Instance, was made a pending case. In the lawsuit we filed in Sivas Civil Court of First Instance, our main arguments were that the transfer of the company partner was made with malice, that a significant value of the company could not be transferred without the approval of the partners, and that the transfer contradicted the due diligence rule of the company partner and the attorney. In addition to various high judicial decisions on the subject, we also added the following European Court On Human Rights’ decision regarding our petition:

“In the concrete case, European Court on Human Rights based its determination that Mr R acted maliciously when making the application on the documents submitted by the LLR-G5 company. As it is understood from these documents, although Mr. R is the company manager, he has registered the core element of the company’s trade mark in his own name without informing and consulting the company itself. Mr. R has knowingly placed his personal interest above the interest of the company and knows that he can seriously harm the company by preventing the company from operating using this tademark. Although the “intention” evaluation at the time of the application is a subjective concept, it is possible to reach a conclusion as a result of the evaluation of the objective conditions of the situation. Accordingly, all tangible conditions such as (i) the concrete actions of the applicant by virtue of his/her position, (ii) the level of awareness of the previous use of the trade mark in question, (iii) the contractual, pre-contractual and post-contractual relationship with the applicant for invalidity, (iv)mutual rights and obligations, (v) the obligation of loyalty and honesty by virtue of his/her current or previous duty within the company, and (vi) the conflicting table of interests as regards to the tademark are taken into account. “(https://curia.europa.eu/juris/document/document.jsf?) (European Court of Human Rights decision dated 16 JUNE 2015 T306/13)

The case was finalized in our favor. I submit to the benefit of our colleagues that the reasoning part of the decision made by the local court is very important:

Based on the reasons of “taking action without taking the decisions required to be taken by the competent bodies of the plaintiff company and misuse of the power of attorney”, The 2. Notary of Sivas province requested the cancellation of the trademark transfer with registration number 2012 … with the invalidity of the trademark transfer agreement made with the transaction dated March 2, 2020 and the defendant’s attorney claimed that the transfer transaction was in accordance with the procedure.

Evidently, according to the provisions of the Turkish Code of Obligations regulating the representation and power of attorney, the power of attorney agreement is largely based on the mutual trust of the parties. Most of the attorney’s responsiblities arise from this element of trust, his obligation to act in accordance with the interest and will of the attorney. In the Turkish Code of Obligations numbered 6098 (TBK), the duty of loyalty and due diligence is accepted as the principal debt of the attorney, and in Article 506, it is stated that “The attorney shall perform the attorney’s responsibilities in person

Ankara Bar Association, Seyhan Law Office, 14.06.2023

. However, in cases where the attorney is authorized to do so or when there’s no other choice or the practice makes it possible, the attorney may pass the job to someone else. The attorney is obliged to carry out the his duties with loyalty and due diligence, taking into account the legitimate interests of the client.

In determining the responsibility of the attorney arising from the due diligence factor, the behavior of a prudent attorney who works in a similar field is taken as a basis. “

On the other hand, if the person who makes the contract with the proxy has good intentions within the context of Article 3 of the Turkish Civil Code No. 4721 (TMK), that is, if he does not know that the proxy is abusing his power or if he does not have the opportunity to know despite the care expected from him, his contract with the proxy is valid and binding. Even if the proxy misuses his/her power of attorney, this issue remains an internal problem between the proxy and the client and cannot be effective on the rights earned by the proxy and client. However, if the third party has an interest in the attorney and cooperates with the attorney, or if the attorney is malicious and knows or needs to know that the attorney has abused his/her power of attorney, the fact that the attorney is not deemed to be bound by the contract should be considered as a natural result of the rule of honesty written in Article 2 of the Turkish Civil Code. Since the aforementioned article of the law is mandatory, it must be taken into consideration by the judge (ex officio). On the contrary, encouraging bad intent would at least be to turn a blind eye on it. However, in all contemporary legal systems, malice has not been defended and has always been condemned. As a matter of fact, lots of scientific opinions as well as practices in this regards have developed and gained certainty. (District Court of Ankara 7. Civil Chamber no. 2018/966E-2020/698 K)

When the information in the above-mentioned regional court decision and the scope of the file are evaluated together, it is seen that the trademark “…” with the trademark number 2012 …. registered on 06/08/2013, which is the subject of the lawsuit, was transferred to the defendant company, where the plaintiff company’s official was his/her own official, for a very small and unacceptable fee of 250.00 TL, that the said transaction was clearly an abuse of power of attorney, that the defendant company had a malicious intent is crystal clear, It was decided to cancel the transfer process subject to the lawsuit by considering that it will not bind the plaintiff company in accordance with the article 2. of the Turkish Civil Code “

SİVAS 3. CIVIL COURT OF FIRST INSTANCE (IN THE CAPACITY OF INTELLECTUAL AND INDUSTRIAL RIGHTS CIVIL COURT) E. 2021/505 K. 2023/379

On the other hand, I believe it would be useful to share here the high judicial decisions we have submitted to the file in order to set a precedent for the case:

“because the trademark subject to the lawsuit includes the trade name of the plaintiff company and is vital for the company to continue its existence, and the decision regarding the acceptance of the lawsuit on the grounds that the transfer of the said trademark of the plaintiff to the defendant company by İlhan, who is the manager in both companies, cannot be considered compatible with the obligation of loyalty and due diligence, the cancellation of the transaction regarding the transfer of the trademark”Eser İnşaat ve Ticaret A.Ş. + Figure”, and the cancellation of the registration of the transfer in Turkish Patent Institute were approved by our chamber upon the appeal of the defendant’s attorney.” Supreme Court of Appeals 11. CIVIL DEPARTMENT E. 2010/9098 K. 2010/10255 T. 14.10.2010;

“If there is no article in the articles of association of the company stating that trademark transfer works will be dealt with and if the said trademark is important for the company’s activity, it is accepted that the transfer of the trademark can be made by the decision of the board of partners” Court of Cassation 11. HD dated 13.02.2006, 2005/1362 E. and 2006/1253

According to the provisions of the law and the articles of association of the company, as a rule, it is necessary to accept that the director authorized to represent the company may dispose of a company’s assets. However, if it is determined that this asset is the only asset owned by the company and is of vital importance for the company to continue its existence, a decision must be taken from the board of shareholders in order for the said commitment to transfer to be valid. In fact, although the issue explained has been accepted by the court, there has not been sufficient research and examination to make a judgment within this framework. Because, as it is understood from the letter sent by Turkish Patent Institute that the plaintiff company has another trademark registered in the same classes other than the trademark subject to the lawsuit, there has not been a suitable examination as to whether the trademark in question is of vital importance for the plaintiff company to continue its existence. ” Supreme Court of Appeals 11. HD E. 2013/1107 K. 2014/7690 T. 18.4.2014

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Fictitious marriage in Turkey

Fictitious marriage in Turkey

Marriage to a Turk for the sake of Turkish citizenship

Marriage with the aim of obtaining a right to work in Turkey

Marriage in Turkey for the purpose of obtaining a residence permit

Fictitious marriage in Turkey

Fictitious marriage occurs when people marry in order to obtain benefits such as a simplified way to the residence permit, work permit, as well as other benefits obtained during the marriage between a foreigner and a Turkish citizen. Since there are no fictitious marriages in the Turkish legislation the number of reasons for the annulment of a contract are limited, therefore a marriage agreement is also rarely cancelled or declared void.

From the point of view of the law regarding the citizenship, according to article 16. In cases where the marriage is accepted as real, i.e. not fictitious, the application for citizenship is transferred to the commission and the consulate or a higher institution, the consulate and the commission are thus entitled to investigate the fictitiousness of the marriage in for an interview with the applicants for citizenship and Turkish citizens who have married.

The decisions of the Supreme Court repeatedly state that the government officials are unable to investigate whether or not the marriage is fictitious. Of course, governing institutions cannot annul marriages. It should also be added that if it is objectively proved that the intent behind the marriage was malicous, for example for the purposes of obtaining citizenship, then government institutions will have the right to annul the marriage. In this context, the responsible government body has the right to investigate the fictitiousness of marriage and has the right to refues the citizenship. From the point of view of the law on foreigners, during the consideration of an application for a residence permit through family ties, there is a clear list of actions if it is proved that a fictitious marriage took place. In this context, according to Articles 35/3-c and 37, if the investigation reveals that the marriage is fictitious, it is clearly written what legal actions will be taken. Unlike a similar situation in the work permit, in this case, the state can investigate whether the marriage is fictitious. According to the International Labor Law, foreigners who are married to a Turkish citizen need only prove that the applicant for the work permit lives with a Turkish citizen with whom he or she is married in order to obtain the work permit. If there is a wish that marriages may be rejected or annulled on account of being fictitious, a regulation must be adopted which clearly and precisely allows the officials to annul the marriage. The marriage will be annulled if it is proved to be fictitious from the point of view of Turkish Law on Citizenship and Foreigners. In such situations, a man usually says that he will achieve a solution in the woman’s favor by receiving a the right to represent her from her. In such cases, if you see a sign of ill-will in such situations, immediately cancel the right and report to the bank or the relevant authorities…

Ultimately, if the aim is to prevent sham marriages aimed at benefiting from marriage to a Turkish citizen, then the boundaries of the state investigation should be clearly indicated in accordance with human rights and with objectivity. Also, it is clearly stated that the state has the right to refuse an application for citizenship, in case of significant evidence of fictitious marriage. In this case, you can contact our office consisting of Russian-speaking lawyers in Turkey, Istanbul, Ankara and Antalya by e-mail info@seyhanhukuk.com or by phone +90 312 427 21 13.

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How to Seize My Receivables in Turkey

*Deniz Mete Özcan

In connection with the latest developments in the world, Turkey has become a trade center for many companies. One of the situations that we, as international lawyers encounter in practice is that the debtor in Turkey does not pay enough attention to the creditor abroad and resists paying his debt.

First of all, what we want to mention about this issue is that different burdens such as the obligation to warn or notify in different cases may be imposed on the creditors by law. In such cases, if the creditor does not fulfill these obligations on time, he/she may lose his/her right to claim his/her receivable by legal means. That is why, in case of a dispute with the person with whom you do business in Turkey, we recommend that you consult a lawyer who is an expert in these matters without delay. Now that we have conveyed one of the situations we frequently encounter to you and made our necessary warnings, we will answer the question of how to receive your receivables through compulsory execution in Turkey, which is the subject of the article, at this point.

First of all, it should be noted that there are more than one forced execution methods in Turkey, these are divided into three as a proceeding without judgement, proceeding with judgement and pawn foreclosure. In our article, we will exclude the pursuit through the foreclosure and explain to you briefly the proceeding with and without judgement.

In the case of proceeding with the judgement, the subject of the enforcement is performance of the court decision. Therefore, in order to apply this way, first of all, a lawsuit should be filed in the competent court and the court should decide in your favor. In order for the receivables that are not subject to money to be followed up, a judgment must first be obtained from the court on this issue. For example, suppose you buy a ton of fabric from a Turkish manufacturer. Even though you have made the payment in the past, you could not get the product from the manufacturer. However, considering the recently rising fabric prices, it will be a more reasonable option for you to seize the goods in kind rather than paying in cash, and if the debtor has the opportunity to perform in kind, then you can file a lawsuit and seize the said receivable in kind after receiving the decision.

Another enforcement method that we will talk about in this article is proceeding without judgement. The Enforcement Bankruptcy Law of Turkiye Republic has regulated the execution without judgment only for money and collateral receivables. You can directly apply for enforcement proceedings without applying to the court in this enforcement process. It is not necessary for this receivable to be subject to a decree or even a document in order to follow up your receivable through proceedıng wıthout judgement. It should not be forgotten that the legislator has given the debtor the right to object since he did not request any document from the creditor in the proceeding without judgement.

We can say from our experience that many merchants are hesitant to pay their debts due to the lack of communication and the fact that they think that the incident will not go to court. As Seyhan Law Office, we can help you get your receivables as soon as possible and in line with your interests with our Russian, Turkish and English speaking professional lawyers and financial experts. If you have a problem with such a matter, you can contact us via WhattsApp or Telgram.

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How to Get a Residence Permit for Language Education in Turkey ?

How to Get a Residence Permit for Language Education in Turkey ?

Due to the upcoming elections, Turkey’s policy on foreigners has changed radically. The residence permits of foreigners residing in Turkey are not renewed, and even many people are deported.

In the light of the latest developments in the world, Turkey is the choice of citizens of many countries for both investment and residence. One of the most common problems faced by our clients recently is not obtaining a residence permit in Turkey. At this point, as Seyhan Law Office, we recommend you try to get a visa for language learning.

If you want to get a visa for   language learning, you must first apply to a Turkish Consulate in your own country. The Turkish Consulate will request certain documents from you for the transaction in question, these are –

  • Visa application form (must be signed)
  • Valid passport during your stay in Turkey
  • Biometric photo (background white and taken in the last 6 months)
  • Language course registration certificate
  • Income Statement
  • Booking flight
  • Accommodation Info (Hotel reservation, rental contract)

The Consulate may require other documents in addition to the documents mentioned above. After collecting the necessary documents and agreeing with a Turkish course approved by the Ministry of National Education in Turkey, you can request an invitation letter from your course and apply for your visa.

You can stay in Turkey for a maximum of 90 days with a student visa, so after entering Turkey, you need to apply for a student residence permit to the relevant government agency. This residence permit can be obtained no more than twice. If the course duration does not exceed one year, the residence permit cannot exceed this course duration, so we recommend that you find a Turkish course that exceeds more than one year.

As Seyhan Law Firm, with our 28 years of experience and professional advocates, we can advise you on which residence permit would be more appropriate for you and help you in case you encounter any legal problem.

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Supply Chain Challenges in 2023

Supply Chains are often times affected by a variety of factors, ranging from global pandemics, to bottlenecks, insufficient infrastructure to international conflicts. There is a number of principles developed by the governmental and intergovernmental organizations to ensure the security of your supply chains.

These principles can broadly be divided into multiple stages. According to the UK’s National Cyber Security Center, these can be listed as follows: Understand the risks, Establish control, Check your arrangements, Continuous improvement. Understanding the risks would include understanding the sensitivity of your contract, the value of the information that your suppliers hold or will obtain access to later on. This will be crucial in case any legal disputes arise later on. Secondly, knowing who your suppliers are and what are their security policies. This will allow you to determine how well is the information provided by you to them will be protected. Your suppliers may also hire subcontractors, in this case you would have to check if the sub-contractors comply with the predetermined security requirements, comprehend the level of access that your suppliers and their subcontractors will have to your information. You should also know what level of control do your suppliers have over the access to your private information, since you may not want them to share it with the outsiders. Make sure that you communicate your security needs clearly to your suppliers so that no misunderstanding can arise.

You may want to group your partners according to the level of risk that they pose to you or your information security. For assessment use such factors as; the impact on your operations, the capacity of likely threats, what is the service that you are acquiring from them, what kind of information do they get their hands on.

Share this information with your suppliers, some commodities require differing approaches to management. For example medical supplies would certainly need to be handled with a different approach than the agricultural products are.

Establishing control; this stage would be absolutely crucial if you want to make sure that you’re in charge of things. To ensure this you would have to identify any suppliers who are constantly failing to meet your security and performance expectations and Identify the most important assets as well as if you’re over-reliant on one of your suppliers – diversification would be your key to staying in Once again, clear communication is important in establishing control as well. Determine and then communicate your minimum security expectations to your suppliers. Don’t ever forget to include the aforementioned security expectations in your contracts and make sure that your suppliers do the same when working the sub-contractors. Ask them to provide you with the proof that they are doing their part. Remember – clear communication is the key.

Checking your arrangements. The main idea here is that you have to be confident in your approach to control over your supply chain. Make sure that each one of your suppliers adheres to the security policies and provides upward reports about their performance.

Add the “right to audit” into all of your contacts and make sure that your suppliers do the same with any of the contracts with the sub-contractors related to your business. (Seek legal advise on this aspect since it is not always possible.).

Establish performance indicators. This will allow your suppliers to keep track of and effectively report to you on their performance. Thus you’ll always know how efficient is your supply chain working which would allow you to improve by working on any of the limitations.

In addition it is important to make sure that you’re protecting from any of the external factors such as – wars, the pandemic or political crisis. To do this you must keep track of the events occurring in the world and create measures in case of any unexpected situations – such as sanctions, currency fluctuations etc. Since these factors are outside of your control the best strategy would be to find effective ways of countering the effects of these occurances. For example finding alternative suppliers or alternative legal ways of working with the existing ones. To navigate the legal aspects of protecting yourself, your company and your and your company’s assets from sanctions please seek the legal advise from Seyhan law firm.

To conclude, all of the mentioned above is very important to make sure that you are protected from any risks involved in the supply chain management and establishment process. To navigate the legal aspects of this question please contact Seyhan Law Firm for legal advise.

Author: Doruk Arslan

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Illegal Gold Trade And Its Implications for Enviroment And Public

Illegal gold trade is a growing problem in the global economy, and it has significant implications for both the environment and the public. This illicit trade involves the illegal mining, smuggling, and sale of gold, which often leads to serious human rights violations and environmental degradation. A lot of people in Africa, including children are using small-scale methods to extract gold. Although millions of people were earning a living through small-scale production methods the governments of Zambia, Ghana and Tanzania complaint about the gold black market.

The gold trade has been a critical aspect of the global economy for centuries, and the demand for gold continues to rise. However, the growth in demand has also led to an increase in illegal gold trade, which is often done in violation of environmental and labor laws. The illegal trade is particularly rampant in developing and underdeveloped countries, especially in Africa, where weak governance structures and limited regulation of the mining industry lead to the growth of the black market for gold. In these countries, the extraction and sale of illegal gold are often done in secret, making it difficult to monitor and control the trade. It also makes it impossible for the governments to tax this gold production and therefore barrs the governments from benefiting from this market – tax money that otherwise could be spent on the national infrastructure such as roads, railways, school systems, police etc.

One of the major consequences of illegal gold trade is environmental degradation. The illegal gold mines are often located in remote and fragile ecosystems, and the extraction process often involves the use of toxic chemicals and hazardous waste. The chemicals and waste are often dumped into the surrounding environment, contaminating water sources and damaging wildlife habitats.

Additionally, the mines often lack proper waste management systems, which further exacerbates the environmental impact. One example would be the illegal gold mining in Brazil which led to the destruction of the Amazonian rainforest. Brazilian mining lobby even released a statement addressing the country’s foreign ministry to work with other governments to develop policies and strategies with the purpose of combatting the illegal gold trade. The statement made by the President of Ibram Trade Association, Mr Raul Jungmann said: “The trade of illegal gold feeds a criminal alliance in Brazil, which is responsible for part of the devastation we see in the Amazonian rainforest, something the world is watching.” The unregulated gold mining under the former President Jair Bolsonaro has dramatically increased, which in turn led to the destruction of the rainforest and led to the pollution of the rivers. Thus, stopping illegal gold trade is extremely important to protect the environment.

Illegal gold trade also leads to serious human rights violations, including child labor, exploitation, and abuse of workers. The workers in illegal gold mines are often subjected to long hours, dangerous working conditions, and low wages. Moreover, they often have limited access to healthcare, education, and other basic necessities, which further exacerbates their plight.

Children are also often used as cheap labor in illegal gold mines, and they are subjected to hazardous working conditions that put their health and well-being at risk.

To combat illegal gold trade, governments and international organizations need to work together to improve governance and regulation of the mining industry. This involves strengthening environmental and labor laws, increasing enforcement and penalties for those who engage in illegal activities, and improving the monitoring and control of the trade. Additionally, the international community must work to improve transparency in the gold trade, making it easier to track the origin and flow of gold from mine to the customer.

To conclude, illegal gold trade is a growing problem that has serious implications for both the environment and people. It is essential to take action to combat this illicit trade, including improving governance and regulation, increasing enforcement and penalties, and improving transparency in the gold trade. By taking these steps, we can help protect the environment, improve working conditions, and promote sustainable development in the global economy.

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Principles of Standardization in International Trade

The best way to define standards is a “system of reference” which would typically be used by the parties in the export-import or transit activities. The standards guarantee the technical specifications related to products, services and organizations, including their quality, usage and rights. However, unless they are cited as a regulation or a directive, their usage is not necessary. These standards usually vary from one country to another, however large international trade organizations such as the WTO or Customs Unions such as the EU tend to generalize these standards, in order to reduce the number of misunderstandings or to resolve dispute regarding the aforementioned trade activities.

There is a number of relevant standardization bodies:

One of them is ISO – International Organization for Standardization. It aims to harmonize the standards on a Global Level. Elaborated in the Global Consensus Framework, it contributes to rationalization of the International Trade Framework.

The ISO has been created in 1947 Over the period of its existence it has published 19,500 international standards recognized in lots of countries and in almost every field of technology and economics, except for the fields of telecommunication and electro-technical engineering which are linked to the International Telecommunication Union (ITU) and International Electro-Technical Commission (IEC). These standards provide specifications for the products and services as well as firm practices aimed at improving the overall economy.

The ISO consists of national standardizing organizations from more than 160 countries. ISO works together with the European Committee for Standardization. Thus, these standards can be applied both in Europe and in the rest of the globe.

There are different types of Standards:

The Standards allow to define a common set of definitions for international economic actors – Producers, Consumers, Carriers, etc. In addition it allows to clarify and harmonize the practices among parties. These standards are aimed at facilitating global trade, thus allowing for greater amount of operations which would in turn lead to an increase in wealth. Other than that they also make life easier in general. These standards are used as the documents of reference. Essentially it is a consensus accepted by the markets regarding the import- export activities. These standards may concern goods, services or management systems, for example the ISO 90001 concerning the quality management or the ISO 14001 about the Environmental Management.

The Standards shouldn’t be mixed up with the regulations. Regulations are established by the governmental of inter-governmental authorities and are mandatory, standards on the other hand as mentioned above are principles agreed upon by the parties and are not mandatory. Standards allow companies to satisfy the expectations regarding safety and quality of the products and services, by doing so companies may improve their products and services. Standards may support regulations if they are listed as references.

In order to successfully enter a market, you would have to follow all the standards. The companies are trying to make sure that the standards are consistent with their goals and needs. A company may take an interest in standardization in order to forecast what the markets will want in the future and to protect their goods services.

Thus standards contribute to the markets, allow to increase the overall levels of wealth in the world. Companies that comply with the standardization rules are more likely to succeed in the new market.

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INCOTERMS – International Commerce Terms – The importance of International Commerce Terms in International Trade

INCOTERMS – International Trade Terms – A list of International Trade Terms established by the International Chamber of Commerce (ICC). These are the conditions that determine the responsibilities of the parties in international trade activities. It is widely used in international commercial activities, and its use is often encouraged by courts, lawyers, and commercial advisory agencies.

These are three-letter terms. The most important purpose of these is in International Carriage of Goods: to determine the activities, costs and risks. INCOTERMS add clarity to contracts regarding liability – that is, the transport costs of the goods up to the destination of the goods and the risks associated with it.

INCOTERMS are used by the world’s states and various national and international organizations to identify the most common practices in international trade. In this way, disputes that may arise due to differences in foreign trade legislation in different countries are eliminated. Therefore, they are used in commercial contracts all over the world.

INCOTERMS are only determined by the ICC because they are a registered trademark of the ICC.

The first International Trade Regulations were published by the ICC in 1923, but were first published as INCOTERMS in 1936.

There are specific terminology used in incoterms:

Delivery: It is the moment when the risk of damage or loss related to the goods passes from the seller to the buyer.

Arrival: It is the moment when the transportation is paid in incoterms.

Free: The seller has the responsibility to take the goods to a designated address and deliver them to the carrier.

Carrier: any person who, in a contract of carriage, undertakes to carry out or cause to be carried out the carriage by rail, road, air, sea, inland waterway or a combination of such modes

Freight Forwarder: A firm/party that adjusts or helps arrange transportation

Terminal: It can be an indoor or outdoor area, stock, dock, road, railway or air cargo terminal

To clear for export: Sending the export declaration of the carrier and obtaining the export permit.

INCOTERMS are a set of three-letter trade terms used in international trade to clearly define the responsibilities of buyers and sellers. There are 11 different INCOTERMS, and each one outlines the responsibilities for delivering goods from the seller to the buyer.

EXW (Ex Works) – The seller’s only obligation is to make the goods available at their premises. The buyer bears all costs and risks involved in taking the goods from there to the destination.

FCA (Free Carrier) – The seller delivers the goods to the carrier nominated by the buyer at the seller’s premises. The seller is responsible for loading the goods on the means of transport. The buyer assumes all costs and risks from this point onwards.

FAS (Free Alongside Ship) – The seller delivers the goods alongside the ship at the port of shipment. The buyer assumes all costs and risks of loss or damage to the goods from this point onwards.

FOB (Free on Board) – The seller delivers the goods on board the ship at the port of shipment. The buyer assumes all costs and risks of loss or damage to the goods from this point onwards.

CFR (Cost and Freight) – The seller delivers the goods on board the ship at the port of shipment. The seller pays the cost of transport to the port of destination and assumes the risk of loss or damage to the goods until they are on board the ship.

CIF (Cost, Insurance, and Freight) – The seller delivers the goods on board the ship at the port of shipment. The seller pays the cost of transport to the port of destination, arranges for and pays for the insurance and assumes the risk of loss or damage to the goods until they are on board the ship.

CPT (Carriage Paid To) – The seller delivers the goods to the carrier at the port of shipment. The seller pays the cost of transport to the port of destination and assumes the risk of loss or damage to the goods until they are handed over to the first carrier.

CIP (Carriage and Insurance Paid To) – The seller delivers the goods to the carrier at the port of shipment. The seller pays the cost of transport and arranges and pays for the insurance to the port of destination and assumes the risk of loss or damage to the goods until they are handed over to the first carrier.

DAP (Delivered at Place) – The seller delivers the goods to the place specified by the buyer. The seller is responsible for all costs and risks involved in getting the goods to the specified place.

DPU (Delivered at Place Unloaded) – The seller delivers the goods to the place specified by the buyer and is responsible for unloading them. The buyer assumes all costs and risks involved in getting the goods from the port of arrival to their final destination.

DDP (Delivered Duty Paid) – The seller delivers the goods to the place specified by the buyer, clears them for import and pays any customs duties and taxes. The buyer assumes all costs and risks involved in getting the goods from the port of arrival to their final destination.

It’s important to note that these terms only define the responsibilities for delivering goods and do not cover the actual contract of sale. The parties involved in a transaction must agree on which INCOTERM to use and define the specific details of their agreement.

 Author and Translator of the Text: Doruk Arslan

Posted on

THE CRIME OF ENTERING THE INFORMATION SYSTEM

Today with effect of technological progress, most of our important information’s stored at our computer systems. Because of this progress, security of this computer system much important than it was in past. Although certain measures are taken for the security of these channels and our privacy, these measures are not sufficient from time to time. This security problem makes IT law important nowadays.

There are some arrangements, for the uninterrupted continuation of the information system we have developed and protect privacy of IT systems which was build for job or haveseparate way of usage, In the Turkish Penal Code No. 5237, Regulation of Broadcasts on the Internet No. 5651 and Law on Combating Crimes Committed by This Broadcasts.

In addition, there are norms related to the IT law legislation in various laws. Besides all this regulations people using the information system want to feel themselves in safety by several ways. Foremost among these methods are methods such as frequently renewing the password, not using unsafe websites, and anonymizing the user identity by using a proxy. And we can count methods like Firewall or dealing with cyber security company as a more professional method. But still these methods not always can stop professional hackers.

Hackers are people who enter our information system without our consent and sometimes steal our information, lock or change our system or make it unusable. Hackers may have targeted person individually or person may have been targeted in a mass hacking process and persons information may have been stolen. At this point data at information system may be stollen or privacy may be in danger. The crime and sanction related to this situation are regulated in Article 243 of the Turkish Penal Code.

Article 243 of Turkish Criminal Code No. 5237

(1) Anyone who illegally enters or remains in the whole or part of an information system is sentenced to imprisonment of up to one year or a judicial fine.

(2) If the acts defined in the above paragraph are committed about the systems that can be used for a price, the punishment to be imposed is reduced by half.

(3) If the data contained in the system is destroyed or changed due to this act, a prison sentence of six months to two years is imposed.

(4) A person who unlawfully monitors data transmissions within an information system or between information systems, without entering the system, through technical means, is sentenced to imprisonment from one year up to three years.

Material Elements: Entering/infiltrating the information system or staying there for a while without permission/illegally

Moral Element: İntent Period of Limitation: 8 years, (6-month statute of limitations due to complaint is not applied.)

In addition to the elements listed above regarding this crime, there should be no reasons for compliance with law. For example, consent of the person is a compliance with law. For this crime to occur, an information system must be hacked, as the informatics world puts it. This entering the system should be without permission/unlawful and with intent.

The point which discussed about this is crime is if someone instantly infiltrated the system but not staid there, is crime committed or not? Some jurists think that instant infiltrations will not be the subject of this crime. At this point we can say that when we look at justification of this clause, we can see that instant infiltrations also will constitute this crime no matter how long criminal stayed there; ‘In the first paragraph of the article, illegally entering or staying in the whole or part of an information system has identified as a crime. It does not matter whether the person who entered the system illegally acted to obtain certain data or not. The fact that the system has been entered unfairly and deliberately is sufficient for the crime to occur.’

[Turkish Criminal Code 243 Justification (in Turkish)

https://mevzuat.tbmm.gov.tr/mevzuat/faces/maddedetaylari?psira=18779]

Another point of discussion, will attempt occur for this crime or not? We think that provision of attempt regarding this crime can be applied. Because if person want to enter the information system but can not because of the dynamics of the informatics world and because of this did not fully commit the crime. Then person should be judged because of the attempt to Turkish Criminal Code clause 243.

At the stage of complaint to the prosecution first we should identify the identity of hackers. This determination is provided by the service providers through the IP number and address information. But sometimes they don’t share this IP number and address information. In such cases, unfortunately, the desired results legally may not be obtained.

On the other hand, considering the importance of information systems nowadays and its relevance to the privacy of the individual, we can easily state that the sanctions stipulated in the law regarding this crime are insufficient. In this respect, we argue that cybercrimes and sanctions should be reorganized in a more comprehensive way.

Legal Intern Haldun Barış

Bibliography

1- Turkish Criminal Code article 243 law’s preamble

https://mevzuat.tbmm.gov.tr/mevzuat/faces/maddedetaylari?psira=18779

2- KARAKEHYA, Hakan, TÜRK CEZA KANUNU’NDA BİLİŞİM SİSTEMİNE GİRME SUÇU, Turkey Bar Association Magazine, http://tbbdergisi.barobirlik.org.tr/m2009-81-498

3- BİLİŞİM SİSTEMİNE GİRME SUÇU NEDİR? (TCK 243), https:/barandogan.av.tr/blog/ceza-hukuku/bilisim-sistemine-girme-sucu-cezasi-nedir.html

4- BİLİŞİM SİSTEMİNE GİRME SUÇU TCK 243, https://mihci.av.tr/bilisim-sistemine-girme sucu/

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