Intermediate Appellate Review of Commercial Law Decisions in Turkey

Berna Tepe

doi:10.5195/emaj.2014.51

Abstract

The judiciary in Turkey is still preparing for the expected intermediate appellate review (istinaf) mechanism in Turkey although the official date for its functioning is yet to be specified. Under Turkish law, a first instance court decision can be appealed not because an assertion or a claim is rejected, but due to a substantive or procedural norm of law which should have been applied during the proceedings in an accurate manner. The scope of such review also covers the suitability of the first instance court’s decision. There are nonfunctional aspects to the judicial review as specified in the 2011 Code of Civil Procedure of which a major column of novelties consist of the suspended mechanism of dual appellate review. However, the 2011 Code of Civil Procedure regulates the intermediate appellate review as a series of procedural acts and steps. The reasons to appeal a first instance court’s decision can rather be deduced from the provisions of 2011 Code of Civil Procedure. In order to structure the reasons and stages of the intermediate appellate review in Turkey, a distinction is made in the present article between (i) review over the appeal’s conditions of admissibility, (ii) review of the decision’s legality, (iii) review of the decision’s legitimacy. Rationally, the reasons for intermediate appellate review should be construed as to accomodate at least the grounds for higher appellate review as well as the extraordinary judiciary review. As different areas of private law are based on different principles, it is noteworthy that cases referred to herein pertain to commercial law. Finally, due to the parallelism between the Turkish and the French legal systems, references to decisions given by the French jurisdiction on commercial matters are made throughout the present article.

Highlights

The dual appellate review has been introduced by the 2011 Code of Civil Procedure as to replace the ordinary type of reviews currently both conducted by the Court of Cassation
Inspired by the current preparations in that vein, the present article is based on the 2011 Code of Civil Procedure’s provisions on appeal regulating how intermediate review is to be conceived in Turkey; the appellate column of the code will enter into effect when the courts of appeal start functioning
Some actors of the juridical system in Turkey are anxious that the disposition periods as a primary indicator of the efficiency of a juridical system would be critically affected once the courts of appeal start functioning

Summary

INTRODUCTION

The dual appellate review has been introduced by the 2011 (revised) Code of Civil Procedure as to replace the ordinary type of reviews currently both conducted by the Court of Cassation. With the effective establishment of the intermediate appellate review, while the Court of Cassation’s organisation is not expected to change in a significant manner, the jurisdiction of each main court of appeal would cover a certain geographical area of Turkey. Inspired by the current preparations in that vein, the present article is based on the 2011 Code of Civil Procedure’s provisions on appeal regulating how intermediate review is to be conceived in Turkey; the appellate column of the code will enter into effect when the courts of appeal start functioning. Counterappeal is enabled while the pecuniary threshold is not applicable in case of counterappeal Those who hold a legitimate interest in applying; others who may hold a legitimate interest in higher appellate review are not explicitly stated by the Code of Civil Procedure. Taking into account the general principle enabling parties’ control under the law of procedure, the Commercial Code, Article 557 can be conducive both to mandatory procedural dependency (usuli zorunlu dava arkadaşlığı) and joint action by choice (ihtiyari dava arkadaşlığı) between defendants Under both types of joinder, each defendant may still appeal the first instance court’s decision in an independent manner. And due to the same perspective, principle of adversariality which should be maintained during intermediate appellate review

Suitability of the Decision

Principle of Adversariality

Results of review