Turkish Law Research Articles

An Atypical Joint Stock Company under Turkish Law: Basic (Atypical) Principles in the Establishment and Share Issuance of Investment Companies with Variable Capital

An Atypical Joint Stock Company under Turkish Law: Basic (Atypical) Principles in the Establishment and Share Issuance of Investment Companies with Variable Capital

Recognising Palestinian Refugees: Applicability of Article 1D of the 1951 Refugee Convention in Turkey

Abstract The special international regime for Palestinian refugees established by Article 1D of the 1951 Refugee Convention has yet to receive sufficient attention in Turkish asylum literature. Although Turkish law has incorporated Article 1D, neither scholars nor practitioners have pushed for its implementation. This research contends that Palestinians should be recognised as refugees in Turkey. Despite Turkey only granting refugee status to individuals from Europe due to the Convention’s geographical limitation, this article argues that an exception should be made for Palestinians. To this end, this article addresses how Article 1D of the 1951 Refugee Convention applies in Turkey by focusing on the interplay between the Convention and Turkish laws and regulations, as well as considering recent case law in other jurisdictions, particularly in Europe. By doing so, it aims to demonstrate that it is possible, though challenging, to improve the legal status of Palestinians in Turkey, mainly through strategic litigation.

The American Board and the Lausanne Conference Processes

This study aims to deal with and analyse how the American Board missionaries viewed both the process leading to the Lausanne Conference and the Treaty of Lausanne through the Missionary Herald, the journal of the American Board and to cast a light upon the views of America and the missionaries towards the new Ankara government within the framework of the Treaty of Lausanne. Thus, it is intended to show on which basis America built its relations with the newly established Turkish state after the collapse of the Ottoman State, and on which principles of this relationship are founded. In line with this purpose, the process leading to the Treaty of Lausanne and the Lausanne Treaty has been chosen as an example. In other words, case study analysis, one of the qualitative research patterns, was used to understand and evaluate the relations between the United States and the newly established Turkish state, and the study was mainly based on the information given by the American Board missionaries regarding the Lausanne Treaty. The data obtained were analysed through the descriptive analysis method, which allows the data to be summarised and interpreted within the framework of predetermined themes and to examine the cause-effect relationship in the quotations. As a result of the Treaty of Lausanne, missionary organisations were now completely subjected to Turkish law and lost their foreignness and privileges. For the American Board missionaries in Turkey, the behaviour of the American government officials that led to all these developments were considered "tragic mistakes that could not be corrected". Despite this view, the treaty made it possible to make more precise plans for the continuation of missionary initiatives in Turkey. The rights and privileges expected in the work to be carried out were finalised with this treaty.

Elite lawyers in Türkiye: Educational capital, status hierarchies, and feminization

Abstract Sociological studies on elite lawyers working in large law firms have recently extended to non-Western countries. Based on a quantitative dataset comprising 1,303 lawyers from 106 Turkish law firms, this article aims to be the first empirical investigation of the social profile of lawyers in the rising large law firms in Türkiye. The analysis focuses on how characteristics of Turkish elite lawyers, in terms of educational capital, gender, and status are distributed. The objective of the analysis is to discover to what extent the expansion of legal education and rise of the private universities are reflected in the structure of elite law firms. To discover the relationships between university type, gender, and position at job, chi-square, and logistic regression analyses are conducted. Main findings are that the Turkish elite lawyers constitute a stratum where the most advantageous educational capital is concentrated compared to the profession in general, the lawyers working in the employee position are relatively young and have mostly private university degrees, and the increased feminization of the profession is closely intertwined with the status hierarchies.

A scaffolded speaking and writing ELP course for commercial lawyers: An action research case study from an undergraduate law school in Istanbul

The author used action research to implement significant changes to an English for Specific Legal Purposes (ELP) course at a private university in Istanbul to meet the professional discourse needs of Turkish law students. The previous syllabus was focused on American Supreme Court case reports; however most of the students would mainly use English to advise on contracts in commercial law practice. Content and language integrated learning (CLIL) and genre analytical methodologies were used to develop pedagogy for the new syllabus, which was scaffolded so that students began learning the functional organization and lexico-grammatical properties of a contract before participating in an oral advice role play activity and writing a letter of advice about it to a hypothetical client. In conjunction with discussion of the pedagogical rationales for syllabus design and instructional activities, observations of student participation in the oral advice activity and feedback on a student example of the letter assessment are presented to critically reflect on the utility of this ELP course designed to help undergraduate law students to discursively function as lawyers, especially those learners from non-English speaking backgrounds, who need to communicate in English as the primary lingua franca for international legal practice.

CONSTITUTIVE ELEMENTS OF THE COMPANY CONCEPT ACCORDING TO TURKISH LAW: RULES, EXCEPTIONS AND TRENDS

One of the distinctions made for companies under Turkish law, and perhaps the most preferred, is the distinction made between commercial companies and ordinary partnerships. According to this distinction, while commercial companies have legal personality, ordinary partnerships constitute a general scope for corporate relations without legal personality. The elements that are valid for the concept of company are the elements that exist for all companies, regardless of their type, and are constitutive. Differences in the details of these elements and the different appearances they present create rules and exceptions. The compulsory elements for all types of companies can be listed as person, asset, common goal, contract and active effort. These elements are present in all companies, although their impact is felt in different ways. Otherwise, there may be a possibility of termination of the company relationship for just cause. The elements of the company concept should be re-evaluated within the framework of digitalization and technological developments in law. For this reason, efforts should be made to adapt to artificial intelligence technology in the establishment, management and supervision of companies.

ALTERNATIVE DISPUTE RESOLUTION ON CONSUMER CONFLICTS IN THE EU AND TURKEY

Consumer conflicts arise every day and how to handle this issue is a major part of ensuring consumer redress mechanisms. Because of the workload of courts and the length of cases, Alternative Dispute Resolution (ADR) on consumer conflicts began to occur in the 1970s. The European Union (EU) has always been a supporter of ADR and regulated a specifically Directive with its principles to bring a minimum harmonization duty for member states to ensure a single market. However, because of the general nature of the articles, there have been lots of different approaches and methods in the member states. And, it has become imprecise to understand if it is a good role or effective because of the ambiguous provisions and a variety of approaches. Turkish Law on Consumer Protection entered into force in 2014 to assure harmonization duty of EU acquis, and it regulated the sui generis procedure of Consumer Arbitration Committees (CAC) and then compulsory mediation on consumer conflicts with an added article in 2020. This article argues that CAC is harmonized with the EU acquis and ADR systems in Turkey bring more effective consumer redress mechanism due to cultural and economic reasons for now even if it is not perfect and has to be improved.

When migration meets private international law: issues of private international law in divorce actions of Syrian migrants under temporary protection before the Turkish courts

The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.

The Meaning of the Titles of Articles Under Turkish Law

Mevzuatımızda neredeyse tüm düzenlemelerde yer alan madde başlıklarının ilgili düzenleme bakımından taşıdığı anlam sadece 1982 tarihli Türkiye Cumhuriyeti Anayasası’nda, Milli Eğitim Temel Kanunu’nda ve Türk Ticaret Kanunu’nda açıkça düzenlenmiştir. Madde başlıkları, yargı kararlarında bir yorum aracı olarak kullanıldığı gibi kimi durumlarda düzenlemenin içeriğini belirleyen nitelikte de kabul görmektedir. Yazılı hukuk kurallarının günümüzde ayrılmaz bir parçası haline gelmiş olan madde başlıklarının anlamı ve hukukumuzdaki yeri bu bakımdan incelemeye değer bir konudur.

APPLICATION OF MAINTENANCE DURING THE WAITING PERIOD ('IDDA'): A PERSPECTIVE FROM OTTOMAN AND TURKISH CIVIL LAW

This study examines the Islamic perspective on alimony or maintenance during 'idda, which is the waiting time a divorced woman must observe before remarrying. The study will also evaluate Ottoman law's application to a divorced woman's maintenance during the waiting time by analysing court records from its six-century history. Finally, the study will explain how poverty alimony practices are handled in Turkish law. This study used a mixed-methods research design involving qualitative and quantitative data collection and analysis techniques. The study will begin with a literature review of Islamic, Ottoman, and Turkish law to establish a theoretical framework for the research. The literature review will also provide an overview of the existing scholarship on the topic, identify gaps in the literature, and inform the research questions. The study used a purposive sampling technique to select court records from the Ottoman era relevant to the research questions. The chosen court records will be analysed using content analysis to identify the legal principles that guided the court's decision-making on alimony or maintenance during the 'idda. The study aims to comprehensively analyse the Islamic perspective on alimony or maintenance during the `idda period and evaluate the Ottoman law's application to a divorced woman's maintenance during the waiting time. The study also explains how poverty alimony practices are handled in Turkish law. The study's findings will contribute to the existing literature on Islamic law, Ottoman law, and Turkish law and provide insights for policymakers, legal experts, and women who have gone through the divorce process in Turkey.

Turkish Product Liability Law from the Perspective of European Law

Abstract Product liability has been, and continues to be, a problematic area in Turkish law. Prior to legislative attempts to introduce strict product liability, producers could only be held liable based on their fault. Although liability based on fault cannot provide appropriate solutions to all product liability problems, the Turkish Court of Cassation was in the process of establishing case law that was suitable to most product liability issues. However, this development was interrupted by problematic legislative attempts to introduce strict product liability, which became the focus of academic literature on product liability. The final of these legislation attempts is the Product Safety and Technical Regulations Act of 2020. In this Act, product liability and product safety rules are intertwined with each other. This is problematic for product liability provisions, since concepts and rules that should remain in product safety law are transferred to product liability law. The Act claims to be in line with the Product Liability Directive of 1985. However, this is far from accurate. The Act fails to harmonise Turkish law with the Product Liability Directive of 1985, let alone offer solutions to problems that have become apparent since 1985. This article attempts to highlight the product liability issues caused by the Act and interpret its provisions in a manner that is as compatible with European law as possible.

An Overview of Criminal Provisions Responding to Hate Speech in Turkish Law

Abstract There are several reports and cases that demonstrate the clear increase of hate speech in Turkey through media and especially on social media against some national and religious minorities, asylum seekers, refugees, and LGBTQ. This was also reported by the European Commission which pointed out that there is no effective prosecution of incitement to hatred, including by the media. In addition hate speech is not clearly regulated, expressions that can be considered hate speech are interpreted sometimes through provisions that regulate the crime of defamation against a person or the crime of defamation against a part of people. Although tidy legislation which defines and regulates hate speech through media, the internet and, social media is not yet available in the Turkish Penal Code. Major provisions that can be associated with hate speech are available in the Turkish Penal Code in a scattered manner. There are also related regulations in the law governing internet broadcasting and the law governing radio and television broadcasting. Expressions that can be considered hate speech are, in some cases interpreted through provisions that regulate the crime of defamation against the person. The most important problem pertains to the fact that hate speech and hate crimes have not been prescribed under a single title in Turkish Law.

LIMITS AND EXCLUSIONS OF THE RIGHT TO LIFE UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND TURKISH LAW

While philosophical, moral and religious debates continue in terms of the value and quality of human life, legal systems seek ways to protect individuals from situations that cannot be described as a natural death. Every person has a value from legal and humanitarian view. The right to life can be considered as the most basic right. In short, every human being has the right to live. This right is protected by law. The right to life involves the right not to be deprived of life illegally by states. The governments should take positive steps to protect the lives of everyone in their states. For this purpose, the right to life is accepted as an inviolable right and center of rights both in domestic law and in the European Convention on Human Rights. This article mainly deals with the right to life under the European Convention on Human Rights and Turkish law. In addition, the substance, importance and exceptions of the right to live, the responsibility of the state in the protection of this right and special cases related to the right to life are analysed.

The Mobility of Legal Education in the Tanzimat Period and Mekteb-i Hukuk-ı Şahane

The law is one of the basic and vital foundations that the human species needs to ensure the order existing in nature between individuals in a “just” manner. Law has been an instrument of education in the context of acquiring and learning the awareness of rights as well as rights acquired from birth. In this study, the mobility of the legal education applied during the Tanzimat period of the Ottoman Empire is explored. The establishment of the Encümen-i Daniş and Darülfünun and the deployment of legal education within the higher education model during the construction of the modern academic system are addressed chronologically. The establishment, curriculum, administration/teaching staff, and student profile of the Mekteb-i Hukuk-ı Şahane, which started its education activities as an independent school, are analysed. The graduates of the school, with their identities as jurists, were involved in many different activities that had significance in the history of Turkish law. In this regard, the lives of many graduates could be analysed as topics that will enrich the research conducted on the history of law. Historical analysis method was used in the study and also the data were obtained by scanning the education and state yearbooks. Document analysis method was used in the analysis of the obtained data.

The Legal Nature of Program Formats as Copyrightable Works in Turkish Law

The Legal Nature of Program Formats as Copyrightable Works in Turkish Law

Procedural issues in international bankruptcy under Turkish law

This article examines the procedural issues in a bankruptcy lawsuit with a foreign element from a Turkish private international law perspective. The article begins with a brief overview of the bankruptcy procedure under Turkish domestic law. It then explores the jurisdiction of Turkish courts in an international bankruptcy lawsuit in detail. The effects of a foreign choice of court agreement and parallel proceedings are also addressed in discussing the international jurisdiction of Turkish courts. The article also touches upon the debates on the possible legal grounds for the inclusion of assets located abroad to the bankruptcy estate established before Turkish courts considering the approaches of universalism and territorialism. Finally, problems related to the recognition of foreign bankruptcy decisions are examined.

Structuring of Special Purpose Vehicle (SPV) Within the Scope of Public-Private Partnerships (PPPs) Under Latvian and Turkish Law

Abstract The establishment of a specific project company most commonly known as a Special Purpose/Project Vehicle (SPV) is a key feature of most Public private partnership (PPP) transactions in Turkey. According to the competent authority, the SPV is considered to fall under the definition of a Securitisation Special Purpose Vehicle (SSPE) then it should not be considered a financial sector entity. In order to meet the increasing infrastructure needs of Turkey, it is generally accepted necessary to utilise alternative financing models to be provided with the participation of the private sector in addition to the use of public resources. In this framework, PPPs model, which has been widely used in realisation of infrastructure investments in developed and developing countries in recent years, is also applied in Turkey. SPV PPP risks, income and losses usually are shared in proportion to the shares of a public partner and a private partner that they have in a joint venture. However capital companies also bid for the tender opened by the contracting public authority according to the relevant laws. If the tender is awarded to a business partnership or a capital company according to the relevant law, the documents regarding the establishment of the special purpose vehicle shall be requested. Generally, the SPV structured as a joint stock company. SPV is a feasible and an effective option for the lenders and financiers, who take into account the cash flow of the project and security over its assets for the repayments of the debts.

Historical Development of Adoption Institution in Turkish Law

Evlat edinme eski çağlardan beri var olan bir kurumdur. Farklı toplumlarda, değişen coğrafyalarda, geçen zaman içerisinde özellikleri değişmekle birlikte evlat edinme genel olarak varlığını korumuştur. Benzer durum Türk kültüründe evlat edinme kurumu açısından da görülmektedir. Eski Türk topluluklarından bu yana Türk kültüründe yaygın olarak kabul gören evlat edinme zaman içerisinde değişiklik göstermişse de varlığını her zaman sürdürmüş ve günümüzde modern, çocuğun korunmasını esas alan bir yapıya kavuşmuştur. Çalışmamızda evlat edinme kurumunun zaman içerisinde Türk kültüründeki değişiminin bir bütün halinde hukuksal boyutuyla değerlendirilmesi amaçlanmaktadır. Bu kapsamda öncelikle İslamiyet öncesi Türk devletlerinde evlat edinme kurumu ele alınmakta, ardından sırasıyla İslamiyet sonrası ve Osmanlı Devleti’nde evlat edinme kurumu ile Türkiye Cumhuriyeti’nde evlat edinme kurumuna yer verilmektedir.

Evaluation of Article 60 of the Turkish Law of Obligations Number 6098 In Terms Of Civil Procedure

Hayatın olağan akışında bir şahsın, aynı zarar verici olaydan farklı sebeplerle sorumlu tutulabilmesi mümkündür. Sorumluluk sebeplerinin birden fazla olması diğer bir ifadeyle sebeplerin yarışması meselesi doktrinde eskiden beri tartışılan ve kararlarla geliştirilen bir müessesedir. 01.07.2012 tarihinde yürürlüğe giren 6098 sayılı Türk Borçlar Kanunu’nun 60’ıncı maddesinde açıkça düzenlenen yarışma meselesi, Türk hukukunun bir parçası hâline gelmiştir. TBK m. 60 uyarınca bir davada birden fazla sorumluluk sebebi aynı anda uygulanabiliyorsa hâkim, zarar gören aksini açıkça talep etmiş olmadıkça, en iyi giderim imkânını sağlayan sebebe göre karar verir. Görüldüğü üzere TBK m. 60 hükmü ile zarar görenin birden fazla sorumluluk sebebine dayanabileceği durumlarda uygulanacak olan prensipler düzenlenmiştir. Bununla birlikte maddenin lafzı, yarışma sorununa bir çözüm getirmediği gibi daha fazla sorunun ortaya çıkmasına sebep olmaktadır. Bu kapsamda, özellikle, mehaz İsviçre Borçlar Kanunu Ön Tasarısı’nın 53’üncü maddesinde yer almamakla birlikte TBK m. 60 hükmüne eklenen “zarar gören aksini istemiş olmadıkça” ifadesi doktrinde ileri sürülen eleştirilerin odak noktasını teşkil etmektedir. Çalışmamızda medenî usûl hukuku açısından sorumluluk sebeplerinin yarışmasını düzenleyen TBK m. 60 hükmünü değerlendirmeyi amaçlamaktayız.

A Comparative Legal, Economic and Structural Analysis of Challenging Shareholders’ Resolutions Under Turkish and English Legal Systems

English law system and Turkish law systems have different approaches to protection of shareholders and challenging shareholder resolutions. These differences have important historical, economic background reasons and also economic and legal outcomes. In order to understand reasons for these differences an economic as well as a legal and cultural analysis should be conducted. Difference in the corporate ownership structures of these legal systems is the primary underlying reason; effective ex ante contractual minority protection mechanisms under English legal system is the second reason, and finally differences in legal nature of shareholder rights under these law systems is the third reason for the different approaches of these legal systems towards challenging shareholder resolutions. It is also important to analyze the legal and economic efficiency of the two legal systems in terms of challenging shareholders resolutions. Considering applicable legal institutions regarding challenging shareholders resolutions, it is possible to say that the English legal system is economically more efficient however due to the uncertainties and complexities involved, the English legal system can be characterized as legally less efficient.