The Turkish litigation practice has never had a positive image,
especially from foreign companies' standpoint. While the
reasons for the latter are numerous, unacceptable duration of court
proceedings, which may be up to 4-5 years including the appeal
stage, has probably been the main factor. Accordingly, resorting to
litigation by filing a court case before Turkish courts has never
been a preferred strategy for foreigners when taking legal action
against their Turkish debtors.
In Turkey, commercial court cases, which, for many, constitute
the most important part of the Turkish litigation practice, are
handled in accordance with Civil Procedural Law No. 1086
(The Law). Enacted in 1927, the Law has been
amended numerous times since then. The most common criticisms
brought against the Law are (i) its old-school language which
contains plenty of obsolete expressions, (ii) its complexity and
especially (iii) its loopholes which make it vulnerable to abuse by
defendants acting in bad faith.
On 12 January 2011, the Turkish Parliament passed Civil
Procedural Law No. 6100 (The New Law), which will
have abrogated and replaced the Law as of 1 October 2011. Although
the New Law cannot be considered as a breakthrough in Turkish
litigation practice, it brings forth a number of useful procedural
mechanisms which would obviously have an accelerating effect in
respect of court proceedings. Some noteworthy features of the New
Law are as follows:
The most essential change introduced by the New Law is
incontestably the establishment of a new procedural phase called
"preliminary investigation" (on inceleme).
Pursuant to the current practice of the Law, each party to a
certain case submits two petitions to the court including their
respective claims and arguments before the
"investigation" phase of the case begins. Most of the
time, these petitions are submitted at the first hearings. Since
intervals between hearings are usually a few months in Turkey, the
first hearings of the cases are only held for the submission of the
parties' mutual petitions/evidences and last a couple of
minutes (!). No need to say that this practice is not effective at
all and makes both the parties and the court lose too much time.
The New Law puts an end to this "absurdity". In
accordance with Articles 137 to 140 of the New Law, no hearing
shall be held by the court before parties' respective
pre-investigation petitions have been submitted to it. Even the
latter would be sufficient to shorten cases almost a year.
Moreover, once the pre-investigation petitions are submitted, a
"preliminary investigation hearing" shall be held. The
preliminary investigation hearing has a very important feature:
Article 140 of the New Law provides that, in such hearing, the
court shall order the parties to submit their respective evidences
that they have not submitted yet (if any) in 2 (two) weeks the
latest. Any party failing to submit its evidences within such term
shall forfeit the right to submit additional evidence and the court
shall immediately proceed to the "investigation" phase
whereby it would evaluate the parties' petitions/evidences
collectively and subsequently make its judgment. This provision is
also extremely useful because under the current practice of the
Law, defendants acting in bad faith purposely protract court cases
through late submission of their evidences. The New Law eliminates
this weakness of the Law too.
Article 107 provides for the possibility of filing cases with
indefinite monetary claims: When filing its case, a certain
claimant does not always know the exact amount of money that it
should claim. According to New Law, in the event a claimant files
its case as an "indefinite-receivable case" (belirsiz
alacak davasi), it shall be entitled to freely raise the
amount of its monetary claims once the amount of such claims is
crystallized throughout court investigation.
Article 109 expressly allows claimants to file "partial
cases": Sometimes, when filing its case, a claimant knows the
amount of money that it should claim, but it does not prefer to
claim all of it. Pursuant to New Law, claimants shall have the
option of filing partial cases (kismi dava), which would
make them pay less court charges and especially take less monetary
Two out of the four different case investigation types in the
Law have been abrogated by the New Law, which would make Turkish
procedural law much less complex.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Where standard printed terms and conditions of a contract are inconsistent with its special terms and conditions, the special conditions will prevail so as not to defeat the main object and intention of the contract.
The Common Reporting Standard is, like FATCA before it (a regime established by US legislation, the Foreign Account Tax Compliance Act), an information exchange regime aimed at international tax transparency.
An assignment of rights under a contract is normally restricted to the benefit of the contract. Where a party wishes to transfer both the benefit and burden of the contract this generally needs to be done by way of a novation.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).