Turkey: Ticari Davalarda Dava Şartı Olarak Arabuluculuk Mekanizması

Last Updated: 2 January 2019
Article by Alp Cal and Hakan Gündes

Ticari davalar öncesinde arabuluculuğa başvurulmasına dair hükümler içeren 7155 Sayılı Abonelik Sözleşmesinden Kaynaklanan Para Alacaklarına ilişkin Takibin Başlatılması Usulü Hakkında Kanun ("Kanun") 19.12.2018 tarih ve 30630 sayılı Resmi Gazete'de yayımlanarak yürürlüğe girmiştir.

Kanun'un 20. maddesi ile 6102 sayılı Türk Ticaret Kanunu'na 5/A maddesi eklenmiş olup; 01.01.2019 tarihi itibarı ile Türk Ticaret Kanunu'nun 4. maddesi kapsamındaki ve diğer kanunlarda belirtilen ticari davalardan, konusu bir miktar paranın ödenmesi olan alacak ve tazminat talepleri hakkında dava açılmadan önce arabulucuya başvurulması zorunlu hale getirilmektedir.

Bahse konu zorunluluk aynı zamanda dava şartı olarak düzenlendiği için düzenlemenin yürürlüğe gireceği tarih olan 01.01.2019'dan itibaren arabulucuya başvurulmadan doğrudan dava açılması halinde, davanın herhangi bir işlem yapılmaksızın dava şartı yokluğundan usulden reddine karar verilecektir.

Arabuluculuk faaliyetinin olumlu sonuçlanmaması halinde davacı, arabuluculuk faaliyeti sonunda anlaşmaya varılmadığına ilişkin son tutanağın aslını veya arabulucu tarafından onaylanan bir örneğini dava dilekçesine eklemek suretiyle ticaret mahkemesinde dava açabilecektir. Bu zorunluluğa uyulmadan doğrudan dava açılması halinde mahkemece davacıya, son arabuluculuk tutanağını bir haftalık kesin süre içerisinde mahkemeye sunması gerektiği; aksi takdirde davanın usulden reddedileceğine dair ihtarat yapılacaktır. Davacıya yapılan ihtarat süresinde yerine getirilmediği takdirde; dava dilekçesi davalıya tebliğe dahi çıkarılmaksızın usulden reddedileceği düzenlenmiştir.

Bahse konu düzenleme ile birlikte yalnızca arabulucuya başvurmadan doğrudan dava açma hakkı ortadan kaldırılmış bulunmaktadır. Ticari uyuşmazlıklarda taraflar aralarında vuku bulacak uyuşmazlıkların çözümünde tahkim ve/veya başkaca bir alternatif uyuşmazlık çözüm mekanizmaları öngörülmüş ya da özel bir kanunda böyle bir durum öngörülmüş ise, bu durumda Kanun ile getirilen zorunlu arabuluculuğa dair düzenlemelerin uygulanmayacağı kararlaştırılmıştır.  

Öte yandan bu düzenleme, Kanun'un ilgili maddesi olan 21. Maddesi'nin yürürlüğe gireceği tarih olan 01.01.2019 tarihinden önce ilk derece mahkemeleri ve Bölge Adliye Mahkemeleri ile Yargıtay'da halihazırda görülmekte olan davalar hakkında uygulanmayacaktır.

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