The withdrawal of an action gives possibility to withdrawing party to re-file the same action. However, if a party waives from the action, this means that it waives from all rights to file the same action.

The action which constitutes the subject of this article was filed for the declaration of non-infringement of a patent. Istanbul 3rd Civil Court of Intellectual and Industrial Property ("3rd IP Court") granted a decision in favor of plaintiff party and decided that the formulation of plaintiff party does not infringe the patent of defendant party, after obtaining an expert report and an analysis report. Thereupon, defendant party filed an appeal before the 11th Civil Chamber of Court of Appeal ("11th Chamber") stating that plaintiff party has not any legal interest in filing this declaratory action, as there was not any concrete situation that may cause danger to its legal rights and that the 3rd IP Court did not respond the technical objections of defendant party through a new expert report.

The 11th Chamber accepted the appeal request of the defendant party for the reason that the 3rd IP Court should have obtained an expert opinion before rendered its decision in order to meet the objections of defendant party and to clarify the case.

When the file returned to the 3rd IP Court, the defendant party requested the Court to comply with the decision of the 11th Chamber and conduct the expert examination on the file. However the 3rd IP Court decided not to follow up the reversing decision of the 11th Chamber, by using the procedural persistence right against the 11th Chambers stating that there was no need to further examination as objections of the defendant had been evaluated in the reasoned judgment.

Following a decision of persistence by the 3rd IP Court, even though defendant party appealed this decision before the Assembly of Civil Chambers of the Court of Appeal, it then decided to withdraw the appeal. So the defendant party filed a withdrawal request based on the Civil Procedural Code Art. 123. where it stipulates that the plaintiff is entitled to withdraw the action until the decision becomes final with the clear consent of the defendant.

However, the Assembly of Civil Chambers of the Court of Appeal did not accept the withdrawal of defendant party and stated that it was not possible for defendant party to withdraw the appeal and defendant party can only waive from the appeal.

Pursuant to Article 123 of Civil Procedure Code, plaintiff can withdraw its action until the finalization of the judgment, if defendant gives its express consent. According to common opinion, the phase until "the finalization of the judgment" includes the appeal stages, as the action is still ongoing in the appeal phase. In our case, as neither the decision of the 3rd IP Court nor the decision of the 11th Chamber is finalized, considering the abovementioned article, it has to be possible to withdraw the action at the appeal stage.

However, the Assembly of Civil Chambers of the Court of Appeal built its judgment indicating that the appeal process is a legal proceeding depending on a peremptory time and therefore it is not possible to withdraw the appeal in order to file the same appeal later on, so withdrawal the appeal request and the action is different from each other. In the Assembly of Civil Chambers of the Court of Appeal's opinion, only a waiver from the appeal is possible, as it has to be unconditional and final for the appeal.

Was this decision of the Assembly of Civil Chambers of the Court of Appeal a new interpretation of Article 123 of Civil Procedure Code? Will it change the way of application of this Article and limit the will of the parties on an ongoing action? We do not know the answers of these questions but in near future, the jurisprudence and doctrine will certainly shed some light on this matter.

I think the reasoned decision of the Assembly of Civil Chambers of the Court of Appeal is not legally correct due to the fact that not only the appeal request, a many procedural steps such as filing evidence etc. has a peremptory time period, as long as the defendant party clearly consents the withdrawal, there should not be a problem, so at that time it does not matter whether the plaintiff party withdraws the full action or appeal request. The meaning of Art. 123 is very clear and it does not make any difference between each steps such as withdrawal of the plaint petition, evidence petition or appeal.

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.