Sponsored briefings: Turkey

Sponsored briefings: Turkey

Pekin & Pekin: Growing interest in asset deals

Yavuz & Uyanık Law Office: Economic crisis and the popularisation of voluntary termination of labour contracts

ELIG Gürkaynak Attorneys-at-Law: A leader in competition law

Matur & Ökten & Karayel Keßler Law Office: Med-arb – a hybrid approach to ADR and its applicability in Turkey

Yavuz & Uyanık Law Office: New practice commenced in 2019 – current status of mandatory mediation in commercial lawsuits

Çiğdemtekin Çakırca Arancı: Turkey M&A outlook – 2020 and beyond

Yazıcı Attorney Partnership: Notable developments in Turkey’s oil and gas policy

Cerrahoğlu Avukatlık Bürosu Barbaros Bulvarı: Mediation on the rise in Turkey

Yazıcı Attorney Partnership: Notable developments in construction law and practice

Apak Uras Law Firm: Termination of distributorship agreements

Vona Law Firm: Restrictive measures against Turkey by the EU

BTS & Partners: Obligation to register before the Turkish data controllers registry and maintain personal data-processing inventory

Gün + Partners Avukatlık Bürosu: Life sciences in Turkey

Paksoy: Q&A – Serdar Paksoy

Moral & Partners: Q&A – Vefa Reşat Moral

Sponsored briefing: Med-arb: a hybrid approach to ADR and its applicability in Turkey

Sponsored briefing: Med-arb: a hybrid approach to ADR and its applicability in Turkey

Matur & Ökten’s Bahar Nalan Danış discusses combining mediation and arbitration

Today’s world is changing at a dazzling speed, and so is the way we deal with disputes. Although originating from thousands of years ago, we may well state that alternative dispute resolution (ADR) in its modern meaning was developed in the 20th century and has continued to evolve ever since, due to its fast solution-providing rate, which suits the requirements of modern business life.

In the last few decades, different forms of ADR have gone global. The forms that make up ADR include mediation, arbitration, negotiation, ombudsman services, consensus building and new hybrids of these processes, including med-arb, which features characteristics of both mediation and arbitration.

Brief background

Before reviewing the essence of med-arb, it is important to understand the meaning of each process, as well as their growth as ADR processes.

Mediation and arbitration have operated separately for many years. Mediation is the procedure wherein a neutral and impartial professional acts as a mediator, who facilitates the communication between conflicted parties and assists them to find a resolution. If the matter is resolved, parties sign a binding agreement. The advantages of mediation are that the parties craft their own solution and it is more affordable. The most common criticism addressed to mediation is that it does not guarantee a final resolution.

Arbitration, on the other hand, is more of a court-like process, where parties attend hearings, submit evidence, etc, based on which the arbitrator makes a binding decision. The benefit of arbitration is that it is faster and more efficient than traditional litigation. It is, however, criticised for being adversarial and the parties have limited control of the resolution.

The two methods can seem pretty different from each other in terms of the principles they rely on and how they work, yet great results are produced when they are combined together. The parties are guaranteed an outcome in med-arb, either through mediation or arbitration. Therefore, interconnecting mediation and arbitration can save time and cost in settling. It has become the most applied form of combined ADR processes over time, with an increased attention in the recent years, especially after the successful examples set by IBM v Fujitsu and Federal Deposit Insurance Corporation v Cherry Bekaert & Holland.

Two worlds colliding

Med-arb can be applied in different ways, the most common of which is the conduct of mediation and arbitration consecutively. In this method, the parties first try to resolve their dispute through mediation, aka ‘pre-arbitral mediation’. In case no understanding can be reached fully or partially within the pre-specified period or the time determined by the mediator/med-arbiter, parties continue with arbitration for the whole dispute or partially for the sections they cannot agree on. It is statistically shown that most cases of med-arb turn into successful mediations with no requirement for arbitration.

It is possible for both stages to be followed up by the same person who acts as the med-arbiter, which is known as the ‘med-arb same’ model. Or, a mediator and an arbitrator manage each respective phase, which is the ‘med-arb different’ model.

Turkish practice

Arbitration in Turkey is regulated under the International Arbitration Law No. 4686, dated 2001, whereas mediation is a much newer concept introduced to Turkish law in 2012 via Law No. 6325 on Mediation in Civil Disputes (Mediation Law). Neither law specifically refers to med-arb as a dispute resolution method, however it can be understood from the wording of Article 5/1 of the Mediation Law that there is no obstacle to applying arbitration following the mediation process. The said article, taking its basis from Article 10 of UNCITRAL Model Law on International Commercial Mediation, stipulates that ‘parties, mediator or third parties cannot allege the followings as evidences or testify as witness on these, when a lawsuit is filed or arbitration is resorted to regarding the dispute’.

On the other hand, Turkey passed Law No. 7155 on Legal Proceedings for Monetary Receivables of Subscription Agreements, which became effective as of 2019, requiring ‘mandatory mediation’ for commercial cases as a prerequisite before filing legal action. According to Article 23/18 of the cited law, in cases where there is an arbitration clause, such compulsory mediation condition shall not apply.

As for the question of whether a mediator can act as a med-arbiter under Turkish law, Communiqué on the Mediation Law dated 2013 set forth in Article 12/4 that the mediator cannot assume later the duty of an arbitrator in relation to the same dispute. This Communiqué was abolished and replaced with a new one in 2018, which does not refer to such prohibition. On the contrary, it is specified in Article 4/6 of Mediators’ Ethic Rules announced by the General Directorate of Mediation that the mediator can actually act as an arbitrator if the parties in conflict agree so in writing.

A first in the world: groundbreaking move from Turkey

As an exciting new development, the Istanbul Arbitration Centre (ISTAC) has just published rules governing med-arb on 15 November 2019 on its website, which has become the world’s first institutionalised written med-arb rules. By presenting the ‘first of its kind’ rules, ISTAC aims to widen the prevalence of med-arb.

We have witnessed many commercial disputes, both local and multinational, being settled in Turkey, especially in Istanbul via arbitration.

Med-arb can be more effective than arbitration indeed, as the parties will participate in the mediation phase in sincerity and good faith, knowing that if they fail to reach an agreement, they will lose control over the outcome and have to go along with the med-arbiter/arbitrator’s decision. It can also be more efficient than mediation, since parties will be more likely to assert reasonable demands and demonstrate a more conciliatory attitude than in mediation alone, increasing the opportunity for a more satisfying result for all involved.

We hope this two-tier system will also become a preferred choice of settlement in Turkey in the years to come.

For more information, please contact:

Bahar Nalan Danış, attorney at law – mediator (Young Mediators Initiative of the International Mediation Institute)

Matur & Ökten & Karayel Keßler Law Office

İnönü Cad No:24/4

Gümüşsuyu, Taksim

Beyoğlu

Istanbul

T: +90 212 260 1062

E: bahar.danis@maturokten.com

www.maturokten.com

Sponsored briefing: Turkey M&A outlook: 2020 and beyond

Sponsored briefing: Turkey M&A outlook: 2020 and beyond

Gamze Çiğdemtekin (pictured, left) and İpek Batum (pictured, right) of Çiğdemtekin Çakırca Arancı assess what lies ahead for the deals market over the next few years

Global economic uncertainties have affected the M&A market, and the recession in the Turkish market was as expected for 2019. According to the data reported on M&A transactions in 2019, the volume of the total M&A transactions in Turkey was $7.4bn. While many economists predict the M&A market may slightly fall in 2020, Turkey’s New Economic Program has optimistic targets that give confidence to investors to take advantage of the current market and expect higher returns in the next three years. Furthermore, there are significant opportunities still available for investors, with emerging sectors taking the spotlight. Continue reading “Sponsored briefing: Turkey M&A outlook: 2020 and beyond”

Sponsored briefing: Profile – Richard Mann, partner, GKH

Sponsored briefing: Profile – Richard Mann, partner, GKH

Richard Mann heads the firm’s M&A practice. He leads a team of experienced attorneys who focus on representing Israeli and foreign clients in implementing complex cross-border transactions, including mergers and acquisitions, public and private debt and equity financings, and secured and unsecured finance transactions. His clients include acquirers and targets, leading international private equity funds, strategic and financial investors, and joint venture partners. Mann also represents issuers and leading underwriters in public offerings in the US and London, and advises Israeli companies on ongoing Securities and Exchange Commission and stock exchange regulatory matters.

According to Chambers & Partners 2018 Global Guide – Capital Markets: ‘Richard Mann is highly regarded for his M&A practice and has additional experience in capital markets. His focus is on international and cross-border mandates and he possesses experience of equity financing and IPOs.’

Chambers 2018 Global Guide – Corporate M&A: ‘Joint head of the group Richard Mann maintains an impressive reputation, with market sources describing him as “thoughtful, imaginative and business-oriented.” He has an active domestic M&A practice and acts as Israeli counsel for large cross-border transactions.’

IFLR1000: ‘The head of M&A at Gross is one of the most liked and respected lawyers in the country and the market has repeatedly referred work to him over the years.’

PLC Which Lawyer?: ‘Gross, Kleinhendler, Hodak & Co. is unquestionably a favourite pick for securities transactions and Richard Mann’s corporate and finance experience provides the ideal platform for his success in this area. Mann is held in high esteem for his international expertise.

‘Highly recommended in Mergers & Acquisitions. Advises on both the buy and sell sides for Israeli firms and for international private equity houses.’
The Legal 500: included in Corporate M&A ‘Leading Individuals’.

Prior to joining Gross, Kleinhendler, Hodak, Halevy, Greenberg, Shenhav & Co in 1996, Mann served from 1988 to 1992 as a corporate and tax associate at Fried, Frank, Harris, Shriver & Jacobson in New York, and from 1992 to 1995 as legal counsel to the Israeli Ministry of Defense’s United States Mission in New York.

EDUCATION

University of Pennsylvania (BA Political Science, 1985); Wharton School of Finance, University of Pennsylvania (BS Finance, 1985); Columbia University, New York (JD, 1988), Harlan Fiske Stone Scholar.

MEMBER

Israel Bar, 1996; New York Bar, 1989.

For more information, please contact:Richard Mann, partner, head of M&A

Gross, Kleinhendler, Hodak, Halevy, Greenberg, Shenhav & Co
One Azrieli Center, Round Building
Tel Aviv 6701101
Israel
T: +972 3607 4431
E: rick@gkh-law.com

www.gkh-law.com

Sponsored briefing: Israel adopts the UNCITRAL Model Law

Sponsored briefing: Israel adopts the UNCITRAL Model Law

Inbar Hakimian-Nahari of Yigal Arnon & Co explains how Israel’s new law provides clarity and makes it easier for foreign companies and investors operating in the country

In September 2019, the Insolvency and Economic Rehabilitation Law, 5778-2018 will come into force in Israel. The new law is a comprehensive insolvency legislation for individuals and corporations, which includes extensive changes to the current insolvency legal framework, while also incorporating customary practice and legal precedents. Continue reading “Sponsored briefing: Israel adopts the UNCITRAL Model Law”

Sponsored chambers briefing: Hybrid counsel – powered by commercial and chancery expertise

Sponsored chambers briefing: Hybrid counsel – powered by commercial and chancery expertise

Serle Court’s chief executive argues that the blending of chancery and commercial is about seeing legal issues from the client’s point of view

Eighteen months on from the launch of the Business and Property Courts in England and Wales, it is interesting to reflect on what this change means. Not only in terms of maintaining the UK’s lead as the best place in the world for resolving commercial disputes but also for the increasingly artificial distinction between chancery and commercial disputes – now seeing business and legal issues the way our clients do. The new structure, bringing together all the various specialist commercial courts under one judicial roof, was intended to make it easier for international and domestic clients to understand the structure of the High Court in England and Wales. Our commercial courts have belatedly caught up with the realities of commercial life in the 21st century; we know from speaking to our business clients that they do not categorise their issues distinctly as either chancery or commercial. Instead they see ‘problems’ for which they require ‘solutions’. Lawyers may benefit from seeing things from this perspective too. Continue reading “Sponsored chambers briefing: Hybrid counsel – powered by commercial and chancery expertise”

Sponsored chambers briefing: Innovate to succeed

Sponsored chambers briefing: Innovate to succeed

Parklane Plowden Chambers is seeing the long-term benefits after its 2014 restructuring

In an increasingly competitive and financially challenging legal marketplace, the demand on law firms and barristers’ chambers alike has been to innovate and explore new ways of working in order to succeed. It is easy to accept that this could be trickier for barristers’ chambers to achieve, given the highly traditional and arguably outdated structure they take. Continue reading “Sponsored chambers briefing: Innovate to succeed”

Sponsored chambers briefing: Kings Chambers – a set apart from the rest

Sponsored chambers briefing: Kings Chambers – a set apart from the rest

Our philosophy is to provide practical and commercial advice, applying the highest professional standards. Our members combine advisory work with litigation and advocacy services. While we commonly appear in the High Court and the higher appellate courts, our commitment to service standards is such that all members retain a uniform approach to the pursuit of excellence irrespective of forum and the financial worth of a case. It is on this uncompromising approach, and what our market regards as our client-friendly ethos, that our reputation is built and maintained.

We are regularly involved in arbitration and mediation and, if a matter is fought in the courts, our members are characterised by a reputation for strong and incisive advocacy backed by firm negotiating skills.

Our clients are individual and corporate, national and multinational, plc and private. We have a strong and wide national base of clients across the whole spectrum of industries, including banks (including clearing and secondary), developers, retailers, manufacturers, services, professional bodies, government agencies and local authorities. Members now regularly represent many emerging companies in the newer information technology, e-commerce and leisure markets.We accept instructions from all those permitted under the rules of the Bar Council. We welcome instructions from overseas lawyers and through the Licensed Access Rules.

Areas of expertise

  • Administrative and public law and local government
  • Business and property
  • Clinical negligence and personal injury
  • Court of Protection and mental health
  • Employment
  • EU and competition law
  • Inquests
  • Licensing
  • Litigation funding and costs
  • Mediation
  • Planning and environment
  • Sport

‘Kings Chambers is proud of providing first-class representation to our clients and our members’ expertise matches any set in the country, which makes us a ‘go-to’ chambers for many leading national and international law firms, public sector and private sector organisations and individuals.’

For more information, please contact:

T: 0345 034 3444
E: clerks@kingschambers.com

Manchester
36 Young Street,
Manchester M3 3FT
DX: 718188 MCH 3
T: 0161 832 9082

Leeds
5 Park Square
Leeds LS1 2NE
DX: 713113 LEEDS PARK SQ
T: 0113 242 1123

Birmingham
Embassy House, 60 Church Street
Birmingham B3 2DJ
DX: 13023 BIRMINGHAM
Direct Dial: 0121 200 3570

www.kingschambers.com

Sponsored chambers briefing: Specialisation in the regions – a rational approach

Sponsored chambers briefing: Specialisation in the regions – a rational approach

Alister Williams of Pallant Chambers discusses the set’s goals, strengths and successes

Pallant Chambers is based in Southampton and Chichester. Pallant has developed into a highly specialist civil and family set, instructed regionally but also in the senior courts where one would expect the London Bar to be utilised. Alister Williams, head clerk, explains Pallant’s approach: ‘I came to Pallant in 2001 after 12 years at a specialist commercial chancery set in London.’ That experience was vital. ‘In delivering legal services, the ultimate goal is to do what is best for the client and specialisation is the rational way of achieving that. That is what we set out to develop.’

Members are encouraged and supported in focusing their practices. In recent years practitioners have joined from leading London sets, adding strength to the commercial, employment, chancery, property and family offering. Emphasis is also placed on recruiting very able pupils.

Specialisation has become a buzzword throughout the legal profession and is easily paid lip-service to. It might also be considered a risky approach in the regions.

‘Pallant is an example of specialisation being possible in the regions, and that it works.’
Alister Williams, Pallant Chambers

According to Williams: ‘Pallant is an example of specialisation being possible in the regions, and that it works. We are proud to be a regional set with a strong, predominantly regional client base. Our longstanding clients work with us more often on a wider range of matters, which are increasingly complex, and we have a platform to work with new clients locally and further afield. Ultimately, we are delivering a better service, which produces more opportunities.’

Court and contentious advisory work remain core business areas, with members of the commercial, chancery, property, private client and family teams regularly appearing in the senior courts, and undertaking high-level work in the county court, family court, First-tier Tribunal and Employment Tribunal. Members are also working collaboratively with litigation funders, experts, and on non-contentious and transactional work.

‘We realise that the we can add value to traditional and non-traditional clients outside of our core business,’ adds Williams.

The market trend supports the approach with smaller, more focused organisations performing well.

‘Our size helps us. We are able to maintain our personal approach and build relationships, whilst providing appropriate expertise and a range of options. We have made progress.’

Pallant was nominated for Regional Chambers of the Year by The Legal 500 in 2014, 2017 and 2019, and is currently ranked as a tier-1 set, with 15 individual entries. Six members sit as recorders, deputy district judges or First-tier Tribunal judges. Chambers currently has three pupils with two more joining in the next 12 months.

Economic and political pressures continue to test the profession, but Williams is optimistic: ‘We will have to adapt, but we will continue to develop a very attractive offering if we remain client focused, regional, personal and specialist.’

For more information, please contact:

Alister Williams, head clerk

Pallant Chambers
12 North Pallant
Chichester
West Sussex
PO19 1TQ

T: 01243 831900

E: awilliams@pallantchambers.co.uk

www.pallantchambers.co.uk