Thomas Alan reports on a lively LB debate on training the solicitors of tomorrow
With the new Solicitors Qualifying Examination (SQE) primed for a 2021 launch; a new generation of lawyers entering the industry; and the partnership model under increasing strain, the legal education sector is set for its largest upheaval in a generation. Continue reading “‘Getting access to the talent’ – The profession struggles to react as sweeping training reform looms”
A century on from Atatürk’s proclamation that the republic would be ‘happy, prosperous and victorious’, the founder of modern Turkey would today find his vision being questioned. In 2016, a failed coup left over 300 people dead. During the mass detentions that followed, nearly 2,500 judges were arrested. Within two years, Turkey’s credit bubble had burst: the lira halved in value against the US dollar, inflation hit 25% and GDP, which had been growing at 7%, flatlined.
Following the withdrawal of US troops in October 2019, the invasion of northeast Syria to create a safe zone along Turkey’s southern border led US President Donald Trump to tweet: ‘I will totally destroy and obliterate the economy of Turkey.’ In October, the House of Representatives voted by 403 to 16 to impose a series of sweeping sanctions on Turkey. But US politicians remain split, with senate majority leader Mitch McConnell warning that sanctions would cause economic damage and alienate the Turkish people. Continue reading “Turkey – Back from the brink”
Joe Andrew, the architect of Dentons’ global strategy, is not known for pulling his punches. As such, his stance on staffing the African practices of international law firms is typical: ‘Why would you look to Europe or the US? It’s parochial, it’s a residue of colonialism, and it borders on racism.’
The firm’s chair warms to his theme. ‘There are 54 countries on the continent, and to different degrees they’re all experiencing an incredible democratisation of information. There’s talent everywhere. We don’t agree with our competitors who believe that the best way to service clients is to hire people from Europe.’ Continue reading “Africa rising – Foreign firms strive to cover the booming continent”
Muna Abdi assesses a period of upheaval for one of the UK’s most upwardly-mobile law firms
Sudden moves in the legal industry are generally viewed with suspicion and the resignation of Simon Konsta as Clyde & Co’s senior partner in June, little more than halfway through his five-year term, was no exception. After all, it remains rare for leaders to step down part way into their term. Continue reading “Leadership pivots and partner exits highlight a period of flux for Clydes – what next for the insurance giant?”
Interviewed for our annual in-house lawyer survey, leading GCs give their take on risk management, becoming business advisers and collaboration
‘Digital technology is something that is upon us. A lot of law firms and in-house departments will start thinking about how we harness the power of AI or technology to help us and not feel threatened by it. How do we make life simpler and not do the mundane? It’s about a mindset of being agile – the world is always changing, last year everyone has seen how rapidly change has come upon us, political and economic. So how do you equip yourself to embrace the good things about change?’ Continue reading “The Last Word: The client view”
Marco Cillario assesses the background to RPC’s decision to abandon all-equity structure
At a November press event held by a top-25 UK law firm, Legal Business was struck by a sudden spike in the guests’ interest in RPC. The 76-partner firm has long been a respected insurance and litigation business, and solid mid-weight operator, but not generally a firm to cause too many ripples of interest among peers. Continue reading “RPC’s surprise partnership shake-up signals focus on next generation but is the firm still playing too safe?”
In mid-October, when Legal Business decided it would dedicate this column to analysing the Belgian legal market, there was still the outside chance that it would appear in our first post-Brexit issue. By the time the piece was written a few days later, the UK Government had conceded defeat on its pledge to take the country out of the EU by the end of the month, triggering yet another delay to the process.
Not that the Brussels legal elite was surprised. Located in offices a few metres from the rooms where the Brexit negotiations have dragged on for almost three years, local counsel have had more than enough time to prepare for possible outcomes – deal? No deal? No Brexit? ‘After the referendum people were concerned about what would happen, but things have smoothed down,’ notes Freshfields Bruckhaus Deringer local head Vincent Macq. ‘I don’t think there is any firm that sees it as a concern now.’ Continue reading “Letter from… Brussels: Brexit convulsions prove no problem for Brussels hands as the age of tough antitrust enforcement proves a boon”
Goodwin Procter and Eversheds Sutherland both made significant corporate hires in November, with the pair recruiting Kirkland & Ellis partner Carl Bradshaw and Simmons & Simmons former head of UK corporate Giles Dennison respectively.
For Goodwin, the hire of Bradshaw comes during an expansive period for the firm, particularly in private equity. He brings nine years of experience from Kirkland – four of which were as partner – and a practice that focuses on cross-border private equity deals; leveraged buyouts; carve-outs; public-to-privates; consortium deals; and co-investments. Continue reading “Goodwin and Eversheds make bold corporate plays amid hopes of increasing City transactional firepower”
Yegan Liaje of Pekin & Pekin describes a rising interest in asset deals following a period of economic uncertainty in Turkey
Turkey has faced some serious financial challenges in recent years, such as high inflation, currency collapse and rising borrowing costs; however, surprisingly, these challenges have not dramatically affected the Turkish M&A market in terms of total transaction volume; though, we have noticed that it has affected the deal type in which investors have gained interest. In the last two years, we have experienced asset deals attracting more attention in the eyes of investors, despite share deals still having more advantages. Although investors do not have to bother with costly revaluations and retitles of individual assets, and can typically assume non-assignable licenses and permits without having to reapply for the same licenses and permits in share deals, asset deals also have some noticeable benefits.
Probably the most appealing advantage of asset deals is to enable buyers to pick and choose what they want to buy in the relevant target company without being bound to the whole company, all the unwanted remaining assets and certainly their unwanted liabilities. In other words, asset deals provide a playing field for investors where they can freely choose what suits best their business insight, in contrast to share deals where the shares of the target company are purchased with all attached shareholding rights and obligations, but the target company would remain liable against third parties for all historic claims.
On the other hand, asset deals do have some procedural disadvantages as well; each category of asset and liabilities subject to the relevant asset deal will be evaluated separately for consent requirements or formal perfection requirements rendering asset deals procedurally more burdensome. Furthermore, even where there are no consent requirements or formal perfection requirements, notifications would have to be provided to creditors in order to prevent good-faith payments made by creditors to the seller with respect to acquired assets, since under the Turkish Code of Obligations, such good-faith payments would discharge the debts of creditors who were not informed of the transfer. One more interesting point about asset deals in Turkey: as per the Turkish Labour Code, in the event that a workplace is transferred to another legal body on the basis of a legal transaction, the employment contracts that exist at the workplace at the date of transfer are automatically transferred to the transferee together with all rights and obligations. Therefore, buyers are not able to pick and choose when it comes to employees!
For more information, please contact:Yegan Liaje, senior partner, M&A
Pekin & Pekin
10 Lamartine Caddesi
Taksim 34437 Istanbul
D: +90 212 313 35 48
T: +90 212 313 35 00
F: +90 212 313 35 35
E: [email protected]
Climate change and sustainability dominated news headlines in 2019. Extinction Rebellion protests, Swedish teenager Greta Thunberg leading climate strikes around the world, while the President of the US has labelled it all a ‘hoax’. Investors are, in turn, increasingly putting pressure on the world’s largest companies to respond. It has become an enormous area of risk management for every business sector.
And responsibility for managing and assessing that risk has increasingly fallen upon the general counsel (GC). Andrea Harris, group chief counsel at the world’s largest marketing and public relations company, WPP, in recent years took on the head of group sustainability role, as has Heathrow Airport GC Carol Hui. Lawyers at Specsavers sit on that company’s sustainability group to help shape policy, while the GC at FTSE 100 energy giant Centrica, Justine Campbell, identifies the area as one of the biggest challenges she faces. Continue reading “The In-House Survey: Blurred lines – the GC as business leader”
Murat Uyanık of Yavuz & Uyanık discusses Turkish labour law developments
Turkey’s progress towards full membership of the EU had gained pace by the beginning of the 2000s. To achieve full legislative alignment with the EU acquis, the Turkish labour law was renewed and a new concept was introduced to the country’s labour law sphere: employment protection. Continue reading “Sponsored briefing: Economic crisis and the popularisation of voluntary termination of labour contracts”
Led by Gönenç Gürkaynak, ELIG Gürkaynak’s competition practice has wide expertise in Turkish antitrust law
ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005. Continue reading “Sponsored briefing: A leader in competition law”
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.
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.
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.
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.
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
Alex Novarese, Legal Business: Let’s get some observations on how people think their businesses are performing.
Charlie Jacobs, Linklaters: If you look at the last three years, conditions for law firms have been pretty benign. For a lot of our clients, it has been a tough environment, but the law firms have performed well. There are more people competing, yet the top law firms all seem to be performing well. Complexity is good for our business. But most would say it feels a little softer this year. On a global basis, given the various tensions, it feels there are fewer of the big, transformative deals we all love. This year looks slightly more challenging. Continue reading “The Global 100 debate – Decision time”
Mehmet Selim Yavuz of Yavuz & Uyanık discusses the effects of the new rules
Prior to 2016, the Court of Cassation was the only high court reviewing rulings of the courts of first instance. This led to an enormous workload for the court; hence final rulings could only be reached after a seriously long period of time. The Turkish judicial system was reformed with a view to address this and the appellate courts were established in 2016 as a judicial authority between the courts of first instance and the Court of Cassation. Continue reading “Sponsored briefing: New practice commenced in 2019 – current status of mandatory mediation in commercial lawsuits”
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”
Georgina Stanley and Ben Wheway cast an eye over one of the City’s most contested practice lines
‘Leveraged finance is an industry that thinks in American,’ notes one former veteran of the Magic Circle, now with a US outfit, reflecting on the much-changed dynamics of Europe’s credit markets. Continue reading “‘There are Formula 1 drivers and other drivers’ – who’s winning the race for London’s lev fin work?”
Pinsent Masons has topped the list of firms with the largest number of top-tier rankings in the 2020 Legal 500 UK Solicitors Guide. Continue reading “Legal 500 Data: Behind the story”
Yazıcı’s Kerem Arıç explores three key areas of growth for the country’s energy sector
Due to its dependence on oil and natural gas imports, Turkey has been in need of structural changes in its energy sector. Although the share of natural gas in power generation was significantly reduced in 2019, the overall reliance on natural gas and oil imports creates major challenges both from a commercial and strategic perspective. To overcome these challenges and increase its energy security, the Turkish government made a fundamental decision to move from a role of investor to a role of policy maker and regulator. As a result, Turkey’s oil and gas policy has been mainly driven by the following ground rules: Continue reading “Sponsored briefing: Notable developments in Turkey’s oil and gas policy”
