Sponsored briefing: Recent patent highlights in Turkey

Sponsored briefing: Recent patent highlights in Turkey

Geographically positioned between Europe and Asia, Turkey is a strategically placed country, with a population of 82 million and a larger youth population than any EU member state. Taking its place on the list of G20 countries, Turkey aims to position itself in the global value chain and strengthen its export platform by focusing on high-tech patents, including electronic machinery and equipment, automotive spare parts, railway and maritime transport, energy generation and efficiency projects. In addition, as a natural transport hub, Turkey is a transitional trade platform between Europe and Asia, which significantly increases the relevance of appropriate IP rights protection.

Turkey has substantially harmonised its intellectual property laws with the EU legislation and the international agreements such as the Paris Convention and TRIPs, to provide effective legal means for enhanced patent enforcement capabilities. Continue reading “Sponsored briefing: Recent patent highlights in Turkey”

Sponsored briefing: Turkish Citizenship by Investment

Sponsored briefing: Turkish Citizenship by Investment

The geopolitical and strategic importance of the Republic of Turkey – established in 1923 by its founding father Mustafa Kemal Atatürk – to the European Union, America, Russia, the Middle East, and Asia is undeniable. Being a central meeting point of the continents of Asia, Europe, and Africa via the Mediterranean, and its membership of NATO, the Council of Europe, and its current accession talks with the European Union has meant that Turkey has become a significantly important partner for many states around the world.

According to the Turkish constitution, the word Turk, as a political term, includes all citizens of the Republic of Turkey without distinction of or reference to race or religion. Although more than nine-tenths of the population identify their religious identity as Muslim, Turkey is nonetheless a secular country. Certainly, in 1928 Islam was removed as the official state religion and since then, the military has maintained a vigilant watch over Turkey’s political secularism. Continue reading “Sponsored briefing: Turkish Citizenship by Investment”

Sponsored briefing: Evaluation on protection of personal data law for international companies

Sponsored briefing: Evaluation on protection of personal data law for international companies

KN & Partners’ M Burak Küçüki̇slamoğlu and İ Can Nari̇n on the importance of Turkey-based international companies following the GDPR and PDPL

As is known, with the development of technology and digitalisation, personal data processing activities have increased considerably. In addition to this, through softwares it has become possible to reach almost unlimited personal data. Consequently, this situation raises concerns for individuals in terms of the scope of principle of privacy. In this context, in order to prevent damages that may affect the individual, in other words in order to protect the personal rights and privacy of individuals and to determine the sanctions to be applied in case of violation, it has become necessary to take some precautions. At this point, while General Data Protection Regulation (GDPR) is accepted among the contries in the European Union; here in Turkey, we encounter a similar regulation: Personal Data Protection Law (PDPL). Continue reading “Sponsored briefing: Evaluation on protection of personal data law for international companies”

Sponsored briefing: Pre-contractual negotiations during M&A transactions in Turkey

Sponsored briefing: Pre-contractual negotiations during M&A transactions in Turkey

The pre-contractual phase of the acquisition of a company or merger of companies typically begins with the first contact between the parties and ends in the best case scenario with the conclusion of the contract. This phase plays a vital role for the wellbeing of the transaction: parties reach various, usually non-binding, but possibly also legally binding preliminary agreements at this stage, from which, possible claims for performance or damages can arise.

Often a ‘due diligence’ is already carried out during this stage, which can serve an important function in the context of warranty claims. Even if the parties have not concluded legally binding preliminary agreements, ‘pre-contractual party obligations’ already arise under Turkish law. Thus, the negotiating parties to an M&A deal bear the risk of being held liable for ‘culpa in contrahendo’, that is a legal principal in contract law for many civil law countries including Turkey, which stipulates the duty to negotiate with care before the contract is concluded. Continue reading “Sponsored briefing: Pre-contractual negotiations during M&A transactions in Turkey”

Sponsored briefing: Acquisition of properties in Turkey by foreign-capitalised companies

Sponsored briefing: Acquisition of properties in Turkey by foreign-capitalised companies

Starting from the early 2000s, Turkey became increasingly popular in the eyes of foreign investors. By increasing their market share every following year, the real estate investments reached a significant level as a result of such foreign investments, which include different types of investments and investors. Direct investment by acquisition of a property following the incorporation of a company in Turkey; indirect investment by acquisition of shares of a company, which already own a property; or investment by forming of a joint venture with a Turkish company may be regarded as examples of foreign investments in the Turkish real estate market. Similarly, the countries of origin of the investors also diversified throughout the time. Today, in addition to the US and Europe, Turkey welcomes numerous investments from the Gulf Region countries and Far East countries as well.

The main group of investors in the Turkish real estate market include foreign real estate funds/companies; project development companies; investment companies as well as foreign persons who wish to acquire a property in Turkey either for personal use or to obtain Turkish citizenship. The investments may focus on shopping malls, office buildings, residences, or involve construction of hotel projects, entering into partnerships with the owners of completed projects or acquisition of all shares of the same, etc. Furthermore, the investors also prefer to be a part of revenue-sharing agreements or become a partner of the government in construct-operate-transfer1 projects or public private partnership (PPP)2 projects. Continue reading “Sponsored briefing: Acquisition of properties in Turkey by foreign-capitalised companies”

Sponsored briefing: Q&A with partner Egemen Egemenoglu

Sponsored briefing: Q&A with partner Egemen Egemenoglu

1. Given Turkey’s recent economic problems and the problems created by the Covid-19 pandemic, how is this affecting your firm?

We can proudly say that we have successfully surpassed the challenging position that came along with the Covid-19 pandemic in all respectable matters thanks to our comprehensive experience gained throughout the 53 years in which we have provided legal services in Turkey. In these 53 years, our firm had to take innovative and cautious steps in order to tide over many different challenges such as several economic and political crises we have encountered as a country. So, when the first cases of Covid-19 were reported by the officials in Wuhan City, China, in December 2019, we knew that we had to prepare for the worst-case scenario. For this reason, we have accelerated our digitalisation process – thus taking it into a next level even though our digital infrastructure was already at advanced levels. As such, when the first Covid-19 case was announced in Turkey on 10 March 2020, we were already prepared to detach ourselves from our physical offices and started to work from our homes on 15 March 2020 through the decision mutually taken by our partners. Continue reading “Sponsored briefing: Q&A with partner Egemen Egemenoglu”

Sponsored briefing: Changing roles and expectations on the relationship between in-house legal counsels and law firms

Sponsored briefing: Changing roles and expectations on the relationship between in-house legal counsels and law firms

The position of in-house legal counsel has been taking place effectively across the world since the beginning of the ’80s. This position comes forward with the headlines as in-house legal counsel, chief legal counsel (CLO), and head of legal are titles in common use nowadays. As these positions become widespread and with the proliferation of the legal departments in companies, the relationship between the law firms and in-house legal counsel has gained great importance.

The Relationship between In-House Legal Counsel and Law Firms

Taking numerous changes in today’s modern world into consideration, it can be easily said that the roles, perspectives and job descriptions of in-house legal counsel have been altered. Such change along with the various requirements has moved the longstanding relationship between in-house legal counsel and law firms to another dimension.

Let us consider the position that in-house legal counsel have reached. In a globalised world, the points that companies have reached and served have started to spread all over the world rather than a specific region while the growth rate of the companies has increased many times more. With the effect of that, economic environment, the competition dimension, the management perception and the changes on the distribution of tasks ended up with higher expectations from legal counsel such as taking commercial decisions, planning budgets, being aware of technological developments, shortly, working with full business awareness by effecting the in-house legal counsel’s perspective. Under these parameters, the companies offer enormous opportunities to legal counsel for innovation, leadership, and decision making at the highest levels – especially as companies have gone global. One of the most significant roles of in-house legal counsel, who started to have many hats such as risk manager, ethics and compliance officer, administrative official affairs, wise adviser, shows itself as ‘leadership’.

Looking at the last ten years’ in-house counsel positions, the in-house legal counsel had to work with and lead almost all departments within the company, it is an inevitable fact that today’s requirements have moved this figure into a position that conducts risk analysis and leads business decisions, even though we would be picturing a figure whose sole duty is evaluating the legal compliance of the decisions taken by the company and also trying to abstain to direct the commercial decisions. In the light of this reality, we can describe that the relationship and expectations between in-house legal counsel and law firms have evolved and transformed with the usual flow of the process. In order not to block off the flow, law firms are also expected to observe this process and keep up with today’s global and modern developments. The evolution of general counsel is examined through a conversation with the chief legal counsel of one of Turkey’s leading holdings who conveyed his experiences. He has observed this development by working in the same company for many years and witnessed that the profession has changed with the evolution of the opinion of legal view starting from compliance for technological developments well into commercial decisions. That was a great real-life experience.

A Role Comprising Strategy and Leadership

The expanding roles led lawyers to get more into the business world. Rather than evaluating the legal consequences of the commercial decisions taken by the company, law firms – which have the motive of efficiency, value and commercial awareness that shape the relationship between corporate identity and law – were among those preferred to be consulted by in-house legal counsel. Nowadays, the law offices that have a good grasp on the corporate memory of the represented company, are competent in assisting the company to achieve its strategic goals for different locations in a globalising world and which can expand its visions, stand out in this choice.

With the transition of in-house legal counsel from a figure just providing legal advice to a complex role covering strategy and leadership, the expectation that will affect the critical business decisions by providing a legal perspective as ‘more than a lawyer’ also shows itself for the law firms. The most significant reason for the increase of need for law firms are the growing business volume of in-house legal counsel and the expansion of the job description within the company. The emerging role of the law firms can be defined also the lawyers’ lawyer position. It can be easily said that while in-house legal counsel sit in the driver’s seat, the law firms are always ready for the duty as a co-pilot. Therefore, the need for an effective and powerful co-pilot brings out a search for quality.

The in-house legal counsel of a leading international company in the automotive sector, described this search as ‘effective, solution-oriented, fulfilling the requirements in a short time’ during a Legal 500 GC Summit. While ‘time, solution-oriented, correct and feasible answers’ increase preference, law firms, which can use their legal perspective on business-critical decisions within the scope of business strategy of the company, are in the leading role of the evaluated in-house legal counsel-law firm relationship.

Law firms that can use the legal perspective on critical decisions in terms of business within the scope of the company’s business strategy take the lead role of the transformed internal legal adviser-law firm relationship. The key issue is to understand the client’s business needs including its appetite for risk. At this point, the need for lawyers who blend law and commerce, follow up technological, economic and sectoral developments is not negligible. The evolution of the profession has also changed the definition of relationship management between in-house legal counsel and law firms. Being able to keep up with the fast-changing criteria and definitions that emerged in this context made the expanding role of lawyer more business-oriented. Adopting a critical role in managing corporate risk and strategic decisions, lawyers become the bilateral winner of this change and transformation.

For more information, please contact:

Vefa Reşat Moral, managing partner

Moral & Partners
Hakkı Yeten Caddesi Selenium Plaza No: 10C Kat: 16, Fulya, Beşiktaş, İstanbul

T: 0 212 232 35 95
E: info@moral.av.tr

moral.av.tr/en

Turkey focus: Crisis, what crisis?

Turkey focus: Crisis, what crisis?

As Covid-19 continues to wreak havoc, many countries face both an economic and a health crisis. But for Turkey, the concept of crisis is nothing new: it has long been part of everyday life. The current malaise, which predates the pandemic, has its origins in the attempted coup of 2016 and the government’s authoritarian response: over 300 people were killed and 75,000 arrested, including 2,700 judges. Such coups d’état have punctuated Turkey’s historical narrative in every decade since the 1960s. More recently, there was the currency and debt crisis of 2018, which saw the credit rating agencies downgrade Turkey’s debt to junk status.

Notwithstanding these difficulties, President Erdoğan is still firmly in control. Added to the $120bn in infrastructure spending since 2003, new highways and rail links are planned. Turkey’s $730bn economy, the world’s 20th-largest, even managed to expand slightly last year. But problems persist: inflation at 15% and interest rates recently hiked to 19%, while the Turkish Lira’s precipitous decline against the US dollar has sparked an exodus of foreign capital. In an effort to boost tourism, one of the country’s strongest sectors, Turkey announced that it would be the first country to accept British holidaymakers without Covid checks. Despite Erdoğan’s promises to cut inflation in an attempt to restore confidence, sustained turbulence undermines the country’s economic credibility. Continue reading “Turkey focus: Crisis, what crisis?”

Sponsored briefing: Surprise decision ban as a novelty in Turkish labour law

Sponsored briefing: Surprise decision ban as a novelty in Turkish labour law

Yavuz & Uyanik & Akalin’s Murat Uyanik on the importance of the rule of law and the right to legal certainty in Turkish law

Labour Law in Turkey is one of the areas of law in which the most lawsuits are filed and with the highest number of file transfers to the Supreme Court, until the recent launch of the Appeal Courts. This matter is confirmed with the data published by the Ministry of Justice at the end of 2019. According to the relative data, 1,513,943 labour cases were filed between the years 2012 and 2019. According to the aforementioned data, the number of ongoing cases at the end of the year 2019 is 543,692. Upon the multiplying increase in the number of labour cases each year and the Supreme Court’s failure to bear the litigation burden, it has also been observed that the number of chambers coping with labour law disputes has increased to three in the last decade. Continue reading “Sponsored briefing: Surprise decision ban as a novelty in Turkish labour law”

Sponsored briefing: Product Safety And Technical Regulations Law Numbered 7223 and the compensation liability of the manufacturer

Sponsored briefing: Product Safety And Technical Regulations Law Numbered 7223 and the compensation liability of the manufacturer

As part of the European Union harmonisation process, the Turkish parliament has adopted the Product Safety and Technical Regulations Law (the PSTRL). The PSTRL, published on 12 March 2020, has entered into force one year after its publication just recently, on 12 March 2021. Just before the PSTRL entered into force, the General Product Safety Regulation was also published. The provisions regarding PSTRL are prepared considering the European Union Product Liability Directive dated 1985. By the promulgation of PSTRL, which has been expected for a long time and is an important part of the EU harmonisation process, the product liability has been regulated as a whole through a general act of parliament. The doctrine, which was in the expectation of a law that complies with EU regulations, has long advocated the need of regulating the manufacturer’s absolute responsibility not only to the consumers but also to all third parties.

PSTRL’s main purpose is to regulate in detail the requirements in relation to the safety of all kinds of products, and in case of contradiction with such requirements to ensure that the responsible party, such as the manufacturer or importer, provides appropriate compensation for the damages caused by the non-conforming product to the customer’s health or property.

The products that are exported or aimed to be exported to the EU member states are deemed presented to the market within the scope of this law. On the other hand, the products that are exported and planned to be exported to countries other than those within the EU are excluded from scope of PSTRL. Nevertheless, these products must also be safe, not subject to adulteration, and the marking, labelling and certification of the product must be done in a manner that will not mislead the buyer.

The responsible persons from product liability are defined in PSTRL as the manufacturer or importer of the product.

Obviously, not only consumers can be harmed by a product, but non-consumers also need protection as well. Despite this obvious need of a general rule, there is no regulation in law on the Protection of the Consumer and also in the Turkish Code of Obligations regarding the product liability. In fact, PSTRL was adopted as a response to the urgent need of a special regulation of the product liability, and the gap related to this matter under Turkish law. Thus, the standard of the EU that the responsibility of the manufacturer is not only towards the consumers, but against all third parties, has been introduced in Turkey as well.

PSTRL uses the concept of inappropriate product instead of failure or defective product as a condition of the product liability to be triggered. In accordance with the PSTRL, no limitation has been made in the responsibility of the manufacturer, in terms of both personal and property damage, or pecuniary and non-pecuniary damage.

It was designated in article 21 of the PSTRL how the liability of the manufacturer or importer will be extinguished as well. Since the product is considered safe as a presumption pursuant to PSTRL article 5, the manufacturer or importer can avoid responsibility by proving the product’s compliance with the technical requirements regarding human health and safety. So the manufacturer or importer companies should prepare their set of arguments towards potential claims, that has to be based on the ‘compliance with technical requirements’.

In addition to the above, there are other remarkable novelties in PSTRL that especially aim to ensure the safety of consumers including in e-commerce. Pursuant to article 17 of PSTRL, access to the web pages that sell or advertise inappropriate products will be denied. Furthermore, in order to maintain transparent background for the consumers, the names of all of the persons in the supply chain will be recorded. This traceability will also provide an opportunity to prevent informal economy. Once a product is detected to be inappropriate, these products will be recalled from the market and this will provide the safety of the consumers.

The spectrum of the PSTRL is so broad that, the companies that are no party to any contract with the damaged person, such as car manufacturers, durable goods manufacturers, spare parts manufacturers, etc. would be legally responsible without question. In some cases insurance companies may request their recourse claims that have resulted from adulterated goods, from manufacturers or importers. Therefore global manufacturing companies and their importer affiliates may face direct claims from Turkey within the scope of the PSTRL. We hope that with PSTRL, the safe economic conditions for both national and foreign investors globally will be established and not only consumers, but also everyone who suffer from the hazardous effects of inappropriate products will be protected.

For more information, please contact:

Mehmet Selim Yavuz

Yavuz & Uyanik & Akalin
Etiler Mahallesi Tepecik Yolu No:82 Dalmaz Konut Apt. K:3 D:5 34337 Etiler, Beşiktaş

T: +90 212 351 30 50
E: info@yavuz-uyanik.av.tr

www.yualaw.com