Significant Amendment With Regards To Commercial Disputes
“Law on Procedure regarding Initiation of Execution Proceedings with regards to Pecuniary Claims arising from Membership Agreement” no. 7155 (“Law”) is published at the Official Gazette dated 19.12.2018 and numbered 30630 and entered into force on the same date (Articles 10, 20 and 21 will enter into force on 01.01.2019 and article 1 and 9, temporary article 1, articles 18 and 19 will enter into force on 01.06.2019).
One of the most significant innovations implemented with the Law is the condition to apply to mediator in commercial receivable lawsuits. Please find below the detailed information.
- Cause of Action:
> Lawsuits within the scope of the Law are the lawsuits that are related to receivable and compensation claims, of which the subject is the payment of a certain amount of money, among the commercial lawsuits set forth under article 4 of Turkish Commercial Code numbered 6102 and other laws. Additionally, with the relevant regulation of the Law, it is regulated that application to “mediation” method, which is one of the alternative dispute resolution methods; prior to filing a lawsuit in respect of the afore-mentioned kinds of lawsuits shall be considered as cause of action.
> This condition shall not be applied in relation to the lawsuits that are being heard by the courts of first instance, Regional Courts of Justice and Supreme Court on the date on which the relevant regulation has entered into force.
- Mediation Process:
> This process shall be concluded in six weeks as of the date, on which the mediator is assigned. However, this term may be extended by the mediator for a period of maximum two weeks in obligatory cases.
> Application to the mediator shall be made, based on the subject of the dispute, to the mediation office located at the place where competent court is located, and to the assigned directorate of registry, where there is no established mediation office.
> In the event the parties cannot be reached or the meeting cannot be held due to the non-attendance of the parties or the parties reach an agreement or parties fail to reach an agreement,
mediator shall conclude the mediation activity and shall record the final minute and inform the mediation office immediately.
> In case the mediation activity ends due to the non-attendance of one of the parties to the first meeting without stating any excuse, the party that has not attended the meeting shall be stated in the final minute and such party shall be responsible for the whole of the litigation costs, even if such party is found rightful in the lawsuit partially or fully. Additionally, no attorney’s fee shall be resolved in the favor of such party.
> In relation to the lawsuits to be filed upon the mediation activity that has ended due to the non-attendance of both parties to the first meeting, the parties shall cover the litigation costs related to their own parts.
Consequences for not Meeting the Condition to apply to the Mediator:
> Pursuant to the relevant Law indicating the general regulations regarding the mediation as a cause of action, the plaintiff shall be obliged to attach the original copy or a copy (approved by the mediator) of the final minute stating that the parties could not reach an agreement at the end of the mediation process.
> If the plaintiff fails to comply with this obligation, the court shall send the plaintiff an invitation indicating the warning stating that the final minute must be submitted to the court within the peremptory period of one week, otherwise the lawsuit will be rejected on procedural grounds. In case the matters stated in the warning are not fulfilled, it shall be resolved for the rejection of the lawsuit on procedural grounds without issuing any notification related to the lawsuit petition to the other party.
> In case it is understood that the lawsuit is filed without first applying to the mediator, it shall be resolved for the rejection of the lawsuit on procedural grounds, without taking any action, due to the non-existence of the cause of action.
Besides, in addition to the other matters, by the Law, (i) the provisions of the Law on Enforcement and Bankruptcy that are related to concordatum and that had entered into force on March 15, 2018 have been revised, (ii) the article related to “mediation as a cause of action” has been included in Turkish Commercial Code numbered 6102, and (iii) provisions regarding establishment of a Central Follow-Up System within the body of UYAP (National Judiciary Informatics System) have been inserted in order to ensure the enforcement proceedings without judgment by way of seizure in relation to membership agreements regulated under Consumer Protection Law numbered 6502 and other legislation and pecuniary claims, which are arising from goods or services presented to the consumers for the execution of membership agreements, of which the price is reflected to the invoice and which are pursued by an attorney, are made in electronic environment.
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