Turkey: Mediation necessary for resolving commercial disputes

The UK P&I Club informed that new articles have recently been added to the Turkish Commercial Code. These articles make it compulsory for parties to refer their commercial disputes to mediation before starting proceedings in court.

According to Mr. Sertac Sayhan of Sayhan Law Office, this means that cargo claims have to be taken firstly to a Mediator before being lodged at the Competent Court.

In summary, the most crucial articles regard the following matters:

1. Any commercial claims to be lodged after 01.01.2019 will have to be firstly dealt with through mediation. This regards both new claims and claims for cancellation of objection to Bailiff’s Actions which may have been lodged before 01.01.2019.
2. I case the claim is filed to the Commercial Court instead of the Mediation, the Court will reject the application due ton on-fulfillment of the procedures as per the new changes at Law. Nevertheless, this may be different from Court to Court and whether a party who lodges its claim directly before the Court without mediation will have the claim rejected procedurally or whether the Judge will give the parties time to make a first attempt to settle the dispute through mediation.
3. Bailiff’s Actions are not directly affected by this change as parties will have the chance to directly lodge a Bailiff’s Action. However, if the Debtor/Plaintiff objects against such debt, the claim to cancel such objection will have to be firstly brought before a Mediator.
4. Mr. Sayhan also notes that a Mediator registered to the region of the Court that has jurisdiction for the dispute will have jurisdiction to settle the matter, and parties will be able to object to the jurisdiction of a Mediator chosen by the other party.
5. In some scenarios, like when mediation cannot convene due to parties’ non-attendance or when parties cannot reach a settlement, the Mediator’s fee could be borne by the Ministry.
6. If any of the parties fails to attend the first meeting without a valid reason, this party will not be able to claim the Court fees from the opposing party.
7. Application to the Mediator will stop the time bar running from the date of application until the decision is given.
8. In case of any valid Arbitration clause which applies to the dispute, the mediation will not apply and the matter can be referred to the Arbitration.