On April 5, 2023, Law No. 7445, amending the Enforcement and Bankruptcy Law and certain other laws, came into effect, as published in the Official Gazette with number 32154. However, Articles 31, 34, 36, 37, 38, and 41 of this law became effective on September 1, 2023. In this article, we will discuss the anticipated changes in conjunction with the part that came into effect on September 1, 2023.
The legislative amendments we will address in this context include:
- Amendments to Article 5/A of the Turkish Commercial Code No. 6102.
- Addition of Article 17/B after Article 17 in the Law on Mediation in Civil Disputes No. 6325.
- Additions to the seventh and sixteenth paragraphs of Article 18/A of the Law on Mediation in Civil Disputes No. 6325.
- Addition of Article 18/B after Article 18/A in the Law on Mediation in Civil Disputes No. 6325.
- Addition of a temporary article titled “Temporary Article 3” to the Law on Mediation in Civil Disputes No. 6325.
- A new addition to the first paragraph of Article 3 of Law No. 7036 dated October 12, 2017, and numbered 7036, regulating Labor Courts.
1. Article 31: Amendments to Article 5/A of the Turkish Commercial Code No. 6102
Under this article, Article 5/A of the Turkish Commercial Code No. 6102 was amended. The previous version of the article was as follows:
“The precondition for filing a lawsuit regarding debt and compensation claims involving the payment of a sum of money, as specified in Article 4 of this Law and other laws on commercial cases, is to apply to a mediator before filing a lawsuit.
The mediator concludes the application within six weeks from the date of assignment. This period may be extended by the mediator for a maximum of two weeks in compulsory cases.”
However, as part of the mentioned amendment, the phrase “involving the payment of a sum of money, debt, and compensation claims” was removed, and the phrase “in cases of debt, compensation, objection cancellation, negative determination, and recovery, involving the payment of a sum of money” was added. As a result of the change, the final version of the article is as follows:
“The precondition for filing a lawsuit regarding debt, compensation, objection cancellation, negative determination, and recovery cases involving the payment of a sum of money, as specified in Article 4 of this Law and other laws on commercial cases, is to apply to a mediator before filing a lawsuit.
The mediator concludes the application within six weeks from the date of assignment. This period may be extended by the mediator for a maximum of two weeks in compulsory cases.”
With this amendment, it became mandatory to apply to a mediator before filing a lawsuit not only for debt and compensation claims involving the payment of a sum of money, as was the case before, but also for objection cancellation, negative determination, and recovery cases
2. Article 34: Addition of Article 17/B to the Law on Mediation in Legal Disputes No. 6325, Following Article 17
In the context of this article, Article 17/B was added to the Law on Mediation in Civil Disputes No. 6325, following Article 17. The text of the said article is as follows:
‘Mediation in disputes related to the transfer of immovables or the establishment of limited real rights on immovables
Article 17/B- (1) Disputes related to the transfer of immovables or the establishment of limited real rights on immovables are eligible for mediation.
(2) In disputes covered by the first paragraph, if the parties agree in writing and the mediator records this decision, upon the mediator’s request and limited to the mediation process, a notation is made in the land registry restricting the authority to dispose, not exceeding three months from the date of entry. This notation is lifted automatically at the end of the three-month period if the parties do not reach an agreement or if the parties agree to lift the notation.
(3) In the event of an agreement between the parties at the end of the mediation process, the agreement document is prepared, taking into account the limitations, procedures, and principles specified in the laws regarding the transfer of immovables or the establishment of limited real rights on immovables.
(4) It is mandatory to obtain a notation regarding the enforceability of the agreement document, and this notation is obtained from the local peace court where the immovable is located. In its examination, the court checks the content of the agreement, whether it complies with the laws and procedures and principles regarding the transfer of immovables or the establishment of limited real rights on immovables, and whether it is suitable for mediation and compulsory execution; in this context, it may request information or documents from institutions or organizations and, if necessary, hold a hearing.
(5) The provisions of Article 18 apply to other matters regarding obtaining the notation for the enforceability of the agreement document.’
With the addition of this article, the anticipated innovation is making disputes related to the transfer of immovables or the establishment of limited real rights on immovables eligible for mediation. With this regulation, parties can attempt to resolve their disputes before going to court by using a mediator. If the parties agree to go to a mediator, and the mediator records this with the parties, a notation can be made in the land registry to limit the authority to dispose, limited to the mediation process and not exceeding three months. This notation can be removed upon the mediator’s request if the parties do not reach an agreement or if the parties agree to lift the notation, and in any case, it automatically lifts after three months.
If the parties reach a settlement before the mediator, for the enforceability of the agreement document, a notation must be obtained from the local peace court where the immovable is located. In its examination, the court checks whether the content of the agreement complies with the laws and procedures and principles regarding the transfer of immovables or the establishment of limited real rights on immovables, and whether it is suitable for mediation and compulsory execution. In this context, the court may request information or documents from institutions or organizations and, if necessary, hold a hearing.
3. Article 36: Amendments to the Seventh and Sixteenth Paragraphs of Article 18/A of the Law on Mediation in Legal Disputes No. 6325
This provision entails additions to Article 18/A of Law No. 6325 on Mediation in Legal Disputes. The text of the relevant article is as follows:
**”Mediation as a prerequisite for litigation
Article 18/A – (Additional: 6/12/2018-7155/23) …
(7) Contact information of the parties is provided to the appointed mediator by the office. The mediator relies on this contact information and may conduct further research when needed. Based on the available information, the mediator informs the parties about the appointment using any means of communication, inviting them to the initial meeting. (Additional sentence: 28/3/2023-7445/36 md.) Even if the party has a lawyer, the principal is also informed. The procedures for informing and inviting are documented.
…
(16) In the event of a provisional injunction decision before filing a lawsuit, the time limit for filing a lawsuit regulated in the first paragraph of Article 397 of Law No. 6100, and in the case of a provisional attachment order, the time limit regulated in the first paragraph of Article 264 of the Execution and Bankruptcy Law No. 2004, does not apply until the date of the record that stops after applying to the mediation office. (Additional sentence: 28/3/2023-7445/36 md.) After applying to the mediation office, if enforcement proceedings related to the dispute are initiated against the applying party, the applying party may file a negative determination action within two weeks from the date of the last record in accordance with Article 72 of Law No. 2004 and, if requested, the second paragraph of Article 72 of Law No. 2004 shall apply.
…”
Regarding the seventh paragraph’s amendment, it now stipulates that in mandatory mediation, not only the attorney but also the principal must be informed, and these processes must be documented.
Similarly, concerning the sixteenth paragraph’s amendment, if enforcement proceedings are initiated against the applying party after applying to the mediation office, the applying party can file a negative determination action within two weeks from the date of the last record. If requested, and subject to depositing a security amount of no less than fifteen percent of the claim amount, the court handling the negative determination action may issue a provisional injunction to stop the enforcement proceedings.
4. Article 37: Addition of Article 18/B to the Law on Mediation in Legal Disputes No. 6325, Following Article 18/A
Under this provision, Article 18/B has been added to the Law on Mediation in Legal Disputes No. 6325, following Article 18/A. The text of the new article is as follows:
**”Mediation as a prerequisite for litigation in certain disputes
Article 18/B- (1) In the following disputes, it is a prerequisite for litigation that mediation has been sought before filing a lawsuit:
a) Disputes arising from the lease relationship, excluding provisions regarding the eviction of leased immovables through summary execution under Law No. 2004, except those related to evacuation.
b) Disputes related to the partition of movable and immovable properties and the elimination of joint ownership.
c) Disputes arising from Law No. 634 dated 23/6/1965 on Condominium Ownership.
ç) Disputes arising from neighbor rights.
(2) In case of an agreement between the parties at the end of the mediation process, the agreement document shall be prepared in accordance with the limitations, procedures, and principles specified in the laws regarding real estate.
(3) It is mandatory to take a note regarding the enforceability of the agreement document prepared within the scope of this article. This note is obtained from the peace civil court where the property is located for agreement documents related to real estate and from the place where the mediator serves for other agreement documents. In examining the agreement documents related to real estate, the court checks the content of the agreement, whether it is suitable for mediation and compulsory execution, and whether it complies with the limitations, procedures, and principles specified in the laws regarding real estate; in this context, it may request information or documents from institutions or organizations and, if necessary, hold a hearing.
(4) The provisions of Article 18 apply to other matters regarding the note on the enforceability of the agreement document.”
With the addition of this new article, mediation has become a prerequisite for litigation in certain disputes.
These include:
- Disputes arising from the lease relationship, excluding provisions regarding the eviction of leased immovables through summary execution under the Execution and Bankruptcy Law (such as summary eviction due to non-payment of rent, summary enforcement for the expiration of the lease term).
- Disputes related to the elimination of joint ownership in movable and immovable properties.
- Disputes arising from the Condominium Ownership Law.
- Finally, disputes arising from neighbor rights.
This new regulation is considered appropriate and expected, especially in resolving disputes between tenants and landlords that have increased after the Covid-19 pandemic. It aims to reduce the workload of the courts, expedite dispute resolution, and eliminate obstacles that may hinder parties from obtaining their rights in a timely manner.
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Under this provision, a temporary article titled “TEMPORARY ARTICLE 3” has been added to the Law on Mediation in Legal Disputes No. 6325. The text of the temporary article is as follows:
“TEMPORARY ARTICLE 3- (1) With the law that creates this article, the provisions regarding mediation as a prerequisite for litigation added to this Law with the addition of Article 18/B shall not apply to cases pending in first-instance courts, regional courts of justice, and the Court of Cassation as of the effective date of this article.”
This added article stipulates that the provisions that have come into effect under this context will not have retroactive effect, and they will not be applied to cases pending in first-instance courts, regional courts of justice, and the Court of Cassation as of the effective date of this article, where the Law on Mediation in Legal Disputes No. 6325, specifically the Article 18/B titled “Mediation as a prerequisite for litigation in certain disputes,” has been enacted.
6. Article 41: Addition of a New Paragraph to the First Paragraph of Article 3 of the Law on Labor Courts No. 7036, Dated 12/10/2017
Under this provision, a new addition has been made to the first paragraph of Article 3 of the Law on Labor Courts No. 7036, dated 12/10/2017. The previous version of the article was as follows:
“Mediation as a prerequisite for litigation
Article 3 – (1) In lawsuits filed for individual or collective claims and compensation based on an individual or collective employment contract, it is a prerequisite for litigation that mediation has been applied.”
However, with the mentioned amendment, the following phrase was added to the end of the article: “This provision applies to objections, negative determinations, and eviction lawsuits related to these claims and compensation.” As a result of this addition, the final version of the article is as follows:
“Mediation as a prerequisite for litigation
Article 3 – (1) In lawsuits filed for individual or collective claims and compensation based on an individual or collective employment contract, it is a prerequisite for litigation that mediation has been applied. (Additional sentence: 28/3/2023-7445/41 md.) This provision applies to objections, negative determinations, and eviction lawsuits related to these claims and compensation.”
As of September 1, 2023, as a result of this addition, the mandatory requirement for mediation in lawsuits filed for individual or collective claims, compensation, and reinstatement based on individual or collective employment contracts has been extended to include objections, negative determinations, and eviction lawsuits related to these claims and compensation
RESULT
Considering the explanations provided above, it is evident that the legislator has made numerous changes and innovations in the field of mediation. Before evaluating these aspects, it would be appropriate to analyze the purpose of the mediation institution and why it emerged, and make an assessment from this perspective.
The fundamental purpose of the mediation institution is to listen to and understand the parties in dispute and, without transferring the matter to judicial authorities, to offer the parties a solution in the shortest and fairest manner possible. The mediator does this by listening to the parties separately or together, evaluating the situation, identifying the issues on which the parties are in conflict, and attempting to eliminate the dispute by offering a solution in line with fairness. Through this practice, dialogue between the parties is also increased, and a more moderate approach is taken to resolving disputes. In addition, the practice of mediation reduces the workload of the courts, allowing more assessment time for more significant disputes.
Taking all these into consideration, the importance of the mediation institution and the facilitation it provides in legal life becomes apparent. Therefore, as mentioned above, we believe that the new mediation regulations that came into effect as of September 1, 2023, will be appropriate and beneficial in terms of the legal system and enabling parties to resolve their disputes quickly and regain their rights.
Av. M. Talha Arslan
Av. Mücahit Tüz
Av. Cansel Cor
Stj. Av. Atakan Alkış