DisputeResolution

Scope

The area of dispute resolution covers the procedures for resolving legal disagreements that arise between parties. These procedures include actions before the general courts (Code of Civil Procedure No. 6100, HMK), interim injunctions and precautionary attachments, enforcement and bankruptcy proceedings (Enforcement and Bankruptcy Law No. 2004, İİK), mediation (Law No. 6325 on Mediation in Civil Disputes), arbitration, and actions for annulment or full remedy actions before the administrative courts (Administrative Procedure Law No. 2577, İYUK). In criminal proceedings, for certain offences, there is the institution of reconciliation regulated in Articles 253–255 of Code of Criminal Procedure No. 5271; unlike mediation in private law, this institution applies only to the offences listed in the law.

Which route to follow is determined according to the subject matter of the dispute, the parties, the contractual provisions and the applicable time limits. Mediation is the search for a solution by the parties themselves with the assistance of an impartial mediator, in accordance with the principles of voluntariness, equality and confidentiality. Limitation periods and preclusive periods do not run during the mediation process (Law No. 6325 Art. 16). If the settlement agreement drawn up at the end of mediation is signed by the parties and their attorneys, it may be enforced as a document having the force of a court judgment (Art. 18). Arbitration, in turn, is governed by Art. 407 et seq. of the HMK in domestic arbitration and by International Arbitration Law No. 4686 in disputes involving a foreign element.

Frequently encountered matters

• Actions concerning receivables and damages, and actions arising from contracts.
• Enforcement proceedings based on a judgment and without a judgment, objection to the payment order, and annulment or removal of the objection.
• Negative declaratory actions, third-party ownership claims and actions for annulment of dispositions; concordat and bankruptcy.
• Preparation of requests for interim injunctions, precautionary attachments and the preservation of evidence; expert examinations.
• Applications for mandatory pre-litigation mediation and voluntary mediation; preparation of settlement agreements and compromise agreements.
• Inclusion of mediation or arbitration clauses in contracts; selection of arbitrators and arbitral proceedings.
• Actions for the setting aside of arbitral awards; enforcement of foreign arbitral awards.
• Applications for appeal (istinaf) and appeal on points of law (temyiz).
• Actions concerning the annulment of administrative acts and the liability of the administration.
• Assessment of reconciliation offers in criminal proceedings.

Process and points to note

The first stage of the work is to examine the facts and documents in order to determine the correct route of recourse and the authority having subject-matter and territorial jurisdiction. In certain disputes, the law makes an application to a mediator before an action is brought a precondition of the action (mandatory pre-litigation mediation): the principal ones are employee receivables arising from employment contracts and reinstatement (Labour Courts Law No. 7036 Art. 3), monetary receivables in commercial cases (Turkish Commercial Code No. 6102 Art. 5/A), consumer disputes (Law No. 6502 on Consumer Protection Art. 73/A), and disputes concerning leases, condominium ownership, neighbour law and the partition of co-owned property (Law No. 6325 Art. 18/B). An action brought without fulfilling this condition is dismissed on procedural grounds for failure to satisfy a condition of action.

In enforcement proceedings, the time limit for objecting to the payment order is seven days (İİK Art. 62); in proceedings specific to negotiable instruments, this period is five days (Art. 168). The creditor may request the removal of the objection from the enforcement court or bring an action for annulment of objection before the general court. In civil actions, the time limit for the statement of defence is two weeks (HMK Art. 127), the time limit for appeal (istinaf) is two weeks (Art. 345), and the time limit for appeal on points of law (temyiz) is also two weeks (Art. 361). An action for the setting aside of an arbitral award is brought within one month in domestic arbitration (HMK Art. 439) and within thirty days in international arbitration (Law No. 4686 Art. 15). In administrative proceedings, the time limit for bringing an action is, as a rule, sixty days (İYUK Art. 7). For this reason, the date and content of every document served are examined at the first stage.

Our office’s approach

In each file, the possible means of resolution are compared in writing in terms of time, cost and outcome. Where mediation or arbitration is not suitable, the court and enforcement routes are explained; limitation periods and preclusive periods are determined at the outset.