Asena is a senior associate in the Corporate and Commercial Law Department at Gün+Partners. She was granted her LL.B. from Istanbul Bilgi University Faculty of Law and is currently an LL.M candidate in Business Law program of Istanbul Bilgi University.
Asena’s main area of practise is commercial dispute resolution. She advises and represents both national and international clients in their commercial law, law of obligations, construction and real estate related disputes before courts and arbitral tribunals. She has a specific focus on business crimes and she handles various disputes where the dispute contains the application of both civil and criminal law principles. She also actively involves in proceedings where recognition and enforcement of foreign judgments/arbitral awards is sought.
She is also experienced in employment law. She provides consultancy and represents clients in relation to a wide range of labour law issues including preparation and negotiation of employment contracts, personnel management, reemployment and unjust competition actions.
Mandatory mediation for commercial disputes was recently introduced by the Law on Legal Procedures to Initiate Proceedings for Monetary Receivables arising out of Subscription Agreements. As a result, an application for mediation is a condition for bringing a legal action before the courts, and a case will be dismissed on procedural grounds if the claimant in a commercial action fails to fulfil this obligation.
The Law on the Amendment of Some Laws to Improve the Investment Environment introduces new provisions regarding the issuance of cheques and bounced cheques. The omnibus act amends the Commercial Code and introduces a serial number issued by the bank and a two-dimensional barcode to the mandatory elements on cheques. Further, banks now have extended obligations regarding the opening of cheque accounts.
Minimum wage, severance payments and administrative fines prescribed by the Labour Act are revised at the beginning of each calendar year. The minimum wage rate was recently increased to TL2,558.40 (gross) and the maximum severance payment was increased to TL6,017.60 (gross). In addition, the rate of administrative fines was increased by 23.73% compared with 2018.
The recently published Presidential Executive Decree 85 amended Decree 32 on the Protection of the Turkish Currency. In the field of employment law, it is unclear whether foreign nationals fall within the scope of the decree and how their salaries will be paid going forward. Since the decree uses the term 'Turkish residents', the general understanding is that it also applies to foreign employees, as they must have a residential address in Turkey in order to have a work permit.
The Labour Courts Act has introduced a number of changes and amended the appeal procedure for labour disputes. The legislature hopes to shorten the duration of actions which, by their nature, should be resolved as quickly as possible. Although it is still questionable whether these amendments will produce the anticipated returns in terms of reaching the desired duration for trial processes, they mark an important attempt to limit the two-phase appeal stage for certain cases.
A long-awaited legal arrangement on employees' automatic enrolment in private pension plans by their employers was introduced into Turkish law by way of an amendment law published in 2016. The amendment law adds new provisions to the Private Pension Savings and Investment System Act 2001. Accordingly, employees under the age of 45 will be enrolled in a private pension plan with a pension agreement between the employer and a pension company.
The Ministry of Justice recently prepared a new draft Law on Labour Courts and shared it with the relevant public institutions and organisations for review. The draft law aims to ease the judiciary's workload and accelerate the judicial process in employment cases. The most important amendment stipulated in the draft law is the introduction of a mandatory mediation phase. If the draft law is adopted, it will be mandatory for employees to apply for mediation before initiating certain lawsuits.
The Law amending the Enforcement and Bankruptcy Law and Other Laws recently came into force. The most significant amendments introduced to the Enforcement and Bankruptcy Law are the abrogation of the postponement of bankruptcy procedure and the adoption of a more efficient and functional structure for the composition with creditors procedure, which is a court-approved agreement between debtors and creditors.
Parliament recently enacted an omnibus bill which – among other things – introduced new provisions regarding the postponement of bankruptcy. As a legal mechanism open to the misuse of debtors, the limitation of applications for the postponement of bankruptcy has been on Parliament's agenda for some time. The changes aim to establish stricter norms for such applications and make filing for bankruptcy a more attractive option than postponement.
Under Turkish law, there are two types of procedure in civil proceedings. Written procedure is the main and most common type, whereas the simple procedure, as the name suggests, is a simplified and expedited process. Following recent amendments, commercial cases worth less than TL100,000 are now subject to the simplified procedure in order to shorten the length of proceedings.
In order for an invoice to generate a payment obligation on its recipient, Turkish law requires that there be an obligatory relationship between the drafter and recipient. A recent case confirmed that even when the recipient of an invoice does not object to it and inadvertently records it in its accounting books, this does not result in a payment obligation unless the invoice has a legal basis.
The recognition and enforcement of foreign judgments and arbitral awards in Turkey is subject to the International Private and Civil Procedure Law, under which enforcement actions must be filed before the civil courts of first instance, including certain specialised courts. The Court of Appeals has generally adopted a single approach regarding the jurisdiction of specialised courts in enforcement actions, but a recent decision has created uncertainty in that regard.
The Council of Ministers recently enacted a decree-law that amends Banking Law 5411 by introducing a sub-paragraph into Article 160, which regulates the crime of embezzlement committed by bank officers. While the need to make this amendment may at first be questioned, it should be read in light of the background of the crime of banking embezzlement.