Bibliografía (Revista de revistas) - Public and Private International Law Bulletin, vol. 39-1 (junio 2019)

Trabajos publicados en el Public and Private International Law Bulletin, vol. 39, núm. 1 (junio 2019):

-Merve Akbulut, Remedies Against Material Conditions at Removal Centers / Geri Gönderme Merkezlerindeki Fiziki Koşullara Karşı Başvuru Yolları, pp. 1-32

Although Law on Foreigners and International Protection has provides regulations on removal centers, it hasn’t envisaged any remedy for violatio arising from the conditions in these centers. However, The Constitutional Court ruled that Damages as remedy against administrative authorities is an effective remedy for violations that might occur in these centers. In this study, remedies in Turkish Law, which were applied against violantions occur in the removal centers and these remedies’ effectiveness were examined.

-Esen Aydın, Review of the Validity of the Arbitration Agreements by Turkish Courts in Cases Where the Seat of Arbitration is in a Foreign Country and the Applicable Law / Yabancı Bir Devletin Tahkim Yeri Olarak Kararlaştırıldığı Hallerde Tahkim Anlaşmasının Geçerliliğine İlişkin Türk Mahkemelerinin Yapacağı İnceleme ve Uygulanacak Hukuk, pp. 33-61

The scope of the review held by the courts in cases where a dispute subject to arbitration is brought before a court are discussed in the first part of our study, by paying particular attention to cases where seat of arbitration is in a foreign country. In the case on the merits of the dispute, the respondent can raise an arbitration objection and the claimant can assert that the arbitration agreement is invalid. Subsequent to relevant objections, first the scope of the review held by the court should be identified. The review can be prima facie, serving the purpose to determine if there is an existing arbitration agreement or the court can opt for a broad review and determine the validity of the arbitration agreement. The importance of choosing a foreign seat and the effects of this choice on the scope of the review are discussed in our study. In cases where the court reviews the validity of the arbitration agreement, the law applicable to the arbitration agreement should be determined and this issue is discussed in the second part of our study. When the seat of arbitration is in a foreign country, there is a gap in Turkish law regarding the law applicable to the arbitration agreement. The opinions put forward in the doctrine as to how to fill this gap are evaluated.

-Şafak Parlak Börü, A Difficult Turning Point in Family Law: The Current Developments on Surrogate Motherhood with a Comparative Law Perspective / Aile Hukukunda Zor Bir Dönemeç: Karşılaştırmalı Hukuk Bakış Açısıyla Taşıyıcı Anneliğe İlişkin Güncel Gelişmeler, pp. 63-110

Surrogate motherhood has become one of the most interesting and complicated issues of family law in both domestic law and private international law. The verity of the ‘mater semper certa est’ principle of Roman law has started to feel the effects of the development of new reproduction techniques. The different national legal provisions and applications have become the reason for the rise of (international) surrogacy tourism. It can now be seen that the once rigid approach of European countries in this area has softened since the decisions of the ECHR in Mennesson and Labassee. The subject is partly regulated in Turkish law while the practice of surrogate motherhood is prohibited. In our study, we attempted to deal with the subject matter according to different aspects - in terms of comparative law and recent decisions of the ECHR. Thus, we wish to make a contribution to the discussion and potential legal framing and harmonization in Turkish law.

-Cansu Dönmez, The Buyer’s and Seller’s Exclusion from Liability Under the CISG and Its Comparision with the Turkish Law of Obligations / CISG Uyarınca Alıcı ve Satıcının Sorumluluktan Kurtulması ve Türk Borçlar Hukuku ile Karşılaştırılması, pp. 111-143

This article comparatively examines the buyer’s and seller’s exemption from liability under the 6098 numbered Turkish Code of Obligations and The United Nations Convention on Contracts for the International Sale of Goods (CISG). The Agreement has become a part of our legal system regarding the international sales of movable property containing an element of foreignness. It may be observed that the text of the Agreement has adopted a different approach towards the breach of contract and liability systematic. Therefore, CISG has created a general frame as to what constitutes a breach of contract. Additionally, CISG has adopted a liability system that is detached from the concept of negligence. In other words, it could be said that the Agreement almost presents a regime that is similar to a guaranteed liability. For this regard, the need to limit this liability regime in order to prevent unbearable situations, has led to the adoption of Articles 79 and 80. Article 79, which has similar effects for both seller and buyer, puts forward that both parties are not liable for a failure to perform any of their obligations if they prove that the failure was due to an impediment beyond their control and that they could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it, or its consequences. Article 79 could only be invoked during the period where the damage is on the seller. Another important yet controversial aspect which is also important in terms of our study is that Article 79 does not explicitly state the type of the breach that would lead to an exemption from the seller’s liability. Therefore, the difference between the non-performance and the defective performance will be analyzed within this framework. Lastly, Article 79 could only be applicable in the event where the parties did not agree on a specific contractual risk allocation. Article 80 puts forward that a party may not rely on another party’s failure to perform, to the extent that such failure was caused by the first party’s act or omission. Unlike Article 79, according to Article 80, the obligor will be exempt from all of his liabilities.

-Doğan Kara, The Applicable Law to the Contract of Mandate / Vekâlet Sözleşmesine Uygulanacak Hukuk, pp. 145-188

Today’s commercial and economic life has a character that transcends the borders of the countries. Knowledge and expertise gain importance in this economic structure. Therefore, in many fields such as consultancy, banking, medical sector, education, law, architecture, which require expertise, the contract of mandate has a wide application area. The fact that the contract of mandate manifests itself in many cases together with the power of representation or, in a more precisely, requires the power of representation raises the question of which regulations will be subject to the contract status and which law to be applied to the power of representation. In this respect, the grey areas, which are directly related to the authority of representation, should be considered as a whole and subject to the law applicable to the power of representation. In addition, the law to be applied to contract of mandate shall be determined by the determination of the general “contract status”, in other words “the law applicable to contractual obligations”. It should be remembered that the most important point in all these evaluations is the problem of qualification.

-Hüseyin Akif Karaca, The CISG’s International Sphere of Application, Party Autonomy and Some Interpretation Problems / CISG’in Milletlerarası Uygulama Alanı, İrade Serbestîsi ve Bazı Yorum Meseleleri, pp. 189-215

The CISG is a treaty that aims to unify substantial law in international sales contracts. It regulates its own application sphere. According to these regulation, the CISG is applied to international sales contracts between parties whose business places are in different contracting states. In addition to this method of application, CISG can be applied to international sales contracts between parties in which at least one of the parties’ business place is not in a contracting state, through the reference of the forums’ conflict of laws rules to the law of a contracting state. The contracting states could make a reservation to the application of the CISG through this second method. The parties could also prevent the application of the CISG totally or partially based on the party autonomy that is provided to them by the CISG. This could be done through an explicit provision in the contract or through choice of the law of a non-contracting state. In this article, interpretation of the CISG provisions that regulates the application of the CISG through the conflict of laws rules of the forum and the effect of the reservation of the states to this kind of application, which has been subject to extensive doctrinal discussion, is analysed in detail. Prevantion of the CISG’s application based on the party autonomy provided to contracting parties by the CISG is also analysed in detail.

-Ceren Karagözoğlu, The Evaluation of United Nations Economic Sanctions Decisions in Terms of Human Rights Law / Birleşmiş Milletler Güvenlik Konseyi Bireye Yönelik Ekonomik Yaptırım Kararları ve İnsan Hakları İlişkisi, pp. 217-273

The Security Council has the primary responsibility for the maintenance of international peace and security. Targeted sanctions have been utilized by the Security Council to address the range of threats to international peace and security to counter terrorism, and protect human rights. However, the lack of adequate protection of human rights by these decisions causes various violations and leads to debates about the determination of the legal limits of decisions and judicial review. In this study, it is aimed to evaluate the targeted sanctions of the Security Council on these legal problems.

-Burcu Osmanoğlu, Ethical Rules Applicable to Party Representatives in International Commercial Arbitration and Difficulties Encountered in Practice / Uluslararası Ticari Tahkimde Taraf Vekillerine Uygulanan Etik Kurallar ve Uygulamada Karşılaşılan Sorunlar, pp. 275-294

Parties in international commercial arbitration are represented either by one or more party representatives registered with multiple bars or not registered with a bar at all or by a layperson. The seat of arbitration is usually where neither party’s representative is licensed. This diversity arising out of the very nature of international arbitration gives rise to the application of multiple ethical rules to party’s representatives and brings up the question of which ethical rules shall be applicable to parties’ representatives, who shall be the competent authority in case of breach and whether the arbitral tribunals have legitimate power to sanction the parties’ representatives. In this article, we first examine existing ethical rules regulating the conduct of party representatives in international arbitration. Then we explain the content and difficulties encountered in the application of the said rules. Finally, we discuss the gaps of the current regulations and the enforcement issue.

-Berk Hasan Özdem, The Path of Eastern Arbitration to Take Islamic Finance Disputes from the Hands of English Litigation / Doğu Tahkiminin İslami Finans Uyuşmazlıklarını İngiliz Mahkemelerinin Elinden Alma Yolundaki Süreci, pp. 295-323

Over the last decades the exponential growth in Islamic finance and the globalization of the industry has resulted in the disputes amongst international entities arising out of Sharia-compliant agreements to be more commonplace. It has been a common practice amongst the parties of Islamic finance transactions to choose English law as the governing law. This paper, after examining the limitations in the applicability of Islamic law in English courts, focuses on the critics that the current practice of choosing English law as the governing law faces and discusses the potential of arbitration to provide a more advantageous dispute resolution method for the parties that agree on resolving their issues compliant with Islamic law. Finally, this paper explains the adventure of Eastern arbitration to take Islamic Finance disputes from the hands of English courts by examining the initiatives taken by the arbitral institutions so far, as well as the ideas that came from scholars to create better solutions for the parties of Islamic finance transactions in their disputes.

-Zeynep Derya Tarman, Consumer Contracts in Private International Law / Milletlerarası Özel Hukukta Tüketicinin Korunması, pp. 325-356

Under international private law, the issue of consumer protection bears significance regarding conflict of laws rules and international jurisdiction. Turkish Private International Law and International Civil Procedure Code no. 5718 (PIL Code) stipulates the relevant choice of law rules pertaining to consumer contracts under Art.26. On the other hand, the international jurisdiction of Turkish courts over consumer contracts are stated under Art.45 of PIL Code. In determining the international jurisdiction of Turkish courts over consumer contracts, PIL Code refers to Art.26. Hence, the scope of Art.26 regarding the types of consumer contracts it encompasses, bears a great significance both regarding the applicable law and international jurisdiction of Turkish courts. Under the first section of this study, the scope of the Art.26 will be determined. Following this, under the second section international civil procedure rules pertaining to consumer protection are examined. In this context, the legal characteristics of international jurisdiction rules under Art.45 will be explained; the validity of choice of court agreements in matters relating to a consumer contract will be examined; and finally, the recognition and enforcement of foreign judgments regarding consumer disputes will be discussed.