Commercial Law

 Ankara Commercial Lawyer; All transactions and actions related to a commercial enterprise with the issues regulated in the Turkish Commercial Code are commercial transactions. A person who operates a commercial enterprise, even partially, in his own name is called a merchant. Whether a contract, business or transaction is made in a commercial capacity or not is decisive in many matters such as the interest to be applied to receivables arising from the contract, the competent court where the lawsuit will be filed and the court authorized to hear the lawsuit.

The 23rd Civil Chamber of the Supreme Court of Appeals ruled in its decision dated 27.11.2019 and numbered K. 2019/4949: “Civil Cases Arising from Issues Related to Commercial Enterprises of Both Parties Who Are Merchants Will Be Considered as Commercial Cases According to Article 4 of the TCC No. 6102 and the Case Must Be Heard in the Commercial Court of First Instance.”

Registration of the commercial enterprise in the trade registry, choosing a trade name in accordance with the commercial enterprise transactions and the law, carrying out the necessary work to prevent unfair competition, and keeping commercial books in accordance with the legislation require professionalism.

Ankara Commercial Lawyer

In addition, the distinction between tradesman and merchant in the Turkish Commercial Code is also important in carrying out all these transactions.

A commercial enterprise is a business in which activities that aim to generate income at a level exceeding the limit stipulated for a tradesman business are carried out continuously and independently. A person who partially operates a commercial enterprise in his own name is a tradesman; a person whose economic activity is based on physical work rather than capital, whether mobile, in a shop or fixed in a certain place on the street, is a tradesman.

In its decision, the 11th Civil Chamber of the Supreme Court of Appeals emphasized that “Being registered or not in the trade registry or chamber is not the sole evidence to determine the status of a tradesman, and being a taxpayer or not is not the definitive measure in distinguishing between a tradesman and a tradesman, and the fact that a person is considered a tradesman according to the tax procedure law does not require that person to be a tradesman in terms of the commercial law.”

Is Mediation Mandatory in Commercial Law Cases?

A mediator is an expert who aims to create an environment that allows the parties to re-negotiate and reach an agreement, rather than resolving the dispute by making a decision. The mediator does not aim to find or determine who is right or wrong; he tries to resolve the dispute by trying to find a ground for agreement that balances the interests of both parties in the most appropriate way.

In commercial cases, it is a condition of the case to apply to a mediator before filing a lawsuit regarding receivables and compensation claims whose subject is the payment of money.

In its decision dated 04.11.2019 and numbered K. 2019/1351, the 12th Civil Chamber of the Istanbul Regional Court of Justice stated that “The lawsuit concerns the claim for compensation for material and moral damages arising from the allegation that the commercial sales contract was violated. In the first paragraph of Article 114/1 of the Civil Procedure Code No. 6100, the issue of what the lawsuit conditions that are valid for all lawsuits are clearly stipulated, and in Article 114/2 of the Civil Procedure Code, it is stated that the provisions regarding the lawsuit conditions in other laws are reserved. With Article 5/A added to the Turkish Commercial Code No. 6102 by Law No. 7155 and entered into force on 01/01/2019, “It is a lawsuit condition to apply to a mediator before filing a lawsuit regarding receivables and compensation claims whose subject is the payment of a certain amount of money from commercial lawsuits specified in Article 4 of the Law and other laws. ….” According to the provision, it has been made mandatory to apply to mediation before filing a lawsuit in commercial lawsuits regarding receivables and compensation claims, the subject of which is the payment of a certain amount of money, in other words, applying to mediation has been made a condition of action. It should be accepted that the lawsuit is essentially only about the claim of compensation, in which case it is clear that mediation will be subject to the condition of action.” and decided that the lawsuit should be rejected on procedural grounds.

In cases where there is an obligation to apply to arbitration or another alternative dispute resolution method in Special Laws or where there is an arbitration agreement, the provisions regarding mediation as a condition of action do not apply