Mediation as a Prerequisite for Legal Proceedings in terms of Commercial Disputes and Particularly Intellectual Property Rights Disputes

Mediation as a Prerequisite for Legal Proceedings in terms of Commercial Disputes and Particularly Intellectual Property Rights Disputes

ARTICLE 20- Following article shall be inserted to Turkish Code of Commerce numbered 6102 dated 13/1/2011 subsequent to Art. 5:

“3. Mediation as a Prerequisite for Legal Proceedings

Art. 5/A- (1) Mediation shall be prerequisite for legal proceedings for the actions subject matter of which relates to payment of debt or damages among the commercial actions which are provided by Art. 4 of the Code herein and other acts.

(2) The mediator shall conclude the application within six months of her assignment. In case of obligatory circumstances this period may be extended up to two weeks.”

ARTICLE 21- The following provisional provision has been inserted to the Code numbered 6102:

“Provisional Article 12- (1) Provisions in the Code herein which relate to mediation as a prerequisite for legal proceedings shall not apply to actions which has been heard by courts of first instance, courts of appeal and Court of Cassation as of the date of entry into force of said provisions.”

ARTICLE 22- The following provision has been inserted to Article 3 Paragraph 1 of the Law on Mediation in Civil Disputes numbered 6325 dated 7/6/2012.

“However, Article 18/A relating to mediation as a prerequisite for legal proceedings is reserved.”

ARTICLE 23- Fifth Chapter entitled “Mediation as a Prerequisite for Legal Proceedings” and provision below inserted to Act numbered 6325 following the Forth Chapter and the other chapters have been arranged accordingly.

 

Aforesaid Act is such an act that is described as omnibus bill and framework articles 20-23 in this act provides for compulsory mediation procedure. By means of its framework article 20, the act stipulates that article 5/A is to be inserted to Turkish Code of Commerce (TTK) numbered 6102 dated 13.01.2011.

Under the Art. 5/A inserted to TTK, mediation is laid down as a prerequisite for lawsuits cause of actions of which are payment of an amount of money and which are brought for the purposes of claims for debt or damages provided within scope of Art. 4 of TTK. Although aforesaid provision may appear as a regulation applicable merely to commercial actions, its applicability to actions laid down under intellectual property legislation is beyond any question. Civil actions provided under intellectual property legislation are deemed to be commercial actions under Art. 4/1(e) of TTK regardless of whether the parties to disputes are merchants.

It should be emphasised that aforesaid Art. 4/1(e) does not refer to the actions arising out of intellectual property legislation but rather the actions which are provided for therein. In other words, the actions which are expressly laid down in intellectual property legislation are to be deemed as commercial actions.

The actions provided under Law No. 5147 of 22.04.2004 on the Protection of Integrated Circuits Topographies, Law No. 6769 of 22.12.2016 on the Industrial Property (SMK) and under the condition that it relates to commercial undertaking Law No. 5846 of 05.12.1951 on Intellectual And Artistic Works (FSEK) are covered by Art. 4/1(e) of TTK. Mediation is laid down as a prerequisite for the actions of debt and actions for damages, cause of which relate to payment of an amount of money owing to aforesaid amendments.

Problems and issues encountered during ordinary legal proceedings are commonly complained about. Ordinary legal proceedings may take considerable amount of time both in terms of legal proceedings and enforcement of court decisions. The delay may even take form of wel-known legal maxim “justice delayed is justice denied”. Delays in ordinary legal proceedings give rise to heavy costs as well.

Furthermore, lack of grey settlements which in turn result in circumstances where parties are identified either as winner or as loser bring forth a tension between parties that hinder their future trade relations. Combination of aforesaid circumstances crate an impetus for lawyers to seek for alternative dispute settlement mechanisms.

Alternative dispute resolution mechanisms, particularly mediation, are settlement methods developed in view of the weaknesses posed by civil legal proceedings. These are resolution mechanisms envisaged with a view to eliminating extreme behaviours and encouraging parties to be more open-minded and to take active part in communication. These settlement methods aim at rapid achievement of results, diminishing concerns, cutting back in terms of administrative and legal aspects. Parties will have to continue trade relations existed between themselves prior to these resolution mechanisms even after the settlement. The persons expected to settle the dispute in alternative dispute resolution mechanisms are to take account of not only legal aspects of each dispute but also the interests. The aforesaid persons and parties are to discuss the dispute in detail a