Obligatory Mediatiıon For Commercial Disputes Is Coming 19 December 2018
The Law on the Execution Proceedings for Pecuniary Claims Arising out of Subscription Agreements (“Law”) which brings obligatory mediation for commercial disputes has been published on the Official Gazette dated December 19th, 2018.
We would like to inform you below about obligatory mediation which has been brought for commercial disputes as a cause of action.
1. Which Disputes will Fall under the Scope of Obligatory Mediation?
Obligatory mediation will apply as a cause of action for commercial disputes which contains due and compensation requests of which subjects are to pay a specific amount of money.
Disputes arising out of Commercial Law, İntellectual Property Law Legislation, Capital Market Law, Commercial Representation, Turkish Obligation Law provisions related to assignment of asset or operation may be given as examples for commercial disputes. However, obligatory mediation does not act as cause of action for all commercial disputes, it just apply for commercial disputes with due and compensation requests of which subjects are to pay a specific amount of money. For instance, it is not required to apply obligatory mediator for cancellation of general assembly resolutions.
2. How to apply for a Mediator?
Application for mediator shall be made to the mediation office where authorized court for matter of dispute is located, for places where mediation office has not been established, application for mediator shall be made to the authorized directorate of editorial department.
Mediator shall be indicated from the list which commission presidency is notified. However, if parties agree for the person who is not on the list, this person shall be assigned as a mediator.
If any, applicant shall submit contact information of the opposing party to the mediator office. The office is also entitled to investigate parties’ contact information on official records if required.
3. How Mediator’s Assignment Process will continue?
Contact information shall be presented to the mediator and then, mediator communicates with parties and invite them for the first meeting.
If opposing party claims that mediator has been assigned by unauthorized office that party may object to authorization of mediator office by submitting related documents most lately during the first meeting. In that situation, mediator shall deliver the file to office in order to be delivered to the related Civil Court of Peace. The court shall confirm authorized office at least within 1 week without conducting a hearing. The decision regarding the confirmation is a final decision.
The court decision shall be issued to parties by office. In dispute that the court has rejected the request, the same mediator shall be assigned once again. However, if the court has approved the request, it is possible to apply authorized office within 1 week as of decision date.
4. How Mediation Implementation will proceed?
Mediator shall conclude the application within 3 weeks from the assignment date. This term may be protracted minimum for 1 week by mediator in the event of force majeure.
In disputes that parties could not be reached or the meeting could not be held due to absent of parties or parties have agree or not, mediation process shall be finished by the mediator and report shall be made and delivered to the office.
If the mediator process has been terminated due to that one party has not attended to the first meeting without alleging any plead, the party who has not joined to first meeting shall be indicated in the last report. That party shall be liable for all litigation costs even if his/her request is approved partially or completely. Besides, counsel fee shall not be ordered in the favor of that party. In the event of that both parties have not attended to the meeting, each party shall be responsible for its own cost.
5. What will Be Results of Applying a Mediator?
Statute of limitations stops and period of prescription does not continue on the period during the dates between applying to the office and preparing of a last report.
In dispute of decision regarding cautionary judgment or cautionary attachment has been rendered, terms of litigation are not processed from application date till the date which the last report will have prepared.
6. What will happen in the Event of not applying for a Mediator?
As applying mediator is a cause of action for commercial disputes which contains due and compensation requests of which subjects are to pay a specific amount of money, if a lawsuit has been filed without applying mediator before, the lawsuit will be rejected based on lack of cause of action. Hence, it has become obligatory that submitting the last report prepared by mediator into the lawsuit petitions.
Besides that, if special Laws, which stipulates necessity regarding applying arbitration or other alternative disputes resolution methods, or arbitration agreement were subsisted, it is not obligatory to apply mediator.
7. Will Amendments be applied to the Ongoing Disputes?
Amendments that have been made by the Law shall not be effective for the disputes which are pending on Courts of First Instance, Regional Courts of Justice and the Supreme Court.
8. When will the Amendments Come into Force?
Amendments have come into force on the date when the Law is published on the Official Gazette
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