Commercial Lawyer

Every stage of commercial life has legal consequences, from the incorporation of a company to disagreements between shareholders, and from a contract signed with a supplier to an unpaid invoice. As a commercial lawyer in Mersin, I provide legal support to companies, merchants (tacir) and shareholders in company incorporation and the preparation of articles of association, in shareholder disputes, in lawsuits against general assembly resolutions, in commercial contracts, in debt collection, and in unfair competition and foreign trade disputes. In commercial lawsuits, procedural rules such as mandatory mediation as a precondition for the lawsuit (dava şartı arabuluculuk), strict time limits (hak düşürücü süreler) and the form of notices between merchants directly affect the outcome; for this reason, it is important that the case is set up correctly from the start.

What Does a Commercial Lawyer Help With?

• Incorporation of joint stock and limited liability companies, and preparation of articles of association and shareholders’ agreements
• Disputes between shareholders over management, dividends, share transfers, withdrawal from and expulsion from the company
• Lawsuits for the annulment of general assembly resolutions and for a declaration of their nullity
• Drafting and reviewing sale, supply, service and cooperation agreements
• Collection of commercial receivables arising from invoices, current accounts, cheques and promissory notes
• Lawsuits for a declaration, cessation, removal and compensation on grounds of unfair competition
• Assessment of contracts and practices under competition law
• Dealership, distribution, agency and franchise relationships
• Export and import contracts, international sales and arbitration

Company Incorporation and Articles of Association

When joint stock and limited liability companies are incorporated, the company agreement (called the articles of association, esas sözleşme, in a joint stock company) is made in writing; the founders’ signatures are certified by a notary or signed in the presence of an official of the trade registry directorate. The company acquires legal personality on registration with the trade registry. The company agreement is a road map for resolving disputes that may arise later: it can set out the conditions for share transfers, who holds management and representation authority, the quorums required for important decisions, and the steps to be followed if one of the shareholders leaves or dies.

For matters that cannot be included in the company agreement, or that the shareholders do not want to be publicly available in the trade registry, a separate shareholders’ agreement can be made between the shareholders. Knowing at incorporation that, in a limited liability company, a share transfer must be made in writing, the signatures must be notarised and, as a rule, the approval of the general assembly is required, prevents many later problems.

Shareholder Disputes

Disagreements between shareholders usually arise because management is concentrated in a single shareholder, profits are not distributed, the right to information and inspection is obstructed, company resources are diverted to another business of one of the shareholders, or share transfers are blocked. In such cases, remedies such as exercising the right to information and inspection through the court, a request for a special audit in joint stock companies, lawsuits concerning the liability of managers and dissolution for just cause may come into play.

In a limited liability company, a shareholder can file a lawsuit to withdraw from the company for just cause. The company can also seek the expulsion of a shareholder by a general assembly resolution on grounds set out in the company agreement, or through the court for just cause. For details, see the shareholder disputes page.

Annulment of General Assembly Resolutions

An annulment lawsuit can be filed against general assembly resolutions that are contrary to the law, the articles of association and, in particular, the principle of good faith. This lawsuit must be filed within three months of the date of the resolution at the commercial court of first instance (asliye ticaret mahkemesi) where the company’s head office is located; the time limit is strict. For a shareholder who attended the meeting to be able to sue, they must, as a rule, have voted against the resolution and had their dissent recorded in the minutes.

Resolutions that remove a shareholder’s inalienable rights or disrupt the basic structure of the company, however, are null and void, and a declaration of nullity is not subject to the three-month period. These rules on the annulment and nullity of general assembly resolutions also apply to limited liability companies.

Commercial Contracts

Sale, supply, service, contracts for work and cooperation agreements are the backbone of a commercial relationship. A well-drafted contract clearly regulates, in addition to the parties’ main obligations, the payment and delivery terms, notice of defects, the penalty clause (cezai şart) that applies in case of delay, the limits of liability, confidentiality, grounds for termination and the competent court or arbitration in the event of a dispute. The ability of merchants to agree among themselves on a jurisdiction clause is also an important option.

In commercial law, a merchant is expected to act like a prudent businessperson. For this reason, a merchant cannot ask for a penalty clause they accepted in a contract to be reduced by arguing that it is excessive. Between merchants, notices of default, termination and rescission must be given through a notary, by registered letter, by telegram or by registered electronic mail (KEP) with a secure electronic signature; failure to use this form makes it difficult to prove the notice. For details, see the commercial contracts page.

Collection of Commercial Receivables and Mediation

Unpaid invoices, current account balances, bounced cheques and promissory notes not paid at maturity directly affect a business’s cash flow. Before choosing a collection route, the documents on which the claim is based, the commercial book entries, the debtor’s assets and the limitation period are assessed together. For negotiable instruments such as cheques and promissory notes, the main route is attachment proceedings specific to negotiable instruments (kambiyo senetlerine özgü haciz yolu), and for other claims, enforcement proceedings without a court judgment (ilamsız icra takibi); if there is a risk that the debtor will hide assets, a precautionary attachment (ihtiyati haciz) may also be considered.

In commercial lawsuits, for claims for receivables and compensation whose subject is the payment of a sum of money, and in actions to annul an objection (itirazın iptali), negative declaratory actions (menfi tespit) and actions for restitution (istirdat), applying to a mediator before filing the lawsuit is a precondition for the lawsuit; a lawsuit filed without going to a mediator is dismissed on procedural grounds. Mediation is not required to start enforcement proceedings, but if the debtor objects to the proceedings, a mediator must be approached before the action to annul the objection. The mediator, as a rule, concludes the process within six weeks; this period may be extended by a maximum of two weeks where necessary. For details, see the debt collection page.

Unfair Competition

Disparaging a competing business, a similarity in products or packaging that creates confusion (iltibas), misleading advertising, inducing customers or employees to breach their contracts and the unauthorised use of trade secrets are listed among the forms of unfair competition in the Turkish Commercial Code (TTK). A business that has been harmed, or is at risk of being harmed, by unfair competition may request a declaration that the act is unlawful, the cessation of the unfair competition, the removal of its consequences and, if there is fault, compensation for pecuniary and non-pecuniary damage. To prevent evidence from being lost, a request for the preservation of evidence and, if necessary, an interim injunction (ihtiyati tedbir) should be considered at an early stage. For details, see the unfair competition page.

Competition Law

Unlike unfair competition, competition law protects competition in the market as a whole and is supervised by the Competition Authority (Rekabet Kurumu) under the Law No. 4054 on the Protection of Competition. Price fixing or market sharing between competitors, imposing resale prices on dealers and the abuse of a dominant position by an undertaking are prohibited. Mergers and acquisitions above certain thresholds require approval. Exclusivity and non-compete clauses in dealership and distribution agreements should also be examined separately from this perspective. For details, see the competition law page.

Dealership, Distribution and Franchise

Dealership, distribution and franchise agreements create long-term relationships of mutual dependence. Territorial and customer exclusivity, minimum purchase commitments, the use of the trademark and know-how, stock and return conditions, post-contractual non-compete obligations and notice periods for termination should be clearly written from the outset. When the agreement ends, the dealer or distributor may, if the conditions are met, claim a goodwill indemnity (denkleştirme talebi) in return for the manufacturer continuing to benefit from the customer base they brought in. This claim is regulated by law for agency and also applies to exclusive distribution and similar continuing contractual relationships, unless this would be inequitable. For details, see the dealership, distribution and franchise page.

Foreign Trade and International Sales

In exports and imports, since the parties are in different countries, which law will apply to the contract and where any dispute will be resolved should be decided at the very beginning. The method of delivery and the passing of risk are usually governed by the Incoterms rules, and payment is often arranged through a letter of credit (akreditif) or documents against payment (vesaik mukabili). The Vienna Sales Convention (CISG), to which Türkiye is a party, applies to many international sales of goods unless the parties agree otherwise. For foreign court judgments to be enforced in Türkiye, a lawsuit for recognition and enforcement (tanıma ve tenfiz) must be filed; foreign arbitral awards can be enforced under the New York Convention. For details, see the international trade law page.

Commercial Lawsuits in Mersin

In Mersin, commercial lawsuits are heard by the commercial courts of first instance. In districts without a separate commercial court of first instance, commercial lawsuits are heard by the civil court of first instance (asliye hukuk mahkemesi) acting as a commercial court; in disputes in districts such as Tarsus, Erdemli, Silifke, Mut and Anamur, the competent court is determined on this basis. As a general rule, a lawsuit is filed where the defendant is domiciled, and for companies where the company’s head office is located; in lawsuits arising from a contract, the court of the place where the contract is to be performed also has jurisdiction, and merchants can designate the competent court by agreement.

The Port of Mersin and the Mersin Free Zone make the city an important centre for exports, imports and logistics. For this reason, transport and customs clearance processes, container and freight disputes, unpaid amounts that cannot be collected from buyers abroad, quality and delivery problems in the purchase and sale of citrus fruit and other agricultural products, and disputes arising from supply and service contracts of businesses in organised industrial zones are files often seen in the region. For companies and shareholders located in another city or abroad, the process can be conducted from here through a power of attorney.

Frequently Asked Questions