Intermediate Appellate Review of Commercial Law Decisions in Turkey

Authors

  • Berna Tepe Girne Amerikan Üniversitesi (American University of Kyrenia)

DOI:

https://doi.org/10.5195/emaj.2014.51

Keywords:

judicial review, appeal, Turkish law, Code of Procedure, procedural law, court of appeal, appellate review, Commercial Code, joint and several liability, joinder of lawsuits

Abstract

The judiciary in Turkey is still preparing for the expected intermediate appellate review (istinaf) mechanism in Turkey although the official date for its functioning is yet to be specified. Under Turkish law, a first instance court decision can be appealed not because an assertion or a claim is rejected, but due to a substantive or procedural norm of law which should have been applied during the proceedings in an accurate manner. The scope of such review also covers the suitability of the first instance court’s decision. There are nonfunctional aspects to the judicial review as specified in the 2011 Code of Civil Procedure of which a major column of novelties consist of the suspended mechanism of dual appellate review. However, the 2011 Code of Civil Procedure regulates the intermediate appellate review as a series of procedural acts and steps. The reasons to appeal a first instance court’s decision can rather be deduced from the provisions of 2011 Code of Civil Procedure. In order to structure the reasons and stages of the intermediate appellate review in Turkey, a distinction is made in the present article between (i) review over the appeal’s conditions of admissibility, (ii) review of the decision’s legality, (iii) review of the decision’s legitimacy. Rationally, the reasons for intermediate appellate review should be construed as to accomodate at least the grounds for higher appellate review as well as the extraordinary judiciary review. As different areas of private law are based on different principles, it is noteworthy that cases referred to herein pertain to commercial law. Finally, due to the parallelism between the Turkish and the French legal systems, references to decisions given by the French jurisdiction on commercial matters are made throughout the present article.

 

Author Biography

Berna Tepe, Girne Amerikan Üniversitesi (American University of Kyrenia)

Attorney at Law registered by the Istanbul Bar Association in Turkey)

Doctor of Private Law (degree obtained from the University of Strasbourg in France)

 

 

References

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Published

2014-08-06

Issue

Vol. 4 No. 1 (2014)

Section

Articles

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