Hukuk Fakültesi Koleksiyonu

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  • Article
    The Impact of Force Majeure on Contracts for the International Sale of Commercial Goods Under Art. 79 of the CISG
    (Istanbul Universtiy Press, 2025) Başoğlu, Başak; Kapancı, Kadir Berk; Kapancı, Kadir Berk
    The United Nations Convention on Contracts for the International Sale of Goods (CISG) aims to harmonise inter0 national trade law by providing unified rules for sales contracts across its 970member countries, as of April 2025. Despite its wide adoption, the CISG’s approach to non0performance and liability differs markedly from domestic legal systems, particularly those based on civil law traditions. The CISG provides that the debtor failing to perform their obligations must compensate for the loss, unless exempted under Article 79, which introduces the concept of “impediment beyond the debtor’s control” as a basis for exemption. For this exemption to apply, the impediment must be unforeseeable, unavoidable, and the direct cause of the failure to perform. However, these criteria make its application rare in practice, while its requirements have been satisfied in only a limited number of cases. This study examines Article 79 CISG in detail, exploring its stringent criteria and the challenges it presents in practice. Furthermore, the paper will assess Article 79’s effectiveness in addressing force majeure and hardship scenarios, despite the absence of explicit references to these concepts within the CISG text.
  • Article
    Citation - Scopus: 1
    Les Conventions Préparatoires
    (Istanbul University Press, 2023) Işıntan, Pelin
    La phase précontractuelle est une zone grise, difficile à cerner et gouvernée par la liberté contractuelle. Les parties sont libres d’organiser leurs pourparlers conventionnellement et s’imposer des devoirs contractuels même en période précontractuelle. Par convention précontractuelle nous entendons un acte bilatéral qui vise la conclusion du contrat négocié. Puisque le Code des Obligations turc ne consacre pas une section spécifique aux pourparlers les parties ont grand intérêt à organiser cette phase et définir les règles à suivre et leurs comportements réciproques. Les parties peuvent former des actes précontractuels sous des formes et avec des contenus très variés. Nous allons nous limiter aux actes bilatéraux conclus entre les parties puisque nous examinons les conventions préparatoires. Par conséquent, les actes unilatéraux tels que la lettre d’intention envoyée par l’une des parties avec l’intention de débuter les pourparlers ne seraient pas traités dans cet article. Ainsi nous envisageons une étude sur les conventions précontractuelles en tenant compte de leur effet obligatoire. Dans un premier temps, nous traiterons les conventions qu’on pourrait appeler les contrats préparatoires qui créent un effet obligatoire pour au moins une des parties, et ensuite nous examinerons les conventions munies d’un tel effet.
  • Article
    Executive Remuneration of Company Directors Under Eu Law and Turkish Law
    (Istanbul University Press, 2023) Özcanlı, Fatma Beril
    The criteria to determine the material scope of executive pay has always been a controversial aspect of corporate law and corporate governance. The controversy stems from the fact that the board of directors generally tends to determine a suitable executive remuneration for its members, not considering the interests of other stakeholders. In some cases, an independent compensation/remuneration committee is appointed by the board of directors and determines the amount of executive pay. Depending on the legislation, this may require additional approval at the annual general meeting by the shareholders. European legislators have differing approaches with regards to regulating this very area of corporate pay. The revised Shareholders Rights Directive requires an enhanced approach for the shareholders' role by determining the remuneration policy of the company. These amendments can be identified as the promotion of the say on pay, on the remuneration policy, and remuneration report. Furthermore, the previous recommendations have also set the criteria to determine the amount of remuneration. The Directive contains provisions for setting up a clear and transparent corporate remuneration policy and shareholders' binding vote with temporary derogations. The corporate remuneration system of Turkish law is legislated under Art. 394 TCC (Turkish Commercial Code Nr. 6102), which only requires that board members can be paid an honorarium, salary, bonus, premium, and a portion of the annual profit, provided that this amount is determined by the articles of association, or by way of a general meeting resolution. Art. 408 TCC also stipulates a binding general meeting approval of the remuneration policy, whereas Art. 513 TCC requires the framework with regard to bankruptcy procedures. © 2023 Istanbul University Press. All rights reserved.
  • Conference Object
    The Neural Correlates of the Effect of Belief in Free Will on Third-Party Punishment: an Optical Brain Imaging (fnirs) Study
    (Cognitive Science Society, 2022) Çakar, Tuna; Akyürek, Güçlü; Erözden, Ozan; Şahin, Türkay; Keskin, İrem Nur; Ünlü, Meryem; Özen, Deniz Hazal; Özen, Zeynep
    Third party punishment (TPP), or altruistic punishment, is specifically human prosocial behavior. TPP denotes the administration of a sanction to a transgressor by an individual that is not affected by the transgression. In some evolutionary accounts, TPP is considered crucial for the stability of cooperation and solidarity in larger groups formed by genetically unrelated individuals. Belief in free will (BFW), on the other hand, is the idea that humans have control over their behavior. BFW is a human universal notion that, in some studies, has been found to be supportive of prosocial behavior. In our study, we examined the effect of BFW on TPP under high and low affect scenarios through optical brain imaging (fNIRS). We hypothesized that in low affect cases, there would be a positive correlation between the strength of the BFW and the severity of the punishment inflicted. Obtained results and related statistical analyses indicate that participants with higher degree of BFW have more neural activation in their right dorsolateral prefrontal cortex (DLPFC) (hbo and hbt measures) in high affect scenarios, whereas the participants with lower degree of BFW have higher levels of neural activation in the medial PFC (hbo and hbt measures) in low affect scenarios. These empirical findings are in line with the research findings in the relevant academic literature and support the hypothesis that the degree of BFW influences punishment decisions.
  • Conference Object
    Are Happy Families All Alike? - a Turkish Perspective on Corporate Governance in Family Firms
    (2020) Palanduz, Seda
    Corporate law aims to mitigate conflicts of interest among corporate constituencies. Both legal scholars and lawmakers tend to assume that these are rational actors solely motivated by wealth maximization. Family firms, however, add more personal and less rational layers to the inquiry: On the one hand, family ties may enable a relationship of trust that reduces transaction and agency costs; on the other hand, the same intimacy and sentimentality may eventually create conflicts of interest among family members, make the firm vulnerable to changes in the family dynamic, or cause tensions between family and non-family shareholders. Successful family businesses have to integrate family and business governance—a job that, in many jurisdictions, is being unnecessarily complicated due to absence of proper corporate governance regimes supporting family businesses. From a Turkish perspective, this paper aims to discuss ways through which lawmakers may adopt family firm-friendly corporate governance regimes. The choice of jurisdiction is not incidental. In Turkey, where family firms play a crucial role in the national economy, there are no codes of governance or soft law measures specific to them. On the contrary, Turkish Commercial Code includes the principle of statute stringency that prohibits all deviations from legal provisions unless expressly permitted. Turkey serves as a good example to demonstrate the consequences of overlooking particularities of family firms. This paper has two central claims: First, it seeks to establish that lawmakers should prioritize default rules over mandatory ones so that family firms can tailor their articles of association to their unique circumstances through legal devices such as exit rights and share transfer restrictions. Second, it argues that in case of reluctance to negotiate legally binding instruments due to fear of impairing ties of trust and intimacy, non-binding family constitutions should be encouraged as an alternative.
  • Article
    Citation - WoS: 1
    Citation - Scopus: 6
    Mapping Human Rights To Democratic Policing Through the Echr
    (Brill Nijhoff Publishing, 2020) Mermutluoğlu, Ceren; Aitchison-Aydın, Andy; Aydin-Aitchison, Andy
    This article examines how human rights relate to democratic policing. We differentiate policing for democracy, which protects democracy, from democratically responsive policing, where police are governed democratically. Using this two-fold distinction to examine European Court of Human Rights cases, we find a close match between Convention rights and policing for democracy. Regarding democratically responsive policing, the Court provides responsiveness within the structural limits of reacting to individual complaints, and as one element in the broader landscape of governance. Further, cases show how that landscape features in Court judgments. We argue that robust enforcement, and careful attention to case law during drafting and implementation of police legislation and governance arrangements, help protect democracy and enhance democratically responsive policing.
  • Article
  • Conference Object
    Regulated social order and evolutionary adaptation
    (2018) Erözden, Ozan
    In sum my hypothesis is that juridicity is an adaptation for humans to circumvent an existential threat to the existence of the species. It is not possible to test the validity of this hypothesis in its integrality using present day neuroscientific techniques. But comparative studies examining possible links between working memory, time conception, awareness of mortality, and normative cognition in humans and other species may form a first step in this respect.
  • Conference Object
    Judicial Independence in Turkey
    (Padova University, 2018) Erson Asar, Bilge
    Judicial independence is one of the main pillars of a democratic society. However, this important concept has always been challenged by the so-called authoritarian regimes. This paper explores the development of judicial independence within the Turkish legal system and takes a closer look at the challenges that it has been facing over the last decade.
  • Conference Object
    Close Link Between the Right To Specific Performance and Penalty Clauses: a Comparative Approach
    (2017) Kapancı, Kadir Berk; Başoğlu, Başak
    In a contractual relationship, the debtor is liable for a full and due performance. Furthermore, the parties can also agree on a penalty clause to be performed, in case where the obligation is not diligently performed. Penalty clauses are side-agreements enlarging the scope of liability of the debtor by establishing a penalty to be paid in case of breach of contract. These clauses, thus guarantee the performance by creating pressure on the debtor. These penalties are awarded even if there is no damage. On the other hand, penalty clauses are to be separated from liquidated damages clauses which are also side-agreements aiming to estimate damages in case of a possible breach of contract. In other words, such clauses simply aim to measure damages that are hard to prove once incurred. Liquidated damages clauses can easily be enforced by the courts in both civil and common law countries. However, this is not the case for penalty clauses.