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3996 are not within the scope of private law, and the court decided that the
subject of these agreements is public service and must adhere strictly to the
public interest. The Code in Relation to the Establishment and Operation
of Electricity Energy Generation Power Plants and the Sale of Energy by
BOT Model numbered 4283 (hereinafter referred to as the “Code Number
4283”) was enacted in 1997 in order to solve the problems caused by the
Constitutional Court decision.
4 - Code Number 4446.
The Constitution was amended by Code
Number 4446 as Code Number 4283 was considered to be inefficient.
By this amendment i) the services or investments to be conducted by the
administration could be transferred to or conducted by private corporations
subject to private law ii) it is foreseen that disputes arising from agreements
and licenses in relation to public service bearing a foreign element can
be referred to national or international arbitration and iii) the function of
the Council of State regarding concession agreements is changed from
investigating to providing an opinion. Furthermore, many amendments to
the law were enacted following the amendment of the Constitution. First of
all, the agreements subject to Code Number 3996 were again placed within
the scope of private law.
5 - Code Number 4501.
The other important law in relation to the
energy sector is the Code in relation to the Rules to be Followed while
Referring Disputes Arising from Concession Licenses and Agreements
related to Public Service to Arbitration numbered 4501 (hereinafter
referred to as the “Code Number 4501”). This code grants the right to those
involved in concession agreements bearing a foreign element to refer their
disputes to international or national arbitration. In addition, the provisions
of this code apply to the projects and work commenced pursuant to the
related concession conditions and agreements about the public services
before the entering into force of this code, excluding those cancelled by
binding court decisions in accordance with this code. For this purpose, a
competent company should apply within one month of the publication of
this code, and, upon application of the relevant administration, the Council
of Ministers should issue a decision. This code did not grant the Ministry
the right to review agreements. However, the Ministry in practice had to
review some of the essential provisions of the agreements as a condition
precedent for the companies to make the relevant applications. The