e-book2011

NEWSLETTER 2011

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agreement and if they do, it will be invalid. These principles are regulated

in Article 22 of the CPC.

It must be stated that the provision of Article 22 of the CPC may not

be accepted as it is stipulated in order to exclude the jurisdiction of the

court which is competent.

Interpretation of this article against this principle will result in the

validity of negative jurisdiction agreements, but this sort of agreement

is inferred as distrust by some courts and as against the public policy,

and, therefore, they will be deemed invalid. Moreover, the jurisdiction

provisions accepted in the jurisdiction agreement will be deemed as

abrogated in favor of the party which benefits from this right, and the party

which benefits from the provision arising from the agreement and stated

in favor of one party may use its right arising from the CPC and file a

lawsuit in the legally competent court, waiving its right in the jurisdiction

agreement. As a result of these principles, the jurisdictions of general

and special competent courts will not be abrogated by a jurisdiction

agreement.

However, the new Civil Procedure Code (“New CPC”) of 12 January

2011 numbered 6100 which was published in the Official Gazette of 04

February 2011 numbered 27836 and which will enter into force on 1

October 2011 modifies totally the system for jurisdiction agreements.

Article 17 of this code regarding jurisdiction agreements is as follows:

Jurisdiction Agreement

Article 17 – (1) The merchants and the public legal entities may

agree on the competence of one or more than one court regarding

an existing or possible conflict between them. Unless otherwise

stipulated by the parties, the lawsuit can be filed only in the court

which is determined in the agreement.

As is obvious from the text of the article, with the New CPC, the

consistent precedents of the Court of Appeal regarding the jurisdiction

agreements and the practice will be completely changed.

This modification is explained in details by the Legislature in the

grounds for this article.