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LAW OF CIVIL PROCEDURE
279
The grounds are as follows:
The regulation regarding jurisdiction agreements makes a distinction
between merchants or public legal entities and other persons in respect
of the conclusion of jurisdiction agreements. The merchants and the
public legal entities may be evaluated as on an equal position among
themselves. On the other hand, the merchants and the public legal entities
are more powerful against a real person. It is necessary to protect the less
powerful persons against merchants and public legal entities, which are
more powerful. Especially in standard agreements where consumers are
obliged to sign documents that the seller or service provider companies
submit to them without any chance of negotiation, they have to accept
the terms and conditions stipulated unilaterally by the company or public
legal entity, jurisdiction clause among them. Therefore, for example in
German law, the issues concerning which jurisdiction agreements can be
concluded are limited.
In the transactions effectuated by merchants and public legal entities
between themselves, there is no less powerful party. It is possible to
consider the parties as equal to each other. These persons are entitled
to conclude jurisdiction agreements between themselves provided that
the requirements of the code are respected. The parties may also agree
on the exclusivity of the jurisdiction agreement in which they agreed on
jurisdiction of one or more than one court.
As can be seen, merchants and public legal entities are entitled to
conclude exclusive jurisdiction agreements whose validity was discussed
in Turkish law. Unless otherwise stipulated in the agreement by the
parties, lawsuits can only be filed in the court or courts determined in
the agreement. In that case, the jurisdiction agreement is an exclusive
agreement unless the parties stipulate otherwise. If the parties wish to
have the legal jurisdiction of general and special competence of courts in
addition to the jurisdiction of the court stated in the agreement, i.e., they
wish to have a non-exclusive jurisdiction agreement, it must be clearly
stated in the jurisdiction agreement.
Persons other than merchants and public legal entities, especially
consumers, need to be protected against the merchants and public legal
entities since the consumers are less powerful than the merchants and