108 / 521
may require the agents, during the term of the agency agreement, to
conclude future-dated non-competition agreements, and eliminate the
protection laid down in Article 123 of the TCC. In order to eliminate
this outcome, some scholars argue that Article 123 of the TCC should
also be applied to the non-competition agreements concluded after the
termination of the agency agreements
11
. Moreover, pursuant to Article
14 of Law numbered 6103 on the Entry into Force and Application of
the Turkish Commercial Code, non-competition agreements conclud-
ed before the entry into force of the TCC, and still in force on
01.07.2012 (which is the date of entry into force of the TCC) are with-
in the scope of Article 123 of the TCC.
Compensation for Non-Compete Obligation
Pursuant to Article 123/1 of the TCC, the principal shall compen-
sate the agent for valid non-competition agreements. The lawmaker
does not provide a specific amount here, but refers to an “
adequate
compensation
.” The obligation of compensation payment arises direct-
ly out of the law, and does not need to be stated specifically in a non-
competition agreement.
The amount of the compensation shall be determined, considering
the objective conditions. However, it must be mentioned that in any
case the compensation shall not exceed the value of the contract
12
.
Various of the scholars state that the compensation as related to a non-
competition agreement should be determined considering the calculat-
ed goodwill compensation, and according to the average commis-
sion/remuneration of the agent for the last five years corresponding to
the period of non-competition, since the agent is prevented from acting
on behalf of other competing enterprises in the same territory
13
.
Pursuant to Article 123/2, the principal may renounce the non-
competition agreement until the termination of the agency agreement.
In that case, the principal is released from its obligation to compensa-
tion payment for non-competition after six months as of the date of the
declaration related to the renouncement of the latest.
92
NEWSLETTER 2014
11
Göksoy, Yaşar Can
, p. 900.
12
Kaya, Arslan
; p. 296.
13
Poroy/Yasaman
, Ticari İşletme Hukuku, Vedat Yayıncılık, 2012, p. 262.