180 NEWSLETTER 2021 pret public interests intended to be established by public concession agreements, targeted revenue, and legislation in accordance with its purpose, may also constitute a violation of public policy.17 The Decision of the Court of Cassation dated 13.11.201218 dealt with a public concession agreement and put forth that the purpose of public concession agreements is public policy and a matter to be ex officio examined by the courts. Additionally, the Court of Cassation reversed the decision of the local court on the grounds that no examination or evaluation had been carried out, and a decision cannot be made based on incomplete examination, and also stated that the nature of the contract, its function and the legal consequences of the award should be examined and evaluated, and whether a violation of public policy has been made should be determined. Following the local court’s decision of insistence, the General Assembly of Civil Chambers19 upheld the decision of the Civil Chamber. The Decision of the Court of Cassation dated 23.02.201620 stated that the share of the Treasury under the public concession agreement was not a tax, but an important and continuous element of revenue resulting from the State’s transfer of public services. The Court of Cassation decided that in this case, the share of the Treasury which the State was aiming to obtain a continuous income may be decreased, and the budget balances may deteriorate in a way contrary to the public concession agreement and relevant legislation. The arbitral award was found to be contradictory to the nature of public concession agreements, the purpose of the state to obtain a continuous income, the mandatory provisions of the law, the public interest and, therefore, Turkish public policy. 17 Nomer, p. 570; Ekşi, p. 155-156. 18 The 13th CC of the Court of Cassation, No. 19737/25406, 13.11.2012, (www. lexpera.com). 19 The General Assembly of Civil Chambers, No. 1847/2020, 30.09.2015, (www. lexpera.com). 20 The 13th CC of the Court of Cassation, No. 16287/5292, 23.02.2016, (www.lexpera.com).
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