Newsletter 2016

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We are honored to bring to you our new book "Newsletter 2016". Since 2010, at the end of each year we compiled the articles that are posted monthly on our website in a book to allow our readers an outlook on the year's key legal developments. This book of articles now published for the seventh year, has attracted growing attention from our clients, business partners and fellow practitioners over the years. While the book was well received by many of the readers, we are highly encouraged to keep the impetus and further develop and expand our work. It is a pleasure to see that the articles are frequently cited in a number of scientific studies and they are now considered reliable academic resources. This gives us pride and even greater motivation. We continued the tradition of the past years for this publication of Newsletter 2016. In 2016, our team wrote on a wide variety of legal disciplines some of which are in new areas of law developed in parallel to meet the needs of the today's business. Further we did not leave out the importance of comparative law and our team researched on the developments in foreign legislations including the European Union. In this seventh book, you will find articles on corporate law issues implementation of which we intend to shed some light on such as abuse of exercise of dominant position in joint stock companies, the concept of "important reason" in share transfer restrictions and the right to request information of the board directors. The increase in Public-Private Partnerships (PPPs) in the recent years inspired us to write about our considerable experience both in Turkey and a recent PPP in Ecuador where we acted as advisors from a comparative law perspective. Our team wrote extensively on the much discussed contemporary issues in competition law this year such as the cinema services sector report, passing-on defense and indirect purchaser rule in compensation claims, and price/margin squeezing and decisions of the Turkish Competition Board on the Association of Electricity Distribution System Operators (Elder) and Yemek Sepeti, an online food takeaway company. As a GAR100 listed law firm with a proven track record in international arbitration, it was inevitable for us to write on the landmark decision of Swiss Supreme Court for stay of the arbitration pending compliance with multi-tiered arbitration clause. In 2016, we witnessed a lot of amendments introduced to arbitration rules. Therefore our arbitration team enjoyed writing on Istanbul Arbitration Center (ISTAC) Rules, ICC Rules on expedited procedure and document production requests under the IBA Rules. In energy law, we particularly focused on writing a series of articles on the legislative amendments made in the licensed and unlicensed energy generation facilities and renewables. As customary over the years, we wrote on contemporary issues in capital markets, contract law (law of obligations), labor law and affairs, intellectual property, civil law and bankruptcy and collection litigation as well as tax law. The chapter on Legal Developments provides a global insight into material developments in international agreements, laws, regulations, communiques as well as a synopsis of the decisions of the Turkish Competition Board and the Privatization Authority, and a list of energy legislation made effective in 2016 and extracts of key court precedence. We believe that this last chapter portrays an executive look on legal developments of 2016.(ÖNSÖZDEN) SUMMARY OF CONTENTS COMMERCIAL LAW Consequences of Non-Attainment of Guaranteed Minimum Order in Agency and Distribution Contracts Escrow Agreement in Turkish Law and Its Application in Mergers & Acquisitions Transfer of Assets in Company Spin-offs Unlawful Exercise of Dominance Cross Shareholding in Group of Companies Important Principles regarding Dividends in Joint Stock Companies Lifting the Corporate Veil: An Exceptional Concept of the Shareholders' Limited Liability Principle Options and Similiar Rights of Shareholders in respect of the Shares of Joint Stock Companies Non-Compete Clauses in Share Transfer Agreements Review of the Court of Cassation's Decision Important Reason in Terms of Share Transfer Restrictions Indemnity Clauses under Share Purchase Agreements Right to Request Information and Examination of the Members of the Board of Directors Single Shareholder Joint Stock Companies Share Transfers in Limited Liability Companies Latest Amendments to the Turkish Commercial Code and the Law on Cheques PUBLIC PRIVATE PARTNERSHIP (PPP) Healthcare PPP Projects: Funders' Direct Agreements Healthcare PPP Projects: Payment Capacity of the Ministry of Health A Brief Comparison between Ecuadorian and Turkish Public-Private Partnership Arrangements COMPETITION LAW Cinema Services Sector Report of the Competition Authority Passing-On Defense and Indirect Purchaser Rule in Compensation Claims Arising from Competition Law Price/Margin Squeeze Recent Problems in Electricity Distribution Sector: ELDER Decision Confidentiality of Written Communications between Lawyer and Client In Accordance With Dow Decision European Commission Preliminary Report on the E-commerce Sector Inquiry Footsteps of "MFN" Practice in Turkey: Yemek Sepeti Decision State Aid in Turkish Competition Law Tüpraş Decision and the Rebate Systems ARBITRATION LAW Swiss Supreme Court Decided Stay of the Arbitration Pending Compliance with Multi-tiered Clause Istanbul Arbitration Center Rules of Arbitration ICC Rules on Expedited Procedure Soft Law in International Arbitration Document Production Requests in International Arbitration and Due Process Concerns Document Production Requests pursuant to IBA Rules on the Taking of Evidence in International Arbitration-I Document Production Requests pursuant to IBA Rules on the Taking of Evidence in International Arbitration-II Promoting Settlement in International Arbitration Expert Witnesses in International Commercial Arbitration Consent to Arbitrate in Investment Arbitration The Recent Philip Morris v. Uruguay Decision CAPITAL MARKETS LAW Share Buy-Back by Listed Corporations Financial Reporting Principles of Mutual Funds Recent Developments Regarding Alternative Investment Funds in Europe LAW OF OBLIGATIONS Legal Liability of Banks as Trustworthy Institutions Organizational Liability Added to Art. 66 of the Turkish Code of Obligations Regarding Employer's Liability Can Errors in Predicting Future Facts Be Considered Fundamental Errors? Contractual Penalty under Turkish Law The Code on Movable Pledges and Its Innovations Financial Sale and Lease Back The Obligation of Lessee to Return or to Purchase the Leased Property under the Financial Lease Agreements ENERGY LAW Proposed Exposure Draft to Amend the Regulation on Unlicensed Electricity Generation Significant Amendments to the Unlicensed Electricity Generation Regulation Key Points Regarding the Regulation on Certification and Support of Renewable Energy Resources Key Points Regarding the Draft Regulation on Renewable Energy Resource Areas Regulation on Renewable Energy Resource Areas Entered into Force LABOR LAW New International Workforce Law and New Horizons for Foreign Employment in Turkey Draft Law Regarding Temporary Employment Relationship and Private Employment Agencies Amendments to the Labor Law Introduced by Law Numbered 6663 Workplace Practices Draft Law on Labor Courts Entitlement to Overtime Payment INTELLECTUAL PROPERTY LAW Prevention of Intellectual Property Rights Infringements through the Internet Industrial Property Law Bill LAW OF CIVIL PROCEDURE AND ENFORCEMENT AND BANKRUPTCY Establishment, Structure and Functioning of Regional Courts of Appeal Challenging Decisions of the Regional Courts of Appeal Recent Decision of the Court of Cassation on the Forfeiture of the Right to Submit Evidence When the Respondent Fails to Submit its Statement of Reply Concordat as an Alternative to Suspension of Bankruptcy TAX LAW Dismissal of Tax Penalties Information Exchange under Turkish Tax Law Latest Amendments to the Stamp Tax Law MISCELLANEOUS Personal Data Protection under Turkish and European Legislation-II UEFA Financial Fair Play Regulations Termination of Subscription Agreements LEGAL DEVELOPMENTS Important International Agreements Important Council of Ministers Resolutions The Grand National Assembly of Turkey Decisions Important Changes and Developments in Laws Important Changes and Developments in Regulations Important Changes and Developments in Communiques Important Changes and Developments in General Communiques Important Changes and Developments Important Legislation and Decisions regarding Competition Important Legislation and Decisions regarding Mergers and Acquisitions Important Publications and Decisions regarding Privatization Important Changes and Development regarding Energy Law Important Case Law and Other Important Decisions