As of January 01, 2019, mediation is mandatory for monetary related commercial disputes in Turkey. In our 2019 thought leadership paper, we shared our opinions on the effects of such development applied to IP related disputes in which compensation or payment of a certain amount is sought. Up to this point, practical impacts of this change were a question, especially for the cases that include both monetary and non-monetary claims. Recent decisions of the Turkish Court of Cassation (“the CoC”) are guiding IP law practitioners on implementation of mandatory mediation. The details of the said decisions are provided, below.
11th Civil Chamber of Court of Cassation, Merit No: 2019/4851 E., Decision No: 2020/2732 K., Decision Date: June 10, 2020:
An action was filed before the first instance IP Court (“the IP Court”) that contains trademark-related requests based on trademark infringement, in addition to monetary and non-monetary compensation claims; thus, both monetary and non-monetary claims are requested in one case.
Considering mandatory mediation should be applied for monetary claims and all of the claims must be examined together, the IP Court ruled that the cause of action was violated since the plaintiff did not apply to mediation first regarding monetary claims. As a result, it dismissed the case on procedural grounds. The plaintiff’s appeal before the Regional Court of Appeal was rejected. Finally, the CoC resolved the matter upon further appeal.
Article 110 of the Turkish Code of Civil Procedure (the “Turkish CCP”) regulates that independent claims may be requested together if the competent Court is the same. The CoC implemented this article in the present case in which independent monetary and non-monetary claims were requested together. The CoC remarked that mediation is not mandatory for the cases where claims subject and not subject to mandatory mediation are filed together. Therefor, it concluded that the lower Courts cannot rule for a lack of procedural step when monetary and non-monetary claims are filed together. It then ruled that the lower courts should have reviewed the matter on its merits and returned the file to the IP Court.
11th Civil Chamber of Court Of Cassation, Merit No: 2019/3611 E., Decision No: 2020/4734 K., Decision Date: November 04, 2020:
This dispute is about non-monetary claims based on copyright infringement and compensation in this second case. The IP Court also rejected the case since mandatory mediation was not applied for the monetary related part prior to filing the action. The plaintiff’s appeal before the Regional Court of Appeal was rejected, as well.
Upon further appeal of the plaintiff, the CoC reviewed the matter and, again, referred to Article 110 of the Turkish CCP. The CoC confirmed with the same reasoning that the lower Courts cannot rule for a lack of procedural step when monetary and non-monetary claims are filed together. It overturned the lower courts’ decisions in this case, as well.
11th Civil Chamber of Court Of Cassation, Merit No: 2020/933 E., Decision No: 2020/5776 K., Decision Date: December 09, 2020:
This dispute is about non-monetary claims based on copyright infringement, and compensation in this third case.
The IP Court, once again, dismissed the case on procedural grounds with similar explanations, and the Regional Court of Appeal rejected the defendant’s appeal.
Upon further appeal, the CoC reiterated that the lower Courts should have reviewed the case on its merits without referring to the mandatory mediation requirement.
Contrary to its previous decisions, the CoC rendered a decision of its majority, rather than unanimity, so there is an opposing view amongst the members. The opposing view stated that the lower courts should have ruled for separation of the case, and reviewed the non-monetary claims on its merits; whereas, it should have searched for mandatory mediation regarding monetary claims therein. These recent decisions are enlightening since many IP-related cases include monetary and non-monetary claims together, especially when infringement of an IP right is an issue. The CoC’s repetitive standpoint supports the idea that monetary and non-monetary claims may be filed together without passing through mandatory mediation. However, we see in all cases that the lower Courts, and also the CoC, itself, still have contradictory comments. In the upcoming period either the CoC’s prevailing approach will take root, or the Courts will examine the claims in disputes, separately, based on the mandatory mediation requirement to find a middle course as it is supported by the opposing view in the last case. After encountering more Court decisions, Turkish Courts will eventually adopt the same opinion, and have established case law regarding mandatory mediation requirement in IP cases.
The CoC’s prevailing approach is beneficial to the procedural economy principle. According to the CoC’s prevailing approach, an action both containing monetary and non-monetary claims may be filed at once without awaiting the results of the mediation stage. Also, passing through the meditation procedure is favorable for the effectiveness of possible preliminary injunction requests, since the negotiations through the meditation may provide insight on the content of possible actions concerning the counterparty.
However, the Code introducing mandatory mediation does not bring any specific rule for disputes that contain both monetary and non-monetary claims, which are combined in a single case; thus, there is a legal gap for such actions. The CoC also remarked in its last decision that the Code has no specific rule for cases that include both monetary and non-monetary claims.
Since the CoC filled this gap by deciding that there is no obligation to pass through mandatory mediation in such cases, it would be better to have the CoC to provide more detailed reasoning in its future decisions in that regard. Also, ensuring unanimity in its decisions is important since the CoC’s interpretation has an important impact on the lower courts, practitioners and doctrine. If the CoC’s prevailing approach gains acceptance and is established by the case law, a legislative change/amendment will become necessary to be in line with the jurisprudence, and fill the concerned gap by a legal provision.
It seems that the CoC’s decisions will border the line for mandatory mediation implementation in the upcoming period. It is wise for Turkish IP practitioners to bear this issue in mind for some time, until reaching an uncontroversial conclusion on this issue.