Scholarly Publications - Law

Permanent URI for this collectionhttps://hdl.handle.net/11693/115476

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Open Access
Regulation of FinTech and crypto assets
(Routledge, 2024-10-14) Aksoy, Pınar Çağlayan; Eroğlu, Muzaffer; Finger, Matthias; Köksal, Emin
We have entered an era where technological advancements are transforming traditional financial services globally. The rapid emergence of financial technology (FinTech) and distributed ledger technology (DLT) has initiated a new era of opportunities and challenges for Türkiye. Like many other countries, Türkiye is adapting its legal and regulatory framework to embrace the opportunities presented by FinTech and DLT while ensuring the safety and security of its financial system. This chapter provides a comprehensive analysis of Türkiye's current regulatory framework regarding FinTech and crypto assets and presents projections about the future. © 2025 selection and editorial matter, Muzaffer Eroğlu, Matthias Finger and Emin Köksal; individual chapters, the contributors.
Open Access
Smart contracts: to regulate or not? Global perspectives
(Routledge, 2022) Çağlayan Aksoy, Pınar
Smart contracts continue to formulate the backbone of blockchain transactions. After the foundation of the Ethereum protocol, the Initial Coin Offerings, Security Token Offerings, and Non-Fungible Tokens have all relied on smart contracts, with enormous market volume. The broad scope of smart contracts’ (potential) application is undisputed, yet many countries have been silent on the regulation of smart contracts. These same countries, however, have already set some standards regarding crypto assets and crypto asset service providers. We can include Switzerland and the European Union, that has already prepared a draft Regulation for Markets in Crypto Assets, in this first group. Some jurisdictions, such as the UK and the US, have already concluded that common law principles suffice to tackle with smart contracts. The third group, including Italy, has defined smart contracts but has no comprehensive regulatory framework. There is a final group of countries that have chosen not to regulate any aspects of the distributed ledger technology (yet). It is without a doubt that the use of smart contracts will cause problems regarding formation, contract performance, applicable law, jurisdiction, protection of consumers, and personal data.
Open Access
A comparative look at the duty to mitigate loss: the consequences of the violation of this duty
(Bucharest Academy of Economic Studies, Law Department, 2024-03) Ormancı, Pınar Altınok
The duty to mitigate loss is a general principle of law that serves to limit the liability of the party that has caused injury to the extent that the injured party has not demonstrated the diligence expected from the latter. However, this duty also serves the purpose of ensuring economic efficiency. While the classic understanding requires that, according to the principle of pacta sunt servanda, the interests of the injured party should be prioritized, today, the contract also refers to the cooperation between the parties. Therefore, reduction in the amount of claimable compensation should not be the sole sanction vis-à-vis the injured party that has violated the duty to mitigate loss. Otherwise, the injured party may escape the consequences of having violated the duty to mitigate loss by resorting to other optional rights. However, in order to ensure economic efficiency, in case the injured party violates the duty to mitigate loss, sanctions should also be foreseeable in terms of other optional rights. This study will evaluate the effect of the violation of the duty to mitigate loss in particular, with regards to request for specific performance and rescission of contract.
Embargo
Feminist constitutional narratives, the pandemic and hyper-presidentialism in Turkey
(Elsevier Ltd, 2024-01-24) Yılmaz, Zülfiye
Constitutional resilience has been tested by various crises worldwide, and the COVID-19 pandemic constituted another litmus test for global constitutionalism. In Turkey, the pandemic came three years after a constitutional revision introduced hyper-presidentialism in 2017, which undermined the separation of powers and the system of checks and balances. This article looks at the period that begins with the official announcement of the COVID-19 pandemic in March 2020 and ends with the assessment of the general elections of May 2023 to document three years of hyper-presidentialist constitutionalism and the counter-responses to it proposed by the Turkish feminist movement and the constitutional institutions that still remain autonomous from the executive. By combining conventional constitutional methods with the critical feminist positionality approach, this article diagnosed the impact of the pandemic on authoritarian regime-building. Based on feminist constitutionalism, this scholar activist approach shed light on some overlooked aspects of the pandemic in Turkey, such as persistent déconstitutionalisation and its link with anti-gender politics, to reveal the living essence of authoritarian constitutionalism and the evolution of hyper-presidentialism in Turkey.
Open Access
Artificial intelligence and prohibition of discrimination from the perspective of private law
(Springer Nature, 2023-10-22) Özçelik, Barış
Artificial intelligence (AI) technologies promise to change our lives in positive way in many aspects while bringing along some risks. One of these risks is the possibility that decisions based on AI systems contain discrimination. Since the prohibition of discrimination is predominantly seen as a matter of public law, it may seem to be questionable to talk about the prohibition of discrimination in private law where principles of private autonomy and particularly freedom of contract prevail. Nevertheless, depriving individuals of the opportunity to enter into a fair and freely negotiated contract as a result of discrimination would be incompatible with the ideas underlying the freedom of contract. Moreover, since discrimination is insulting in most of the cases, it also violates the personal rights of the individual who is discriminated against. Thus, discrimination is an issue that also needs to be considered from the perspective of private law. As private law sanctions, nullity, compensation or an obligation to contract can be applied against discrimination. The fact that discrimination is the product of a decision-making mechanism using AI systems brings along some legal problems specific to this situation. One of these problems is that the results produced by some AI technologies are unexplainable since the reasons on which the decision is based must first be known to conclude that a decision is based on discrimination. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd 2024.
Open Access
The removal of biological materials from thehuman body for scientific purposes under the lawof contracts
(Yozmot Heiliger (1989) Ltd., 2024-06) Özbilen, Arif Barış
The removal of human-origin biological materialfrom a volunteer donor's body for scientific research and clinicalexperimentation results in the transfer of the material from the donor'scontrol to the research institution's control. In accordance with thecontract between the parties, the donor is obliged to transfer the righthe/she has on the material to the research institution, by allowingthe material to be removed from his/her body in order to be usedby the research institution for a specific purpose. As a result of thefulfillment of this obligation, the material having being transformedinto a "property" upon removal from the human body, the researchinstitution gains a right over the material which allows the institutionto assert direct control over the material and is claimable against third-parties. This, in technical terms, can only be realized by virtue of acontract that deals with the transfer of ownership.
Open Access
Legal aspects of artificial intelligence in health: an overview under Turkish and comparative law
(CRC Press, 2024-01-01) Özçelik, Şemsi Barış; Köse, Utku; Demirezen, Mustafa Umut
Healthcare is one of the areas where artificial intelligence (AI) is most widely used. Legal issues surrounding AI in health can be gathered in two main themes, namely, fundamental rights (data protection, privacy law, and the prohibition of discrimination) and liability law. Against the risks arising from fundamental rights violations, healthcare service providers should deploy reliable AI systems, determine the purposes of data collection and processing in as much detail as possible and inform the data owners, monitor whether the data is used for purposes other than the foreseen, determine the role and extent of human intervention in the use of AI systems, and train employees with up-to-date information on fundamental rights. Where possible and suitable for the purpose, synthetic, i.e. computer-generated data should also be used. As regards liability law, there is a need for regulation, at least in certain matters. Product safety rules, standardization principles, and technologies that are not allowed, if any, should be determined. Regulations that include software within the scope of product liability and, when necessary, provide convenience to possible victims in terms of fault and causal link should be preferred. In the long term, technological development should be monitored and solutions such as compensation funds should be considered, if necessary. All these suggested regulations will positively impact the development of technology, as they will provide legal certainty not only for consumers but also for those who develop and use AI technologies in the health sector.
Open Access
When migration meets private international law: issues of private international law in divorce actions of Syrian migrants under temporary protection before the Turkish courts
(Routledge, 2024-05-31) Bayraktaroğlu-Özçelik, Gülüm
The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.
Open Access
Yo-yo back and forth: controversies in Ecthr's whistleblower judgments
(Kluwer Law International, 2024-08-12) Dalkılıç, Elvin Evrim
This article underscores the critical need for robust legal protections for whistleblowers in Europewhile critiquing the inconsistencies observed in the judgments of the European Court of HumanRights (ECtHR). The Court established six criteria in the Guja judgment to evaluateinterferences in whistleblowing cases. Among these, the criteria concerning the authenticity ofthe information disclosed by the whistleblower and their good faith in the Court's assessmentappear to be particularly problematic. The Court's fluctuating application of these criteriaundermines the development of a coherent judicial approach. Ensuring consistency in its rulingsis crucial for the Court to avoid creating a chilling effect on prospective whistleblowers.
Open Access
Locating online platforms in the right place: between the digital services act and the liability law
(Aspen Publishers, Inc., 2023-08-1) Polat, Cemre; Özçelik, Ş. Barış
Open Access
Türkiye’de Rekabet Hukuku ve Rekabet Kurumunun tarihi
(Bilkent University, 2022) Hakalmaz, Turaç; Durmaz, Ahmet Fatih; Karaman, Doruk; Güngör, Hazal Eylem; Deringöl, Salih; Sasani, Sena
Rekabet, serbest piyasa ekonomilerinde tüketicinin korunması ve ekonomik refahın sağlanması açısından önemli bir kavramdır. Bu kavram, Türkiye’de 1970’li yıllarda gelişmeye başlayıp 1994 yılında 4054 sayılı Rekabetin Korunması Hakkında Kanun ile hukuki zemine oturtulmuştur. Rekabet Kurumu ise Kanunun kabulünden 3 yıl sonra, 1997 yılında kurulmuştur ve günümüzde hâlen faaliyet göstermektedir. Rekabetin Türk piyasasındaki yeri ve Rekabet Kurumu, bugüne kadar farklı süreçlerden geçmiştir.Bu nedenle rekabet kavramı 1994 öncesi, 1994-1997 arası ve 1997 sonrası olmak üzere üç farklı dönemde incelenmiştir. Bu doğrultuda, önce rekabet kavramı daha sonrasında Rekabet Kurumunun kuruluşundan sonra getirilen düzenlemeler ve emsal kararlarla beraber Türkiye’deki rekabet kavramının tarihi anlatılmış ve emsal kararlarla işlevi gösterilmiştir.
Open Access
Artificial intelligence in ancient Rome: classical Roman philosophy on legal subjectivity
(De Gruyter, 2023-08-21) Deibel, Talya Uçaryılmaz; Deibel, E.; Hagengruber, Ruth Edith
Conceiving of technology in its relation to modern society in terms of power imbalances dates back to antiquity. Particularly the understanding that there are 'instruments' of 'instruments' has its roots in the Aristotelian conception of slavery as a morally unacceptable institution both historically and today. In antiquity, slaves were seen as tools in symbioses: The prosthetic extensions of others, simultaneously persons and things. When we conceive of digital technology as a communicative artefact that is an extension of technological reason we face the same dilemma today. This paper seeks to draw historical connections between cybernetics and slavery around the general question: will AI technology result in a new type of slavery? As such this requires us to rethink the intricate concepts of humanness, subjectivity and sovereignty in Roman philosophy in order to apply them to the contempaorary ethical questions on artificial agents and digitization of technology.
Open Access
A transformer-based prior legal case retrieval method
(IEEE - Institute of Electrical and Electronics Engineers, 2023-08-28) Öztürk, Ceyhun Emre; Özçelik, Şemsi Barış; Koç, Aykut
In this work, BERTurk-Legal, a transformer-based language model, is introduced to retrieve prior legal cases. BERTurk-Legal is pre-trained on a dataset from the Turkish legal domain. This dataset does not contain any labels related to the prior court case retrieval task. Masked language modeling is used to train BERTurk-Legal in a self-supervised manner. With zero-shot classification, BERTurk-Legal provides state-of-the-art results on the dataset consisting of legal cases of the Court of Cassation of Turkey. The results of the experiments show the necessity of developing language models specific to the Turkish law domain.
Open Access
Elephant in the room: CISG, hardship, and uniform application
(Kluwer Law International, 2023) Aksoy, Hüseyin Can
It has long been disputed by scholars, courts, and arbitral tribunals whether or not hardship is covered by Article 79 of the CISG. In 2020, the CISG Advisory Council published an opinion and expressed the view that CISG governs cases of hardship but under Article 79, the parties have no duty to renegotiate the contract; and a court or arbitral tribunal may not adapt the contract or bring the contract to an end. Council’s opinion is primarily based on the aim to prevent recourse to domestic law. In fact, if one accepts that CISG contains a gap concerning hardship, domestic law will apply to fill such gap, and this would undermine the unification of the law. However, this can hardly be a reason to accept that cases of hardship are covered by Article 79 CISG. Historical, textual, and teleological interpretation of Article 79 as well as an economic analysis of the concerned remedies show that Article 79 does not cover and/or is not suited to apply to cases of hardship. Therefore, there is an internal gap within the CISG concerning hardship and except for some exceptional cases, where one could find an international trade usage between the parties, the last resort to fill such gap is resorting to the domestic law applicable through private international law
Open Access
New kid in town: platform workers of the EU and human oversight of automated systems in platform work
(Nomos Verlagsgesellschaft, 2023-09-19) Dalkılıç, Elvin Evrim
The era of digitalization created new forms of employment along with complicated employment statuses, where existing labour laws lag in solving legal problems. The most recent development in the European Union is the proposed Platform Work Directive (PWD) against the raising concerns about the operation of digital labour platforms and people working through these platforms. By defining people as platform workers, the PWD offers significant changes. The PWD, with a broad presumption of employment, introduces new restrictions and obligations for digital labour platforms. Among those changes, introduced as a first at the EU level, is the human oversight of automated systems’ decisions. This paper analyses the term ‘platform worker’ in line with the PWD, mainly focusing on human oversight of automated systems in platform work.
Open Access
Extension of the most favoured nation clause to dispute settlement provisions in bilateral investment treaties which Turkey is a party of
(İstanbul Üniversitesi Yayınları (Istanbul University Press), 2023-02-01) Tiryakioğlu, Bilgin
Bilateral investment treaties (BITs) pave the way for international investment arbitration for investors and play a crucial role in the settlement of investment disputes. In 63 years, 2871 BITs have been signed between States and 2231 of them have entered into force since the first BIT concluded between Germany and Pakistan in 1959. This alone reveals the importance of BITs in terms of the disputes arising from investment and their settlement through arbitration. Almost every BIT contains most favored nation (MFN) clause as a standard of treatment. However, the applicability of MFN clauses to procedural provisions of a BIT has been a controversial issue since 2000 when an ICSID tribunal's award was rendered in the Maffezini case. Following the Maffezini case, conflicting arbitral awards have have become the centre of attention as to the scope of MFN clauses in terms of whether they could be extended to dispute resolution provisions. One of the main reasons leading to this controversy is that the BIT provisions regarding MFN clauses as well as dispute resolution provisions have not been formulated in a clear and unambiguous manner. Accordingly, different arbitral tribunals have interpreted BIT provisions differently regarding the extension of MFN clauses to dispute resolution provisions. This problem has had an impact all over the world and has led a radical shift both for arbitral awards that have been rendered by investment tribunals and BIT practices of almost all countries. MFN clauses no longer cover dispute resolution provisions of BITs that have been signed by Turkey since 2010.
Open Access
The applicability of property law rules for crypto assets: considerations from civil law and common law perspectives
(Taylor & Francis, 2023-03-07) Aksoy, Pınar Çağlayan
Crypto assets and their legal qualification hold an important place in the international legal arena. There are many public and private law aspects of crypto assets that require clarification. The first difficulty lies in defining what a crypto asset is. There are many different taxonomies of crypto assets, and these vary globally. Another challenging area which demands attention is whether crypto assets bear the features of objects of ‘property’ in private law. The answer to this question is important because it affects various areas of law, such as tax law, securities law, insolvency law, contract law, even conflict of laws. This paper focuses on whether and how property law rules should be applied to crypto assets and how the legal nature of crypto assets is embarked upon and handled differently in Common Law and Civil Law Countries.
Open Access
Is the syndicated loans market ready for distributed ledger technology?
(Taylor & Francis, 2023-09-18) Aksoy, Hüseyin Can
The syndicated loan market has a centralised nature dominated by intermediaries. Such a structure not only requires manual labour and back-office workloads, but it is also prone to human error and fraud. Distributed ledger technology (DLT) and smart contracts are promising tools to overcome the factors which adversely affect the efficiency of the current and classical business model in the primary and secondary market of syndicated loans. DLT eliminates the need for intermediaries; provides transparency, accuracy, and authenticity; lowers transaction costs; makes it easier to comply with Know Your Customer obligations; and provides efficiency in the secondary market for syndicated loans. However, existing legal rules and institutions fail to create a predictable and legally safe environment for the spread of DLT in the syndicated loans market. Therefore, proper regulation is required for the widespread use of DLT technology in the syndicated loan market.
Open Access
Is there a need for a visible hand in digital markets?
(Lexxion Verlagsgesellschaft mbH, 2022) Gürkaynak, Gönenç; Uçar, Ali Kağan; Görkem Yıldız, Uzay
This article explores whether there is a need for ex ante regulations in digital markets. It explains implications of ex ante regulations in digital markets and focuses on the competition jurisprudence which has generated new terminologies such as ‘tipping’, ‘gatekeepers’ and ‘self-preferencing’ over the last decade, indicating that competition law easily adapts to emerging problems and sweeping ex ante regulation efforts in the digital markets might be uncalled for. In this regard, the article summarizes the on-going debate on whether competition law, as is, can sufficiently address and deliver solutions for competitive concerns in digital markets. Within this scope, the paper examines the alleged competitive concerns in digital markets and argues that it is crucial to first conduct counterfactual analysis with concrete facts, parameters and data, to identify the risks associated with over regulations. The article further contends that the competition law toolkit in place is a sufficient and more appropriate way to deal with anti-competitive conducts and the ongoing ex ante regulation efforts in digital markets are condemned to result in a decline in competition and innovation in the long run.
Open Access
Audiovisual wills: A contemporary approach to testamentary formalities
(Boom Uitgevers, 2022-12-01) Aksoy, Hüseyin Can
Despite several differences between civil law and common law jurisdictions, today’s modern succession law is based on Roman law, which requires strict formal rules for will-making. However, a historical perspective demonstrates that there is a slow but continuous shift away from strict formalism. In fact, form’s superiority over substance is diminishing, and testamentary formalities are mellowing. Yet legislative intervention is compulsory to ensure that succession law is in harmony with the latest technological developments of the era. We argue that de lege ferenda, legal order should allow testators to execute audiovisual wills through electronic means of communication. Within this stance, the option of audiovisual wills should not be restricted to cases of emergency. Everyone should be allowed to make an audiovisual will at any time, and such wills should not be automatically terminated if the testator is still alive after a specific time following the execution of the will. However, one needs a feasible and secure system that will ensure that audiovisual wills bestow the functions of testamentary formalities. Accordingly, we propose that each state create a digital registry. Testators could upload their audiovisual wills to such a registry, and these wills could be shared directly with competent public authorities. © 2022, Boom Uitgevers. All rights reserved.