Legal Hukuk Dergisi, Year 2022 Issue 237

ASSESSMENT OF AMENDMENTS TO CMI CLAUSE AND SALVAGE REMUNERATION IN YORK ANTWERP RULES 2016

Faysal GÜDEN — 2024-08-29

Dating back to ancient times, salvage is based on the belief that someone who helps others at sea puts himself and his ship in danger and deserves a proper reward. The rules on salvage operations were first established to protect against piracy and plunder. For centuries, documents such as the Edict of Rhodes and Justinian's Roman Digest have recognized the right to salvage. Although the conditions for granting a bailout vary from country to country, it remains an almost universally recognized right. Expenditures incurred by the parties to a joint maritime operation in the form of contracts or other salvage are considered average expenses, provided that the salvage operation is intended to protect the goods involved in the joint maritime operation from danger and is subject to certain regulations. In our study, Salvage and Salvage Charge, CMI Guidelines, Salvage and Salvage Charge in York Antwerp Rules 2016, International Salvage Convention 1989, Lloyd's Salvage Convention, and Scopic Clause on Salvage are examined.

The Self-Defence and Exceeding Its Limits in Light of Decisions of Supreme Court of Appeals of Turkey

İnanç İşten — 2024-08-29

Self-defence is any natural reaction of a person to avert an unlawful attack on himself or another. Considering that it belongs to the human nature, the self-defence has been accepted as a ground of justification in contemporary legal systems. In Turkish Law, the statutory requirements for the establishment of self-defence are divided in two groups consisting of three for the attack and three for the defence. Accordingly, the requirements regarding the attack are as follows: The attack shall be present, unlawful, and also directed towards a right. On the other hand, besides the necessity element, the defensive conduct against the attacker to avert the attack shall match the level of the attack in question as well. In other words, the necessity, and the proportionality of defence and being directed against both attack and attacker are taken into account as the statutory requirements regarding the defence. If the other statutory requirements for self-defence are met in a specific case, however it is not proportional and the limits of self-defence have been exceeded due to confusion, fear or fright, it is assumed that the perpetrator is not culpable since he cannot control his behaviors anymore. Therefore, he incurs no penalty.

THE EFFECT OF THE LIQUIDATION DECISION ACCORDING TO TURKISH CUSTOMS LEGISLATION ON THE CONTAINER DEMMURAGE CLAIM IN MARITIME TRANSPORT

Sevi Ceren Dalbeyler — 2024-08-29

The fact that containerization gains more and more importance and become widespread in international trade both of Turkey and the rest of the World, brought also lots of legal and procedural problems to determine about this area in legal practice. Especially in recent years, one of the most debated of those problems is container demurrage and the legal aspect of this claim. In this article, we will try to explain the claim of container demurrage and its limits in the light of the current Turkish customs law regime about abandoned goods in international seaports. In our article, we will evaluate and try to explain the legal situation in the case of abandonment of the goods in containers after they are imported to Turkey stuffed with imported goods and spot the practice and regulations of Turkish law and customs regime relating to liability of container and container demurrage.

Karşılaştırmalı Hukuk ve Türk Hukuku Perspektifinden Hakem Sözleşmesine Uygulanacak Hukuk

Süheylâ Balkar — 2024-08-29

Tahkim yargılamasının tarafları ile hakemler arasındaki ilişki, sözleşmesel bir ilişkidir. Hakem sözleşmesi olarak adlandırılan bu sözleşme, bir yandan hakemlerin yargılama yetkisinin temelini oluştururken diğer yandan da, tıpkı diğer sözleşme tiplerinde olduğu gibi, sözleşen taraflara bazı hak ve borçlar yükler. Dolayısıyla, hakemlerin hakem sözleşmesinden doğan borçlarını hiç veya gereği gibi yerine getirmemeleri halinde sözleşmesel sorumlulukları gündeme gelebilecektir. Yabancılık unsuru taşıyan hakem sözleşmeleri açısından, bu sorumluluğun hangi şartlarda ve hangi ölçüde ileri sürülebileceği sorularına cevap bulunabilmesi için kuşkusuz ki öncelikle, ilgili sözleşmeye uygulanacak hukukun doğru bir şekilde tespit edilmesi gerekir. Bu çalışmada ise, genel olarak hakem sözleşmesi ve bu sözleşmede yabancılık unsuru bulunması halinde ortaya çıkacak uygulanacak hukuk problemleri Türk Milletlerarası Özel Hukuku ve karşılaştırmalı hukuk çerçevesinde ele alınmıştır.

THE RIGHT TO A FAIR TRIAL AND DIFFERENCES IN ADMINISTRATIVE JURISDICTION

Eren Can Benakay — 2024-08-29

Although the stage of appeal is included in our legal system, our judicial system has taken a three-stage state. Most disputes regarding administrative jurisdiction have become final with the decision of the Regional Administrative Court. Considering the number of Regional Administrative Courts, different interpretations of the same dispute may emerge. With the introduction of the appeal system, the Council of State has become even more decisive in jurisprudence. The decision of the Council of State on the difference in case law has gained even more importance in terms of the principles of legal security and legal certainty. The absence of a mechanism to eliminate the deepened and ongoing difference in case law or the ineffective use of the existing mechanism undermines legal security and reduces public confidence in justice. Accordingly, the issue of case-law difference is brought before the Constitutional Court and the European Court of Human Rights within the scope of individual application. For this reason, the evaluation of the difference in case law within the scope of the administrative jurisdiction within the scope of the right to a fair trial has been the subject of our study.