Ulgener

T. Duygu Yazıcı Aracı
Senior Associate Lawyer

Article 17 of the Civil Procedure Code, allows merchants and public legal entities the resolution of disputes between them by authorizing one or more specified courts by means of an agreement. According to the provisions of this article, it is possible for the parties to resolve possible future disputes by filing cases only at the courts thus specified by the agreement. In law these types of agreements are named as “jurisdiction agreements” and are used frequently in situations where one of the parties is a foreigner. Although it is possible to create jurisdiction agreements as separate agreements, in general they are encountered as an article (in other words a jurisdiction clause) in the body of general agreements specifying the legal relationship between the parties.

In order for a jurisdiction agreement to be legally valid, it must be in writing, the legal relationship wherein the dispute occurs must be prespecified or ascertainable and the relevant authorized court(s) must be indicated. More importantly an exclusive jurisdiction rule for the relationship between the parties must not be present in laws. Otherwise the jurisdiction agreement will be invalid.

In maritime law, jurisdiction agreements are frequently encountered in bills of lading. As there is always a charter party between the shipper and the carrier in bulk cargo shipments, the bills of lading used in these instances refer to the charter party executed between the parties on jurisdiction. In container transportation, as the bill of lading is the only document that specifies the legal relationship between the parties, provisions on jurisdiction are usually found amongst the text on the back of the bill of lading.

We have encountered cases in the last few years where the courts have overruled the jurisdiction clauses written on the back of bills of lading. A new implementation we are encountering is, although the jurisdiction clause on the bill of lading specifies foreign courts (or arbitration) as having authority, cases can be filed against foreign shipowners’ agents as their representatives due to the acceptance of the provisions in the Turkish Commercial Code (TCC) that specify the authorities/powers of the agencies as the exclusive jurisdiction rule.

In Accordance with the article 105 of TCC;

“Agencies are authorized to make or accept all types of notices, notifications and protests on behalf of their clients regarding the agreements they mediate or conduct. The agencies may file a case on behalf of their clients in respect of disputes that may arise as a result of these agreements and they can also be defendants to the same on behalf of their clients. All provisions in agreements that is contrary to this rule, relating to agencies that are acting as agents for foreign companies, are invalid.”

According to this provision, the Turkish agent as the representative of the shipowner, becoming a party to cases arising from agreements to which they are intermediaries or are party to as the representatives of their clients, is not a new development. However even in the situations where foreign courts have been deemed to have jurisdiction over disputes arising from the bills of lading, filing a case against the shipowner’s agent as the representative is a new approach. This approach means that article 105 of the TCC referred to above is accepted by the Court of Appeal as exclusive jurisdiction and therefore the jurisdiction clause in the bill of lading is invalid.

Therefore in accordance with the Court of Appeal judgement, although the bill of lading states that foreign courts (or the arbitration) will have the jurisdiction, in situations where a foreign shipowner’s agent in Turkey is an intermediary in the carriage or party to the agreement, the jurisdiction clause will not be valid and the shipper will be able to file the case in Turkey against the shipowner’s agent. Although we have not witnessed it so far, the interpretation of the Court of Appeal about the validity of jurisdiction clauses, in situations, where the agent has executed a charter party on behalf of the shipowner or where it has acted as an intermediate to such charter party may be along the same lines.