NEWSLETTER-2020-metin

97 CAPITAL MARKETS LAW to protect the trust in the market 3 . Article 47 of the CML is one of the most remarkable provisions, which reflects the above-mentioned international principles. Another important resource of international rules in this regard is “the UNIDROIT Convention on Substantive Rules for Intermediated Securities,” adopted on October 9, 2009 (“Ge- neva Convention”). The principles on contracts of guarantee under Article 47 of CML Pursuant to Article 47, the contracts of guarantee with underly- ing capital market instruments that are monitored in a dematerialized form by the Central Registry Agency Incorporation (“CRA”) shall be made in written form. The ownership of the capital market instruments underlying these contracts of guarantee may be transferred to the guarantee taker according to legal procedures in the framework of the contract, or it may remain with the guarantee provider. This provision complies with the Geneva Convention, which distinguishes contracts of guarantee into two groups where the ownership of the guarantee has been “transferred to guarantee taker” or “remains with the guarantee provider.” 4 In cases where there is no provision about this issue in the contract, the ownership of the capital market instruments underlying the guarantee shall not be deemed to be transferred to the guarantee taker. This provision is also in compliance with the principle of clarity and definiteness in pledge law. Under Paragraph 2 of Article 47, contracts of guarantee, where the ownership is transferred to the guarantee taker, the guarantee taker shall take over the ownership rights of the capital market instruments underlying the guarantee, by complying with legal procedures at the moment of the conclusion of the contract of guarantee. Upon the ter- mination of the contract of guarantee, the guarantee taker shall return 3 Benli, Erman: “Sermaye Piyasası Araçlarını Konu Alan Teminat sözleşmelerinde Yeni Düzenlemenin Gerekçeleri” , Banka ve Finans Hukuku Dergisi, No. 21, 2017, p. 218. 4 Ergincan, Yakup; Yayla, Ümit: “ Sermaye Piyasalarında Teminat ve Ödünç İşlemlerinin Hukuki Niteliği ve Sonuçları ”, Maltepe Üniversitesi Hukuk Fakültesi Dergisi, V. 11, No. 2, 2012, p. 115-116.