NEWSLETTER-2020-metin

274 NEWSLETTER 2020 An Important Decision of the Court of Cassation on Mandatory Mediation in Commercial Disputes* Att. Piraye Erdem Introduction The 11th Civil Chamber of the Court of Cassation (“Court”), in its decision numbered 2019/3048 E. 2020/1093 K. and dated 10.02.2020 (“Decision”) 1 , examines a rejection decision on procedural grounds given by a local court in a case where the plaintiff claims both restitu- tion of a cheque, and the determination of not being a debtor due to the cheque, within the scope of Turkish Commercial Code numbered 6102 (“TCC ”), since the mediation as a pre-condition was not completed. In the Decision, it was evaluated whether the action for restitu- tion of the cheque, and the negative declaratory action, are subject to mediation as a pre-condition to file a lawsuit under Article 5/A of the TCC . The Court acknowledges that application to mediate is a pre- condition to bring negative declaratory actions. However, it decided unanimously that the claim for negative declaration would not be sub- ject to mandatory mediation due to the fact that the lawsuit in question was jointly filed with the claim for restitution of the cheque, which is not subject to mandatory mediation. In the dissenting opinion, it was argued that mediation is not a pre-condition to bring negative de- claratory actions, and in cases that applying to the mediator is a legal requirement only for one of the actions, but not the other, the actions should be severed. * Article of May, 2020 1 Decision of the 11th Civil Chamber of the Court of Cassation, No. 2019/3048 E. 2020/1093 K., 10.02.2020.